2024 Election, General, Politics

Congress Must Act to Avoid an Ugly Finale to the November Election

The Colorado and Maine decisions to strike former President Trump’s name from the ballot on Fourteenth Amendment grounds have injected a dangerously destabilizing issue in an election already riven with suspicion and rancor.  Trump has now filed an appeal of the Colorado decision with the US Supreme Court, but similar challenges are still pending in 17 other states. The American people deserve a quick and thorough resolution of the issue by not only the Court, but also by the Congress as well

The good news is that the Court has scheduled oral argument on the case for February 8, an extraordinarily expedited process that shows it is well aware of the importance of resolving the case as soon as possible. As a result, it will probably issue a decision by May.

The bad news is that any such decision will only resolve the main legal issues in the case and not the ultimate factual issue of whether Trump “engaged in insurrection” or gave aid and comfort to one on January 6, 2021 and thus should be barred from the presidential ballot. Former Attorney General Bill Barr accurately pointed out the deficiencies in the original trial at the district court, which lasted only five days and was largely based on hearsay evidenceAny real trial that could develop a sufficient record for a final decision would take months. The record in the Colorado case clearly fails that test.

However, there are crucial legal issues that the Colorado case raises on which the Court can rule and help speed the resolution of this litigation: 

  • Is the office of President subject to the prohibition of section 3 of the Fourteenth Amendment?
  • Did the Colorado courts have jurisdiction to hear and adjudicate the issue or is the prohibition essentially only enforceable by Congress after the election?
  • Is a conviction for insurrection required before application of the ban?

While not directly raised by the appeal, the Court should take the opportunity to state what the standard of proof should be for a suit under Section 3. Is it the preponderance of the evidence standard usually used in civil cases or the higher “clear and convincing” standard required in fraud and similar cases?   

I believe the Court will likely hold that (1) the president is subject to Section 3; (2) the courts have jurisdiction; but (3) reverse and remand the case to the Colorado courts for a full trial on the merits, hopefully with an instruction on which standard of proof to use. Thus, far from being resolved, this legal controversy will continue to fester through and possibly after the 2024 election.

Here’s where it becomes ugly. While the Supreme Court can eliminate these initial issues, this means the various challenges at the state level will continue through the election.  A final decision may not even be reached before the November election. Thus, in November American voters would have to choose between Joe Biden with all of his physical infirmities and unpopularity, and a candidate who may be disqualified from assuming office at any time during the election. If Trump nevertheless wins, he may then be refused office despite the results.  We would see an unprecedented constitutional crisis that deprives the new president of any legitimacy and cripples the nation during one of the most perilous series of domestic and international crises in American history.

This issue must be settled promptly and before the November election. Moreover, it is too important to be decided in piecemeal fashion at the state court level. Congress has the power to avoid this chaos by providing that Section 3 claims be brought exclusively before a three-judge federal court with any appeal going directly to the Supreme Court. This process already exists for certain civil rights cases under 28 USC Section 2284.  The applicability of Section 3 to a presidential candidate certainly involves a fundamental constitutional right. However, it would still require an amendment to the current statute to implement it.  Congress should immediately pass legislation to apply Section 2284 to Fourteenth Amendment Section 3 claims to save the country from the pain a prolonged, fractious litigation of this issue would inflict on our already fragile political system. 

General, Politics

Happy 165th Birthday, TR !

In a time when many of our leaders lack courage and a commitment to the American people, Theodore Roosevelt stands out even more as beacon for the nation. He not only talked the talk of American patriotism, but lived it in his life. The American people deserve leaders who do the same, but, in the end, it all begins with us. We will get the same kind of leadership that Theodore Roosevelt provided when we demand it. It’s all up to us!

Domestic Policy, General, Nationalist Theory, Politics

The Crisis of the American Spirit – The Death of Community Spirit

By 1950, America was astride the world in political and economic influence and unified at home behind a strong federal government that led the fight against fascism and communism. The political culture arising from World War II and the beginning of the Cold War rested on a pride in American values and a willingness to sacrifice for the country in the form of the military draft and the continuation of high wartime tax rates. This commitment to a nationalist pride and a strong federal government in the tradition of Theodore Roosevelt continued past his cousin Franklin’s presidency and into the Eisenhower administration.

However, there was a dark side to this collective unity. This was the era of the organization man, who subjugated his own dreams to the goals of a faceless corporate machine. Meanwhile, a people whose presence in America predated many more recent immigrants by centuries were still mired in legal and economic second-class citizenship. The Supreme Court’s decision in Brown v. Board of Education marked the beginning of a long struggle to end this discrimination. Legal segregation would not end until the end of the 1960s. Economic integration proved to be much more difficult and practically required a collective societal commitment to rival that of World War II.  However, at a time when a national call to a moral equivalent of war necessary, an unrelated movement arose that sapped our ability to achieve such unity.

Ayn Rand and the Rise of Objectivism

In 1957, a Russian emigre to the United States named Ayn Rand published the book “Atlas Shrugged”, which tells the story of a brilliant engineer forced to give up his labor and genius for society and the state. In the chapter “This is John Galt”, Rand set forth the premises of her philosophy of Objectivism, which posited a radical form of libertarian individualism. To Rand, man’s highest responsibility was to think for himself and the achievement his own happiness was his highest moral purpose.  He owed no moral obligation to others or to society. and existed for his own sake. The only purpose of government was to protect these rights from infringement by physical force, the worst form of which was governmental force and regulation. In the Objectivist world, the thinker, inventor and industrialist was the highest form of being. Those who were less intelligent or simply performed labor for others were considered inferior.  With barely veiled contempt, Rand said,” The man at the bottom who, left to himself, would starve in his hopeless ineptitude, contributes nothing to those above him, but receives the bonus of all their brains”.  

Objectivism stood in sharp contrast to the sense of national sacrifice and unity necessary to achieve the victory of World War II.  It heralded the rise of the celebrity athlete and CEO, whose right to market power and exorbitant compensation would now be considered almost sacred. Moreover, it supported the idea that big business and monopolies were a positive good no matter what the secondary effects on family life or socioeconomic stability were. There was no question that the deadening sameness and self-satisfaction of post-war America needed to be challenged, but not by the rejection of any obligation to the broader society.

William F. Buckley and Conservative Economics

Meanwhile, in Connecticut, a wealthy intellectual named William F. Buckley, Jr., was developing a macro version of the new libertarianism for application to broader public policy issues. While Rand and Buckley knew of each other, Rand’s strident atheism clashed with Buckley’s devout Catholicism. Buckley’s conservatism was motivated mainly by a traditionalism that, as he wrote in the premiere edition of his magazine The National Review, “stands athwart history, yelling Stop, at a time when no one is inclined to do so.”  Like Rand, he promoted an economic libertarianism that opposed government social programs and business regulation while sharing Rand’s strong anti-Communism.  While Buckley opposed racial segregation, he was a supporter of Sen. Barry Goldwater’s presidential candidacy, whose libertarianism was highjacked by Southern segregationists and would eventually overcome the federal nationalism of Theodore Roosevelt in the Republican Party. 

The Divisive Effects

The new libertarianism of Rand and Buckley would be used to justify extremes they would condemn, such as the hippie philosophy of “If it feels good, do it” and the opposition to desegregation based on states rights.  However, the Pandora’s box had been opened, and the damage was done to the American community spirit and its ability to rise to the heroic mood necessary to solve national challenges. Americans turned inward to their own interests – the “bowling alone” society. The integration of African -Americans slowed to a crawl as the manufacturing jobs that had propelled white immigrants to success disappeared.  It became almost impossible to focus national attention on the need to re-tool education and manufacturing to meet the European and Asian competition. Instead, a new belief in the wisdom of free trade made the resulting socioeconomic dislocation appear inevitable and even desirable. While the technology and information revolutions revived American opportunity and dominance for several decades, intellectual property proved to be hard to protect from theft by other countries.   The ultimate expression of this “get rich quick” economic libertarianism was the decision to admit China to the World Trade Organization despite its mercantilist practices.  American companies flocked there to take advantage of cheap labor, which further eviscerated American manufacturing. At the same time, it handed over much of American intellectual property to Chinese control simply for the short-term profit opportunities.

In the end, the exaltation of individual rights and denigration of community made it more difficult to rally the nation to sacrifice even in the face of threats like the COVID pandemic. American society atomized into internally isolated individuals encouraged to compete for personal advantage rather than cooperate to overcome adversity.  The resulting division made it difficult to confront the rising nationalist unity in Russia, China and much of the Global South.  Then, instead of defending American nationalist unity and community spirit, progressives chose to make the division worse by encouraging a series of distinct group unities transcending borders, and then pitting them against their fellow Americans.

Next – The Rise of Identity Politics