Supreme Court, in Colorado ballot issue for Trump, should leave guide for future elections
Editor:
The Supreme Court heard the case from Colorado about President Trump’s possible disqualification from holding office. I am quite sure it will not decide if the full trial below correctly concluded Trump led the “insurrection.” It will decide on problems with how to do it.
The argument proved one thing; Textualism/original intent was a tautology developed in Britain in 1948. When it is convenient, some justices rely on it and when it’s what they want.
Otherwise they ignored it. Often the key facts are assumed as what “should be” so. In fact the textualism end of this tiny band of thinkers do not want to look as what the authors said if they do not have to; the meaning is supposed to float out of the words. (When they use it.)
Original intent and the Colorado Court’s analysis was largely ignored today by these amateur historians. I actually think that rejecting the Colorado position may be warranted. It has to do with forgetting to include directions about how to implement some matters out of a statute 70 years ago.
No matter, a lot will still have to be figured out whatever decision is reached unless the Court, and particularly Justice Samuel Alito, does not pose false distinction that gut the provision out of existence.
But it was very interesting that Justice Sonia Sotomayor asked the historical and textualist questions and showed quite clearly the textualist/original intent analysis would dictate that Colorado should prevail! It’s courts’ jobs to figure out how to do it, not if disqualification should be done.
I couldn’t tell if Sotomayor wants Colorado to prevail. But she made the point clearly and dryly that original intent as a theory is nonsense if Colorado does not win. She showed how that analysis have been leading to originality/textualist readings are inconsistent. 1. States can gerrymander but not decide qualifications for insurrection. Or 2. Women do not have equal rights but do not have privacy rights. And so on.
In reality, American jurisprudence historically looks at new conflicting situations and starts with the Declaration of Independence and asks what is the effect on “life, liberty and the pursuit of happiness.”
Obviously law has an incredibly complex framework but incrementally it needs to consider how to accommodate these founding principles from the Declaration. There are several practical legal tools of analysis, which have different names, to help figure that out. And indeed definitions and words’ actual meanings and history are integral, often paramount.
But stop letting meaning float out of a few of the words is for legal simpletons when the answers are not easy. Law is not a seance.
Today the entire argument ripped bear – totally exposed – the legal fiction which hoodwinks people when politicians want to get their way by invoking the nonsense of original intent and textualism. Knowing what a person dead for 200 years would think is arrogance pushing the limits of sanity.
No matter how the Court unravels the layers of analysis in this case, they hopefully write a decision on how to enforce the Constitution and leave a guide for future elections and how to deal with traitors. But forget them using originalism/textualism. This decision will turn on finding loopholes.
Conrad F. Cropsey
Albion
