Over a late dinner last night, after learning that the Maine Secretary of State had determined that Trump was ineligible to be on the Republican primary ballot, I was asked why there could be any question as to the propriety of applying Section 3 of the Fourteenth Amendment. I put on my lawyer voice and began explaining canons of statutory construction, the constitutional meaning of the word “officer,” and how there were two, and only two, positions in our government that were nationally elected, the president and vice president, distinguishing them from the expressly named elected officials in Section 3.*
As eyes glazed over, and head began to shake from side to side, Dr. SJ asked “How is it possible that the president, THE PRESIDENT, wouldn’t be included in Section 3?” As I was about to reply that “asking a question is not an argument,” a reply that has never caused Dr. SJ to feel warmly about me, another person at the table responded, “Why, since everybody but the MAGA crazies knows that Trump is a lying, venal, narcissistic ignoramus, can’t the Democrats just beat him?”
It’s a very good question.
There’s Biden’s age. He may not be much older than Trump, but he appears enfeebled and likely unable to serve out another term as president. And nobody wants Kamala Harris as president. Trump, despite his myriad failings, comes off as far more vigorous than Biden.
There’s the schism between the liberal majority of the Democratic party and the radical progressive wing. Biden has proven himself too moderate for the progressives and too progressive for the moderates. He’s been trying to thread the needle for the past three years, satisfying no one. Now, his position on Israel and Gaza has so outraged the progressive wing that they’re calling him a fascist dictator and his supporters “blue MAGA.” Without the support of the progressive wing, Biden won’t have the votes.
Will the left wing of the party abandon Biden and either support Trump or, more likely, not vote? While it’s hard to imagine that they will sit idly by while Trump wins, they’re doctrainaire enough to do so, and their increasingly outraged rhetoric suggests that they may well choose the least utilitarian path so they can wrap themselves in the glory of rightesous misery for the next four years.
There’s the border problem, which has proven a nightmare for both Biden and Trump, not to mention the “sanctuary” cities that were so very supportive of undocumented immigrants until they had to feed and house them.
There’s the economy, which isn’t nearly as bad as many feel it is, but isn’t nearly as good as Biden supporters want people to believe it is. Inflation has always been an election killer, and no amount of statistics and charts makes the cost of bread feel any better. People work to do better, not to stay slightly behind the rate of inflation, even when it’s increasing at a decreasing rate.
There’s crime, which is statistically going down for the most part but appears to be worse because its both in our face and instead of condemning it, the left makes excuses for it. Part of this is the illegal conduct employed in furtherance of radical causes, which the left sees as “mostly peaceful protest” while everyone else is pretty darn angry about it. And yet, there they are, doing it, and doing it some more, and there is no sense that anything is being done to prevent it and the Democrats aren’t interested in getting protesters off the highway so we can get to our planes on time.
If the problem was just beating Trump, the answer would seem pretty clear. Be normal. Be liberal. Reject the radicals and give the majority of Americans a nation that doesn’t seem to be in the constant throes of fringe outrage. Or is there nothing clear about it and despite the absolute certainty of the Democrats that they’re the good guys on the right side of history, they just can’t seem to muster the support to crush Trump and put an end to this national nightmare? Why resort to arguing over the interpretation of Section 3 when they should be able to just win?
*In a New York Times op-ed, Kurt Lash provides a pretty good explanation of the legal arguments involved. Curiously, the reader comments range from “nah” to “YOU’RE WRONG!!!”
Disqualifying opposition candidates through the courts or, in the Maine case, by decree is something we expect of Venezuela, Iran or Russia. As you said, if the people don’t want Donald Trump for President, they should elect someone else. But progressives are the Nanny Karens who know better than the rest of us and they are trying to keep Trump off the ballot because they don’t trust us to know who to vote for. And people to don’t trust the electorate scare me since they are tyrants in nanny clothing.
Whoever the Republican nominee is only has to recycle the Ronald Reagan “Are you better off now than you were four years ago?” line against Biden. But personally, I’m not convinced Trump and Biden will be the nominees. There are better choices on the Republican side and Trump’s attitude that the nomination is his be some divine right will rub some voters wrong. Will it be enough? I don’t know. And I think Democrats will jettison Biden if it looks like he can’t win. Would a replacement do better? Again, I just don’t know.
This would be the year for a good 3rd Party Candidate to make a serious run. if the candidate could get the Never Trump and Never Biden vote it could be enough.
I note the irony of people who ask a lawyer a lawyerly question, but hate it when the lawyer gives a lawyerly response. Many a night has been spent sleeping on a couch for this.
[Insert Dickens quote here.]
The effort to bar Trump from the ballot puts Democrats in the unenviable position of “defending democracy” by openly trying to rig an election. It’s a stupid and brazenly hypocritical tactic, but may be the only option to retain the feeble and duplicitous Biden in office. Of course they all know that if Biden gets put out, every radical that holds a pen-and-phone fiefdom by his authority goes with him.
May I remind you that Democrats have never claimed to defend “democracy”, but rather, “our democracy.” I have found it peculiar when, repeatedly, Biden, Pelosi, Schumer and other Democrats would use the term “our democracy”, not merely “democracy.” It is becoming clearer now what they meant by “our democracy.”
Biden is too closely tied to Hillary. Trump or whoever the R’s pick would still pick up a bunch of “Anybody but Hillary” voters. That is still a sizeable number of votes.
Biden has enough baggage for an American Tourister outlet, Hilary was just another sticker on a Pullman case full of corruption. I voted Bernie in the 2020 primary, and lost what little faith in the Democratic Party I had left when the cabal gave us Biden-Harris.
Only a propagandist would claim a politician with 50 years in office and both the 1994 Omnibus Crime Bill and making student loans non-dischargeable on his record was a force for reform. Plus there’s “Owned and Operated” tramp stamp with a picture of Xi Jin Ping
Winning without earning it is the engine of American two party politics. Instead of running faster than the other guy, the objective is to run as slowly as possible while manipulating the bear to think the other guy is slower. Pathetic adversaries are aspirational benchmarks.
Your second reason — that the so-called ‘progressive’ voters might just stay home — is what is going to elect Trump. In 2016, there were about 400,000 voters, mostly young and/or Black and/or ‘progressive,’ who had voted for Obama in 2012 and then just stayed home in 2016 because . . . Hillary. I doubt that they’ve learned from that experience, and are therefore likely to repeat it. They’ll have to live with the consequences of their stupidity, but unfortunately so will the rest of us.
We’ve all been continually living with consequences since the beginning of 2017, and it appears that consequences will continue until morale improves.
Hey Prof, who doesn’t like to be called stupid?
Thanks for looking out for us!!
From:
A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning, 49 Conn. L. Rev. 1069 (2017); GWU Law School Public Law Research Paper No. 2017-77
This provision requires a little background to understand. Having just won the Civil War and defeated the Confederacy, Congress was concerned that former leaders of the Confederacy would take over the state and federal offices. Congress rejected the approach, favored by President Johnson in his proclamations, of excluding only high level Confederate 145 Id. See id. (failing to respond to Rep. Brooks’ objection). See id. at 3149 (voting to pass the Fourteenth Amendment in both houses of Congress). I” U.S. CONST. amend. XIV, § 3. 149 Id. “” Id. 151 Id. 1092 CONNECTICUT LAW REVIEW [Vol. 49:1069 officials.152 Instead, it focused on those who had sworn to uphold the Constitution and then violated that oath.”
So, back in 2017, it was thought the curious wording of the amendment was not to create an opening at the top, but to ensure comverage at the bottom.
Many are assuming it’s an anti-democratic provision. It was proposed by Radical Republicans and adopted by the people in an intensely populist era – far more so than our own. The better reading is that it is anti-sectarian in spirit. The country as a whole couldn’t stop someone from becoming congresscritter or governor without Section 3. But that’s not true of POTUS.
Approximately half of voters think that Trump is a “lying, venal, narcissistic ignoramus.” Another half (with some overlap) think that Trump is a giant middle finger to an establishment that doesn’t care about them. Meanwhile the Democrats and the media sabotage every candidate who could offer any hope, and run two of the least electable politicians in existence, while taking advantage of every opportunity to destroy their own credibility. It’s almost like they want him to win.
The wisdom of Mayor Ed Koch has become apparent to me as I grow older. When asked to describe himself on the political spectrum, he said that he “was a liberal with sanity.”
We need more Ed Koch.
Thats how you beat Donald Trump. (But I still say that i don’t think Biden or Trump will end up as their party’s nominee–we’ll see).
You.once got mad at me for using the term ‘Banana Republic”. You may get mad at me again, but this is really Banana Republic level stuff.
I voted for Trump one time and not the other. I have never told anyone which time was which.
A government elected on the basis of denial of ballot access is illegimate and I will support all resistence short of the 2nd Amendment opition.
The D’s need to clean up their act.
“I voted for Trump one time and not the other. I have never told anyone which time was which.”
Pondering whether making this coy comment itself indicates the answer is like Vizzini pondering in which goblet of wine the Man In Black would have poured the iocaine powder.
I was really hoping to hear from other people who were Democrats stymied, like me, at how their party could possibly lose to the likes of Trump. Instead, it’s just the usual guys taking the usual potshots and illuminating nothing.
I, too, hoped to hear from more Dem voters who find this scenario unbelievable. How little should it take to do better than Trump?
The good people on both sides don’t want to jump into the current political cesspool.
Bingo! I’ve been approached a couple of times in my retirement to run for non-partisan local political positions. My firm response is, “I’ve done my time in hell.” That probably says more about me than about the tenor of local political processes but I am firm in the determination to no longer actively seek opportunities to deal with idiots.
The only thing necessary for the triumph of evil is that good men do nothing.
I know it’s not TT, but I think the boss will tolerate this.
Part of the problem with being unable to get rid of Self-Worshipping Carcinogenic Peach person is that some out there have a disturbing fondness for him. Part of it is the failure to nominate a sterling candidate in opposition.
But the far and away the biggest part of it is that you aren’t just choosing the president. You’re electing a massive supporting cast, determining what legislation passes and what gets vetoed, determining who wields the “pen and a phone”, who staffs the judiciary and how SCOTUS next amends (too honest?) the constitution. Should all of this depend on one election for one officer every four years?
As Americans, we disagree with one another on countless things. That’s why we vote. That’s why we publicly deliberate, something that doesn’t happen at 1600 PA Ave or 1st street NE. It’s why we have federalism, and why we vote with our feet. When the entire government of a nation comes to make the fates of seemingly every civic question rest on one election, you will get bad parties choosing bad people. And sometimes they will become president – not because of who they are, but because of all the policy changes – great and small – that will flow from the fact of their election.
In short, unless we think about structure, competence and character will not be the only things determining how people vote. And some candidates will succeed without either.