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August 19, 2023 Heather Cox Richardson

Published

11 months ago

August 30, 2023

Various constitutional lawyers have been weighing in lately on whether former president Donald Trump and others who participated in the effort to overturn the results of the 2020 presidential election are disqualified from holding office under the Fourteenth Amendment to the Constitution. The third section of that amendment, ratified in 1868, reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

On August 14 an article forthcoming from the University of Pennsylvania Law Review by William Baude of the University of Chicago Law School and Michael S. Paulsen of the University of St. Thomas School of Law became available as a preprint. It argued that the third section of the Fourteenth Amendment is still in effect (countering arguments that it applied only to the Civil War era secessionists), that it is self-executing (meaning the disqualification of certain people is automatic, much as age limits or residency requirements are), and that Trump and others who participated in trying to steal the 2020 presidential election are disqualified from holding office.

This paper was a big deal because while liberal thinkers have been making this argument for a while now, Baude and Paulsen are associated with the legal doctrine of originalism, an approach to the law that insists the Constitution should be understood as those who wrote its different parts understood them. That theory gained traction on the right in the 1980s as a way to push back against what its adherents called “judicial activism,” by which they meant the Supreme Court’s use of the law, especially the Fourteenth Amendment, to expand the rights of minorities and women. One of the key institutions engaged in this pushback was the Federalist Society, and both Baude and Paulson are associated with it.

Now the two have made a 126-page originalist case that the Fourteenth Amendment prohibits Trump from running for president. Their interpretation is undoubtedly correct. But that interpretation has even larger implications than they claim.

Moderate Republicans—not “Radical Republicans,” by the way, which was a slur pinned on the Civil War era party by southern-sympathizing Democrats—wrote the text of the Fourteenth Amendment at a specific time for a specific reason that speaks directly to our own era.

When John Wilkes Booth assassinated President Abraham Lincoln in April 1865, Congress was not in session. It had adjourned on the morning of Lincoln’s second inauguration in early March, after beavering away all night to finish up the session’s business, and congressmen had begun their long journeys home where they would stay until the new session began in December.

Lincoln’s death handed control of the country for more than seven months to his vice president, Andrew Johnson, a former Democrat who wanted to restore the nation to what it had been before the war, minus the institution of slavery that he believed concentrated wealth and power among a small elite. Johnson refused to call Congress back into session while he worked alone to restore the prewar system, dominated by Democrats, as quickly as he could.

In May, Johnson announced that all former Confederates except for high-ranking political or military officers or anyone worth more than $20,000 (about $400,000 today) would be given amnesty as soon as they took an oath of loyalty to the United States. He pardoned all but about 1,500 of that elite excluded group by December 1865.

Johnson required that southern states change their state constitutions by ratifying the Thirteenth Amendment prohibiting enslavement except as punishment for a crime, nullifying the ordinances of secession, and repudiating the Confederate war debts. Delegates did so, grudgingly and with some wiggling, and then went on to pass the Black Codes, laws designed to keep Black Americans subservient to their white neighbors.

Under those new state constitutions and racist legal codes, southern states elected new senators and representatives to Congress. Voters put back into national office the very same men who had driven the rebellion, including its vice president, Alexander Stephens, whom the Georgia legislature reelected to the U.S. Senate. When Congress reconvened in December 1865, Johnson cheerily told them he had reconstructed the country without their help.

It looked as if the country was right back to where it had been in 1860, with legal slavery ended but a racial system that looked much like it already reestablished in the South. And since the 1870 census would count Black Americans as whole people for the first time, southern congressmen would have more power than before.

But when the southern state delegations elected under Johnson’s plan arrived in Washington, D.C., to be seated, Republicans turned them away. They rejected the idea that after four years, 600,000 casualties, and more than $5 billion, the country should be ruled by men like Stephens, who insisted that American democracy meant that power resided not in the federal government but in the states, where a small, wealthy minority could insulate itself from the majority rule that controlled Congress.

In state government a minority could control who could vote and the information to which those voters had access, removing concerns that voters would challenge their wealth or power. White southerners embraced the idea of “popular sovereignty” and “states’ rights,” arguing that any attempt of Congress to enforce majority rule was an attack on democracy.

But President LIncoln and the Republicans reestablished the idea of majority rule, using the federal government to enforce the principle of human equality outlined by the Declaration of Independence.

And that’s where the Fourteenth Amendment came in. When Johnson tried to restore the former Confederates to power after the Civil War, Americans wrote into the Constitution that anyone born or naturalized in the U.S. was a citizen, and then they established that states must treat all citizens equally before the law, thus taking away the legal basis for the Black Codes and giving the federal government power to enforce equality in the states. They also made sure that anyone who rebels against the federal government can’t make or enforce the nation’s laws.

Republicans in the 1860s would certainly have believed the Fourteenth Amendment covered Trump’s attempt to overturn the results of a presidential election. More, though, that amendment sought to establish, once and for all, the supremacy of the federal government over those who wanted to solidify their power in the states, where they could impose the will of a minority. That concept speaks directly to today’s Republicans.

In The Atlantic today, two prominent legal scholars from opposite sides of the political spectrum, former federal judge J. Michael Luttig and emeritus professor of constitutional law at Harvard Law School Laurence H. Tribe, applauded the Baude-Paulsen article and suggested that the American people should support the “faithful application and enforcement of their Constitution.”

—

Notes:

https://newrepublic.com/article/174977/baude-paulsen-trump-14th-amendment

https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/

https://www.cnn.com/2023/08/19/politics/donald-trump-fourteenth-amendment-2024-race/index.html

https://www.in2013dollars.com/us/inflation/1865?amount=20000

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

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July 25, 2024 Heather Cox Richardson

Published

11 hours ago

July 26, 2024

Substacks

TGIF: The Week Unburdened by the Week That Has Been Suzy Weiss

Published

18 hours ago

July 26, 2024

Pro-Palestinian protesters gather outside of Union Station to protest Israeli prime minister Benjamin Netanyahu’s visit to the United States. (Probal Rashid via Getty Images)

Oh, no, it’s the sister again, for another slow news week. Let’s get to it.

→ Biden dropped out: Six years ago emotionally, but technically this past Sunday, Joe Biden dropped out of the presidential race. He did it via X and promptly threw his support (and cash) behind Vice President Kamala Harris. Then he got Covid and hunkered down in Delaware—or depending on what hooch you’ve been drinking, died and was reanimated so he could appear before the cameras on Wednesday to address the nation. Joe’s family, including Hunter, sat along the wall of the Oval Office as he spoke. The president talked about the cancer moonshot, ending the war in Gaza, putting the party over himself, and Kamala’s tenacity, as Kamala’s pistol dug ever-so-slightly harder into his back. Right after, Jill, the First Lady of passive aggression, who apparently wanted to outdo her heart emoji, tweeted a handwritten note “to those who never wavered, to those who refused to doubt, to those who always believed.” I respect a First Lady who stands by her man and her energetic stepson. A First Lady who sees the high road way up there and says to herself, “If they want us out of here so bad, they can clean out the fridge and strip the beds themselves!”

→ Kamala is brat, Biden is boots, please God send the asteroid today: I’ve learned the hard way—and by that I mean my parents once asked me what “WAP” meant—that certain things should never be explained with words. It’s not that it’s impossible, it’s just that it embarrasses everyone.

That’s how I feel about the whole Kamala-is-brat thing. Brat is a good album about partying and getting older and having anxiety that was released earlier this summer by Charli XCX. But it’s since been adopted by too-online and very young people as a personality, and by Kamala Harris’s campaign as a mode to relate to those very young people. Her campaign is leaning into the whole green look of the album to try and win over Gen Z, and generally recasting her many viral moments—“You think you just fell out of a coconut tree?” “I love Venn diagrams” “What can be, unburdened but what has been”—as calling cards. It’s like when Hillary went on Broad City, only this time more cringe.

And now we have Jake Tapper and Greg Gutfeld grappling with the “essence” and the “aesthetic” and overall vibe of brat girl summer. We used to be a serious country. We used to make things.

Here’s the thing about Kamla: she is hilarious and campy, but unintentionally so. Any goodwill that her goofy dances or weird turns of phrase garner should be considered bonus points, not game play. Was there ever any doubt that Fire Island would go blue? We’ve been debating whether Kamala’s meme campaign is a good move for her prospects in the Free Press Slack, and here I’ll borrow from my older and wiser colleague Peter Savodnik: “There is nothing more pathetic than an older person who cares what a younger person thinks is cool.”

→ Boomer behavior: While Kamala’s campaign is being run by a 24-year-old twink with an Adderall prescription, J.D. Vance’s speechwriter seems to be a drunk Boomer who just got kicked out of a 7-11. Vance, appearing this week at a rally in Middletown, Ohio, riffed, “Democrats say that it is racist to believe. . . well, they say it’s racist to do anything. I had a Diet Mountain Dew yesterday and one today, and I’m sure they’re going to call that racist too.” Crickets. Horror. Major “Thanks, Obama” energy. There was also a bit on fried bologna sandwiches and a lot of “lemme tell you another story.” The guy is 39 but sounds older than Biden.

Fresher, 35-to-60-year-old blood is exactly what we’ve been begging for. Let the Boomers boom, let the Zoomers zoom. Kamala and J.D.: act your age.

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July 25, 2024 Heather Cox Richardson

Published

22 hours ago

July 26, 2024

Momentum continues to build behind Vice President Kamala Harris to become the Democratic Party’s presidential nominee, and the national narrative as a whole has shifted.

Democrats appear to be generating significant enthusiasm among younger Americans. Yesterday, for the first time in their history, the March for Our Lives organization endorsed a presidential candidate: Kamala Harris. Students from the Marjory Stoneman Douglas High School in Parkland, Florida, organized March for Our Lives after the shooting there in 2018. Executive director Natalie Fall said that the organization “will work to mobilize young people across the country to support Vice President Harris and other down-ballot candidates, with a particular focus on the states and races where we can make up the margin of victory—in Arizona, New York, Michigan, and Florida.”

Andrea Hailey of Vote.org announced that in the 48 hours after President Biden said he would not accept the Democratic nomination, nearly 40,000 people registered to vote. That meant a daily increase in new registrations of almost 700%.

People are turning out for Harris in impressive numbers. In the hours after she launched her campaign, Win With Black Women rallied 44,000 Black women on Zoom and raised $1.6 million. On Monday, around 20,000 Black men rallied to raise $1.2 million. Tonight, challenged to “answer the call,” 164,000 white women joined an event that “broke Zoom” and raised more than $2 million and tens of thousands of new volunteers.

Another significant endorsement for Harris came yesterday from Geoff Duncan, the Republican former lieutenant governor of Georgia, who wrote on social media: “I’m committed to beating Donald Trump. The only vehicle left for me to do that with is the Democratic Party. If that requires me to vote for, speak for, or endorse [Kamala Harris] then count me in!” Duncan’s public announcement offers permission for other Georgia Republicans to make a similar shift. In 1964, South Carolina senator Strom Thurmond similarly paved the way for southern Democrats to vote for Republican presidential candidate Barry Goldwater.

Harris’s appearances are generating such enthusiasm from audiences that when she delivered the keynote address this morning at the convention of the American Federation of Teachers in Houston, Texas, the applause delayed her ability to begin. After a speech defending education and calling out the cuts to it in Project 2025, Harris ended by demonstrating that after decades of Democrats being accused of being anti-American, Trump’s denigration of the country has enabled the party to claim the position of being America’s defenders.

“When we vote, we make our voices heard,” Harris said. “So today, I ask you, AFT, are you ready to make your voices heard? Do we believe in freedom? Do we believe in opportunity? Do we believe in the promise of America? And are we ready to fight for it? And when we fight, we win! God bless you and God bless the United States of America.”

Today the Commerce Department reported that economic growth in the second quarter was higher than expected, coming in at 2.8%, thanks to higher spending driven by higher wages. The country’s changing momentum is showing in media stories hyping the booming economy Biden’s team tried for years to get traction on. “Full Employment is Joe Biden’s True Legacy” was the title of a story by Zachary Carter that appeared yesterday in Slate; CNN responded to today’s good economic news with an article by Bryan Mena titled: “The US economy is pulling off something historic.”

With Harris appearing to have sewn up the nomination, the question has turned to her vice presidential pick. That question is fueling the sense of excitement as potential choices are in front of cameras and on social media advocating Democratic positions and defending the United States from Trump’s denigration. Pennsylvania governor Josh Shapiro listed the economic gains of the past years, and said: “Trump, you’ve got to stop sh*t talking America. We’ve got to start standing tall and being patriotic and showing how much we love this amazing nation.”

The vice presidential hopefuls appear to be having some fun with showcasing their personalities, as Minnesota governor Tim Walz did in his video from the Minnesota State Fair where he and his daughter went on an extreme ride. So are social media users who have dug up old videos of, for example, Transportation Secretary Pete Buttigieg explaining how he would pilot a small starfighter that had lost its auxiliary shields, or Arizona senator Mark Kelly’s identical twin brother Scott pranking a fellow astronaut on the Space Station with a gorilla suit Mark smuggled on board.

That sense of fun is an enormous relief after years of political weight, and it has spilled over into making fun of the Republican ticket, most notably with a false story that vice presidential candidate J.D. Vance wrote about—and I cannot believe I am typing this—having sex with a couch. The story is stupid, but worse are the denials of it, which have spread the story into populations that otherwise would likely not have seen it.

Just two weeks ago, Vance appeared to be the leader of the next generation of extremist MAGA Republicans, but now that calculation seems to have been hasty. Vance is a staunch opponent of abortion—the key issue in 2024—and he has been vocal in his disdain of women who have not given birth, saying in 2021, for example, that the U.S. was being run by “a bunch of childless cat ladies who are miserable at their own lives and the choices that they’ve made and so they want to make the rest of the country miserable, too.” He went on to say that people who don’t have children “don’t really have a direct stake” in the country.

Republican commentator Meghan McCain noted that Vance’s “comments are activating women across all sides, including my most conservative Trump supporting friends. These comments have caused real pain and are just innately unchristian.” Actor Jennifer Aniston, who tends to stay out of politics, posted: “I truly can’t believe this is coming from a potential VP of The United States.” Vance had called out Harris by name in those 2021 comments, and Second Gentleman Doug Emhoff’s ex-wife Kerstin Emhoff took to social media to defend Harris from Vance’s attacks on her as “childless,” calling her “a co-parent with Doug and I. She is loving, nurturing, fiercely protective and always present. I love our blended family and am grateful to have her in it.” Harris’s stepdaughter chimed in: “I love my three parents.”

Vance also ties the Republican ticket firmly to Project 2025. The Trump camp has worked to distance itself from Project 2025—not convincingly, since the two are obviously closely tied, but it turns out that Vance wrote the introduction for a forthcoming book by Heritage Foundation president Kevin Roberts, who was the lead author of Project 2025. The book appears to popularize that plan, right down to its endorsement of a “Second American Revolution,” and according to the book deal report, proceeds from the book will go to the Heritage Foundation “and aligned nonprofits.”

Now Vance’s words praising Project 2025 will be in print, just in time for the election. Yesterday, Trump posted: “I have nothing to do with, and know nothing about, Project 25 [sic]. The fact that I do is merely disinformation put out by the Radical Left Democrat Thugs. Do not believe them!”

Trump is clearly aware of, and concerned about, the changing narrative. This morning, he called in to Fox & Friends, saying, “We don’t need the votes. I have so many votes. I’m in Florida now…and every house has a Trump-Vance sign on it. Every single house…. It’s amazing the spirit…. This election has more spirit than I’ve ever seen ever before.” Tonight the Trump campaign proved their worry by backing out of debates with Harris, saying debates can’t be scheduled until she is the official nominee, although Biden was not the official nominee when they met in June.

The larger narrative shift has affected the media approach to Trump, who is accustomed to shaping perceptions as he wishes. Now, 12 days after the mass shooting at his rally in Butler, Pennsylvania, there is increasing media attention to the fact that there has still been no medical report on Trump’s injuries, although he wore a large bandage on his ear at the Republican National Convention and said at a rally in Grand Rapids, Michigan, on Saturday that he “took a bullet for democracy.”

Yesterday, FBI director Christopher Wray told Congress that it is not clear whether Trump was “grazed” by a bullet or by shrapnel, words that former federal prosecutor Joyce Vance called “FBI speak for, ‘it’s unlikely it was a bullet.’”

CNN chief medical consultant Dr. Sanjay Gupta noted last week that the people need a real medical evaluation of Trump’s injuries, explaining that “gunshot blasts near the head can cause injuries that aren’t immediately noticeable, such as bleeding in or on the brain, damage to the inner ear or even psychological trauma.” But, as Josh Marshall at Talking Points Memo has noted, much of the press has kept mum about the story.

Media outlets have reported Wray’s testimony, though, and in a social media post today, Trump called on Wray, whom he appointed to head the FBI, to resign from his post for “LYING TO CONGRESS.” Tonight, he reiterated that “it was…a bullet that hit my ear, and hit it hard.”

Perhaps eager to get back to their districts, House Republicans canceled their expected votes on appropriations bills scheduled for next week and left town today for their August recess. The House will not reconvene until early September. The government’s fiscal year 2025 begins on October 1.

—

Notes:

https://www.nytimes.com/2024/07/24/opinion/trump-lies-charts-data.html

https://marchforourlives.org/in-a-first-ever-endorsement-march-for-our-lives-endorses-kamala-harris-for-president/

https://www.reuters.com/markets/us/us-economic-growth-regains-steam-second-quarter-inflation-slows-2024-07-25/

https://slate.com/news-and-politics/2024/07/biden-economy-employment-inflation.html

https://www.cnn.com/2024/07/25/entertainment/jennifer-aniston-jd-vance/index.html

https://www.cnn.com/2024/07/25/economy/us-economy-gdp-second-quarter/index.html

https://www.mediamatters.org/heritage-foundation/jd-vance-wrote-foreword-book-project-2025-architect-kevin-roberts-and-proceeds

https://www.newsweek.com/donald-trump-might-not-shot-1930037

https://people.com/was-trump-struck-by-bullet-or-shrapnel-fbi-director-testifies-8683340

https://www.msnbc.com/rachel-maddow-show/maddowblog/trump-wants-fbi-director-resign-immediately-chris-wray-rcna163641