Which matters more? The ‘rule of law’ or so-called ‘democracy?’

benfell

Illiberalism

Gilead

Donald Trump
Coup attempt


Fig. 1. Donald Trump booking photograph by Fulton County (Georgia) Sheriff’s Office, August 24, 2023, via New York, August 25, 2023,[1] public domain.

Ruth Marcus’ column[2] actually advocates the exact opposite of what the headline suggests. Marcus writes that “the Supreme Court should take this case.” She disagrees with the proposition that the plain language of the 14th amendment should be used to limit voters’ choices and wants an 8-0 (with Clarence Thomas recusing himself) decision that section 3 of the 14th amendment is not self-executing (the Colorado Supreme Court disagreed), requiring enabling legislation from Congress, and affirming Trump’s eligibility.[3]

Indeed, as David Leonhardt and Ian Prasad Philbrick write in a New York Times newsletter,

The clearer philosophical argument against the lawsuit is democratic rather than technical: If the American people do not believe Trump is fit to be president, they can vote against him next year. For that matter, the Senate, an elected body of representatives, had the power to convict Trump during the impeachment trial over his Jan. 6 actions and bar him from future office, and it did not do so.[4]

Leonhardt and Philbrick are right to distinguish between legal (technical) and so-called “democratic” arguments. Setting aside that the U.S. is not, no way, no how a “democracy,”[5] they clarify that there are, in fact, two major questions here:

  1. Does the vaunted “rule of law” apply to Trump? If so, when should he face charges, what should the penalties be, and when should he have to serve his time, if any?
  2. Should voters, largely the same bunch who voted Trump in, in the first place, have a say?

Those who believe in our constitutional oligarchy will be inclined toward emphasizing the second question. But as Leonhardt and Philbrick also note,

[T]he Constitution already restricts the voters’ judgment in other ways, as Ciara Torres-Spelliscy, a law professor at Stetson University, told us. Nobody under the age of 35 can become president, nor can Barack Obama or George W. Bush again, because both have served two terms. And a judge in New Mexico last year barred a county commissioner from holding office because of his role in the Jan. 6 attack.

For another thing, Trump may represent a threat to the national interest that no politician in decades has. He has encouraged violence, described his critics as traitors, lied constantly, used the office of the presidency to enrich himself, promised to target his political rivals for repressions and rejected basic foundations of American democracy. He is, according to this argument, precisely the kind of autocratic figure whom the founders wanted the Constitution to prevent from holding power even if voters felt otherwise in the moment.[6]

The Colorado Supreme Court ruling, which I believe should be upheld, was refreshing for its forthright analysis of the issues, while other rulings have, as Marcus nearly concedes,[7] unreasonably split hairs in a plain desperation not to remove Trump from the ballot. Meanwhile, George Conway takes on the dissents in the Colorado Supreme Court ruling. I’m using a stronger word than he does, but it’s pretty obvious he thinks they’re inane.[8]

This plain desperation is intellectually dishonest, conforming the rulings to a predetermined conclusion—We “can’t remove Trump!—rather than to where evidence and the law lead.

Adam Liptak, “Colorado Ruling Knocks Trump Off Ballot: What It Means, What Happens Next,” New York Times, December 19, 2023, https://www.nytimes.com/2023/12/19/us/colorado-trump-legal-questions-supreme-court.html

Patrick Marley, “Donald Trump is barred from Colorado’s 2024 primary ballot, the state Supreme Court rules,” Washington Post, December 19, 2023, https://www.washingtonpost.com/politics/2023/12/19/trump-off-colorado-ballot/

Nick Coltrain, “Colorado’s Trump ruling sets off political firestorm, raising legal stakes and putting state at center of debate,” Denver Post, December 20, 2023, https://www.denverpost.com/2023/12/20/donald-trump-colorado-supreme-court-ballot-ruling-political-fallout/

George T. Conway, III, “The Colorado Ruling Changed My Mind,” Atlantic, December 20, 2023, https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/

Chris Geidner, “Colorado high court rules Trump is disqualified from being president, cannot be on ballot,” Law Dork, December 20, 2023, https://www.lawdork.com/p/colorado-high-court-rules-trump-is

Ruth Marcus, “The Supreme Court should toss the Colorado case,” Washington Post, December 20, 2023, https://www.washingtonpost.com/opinions/2023/12/20/colorado-trump-ballott-supreme-court/

Eric Tucker and Alanna Durkin Richer, “Trump’s lawyers tell Supreme Court to stay out of immunity dispute in 2020 election case for now,” Associated Press, December 20, 2023, https://apnews.com/article/trump-justice-department-jan-6-special-counsel-feb63a4ce7a807c11b523ded62a42881

Rachel Weiner, “Judge says Rudy Giuliani must pay $148 million judgment immediately,” Washington Post, December 20, 2023, https://www.washingtonpost.com/dc-md-va/2023/12/20/giuliani-judgment-pay-immediately/

Competitive authoritarian regime project


Fig. 2. President Lyndon B. Johnson, Martin Luther King, Jr., and Clarence Mitchell during signing ceremony of the voting rights act. Yoichi Okamoto, August 6, 1965, via Wikimedia Commons, public domain.

The methodology in Justin Jouvenal’s article[9] strikes me as suspect:

The analysis found that 76 percent of defendants whose race or ethnicity could be identified were Black or Hispanic, while White people constituted 24 percent of those prosecuted by the units.

Registered Democrats made up 58 percent of those charged whose party could be identified, while registered Republicans were 23 percent. In the rest of the cases, the defendant was not registered with a particular party.

The [Washington] Post was able to determine a defendant’s race, ethnicity or political party in roughly 70 percent of cases.[10]

That 30 percent of cases where the Washington Post was unable to identify race, ethnicity, or political party is easily enough to throw these numbers off. But the limited conclusion we can draw is that so-called “voter integrity” efforts appear to have targeted voters who could not readily be identified as both white and registered Republican.

That’s a little different from the headline claim that the efforts “overwhelmingly target[]” minorities and Democrats.

Justin Jouvenal, “GOP voter-fraud crackdown overwhelmingly targets minorities, Democrats,” Washington Post, December 20, 2023, https://www.washingtonpost.com/dc-md-va/2023/12/20/voter-fraud-prosecutions-2020/

Imperialism

United States


Fig. 1. “American Progress,” painting by John Gast, 1872, digital version 2006, via Wikimedia Commons, public domain.

Michael Fox, “Panamanians remember 1989 US invasion and continue to demand justice and accountability,” World, December 20, 2023, https://theworld.org/stories/2023-12-20/panamanians-remember-1989-us-invasion-and-continue-demand-justice-and

Israel

Palestine

07_09:10:47-2
Fig. 1. The ruins of a terminal at the Gaza airport. Image by Said Khatib (Agence France-Presse) on September 9, 2018, via the Times of Israel,[11] fair use.

If you have not read David Halberstam’s The Powers That Be, especially about the “Five O’Clock Follies,” in which high-ranking military officials would paint rosy pictures of the Vietnam War which was, in fact, going very, very badly,[12] then Paul Rogers’ op-ed, suggesting that Israel may not in fact be prevailing against Hamas,[13] might surprise you.

For a specific example, here’s Al-Shifa Hospital, which U.S. and Israeli sources swore was a Hamas command center. The Washington Post investigated and found the evidence supporting that claim rather severely wanting.[14] They say truth is the first casualty in war, and we’re most certainly seeing that here.

Summer Said, Margherita Stancati and William Mauldin, “Hamas Rejection Sours Israeli Bid to Revive Hostage Talks,” Wall Street Journal, December 20, 2023, https://www.wsj.com/world/middle-east/israel-offers-one-week-cease-fire-in-exchange-for-more-hostages-336ae59a

Ishaan Tharoor, “Israel is struggling to destroy Hamas, but it’s destroying Gaza,” Washington Post, December 20, 2023, https://www.washingtonpost.com/world/2023/12/20/israel-battlefield-gaza-defeat-hamas/

Louisa Loveluck et al., “The case of al-Shifa: Investigating the assault on Gaza’s largest hospital,” Washington Post, December 21, 2023, https://www.washingtonpost.com/world/2023/12/21/al-shifa-hospital-gaza-hamas-israel/

Paul Rogers, “Israel is losing the war against Hamas – but Netanyahu and his government will never admit it,” Guardian, December 21, 2023, https://www.theguardian.com/commentisfree/2023/dec/21/israel-losing-war-against-hamas-netanyahu-idf

  1. [1]Margaret Hartmann and Nia Prater, “All the Mug Shots of Donald Trump and His Alleged Co-Conspirators,” New York, August 25, 2023, https://nymag.com/intelligencer/article/trump-mug-shot-gallery.html↩
  2. [2]Ruth Marcus, “The Supreme Court should toss the Colorado case,” Washington Post, December 20, 2023, https://www.washingtonpost.com/opinions/2023/12/20/colorado-trump-ballott-supreme-court/↩
  3. [3]Ruth Marcus, “The Supreme Court should toss the Colorado case,” Washington Post, December 20, 2023, https://www.washingtonpost.com/opinions/2023/12/20/colorado-trump-ballott-supreme-court/↩
  4. [4]New York Times to Morning list, “Trump, the voters and the Constitution,” December 21, 2023, https://www.nytimes.com/↩
  5. [5]David Benfell, A constitutional oligarchy: Deconstructing Federalist No. 10,” Not Housebroken, July 3, 2021, https://disunitedstates.org/2020/04/22/a-constitutional-oligarchy-deconstructing-federalist-no-10/↩
  6. [6]New York Times to Morning list, “Trump, the voters and the Constitution,” December 21, 2023, https://www.nytimes.com/↩
  7. [7]Ruth Marcus, “The Supreme Court should toss the Colorado case,” Washington Post, December 20, 2023, https://www.washingtonpost.com/opinions/2023/12/20/colorado-trump-ballott-supreme-court/↩
  8. [8]George T. Conway, III, “The Colorado Ruling Changed My Mind,” Atlantic, December 20, 2023, https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/↩
  9. [9]Justin Jouvenal, “GOP voter-fraud crackdown overwhelmingly targets minorities, Democrats,” Washington Post, December 20, 2023, https://www.washingtonpost.com/dc-md-va/2023/12/20/voter-fraud-prosecutions-2020/↩
  10. [10]Justin Jouvenal, “GOP voter-fraud crackdown overwhelmingly targets minorities, Democrats,” Washington Post, December 20, 2023, https://www.washingtonpost.com/dc-md-va/2023/12/20/voter-fraud-prosecutions-2020/↩
  11. [11]Agence France-Presse and Times of Israel, “20 years after its opening, destroyed Gaza airport embodies grounded peace hopes,” Times of Israel, September 12, 2018, https://www.timesofisrael.com/20-years-after-its-opening-destroyed-gaza-airport-embodies-grounded-peace-hopes/↩
  12. [12]David Halberstam, The Powers That Be (Urbana, IL: University of Illinois, 2000).↩
  13. [13]Paul Rogers, “Israel is losing the war against Hamas – but Netanyahu and his government will never admit it,” Guardian, December 21, 2023, https://www.theguardian.com/commentisfree/2023/dec/21/israel-losing-war-against-hamas-netanyahu-idf↩
  14. [14]Louisa Loveluck et al., “The case of al-Shifa: Investigating the assault on Gaza’s largest hospital,” Washington Post, December 21, 2023, https://www.washingtonpost.com/world/2023/12/21/al-shifa-hospital-gaza-hamas-israel/↩

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