Category: Constitutional law

Defend Democracy: A Little Civil Discourse

by Joyce Vance

Here’s the link to this article.

In the middle of all the high stakes political maneuvering going on in Washington, we shouldn’t overlook the importance of a little civil discourse in our own lives. Like the elegantly simple statement being made by the woman in front of me in line at the airport this morning who was nice enough to let me snap a photo.

These simple reminders help people who understand that democracy is on the ballot know that they aren’t alone. They are also seeds that we plant for people who are still trying to decide whether and how to vote.

It’s hard to understand how anyone could still be on the fence, but we don’t have to figure that out. What we need to understand is the importance of meeting people where they are and, rather than expressing surprise that they’re undecided, trying to counter some of the disinformation that’s circulating and may be keeping them on the ledge, with facts.

Last week, one of the favorite Republican political myths, that Biden is too old to be president while Trump is capable and vibrant, resurfaced.

Joe Biden out for a ride on June 1, 2024 in Rehoboth, Delaware.

Seen Trump on a bicycle lately?

Biden is 81 years old. Trump turned 78 on Friday. It’s not a significant difference in age. While both of them occasionally have to reach for a word, as so many perfectly capable people do as they grow older, the similarities stop there. But the narratives being told about the candidates’ age and ability are very different and don’t match the reality that anyone who takes the time to can readily observe.

Biden flew to Europe for the D-Day anniversary, then home, then back to Europe for the G7 Summit, and held up to the rigors of travel well. His foreign policy expertise was on full display as he deftly handled key allies amid Putin’s war in Ukraine.

What did the President’s political opponents make of his trips? Right-wing media outlets circulated video, now all over social media, that makes it appear that Biden wandered off at the G7 summit while all the leaders were gathered. But that’s not what happened. The actual video shows Biden walking over to congratulate parachutists who were part of the celebration.

You might ask fence-sitters to consider, why would anyone do this? If Biden really isn’t up to the job, right-wingers wouldn’t have to make up a story, deceptively edit video, and push it out. If they’d make up a story like that, what else are they lying about? And perhaps most importantly, why are they lying to you?

What was Trump doing while Biden was supporting our key European alliances? His teleprompter went down during a campaign speech in Nevada with awkward results.

“I’ll take electrocution every single time,” Trump said. “I’m not getting near the shark.” Okay. I’ll take the guy who is handling American business over the guy babbling about sharks every time. And maybe if some of the folks who haven’t made up their minds yet knew about it, they would too.

It’s a good time to try out a little civil discourse and encourage people to look up the actual facts and video for themselves—they don’t have to take your word for it. You can explain what is actually happening to them, but tell them to check it out for themselves. One of the benefits of having truth on your side is that you can do that. Trump’s claims about Biden don’t withstand daylight.

The GOP is still beating the “Biden crime family” dead horse when in fact, their efforts to provoke criminal investigation or impeachment have all spectacularly and publicly failed. Their key witness lied to the FBI and faces prosecution—they seem to have forgotten his existence. And despite the strong push to “get” Hunter Biden, which produced the gun charges he was just convicted on and the tax charges he still faces, no evidence surfaced that implicated President Biden in international corruption or fraud schemes MAGA Republicans have been pushing. Last September, three-fifths of American voters believed the unproven but widely repeated allegations that Joe Biden was involved in corruption. Since then, those allegations have gone from being unproven to disproven. There were even suggestions that the failed GOP witness, Alexander Smirnov, was peddling lies for Russia.

Anyone who is turned off from voting because they hear Joe Biden was as corrupt as Trump? Turns out it was all a mirage, a very successful public relations coup for Republicans.

That’s an important point to share. Suggest that your friends examine what they see on social media carefully, because it’s not all true. Concerned about Gaza? It’s worth it for a voter for whom that issue is important to take a look at the differences between Biden’s and Trump’s positions and decide which they feel better serves their concerns. Worried about climate change? Trump’s recent meeting with Big Oil—the one where he asked them to to donate $1 billion to his campaign while promising he would terminate Biden’s policies on electric vehicles, wind energy, and other plans to decrease reliance on fossil fuels—is informative. Do they really want to trust the guy who is calling for a revenge presidency? The guy who blithely attacks Joe Biden for being old, while the press seems to give him a pass on far worse.

The key point is this: democracy is the system that unlocks all of our other rights. In its absence, those rights fade away. How you are able to live your life could come down to the whims of a ruler who has only his own self-interest in mind. People still get to vote this November. They should exercise that right carefully, and cherish it, especially if they want to be able to do it in the future.

A little civil discourse can go along way. Don’t hesitate to practice. And please share the newsletter—it’s free—with folks you think might benefit from being encouraged to think and fact check for themselves.

We’re in this together,

Joyce

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A Tennessee high school let a Christian preacher lead the basketball team in foot-washing

Here’s the link to this article.

Pushing Jesus on public high school students is coercive, immoral, and illegal

HEMANT MEHTA

NOV 4, 2023

Here’s a quick tip for Christians who want to proselytize in public schools: When you get away with it, don’t brag about it publicly. Because even when you think all the evidence has been scrubbed from the internet, some people (*waves hello*) may have saved screenshots.

Speaking of which…

On Wednesday, Andrew Fortner, the leader of a Fellowship of Christian Athletes chapter in Tennessee, posted about how students at White House Heritage High School (a public school) ended their practice in an unusual way.

They held a free-throw shooting contest and five players on the team “won”… the chance to wash their teammates’ feet just like Jesus. The FCA leader shared pictures and explained how he told team leaders to “chase the TOWEL over the TITLE.” Fortner also included an image of himself reading the Bible to the kids.

That post is no longer online. Fortner deleted it. But not before it was shared on TikTok by a concerned woman (who also deleted her video to avoid local backlash).

Still, it happened. And now the Freedom From Religion Foundation is getting involved. In a letter, legal fellow Samantha F. Lawrence calls on the Robertson County Schools to investigate the matter:

We ask that RCS investigate this matter and ensure that the White House Heritage HS basketball program ceases infusing the program with religion. The basketball program and its coaches cannot be permitted to invite and allow an outside adult to proselytize student athletes and require them to engage in religious activities.

…

… When coaches promote their personal religion to students and invite an outside adult, such as Mr. Fortner, to instruct students to act out a biblical story while reading them scripture, the student athletes will no doubt feel that agreeing with their coach’s religious viewpoint and participating in the religious activities is essential to pleasing their coach and being viewed as a team player. It is unrealistic and unconstitutional to put student athletes to the choice of allowing their constitutional rights to be violated in order to maintain good standing in the eyes of their coach and peers or openly dissenting at the risk of retaliation from their coach and teammates.

As Lawrence points out, the Supreme Court’s Kennedy decision (where a football coach wanted to pray at midfield after games despite the coercive effect) is irrelevant here. This was a direct attempt to merge church and state. There was very clearly coercion. Fortner isn’t even a coach. He’s just a random guy whose Christianity gave him access to the team.

No representative from a different religion, or an atheist, would be given the opportunity to push their beliefs on the basketball team in the name of self-described morality. And they shouldn’t be! But Christian privilege is a hell of a drug.

The coaching staff at this school had no right to invite a Christian preacher to a practice in an effort to convert children. It’s appalling that the adults involved here were so comfortable with what was happening that they allowed photos to be taken and posted online… at least until, perhaps, they realized they were doing something wrong.

Fortner did not respond to a request for comment.

The Christian nationalism is coming from inside the House

Here’s the link to this article.

Avatar photoby ADAM LEE NOV 02, 2023

Official portrait of Speaker Mike Johnson | The Christian nationalism is coming from inside the House

Overview:

Mike Johnson, the new Speaker of the House, is a radical Christian nationalist who opposes democracy—and he still might not be extreme enough for his own caucus.

Reading Time: 5 MINUTES

In 2023, Kevin McCarthy made ignominious history by becoming the first Speaker of the House in US history to be ejected by his own party.

It took multiple rounds of voting, with McCarthy groveling before his party’s most extreme members, before he got the job in the first place. But he lasted only a few months before enraging them by passing a bill to prevent a shutdown. For the grave sin of governing, he was kicked out of the speaker’s chair.

Several weeks of chaos and dysfunction ensued as various House Republicans stepped forward to run for speaker and others shot them down. Finally, the infighting exhausted them enough to coalesce around a new speaker, Louisiana Congressman Mike Johnson. (I wonder if Johnson won because his generic name made him seem unobjectionable.)

But despite his bland, forgettable demeanor, Johnson is no moderate. As the modern Republican Party keeps finding new depths of political nihilism to sink to, he may be the worst yet to hold the post.

A young-earth creationist

Johnson got his start working for the Alliance Defending Freedom, a right-wing legal group. He spent years arguing that abortion should be outlawed and that states should have the right to criminalize consensual same-sex relationships.

He’s also a young-earth creationist who’s represented Answers in Genesis in court to argue for tax exemptions for their Noah’s Ark theme park.

He believes that teaching evolution causes school shootings:

During a 2016 sermon at the Christian Center in Shreveport, Louisiana, Johnson said that a “series of cultural shifts” in the United States — led by “elites” and “academics” in the 1930s who were engaging with the theories of Charles Darwin — erased the influence of Christian thinking and creationism from society.

“People say, ‘How can a young person go into their schoolhouse and open fire on their classmates?’” Johnson asked the audience. “Because we’ve taught a whole generation — a couple generations now — of Americans, that there’s no right or wrong, that it’s about survival of the fittest, and [that] you evolve from the primordial slime. Why is that life of any sacred value? Because there’s nobody sacred to whom it’s owed. None of this should surprise us.”“New House Speaker Blamed School Shootings on Teaching Evolution and Abortion.” Nikki McCann Ramirez, Rolling Stone, 26 October 2023.

This feels almost quaint. It’s been a while since I’ve seen a young-earth creationist in the wild. I had assumed most of them had long since moved on to QAnon.

Needless to say, the idea that belief in God prevents violence is a blackly comical absurdity. Not only is that not true, it’s the flat opposite of the truth. Human history is a bloodstained chronicle of devout believers slaughtering each other for believing in the wrong god—or believing in the right god, but worshipping it in the wrong way. Just imagine trying to tell people from the era of the Inquisition or the Crusades that religion is a force for peace that teaches us to treat all life as sacred.

The Bible records a campaign of genocide enthusiastically carried out by the Hebrew tribes against their pagan enemies. Medieval Europe is an endless battle of Catholic-versus-Protestant warfare, Christian-versus-Muslim warfare, and everyone killing and persecuting Jews. Sunni and Shi’a Muslims have clashed again and again. Western nations have subjugated, colonized, enslaved and killed indigenous “heathens” from all over the world in the name of spreading the gospel. The ongoing Israel-Hamas war is a battle between two religious sects that both believe they have a God-given right to possess the same land.

In addition to his anti-evolution views, Johnson ticks every other box on the list of Christian “antis”. Like all fundamentalists, his worldview is defined by what he’s against: He is anti-abortion, anti-gay-rights, anti-feminism, anti-climate-science. He’s even anti-divorce—believing, as many religious conservatives are starting to, that it gives women too much power. In a bid to shore up the crumbling walls of patriarchy, he wants to abolish no-fault divorce so they’ll be forced to stay in unhappy or abusive marriages.

A Christian nationalist

But, above all else, Johnson is a Christian nationalist. Like all Christian nationalists, he believes (falsely, based on right-wing pseudo-history) that America was founded as a Christian nation, and therefore a Christian view of law and morality should rule.

It hardly needs emphasizing that, when Johnson and his ilk speak of a “Christian” view, they don’t mean a generically Christian, ecumenical, big-tent view. They mean their own interpretation—a hardcore right-wing, patriarchal, anti-science, literalist reading of the Bible. They believe that this fundamentalist theology should reign supreme over every other interpretation of Christianity, not to mention all the other religions, philosophies, and worldviews in our multicultural melting pot.

The most disturbing aspect of Johnson’s view is that, because he believes America is a Christian nation, he holds that evangelical Christians like himself are entitled to rule regardless of elections. That’s why he’s against democracy.

That’s not a polemical attack. He says so himself!

“We don’t live in a democracy, because democracy is two wolves and a lamb deciding what’s for dinner.”“He Seems to Be Saying His Commitment Is to Minority Rule.” Katelyn Fossett, Politico, 27 October 2023.

Yes, the Speaker of the House of Representatives, second in line to the presidency, is an avowed opponent of democracy.

These aren’t empty words. Johnson has acted in line with them. He was one of the Republicans who voted unsuccessfully to overturn the 2020 election. He wrote a brief in support of Texas’ toweringly arrogant lawsuit to throw out the results of elections in other states that voted differently. He spread bizarre conspiracy theories about Hugo Chavez writing voting machine software.

All of this isn’t an aberration. It flows from Johnson’s Christian nationalist theology. In this monarchical worldview, Christians like him get to be in charge, no matter what. If the voters say something different, too bad for them. He believes in throwing out the “wrong” votes and handpicking the person who “should” have won.

READ: Christian nationalists: Drop Mike, hold on to your Johnson

Johnson’s anti-democratic, election-denying views mirror the general trend toward authoritarianism among conservative Christians. They were only ever in favor of democracy as long as they thought they’d win every time. When that stopped being the case, they started wanting to change the rules to suit them. From Kristin Du Mez:

I think what has escalated things in the last decade or so is a growing alarm among conservative white Christians that they no longer have numbers on their side. So looking at the demographic change in this country, the quote-unquote “end of white Christian America” and there’s where you can see a growing willingness to blatantly abandon any commitment to democracy.

It’s really during the Obama presidency that you see the escalation of not just rhetoric, but a kind of desperation, urgency, ruthlessness in pursuing this agenda. Religious freedom was at the center of that. And it was, again, not a religious freedom for all Americans; it was religious freedom to ensure that conservative Christians could live according to their values. Because they could see this kind of sea change on LGBTQ rights, they could see the demographic changes, and inside their spaces, they have really played up this language of fear that liberals are out to get you, and you cannot raise your children anymore.“He Seems to Be Saying His Commitment Is to Minority Rule.” Katelyn Fossett, Politico, 27 October 2023.

For all the danger Johnson presents, the one thing he’s not is unusual. This election-denying, freedom-refuting ideology, once the fringe of the fringe, has swallowed the entire Republican party. Anyone the party might be expected to support would hold these same beliefs.

Johnson’s elevation isn’t an aberration, but a punctuation mark. It’s a sign that, for the foreseeable future, this is the course the Republican party has committed itself to. Elections in America are no longer a choice between two points on the same political spectrum. They’re a struggle for the continued existence of democracy over those who favor fascism and authoritarian rule.

Not extreme enough

As bad as that is, there are hints that even Johnson isn’t extreme enough for some members of his caucus.

For all his repugnant politics, he has an adopted Black son. Johnson has spoken frankly about the racism his son faces and said there’s a need for “systematic change”. He’s also said George Floyd was murdered by the police: “I don’t think anyone can view the video and objectively come to any other conclusion.”

For these remarks, perpetually-furious conservative pundits have already labeled Johnson a disgrace, a fraud and a secret Democrat. The right wing has done so much to nurture their own sense of grievance, there’s a chance that they’re truly ungovernable. No human being who could run for office and win could ever satisfy them.

If that’s true, then Johnson, for all his radicalism, might not end up enjoying a longer or easier tenure than his predecessor.

What a joke

Here’s the link to this article.

STEVE SCHMIDT

AUG 25, 2023

It is hard to sort through the surreality and absurdity of the FOX-hosted MAGA/GOP debate for the “also rans” that linger 40 points behind front runner Donald Trump, who faces 91 felony charges across four different jurisdictions, thus far. Absurdities piled up on top of one another, while hypocrisy, grandiosity, delusion and performative posturing could have been confused by a casual observer as being the necessary qualifications to run for president as a Republican. 

Sixty-two years ago, a 43-year-old man rose and swore the 35-word oath that made him the 35th president of the United States. He was a decorated naval officer and combat veteran, who had served as a US senator for eight years and a congressman for six. He was thoughtful, observant, introspective and skeptical. His inaugural address ranks among the greatest in American history, and included these prescient words that I couldn’t stop thinking about last night as a 38-year-old demagogue and fame-seeking millennial took control of the debate from a feckless lineup of collaborators, appeasers, and FOX propagandists, with a fusillade of weapons- grade nuttery, rice paper-thin ignorance, and mind-bending naïveté wrapped together by ad hominem character attacks. 

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.

This much we pledge–and more.

To those old allies whose cultural and spiritual origins we share, we pledge the loyalty of faithful friends. United there is little we cannot do in a host of cooperative ventures. Divided there is little we can do–for we dare not meet a powerful challenge at odds and split asunder.

To those new states whom we welcome to the ranks of the free, we pledge our word that one form of colonial control shall not have passed away merely to be replaced by a far more iron tyranny. We shall not always expect to find them supporting our view. But we shall always hope to find them strongly supporting their own freedom–and to remember that, in the past, those who foolishly sought power by riding the back of the tiger ended up inside.

They most certainly did. Deep inside. 

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There were some astonishing and illuminating moments from the FOX-fest, such as when Mike Pence and Ron DeSantis looked left and right before deciding whether to put their hands up and pledge to support Trump for president whether he is convicted, imprisoned, or anything else — no matter what, forever and ever. 

Both men came into the debate filled with the conviction that shouting and inconsistencies are the key to projecting strength to an audience of extremists. Clearly when it comes to thinking on his feet and mirroring others, DeSantis was stuck in the pudding compared to Pence, who had much more experience. Let’s watch him do the same thing with water during a White House meeting with Trump before the former president and current criminal defendant tried to hang him:

‘Tis the season for revisionist history, and Mike Pence has made clear that Mike Pence is a hero for telling the man who incited an insurrection that killed and maimed, that he couldn’t help him overturn the election. He tried and thought about it, but when he called Dan Quayle, he told Pence that he was nuts and quite the hero. Watching Mike Pence perform his squinty-eyed, pious Reagan imitation right down to his canned and cheesy line that he is a “Christian, conservative and a Republican — in that order” has always been aneurysm-inducing for people with common sense and character. Mike Pence is a former cigarette spokesperson and lobbyist, who used donor money to live off during his first losing congressional race. He is a fraud, an extremist, and profoundly full of shit. After everything, when the question came about whether he’ll be behind the man who burned down what he said matters most, he made clear what he values — and it isn’t America. I guess there has always been a reason for Mike Pence why American wasn’t on his list. Mike Pence was Donald Trump’s partner and accomplice in all things — except one at the end. Remember though, but for Pence, we never would have gotten there. 

Nikki Haley is the exact same person. There were moments in the debate where she appeared honest, cogent, strong, competent and principled. Of course none of those things are true, as has been ably demonstrated over the last seven years. She proved it when her hand shot up during the Trump forever auction. No matter what, she will be with Trump, whom she spent the debate excoriating by proxy through her castigations of Ramaswamy as an unprepared gadly for aping Trump’s positions 100% as his “mini me.” It makes no sense.

The abortion section of the debate was deeply chilling, and should terrify American women who don’t want their Republican member of Congress joining them in their bedroom, MD’s or pastor’s office. Though Mike Pence’s political career is at an end  “The Handmaid’s Tale” is not. Can someone call casting please? What a commander he’d make. Chilling though he was, and as extreme as everyone else was, the DeSantis comments were memorable, right? I’m not the only person in America who heard him talk about a friend who survived multiple abortions, and was born in a pan, right? Please tell me I’m not alone in knowing that’s made up. The reason why I’m asking is because it’s important, given there is no such thing as up-to-the-moment of birth elective abortions that Republicans keep talking about. It isn’t real, and it’s never challenged. The failure of the Democratic Party to wrestle this issue into reality is appalling. Nevertheless, Nikki Haley was correct with regards to her worry about the political backlash that is coming to the nuttiness. There will likely be a women’s tsunami at the polls, unless America’s women are ready to sign up for transportation backwards in time about 60 years. I suspect it’s an offer they will enthusiastically refuse. 

Lastly, there was the rushed and nervous discussion around the Trump coup that was handled by FOX and the candidates, except Christie and Hutchison, as a live incendiary device on a timer. There are no words to describe the trivialization of the greatest act of treachery and political misconduct in American history by the very same news anchor — Bret Baier— who kicked off the madness with his worries about delivering the news that the orange führer had lost the election to his manipulated, incited and radicalized audience.

What a small, petty affair last night was. 

Oh, and Asa Hutchison appears to be a normal, responsible, serious person. He’s clearly in the wrong party to have a chance. 

Yesterday, I said the “debate would be a travesty and a farce.” Looking back, I was way too optimistic. What a joke. 

LETTERS FROM AN AMERICAN–08/19/23

Here’s the link to this article.

LETTERS FROM AN AMERICAN

August 19, 2023

HEATHER COX RICHARDSON

AUG 20, 2023

Various constitutional lawyers have been weighing in lately on whether former president Donald Trump and others who participated in the effort to overturn the results of the 2020 presidential election are disqualified from holding office under the Fourteenth Amendment to the Constitution. The third section of that amendment, ratified in 1868, reads: 

“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.”

On August 14 an article forthcoming from the University of Pennsylvania Law Review by William Baude of the University of Chicago Law School and Michael S. Paulsen of the University of St. Thomas School of Law became available as a preprint. It argued that the third section of the Fourteenth Amendment is still in effect (countering arguments that it applied only to the Civil War era secessionists), that it is self-executing (meaning the disqualification of certain people is automatic, much as age limits or residency requirements are), and that Trump and others who participated in trying to steal the 2020 presidential election are disqualified from holding office.

This paper was a big deal because while liberal thinkers have been making this argument for a while now, Baude and Paulsen are associated with the legal doctrine of originalism, an approach to the law that insists the Constitution should be understood as those who wrote its different parts understood them. That theory gained traction on the right in the 1980s as a way to push back against what its adherents called “judicial activism,” by which they meant the Supreme Court’s use of the law, especially the Fourteenth Amendment, to expand the rights of minorities and women. One of the key institutions engaged in this pushback was the Federalist Society, and both Baude and Paulson are associated with it. 

Now the two have made a 126-page originalist case that the Fourteenth Amendment prohibits Trump from running for president. Their interpretation is undoubtedly correct. But that interpretation has even larger implications than they claim.

Moderate Republicans—not “Radical Republicans,” by the way, which was a slur pinned on the Civil War era party by southern-sympathizing Democrats—wrote the text of the Fourteenth Amendment at a specific time for a specific reason that speaks directly to our own era. 

When John Wilkes Booth assassinated President Abraham Lincoln in April 1865, Congress was not in session. It had adjourned on the morning of Lincoln’s second inauguration in early March, after beavering away all night to finish up the session’s business, and congressmen had begun their long journeys home where they would stay until the new session began in December. 

Lincoln’s death handed control of the country for more than seven months to his vice president, Andrew Johnson, a former Democrat who wanted to restore the nation to what it had been before the war, minus the institution of slavery that he believed concentrated wealth and power among a small elite. Johnson refused to call Congress back into session while he worked alone to restore the prewar system, dominated by Democrats, as quickly as he could. 

In May, Johnson announced that all former Confederates except for high-ranking political or military officers or anyone worth more than $20,000 (about $400,000 today) would be given amnesty as soon as they took an oath of loyalty to the United States. He pardoned all but about 1,500 of that elite excluded group by December 1865.

Johnson required that southern states change their state constitutions by ratifying the Thirteenth Amendment prohibiting enslavement except as punishment for a crime, nullifying the ordinances of secession, and repudiating the Confederate war debts. Delegates did so, grudgingly and with some wiggling, and then went on to pass the Black Codes, laws designed to keep Black Americans subservient to their white neighbors. 

Under those new state constitutions and racist legal codes, southern states elected new senators and representatives to Congress. Voters put back into national office the very same men who had driven the rebellion, including its vice president, Alexander Stephens, whom the Georgia legislature reelected to the U.S. Senate. When Congress reconvened in December 1865, Johnson cheerily told them he had reconstructed the country without their help.

It looked as if the country was right back to where it had been in 1860, with legal slavery ended but a racial system that looked much like it already reestablished in the South. And since the 1870 census would count Black Americans as whole people for the first time, southern congressmen would have more power than before. 

But when the southern state delegations elected under Johnson’s plan arrived in Washington, D.C., to be seated, Republicans turned them away. They rejected the idea that after four years, 600,000 casualties, and more than $5 billion, the country should be ruled by men like Stephens, who insisted that American democracy meant that power resided not in the federal government but in the states, where a small, wealthy minority could insulate itself from the majority rule that controlled Congress. 

In state government a minority could control who could vote and the information to which those voters had access, removing concerns that voters would challenge their wealth or power. White southerners embraced the idea of “popular sovereignty” and “states’ rights,” arguing that any attempt of Congress to enforce majority rule was an attack on democracy.

But President LIncoln and the Republicans reestablished the idea of majority rule, using the federal government to enforce the principle of human equality outlined by the Declaration of Independence. 

And that’s where the Fourteenth Amendment came in. When Johnson tried to restore the former Confederates to power after the Civil War, Americans wrote into the Constitution that anyone born or naturalized in the U.S. was a citizen, and then they established that states must treat all citizens equally before the law, thus taking away the legal basis for the Black Codes and giving the federal government power to enforce equality in the states. They also made sure that anyone who rebels against the federal government can’t make or enforce the nation’s laws. 

Republicans in the 1860s would certainly have believed the Fourteenth Amendment covered Trump’s attempt to overturn the results of a presidential election. More, though, that amendment sought to establish, once and for all, the supremacy of the federal government over those who wanted to solidify their power in the states, where they could impose the will of a minority. That concept speaks directly to today’s Republicans.

In The Atlantic today, two prominent legal scholars from opposite sides of the political spectrum, former federal judge J. Michael Luttig and emeritus professor of constitutional law at Harvard Law School Laurence H. Tribe, applauded the Baude-Paulsen article and suggested that the American people should support the “faithful application and enforcement of their Constitution.”