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Eminent legal scholars think the Constitution makes Donald Trump ineligible for office; critics of the idea worry that using the Fourteenth Amendment will create an uncontrollable political weapon.

First, here are three new stories from The Atlantic:

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A Constitutional Dilemma

For weeks, legal scholars and public intellectuals have been debating whether Donald Trump is constitutionally ineligible to run for president again. Six voters in Colorado filed a lawsuit last week that will test this theory. If you’re confused, or uncertain whether this is a good idea, join the club: I change my mind about it roughly once every 12 hours.

Let’s review some basic civics. Here’s Section 3 of the Fourteenth Amendment, passed by the U.S. Senate in 1866:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

At the time, the section’s intention was to prevent the secessionists of the Civil War from walking right back into power in the states where they’d just been defeated. Confederate states were required to ratify this amendment as a condition for regaining representation in the American legislature, and it was finally ratified in the summer of 1868.

Two of America’s great legal minds, the retired conservative federal judge Michael Luttig and the liberal law professor Laurence Tribe, have argued that Section 3 automatically renders Trump ineligible for office. “The clause,” they wrote in The Atlantic last month, “was designed to operate directly and immediately upon those who betray their oaths to the Constitution, whether by taking up arms to overturn our government or by waging war on our government by attempting to overturn a presidential election through a bloodless coup.”

January 6 was a violent attempt to overthrow the constitutional order, for which many people have been convicted of seditious conspiracy. Many more have gone to prison for their actions at the Capitol that day. And they were all there at the urging of Donald Trump, who is now under criminal indictment for multiple felonies stemming from this attempt to subvert American democracy.

I am convinced by this reasoning. Case closed. Take Trump’s name off the ballots.

Well … not so fast. My friend and colleague David Frum believes that all of this talk about using the Fourteenth Amendment is “a fantasy.” David’s argument is that the amendment is, if not an anachronism, a peculiar part of our Constitution whose meaning was clear in 1866 but whose relevance has passed. He warns us not to think of Section 3 as a quick and easy “cheat code” that can obviate Trump’s renomination.

David raises some important practical questions. For one thing, who will make the determination that January 6 was “an insurrection or rebellion”? I think it was, but until things change in this country, The Tom Nichols Institute of Constitutional Adjudication has no power to make its very sensible rulings stick as a matter of law. (Also, I should perhaps point out that Trump has pleaded not guilty in all four indictments.)

Luttig and Tribe assert that Section 3 does not explicitly require such convictions or determinations, but that’s because in 1866 the “rebellion” was obviously the Civil War and the Union Army, as the local authority in the rebellious states, made the on-site determination of who could run for office. David’s correct to predict that invalidating Trump’s candidacy based on “aid and comfort” to an “insurrection” would plunge the country into eternal litigation about what, exactly, all those words mean.

Likewise, how would Trump actually be removed from the election? There is no single national “ballot”; Democratic secretaries of state would have to strike his name from their state ballots, after which Joe Biden would win the Electoral College. But as David writes, Biden would only be “kind of” reelected, in a result that nearly half the country would view as illegitimate. “The rage and chaos that would follow,” he warns, “are beyond imagining.”

David makes a political point that is also worth at least some concern. “If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as ‘aid and comfort’ to enemies of the United States.”

Lest anyone think Republicans would have enough sense to forgo weaponizing important parts of the U.S. Constitution merely for trollish political theater, let us note that as of this morning, House Speaker Kevin McCarthy has ordered up an impeachment inquiry into President Joe Biden. This effort will likely backfire on Republicans (if it even gets out of committee), as would attempts to remove Democrats from ballots on a Section 3 objection. But clogging the courts with inane Republican lawsuits would be another deep bruise on the American constitutional system of government.

What a killjoy. Because after reviewing his arguments, I now agree with David.

By temperament, I was overall more inclined to agree with David’s prudential arguments anyway. But Luttig and Tribe make a simple and forceful point that still sticks in my teeth: The Constitution says what it says, and it doesn’t stop saying it just because enforcing it would be hard to do or because bad actors will use it for political mischief.

Indeed, fidelity to the Constitution should be the core of principled opposition to Donald Trump’s continued presence in our public life. Of course, he’s unfit for office for many reasons; he’s vulgar and ignorant and narcissistic, but so are many other people who have made their way into elected office. The singular danger that unites so many of Trump’s opponents, however, is that he has shown himself to be an avowed enemy of democracy, the rule of law, and the Constitution of the United States. How can we flinch now?

And yet I, too, am hesitant to open a legal Pandora’s box. It might not be constitutionally pure to worry about things such as protracted lawsuits and cheap Republican stunts, but the nature of our current political troubles demands a decisive and final answer to Trump’s attempts to destroy the Constitution, and here David makes the strongest of all possible points: The only sure way to stop Trump is with a resounding and undeniable defeat at the ballot box.

Related:

The Constitution prohibits Trump from ever being president again. The Fourteenth Amendment fantasy

Today’s News

Five former Memphis police officers have been indicted on federal criminal charges in connection with Tyre Nichols’s death. At least 5,000 people are dead and thousands more are believed to be missing after severe flooding and dam collapses in Libya. The United States and Iran are moving forward with a prisoner-swap deal. Five American citizens will be released in exchange for five Iranian citizens and the release of $6 billion in frozen Iranian funds.

Dispatches

Up for Debate: Conor Friedersdorf compiles reader perspectives on whether racial “color-blindness” is possible.

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Evening Read

Photo-illustration by Vartika Sharma. Sources: Steve Pyke / Getty; Harry Borden / Contour by Getty.

From Feminist to Right-Wing Conspiracist

By Helen Lewis

In 2019, a mnemonic began to circulate on the internet: “If the Naomi be Klein / you’re doing just fine / If the Naomi be Wolf / Oh, buddy. Ooooof.” The rhyme recognized one of the most puzzling intellectual journeys of recent times—Naomi Wolf’s descent into conspiracism—and the collateral damage it was inflicting on the Canadian climate activist and anti-capitalist Naomi Klein.

Until recently, Naomi Wolf was best known for her 1990s feminist blockbuster The Beauty Myth: How Images of Beauty Are Used Against Women, which argued that the tyranny of grooming standards—all that plucking and waxing—was a form of backlash against women’s rights. But she is now one of America’s most prolific conspiracy theorists, boasting on her Twitter profile of being “deplatformed 7 times and still right.” She has claimed that vaccines are a “software platform” that can “receive ‘uploads’ ” and is mildly obsessed with the idea that many clouds aren’t real, but are instead evidence of “geoengineered skies.” Although Wolf has largely disappeared from the mainstream media, she is now a favored guest on Steve Bannon’s podcast, War Room.

All of this is particularly bad news for Klein, for the simple reason that people keep mistaking the two women for each other.

Read the full article.

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P.S.

I was born at the dawn of the 1960s, and I came of age in the 1970s. I am too young to remember much of the ’60s—well, except that I was completely nuts about the original Batman TV series—and the less said about the ’70s, the better. My time was the ’80s: MTV, new wave, Hill Street Blues and Cheers on television, Stripes and Ghostbusters at the theater. And Ronald Reagan—for whom I voted, but we’re all friends here, so let’s not open that can of worms.

That’s why it’s been such a joy to discover a TV show I somehow missed when it came out in 2014: Red Oaks, a coming-of-age series whose first of three seasons is set in 1985. The title refers to a Jewish country club in New Jersey, where young David Meyers works as an assistant tennis pro while trying to figure out his life. It’s funny, and it’s sweet without being cloying, especially when Paul Reiser, as the club president, counteracts the sugar with desert-dry sarcasm. The musical choices are perfect 1980s archeology: Love and Rockets, Culture Club, Roxy Music, and even a one-hit wonder from Roger Hodgson that I thought no one remembered but me.

I haven’t finished the series yet, but I’m taking my time. I was just a shade older than David Meyers and his friends in 1985, and I’m enjoying revisiting some good years back there.

— Tom

Katherine Hu contributed to this newsletter.

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The Democratic president, angling for reelection in 2024, called for unity 'regardless of our political backgrounds'.