The 14th Risk

 People are buzzing about suits using the 14th Amenment to stop Trump from running. 

The 14th Amendment: Following the Civil War, the 14th--among other things designed to shore up the newly re-unified country--states that a person who committed Treason against America can't hold office. At the time, this was pretty easy to understand and apply: if you fought for the Confederacy, you can't get into office.

Today, though, it's a bit muddier. For one thing, it doesn't even mention the presidential office (lower ones--yes, and a catch all, yes--but not the presidency). For another, it doesn't say you must have been convicted of Treason against the US. Just that you can't have done it. What if I think Biden committed treason against the US? Do I then have to prove it? Or not?

Finally, like the other 14th clause about not questioning the faith of the union's debt, the clauses put in there (to stop southern states from voting to default) made sense then and were clear--but today? Can we default if we don't question America's good-for-itness?

No one knows. This stuff has never been tried.

Okay--but What If?

It's pretty clear that Trump tried to overthrow an election. It'll likely be proven in court. Likely appealed to SCOTUS. But how long will that take? Well after the election, most likely. Also: he probably won't be convicted of actual treason--the charges seem to be fraud. So okay, it's not a perfect fit--but clearly, the spirit of the amendment is still a fit.

How it works is this: in various (all?) states a suit is brought to disqualify Trump (this happened to Cruz: a citizen claimed as he was born in Canada, he was ineligible. The courts ruled that he was a big enough asshole to be considered American regardless of his place of birth, and the rest is history). This stuff isn't new news.

Now--most states will likely reject the case. But will all of them reject it? Not clear. If one takes it on and rules that yes, the Jan 6th cases 'finding of fact' is that he ought be included under the 14th, then it goes to appeals.

Now, SCOTUS will probably reject the finding--but for sure? No. Not for sure. Under Originalist Doctrine, they could well find reason to rule against herr trumpenfuerer. What then?

Cascading Crisis

This breaks down into a few possible problems:

1. Trump isn't on the ballot in a swing state. This is the WORST scenario. If the suit removes Trump from the ballot in a state he might possibly win, then Trump's re-election is probably sunk right then and there. This is dousing America with gasoline and throwing a road flare in. If/when SCOTUS, now needing no balls to rule how their people want them too, overturns it, it turns out that Trump was in fact, robbed (well, arguably).

2. Courts rule he's ineligible. This is the next "worst" case. Let's say that district courts rule he's ineligible and he's sunk. Even one district would end him. So before it goes to SCOTUS, he's out. Now, this might be overturned--if SCOTUS upholds the originalist intent? What then?

Well, the sad fact is that Trump's base--and all the people who'd like Trump--won't buy it. Worse: the super set of voters who hate Biden won't buy it. Depending on the calender, the Red Team might not even get a vote. If there's no alternative ready to go, who else's name is at the top of the ballot? What if this is after the convention. Is it his Veep? Really? The point is that even if the 14th "works" and "works all the way up," because of the compressed timing of this, there is probably a giant mess of things with no way to fix it.

Yes, Biden is president--but now the Red Team has even more reason to hold that the process is broken. A counter example would be if someone accused Biden of treason for . . . forgiving student loans or some shit . . . and courts ruled that was enough to get him kicked off.

Would Democrats, you know, buy that? Uh--no. No they would not--but to the deluded half of the country that wants Trump, that's how they see things: the charges are bullshit and the decision is politically motivated.

3. It's tried and goes nowhere. At that point, liberals can start saying "well, hell, these amendments don't really mean all that much do they?" They're not wrong. The 14th isn't terribly written--certainly no worse than the 2nd Amendment. Things that seemed clear then look less clear now--but the intent is clear and it seemed like a good idea at the time.

The right, currently, wants to get rid of a bunch of amendments other than the 2nd. If the 14th can't stop the credit of the US from being questioned or authorities who engage in coups from holding office, what do we expect going forward?

So this is all a risk.

The Omnivore Thinks: Go for it. If Trump runs and wins, there won't be a republic. Part of the 'if you can keep it' involves learning the lessons of the Civil War.