RED AND BLUE BLUE CHRISTMAS: The 14th amendment involves simple, clear language!

THURSDAY, DECEMBER 21, 2023

We're sorry, but no—it doesn't: Borrowing from sacred Chekhov, though only in translation:

"The appearance on the front of a new arrival...became the topic of general conversation."

That new arrival appeared on the scene on Tuesday afternoon. We refer to the game-changing decision by the Colorado Supreme Court—a 4-3 decision declaring that erstwhile candidate Donald J. Trump cannot appear on that state's ballot in the coming year.

In the ruling by the court, Trump would be barred from the Colorado ballot because he engaged in the "insurrection or rebellion" which took place on January 6, 2021. With the arrival of this decision, all other topics of conversation quickly disappeared.

On balance, the decision struck us as virtually insane. Many others disagreed with that assessment—with that view or that reaction.

Below, we offer a large chunk of the balanced assessment offered by Josh Marshall. We agree with a lot of what Marshall said about the court's game-changing court decision.

We disagree with one basic point:

Before delving into the constitutional text, let’s discuss how we should think about this issue, because there’s a lot going on here besides the plain text of the 14th Amendment. Criticisms that I hear are that barring Trump from the ballot is simply undemocratic. Trump has many supporters and they should be allowed to vote for him. At least in the abstract, good point. Another is that attempting to disqualify Trump and barring him from the ballot may actually help him, allowing him to play the victim and, perversely, to wear the mantle of democratic legitimacy.

For myself, I’m equivocal about the whole idea. Trump is going to win or lose the old-fashioned way—based on the votes. I have no time to be distracted by strategies to short circuit that electoral reckoning. I’m not totally sure the disqualification provision applies to his set of facts. I have some small questions about whether this passage applies to presidents. I have bigger questions about whether the passage’s “insurrection” matches Trump’s insurrection. But I’m not the one bringing the lawsuits to disqualify him. So I don’t need to make that decision. My approach—and the one I would recommend to anyone interested in my opinion—is one of open-minded disinterest.

We agree with many points in that balanced assessment. We even agree with this statement by Josh:

I have bigger questions about whether the passage’s “insurrection” matches Trump’s [actions with respect to January 6].

Did Donald J. Trump take part in an "insurrection?" Ridiculous as his conduct was—disordered as it continues to be—we can't necessarily say that he did.  Nor would we know how to argue that point to Others.

Josh says he's "equivocal about the whole idea" of barring Trump from the ballot. On balance, it remains our view that this is a very shaky idea which leads down a very strange road.

With that minor point of disagreement stated, we'll now direct your attention to a very basic point:

Early in his presentation, Josh refers to what he calls "the plain text of the 14th amendment." As everyone knows by now, the court's decision to bar Trump from the ballot was based on that amendment to the U.S. Constitution.

Josh refers to the amendment's "plain text." As reactions to this ruling has come to dominate the conversation, many other blue tribe observers have described the 14th amendment in a similar way.

We disagree with those observers—and we think this is a very basic point. Here is Adam Serwer, writing for the Atlantic and including the language in question:

The language of that section, written in the aftermath of the Civil War to disqualify former Confederates who had taken up arms against the United States in defense of the institution of human bondage, is short and simple: 

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.

There is no language limiting the power of the section to former Confederates, however, and its scope is sweeping, with no requirement that those engaged in the specified conduct be convicted.

In Serwer's view, the language of that section of the 14th amendment is "short and simple." The amendment's language is short and simple as it describes "the specified conduct" which bars an offender from office.

Many others have offered some version of that basic assessment. On yesterday morning's Morning Joe,  Joyce Vance offered this appraisal, with a callback to George Conway:

There's this foundational notion we all have that Americans should decide elections at the ballot box. But people like George increasingly are looking at the 14th amendment and reading its language, and look, this is the clear language of the law that the Colorado Supreme Court has now decided means that Trump shouldn't be certified to be on the ballot in Colorado.

According to Vance, the Colorado court based its decision on "the clear language of" the 14th amendment. As if to settle the matter, Rachel Maddow had even made a somewhat similar statement as she spoke with Joy Reid by phone on Tuesday night:

In the case of the 14th amendment, this was written in 1868 specifically to preclude people from holding office in the United States if they were—if they had engaged in trying to overthrow the government of the United States, or if they had previously been office holders who had violated that oath. And so it's— I mean, I look at that as a person who doesn't agree with that "originalism" fantasy legal philosophy and say, "Well, it seems pretty clear to me."

Rachel's statement was muddier than the others. But in the past few days, many observers have referred to the clear language, to the plain text, of the 14th amendment.

We don't think that clear language exists. Tomorrow, we'll tell you why.

For now, for the record, this:

In our view, this basic point helps illustrate the weakness of our society's storehouse of "daily logic." In the past, we've often noted the fact that our academic logicians have long since walked away from their posts—have stopped offering guidance concerning our nation's crucial public debates and discussions.

In our view, the crowning example remains the way our professors of logic failed to offer a peep as mainstream journalists spent two years insisting that Candidate Gore had crazily said that he invented the Internet.

Was that a reasonable paraphrase of what the candidate had actually said? Also, what are the basic rules of fair and accurate paraphrase?

Locked away in their famous towers, the professors failed to instruct. Meanwhile, mainstream journalists protected their careers by advancing that standard claim, or by maintaining group silence.

So it will be today as observers refer to the clear language of the 14th amendment—as observers refer to the simple language and the plain text which basically don't exist.

Tomorrow, let's hold a lesson in "daily logic!" Let's discuss a pair of assertions which have been widely advanced:

Assertion 1: The 14th amendment offers simple language, a plain text.

Assertion 2: We're all familiar with the practice of disqualifying possible candidates from running for office.

The second assertion is plainly true. It seems to us that the first assertion plainly isn't.

Within the academy, the logicians will all be snoring again as this conversation unfolds. Tomorrow, let's sneak into a campus building and enter an abandoned classroom. Then, let's explain what's wrong with the many claims about the 14th amendment's "plain text."

Should Donald J. Trump be removed from the ballot? At this site, we're afraid we may be hearing "a firebell in the night" as this idea advances.

We also find it hard to believe that President Biden can win next year. From our perspective, that makes this a very dangerous time—but red and blue are being pushed even farther and farther apart as we head toward a blue, blue Christmas.

Tomorrow: Appearances can deceive (surface versus depth)