THE COLORADO DECISION IS CORRECT AND THE SUPREME COURT SHOULD REVERSE IT

This Supreme Court is a disgrace. When it wants to, it asserts that it relies on "originalism" (what the founders meant when they wrote the words) or "textualism" (the plain meaning of the text as written). When the majority of the court doesn't like the result produced by that method, it simply ignores those concepts, or sometimes misstates the facts, or just creates new decisional principles. (Dobbs is a perfect example.)

Additionally,  in order to secure confirmation of their positions on the court, at least half of the conservative wing has misled Congress and the public about their respect for precedent. Add to that their insistence on the prerogative of not being bound by the code of ethics binding on all other federal judges, and their failure to modify that position by adopting a meaningful ethics code for themselves. At least one, possibly two of their number have accepted gifts they shouldn't have accepted and then failed to report them, as the rules required. Moreover at least one of these judges has refused to recuse himself when it was clear that he and/or his spouse had an interest in the outcome of the case.

As a result, this court has the lowest public standing of any in my lifetime. They are on the brink of constitutional catastrophe. Almost 200 years ago, President Jackson commented about a Supreme Court decision involving a state's land claims,  "John Marshall has made his decision now let him enforce it." Watch out Messrs. Thomas, Alito, et, al. lest you bring the court (and our country) to its knees.

What has this to do with the recent decision by the Colorado Supreme Court to ban Donald Trump from running for president in 2024?

 Everything.

Trump, naturally enough, has appealed the 4-3 decision to the Supremes. That court has the option of taking the appeal or not. If they were true textualists or originalists, they would agree with the conclusion of the Colorado court and not take the appeal. There is no doubt that Trump was deeply and intensely involved in an attempt at insurrection. January 6 was not a sudden accident. It was part of a plan, and Trump was the leader. He did everything he could to force that march on the Capitol, and even tried to join it. Once it turned ugly, members of Congress barricaded themselves in their hiding holes, and the floors of the Capitol turned slippery with blood, Trump not only refused to use his power to stop the carnage, he spurred the rioters on and approved of their effort to hang the vice president. 

The 14th Amendment makes plain that anyone who had previously taken an oath of office of the United States, who has engaged in an insurrection, or given aid and comfort to those who have done so, shall not hold any office, civil, or military, under the United States." Trump clearly fits that definition.

There was no "due process" failure here. The Colorado District Court took detailed evidence respecting Trump's participation in the insurrection and effort to block the transfer of power to his successor chosen by the electorate.  The dissent -- that The President was not an "officer" of the United States and therefore the 14th Amendment did not apply to him, --is absurd.  There is no doubt but that the Colorado court got it right.  Were the Supremes to reject the opportunity to review the decision would relieve some of the negative opinion of the six conservative justices, three of whom were appointed by Trump. It would make them seem like real judges, doing real judicial work, and spike some of the criticism of this court.

But I suggest that the court should, in this case, employ the dishonest approach it has used with respect to other questions. This time it should ignore textualism and originalism, it should ignore the language of The Constitution, find (or manufacture, as they have done before) some procedural rule and thereby save our democracy by reversing the Colorado decision.

There are currently similar challenges in 16 states. There is no end to the legal issues involved in each decision. There will be due process issues, obvious political issues, state law procedural issues, and there is no way all of these states could reach a final conclusion before election day in November 2024.

Most important, the 2024 election would be a nightmare. The winner would not have been elected by the United States, but would've been elected by only some of the "United States", i.e., the ones that didn't ban a popular candidate from running. Having local state governments decide which candidates can run and which cannot run for president is as close to the definition of a Banana Republic as you can come. It certainly is not what the founders expected in 1787, or the drafters of the 14th Amendment in 1866, and it's not what the whole of this country expects for 2024. If the aim is to protect American democracy, having each state decide which candidates are eligible to run for president and which are not is directly contrary to that goal. A reading of the Constitution that yields such a result is antithetical to the best interests of the United States of America.

There are enough members of the Supreme Court who are practiced dissemblers and they should put those skills to work on this issue and find a way kill off this movement in Colorado and elsewhere. I have confidence in their ability to do so.

A bientot. 

...........................

This blog is public and can be forwarded at will.

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">. 

THE GREAT ESCAPE

Q: Is a call for genocide of all Jews a violation of the University of Pennsylvania's Code of Student Conduct”?

The question sounds like a layup, but it isn't. The easy answer, and the one Penn President Elizabeth McGill should have given to Congresswoman Stefanik was “Absolutely!" 

That answer would have been politically correct, but ... .

Even assuming The First Amendment applies to Penn ("Congress [the government] shall make no make no law...abridging the freedom of speech")  it is not at all clear on the subject. Hate speech is not necessarily criminal and it could be persuasively argued the Court has sanctioned it. American Nazis, wearing their swastika armbands, were free to parade in Skokie, Illinois, despite the fact that there was a large Jewish population in that community, many of whom were holocaust survivors. Apparently, it is the Court’s view that Nazis have First Amendment rights, as do Communists, K.K.K. leaders, and those who call for the overthrow of the government.

In Brandenburg v. Ohio, the Court established a boundary of what’s ok, and what’s not on that issue. Brandenburg, a KKK leader was convicted of violating a statute that made it a crime to advocate:

 "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

The Supremes reversed his conviction, establishing a two-pronged test for speech that was beyond the protection of the First Amendment:

Speech can be prohibited if it is (1)“directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action.”

Otherwise, it is protected. 

So what about hate speech, e.g. a call for genocide? Is it part of a bull session in a fraternity house or a thousand-person rally of swastika-bearing students brandishing clubs? Is either likely to produce "imminent lawless action"? Context counts. The former may pass the Brandenburg test, while the latter may not.

S0 when President McGill said that a call for genocide was “Context dependent”, and it depended on whether“the speech turns into conduct” she was being  close to legalistically correct, doubtless having been prepared for her testimony by single-minded lawyers, not PR specialists or politicians.

And the Penn code of student conduct was. I am confident, written by the same genus of narrow-minded lawyers who prepared the witnesses and led them to the slaughter. The Code reads, in part:

“The University condemns hate speech, epithets, and racial, ethnic, sexual and religious slurs. However, the content of student speech or expression is not by itself a basis for disciplinary action. Student speech may be subject to discipline when it violates applicable laws or University regulations or policies.”

Have you ever seen such word-salad? WTF does that mean? How vague can you get? The result is the University Presidents got hounded in the press, but the strain of lawyers who trained them for the hearing, those who taught the Presidents what questions to expect and how to answer them, and who authored those Codes of Conduct, slipped away in the smoke. 

If the press named the individuals and blamed them, I missed it.

 A bientot.

....................

This blog is public and can be forwarded at will.

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.