Nor does the subtly ironic Shelley literally believe that the fiery particle of Keats's mind was snuffed out by a resentful article or two in wintry Scotland. Keats was a pugnacious personality, and while I am nothing of the sort, even I am energized by the endless idiocy of my bad reviewers. "I hate to be praised in a newspaper," remarked the sagacious Emerson, and nothing is more soul-destroying than any praise from the New York Times Book Review. —Harold Bloom
Greetings from the far left coast where it is hotter than the hinges of the cell reserved for a certain twice-impeached, multiply indicted, racketeering former president. A heat wave rolled into town Sunday with triple-digit temperatures. There may be some relief as the week winds down. Meanwhile, the indictments keep coming.
A pair of law professors have written a paper articulating the conservative case that Donald Trump and a number of associates, stooges, and running dogs are disqualified from holding federal office by virtue of Section Three of the Fourteenth Amendment. The Sweep and Force of Section Three, scheduled to be published next year in The University of Pennsylvania Law Review, became available online on August 9.
William Baude and Michael Stokes Paulsen are constitutional originalists and contributors to the Federalist Society. Baude is Professor of Law at the University of Chicago Law School, co-editor of the textbook The Constitution of the United States, an Affiliated Scholar at the Center for the Study of Constitutional Originalism, a member of the American Law Institute, and an occasional blogger at the Volokh Conspiracy, which describes itself as mostly law professors, some lawyers, and one political science professor, sometimes contrarian, often libertarian.
Paulsen is Distinguished University Chair & Professor of Law at the University of St. Thomas. He is a graduate of Northwestern University, Yale Law School, and Yale Divinity School, and has served as a federal prosecutor, Attorney-Advisor in the Office of Legal Counsel of the U.S. Department of Justice, and counsel for the Center for Law & Religious Freedom.
“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”
He summarized the article’s conclusion: “Donald Trump cannot be president—cannot run for president, cannot become president, cannot hold office—unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.” (Adam Liptak, Conservative Case Emerges to Disqualify Trump for Role on Jan. 6, New York Times, August 10, 2023)
Section Three of the Fourteenth Amendment:
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.
The Fourteenth Amendment was enacted in the aftermath of the Civil War when Southern states sent to Congress men who had engaged in or supported secession, rebellion, and civil war. Among them were “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens."
The pdf version of The Scope and Force of Section Three runs to 126 pages. Thus far I have read the abstract, the section titled "Section Three Disqualifies Donald Trump from Future Office," and the conclusion, and skimmed parts of other sections. The article is scholarly and rigorous, with extensive citations. A few key points and conclusions:
Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.
Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
It is enforceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three.
Our point is to emphasize Section Three’s continuing force, and broad sweep.
At all events, if a President or former President of the United States; a current
or former officer of the federal executive branch; a Member or former Member of Congress; a current or former state legislator or state executive official; or a current or
former federal or state court judge, planned, supported, assisted, encouraged, endorsed, or aided in a material way those who engaged in the insurrection of January
6, or otherwise knowingly and willfully participated in a broader rebellion against
the constitutional system, such persons are constitutionally disqualified from office.
In such situations, Section Three’s constitutional disqualifications can, should, and
must be carried out.
I anticipate pushback. In that regard I note that Baude and Paulsen meticulously explain why Section Three is legally self-executing; why it supersedes, qualifies, or satisfies prior constitutional provisions regarding bills of attainder, ex post facto laws, due process law, and the First Amendment; and why the attempt by Trump and others
to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de facto political coup d’etat against the regime of lawful constitutional government, constitute engaging in “insurrection or rebellion against the Constitution of the United States.”
Stay tuned.
Recommended reading: Nicholas Grossman, The Media Still Doesn't Get Biden Voters: And barely even tries, The Bulwark, August 14, 2023. Grossman notices the consensus among conservative and mainstream media that we should work harder to understand Trump supporters. "You don’t have to agree with the populist right, but you should be listening to, empathizing with, and engaging them more." Contrariwise, "Reporters don’t do safaris to 'Biden Country,' seeking to understand the voters who put him in the White House." Grossman argues, rightly I think, that the conventional division between liberal coastal elites who put Biden in the White House and working-class, small-town and rural, conservative voters who supported Trump breaks down on closer examination, and it need not be all that close.
The only definition of “elites” that includes most Biden voters is the postmodern one popular with today’s right-wing culture warriors: “disagrees with me on social issues.” But virtually no one outside the culture-war right thinks a millionaire who owns car dealerships but didn’t go to college, or a tech-industry venture capitalist who complains about the “woke mob,” are working class, while a middle-school teacher with a college degree or a coffee barista who puts they/them pronouns on a nametag are elites.
…
Bidenists actually mean what they say about democracy. As Republicans have embraced the quasi-nihilist cynicism of Trumpist politics, they’ve told themselves that everyone is unprincipled…but that’s just not true. A lot of Americans really do believe in the American idea. All men are created equal, We the People, a more perfect Union, a government of laws not of men, the arc of the moral universe bends towards justice, leader of the free world, the whole deal. Sure, it’s cheesy, and we’ve never actually achieved it, but so what? We’ve improved over time, and most Americans would like to keep trying.
Silly season is always in season.
Alongside shirts bearing slogans like “HAUNT THE PATRIARCHY” and “READ BANNED BOOKS,” visitors to the Cutee Collection Etsy Store can now buy shirts declaring themselves members of the “JUDGE CHUTKAN FAN CLUB.”
…
Last week, my colleague Calder McHugh wrote about the cult that has sprung up around Jack Smith, the man prosecuting Trump, complete with fanboy Twitter and Tiktok accounts and sales of a pillow depicting Smith as Jaws. There’s also merch that name-checks Alvin Bragg (the prosecutor who indicted Trump in New York) and Fani Willis (the D.A. who may soon do the same in Georgia.) (Jack Schaffer, Please, Please Stop With the Progressive Hero Worship of Jack Smith and Tanya Chutkan, Politico, August 11, 2023)
The prosecution of Donald Trump is a serious affair. It is trivialized when prosecutors and judges are treated as pop celebrities. Sadly, there is nothing surprising about any of this.
Maybe I should be peddling Portable Bohemia t-shirts and coffee mugs?
New at Portable Bohemia Substack:
Tuesday's Indictment: A Positive Development, but…August 2, 2023. It appears that everyone and his, her, or their brother or other significant relative has weighed in on the coup indictment, so…read more>>
Out of Tune with My Time, Out of Time with the Tune, August 6, 2023. For some time I have thought that a pronounced estrangement from the culture around me might have something to do with the situation on the poetry front, where inspiration and genius, in the sense of a distinctive character or spirit that comes through with the poems, have largely abandoned me. The vast separateness…read more>>
What Fresh Nonsense Is This?, August 12, 2023. That zany vaudeville troupe at the Florida Department of Education is at it again. The antics would be a fount of merriment if the stakes were not so consequential. The first act delivered the spectacle of newly approved Florida school standards for teaching African-American history…read more>>
Keep the faith.
Stand with Ukraine.
yr obdt svt
