"It's Worse to Do It That Way" (More on 14A, sec. 3)

I once wrote a long-form report on Dred Scott v. Sandford, which was twenty-five pages long.  [The link is a brief summary I wrote for another website.]  I own a book by Don Fehrenbacher discussing the case that is over five hundred pages long.  These constitutional subjects cover a lot of ground.  So, yes, my 14A, sec. 3 posts were not comprehensive.  

A basic theme of mine is that the provision covers a lot of people. It is not just about Trump. But, it is being used against Trump.  And, others.  We should have some sense of what it means.  It is not just about voting for people.  The "offices" covered include many that are merely appointed.  

But, of course, a lot of focus is put on Donald Trump.  One law professor, who is not alone, recently argued that it is simply a bad idea to disqualify Trump this way.  Trump should be defeated at the polls. If disqualification is done this way, it will be deemed illegitimate.  It will if anything cause more problems.  He is quite sure of this.  Okay.

I'm not a prophet.  Biblical prophecy also often is helped out because the events happened already.  "Daniel" for instance is a book that takes place hundreds of years before it was actually written.  It's okay to predict. A pet peeve of mind, however, is being so darn cocksure.  A guy who wanted Michael Bloomberg to be the nominee in 2020 since it was the only way to beat Trump should be a bit careful with the extra assurance adjectives.

Anyway.  I say this with some caution, but this is how I see what is very well an academic exercise. Let's say the Supreme Court upholds a state determination he is disqualified and leaves in place a state removing him from the primary ballot. What would happen? I think the Republican Party at some point will determine it's time to get a new candidate.

What are they going to do? Say the Supreme Court, led by John Roberts (and the vote is doubtful to be 5-4), is wrong?  What's next?  Dobbs?  This will flow to the general public, including many Republicans and independents.  We saw this with Bush v. Gore.  It will also help things if Trump is prosecuted for crimes.  People will have a basic thought that there is not really an injustice that a convicted felon is not on the ballot.

Will everyone think this way?  Obviously not.  You will have the true believers.  But, they aren't enough.  Republicans aided and abetted Trump, including after he lost his election in 2020.  They said he had the right to appeal. That protest was okay.  And so forth.  This gave him wind behind his back.  It was hard to suddenly turn the switch.  A majority of Hosue Republicans voted to protest electoral votes AFTER the attack.  

(Note too that this time the Biden Administration will be in control, providing one more check on things going as far as it did.) 

It very well might not happen if he's disqualified with the support of the Supreme Court.  Now, I'm not sure how it would actually happen. The Court very well might try to avoid deciding and punt.  This all seems academic on that level.  And, I don't think a state will be able, without the Supreme Court leaving it in place, to by their lonesome leave him off the ballot.  So, the Supreme Court's authority is very important.  

This is all guesswork on some level.  I do think it is a reasonable prediction.  I won't bet my non-existent farm on it.  Still, I think it is reasonable.  It underlines that we are not just talking about some election officials deciding here.  It will be a collection of things in actuality.  And, I think that is reasonable.  The stakes are high here and we are not doing something run of the mill.  There are checks in the system here.

I added an addendum to my last post, but a basic thing here is that we simply don't have a simple democracy in this country.  Did a majority of the voting public (or a plurality even) vote for Trump in 2016?  It was quite possible, with relatively minuscule vote changes, that the same thing could have happened in 2020.  

The courts also repeatedly interfere with direct democracy.  Our republican democracy factors this in.  Why is preventing someone who committed insurrection from office so different on a basic level than legal rulings (affected by voting laws) changing district lines that in the real world change who wins elections?  Were "one person, one vote" rulings wrong?

Let's be aware that these rulings are not just democratic advancing by making sure that such and such district with fewer people has unequal power in the legislature. They affect the makeup of the legislature themselves. The same would apply to state partisan gerrymandering.  Many people argue nothing is wrong with that sort of thing.  

To put my cards on the table, I think the provision is probably overbroad. I don't think -- with a hard-to-reach 2/3 override [it was much easier then, yes, but the provision doesn't just apply to the 19th Century] -- an absolute ban on all offices here is a great idea in all cases.  It would help if it is limited to cabin its reach.  A time limit would be a good idea.

But, I don't like just ignoring the provision.  Yes, sometimes, you do that realistically.  It's a practical workaround when the alternative is unlikely to happen. I don't know, however, how appropriate it is in this case.  What if Trump is convicted of what I would at least call insurrection-adjacent (including what is charged in the indictment as the details of the conspiracy) crimes?  It would be so wrong to disqualify him?

What other constitutional provisions should we ignore? No. I'm quite serious here. I am appalled at how the emoluments limitations were not enforced against Trump and his family members.  Impeachment is seen as something you do to a few judges, usually after they are convicted of a crime.  "Good behavior" for justices is a self-regulated suggestion.

Enough.  People always find a way to let him get away with it. And, no, yet another election campaign -- with all the perversions and more that entails -- that ends with him losing is not much of a penalty at this point.  

If you want people who committed insurrection to qualify, amend the Constitution. After fifty years, I don't count the 27A, we need an amendment.  Not quite that one, though changing the nature of elections, including removing the stupid and offensive natural-born citizenship rule for presidents, could be a good place to start.