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zataomm  4mo ago (text post)   5356 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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I've been going over the Colorado decision and found this passage from the majority opinion shocking:

Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.

This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.

@Gdanning I deleted my comment on the CW thread, would you mind responding here?

Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?

But that is not what happened here. Here, Congress has not acted at all, and the issue is whether the bar is self-executing:

The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress

PS: Please note that I am not defending the decision. For both legal and policy reasons, IMHO no criminal conviction = no disqualification.

Congress has not acted at all, and the issue is whether the bar is self-executing

Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:

We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.

Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?

Or are you saying

Again, I am not opining on the merits, but am merely referring to the claims made by the parties and judges. The quote is re an alternative argument raised by Trump (note its placement at the end of the section on self-execution, and after your original quote). And note this from one of the dissents:

My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three.

So, that is the claim of the majority. The majority does not argue, as you inferred they did, that states can establish a definitiin of insurrection different than that established by Congress.

Thanks for the quote. I'm really puzzled by both the dissent and majority's opinion on this matter. As the dissent writes after the line you quoted:

If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383.

I don't understand why neither side considers section 2383 to "enable the enforcement of Section Three". That seems to be exactly what it does, yes "arguably", but the "argument" would mainly just point out that that section uses the exact same language found in the 14th amendment!

The dissent also says,

this is the only federal legislation in existence at this time to potentially enforce Section Three

My guess is that, because the statute provides for a criminal penalty and disqualification for public office, it might be a separate penalty as opposed to an implementation of the 14th A. The statute does seem broader than the 14th Amend, FWIW, since the 14th applies only to those who have taken an oath to support the Constitution, whereas the statute applies to all who engage in insurrection. Someone who violates the statute but who did not violate the 14th because he never took an oath can still be President, since the Constitution establishes the exclusive qualifications for the offices of President, Senator, Congressperson, etc (see cases annulling term limits on Congress).

The problem with “self-executing” especially in this case is that it doesn’t require a conviction which brings up a huge problem in that if you can create a self-executing punishment (which would happen if the other parts are self-executing— jail time and fines are legal penalties) then you’ve done away with the presumption of innocence and the right to a hearing and to cross examine witnesses. A “finding of fact” that allows for criminal punishments is essentially a trail in absentia i can declare that you did in fact commit insurrection or give aid and comfort to one without the inconvenience of a trial and the right to examine and dispute the evidence, to cross examine witnesses, or present a defense.

It seems a bit of a stretch to suggest that a document that in several instances explicitly requires the state to presume innocence, limits the ability to search (hence warrants), forbids the state from requiring a defendant to incriminate himself, requires juries of the defendant’s peers, and otherwise makes the state jump through hoops before declaring someone guilty of a crime would suddenly be okay with striking someone from a ballot or fining them or jailing them based on a finding of fact.

There is another problem which is they are effectively claiming Trump is disqualified from office if he was elected. But they cannot know this because it would be possible for the house and senate to remove this disqualification before he began serving. Whether Trump is disqualified or not at the point in time that he would assume office is currently unknown. This would be similar to Colorado not allowing someone on the Primary who was aged 34 years and 11 months because they are not currently qualified even though they would be qualified at the point that they serve. Maybe there is Colorado case law where they already do this which would be strange but I assume cases would be decided allowing a person of such age onto the Primary ballot. The age issue is a stronger argument because we know someone will age whereas Trump’s situation is unknown but I think it is a compelling argument.

There has to be a presumption of one state or the other. I’d have preferred to go with “presumed innocent,” but still, it’s reasonable not to expect an act of Congress.

I find the dissent’s attack of the Colorado law convincing apart from the issue you raise. Determining whether someone is an insurrectionist is either really simple (in the context of say Robert E Lee) or really hard (Trump or Biden). It seems we can either define insurrectionist narrowly (in which case the Colorado law applies but Trump clearly isn’t an insurrectionist) OR the Colorado law wasn’t intending to capture broad interpretations of insurrection since that would require extreme factual development / significant protection for the person accused of insurrection and tr statute requires a quick trial on a preponderance standard with limited discovery rights. So it is kind of heads Trump wins tails the Plaintiff loses.

American insider baseball? I lack the context to make sense of this.

Edit: Thanks for the explanations, makes sense now.

The thread is intended as a follow-up to this comment. America-centric for sure but it seems pretty important. Donald Trump, a leading candidate for one of the two major political parties has been declared ineligible for the presidency because, according to the supreme court of Colorado, he engaged in an insurrection against the US government.

I listen to news commentary talk radio every day. This story has dominated coverage. Also front page articles in American newspapers. It's the big deal this week.

After the American Civil War they passed a Constitutional ammendment banning former-Confederates who also were former civil officers or military officers. These people swore oaths to defend the Constitution and the Republic and then betrayed those oaths.

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.

Colorado state court says Trump is ineligible based on this. He's an insurrectionist. And that ammendment mentions nothing about needing a conviction. So they've ordered him removed from the state primary ballots, which will be printed in a few days. The Supreme Court needs to rush to block this or Trump's won't be on the primary ballot. And given this logic to keep him off the primary, surely they'd have to keep him off of the general election ballot. Which is actually a callback to states pre-Civil War not putting Lincoln on the ballot. Just don't even pretend anyone is allowed to vote for your opponents.

Plaintiffs in at least seven states have tried to get state courts to remove Trump from the ballot using this reasoning. They finally found a venue willing to do it. Just barely, the judges that ruled on this are all Democratic appointees and even they only barely majority support this. So it is not that popular yet, unless the people pushing for it can convice more states.

I would say removing a candidate from the ballot like this is not inside baseball and is actually a rather big deal. We already have Republicans threatening to remove Biden from ballots in retaliation. Could be idle threats. Could be a bad path for our nation to go down. Also going to wound the Supreme Court's credibility among half the nation when they rule on this. This is corrosive.

Colorado state court says Trump is ineligible based on this. He's an insurrectionist. And that ammendment mentions nothing about needing a conviction.

There are a number of issues there, most notably that Trump (uniquely among Presidents for decades if not centuries) has never been a member of Congress, an officer of the US, a member of any state legislature, or an executive or judicial officer of any state.

Agreed. The 14th Ammendment is way too verbose and overspecifies who counts. By my reading Trump doesn't.

I suppose circa the late 1860s it was perfectly obvious who was a former insurrectionist and former officer, representative or appointee. So slightly overly specific language wasn't a problem.

I also suppose insurrection was so clear to them in its magnitude and unambiguous nature that Trump didn't do anything that counts. He didn't wage literal war against America. His tweeting to stay peaceful and go home don't count.

The destabilization of American politics and thus American society would of course have immense global consequences.

I do have to wonder: how do Europeans react to news like this? If I'm, say, Emmanuelle Macron, then I'm probably gonna be in a mild panic every time news like this breaks, because I'm going to try and pull every political lever in reach to prepare my country for the possibility of the Pax Americana going poof by the middle of 2025.

Macron is probably mildly heartened. The most plausible path to e.g. the US withdrawing from NATO is that Trump wins and withdraws from NATO.

If there's a civil war, the USA might not formally withdraw from NATO but its power projection is going to take a huge hit.

I mean, the EU doesn't really have to fear invasion absent the Pax; it's got more-than-sufficient firepower to stop Russia even on its own, and France has nukes. It's more "the world economy is now tits-up" that they've got to worry about.

This is in contrast to, for instance, Taiwan.

The EU does not have sufficient conventional firepower to stop Russia on its own, although Russia is probably capable of stopping Russia and France does have nukes(and Germany at least can get them before the Russian troops get through Poland).

The global economy might go tits up, but it also might strengthen the euro as people look for alternatives to the dollar, and IIRC European goods are the only real substitute for American ones. It’s not wildly implausible that after some temporary pain Europe winds up slightly better off- especially if the euro appreciates.

The bigger problem is shipping lanes, but A) France and Britain have large navies and can head up a coalition on their own and B) China wants to be able to ship goods to and from Europe and has motives to keep shipping lanes clear.

although Russia is probably capable of stopping Russia

I think you made some sort of error here.

Nope, I'm referring to Russia's corruption and incompetence. A competently run Russia which prioritizes military capabilities over brown-nosing and graft would've already steamrolled Ukraine and be posing a serious threat to the European powers of NATO. Russia as it actually exists wouldn't be a real threat to NATO even with US withdrawal.

Ah, thanks for clarifying.

Not sure whether your question was only refering to European politicians, but I tried in vain to explain to an American I was drinking with the other night that democracies don't put election losers in jail, because that disincentivises all politicians from respecting the results of future elections.

She didn't seem to buy it though. In her view, Trump will go to jail because his actions were treason and everything will go back to normal with no long term consequences.

Can you clarify for me, is France a democracy? Because they convicted Sarkozy of corruption after he lost.

democracies don't put election losers in jail, because that disincentivises all politicians from respecting the results of future elections.

The trouble we've realized with this ideal is that it also presumes that politicians refrain from doing obviously blatantly illegal things.

In my opinion, this was first realized with respect to Hillary, who faced effectively no consequences from breaking a bunch of laws (besides whatever effect it had on her losing the election). In her case, it was terrible for democracy for her to face any serious legal consequences.

I'm not about to claim Trump has perfectly abided by the law either. It's rather academic though exactly which laws he may or may not have broken and whether anything he did is or is not worse than what Hillary and other prominent Democrats have done. But it sure smells bad that he gets aggressively prosecuted all over the nation, taken off of ballots, etc, and nothing at all happens to any Democrats.

American states have a vast amount of power, but the post great society consensus was that they would only use this power within certain guidelines that were sometimes explicitly written out and sometimes hashed out by fighting in court, with federal money holding them to those guidelines. Technically, elections are run by states, and states are supposed to regulate eligibility and the like. And in fact most states have some rules on who can be on the ballot beyond ‘natural born citizen over 35’- there’s probably a signature requirement, filing deadline, etc. This isn’t particularly controversial, but rules around voting can be.

Technically speaking, Colorado is within its rights to remove trump from the ballot for insurrection. It’s phenomenally stupid, but it would have been their job had trump led a rebel army(which he did not). It is, however, an enormous escalation and ‘out of bounds’ in the Overton window, not to mention undemocratic. But also Colorado is a safe blue state which would vote for the devil before trump, so it won’t make any difference to the results. It’s purely virtue signaling in a pure toxoplasmosis of rage way.

For reasons discussed in this thread that relate to due process and presumption of innocence, I believe this decision is either nonsensical or tyrannical and will be annulled by any SCOTUS that wants the Republic to continue.

But let's for a moment leave that aside and consider what would happen if they failed to do so. What are the consequences of this standing for American politics?

Some republicans are already talking about retaliating and banning Biden from the ballot in their states. And if that were to become a legitimate practice, you'd have local politics even more solidified than they are now. Every State a one party State, and both parties vying for one party control of the federal government.

It's hard to see the President not packing the court in that context. Or how a shooting war doesn't start eventually when the losing side realizes there are more direct ways of banning politicians from election when you're not in control of institutions.

I'm honestly a bit surprised at how lightly the media is taking this particular escalation. They sure are talking about it but courts banning major party leaders from the ballot is levels of danger not seen since Lincoln.

It would probably be legit less of an escalation if Trump just had an "accident". At least you're not setting precedent that way. And he certainly wouldn't be the first one either.

Who, JFK? You’re going to have to be more specific.

What are the consequences of this standing for American politics?

I believe nothing will really happen, but on the other hand, I would personally say that it becomes reasonable to treat the Democrats as an undemocratic, authoritarian regime that seeks permanent one-party rule. Again, I think the response from the right will be, "wow, imagine if Republicans acted like this" followed by doing absolutely nothing, but whatever you think the appropriate response to attempting to eliminate all political opposition should be, that's what should happen.

Again, I think the response from the right will be, "wow, imagine if Republicans acted like this" followed by doing absolutely nothing

The one stonetoss edit superior to the original.

I would personally say that it becomes reasonable to treat the Democrats as an undemocratic, authoritarian regime that seeks permanent one-party rule

If this were reframed as a positive thing, then I think prominent Democrats would agree. Not too long ago Obama staffers and Democratic politicians were evangelists for The Emerging Democratic Majority. The larger point of which is that with a bit of demographic change the Democrats would have a permanent electoral majority. They were saying they would then transform America more than FDR did. They were on the cusp of total permanent victory.

But then that didn't happen. Not at all. Extrapolating from a few early-2000s demographic and voting trends was invalid. Turns Hispanics aren't that reliable of Democrats.

More recently, a Reuters/Ipsos survey of almost 800 Hispanic adults carried out this month found Trump narrowly leading Biden in support, 38% to 37%.

Whoopsie-daisey.

And the stuff about the youth getting out the vote and sweeping away Republicans on the national stage was an even worse prediction.

But to be fair, they argue for this as them winning fair elections. It's a positive aspirational goal from their point of view. So they see this as a good, valid, democratic way by which America will enter into the blissful state of one party Democratic rule.

I think republicans will do something, although I don't have any guesses as to what it will be and it's probably going to be Texas or Florida doing something technically constitutional but in practice fenced off(both have governments that need to reestablish streetcred with grassroots conservatives). I agree that it's reasonable at this point to treat democrats as attempting to establish a one-party regime, and that democrats wanting to punish conservative-leaning demographics(aka everyone I care about) as a primary goal has been obvious for a while, but I think there's enough safeguards to stop them from doing so in a way that matters for another 10 years or so even if they hit their election goals, and that they'll probably blink at dismantling them. To be clear, that's cold comfort to California or New York red tribers. But the democrats aren't actually able to impose a one party dictatorship.

Why does Florida need to reestablish streetcred?

Desantis challenging Trump means he needs to reestablish his conservative credentials before he moves on; he can't run for governor again, but he's going to have a chosen successor and more than likely will want a political career(possibly in the senate, possibly elsewhere).

That’s just silly. No one doubts his conservative bona fides. Who out there is saying “I’m not voting for DeSantis. Cause he is too progressive.” No they talk about lifts or call him a robot.

From the primary ballot.

Newsweek reports that we have more volunteers:

Republican lawmakers in three swing states have announced their plan to remove President Joe Biden from their state ballots.

Aaron Bernstine of the Pennsylvania House of Representatives, Cory McGarr of the Arizona House of Representatives and Charlice Byrd of the Georgia House of Representatives released a joint statement on Thursday announcing their plan to remove Biden from the 2024 general election ballots in those three states.

While their letter says that they plan to or are in the process to "introduce legislation", it's not clear from a quick search if they've done so, or even what that legislation would look like, nor how it would, in their words, "allow ALL candidates to be on the ballot in all states". It's far from obvious that they could get legislation through their respective legislatures within the necessary time period before the general election, or even at all: of the three states, only Georgia has a Republican governor, and it's unlikely Kemp will jump onto this particular grenade. The trio don't even have a particularly coherent theory for why and what disqualifying specific act applies.

So this is grift, and a publicity stunt, and dumber.

On the other hand, unlike Colorado or California, all three are states that matter: there are election models that treat them as swing states, not background temperature and a joke. It's a good thing that a lot of people talking about fucking with ballots hasn't caused problems in recent years, and that there aren't far-more-dangerous attacks that these games make more prominent.

The sad part is they couldn't even find a good "insurrection" to allege. Hunter Biden's dealings with China? Come on. Can't they argue that Biden in some way encouraged the protesters who block traffic to fight climate change? Or the people who graffiti'd the Lincoln memorial in support of Palestine? Everybody hates those guys, why not go ahead an call it an insurrection?

Because those would be mutually disqualifying.

Seriously, encouraging blocking traffic is a more plausible "insurrection"?? They used Hunter presumably because the clause refers not only to insurrection, but also to those who have "given aid or comfort to the enemies" of the US.

Look, obviously, I agree that it’s ridiculous, but I like that it has a parallel to Trump’s encouraging the mob who rioted at the capitol. Could one of the people held up in traffic have been a government official on their way to an important meeting? So the protesters were interfering with a government function.

Surely intent matters, which is why those are not parallel cases.

Edit: Moreover, the claim is that the protesters were attempting to prevent the winner of the election from taking power, hence at least arguably engaging in insurrection. They were not merely interfering with a govt function. I think you might be conflating the criminal charges with the 14th Amendment issue.

Yes, good call, I was confusing the criminal cases about interference with the current case.

If you want to bring an example, you’d be better off talking about the Hatfield courthouse.

But these politicians don’t want a good example; this is the same ‘highlight the contradictions’ approach from a lot of other movements, without the sympathetic media or academic facade

Fucking hell. I saw @IGI-111’s comment, and thought about saying “that’s ridiculous, there’s no fig leaf for disqualifying Biden.” Then I remembered the fig leaf never really mattered. But I wasn’t expecting volunteers so fast.

Is this about Hunter? No, it’s about “insurrection” at the southern border. That doesn’t even make sense. At least if they’d have to pass legislation, it means they don’t have a Colorado-style process for removal, I guess.

I continue to be disappointed that no one involved in this election is going to face real consequences for their grandstanding, up until the point where the whole edifice collapses.

I have some for your reading pleasure.

Biden supported and gave encouragement to BLM riots which among other things included CHAZ.

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order.

Biden conspired with others in the Obama administration to frustrate the peaceful transmission of power to the Trump administration from by trying to sabotage that admin via the bureaucracy including Biden suggesting trying to trap Flynn using the laughable Logan act (has some similarity to Trump — sure in theory he was exercising what is facially a legal authority but the local authority could say that was pretext).

Yeah, none of those things count. I don’t think Watergate would have counted, and that was leading a government arm in actual crimes against Americans. Trump’s stunt may or may not have counted, but without a conviction or even a criminal charge, there’s no way.

Those are to my mind the same category as J6. Why do you think they are different or don’t count?

Trump’s stunt didn’t either. The constitutional provision was pretty clear that it was referring to raising an army and starting a war, not a badly planned protest that turned into a riot which may or may not have been a coup attempt.

Yeah, none of those things count.

The text of the Fourteenth Amendment specifies "insurrection or rebellion against" the Constitution of the United States. Conspiring (within the Executive Branch) to issue orders that violate its plain textual explicit separation of powers (which SCOTUS ruled those orders did) sounds at least as plausibly in violation as Trump "raising an army."

(Although this would probably effectively rule out any incumbent president running for re-election, to which I probably say yeschad.jpg)

This is exactly my point. In fact, I think the case against Biden is cleaner in that the eviction order was one of the most brazen “I know it’s illegal but I don’t care” moves done in decades.

Trump may very well believe that laws were broken and therefore his action on Jan 6 was actually consistent with his oath to take care that the laws are faithfully executed. Biden has no such excuse.

I believe "the same" refers back to "the United States", not to "the Constitution". It makes no sense to speak of rebellion against a constiution, and barely more sense to refer to giving aid and comfort to enemies of the Constitution. And of course the original public meaning of the clause was that it meant rebellion against the US.

I would note, however, that your interpretation would be very bad for Trump; given that the J6 rioters were attempting to stop a Constitutionally prescribed procedure, the argument that they were rebelling against the Constitution is stronger than the argument that they were rebelling against the US.

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order.

None of this is particularly correct. The Supreme Court initially ruled on the moratorium in July of 2021. But that was re the moratorium imposed the previous September, by the Trump Administration. And, as noted in the only opinion issued at that time, the concurrence by Kavanaugh, the argument was not that it was unconstitutional, but that "the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium."

More broadly, this is exactly how Presidents should behave: if they think a particular action is in the best interests of residents of the US, they should take that action, even if there are arguments, even strong ones, that the action might be overturned by the courts. Because unless there is existing binding precedent, the only way to know for sure is to get a final court decision on the merits (or, in this case, a preliminary injunction that is not stayed). That is exactly what Trump did re the "Muslim ban" -- as each iteration was struck down, the admin kept narrowing it until they came up with a version that withstood judicial scrutiny. There is nothing wrong with that.

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

The obvious counter-argument there is a claim that partisan justices gonna' partisan, and the breakdown has no bearing on frivolity as opposed to politics.

Well, couldn't one therefore argue that the decision has no bearing on the validity of the law, either way? So, your argument clears Biden, does it not?

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

6-3 is what we would expect to be the worst outcome a democrat could get. Maybe 7-2 if they put something the kraken tier in front of the justices, but two judges are dem partisan hacks with room temperature IQs and one of them understands her job well enough, and that it’s to explain how the democrats’ agenda is what the constitution really means, no matter how you have to torture the words.

Lol. And if the members of the majority are partisan hacks? You do know that that is a common refrain from those on the other side, right? Here is a hot take for you: None of them is a partisan hack; rather, they have different jurisprudential philosophies (which is why they were chosen after all).

If your claim is that eg Alito or ACB has goals other than consistent jurisprudence, I won’t disagree with you, but Roberts and Gorsuch slap down republicans frequently enough in a way that dem appointees never do to their side that it’s fair to say republicans don’t have a majority of partisan hacks.

I will continue to hold that Ketanji Jackson Brown is a partisan hack whose jurisprudential philosophy is ‘anything the DNC says is right, one of their words will overcome 10,000 of the constitution’s’ in the absence of evidence of a semi-consistent philosophy. You don’t really see that on the republican’s side; Thomas has disagreements with con inc and is more than willing to slap the hand of Republican administrations. There aren’t 6 judges that back blatantly illegal moves by Republican admins; you sometimes see one or two, but not the same two.

If your claim is that eg Alito or ACB has goals other than consistent jurisprudence

My claim is literally the exact opposite.

I'll give you the other 5, but c'mon. Alito is absolutely a partisan hack.

What is your evidence for that claim?

I'm not going to go through every example of it, but the man just obviously talks and thinks like a politician, all the time. Eg, The simplest difference involves respect for precedent: Justice Thomas "gives less weight to stare decisis than a lot of other justices." It is, "in its way, a virtue of his jurisprudence," Justice Alito says. "He sticks to his guns." . . . The disadvantage of this approach, Justice Alito says, "is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule."

Look at Alito's reasoning here. It is not legal reasoning. It's political reasoning. He's not saying "this is what the law demands" or "it's important to follow consistent principles". He's saying "this is how to maximise your own influence". And he constantly says things like this.

More comments

Obama was overruled 9-0 in Noel Canning, including by both justices he appointed.

That's fair, but in turn it seems like an argument in favor of hydroacetylene's claims: while the 9-0 ruling did go against Obama, it was far less aggressive than conservatives argued in the concurrence, or that the lower court held.

There's a lot of detail about that June of 2021 concurrence that you're glossing over, here.

This is the concurrence in its entirety:

JUSTICE KAVANAUGH, concurring. I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

... to be more explicit.

JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT would grant the application.

So what? What is your point?

At the risk of tl;dr'ing an old effortpost:

  • With a very small number of exceptions not relevant here, it is unconstitutional for the federal government to act ultra vires.

  • ((There are also separate due process, takings clause, and procedural reasons it was also unconstitutional, raised by the AAR plaintiffs, which are fairly compelling; these are also unconstitutional, if not the central focus.))

  • Biden should have known that the attempt would be rejected in the courts, and made clear that he was running this policy to exploit the time period for the justice system to react. There's some fun philosophical questions about whether he genuinely believed Lawrence Tribe in the same way that Trump might have 'genuinely' believed Dominion conspiracy theories, and both of them are politicians with brains made of playdoh. But by any meaningful definition of the word "knew", he knew both that it was unconstitutional and would be found unconstitutional.

  • The balance of equities for a stay overwhelmingly favors a government actor over economic interests of private individuals. This is often hilariously misguided -- the refusal to recognize financial costs under the premise they'd be renumerated after a successful completion of a case a sick joke -- but the only one that seriously recognizes and favors the interests of AAR was the likelihood of success on the merits.

  • Worse, Biden should have known that he only got the time he did from SCOTUS because, and I quote the justice giving the deciding vote: "the CDC plans to end the moratorium in only a few weeks, on July 31". The Biden administration stated this, explicitly! Nice letterhead, official paperwork, everything, June 24th.

  • And then on August 4th, decided fuck it, we're doing it anyway. Pretty literally: when I said the final order had its serial numbers filed off, I wasn't exaggerating.

Yes, I get it, you had a conversation with someone at the time where you nitpicked into oblivion how the Supreme Court technically never issued an order to the federal government. If someone had said that Biden had defied an explicit order from the Supreme Court, you might even have a point. But instead, you're trying to nitpick:

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order."

He knew, by any degree of knowledge that can resist a schizophrenic in a crappy suit. His advisors told him -- he lost Tushnet -- and that one advisor said the opposite is no defense when Guiliani was trying it. SCOTUS said it was illegal, if perhaps taking a slightest bit of effort to read the tea leaves. And Biden said fuck it.

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nor how it would, in their words, "allow ALL candidates to be on the ballot in all states"

Presumably some sort of tripwire where the law amounts to "if you deny Trump we deny all Democrats, but if you back down we will too". Of course, this depends on the Democrats both having an overall-unfavourable result from tripping it and being sufficiently pragmatic to back down, which seems unlikely.

It would also depend on their proposed law not getting invalidated or stayed near-instantly, while the Trump disqualification didn't apply. Which isn't a huge possibility band, but it's a lot wider than the chance of their law lasting once past.

Jacobin: Instead of Taking Trump Off the Ballot, Democrats Should Run a Better Candidate

Liberals have taken to saying that “democracy is on the ballot.” There’s a grain of truth there. There’s a powerful strain of authoritarianism on the Right, manifesting in contexts ranging from January 6 to the laws in various red states that make it harder to vote. Ron DeSantis’s Florida, for example, engaged in a truly grotesque and disturbing crackdown on ex-felons who registered to vote. But the complicated truth is that, even if they aren’t nearly as bad in important ways, liberal technocrats harbor their own kind of deep distaste for the unpredictable messiness of democracy.

Some liberals may feel that the Trumpist version of authoritarianism justifies trying to take the man who is, unfortunately, currently the leading candidate for the presidency off the ballot. In effect, they think democracy needs to be saved from itself.

But this is misguided for several reasons. First, as mentioned, it’s extremely likely to backfire in the 2024 election. Second, even if the Supreme Court overturns the Colorado ruling — and any that may be coming down the pike in other states — and it thus sets no legal precedent, the attempt to simply exclude a popular opponent from the election entirely may well set an informal political precedent right-wing authoritarians will follow in the future.

Finally and most importantly, this is all a huge distraction from a point that should be blindingly obvious. Is Joe Biden a deeply unpopular incumbent? Are his wars unpopular? Are voters dissatisfied with his economy? Would they prefer someone younger, whose cognitive condition is in less doubt? Is there a significant danger that Donald Trump will beat him next fall if the two men have a rematch?

If anyone's been following the leftier side of American Twitter recently, there's been a lot of squabbling and sniping between liberals and lefties lately, with main topics being "Is the Biden economy actually good?" (which, of course, also serves as a proxy for whether Biden is good or not) and "Is Trump such a threat that the left just has to grin and swallow everything Biden admin has to offer, including lockstep support for Israel, compromises of immigration etc". Both can be clearly seen in this article, even if it has also received a lot of pushback, mainly from those saying that the Dems should, in fact, push for both, ie. Trump off the ballot and a better candidate than Biden.

I’ve heard it said that Republicans are getting ready to nominate the only person who can lose to Biden, and Democrats are getting ready to nominate the only person who can lose to Trump. Obviously, a bit overstated, but it feels true. Sensible people in both parties would love to get away from their party's likely presidential candidate, but the Republican experience over the last seven years basically proves that it’s hard to do in the real world.

But yeah, it’s nice to see someone acknowledge that if there were any responsible adults involved, both parties would be taking seriously the major deficiencies in their candidates, rather than just spending their time and energy trying to make the other party’s candidate look worse.

There’s a powerful strain of authoritarianism on the Right, manifesting in contexts ranging from January 6 to the laws in various red states that make it harder to vote.

This stuff is genuinely infuriating. Say what I will about the J6 rioters, they weren't driven by "authoritarianism", they literally just thought they won and were being cheated. Likewise, say whatever anyone else will about telling people to bring their ID when they go to the polls, it's not "authoritarian".

In Britain, voter ID backfired on the conservatives because all young people had ID but old people (who are always more conservative) didn’t always. I don’t think it’s a good move for the US right to push, penniless Guatemalan illegals aren’t voting in any numbers, why would they?

In at least some circumstances it can probably long-term engineer the electorate in a more conservative direction; adults with no drivers license probably do skew liberal because they're urban, and it does serve to prevent voting by out of state students(although what level of concern that is I don't know).

People in the hood have a drivers license, though, so do hispanic migrants in Queens. The kind of affluent Manhattan libs who don’t have licenses have passports anyway. So do almost all naturalized immigrants since they usually travel abroad to see family at least occasionally.

Plenty of the underclass gets their license yanked because they can't stay sober or won't pay their tickets IMO; to the extent these people vote they're not partisan republicans. One of these days I'm going to write a lengthy post on my time among the underclass, but my recollections include an absolutely huge number of underclass males whose dui's and unwillingness to pay traffic fines lost them their licenses and who hated the Texas GOP but were inconsistent voters and didn't necessarily trust the democrats either. Suppressing these people from voting is probably a positive for the Texas GOP. So is preventing out of state students from declaring themselves Texas residents to vote in Texas elections.

Of course I don't support the franchise for students or the underclass anyways, but I'd imagine the median Texan adult who doesn't have a license doesn't have one because they lost it, not because they don't want one. This is a population with voting patterns that lean blue but are easy to suppress.

Does the median adult with a revoked license really vote? The things that correlate with a revoked license like being young, male and underclass also mean a very low voting propensity.

And AFAIK most voter ID rules would accept a license that was revoked as a still-valid document for identification purposes, even if not for driving ones.

No, but when they do vote they don't vote R because petty criminals(which these people are) don't like republicans for obvious reasons. And they're not necessarily going to hold on to their licenses, or readily have access to them, because they're driving around without one anyways. Yes, you need an ID, but this is a group that's selected for being not very good at managing their lives and making long term plans, otherwise they'd be normal working class people. They also move a lot, and you can't get a license reflecting your new address(and it has to match) if it's suspended.

Texas has the lowest voter turnout rate in the country. Nobody really knows what a Texas with above-average or even average voter turnout would look like, politically, but best guess is it would be light blue- although that's not certain. It could be California, it could be North Dakota. The Texas GOP is basically guaranteed a trifecta under the current system, so they're loathe to allow it to change unless they know for a fact it would improve their odds(eg expanding rural early voting), and we don't have direct democracy without going through the state legislature first. Turning Texas blue hinges on raising voter turnout(probably selectively) and cutting off an avenue to do that is worth the political cost.

Median is less important than marginal if you're trying to nudge elections. If there are 100k low propensity voters that theoretically would support my opponent, shifting the number who actually vote from 25k to 12.5k is still a win even though the median group member was staying home either way.

Whether or not this is decisive or who it actually favors in practice: v0v

I think it's a holdover from the old reality that Republican voters had a higher propensity to vote, so lower turnout advantaged them. That seems to have flipped on its head in the Trump era, so now low turnout helps Democrats. But the policy preferences of the two parties have not yet adjusted to reflect their narrow self-interest.

It's also an outgrowth of the specific dynamics of southern politics.

When you create a system that it is hard to know whether person X voted, how we can make definitive statements about the propensity of group Y to vote?

It's impossible to know which candidate person X voted for, but it's easy to find out whether or not person X voted.

In America, at least.

Well it’s possible to know that person X was recorded as voting. That is different from knowing they voted.

What’s supposed to happen if an ineligible candidate wins a state?

Let’s say a write-in candidate wins due to a generational gap. Turns out the last Silents were the only thing holding back fascism, and now Hitler has the plurality in Colorado. What gives?

  • Votes for an ineligible candidate aren’t counted.
  • Votes for an ineligible candidate are counted, but electors are bound to choose the highest eligible count.
  • As above, but electors aren’t bound at all, and can pick Hitler anyway.
  • Electors are bound to pick the highest count, regardless of eligibility, but the US Senate won’t sign and certify votes for ineligible candidates.
  • As above, but the Senate certifies the results; ineligibility only matters after tallying the final result.
  • As above, but the seat gets filled by the VP instead of the Presidential runner-up, since this is “the case of the death or other constitutional disability” from the 12th amendment.

This is a genuine question. Article II doesn’t say anything about faithless or stupid electors, and it certainly doesn’t say anything about the state population picking a dead man. If there’s something in the 14th or in the 12th, I missed it.

Let’s say a write-in candidate wins due to a generational gap. Turns out the last Silents were the only thing holding back fascism, and now Hitler has the plurality in Colorado.

That can’t happen. Colorado won’t count unapproved write-ins. You can write ‘Mickey mouse’ on the ballot, it’s just an abstention.

Seems kind of ill-advised that they're calling attention to the system being, "you can vote for whoever you want, as long as they're one of the state-approved choices". Then again, everything about this seems ill-advised, but here we are.

Oh yes, nothing about this stunt was a good idea. But ‘write ins have to be approved’ was intended to solve the possibility that Elvis or Mickey Mouse would win an election somewhere. It’s facially reasonable to require a write in candidate to be registered and meet basic eligibility standards.

At least in theory, it was also supposed to promote the more serious write-in candidates, and to provide a method to enforce Colorado's sore loser law (although that law probably can't be applied to Presidential candidates).

Eh. Oklahoma IIRC doesn't allow write-ins at all, and comes damned close to not allowing third-party candidates either -- last time I looked, the requirement was that they had to gather petitions with signatures of 3% of the voting population to get on the ballot. (I recall an old SSC open thread where someone from Romania was complaining about how strict the election laws were there, where it took signatures from 1% of the voting population to get a new party on the ballot. When even ex-Commie-Block countries have more liberal election laws than your state does, that says something.)

Personally, if I was in charge, I wouldn't allow write-ins either (having preprinted ballots that can be scanned by machine is a good thing), but I wouldn't have any requirement other than "the candidate meets whatever eligibility standards (min. age etc) are set for the office and pays a fee to cover the share of costs printing the ballots attributable to adding his entry."

(having preprinted ballots that can be scanned by machine is a good thing)

I'm a big fan of hand-counting paper ballots, personally. Election counts are an absolute petri dish for conspiracy theories, so the more analog and impossible-to-even-theoretically-game the system is, the better.

Seems kind of ill-advised that they're calling attention to the system being, "you can vote for whoever you want, as long as they're one of the state-approved choices".

Why? It's entirely in line with things I've been seeing for years now.

I recently saw someone on Tumblr trying to ground some of the more extreme left-wing fears by arguing that the worst case for a "Trump dictatorship" is that we become… Hungary. And I was reminded of something else I had seen recently — a screenshot of a Keith Olbermann tweet that presented exactly that as the horror scenario to be avoided at all costs: that we're still under threat of the end of Our Democracy and becoming an 'authoritarian' state "like Hungary or Poland." Yes, this was before the recent Polish election. Some undemocratic "authoritarianism" that was, huh?

What's wrong with Hungary, anyway? The answer I get, when I push back and get people to dig down, is that guys like Orbán aren't supposed to win no matter how popular with the voters.

Roger Kimball, in discussing Colorado, made a point similar to yours:

In fact, what they have just voted to preserve is not democracy but “Our Democracy™.” Here’s the difference. In a democracy, people get to vote for the candidate they prefer. In “Our Democracy™,” only approved candidates get to compete.

Well, for years I've been seeing people, from Curtis Yarvin to random YouTube comments, all make the same point about how you can't just let people "vote for the candidate they prefer," and all giving the same example why. So I looked to see if anyone had explicitly made that same connection in this case. The closest is Joe Matthews at Zócalo: "The Case for Taking Trump Off the Ballot." Just like banning the AfD, removing Trump is what "defensive democracy" demands.

To paraphrase Yarvin in a Triggernometry interview, we saw what happens when you let the people vote for the candidate they prefer without limiting it to approved candidates… 'in early-1930s Germany.' We can't ever risk "repeating the mistake Weimar Germany made when they let Nazis take office just because a plurality voted for them" (as one YouTube comment put it). If you don't limit the options to "state-approved choices" and let people vote for whoever they want… they'll vote for Hitler. Never Again. Never again can the masses be allowed to choose their own leaders unguided. If we are to be a democracy, then "democracy" must be defined as something other than that. (Like 'democracy is when elites enact the Rousseauan "common will" — as determined by a technocratic intellectual vanguard — whether the masses like it or not; and therefore the greatest threat to Our Democracy is a "populist" who will do the unthinkable and give the voters what they want.')

Matthews:

Blocking candidates or parties from elections doesn’t come naturally to democratically minded people. Nor should it—it’s a despot move. Autocracies and dictatorships routinely maintain and extend their power by blocking opposition figures from standing for office, such as when the Chinese government banned pro-democracy candidates in Hong Kong’s 2020 vote.

But then…

It is also why it makes sense for people around the world to examine how Germany, where the Nazi party took power through elections, reckons with those who threaten its democracy.

Or, from Tumbler user Eightyonekilograms:

I mean, I didn’t say there was an actionable strategy. Actually I’m pretty sure there isn’t one: for a societal system based both on laws and implicit norms (which they all are), you have to stop someone like Trump— someone who has no shame and no regard whatsoever for the law or the norms— before he gets any power. By the time you get to the point we’re at now, it’s way too late: all the options are bad. Either you disqualify him, which is flagrantly undemocratic and will be seen and reacted to as such, or you don’t, and now you’ve set up a ghastly incentive gradient. If there’s no punishment (whether legal or electoral) for attempting a coup, then there’s no reason not to try over and over again until you succeed. Which is not theoretical, it’s exactly what we’re observing now: Trump knows that punishment is unlikely, so he feels free to say he’ll be a dictator on day one, the Heritage Foundation isn’t even bothering to be secret about assembling the “Project 25” team that will put an end to that pesky democracy, etc.

(Emphasis in original)

So, yes, you do have to "save democracy from itself," even if that requires "undemocratic" measures like Colorado has taken.

Or so goes the argument.

I'm here for the argument that pure democracy should be allowed to run rampant and let the chips fall where they may. But it seems to me that you'd need to amend the constitution first. Even ignoring section 3, there's a bunch of eligibility requirements in there. And every eligibility requirement is intended to be enforced in the face of the public will - after all, a restriction that only bars people that would lose anyway is no restriction at all.

To just ignore the constitutional rules that already exist would be no different to deciding the second amendment doesn't matter and it's fine to just ban guns.

I think Yarvin’s argument ignores the various problems that come with the government having control over the elections to the point of being quite able to create its own lists of approved candidates. In almost every case, it leads to a nearly complete one-party system in which the people have very little control over the government. Even the modern American two party system is somewhat like this — the voter has a choice between two major candidates for office, one of whom will certainly win, and his choice is constrained to one of those two (even when minor candidates appear, they cannot win) meaning that you have two very similar candidates who agree on major issues. Allowing a more true democracy in which anyone can run with a reasonable chance of winning whether he’s fascist or libertarian or socialist or Falange gives the voter a real choice. Yes there’s a chance of voting for Hitler. The thing is that a system in which there are lots of candidates running is harder to game for control.

In almost every case, it leads to a nearly complete one-party system in which the people have very little control over the government.

And I've seen more than one person argue that this is not a bug, but a feature, as it were. In particular, there's the half-remembered essay drawing on Rousseau as to why real democracy is exactly that, just so long as the one party is led by technocratic experts who are best at divining the "common will"; and then there was a commenter at Rod Dreher's TAC posts many years ago who liked to argue that the highest and purest form of actually-existing democracy is Japan's "dominant party" system whereby the Liberal Democratic Party and the permanent bureaucracy are basically one entity, all real political competition occurs between factions within the party, mostly out of view of the public, and voting is reduced to a sort of "Yelp review" general feedback on quality of governance, serving mainly to prevent Chinese-dynastic-cycle-style disaster.

gives the voter a real choice.

But the question is: should the voter have a real choice? The entire argument here is that this is a bad thing, that it's bad for Our Democracy™.

Yes there’s a chance of voting for Hitler.

And we said Never Again. "Never" means never. What about the view that any chance of electing Hitler is too big a risk?

The thing is that a system in which there are lots of candidates running is harder to game for control.

And, again, the argument is that that's a bad thing; that the "gaming for control" is actually necessary for Our Democracy™.

The thing is that if democracy is so dangerous that it must be stage managed and the candidates must be within 1σ of the correct opinion, then democracy is a failed idea. You’re saying so more or less yourself in suggesting that the idea form of democracy is one in which voting is merely to tell the rulers whether or not they like them. Why bother with the fig leaf of voting if the people voting get no choices? At that point, just have an autocracy of one sort or another and dispense with the voting.

then democracy is a failed idea.

Only depending on how you define “democracy.”

You’re saying so more or less yourself in suggesting that the idea form of democracy is one in which voting is merely to tell the rulers whether or not they like them

Not my argument, but the view of someone who went by the handle “Ken’ichi” on TAC’s now-lost pre-Disqus comments sections.

Why bother with the fig leaf of voting if the people voting get no choices?

There’s actually several answers to this. And a note: it’s not no choices, it’s limited choices — at the very least, a “thumbs up” vs. “thumbs down.”

First, as noted, there’s the “dynastic cycle” argument. Perhaps the most classic of fall-back “motte” arguments for democracy is the “you can vote the bums out” argument. That is, that people have a way of expressing serious displeasure with the Establishment other than outright rebellion. It lets people unhappy with the system vent their displeasure, rather than letting it fester, hidden, until it explodes out. It lets the ruling elite know that they need to do something to avoid losing the Mandate of Heaven — whether that’s making reforms moving in the direction of the voters, or “educating” the masses until enough of them understand that the unpopular thing the government is doing is really for their own good, is for skilled experts to decide.

Which leads into the second reason — feedback is important. There’s a classic problem institutions can fall into, which is often illustrated in a greatly exaggerated form in fiction via the villain who “shoots the messenger” when brought bad news. When people downplay or omit “bad news” in reporting to superiors, said superiors end up with an overly-rosy picture of circumstances, and will end up failing to act until the disastrous reality comes crashing through the information bubble. You don’t want to become Visser Three.

Third, there’s the utility of elections as a civic ritual, through which we collectively enact our shared citizenship and identity. Consider this Psyche piece by Emilee Booth Chapman, this Rich Harwood essay, and this Graeme Orr essay (hosted on the Australian Parliament’s webpage). From that last:

Lawyers and government officials prefer to think in terms of analytical classifications or normative goals rather than messy things like culture. Figure 3 offers a diagram which I discuss with my students in the law of politics. It shows the various answers to the question 'Why do we have elections?' The diagram groups together the different concepts through which we can understand electoral democracy, and the goals that might drive regulation.

The top two quarters of the diagram are by far the dominant strains in official and academic thinking. Officially, we think about elections either as instruments of government or as triumphs of liberal democracy. Yet when you talk to the media, or follow conversations at parties, the bottom half of the diagram rears its head. The elections as charade view is a cynical, outsiders' counterpoint to the idea of elections as integrity mechanisms. My theme today however occupies the neglected other quadrant. It is the idea of electoral democracy as a 'secular ritual'.

…

Don't get me wrong. Each of these perspectives is vital to encapsulate the ideal of free and fair elections. However, we—especially academics, bureaucrats, politicians and judges who study or shape the electoral process—rarely address elections from the experiential dimension. There are exceptions. Some historians have focused on early elections as communal events.6 Sociologists also sometimes consider the colour and meanings of wider political practices, like public demonstrations. In recent years, two insightful professors of politics, Ron Hirschbein and Stephen Coleman, have explored the rites and experiences of voting in the US and the UK.7

The study of electoral systems however has largely lacked this dimension. It has been fixated on the outcome of electoral democracy and not on the journey. It concerns itself with 'purposive goals' rather than the 'latent function' of elections, to quote from Professor Jean Baker.8 We purport to know a lot about elections, through abstractions, book learning and through quantitative studies of voter behaviour and electoral statistics. We do so without sufficient concern for knowing about the electoral experience, let alone how systems and rules shape that experience.

Cocooned in these instrumental and liberal analyses, we forget that elections are nothing if not grand social events, events whose configuration shapes our experience of electoral democracy. Elections are giant rituals. They are recurring political masquerades and festivals. Each election itself is then made up of lots of what I call 'everyday rituals': campaign activities, balloting, declarations of results, investitures. They are events whose rhythms, patterns and activities are either set or contoured by law and administrative institutions.

That experiential and social function of elections, of reinforcing the nation’s collective identity in the hearts and minds of the people, can remain even as their function as instrumental competitions for power is reduced; it does not go away just because the menu of options presented to the voters is sharply constrained. (And the abstract of Ora John Reuter’s “Civic Duty and Voting under Autocracy” seems somewhat relevant here as well.)

Fourth, there’s the resolution of conflicting values. We have here essentially two propositions in tension:

  1. We live in a “democracy.” Democracy is what makes our system legitimate, and democracy is the only legitimate form of government

  2. We can’t just let whatever person a plurality of the voters want have actual power in the government.

One way to resolve it is, as you note (and as I, personally, would also prefer), to reject #1. But another way is to note that they are contradictory only if you define “democracy” as “the voters get to elect who they want.” Thus, another way to resolve it is by saying that the “democracy” that legitimates our way of life must therefore mean something other than that. Such as the appeal to Rousseau’s “general will.”

I’m really going to have to recreate that essay, aren’t I?

“The people” never actually rule directly. Even in the “direct democracy” of Athens, the assembly was a small minority of the population of the city-state. The Iron Law of Oligarchy ensures that a society is always run by an elite class, even a democratic one. The difference, then, is to whose benefit do they rule? In past and present “undemocratic” societies, the argument went, the ruling class pursues only their own narrow class interest — under hereditary rulers, the government serves only the interests of hereditary aristocrats; under a military junta, the government serves only the interests of military officers; under a plutocracy, the government serves only the interests of wealthy “capitalists,” and so on. A democracy, then, is when the ruling class instead pursues the good of not only their own class, but of society as a whole — Rousseau’s “general will,” which is the best interest of the country as a whole, and thus definitionally never wrong.

My “steelman” analogy here is to consider individuals who need a “representative” to act on their behalf. Children, the senile, the mentally ill, and so on. What makes a parent, a legal guardian, a representative with “power of attorney,” a good representative? Well, one who acts to their own personal benefit, to the expense of the person they’re representing — one who embezzles funds, for example — is definitely a bad one. This is analogous to the “non-democratic elites” outlined above

But consider the opposite end. I’m reminded here of Bill Cosby’s “chocolate cake for breakfast” stand-up routine. If your kids answer the question of what they want for breakfast with chocolate cake, should you give them what they want? If a schizophrenic wants a doctor to open up their skull and remove the CIA mind-control chip beaming thoughts into their head, does a good guardian start looking for a brain surgeon?

No, a good representative acts in the best interest of the person they represent. A good representative respects their clients wishes… so long as it isn’t against their best interests. Here, the analogy to the overly-permissive parent or guardian is the sort of politician people like the essayist denounce as a “populist” (with or without the “authoritarian” modifier), and you or I might call genuinely democratic. Someone who enacts the popular will — which, per Rousseau, is just another “particular will” — instead of the “general will”. (As I once saw it put, the difference is that the “popular will” is the will of The People (plural) while the “general will” is the will of The People (singular).)

Note that there’s not a strict binary. It’s not “let your kids have chocolate cake or ice cream for breakfast” vs. “you dictate entirely what your kids will have for every meal, they get no choice at all.” You can let them pick which breakfast cereal they might want, or between pancakes and waffles, between oatmeal or French toast, and so on. You can give them a constrained choice among a menu of acceptable meal choices. Even an institutionalized schizophrenic, or an elderly person with senile dementia, has rights to some measure of choice around their activities, circumstances, treatment, and so on; but only when it’s not counter to their own best interests.

Hence, a “stage managed” “defensive democracy” with a strictly limited menu of choices for an electorate who, between public choice theory “rational ignorance” and Marxist “false consciousness”, don’t always know what’s in their own best interest, nor which potential representative is most skilled at determining what that societal best interest is.

Fifth, in line with above definitions, it’s also because they don’t see themselves as “an autocracy.” Even as he began the Roman Empire, Augustus didn’t see himself as ending the Republic, but as saving it, taking the emergency measures needed to end a disastrous civil war, and changing institutions so as to “fix” them and keep them “alive” despite increasing failures. Only centuries in hindsight did the scale of the transition become clear. And even then, there remained reasons why all the Caesars, no matter how much of a monarch they were in practice, used the title of Imperator and not Rex.

Which leads to point six, perhaps the most cynical one. Even if there had been in Rome an alt-Augustus who had wanted to kill the Republic and establish a monarchy, his best path for doing so would be pretty similar to that of the actual Augustus. It makes for an easier transition to preserve the surface forms of the old regime, even as you hollow them out and transfer actual power into the new forms. After so much “your vote matters,” it’s best to make sure any realizations that no, it actually doesn’t, spread through the population as slowly as conditions allow.

So, to tl;dr summarize, in answer to your question “why bother with the fig leaf of voting?”:

  1. It lets people safely vent their displeasure with the government, rather than start organizing for a violent revolution.

  2. It lets elites know how unhappy the masses are well before armed rebel bands begin making their way toward the capital.

  3. Even when it has little practical effect, it serves a psychological and social role as a communal secular ritual.

  4. Because at least some (probably most) of the people pushing this actually think they’re “saving democracy from itself” ̉— that is, they’re trying to salvage some workable definition of “democracy” while also avoiding what they consider the unacceptable failure mode of “populism.”

  5. And because even those who aren’t will still find the “fig leaf” makes the de facto transition to an autocracy go down more smoothly with the masses.

That said, I’m with you on finding “just have an autocracy of one sort or another and dispense with the voting” personally preferable.

Allowing a more true democracy in which anyone can run with a reasonable chance of winning whether he’s fascist or libertarian or socialist or Falange gives the voter a real choice.

all possible choices having reasonable chance at winning is not required (ones hated by population should definitely not have a chance to win)

First off, I don't believe the 14A prohibits Trump (at least not on the facts as they stand today).

That said, the 14A was adopted by the voters and controls. You can vote for whoever you want but you cannot vote for people that a supermajority has not deemed eligible.

The same could be true for voting for Arnold or for a 30 year old.

I think that your last point is correct. Assuming state law does not prohibit it, an ineligible candidate can win electoral votes, but cannot hold office. So it would go to their VP, assuming that person is eligible themselves.

In other words, President Ramaswamy is not an impossible prospect.

It depends a lot on the specific state and situation.

Colorado, specifically is one of the few states with a tested faithless elector statute that not only prohibits an elector from submitting a vote against the state's popular vote count, but swaps them for someone else who will. In Colorado, this selection is made by the other electors: the question of what happens if every elector defies state law is so-far untested. Not all states have such statutes, or their statutes may only fine (rather than replace) faithless electors.

Electors are transmitted to the Senate by the executive branch of their states: for Colorado, they literally meet in the Governor's office, and the Governor sends the notice out. There's some (afaik) untested space for fuckery here.

The US Senate then receives and certifies the electoral vote. Historically, Senators could object to these individual, but as of 2022 it requires 20% of the Senate, and the Vice President has no serious authority... by statute. There's some !!fun!! questions about how much the statute actually binds Senators, given matters like nuclear option, but it's a schilling point and if they had 50% of the Senate they'd probably just use the rules as-is.

That is the fundamental problem with Democracy. People love to bring up the list you crazy/awful/incompetent dictators but The People can also be just as crazy/awful/incompetent and often are.

How does the saying go? Democracy is the worst form of government, except for all the others?

Adam Unikowsky has a very good article going through all the potential outcomes from the all-but-inevitable SCOTUS case reviewing this decision and helpfully assigning a subjective probability to each one. The numbers aren't important, but it's a useful exercise to consider the various options the justices will face and the consequences that will flow from whatever judgement is reached.

I think there will be less appetite than he suggests for a procedural dodge that doesn't resolve the core issues. There is a clear and compelling need right now for clarity that only the Supreme Court can provide, and I think a clear majority (maybe excepting Roberts) will accept that responsibility - and besides, all of the various available dodges are pretty ugly. Accordingly I put the chances of both a clear reversal and a clear affirmation higher than does.

I agree with him that the single most likely outcome is probably a reversal on the basis that Trump's behaviour did not constitute engaging in an insurrection. But I also think it's very possible that many of the Republican justices will be willing to sign on to the Baude/Paulson analysis in full. There's obviously instinctive resistance to the idea of going against public opinion, but logically any eligibility criteria is meant to be applied in the face of popular will - if they were not, then normal democratic processes would be enough.

The sky won't fall if Trump is found ineligible. We threw fifteen(!) politicians out of parliament because they were constitutionally ineligible a few years ago and while it caused a bit of drama, the world kept turning. Retaliatory actions may be attempted but they will need to get through the courts too, and if they do so successfully, they will be justified.

With all due respect to Australian democracy, were any of those 15 removed frontrunners to an election of the executive and/or leaders of the opposition?

One was the leader of the National Party and the Deputy Prime Minister.

So high profile and scandalous, but not to that exact level?

The equivalent to the NP would be one of the major factions in a major party, so it's as if they did it to Ted Cruz or Elizabeth Warren. Still think it would be a major escalation and a very ill omen, but it doesn't seem to be on the level of doing it to Trump somehow.

Probably the more controversial aspect was that several Senators were replaced by people who then defected to other parties.

As AshLael said, one was the leader of one of the parties in the ruling coalition.

The analogy is not very exact, though, because the results of the dismissals weren't "oh hey, your opponent wins by default", they were either "next person on your party ticket takes the seat" in the Senate cases, or "have a new election" in the HoR cases (and in all of the new elections the same party - and in some cases the same person, having resolved the eligibility problem in the meantime - won again and kept the seat). There were only two cases where the same party didn't hold the seat afterward, one because the guy was found to be eligible but resigned anyway, and one because the disqualified person had run as an independent and thus had no party.

This is very different from "a major party is not allowed to contest X position, opponent wins by default".

Should also be noted that the CW is significantly more subdued here in Oz.

In addition to the culture war itself being more subdued, Australia's geographics and economics make give the different factions a lot more inertia, and make disruption a good deal less direct to those impacted. Forget COVID: the recent fishing restrictions would have been gotten a Bundy-like in the United States.

Could you explain how Australia’s geography and economy has such an impact on its politics?

The most immediate controlling characteristic is temperature: you can have a temperature swing of twenty degrees farhenheit going thirty miles inland, in a country that's already pretty toasty throughout its spring, summer, and early fall. Which has never had a surfeit of fresh-water rivers. So a majority of the population lives almost exactly on the coastline, and more than a third live in Sydney or Melbourne. On the east, inland settlement was driven by tapping a single massive aquifier; on the west coast, it mostly wasn't.

This has lead to a massively urbanized population, spread across a handful of major cities.

Americans tend to think of Australia in the same way Europeans think of America. Where Brits think of the various states like taking a half-hour train ride to London, Americans think of the various territories as states like the American southeast. But driving from Adelaide to Perth is a longer trip than going across all of Texas, it's got the same scope of planning requirement, and if you're in Perth, it's your mode of comparison (going north is worse!).

Ok, economics. Work in the country is heavily bifurbicated, with resource extraction and agriculture providing a vast majority of economic exports along with a nature tourism industry, and then on the other side the finances/state agency/urban service sector. Manufacturing used to span the gap a bit, but it collapsed over the last couple decades, even more so than American manufacturing did. Construction kinda tries, but doesn't really.

((There's some policy stuff that augments this; the backpacker visa being one of the most obvious to outsiders by providing a massive labor force of mobile non-voters who get changed out every few years; among other things, they're why the rural/far-suburban service sector is a non-actor in politics.))

As a result, rural areas have basically no political (the National party has been a joke for a long time) or cultural (except as villains) importance, while urbanized voters face strong economic and environmental pressures toward communitized interests.

If Trump is disqualified, Biden will not win by default either. There will still be a Republican presidential nominee, and that person will have a similar chance of beating Biden.

Not for the case of him winning the (overall) primary and being disqualified in the general in some states.

... that depends a lot on the timeline and processes.

August 30th is the last day for a major party to fill a vacancy in Colorado, for one example. One of my frustrations with Unikowsky's analysis is that he's talking about things in the frictionless spherical plane sense. Forget the hard questions like whether Gorsuch goes hypertextual a la McGurt or not; the difference between an instant denial of cert, a GVR-with-direction, a reversal, and a request for briefings is a big deal, even assuming that they'd all result in the exact same conclusion eventually.

Yeah, I think the Supreme Court will be rather more mindful of the practical impact of a non-decisive ruling than Unikowsky is.

This is very different from "a major party is not allowed to contest X position, opponent wins by default".

That's not what is on the table. It perhaps feels that way to Trumpists, because Trumpism is populist movement and thus first and foremost a cult of personality.

Most of the time, even senior party figures are largely replaceable. If a couple of senior senators got disqualified from either party, people would care infinitely more about the replacement process than the people ejected (they're not even necessarily unpopular - as has often been noted, Congress has terrible approval but people like their guys - but their supporters just aren't attached enough to stand by them if they got into real hot water). In the case of Trump, his followers regard him as irreplaceable and are hostile to even considering alternatives. As such, the possibility that he performed some disqualifying act feels like total disenfranchisement even though the GOP still gets a nominee (who probably fares better) (plus the Supreme Court, ~half of Congress, half the state governments, etc...).

Australia is a little different compared to the US. That a province can cast out some leaders tells us nothing about whether the imperial core can do the same thing.

There is a clear and compelling need right now for clarity that only the Supreme Court can provide

Not quite only the supreme court—if they can get the votes, Congress can suspend the whole issue, in this and all future cases, as the amendment says as much.

True! Good point.

I'm slightly surprised no one has tried to call such a vote yet.

I know, I really hope it's going on behind the scenes.

It seems very unlikely to get the required 2/3 vote in both houses. A substantial majority of the Senate voted to remove Trump for the same behavior only a couple of years ago, after all.

I agree it's unlikely to succeed. I'm just surprised no one has seen advantage in proposing it yet.

Probably, everyone is happy with the status quo. Even though it doesn't really make sense you can come up with a rationale why both Trump supporters and Trump detractors in Congress/Senate both don't want such a resolution. Trump detractors in the houses don't want it because their supporters would be unhappy they supported it (perhaps irrationally). Trump supporters in the houses don't want it because having the Colorado Supreme Court railroad Trump and then having the Supreme Court smack them down is good strategically. Maybe it would be good for Trump supporters if a vote was put forward, Trump supporters could support it but the vote still failed.

This is beautiful in its simplicity, and the Right Thing To Do for the sake of America. But woe unto the Democratic senator or congressman who voted to remove Trump’s disability if Trump actually wins the 2024 election.

the Right Thing To Do for the sake of America

Why?

The reason why a Trump supporter would favor it is obvious, but what is the case for forgiveness from someone who thinks Trump is guilty?

There's a procedural problem -- even someone that thinks Trump is guilty of at least something substantively illegal might not believe that a State can presume this without a full and fair trial on the merits.

The chance of reciprocation is rather high. If you interpret it broadly, while allowing large amounts of leeway to any courts to strike people down, which seems likely to be what's needed in order to remove Trump, you'd probably also be able to do that to all sorts of other people. Republicans have already threatened to try to remove Biden from the ballots, and there's no reason to think that this wouldn't reach to other offices, if that all works. It would be far worse for maintaining trust in the institutions than the status quo, as bad as the status quo is.

It would be far worse for maintaining trust in the institutions than the status quo, as bad as the status quo is.

Worse for Trump supporters, maybe, but they're not the only ones with low institutional trust.

For the sake of upholding due process

We're not talking about process; we're talking about Congress voting that Trump's insurrection is no long disqualifying, i.e. short circuiting the matter.

Care to wager? SCOTUS need only say “the law is not self executing; congress passed a law saying what insurrection is, Trump wasn’t found guilty, therefore he is eligible.”

That is of course the prudential thing to do. The Baude argument is and remains silly.

Yeah, 1000% this.

They might even punt as to what specificity of criminal conviction could support exclusion from the ballot (e.g. does it have to be exactly insurrection or could it be a related crime) but that as Trump hasn't been convicted of anything, that question isn't before the Court.

I don't bet with internet strangers. And even if I did, I already predicted that the most likely outcome was that SCOTUS will say Trump is eligible. So I'm not sure what the terms of the bet would even be.

I think the best reading of the law is against Trump. But partisanship and public pressure both clearly make it in the self-interest of the conservative justices to rule for him. And while I'm not so cynical as to think self-interest always rules the day, in the words of Jack Lang, at least you know it's trying.

Even if Trump is found eligible though, I am very sceptical that it will be on the basis that section 3 is not self executing. The legal argument that it is seems very strong to me.

The legal arguments seem incredibly weak.

First, you need to define “what is an insurrection.” The amendment is silent on that. Next, you need to determine whether the proposed candidate in fact engaged in an “insurrection.” The amendment doesn’t specify the process, standard, or who gets to answer that question.

It would be an incredibly weird provision that takes away both the right of voters and the right of a candidate to seek office yet doesn’t answer these very basic questions.

Indeed, it is hard to square with the 14th amendment’s own guarantee of due process (ie we acknowledge the importance of due process except here where we will let a county clerk decide unilaterally based on whatever standard he or she likes that someone is an insurrectionist). All the more so in the context when the 14th amendment was adopted — do you really think the north wanted to give the southern states carte blanche to strike whomever they wanted from the ballot without due process of law?

Those are the infirmities before the question is even answered whether the article even applies to the presidency (there is a strong argument it doesn’t since the provision specifies, inter alia, electors but is silent on the presidency). And then there is the still procedural question of even if the amendment is self executing absent congressional action did congress act and therefore occupy field (which again arguably yes since it defined insurrection and provided a process / penalty for the crime).

All of those questions are before you get to the merits (ie did Trump engage in an insurrection, were Trump’s statements protected by the first amendment).

That is, the argument advanced in toto is betting on hitting an inside straight flush (ie it has to win on numerous arguments; rebuttal on one). The infirmity of that legal position heavily suggests the argument is bogus and prudentially SCOTUS needs to nip this in the proverbial bud on procedural grounds.

First, you need to define “what is an insurrection.” The amendment is silent on that. Next, you need to determine whether the proposed candidate in fact engaged in an “insurrection.” The amendment doesn’t specify the process, standard, or who gets to answer that question.

It would be an incredibly weird provision that takes away both the right of voters and the right of a candidate to seek office yet doesn’t answer these very basic questions.

This argument runs headlong into the problem that many constitutional provisions are vague and imprecise, and yet carry force in themselves. I guarantee that however difficult it might be to decide what is and is not "insurrection", it's a whole lot harder to define what is and is not "due process".

This is a consistent problem with many of the arguments made against the Colorado ruling. They don't work out-of-sample.

Indeed, it is hard to square with the 14th amendment’s own guarantee of due process (ie we acknowledge the importance of due process except here where we will let a county clerk decide unilaterally based on whatever standard he or she likes that someone is an insurrectionist). All the more so in the context when the 14th amendment was adopted — do you really think the north wanted to give the southern states carte blanche to strike whomever they wanted from the ballot without due process of law?

The southern states already had, and had executed that right. The constitution says that states get to allocate their electoral votes however they decide. Southern states used that power to remove Lincoln from the ballot. Constitutionally you don't even need to have an election to choose your electors, so it seems absurd to suggest there is a constitutional right to stand for election.

Due process rules do not apply to political eligibility because political eligibility is neither life nor liberty nor property. And if it is, you have to square with the fact that it is routinely denied to e.g. naturalized citizens without process or recourse. Again, the argument does not work out of sample.

Those are the infirmities before the question is even answered whether the article even applies to the presidency (there is a strong argument it doesn’t since the provision specifies, inter alia, electors but is silent on the presidency).

I think it's very telling that none of the judges on the Colorado Supreme Court endorsed the trial court's ruling that section 3 does not apply to the presidency - not even any of the three dissents. And the trial judge herself went out of her way to emphasize the doubt she had in the conclusion. It's just really tough to argue that the person who holds the office of President of the United States is not an officer of the United States.

And then there is the still procedural question of even if the amendment is self executing absent congressional action did congress act and therefore occupy field (which again arguably yes since it defined insurrection and provided a process / penalty for the crime).

Has this argument even been made by Trump's team? I don't remember anything about it in the Colorado ruling, but admittedly I skimmed parts.

That is, the argument advanced in toto is betting on hitting an inside straight flush (ie it has to win on numerous arguments; rebuttal on one). The infirmity of that legal position heavily suggests the argument is bogus and prudentially SCOTUS needs to nip this in the proverbial bud on procedural grounds.

I agree that there are many potential reasons to deny that Trump is ineligible, but I also think it's very telling that so far none of the judges saying that Trump cannot be disqualified can agree on why not.

I don’t have time to respond to everything but a few points:

  1. It is true that frequently the constitution is indeterminate. But there is a difference between government cannot abridge your ability speak (a prohibition on the government) and another that the government can rather arbitrarily prohibit you from running for office (a prohibition on both a person and the public). We generally require more effort by congress to curtail rights as opposed to the opposite because in the US freedom is the presumption.

  2. The idea that due process (and for that matter equal protection) don’t apply to political office ignores the arguments that we protect political rights for more than pretty much any other rights. See the famous footnote in Carolene Products. Could the government decide that anyone who supported BLM is ineligible to run for government on a whim without even rational basis review?

  3. One of the dissents did in fact raise the question of whether it applied to the office of the presidency (along with a bunch of other questions). This formed part of the dissent’s argument that it wasn’t self executing. Read closer before making sweeping statements.

  4. You are assuming that if dissent X argues A and dissent Y argues B that they are disagreeing. No. It could easily be that they are making a separate argument as to why it doesn’t apply. Having more than one compelling argument isn’t a bad thing.

I agree that there are many potential reasons to deny that Trump is ineligible, but I also think it's very telling that so far none of the judges saying that Trump cannot be disqualified can agree on why not.

A full mischaracterization of what the other side is saying. They are saying that there are many steps to declaring a person ineligible, and the Colorado case has failed at many of those steps. Firstly they have failed to define insurrection. Secondly they have failed to define it in a way that does not encompass protected 1st Amendment speech. Thirdly they have failed to deal with due process regarding convictions. Fourthly....

It is even worse than that. One of the dissents when going through 1st, 2nd, etc specially mentioned this as something that suggests “maybe the Colorado process wasn’t the right one to adjudicate this mess.”

I guess what really bothers me about this whole thing is that I understand “damn the consequences” when the law is clear. I don’t understand the same attitude when the law is at best slightly on the other side and more naturally heavily on the other side

Southern states used that power to remove Lincoln from the ballot.

At the time, the state did not print ballots; parties did. There was no "the" ballot to remove Lincoln from. You didn't typically fill out your ballot for president, but deposited a pre-printed one.

Ballots named the electors, which is probably why the 14th amendment disqualifies electors. In these southern states, there weren't electors publicly declaring Republican support, so the party didn't print ballots in them.

The southern legislatures could have directly chosen the electors, but that is not the process they used.

It's just really tough to argue that the person who holds the office of President of the United States is not an officer of the United States.

This argument seems plausible to me. Perhaps Gorsuch would go for it.

Thanks for the correction!

Trump didn't engage in insurrection. He's certainly not the best steward of American democratic norms, but he's not an insurrectionist. The 14th Ammendment refers to actual insurrection such as raising armies and waging war. It was made right after the Civil War when there were a lot of actual former insurrectionists whose actions bear no resemblance to Trump's.

Maybe a dumb argument but for a Trump to do insurrection wouldn’t it have to be on Jan 7? It’s weird to be doing insurrection while you are potus and against yourself.

Unimportant point, but Trump remained President until Jan 20.

The more substantial point is that as President, Trump was not the whole of the law or of the government's authority. The Jan 6 insurrection was not against him.

A contemporaneous-with-section-3 definition of "insurrection" in Webster's dictionary was "[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state."

If that were the standard Jan 6 were to be judged by, it clearly qualifies. The crowd openly and actively opposed the execution of the law certifying the election result.

The crowd believed in their heart of hearts that the execution of the law would have been a betrayal of that same law, due to systemic, blatant, obvious, and inescapable corruption of the election process. They believed they were fighting a coup because the President who speaks their tribe’s language said so, and everyone else in a position of power acted like an entrenched regime trying to hide something smelly.

What would the proper response have been from the protest crowd, if that were indeed the case? What should the President’s response have been? And what could have kept any successful anti-coup action from being ruled an insurrection by the annals of history?

There's certainly instances where violent insurrection is defensible or even noble - Myanmar, for example. But I don't think you can abstract away from the reality that Jan 6 was not in fact such a case. The casus belli of this insurrection was a brazen lie.

It's deeply unfortunate that many people chose to believe the self-serving narrative of a deceitful loser. But those people are obligated to live with the consequences of their actions in the real world, and the rest of us are not obligated to join them in their delusion.

I believe you go to far assuming that everyone believes Jan 6 was not justified. I don’t believe I’m the only one here who considers it a good and proper day. Jan 6 needed to happen. To me Jan 6 wasn’t even really about making Trump potus. I don’t think you realize how much anger built up in a lot of us after feeling like we had been lied to for a year on a host of issues (including mostly fiery peaceful protest) that it felt really good to see those people deal with a mostly peaceful protest.

Now an insurrection being just would still make it an insurrection (though I disagree it was that)

A contemporaneous-with-section-3 definition of "insurrection" in Webster's dictionary was "[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state."

Are there any protests that don't meet that standard? CHAZ certainly qualifies.

I'd be surprised if less than half of politicians (at any given level) didn't cross that line every year. Heck, the Cards Against Humanity people would qualify with their anti-border-wall stunt, even if their lack of oath makes the point moot.

Are there any protests that don't meet that standard? CHAZ certainly qualifies.

CHAZ does, and some of the BLM stuff does, but your average "holding signs in a public space and shouting slogans a lot" doesn't.

The wording there means "attempting to stop the law being enforced". Saying you want the law to be something different than it is (which not even all protests do) is not a revolt.

Jan 6... is arguable, because they weren't preventing the execution of all laws in any significant volume, just one law in one building (I don't think, for instance, that they intended to stop DC cops from arresting murderers in DC), but they definitely were obstructing that one thing. On the other hand, I can't see a reading where Trump "openly" supported Jan 6, since he did not actually tell them to invade the Capitol. You can argue that he covertly supported it, but that's just the word: covert.

Most wouldn't. A bunch of uni students chanting "Biden Biden you can't hide, we charge you with genocide" cannot plausibly fit within that definition. CHAZ on the other hand I think was indeed an insurrection.

You may then ask if a Democrat who provided "aid or comfort" to CHAZ participants could be judged ineligible for office, and my answer is yeschad.jpg.

This whole subject reminds me that I’ve long thought it would be a good change for the president to be appointed by state legislatures on a weighted majority-of-majorities basis, with a weighting system based on census data. So much of the issues with American politics are because congress has zero accountability to the states’ governments themselves, only to individual voters to some extent.

In general, direct elections to the federal level could be done away with as much as possible. It’s inefficient and confusing for people not only to elect 3+ levels of representative but then to do so in multiple forms (eg bicameral states, and congress itself for both senators and reps).

Recentering more politics around the states makes state politics more important and means that any president with a more radical plan is likely to be supported by a large ground-up movement in state houses across the country, instead of Trump being a one man band whose movement largely begins and ends with him.

This whole subject reminds me that I’ve long thought it would be a good change for the president to be appointed by state legislatures on a weighted majority-of-majorities basis, with a weighting system based on census data.

That's effectively what the Electoral College was originally.

I made a post on here about a year ago proposing a sort of elaborate version of how state legislatures could appoint national representatives.

https://www.themotte.org/post/167/smallscale-question-sunday-for-november-6/27482?context=8#context

My understanding is that basically the reason we don't do that anymore is that as the federal positions mattered more, the state legislature elections turned into proxy elections for the federal positions and the state issues were getting ignored. If you're going to have an indirect system for selecting the federal positions, you would probably want to either (1) keep it separate from state elections or (2) decide to go even harder on giving power to the federal government (so it doesn't matter as much if the state legislatures aren't governing).

How about (3) - go back on giving all power to the federal government? If most issues are state or local issues, because the federal constitution's short allowlist is respected, you pretty much have to pay attention to non-federal candidates.

That ship sadly sailed

All we need is a slightly sane judiciary branch to revisit Wickard v. Filburn. From there most federal laws would be rightly determined to be unconstitutional.

I think if we just took the takings clause seriously that would be better than overturning Wickard. And honestly, the judiciary is starting to take takings more seriously b

It’s not just that past precedence and the current Overton window has caused it to sail, but in the modern world I do not even believe it’s possible.

Technology has made the world a smaller place. Having this big federal government that can manage all these global forces has become necessary.

What some scientist mixes up in a lab will come to hurt you on the other side of the globe. Along with all the wealth Americans got useful from global trade.

I’m trying to think of what America could be if it didn’t have a big federal government managing all these policies and my best guess is like Argentina which was largely locked out of global trade due to their currency being awful. Also poorer because modern industry scale abilities is much higher than a few million person state which they haven’t hit that scale. Poor in nominal terms but everyone does say it feels wealthier on the ground.

On the flip side, the federal system enabled some states (eg Florida, Georgia) to show that the covid restrictions were nonsense. That is, despite the world getting smaller local control still allowed for so called different laboratories enabling a better outcome compared to a bet it all on black approach.


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