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Turning simple definitions into complex court decisions might have made sense in 1870 when discussions and arguments happened in Congress and in the print media, when there was no video, television, internet, or cell phone. Letting courts decide whether the events of January 6 meet the definition of insurrection is unnecessary and implies that ordinary citizens lack the intelligence to decide for themselves. This is only happening because Trump has intensified the divisions in America and MAGA Americans want to call sunny days cloudy and good people evil. A majority of Americans, over half, saw the events of January 6 in real time and had no doubts that they were seeing an insurrection and that Trump fomented it. We also know the meaning of foment. We don't need the Supreme Court to rewrite the dictionary or the Fourteenth Amendment.
Not only did we witness, as a jury might, the insurrection on January 6, but courts at all levels of government have indicted and convicted participants as insurrectionists, and seditionists. This is not 1870. Our legal system is twisted and offers precedents for almost any situation. In addition, this matter is being parsed as politics rather than law.
In the case argued before the court today, Colorado seeks to remove Trump from the ballot in 2024. An argument of state's rights is being decided on. But the court is also being asked to decide who is an officer of the US government, was what happened on January 6 an insurrection, and if Trump participated in or initiated the insurrection. Even Ketanji Jackson seemed to argue for Trump and against most American citizens. Experts tell us that the questions justices ask don't always tell what their decision will be.
Although states usually control their elections, this time the matter of who has the power to remove someone from a state ballot is complicated by the fact that this is a federal election. A state's rights argument is fraught because state's rights have so often been used in the service of racism. This time it is the left saying that Colorado has the right to control its ballot (states' rights). The right is now saying that perhaps the Congress of the federal government must make some decisions about Trump and the events of January 6 before any court can decide. Does this back the argument of Trump's attorney that a president must be impeached and convicted by Congress before he can be barred from public office?
We will have to wait until February 16 to hear what the Supremes have to say but we can read, and we know what the Fourteenth Amendment says. It says that, after the fact, Congress can overturn a decision to ban someone from office for insurrection by a 2/3 vote. It does not give Congress the power to bar an insurrectionist from office; it states that this is a given.
We do know that there is a pathway to authoritarianism, and we are on it. That pathway involves stuffing the Supreme Court of the land with partisans who back the party and the leader intent on taking over the government. Done. It involves turning Congress into an inert body that obstructs all law-making until the intended leader is in power and making citizens question if elections are free and fair. Done and done. It involves introducing the element of fear of violence if the leader is not placed in power. Done. In November we will decide if America remains a democracy/republic or becomes an illiberal democracy (a euphemism for an authoritarian state that retains trappings of democracy). Be sure to vote and vote thoughtfully.