Monday, February 05, 2024

A Deep Disagreement

Bruce Ackerman

I'm afraid that Marty and I continue to disagree. For present purposes, it will suffice to focus on his assertion  that "Colorado's ballot exclusion [of Trump from the Republican primary]  wouldn't have the slightest legal (or even practical) effect on whether Trump assumes office." 

This simply isn't true, regardless of whether the Supreme Court upholds or undermines the decision by Colorado (and Maine and other states) to exclude Trump under the Disqualification Clasue. Take a look at today's article in Politico: Supreme Court Shocker? Here’s What Happens if Trump Gets Kicked Off the Ballot: Legal scholars, national security experts and political analysts imagine the extraordinary fallout that would ensue.

I'm sure that readers of Balkinization can add to the Politico scenarios in ways that defy Marty Lederman's confident predication that Colorado's exclusion of Trump will have no "legal" or "practical" effects. 

Whether Marty likes it or not, this country is confronting one of the greatest constitutional crises in its entire  history. It is for this reason that Smith v. Allwright is of central importance, even though it has not been given the significance it deserves in the intense debate provoked by Trump v. Anderson. As a leading constitutional lawyer, Lederman has an obligation to confront Allwright's  decisive rejection of his view that, the Reconstruction Amendments are "applicable only to general elections." Instead he should, like other constitutional scholars, recognize that the Supreme Court decisively rejected this position in 1944, and explain to the larger public that, in confronting Colorado's decision to eliminate Trump from its Republican primary in 2024 primary, it would be illegitimate for today's Supreme Court to defy the principle of stare decisis -- and that it should assure that the Fourteenth Amendment, including Section 3, is enforced in party primaries as a matter of "fundamental constitutional principle," as Justice Stanley Reed insisted 75 years ago.

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