Friday, July 05, 2024

The Anti-Banana Republic Principle

Gerard N. Magliocca

Will Baude has an excellent op-ed in today's New York Times on the Court's just-completed Term. He points out there that the Court deviated from its originalist methodology in Trump v. Anderson and Trump v. United States in favor of a consequentialist approach. I want to add a different spin to that point.

One thread that connects these two cases is what I will call an "anti-banana republic" principle. It's not just that ballot exclusion of leading candidates and the criminal prosecution of ex-leaders are seen as contrary to our tradition. It's that they are seen as a tradition in unstable democracies or failed states. During the Trump v. Anderson litigation, I often heard the claim that: "Keep a major presidential candidate off the ballot? That's what they do in banana republics." People make the same point about throwing former leaders into jail. Since we are not a banana republic, the argument goes, those remedies are wrong. (Amicus briefs in both Trump cases invoked the banana republic trope.)

Of course, this is not a textual or originalist principle. (The term "banana republic" was apparently coined by O'Henry around 1900.) Nor is it capable of clear or even-handed application. Suppose an opinion said that regulations to limit corporate power in politics were justified because banana republics are typically places where corporations dominate the state (think of the Cuba scene in "Godfather II"). I think that is a plausible articulation of an anti-banana republic rule that would get torched by most conservative scholars. Perhaps we need an article on "Banana Republic First Principles."  


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