Friday, May 31, 2024

The Constitution Turned Upside Down

Gerard N. Magliocca

The Supreme Court's erroneous decision in Trump v. Anderson is more obvious after Donald Trump's first criminal conviction. 

Section Three of the Fourteenth Amendment established that the appropriate sanction for engaging in insurrection against the Constitution was civil disqualification from office, not criminal punishment. Trump v. Anderson reached the opposite conclusion. The Court there held that states can sanction insurrectionists holding or seeking federal office only through criminal law. And that is what New York and Georgia are now attempting to do. 

I don't think that these cases would have been brought if Trump was not a candidate for President. Even if I'm wrong about that, the damage done by these prosecutions is much greater because he is a candidate. If Trump loses in November, many people will conclude (not unreasonably) that the conviction did him in. This will encourage future state prosecutions of candidates for federal office either as a Section 3 proxy or out of partisan revenge. That's more dangerous than the fear expressed by some of the Justices that there would be a retaliatory cycle of state ballot exclusion. 

One final thought--the Supreme Court's refusal to say whether Trump is constitutionally eligible to be President, combined with Trump's state conviction, increases the probability of instability following the election if Trump wins. There is a May 1914 quality to the unwillingness of people thus far to think hard about that problem.


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