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Culture War Roundup for the week of December 11, 2023

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The 14th Amendment is rather quiet about how it's insurrection rule is to be enforced: it's not clear who actually gets the power to decide "insurrection" occurred. The federal courts? The states? Local officials setting up ballots?

All the amendments are similarly quiet. The idea that it is specifically the courts that are responsible for enforcing (say) the 1st amendment is quite recent. At the time of the founding, the dominant view was that all political actors were obliged by their oaths of office to act constitutionally - that legislators should not pass unconstitutional laws, presidents should veto them if they do pass, etc.

The same approach to section 3 of the 14th is that it is incumbent on everyone not to allow insurrectionists into office. Parties should not nominate insurrectionists, secretaries of state should not put them on the ballot, voters should not vote for them, presidential electors for insurrectionists should go faithless (the Constitution overrides faithless elector laws) and the joint session of Congress should object to the electoral votes if they don't. The job of the courts is then to handle the inevitable litigation when people disagree about whether Trump really is an insurrectionist. Obviously, this is bad and puts you straight in a constitutional crisis.

But America is already in a constitutional crisis. Either Trump is right and you are a country where elections are routinely rigged, or Trump is lying and you are a country where there are no electoral consequences for spamming false allegations of vote-rigging the way most politicians spam promises of other people's money and demanding criminal investigations of local election officials for doing their jobs, or Trump is delusional and you are a country which is about to elect a madman as chief executive.

This is scary, man. And I don't even live in America.

But America is already in a constitutional crisis. Either Trump is right and you are a country where elections are routinely rigged, or Trump is lying and you are a country where there are no electoral consequences for spamming false allegations of vote-rigging the way most politicians spam promises of other people's money and demanding criminal investigations of local election officials for doing their jobs, or Trump is delusional and you are a country which is about to elect a madman as chief executive.

  1. Even if this was a trilemma, it would not constitute a Constitutional crisis.

  2. Elections being routinely rigged are bad, but not a Constitutional crisis. For it to be a Constitutional crisis it would have to set up a situation which at least apparently could not be resolved within the Constitution.

  3. There being no electoral consequences "spamming false allegations of vote-rigging" is also not a Constitutional crisis. Electing liars is something which happens every election day, and claiming something different about this particular lie is blatant special pleading.

  4. Electing a madman as chief executive is very bad but also not a Constitutional crisis.

  5. It is possible for Trump to be wrong but neither lying nor delusional, thus, no trilemma.