Originalism: Supreme Bullshit
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”
Soon, the Supreme Court will take up the Colorado case to determine if, after trying to overthrow a legitimate election to maintain power, Donald Trump is eligible to hold the office of the Presidency of the United States.
They will almost certainly make an embarrassing hash of that ruling.
The Justices — particularly those who claim to be “originalists” — will face a dilemma. Their purported judicial philosophy states that they adhere to the strict meaning of the Constitution at the time it was written. It is a (supposed) belief that the Constitution is not, as has been argued by great minds from Thomas Jefferson to Thurgood Marshall, a living document — but rather should be read as if the words were encased in the amber of their moment’s drafting.
I stress that this is a PURPORTED belief rather than an actual conviction because — like so many Christians claiming the Bible is the Literal Word of God who then forget the inconvenient parts about rich assholes, camels, and the eyes of needles — the so-called “originalists” pick and choose when and where the stated philosophy fits their political needs. To wit, there’s no way in hell you can square Justice Scalia’s decision in the Heller case that the Constitution protects unfettered access to firearms while flat-out ignoring the “well-regulated militia” clause of the 2nd Amendment. These Justices are no more “originalists” than Joel Osteen is a Christian by the actual teachings of Jesus. In short, originalists are total bullshit — and the Colorado case will prove that once again.
In this case, Section II of the 14th Amendment, excerpted above, is at issue. It was ratified in 1868, shortly after the Civil War, to ensure that anyone who had previously a) sworn an oath to defend the Constitution and b) violated that oath to defend the Constitution by participating in rebellion or insurrection against the Republic was barred from ever holding office again. The reasoning is evident on its face: You can’t trust someone with power who swore one thing and then did the other. Thus, fuck ’em. They have to sit out the rest of the game.
By a proper originalist standard, what needs to be determined is whether Donald Trump has met both parts of that test. The first one is easy. He took that Oath of Office in front of what he claimed to be the biggest inaugural crowd in history. He swore to uphold and defend the Constitution against all enemies, foreign and domestic. The question then falls to the second test: Did he engage in insurrection or rebellion? To answer that, we must blow out the concepts and ask if words have meaning. Is it rebellion or insurrection against the Constitution to try to keep the power of the Presidency to yourself, EVEN THOUGH YOU LOST THE FUCKING ELECTION? Is engaging in an attempted coup an insurrection? Or does it have to be a coup you won???
If you say, “Nahhhh. It’s fine to try and overthrow the elected order so long as you fail,” then you’ve surrendered your right to arbitrate any damn thing because words, the Constitution, and common sense no longer mean a fiddler’s fart.
But if you look at what Trump did by actively and repeatedly attempting to thwart the will of the voters who elected Joe Biden — up to the point of launching a mob of violent attackers on the Capitol Building to beat cops, chant “hang Mike Pence,” and try to prevent the counting of the Electoral College Votes while watching the violence play out on television and doing NOTHING to end it — then the 14th Amendment is clear: He is, by a strict and originalist reading of the Constitution, NOT eligible to hold the Office of the Presidency ever again.
(To take this further, Section 3 of the 14th Amendment also provides a Congressional remedy to “remove the disability” of being barred from holding office with a two-thirds vote of both Houses of Congress. So maybe he should be going to Congress rather than the Court, right??? Ha.)
But, of course, the Supreme Court won’t see it that way, despite their originalist pretensions. As they did in the Heller case on guns, they will abandon their principles entirely for the expedience of their desires. In the end, despite their wild protestations, they will treat the Constitution like a living document and interpret the words as best fit their need. Here, that need is to keep Trump on the ballot to prevent 80 million MAGA crazies from targeting them and their families with death threats or engaging in actual Civil War.
In the end, I don’t even think they’ll be overly wrong to do so. Removing Trump from the ballot by judicial order WOULD be both dangerous and wildly unsettling to the nation. But, then again, I agree with Thomas Jefferson and Thurgood Marshall that the Constitution is a living document and must be interpreted with one eye on the lived reality of the era. See, I’m NOT an originalist. The difference is that — unlike Gorsuch, Alito, Kavanaugh, and Coney Barrett — I don’t play games with my fundamental beliefs.
There are some pundits out there speculating that, due to their “originalism” and “strict adherence to the text of the Constitution,” this Court might surprise us all and rule against Trump. But that’s predicated on the assumption that those hacks in black aren’t entirely full of shit. But they are. Just look at how all of them blatantly lied about accepting the precedent of Roe vs. Wade to get the gig in the first place. Trusting them to be ethically and judicially consistent is as foolish as debating the Beatitudes with a megachurch televangelist as he boards his private jet to his earthly paradise in the hills.
Parsing reality and politics is a lot easier when you see them for what they are — stern-faced, black-begowned frauds. Still, it’s gonna be fun to watch them squish and squirm their way to yet another ethical compromise while maintaining their distanced, well-rehearsed, objective aplomb.
Onward, and love to you all.
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P.S. If you haven’t done so already, swing by my website to read the introduction to my new book on surviving Hereditary Hemochromatosis: Incompatible With Life: A Memoir of Grave Illness, Great Love, and Survival.
