RED AND BLUE BLUE CHRISTMAS: Two other provisions involve "plain texts!"

FRIDAY, DECEMBER 22, 2023

The 14th amendment doesn't: Later today, we'll show you part of what you missed on the Fox News Channel last night.

Here's a spoiler alert:

Our journalistic culture is thoroughly broken when the material in question can appear as part of a prime time show on a major "news channel." Also, when the rest of the journalistic world averts its eyes, gazes away, agrees to say and do nothing.

Our red tribe "journalistic" elite is hopeless, disordered, deranged. That said, is our blue tribe journalistic elite really that much better?

That question popped into our heads when we watched today's Morning Joe—specifically, when we watched an extremely lengthy, taped account of Donald Trump's legal entanglements. 

Our youthful analysts wrung their hands, then tore madly at their hair, as this lengthy tape played. They were filled with despair at our blue tribe's deep investment in this dead-end train of thought—at the lack of interest in all other topics our blue tribe elite displays. 

That said, we thought Donny Deutsch offered a deeply insightful set of remarks after this lengthy tape played. We'll bring that material to you when videotape becomes available—and no, that won't be today.

Alas! Within our failing journalistic order, our red and blue elites are thoroughly segregated at this point in time. Hannity still screeches on Fox every night—but the late Alan Colmes is long, long gone, replaced by a red tribe studio audience which applauds every pronouncement.

Our professors have nothing to say about this. With that, we return to yesterday's question about the judgment which came down, on Tuesday afternoon, from Colorado's Supreme Court.

For yesterday's report, click here.

Should Donald J. Trump be barred from the Colorado ballot? Presumably, the U.S. Supreme Court will rule on that remarkable question—but how is the matter being reviewed by blue journalistic elites?

Yesterday, we showed you a set of blue tribe observers making a certain statement. They referred to the simple, clear language, to the plain text, found in this, the relevant part of the 14th 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.

That's the provision which led to Candidate Trump's banishment from the Colorado ballot. One liberal journalist after another has described the "simple language," the "plain text," of that newly famous passage.

In fact, the relevant language in that passage isn't simple or plain at all.  It's a comment on the analytical skills we bring to our failing national discourse that so many blue tribe journalists have rushed to describe it that way.

In fairness, let's be fair! When the 14th amendment was written, there would have been little uncertainty about the relevant part of that provision.

The passage in question says that a person couldn't hold certain federal offices if he had "engaged in insurrection or rebellion against [the Constitution of the United States]." 

That was very plain language—back then. Here's what it plainly meant:

The United States had recently emerged from the Civil War. A federal fort had been fired upon. Various states had then declared that they were leaving the union.

Those states had declared themselves a new nation, with a whole new name and a new Constitution. They had assembled an army to help them in that undertaking. That army had fought for four years against the army of the United States, in a bloody war whose mortality rates were unknown in previous history.

With that as the historical backdrop, let the word go forth to the nations:

In 1866 and 1868, it wasn't hard to know what the authors of the 14th amendment had in mind when they referred to people who had had "engaged in insurrection or rebellion" against the United States. 

What rebellion did the authors have in mind? It would have been amazingly obvious at that point in time. 

In that sense, the passage plainly was a "plain text"—at that point in time. 

That actually was a plain bit of text at the time—but is it a plain text today? We'd say the answer is plainly no. This is why we say that:

As of 1868, everyone would have known what "insurrection or rebellion" the authors had in mind. For better or worse, the authors provided no further definition of terms—no further explanation which could be used, moved forward, to determine whether some future erstwhile candidate had engaged in prohibited conduct.

This leads us to Candidate Trump. Has he engaged in an "insurrection or rebellion" against the United States?

Josh Marshall is very sharp—and he's a blue tribe voter. That said, it's as we showed you yesterday. After referring to the amendment's "plain text," Josh went on to say this as part of the analysis we posted:

For myself, I’m equivocal about the whole idea [of barring Trump from the ballot]...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.

Josh Marshall is very smart, and here's one way you can tell:

He says that he's not sure whether Trump engaged in an "insurrection" which fits within the meaning of the 14th amendment's language. He isn't sure whether Trump did that—and the 14th amendment offers no guidance as to what that crucial term should be understood to mean.

In fairness to Donald J. Trump, let's take note of this:

He didn't claim to be starting a new nation in the aftermath of the 2020 election. He didn't state that Mar-a-Lago and West Palm Beach were seceding the union. 

He didn't assemble an army in any straightforward sense of the term. He didn't fire on any federal forts. He didn't write a new Constitution or march on Gettysburg.

In our view, what he did do was insane, but was it an "insurrection or rebellion" within the meaning of the 14th amendment? Because he's smart, Josh Marshall says he isn't sure. 

For ourselves, we wouldn't necessarily say that Trump engaged in an "insurrection" at all—and the rather slapdash 14th amendment offered no guidance as to what future generations should take that term to mean in any future cases.

Because he's smart, Josh Marshall said he isn't sure that Trump engaged in an insurrection of the type envisioned by the 14rh amendment. And yet, in the same passage we quoted, Josh started by referring to the amendment's "plain text!"

In fact, there's nothing simple, clear or plain about that part of the 14th amendment! As a way of illustrating that point, let's compare that passage to two other parts of the Constitution which bar people from the ballot.

In the past few days, many blue tribe pundits and journalists have referred to this part of the Constitution:  

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

There! It's quite conventional to bar people from the ballot on a constitutional basis, these self-assured savants have said.

Plainly, that assertion is true. The difference would be this:

That passage does involve a "plain text." It involves a "plain text" because everyone agrees on the way we determine a candidate's age.

Imaginably, a candidate could come along whose birthdate was in dispute. But as a general matter, everyone will agree whether erstwhile Candidate A really has, or actually hasn't, attained that required age.

We all agree on what it means to say that someone has "attained to the Age of thirty five Years." But, as Josh's post makes clear, we don't all agree, in any way, or what the terms "insurrection or rebellion" might plausibly mean in the current context. 

One passage does involve a plain text. The other passage doesn't. While we're at it, let's consider another passage in the Constitution which describes the way a federal office holder can be barred from office:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

There! There's another way a person can be barred from holding future office! But in that case, the Constitution provides a clear direction as to who will render the disqualification, and as to the process by which the judgment will be reached.

The Constitution gives the Senate a lot of leeway concerning the basis on which it can decide to convict an impeached office holder. But in this case, we're at least told who will make the decision—who will decide that a person can't run for any future office. 

The 14th amendment offers no such guidance. It doesn't tell us who will decide that the erstwhile candidate has engaged in a "rebellion." Nor does it try to define what a "rebellion" is.

Should Trump be barred from the Colorado ballot? We regard Trump as deeply disordered, but our inclination would be to say no.

That said, we aren't here to argue that point today. We're only here to say this:

There is nothing simple, clear or plain about the relevant constitutional text. 

Back in 1866 and 1868, it would have been perfectly clear who was being barred from holding federal office. Everyone would have known what "insurrection or rebellion" was being discussed.

In that sense, the relevant part of the 14th amendment actually was a "plain text"—at that point in time. That said, it isn't a "plain text" today. This is a point Josh helps make clear when he says that he himself isn't sure if Trump engaged in an "insurrection" as intended by that text.

Should Trump be barred from the ballot? You can argue it flat or round. After that, you can deal with the consequences, with the reactions.

You can argue it either way. Our point today is this:

No, that actually isn't a simple / clear / plain text. The fact that so many blue tribe leaders rushed to say that it was helps us see how limited our analytical skills really are.

It also showed that, as sacred Chekhov said, "the most complicated and difficult part is only just beginning" as we try to assemble a workable and intelligent red-and-blue public discourse.

In truth, that's a rather fuzzy text. It leaves us to handle the hard part.

No professor is going to step forward to help us sift that point. When it comes to our failing discourse, they walked off their posts a long time ago, nor is there any sign that they have any plans to come back.

Meanwhile, Elvis warned of a blue, blue Christmas. Did you watch red cable last night?

This afternoon: What the red tribe offered last night

Still coming: What Donny Deutsch said