The "legitimacy of the Court" and all that other stuff they've spent months lying about.
Nothing makes a court more legitimate than ensuring voters get no practical chance to select the leader they actually want.
For as long as Ringside has been on the air, I’ve been warning about the amount of lying the Left does. The latest gambit by a 4-3 majority of the (all Democratic) Colorado Supreme Court takes the phony “we-love-democracy” cake. Let’s start — appropriately enough for a piece about lying — with today’s article from the NYT.
At its core, the Colorado lawsuit trying to keep Donald Trump off the 2024 ballot involves a clash between constitutional textualism and voter empowerment.
If you simply read the 14th Amendment, you will understand the argument that Trump should be disqualified from serving as president again. Section 3 of the amendment states that nobody who has taken an oath to support the Constitution should “hold any office” in the United States if that person has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On Jan. 6, 2021, of course, Trump encouraged a mob that later attacked Congress, and he praised the attackers that day and afterward.
Notice the slick but essential slippage over the last two sentences — from (1) “engaged in insurrection” or giving “aid or comfort” to the enemies of the United States (the Constitution’s words) to (2) “encouraged a mob that later attacked Congress” and “praised the attackers” (the NYT’s words, used by many others on the Left as well).
I guess we’re not supposed to notice the difference — this after the Times starts things off by tipping its hat to “textualism.”
Of course textualism is exactly what the Times is avoiding, which is why its story shifts away from the Amendment’s text to what it hopes we won’t notice is a nicely engineered paraphrase thereof.
The Times should have taken more pains with this shake-and-jive. Engage in doesn’t mean encourage. If you want to engage in an insurrection, you need at the minimum to be where the insurrection is happening and to be taking action to make it happen. Trump did neither. And if the drafters of the 14th Amendment had intended to extend it to “encouragement” (or, to use the more legal term, “incitement,” or “aid and abet”) they could easily have done so. They didn’t. Those terms are nowhere mentioned in the Amendment (or as a charge in Jack Smith’s indictment while we’re at it).
For as perverse and reckless and disrespectful of his oath as Trump’s behavior was on January 6, he did not “engage” in an insurrection. (I’m assuming arguendo here that it’s fair to call the events of that day an insurrection rather than simply a riot).
Well what about giving “aid or comfort”? If Trump had housed some of the rioters the night of January 5, knowing what they were going to do the next day; or given them sticks and stones (or guns), then there would be a good case for the charge of giving aid or comfort. But merely having spoken words of encouragement about their right (or, in Trump’s distorted view, need) to protest is not illicit aid or comfort for an insurrection — that is, violence, trespass, or forcible interruption of Congressional action — or at least it’s not unless the Fourteenth Amendment secretly repealed the First. The right to protest what the government does is at the heart of the First Amendment. As long as a citizen (even the President) does no more than protest and speak words supporting protest, he has done nothing any part of the Constitution forbids.
So to my way of thinking (as well as that of the three dissenting Colorado justices, and a scattering of other judges around the country who have turned away the Fourteenth Amendment claim), the disqualification argument doesn’t work. That’s without even reaching the question whether the President is a federal “officer” within the meaning of the Amendment, an issue as to which bright and educated lawyers differ.
Curiously, the NYT does give a decently fair account of the counter-argument:
The clearer philosophical argument against the lawsuit is democratic rather than technical: If the American people do not believe Trump is fit to be president, they can vote against him next year….Now, though, the seven justices of the Colorado Supreme Court (in a 4-3 vote, no less) have decided that Trump cannot appear on the state’s primary ballot. Lawyers are asking other courts to make similar decisions (as this Lawfare page tracks)….
Were they to bar a leading candidate from running for president, it could disenfranchise much of the country. It would in some ways be “a profoundly anti-democratic ruling,” as our colleague Adam Liptak, who covers the Supreme Court, said on “The Daily.” As Adam explained:
Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?
And that’s the heart of it, isn’t it?
But there’s more, a lot more. Consider this: What could be more of a threat to democracy than for a handful of unelected lawyers to decree that the preference of (what appears from numerous polls to be a majority of) voters is simply to be blotted out? The only major candidate who will even be permitted to appear on the ballot will be the one that that handful of lawyers personally prefers.
My goodness! “Banana republic” hardly captures it. A stunt like that would make Vladimir Putin blush.
Consider this too: For months the Times and the Left generally have been blistering the “legitimacy” of the Court. They’ve done this mainly through what we’re supposed to pretend aren’t racist attacks on Justice Thomas, and yet more exotically to pretend aren’t sexist attacks on his wife for having her own life and career, and partaking of civic engagement in precisely the way women’s rights liberals have bellowed at us for decades should be not merely allowed but encouraged. Those same liberals, with the brazen, scheming piety for which they’re making themselves famous, now tell us that the Court’s legitimacy requires it to wipe away even the possibility of democratic choice and to have no practical choice at all beyond Joe Biden.
Fortunately, it’s not going to work. When the case gets to the US Supreme Court, I think the core of its opinion should and will be this:
"The Fourteenth Amendment requires that the putatively disqualified person have "engaged" in an "insurrection." Given that Mr. Trump was not at the site of the riot and not a participant in it; and that it is open to reasonable argument whether the events of January 6 amounted to an "insurrection" as that word would have been understood by the Amendment's drafters in the immediate aftermath of the Civil War -- still our nation's bloodiest and most violent and wrenching conflict -- we decline to hold that the Amendment as written bars Mr. Trump from the ballot.
"By any accounting, the preeminent principle upon which our nation was founded is that the people should, by free elections, choose their own leader. In order to override that principle by judicial action, we would need overwhelming evidence that the specific language of the Fourteenth Amendment so requires. What we have instead is a reasonable, but hardly an airtight, argument that it does. Given the enormous stakes for democratic self-rule, that is not enough. Sober fidelity to the text of the Constitution neither demands nor permits the sort of judicial supremacy respondents invite us to indulge. The judgment of the Supreme Court of Colorado is reversed."
I’m giving it a 50-50 chance that the SCOTUS judgment will be unanimous.
UPDATE: The Washington Post agrees, https://www.washingtonpost.com/opinions/2023/12/20/colorado-14th-amendment-trump-insurrection/
The left simply makes any argument it wants when it needs to. We know for decades the left insisted the USSC was vital to protect individual rights from unfriendly majorities. The second the USSC started to rule the other way it became illegitimate. Same with the electoral college and everything else.
“Legitimacy of the court” means decide the way the left wants them too.
The court is most legitimate when it is allowing the citizens to make decisions by voting rather than mandating from the bench.