Does The Constitution Matter?

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Here’s a follow up from TPM Reader JS on law and precedent tied to what constitutes an insurrection. (See their earlier post.) I’m basically where they are on this. I want to be crystal clear with everyone that this will not work as a way to prevent Trump’s election. (See my earlier post.) I’m uncomfortable with where this leads us in policy terms. But that’s not a standard we apply to constitutional text. I’m super uncomfortable about the electoral college text too. But we all agree that doesn’t matter.

I would just add that, sure, it’s bad policy to deny a bunch of voters their choice and that’s generally how we read the law in light of provisions of the very same amendment. But it’s also bad policy to let a few judges’ sense of good policy override the clear, plain meaning of the Constitution. That’s not the rule of law. It’s about as clear as it gets here. He swore an oath when he took office and then he fomented an insurrection. Sure, no one has done a fact finding on that yet, but they will in the trials on this matter, won’t they? It doesn’t have to be res judicata from a criminal trial at all.

The question is clear to me: would the President have the authority under the *1807* Insurrection Act to federalize troops in this case? Absolutely. But since he was doing it, that didn’t happen.

Imagine if Trump’s youngest son Baron ran in 2028. He wouldn’t be 35. But if MAGA-world wanted him, wouldn’t he be what the voters demand? It would be just like them to do this just to make people go well AcKShUaLLy. 

That argument is an argument for a Constitutional amendment, as any Federalist Society lawyer would tell you (in bad faith) about any number of other subjects like abortion. It’s not an argument for legal interpretation.

And there’s just nothing in there after the 14th Amendment to modify it enough to make a strong case. Yes, since the franchise was extended to women and 18-year olds. Yes, direct election of senators is in there, but that’s just the kind of elementary school reasoning about the Constitution that so called originalists claim to hate.

And, again, just like 2000, they will do it, but it will look stupid. Like you I have no doubt they will do it, I just think it’s going to take some very lame reasoning.The focus should be on the contortionist act they will have to do to stop this.

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