It is January 6, 2023 and in an even more depressing turn than I could have imagined, numerous so-called liberals joined the crowd of conservatives calling for Colorado’s Supreme Court ruling disqualifying Trump from the ballot on the basis of the 14th Amendment to be overturned. Governor Gavin Newsom is on record as disagreeing with any efforts to keep Trump off of California’s ballot. Lawrence Lessig has also added his name to the list of those for whom the plain text of the 14th Amendment is merely a suggestion. Jonathan Chait’s argument in favor of ignoring section 3 of the 14th Amendment is rightfully skewered by Adam Serwer in The Atlantic.
When even conservative law professors who are active with the Federalist Society conclude that Trump engaged in insurrection (as indicated in a law-review article Serwer links in his piece, and reported by the New York Times months before the Colorado Supreme Court ruling), it is difficult for me to conclude that anything other than cowardice motivates the opposition from certain professional liberal (and centrist) members of the chattering class. If Mitch McConnell can call January 6th an insurrection, then it was. Serwer describes January 6th this way:
The mob that attacked the Capitol on January 6 was the culmination of a series of efforts to overturn the election results, which included not merely legal appeals or extreme rhetoric—both of which are constitutionally permitted—but the use of the authority of the presidency to pressure state legislators to unlawfully overturn the elections in their state, to coerce the Department of Justice to provide a false pretext for overturning said results, and to intimidate then–Vice President Mike Pence into using authority he did not have to do the same, a request he nearly tried to fulfill. The failure of all of these schemes rested not on a lack of intent, but on not having consolidated federal power in a way Trump and his advisers are openly planning to do in a second term should he prevail in November.Adam Serwer, Who’s Afraid of Calling Donald Trump an Insurrectionist?, The Atlantic, January 5, 2024
In this description, Serwer reminds us that Pence actually tried to fulfill Donald Trump’s wishes, contrary to the narrative of personal integrity and heroism he crafted for himself. It was former vice president Dan Quayle telling Pence he lacked the power to do what he was contemplating that ultimately tipped the balance.
This line from the last graf of Serwer’s piece is perhaps its most incisive:
If the Constitution’s provisions apply only when they are popular, then the Constitution is meaningless.Adam Serwer, Who’s Afraid of Calling Donald Trump an Insurrectionist?, The Atlantic, January 5, 2024
This line is especially important because the Reconstruction Amendments which intended to give full citizenship to the formerly enslaved while ratified, were not broadly popular. President Lincoln was assassinated by John Wilkes Booth before even the first of the 3 amendments was ratified. States in the former Confederacy enacted Black Codes to circumvent the 13th Amendment. The 14th Amendment was necessary in order to kill the black codes because Andrew Johnson (who became president as a result of Lincoln’s assassination) used the office of president to oppose the full citizenship of formerly-enslaved black people. Reconstruction (which we too often fail to study) was ultimately abandoned by the federal government in the interests of a false and hollow unity. The Jim Crow laws that arose in the aftermath of Reconstruction’s abandonment did so in direct defiance of the Reconstruction Amendments. For black citizens living in southern states, the Constitution was meaningless. The Great Migration of this country’s black citizens out of the south to points north, midwest, and west was their response to the federal government’s abdication of its responsibility to provide them equal protection under the law.
Professional opinion-havers calling on the Supreme Court to overturn what Colorado and Maine have done have decided that the full citizenship of black people in this country should again be subject to the popular will. History tells us what happened the last time the country made this decision. But far more people than just black people will be harmed if the whims of whoever holds power decide what parts of the Constitution apply and what parts don’t.