Put up or shut up
Holding firm to one’s convictions and principles is easy when they are not being tested. Thomas Paine spoke of it eloquently in December of 1776:
“THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.”
We live in such times again. We’ve simply traded Redcoats for red hats. We watched the latter sack the U.S. Capitol on Jan. 6, ,2021 in service to a man and a movement that rejects the principles for which Paine and the Continental Army fought. When times required them to put up or shut up on the principle of “created equal” spelled out in the document that launched the American Revolution, when the democracy the founders fought to establish failed to reelect their plus-sized, gilded princeling, they cut and ran.
So here we are, faced with whether or not to stand with language in the 14th Amendment that disqualifies any woman or man who “engaged in insurrection or rebellion” against the United States from elected office or, like the red hats, to cut and run.
Challenging Donald Trump’s eligibility, some suggest, “would be ‘naive’ and a ‘fantasy,’” Greg Sargent recounts this morning. “One commentator insisted that Americans should just ‘let it go.’”
Citizens for Responsibility and Ethics in Washington (CREW) and Free Speech For People (FSFP) mean to stand with the Constitution on the matter. Sargent reminds readers that similar constitutional challenges to candidates’ eligibility are neither rare nor naive, but recent ones may have slipped down the memory hole.
“Birthers,” Trump most prominent among them, promoted lawsuits against Barack Obama’s candidacy. They leveraged state mechanisms in place for just such challenges:
In 2016, a voter challenged Sen. Ted Cruz’s candidacy in Pennsylvania, arguing that he was born in Canada, but the state supreme court ruled for Cruz.
In another example, eligible voters in Illinois and New Jersey can try to take action via an administrative agency process to prove a candidate is disqualified, according to CREW’s analysis. That agency’s ruling is subject to appeal in state court, likely heading to the state supreme court — and, possibly, the U.S. Supreme Court.
CREW and FSFP will file challenges to Trump this fall. In which states? Wait and see.
Here’s the rub: This only has to work in one state to advance to the Supreme Court. And that’s not wildly implausible.
Yes, many state supreme courts will uphold Trump’s eligibility. [Justin] Levitt, the Loyola Marymount expert, expects them to rule broadly that states don’t have the power to determine Trump’s qualification status under the 14th Amendment in the first place.
This is where things get complicated. State courts often make determinations on whether candidates are qualified (as with Cruz). But Levitt draws a distinction between straightforwardly factual requirements (the candidate must be a natural born U.S. citizen) and ones that demand interpretation (the candidate must not have committed insurrection as defined by the 14th Amendment).
State courts will likely rule that the latter “is not the sort of qualification that a state is free to make a determination on,” Levitt told me, because it’s more of a “political judgment” as opposed to a determination of “fact like age or citizenship.”
“The sky won’t fall if states follow their procedures and make a determination,” Indiana University law professor Gerard Magliocca told Sargent. “This has become serious enough that it must be addressed.”
The world was witness to the faithlessness of the Trump mob. Less visible are the daily actions in GOP-controlled legislatures to render elections pro forma, theater meant to keep nuevo royalists comfortably ensconced in power and as distant from the will of the people as the Atlantic Ocean kept George III.
Jesus was particularly harsh on the hypocrites of his day. In our day, hypocrisy is recorded digitally (and inconveniently), as MSNBC’s Mehdi Hasan put on display recently. For Hasan’s targets, as our proprietress says, shamelessness is their superpower.
If it’s to be a showdown with them, then as Jake (Kevin Costner) says in Silverado, “Come on, boys! Let’s start the ball!” Put up or shut up. Let’s have this out.