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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.

When you buy a book using a link in this newsletter, we receive a commission. Thank you for supporting The Atlantic.

As Kevin McCarthy made his televised declaration earlier today that House Republicans were launching an impeachment inquiry into President Joe Biden, the House speaker stood outside his office in the Capitol, a trio of American flags arrayed behind to lend an air of dignity to such a grave announcement. But McCarthy looked and sounded like a hostage, and for good reason.

That the Republican majority would eventually try to impeach Biden was never really in doubt. The Atlantic’s Barton Gellman predicted as much nearly a year ago, even before the GOP narrowly ousted Democrats from control in the House. McCarthy characterized the move as “a logistical next step” in the party’s investigation into Biden’s involvement with his son Hunter’s business dealings, which has thus far yielded no evidence of presidential corruption. But intentionally or not, the speaker’s words underscored the inevitability of this effort, which is as much about exacting revenge on behalf of the twice-impeached former President Donald Trump as it is about prosecuting Biden’s alleged misdeeds.

From the moment that McCarthy won the speakership on the 15th vote, his grip on the gavel has seemed shaky at best. The full list of concessions he made to Republican holdouts to secure the job remains unclear and may be forcing his hand in hidden ways nine months later. The most important of those compromises, however, did become public: At any time, a single member of the House can force a vote that could remove McCarthy as speaker.

[Read: Speaker in name only]

The high point of McCarthy’s year came in June, when the House overwhelmingly approved—although with notably more votes from Democrats than Republicans—the debt-ceiling deal he struck with Biden. That legislation successfully prevented a first-ever U.S. default, but blowback from conservatives has forced McCarthy to renege on the spending provisions of the agreement. House Republicans are advancing bills that appropriate far less money than the June budget accord called for, setting up a clash with both the Democratic-controlled Senate and the White House that could result in a government shutdown either when the fiscal year ends on September 30 or later in the fall.

GOP hard-liners have also backed McCarthy into a corner on impeachment. The speaker has tried his best to walk a careful line on the question, knowing that to keep his job, he could neither rush into a bid to topple the president nor rule one out. Trump allies like Representatives Marjorie Taylor Greene of Georgia and Matt Gaetz of Florida have been angling to impeach Biden virtually from the moment he took office, while GOP lawmakers who represent districts that Biden won—and on whom the GOP’s thin House advantage depends—have been much cooler to the idea. McCarthy has had to satisfy both wings of the party, but he has been unable to do so without undermining his own position.

Less than two weeks ago, McCarthy said that he would launch a formal impeachment only with a vote of the full House. As the minority leader in 2019, McCarthy had castigated then-Speaker Nancy Pelosi for initiating an impeachment probe against Trump before holding a vote on the matter. “If we move forward with an impeachment inquiry,” McCarthy told the conservative publication Breitbart, “it would occur through a vote on the floor of the people’s House and not through a declaration by one person.” By this morning, the speaker had reversed himself, unilaterally announcing an impeachment inquiry just as Pelosi did four years ago this month. (McCarthy made no mention of a House vote during his speech, and when reporters in the Capitol asked about it, a spokesperson for the speaker told them no vote was planned.)

The reason for McCarthy’s flip is plain: He doesn’t have the support to open an impeachment inquiry through a floor vote, but to avoid a revolt from hard-liners, he had to announce an inquiry anyway. Substantively, his declaration means little. House Republicans have more or less been conducting an impeachment inquiry for months; formalizing the process simply means they may be able to subpoena more documents from the president. The effort is all but certain to fail. Whether it will yield enough Republican votes to impeach Biden in the House is far from clear. That it will secure the two-thirds needed to convict the president in the Senate is almost unthinkable.

[Barton Gellman: The impeachment of Joe Biden]

McCarthy’s announcement won praise from only some of his Republican critics. Barely an hour later, Gaetz delivered a preplanned speech on the House floor decrying the speaker’s first eight months in office and vowing to force a vote on his removal if McCarthy caves to Democrats during this month’s shutdown fight. He called the speaker’s impeachment announcement “a baby step” delivered in a “rushed and somewhat rattled performance.” A longtime foe of McCarthy’s, Gaetz was one of the final holdouts in the Californian’s bid to become speaker in January, when he forced McCarthy to grovel before acquiescing on the final ballot. “I am here to serve notice, Mr. Speaker,” Gaetz said this afternoon, “that you are out of compliance with the agreement that allowed you to assume this role.”

If McCarthy has become a hostage of the House hard-liners, then Gaetz is his captor—or, more likely, one of several. Publicly, the speaker has dared Gaetz to try to overthrow him, but caving on impeachment and forsaking a floor vote suggests that he might not be so confident.  

The speaker is as isolated in Washington as he is in his own conference. Senate Republicans have shown no interest in the House’s impeachment push, and they are far more willing to adhere to the terms of the budget deal that McCarthy struck with Biden and avert a government shutdown. Perhaps McCarthy believed that by moving on impeachment now he could buy some room to maneuver on the spending fights to come. But the impetus behind today’s announcement is more likely the same one that has driven nearly all of his decisions as speaker—the desire to wake up tomorrow morning and hold the job at least one more day.

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The U.S. government faces a dilemma. Starlink, a private satellite venture devised and controlled by Elon Musk, offers capabilities that no government or other company can match. Its innovations are the fruit of Musk’s drive and ambitions. But they have become enmeshed with American foreign and national-security policy, and Musk is widely seen as an erratic leader who can’t be trusted with the country’s security needs. In other words, the United States has urgent uses for Starlink’s technology—but not for the freewheeling foreign-policy impulses of its creator.

The conundrum is substantially new for Washington. During World War I, wealthy industrialists, such as Henry Ford and J. P. Morgan, poured considerable resources into the American war effort: Ford’s factories produced boats, trucks, and artillery for military use; Morgan lent money. After the war, John D. Rockefeller Jr. funded the League of Nations. But Musk is doing something different. He supplies his product directly to foreign countries, and he retains personal control over which countries can obtain his equipment and how they can use it. That discretion has military and political implications. As one U.S. defense official admitted to The New Yorker, “Living in the world we live in, in which Elon runs this company and it is a private business under his control, we are living off his good graces.”

The dilemma is currently clearest in Ukraine. Starlink satellites, which Musk generously supplied at the start of the conflict so that Ukrainians would not lose internet access, have allowed for satellite-guided drones to help the Ukrainian military observe battlefield movements and target precision missiles. Experts describe Starlink’s military advantage as akin to providing an “Uber for howitzers.” But its disadvantage is Musk’s outsize role in determining the conduct of the war. That influence has come under scrutiny in recent days, with the release of excerpts from a forthcoming biography that highlight Musk’s mercurial decision making in Ukraine.

[Read: Demon mode activated]

Musk’s assent is required to maintain satellite internet connectivity in the country, and for reasons of his own, he has refused it near Crimea and imposed other restrictions that limit where Starlink services are available to Ukrainian forces. He told his biographer, Walter Isaacson, that he felt responsible for the offensive operations Starlink might enable, and that he had spoken with the Russian ambassador about how Moscow might react to them. At significant junctures during Ukrainian offensive operations, Starlink communication devices have experienced mysterious “outages.” The outages became enough of a problem that in June, Defense Secretary Lloyd Austin specially negotiated the purchase of 400 to 500 new Starlink terminals that the Defense Department would directly control for use by Ukrainian forces.

The concerns about relying on Musk don’t end with Ukraine or even with questions of temperament. Musk’s commercial holdings could expose Washington to unwanted entanglements. Take, for example, his ownership of Tesla, which has a large factory and market presence in China. In the event of an invasion of Taiwan, would Musk willingly provide Starlink terminals to Taiwanese forces—at the behest of the United States—and take huge financial losses as a result? Last October, Musk told the Financial Times that China had already pressured him about Starlink, seeking “assurances” that he will not give satellite internet to Chinese citizens. He did not make clear in the interview how he responded, but Starlink was then and remains unavailable in China.

So what is the U.S. government to do about its own entanglement with Musk? One idea that experts have floated is to invoke the Defense Production Act, which authorizes the president to direct private companies to prioritize fulfilling orders from the federal government. The Pentagon estimates that it already uses DPA authority to place roughly 300,000 orders a year for various equipment items. Using it to regularize deliveries from Starlink would be relatively straightforward and could ensure a continuous flow of devices and connectivity for Ukraine’s forces. The U.S. government could even add language to the contract mandating that decisions to turn connectivity on or off would reside with public officials and not Musk.

But what if Musk decided to contest the terms of the contract? What if his factories suddenly faced supply “shortages” affecting delivery rates of crucial devices? The DPA could serve as a hedge against Musk’s impulses, but it would not be a full guarantee against disruptions.

If the government wanted to get really aggressive, it could nationalize Starlink, taking effective control over the company’s operations and removing Musk as its head. As extreme as this scenario sounds, the U.S. government has actually nationalized corporations many times in its history: During World Wars I and II, the government nationalized railways, coal mines, trucking operators, telegraph lines, and even the gun manufacturer Smith & Wesson. Following the September 11 terrorist attacks, the United States nationalized the airport-security industry.

But past government takeovers nearly all took place under conditions of war or financial crisis. Today, no national crisis equivalent to the 9/11 attacks can provide political cover for such a move. And Musk would be sure to fight back: He built Starlink from scratch, and the company is deeply personal to him. A government takeover would be acrimonious, politically messy, and not necessarily successful.

More likely, it would be counterproductive: As a private company, Starlink can provide products that assist Ukrainian forces even while claiming that it’s simply offering a service and not taking sides. That posture hasn’t prevented Moscow from testing weapons to sabotage Starlink, nor has it stopped Beijing from developing an alternate satellite network. But the company’s independence has likely deterred U.S. rivals from targeting its infrastructure for destruction. Nationalization would change this equation and send the message that Starlink is an instrument of American power and should be treated as such.

[Read: What Russia got by scaring Elon Musk]

So if Starlink has to remain independent—but needs to be less of a wild card for national security—the government’s best bet may be to negotiate one or several agreements with Starlink to ensure its compliance with U.S. interests. Starlink could then act as something more like a traditional military-contracting company. The contracts could build in provisions stipulating that in the event of a crisis, Starlink’s regular operations would be suspended, and all manufacturing and distribution decisions would run through U.S. regulators.

Musk might find such a deal attractive. His company would get long-term government funding and a reputational boost. But government contracts also come with restrictions that would likely irk him over time—limitations on which other clients Starlink could sell to, for example. He might also balk at the implications for his other businesses, such as Tesla, in foreign markets. If he soured on the arrangement, he could terminate the contract or undermine the effectiveness of his product—for example, by slow-walking software updates or declining to invest in upgrades.

The only sustainable solution to the problem of Elon Musk is for the American market to produce alternatives to Starlink. But even here, the obstacles are legion. Musk was able to turbocharge Starlink in part because he used rockets from his adjoining company, SpaceX, to deliver thousands of satellites into space. A competitor would have to not only match Starlink’s technical innovation but also secure enough rockets to get masses of satellites into orbit. And because satellite-based networks work better the more devices come online, a rival company’s service would lag behind Starlink’s for a long period of time. So far, the efforts of would-be competitors have been underwhelming. Amazon was reportedly preparing to launch its very first satellites in May but had to put the effort on hold because of rocket testing problems.

A viable Starlink competitor may be a long way off, but U.S. national security requires the pursuit of one. The government should encourage competition in the satellite market by offering subsidies and commercial tax breaks, among other incentives, because in the long run, only diversification will alleviate pressure on the United States and its allies to conform to Musk’s whims. With a choice of providers, the United States—or Ukraine, for that matter—could choose which company it wished to contract with, and redundancies could fill the gap in the case of an unexpected supply shortage or a snag in one company’s production line.

Elon Musk’s monopoly on satellite internet technology is the product of an original idea—launching a great many low-orbiting satellites in place of a distant, high-orbiting few— and a big gamble he made with his own capital. The venture has brought him undue influence over national-security affairs that the U.S. government can’t possibly tolerate. The surest way to curtail it is to make sure he isn’t the only one innovating or launching satellites into space.

Accessing the least-crowded section of New York’s Lido Beach requires either money or insider knowledge. Anyone staying at one of the hotels on the beach can walk through the lobby, and those living in the adjoining town can waltz in through a separate gate using a residents-only electronic access code. Everyone else, though, has to come in through a public entrance half a mile away and walk over the sand.

In theory, some portion of every beach in the coastal United States is reserved for collective use—even those that border private property. But exactly how big that portion is varies widely, and in practice, much of the shore is impenetrable. Simply figuring out which patches of sand you’re allowed to lie on requires navigating antiquated laws and modern restrictions that vary by state—not to mention vigilante efforts from landowners intended to keep people out. Lido Beach is a classic (and absurd) example: Like the rest of the New York coast, it’s technically open to everyone up to the high-tide line, but actually reaching that public strip is difficult without trespassing on private land. A trip to the ocean has never been more confusing.

[Read: Beware the luxury beach resort]

Visiting a completely public spot, such as Myrtle Beach in South Carolina or Santa Monica Beach in L.A., might seem like the most drama-free way to get time in the waves. But “in some states, you don’t really have that option,” Shannon Lyons, the East Coast regional director for the Surfrider Foundation, a group that tracks beach-access laws, told me. The nearest totally public beach might be a long drive away or far from public transit. Plus, there just aren’t enough of them. Although plenty of cities and states own entire beaches outright, much of the property bordering the shoreline rests in private hands. In New York and Florida, only about 40 percent of land by the coast is owned by the government. These numbers decrease as you travel north: In Maine, somewhere from 6.5 to 12 percent of the seaboard is fully open to anyone, depending on the source; in Massachusetts, it’s less than 12 percent. Of course, the remainder of the shoreline in those states isn’t entirely private; it’s most likely just adjacent to private property. But as oceanfront land has become some of the most desirable and expensive in the country, actually getting onto the public sections of those partially private beaches has become harder and harder.

Beaches did not always hold the allure they do today. Two centuries ago, they could be used as sites of trade, not leisure, and were clogged by vendors, shoppers, and fishermen. Real-estate agents also saw little value in them: Until 1898, in Connecticut, they were often included for free with the purchase of any nearby property, Kara Murphy Schlichting, the author of New York Recentered: Building the Metropolis From the Shore, told me. But by the late 19th and early 20th centuries, a peculiar combination of factors made the beach into a cultural obsession. Doctors began prescribing trips to the sea as cures for “melancholy,” and beaches came to be seen as places of relaxation. Soon after, a new industrial work schedule gave middle-class workers weekends off and the possibility of vacations. Some used that time to go to the ocean, eventually leading to the rise of urban beaches, such as those in Coney Island and Santa Monica. The real-estate bundles went away, and oceanfront property became a moneymaker. In Connecticut, by 1910, land along the water that a decade earlier had sold for $400 to $1,000 an acre was on the market for $3,000 to $10,000 an acre.

[Read: The historic healing power of the beach]

Seaside homes quickly morphed from something relatively accessible to people across class backgrounds into a luxury for the wealthy. These rich newcomers pushed out working-class and Black communities who had long lived on the coast, Schlichting told me. They also began to accuse beachgoers of trespassing. Invoking a legal threat like that, Schlichting said, was “very useful to landowners,” who might hope that the prospect of a fine or a night in jail would scare off sunbathers.  

In many cases, however, visitors weren’t actually trespassing—a reality that holds true to this day. According to the public-trust doctrine, a principle dating back to ancient Rome that has also been upheld by the U.S. Supreme Court, some section of the entire shoreline must be open to anyone. But states interpret how much of the beach that applies to very differently. In Oregon, all of the dry sand is public, up until the vegetation starts. In Rhode Island, too, people can legally stroll much of the beach, provided they don’t stray more than 10 feet above the high-tide line—although how many people will be able to measure that out at a glance? In Maine and Massachusetts, by contrast, only the space that is essentially always underwater is open for public recreation.

State laws become more complicated from there, and visitors are frequently left to piece together this complex legal picture on their own. Where they’re allowed to be might also depend on what they’re doing. In Massachusetts, for example, hunting and fishing are fair game in the intertidal zone, meaning the wet sand between high and low tide, but sunbathing and most other types of recreation are not; swimming is permitted, provided, per a 1907 court ruling, that your feet don’t touch the ground—a tough law to follow, given how shallow the water tends to be in that zone. So if you’re reading a book near an oceanfront house in Cape Cod, you could be accused of trespassing. But if you have a fishing pole or gun in your hand instead of a novel, your right to sit there is legally protected. “It’s kind of kooky,” Josh Eagle, a law professor at the University of South Carolina who studies beach access, told me.

Even if you master your state’s particular laws, other obstacles may make actually getting to the ocean difficult. Some places make you buy a pass, which can be pricier for out-of-towners: Westport, Connecticut, charges nonresidents 15 times more than residents for season passes. And recently, a Texas legislator proposed a bill that would let people living by the sea block visitors from using footpaths on their land. This could lead to a similar situation to the one playing out at Lido Beach, in which part of the shore is public in name but challenging to reach.

[Read: Is the internet killing the nude beach?]

Other roadblocks skew more rogue: In Malibu, California, homeowners have repeatedly put up illegitimate Private Property signs in the sand or placed traffic cones and unauthorized No Parking signs in nearby lots, trying to scare away outsiders. Elsewhere in the U.S., homeowners have constructed questionably legal barriers that separate their property from the rest of the beach—but also mean that anyone attempting to get to the water would have to climb over a fence.

Some people are trying to democratize beach access. A writer and an activist named Jenny Price co-created an app, Our Malibu Beaches, that spells out exactly where visitors are allowed to go—and which bogus signs, put up by residents, to ignore. In Malibu’s Broad Beach, for instance, the app reminds users that they can park in spaces blocked by traffic cones, which “have no possible legitimate or official purpose.” Meanwhile, in Connecticut, residents built fences and made getting to the beach so difficult that, starting in 1999, the state’s Department of Energy and Environmental Protection began erecting signs that outline the public’s legal rights to Connecticut’s shoreline. Dave Kozak, who worked as a coastal planner on the project, told me that local politicians complained to him that the signs were causing overcrowding. Some homeowners would simply take the signs down. But the state kept putting them back up.

Indeed, keeping the beach a common resource has become a practically Sisyphean struggle. Over the past century, just as more people in more regions have come to recognize the value of these prized natural spaces, they have been, sometimes literally, walled off. The public-trust doctrine is remarkable for guaranteeing a public right to the beach, regardless of private-property claims. But it means little in practice if beachgoers have to continue to wade past fake signs and confusing laws to actually go for a swim.