Ross Douthat: “The Anti-Democracy Quest to Save Democracy From Trump (12/23/23) NYTimes
Hi Ross,
I suggest that you might wish to consider that the above-referenced column was incomplete:
The entire Constitution is anti-democratic by placing certain subjects beyond the outcome of elections. Justice Robert Jackson emphasized in West Virginia v. Barnette (1943) as regards the Bill of Rights and the constitution generally:
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
Your reasoning would reduce the Constitution to sound and fury signifying nothing.
Section 3 of the Fourteenth Amendment was enshrined by supermajorities in Congress and State legislatures pursuant to the amendment procedures prescribed in Article V of the Constitution. Section 3 is not a judicial fiat.
For more than two centuries since Marbury v. Madison (1803), it has emphatically been the province and duty of the judicial department to say what the law is. Interpreting section 3 as applied to Trump confessed endeavor to prevent Vice President Pence from counting state-certified electoral votes that survived 61 judicial challenges is to do what courts have been doing for hundreds of years: saying what the law is. Among other things regarding Trump’s intent in orchestrating the attack on the Capitol on January 6, 2021, Trump demanded of Pence on that morning to chose between “me and the Constitution,” and watched the violence unfold on television for 187 minutes while refusing to call law enforcement to protect Pence and his families and Members of Congress and the Capitol Police and enable the counting of electoral votes.
You wrongly conflate insurrection with rebellion. The two have different meanings, which is why both nouns are used in section 3. Your view would make “insurrection” a nullity.
If Hillary Clinton had orchestrated violence and intimidation in 2016 to prevent Vice President Biden from counting state-certified electoral votes, she should have been disqualified from holding public office ever again under section 3 for engaging in insurrection. The latter term is clearly defined in the federal criminal code, 18 U.S.C. 2383 to include actions “against the authority of the United States, “ for example, the Twelfth Amendment and the Electoral Count Act. A New Mexico state court elaborated in State ex rel. White v. Griffin, No. D-101-cv-2022-00473, September 6, 2022:
18. “The term "insurrection," as understood by knowledgeable nineteenth-century Americans and Section Three's framers, referred to an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers. 8/16/22 Tr. 26: 1-5 (Graber); see also, e.g., Case of Fries, 9 F. Cas. 924 (C.C.D. Pa. 1800) (Chase, J.); John Catron, Robert W. Wells & Samuel Treat, Charge to the Grand Jury By the Court, July 10, 1861 (St. Louis: Democratic Book and Job Office, 1861) ("Charge to the Grand Jury, July 1861"); "Insurrection," Webster's Dictionary (1828), https://perma.cc/9YPA-XN8J.
19. Judges, members of Congress, presidents, and legal experts from the era described as insurrections events such as the Whiskey Insurrection (1794) and Fries' Insurrection (1799), which involved efforts to resist the federal government's right to impose or collect certain taxes. 8/16/22 Tr. 22:23-23:3, 26:7-10 (Graber). This reflected the common understanding that an insurrection need not rise to the level of trying to overthrow the government or secede from the Union; resisting the government's authority to execute a single law sufficed. Id 24:2-8, 30:24- 31 :5.
20. Section Three's framers and nineteenth-century Americans did not understand an insurrection to require actual violence; intimidation by numbers sufficed. 8/16/22 Tr. 27: 18-28 :2 (Graber); Charge to the Grand Jury, July 1861. Thus, Fries' Insurrection was considered an insurrection even though there was only intimidation and not actual violence. A tax collector fled when marched upon by angry Pennsylvania farmers, but "there was no evidence that anyone fired a shot, anyone threw a stone, anyone threw a punch." 8/16/22 Tr. 27:15-28:2 (Graber).
21. Nor did the nineteenth-century definition of insurrection depend on the truth or morality of the insurrectionists' cause: an uprising could be an insurrection even if the participants sincerely believed their cause was just. 8/16/22 Tr. 29: 11-22 (Graber). Efforts to rescue fugitive slaves were considered insurrections even though many believed the Fugitive Slave Act of 1850 was unconstitutional and freeing slaves was a moral obligation. Id. 29: 11-22. That participants "firmly believe[ d]" they "were acting for the good of [their] country" was "not a defense to insurrection," but rather was proof they were acting for an insurrectionary "public purpose." Id. 29:11-22, 53:1-7. 2
There are zero court decisions even hinting that “insurrection” is indistinguishable from “military rebellion” as you ordain. But you are not part of the judicial department whose province and duty are to say what the law is.
Isn’t section 3 of the Fourteenth Amendment too important to be left to misinformed amateurs?
Sincerely,
Bruce Fein
Law Offices of Bruce Fein
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