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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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Culture Break

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Read. In her latest novel, The Vaster Wilds, Lauren Groff has written a new gospel.

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Play our daily crossword.

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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At some point during the winter of 1609–10, in Jamestown, Virginia, the starving English settlers are said to have begun eating one another. Meanwhile, back in London, the King James Version of the Bible, arguably the greatest work of prose in the English language, was receiving its final edits; it went to the printer the following year. Lauren Groff’s haunting new novel, The Vaster Wilds, doesn’t mention the King James Bible by name, or that its completion coincided with the horrors at Jamestown. But the confluence of these two events hovers in the background. The novel is set in and around the colony just before and during the Starving Time, as it came to be known, with flashbacks to London—and it has a biblical dimension of its own. The same two extremes of human experience are on display: both high spiritual striving and colonialism in all of its unhinged depravity. Think of the book as Groff’s marriage of heaven and hell.

The spiritual seeker is the protagonist of the novel, a character Groff refers to as “the girl.” She is an orphan with mysteriously dark skin: Her father, who is unknown, may have had Moorish blood. When the story opens, the girl has just snuck out of the Jamestown fort—the inhabitants have descended into cannibalism—and run away from her employers. These are a minister and his wife, who took her, their servant, with them from London to the colonies after the man decided, seemingly on a whim, to seek his fortunes in the New World. The narrative recounts the girl’s journey through the wilderness.

The Vaster Wilds is historical fiction only in the most literal sense. A better description would be Christian allegory in a post-Christian spirit. It’s The Pilgrim’s Progress in the American forest primeval, with distinctly non-Puritan ideas about salvation. (Groff knows her way around Protestantism; she was raised “within a strand of Calvinism that was paternalistic and harsh,” she told The Paris Review.) The language is Elizabethan, mercifully simplified and drunk on the resonant imagery and majestic cadences of the King James Version. The girl suffers from night terrors and visions full of scriptural allusions. At one point, she seems to see the prophet Ezekiel’s valley of bones (at least that’s what I take it to be), and although in the Bible, God raises the bones and puts the flesh back on them, turning them into an army that will be the salvation of Israel, the bones in the girl’s nightmare are infernal. They belong to beasts “with plaques of clay falling from their joints”; they’re “all black and sere, for in such a gray and desert meadow as the one she saw in her terror, only the dead could walk their phantom bones.”

And yet, she also seems to be watched over by angel-like presences who keep her tethered to life. Trying and failing to make her flint strike a fire, she entreats, “Spark, fall upon this leaf and become flame.” Soon, as if by divine intervention,

A spark fell and she cradled it with dry needles and dead leaves and breathed upon it, and the spark was shy, it nearly flicked itself dead again, but she prayed and blew again, and it grew, it ate a small bite of the dead leaf and found that it wanted more, it licked up and became flickering joyous flame.

As the girl sets out, winter is turning to spring, but the air hasn’t warmed yet. She has had the presence of mind to steal two woolen coverlets, along with a hatchet, a knife, a pewter cup, a flint, and the boots of a boy who has died of smallpox. In her relentless solitude, these objects become her companions and friends. Nevertheless, she is slight, and the cold slices through her. The tasks of survival are gargantuan: She must catch enough fish and grubs to fend off starvation, avoid “the wolves and the mountain lions and the serpents that made a home in this wild, uncivilized land,” and elude the mercenary she’s sure is pursuing her. She has glancing encounters with the Powhatan people who live in the woods, smelling their smoke, spotting their children, but she fears them too. She presses onward, at first with clear purpose—if a map she once glimpsed over a shoulder in Jamestown is correct, she’ll find “frenchmen” to the north—but when she no longer knows which way she’s going, she keeps going anyway. Voices in her head scold or mock her. “I run toward living, I run toward the living,” she tells one.

Memories afflict her. Back in London, the girl served in the house of the woman known here only as “the mistress,” a wealthy, socially ambitious, flighty creature who is not as kind as she seems. The girl has never had a name she considers her own: In the parish poorhouse where she spent her first four or five years, they named her Lamentations, because, they said, her mother was a prostitute. After she enters the household of the mistress, the girl must answer to Girl, Wench, or Fool. The mistress calls her Zed, “for she was always the least and the littlest and the last to be counted,” and also because that was the name of the recently deceased pet monkey that the girl was brought in to replace. The woman teaches the child to dance and sing and tell riddles—she is being raised to be a “delicious morsel” who will amuse the poets and artists who sup at the mistress’s table. The woman’s son, Kit, a petty sadist, torments the girl when his mother isn’t looking. Later, he brings friends home from the university, and they rape the girl over his mother’s feeble objections. It is not clear whether she has even reached puberty.

[Read: The writer who saw all of this coming]

In need of love and a reason to live, the girl devotes herself to caring for Bess, her mistress’s sweet but simpleminded and largely ignored daughter. She ekes out an  education where she can, from the books Kit shows her and the tales he tells when he isn’t harassing her, and from the Bible. She listens closely when it’s read aloud in church, taking its words “whole in long phrases into her knowledge.” On the voyage to America, she falls in love with a Dutch boy and dreams of marrying him, but he is swept to sea in a storm. After her beloved Bess dies in Jamestown, the girl makes the decision to flee.

Groff has said in interviews that she modeled the book on captivity narratives in which Native American “savages” capture white settler women, and on Robinson Crusoe. Fair enough, but she inverts the premise of both of these constitutive fictions of European occupation. The girl begins in captivity and runs toward freedom, and although she exhibits Crusoe’s thrilling resourcefulness, she has none of his will to master nature; she would never claim, as he does, “a right of possession” to the land.  That’s Groff’s point: The girl is the opposite of a colonist. She regards the forest and its creatures with appropriate awe.

Groff’s fiction is usually identified as ecological and feminist, which it certainly is, but it is theological too. Lately, the religion has come out into the open. Groff’s previous novel, Matrix, centered on a historical figure, the 12th-century French poet Marie de France, imagining her as a lesbian abbess and visionary, a proto-feminist of sorts. In The Vaster Wilds, Groff all but asserts fealty to God—her god, the god of nature, who dwells everywhere and in everything. If I had to identify the prophet of her creed, I’d name William Bartram, the 18th-century Quaker and explorer of the Americas—including Florida, where Groff lives—whose radical environmentalism rivaled that of any activist today.

Starting from the premise that God is present in His Creation, meaning that He resides in all things, Bartram overturned an orthodoxy of his time that endures in ours: that humans in their superiority have the right to use the world as they will. With astonishing prescience, he asserted that animals—and plants!—possess species-specific forms of reason and a moral intelligence equal or superior to humans’. I’m not pulling Bartram’s name out of thin air: Groff’s collection Florida includes a short story, “Flower Hunters,” in which a woman develops a passion for Bartram so intense that it puts her marriage in danger.

[Read: Florida, full of dread]

Nature is Groff’s muse as well as her deity. Her prose, always alive and sensuous, is hit by an extra electrical charge when she exposes characters to the elements. “There were pulsing navy veins within the clouds,” observes a woman who has refused to evacuate ahead of a hurricane in the short story “Eyewall,” also in Florida. The roiling sky reminds her of the spilling organs of a buck killed and gutted by her husband—an association that hints that the storm has come to avenge that outrage, and others like it. Groff isn’t afraid of the pathetic fallacy; she’s an old-school Romantic, happy to attribute motives to weather, flora, and fauna. Florida serves up the kind of ecological horror stories in which panthers and reptiles and sinkholes lurk just beyond the field of human vision, eager to vent nature’s wrath.

In The Vaster Wilds, the despoiling of the North American continent has just begun. This is a fable of what could have been. Nature isn’t angry; it’s sublimely indifferent at worst, benevolent at best. A beast, perhaps a bear, sniffs the girl as she sleeps, but does not attack her. In her first few hours in the forest, the girl becomes aware that she is being observed, and thinks the eyes belong to whomever is hunting her. But it’s the birds and animals who watch as she crashes through the woods, regarding her not as prey but “in silent wonderment.”  

Then she moves on, and the novel takes a brief, curious turn. On the whole, the authorial voice stays close to the girl, but now it lags behind. Suddenly we see as if from the vantage point of eternity:

The forest’s sense of time shuddered and jerked forward, and the rip that the running girl made became healed, and the ordinary business of the creatures’ hungers was reawakened behind her. Only hours after she had passed through the forest, she became to them a strange dream barely remembered in the urgencies of the moment.

The narrator makes other quick perspectival shifts like this one—not many, but they add up and give the novel a sense of capaciousness, a wide-angled grandeur. Later, the story is paused so we may hear about a former Jesuit who attacks the girl. He has lived alone in the wild a long time—how long he doesn’t know—and all but lost the power to think in words. He has delusions of greatness. He believes he has survived purely by his wits, although the nearby Indigenous people secretly leave food in his way; he’s convinced that his solitude has made him holy, when in truth he has gone mad. He is the girl’s evil double, the cautionary specter of what she could become.

A pilgrimage is meant to lead the pilgrim toward redemption; she should lie down in green pastures and fear not evil. Whether the girl is moving in that direction is the question. Terrible trials await: violence, disease, soul-crushing loneliness. The suspense comes from not knowing whether she’ll die before she reaches a destination. Then again, death is not death in this novel. Faced with the choice of drowning while crossing a river whose ice cover is breaking up, or being caught by her pursuer, the girl concludes that drowning is preferable. The water would gather her body “into its dark hands” and carry it downriver to be eaten by fish, inducting her into “the eternal chain of being.” Bartram based a philosophy on a vision of nature as “the universal vibration of life.” Groff has written the gospel.