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The Shameful Failure of Yesterday’s SCOTUS 14th Amendment Arguments

The simple reality is that the future of American democracy is as much on the line now as it was in 1866. That was lost in yesterday’s arguments, but should have been central to them.

The single most astonishing thing about yesterday’s oral arguments before the Supreme Court was the almost complete lack of historical context in those arguments about an insurrectionist staying on the ballot.

The fear that led Colorado to ban Trump from the ballot was that he’d keep his word and “suspend the Constitution” and “be a dictator on day one.” Neither were mentioned even once: the words “suspend” and “dictator” don’t appear anywhere in the transcript.

And yet that is exactly what provoked Pennsylvania Congressman Thaddeus Stevens, Michigan’s Senator Jacob Howard, and New York’s Senator Roscoe Conkling (and 12 others) to write and push through Congress the 14th Amendment.

The Confederate states had ceased to be a democracy in any real sense by the late 1830s, as I detail in The Hidden History of American Oligarchy, with the wealthiest families in each of those states running them like dictatorial fiefdoms.

When their political or economic power was challenged, they were not at all reluctant to beat, imprison, and even lynch poor or working-class whites: much like today’s Russia, no dissent was tolerated. If somebody tried to launch a serious political challenge against one of the Old South’s oligarchs during that era, they most frequently ended up dead or being burned out of their home.

That is the American Trump is promising to bring us back to “again.”

Compounding this, Lincoln had made the horrible mistake of taking a slaveholder, Andrew Johnson, as his second-term Vice President — a largely futile effort at healing the nation — and when Lincoln was assassinated the following year and Johnson became president, Congress freaked out.

On the Supreme Court, both Chief Justice Roger Taney and Associate Justice Samuel Nelson were in poor health; Taney had authored the notorious Dred Scott decision (and had earlier owned enslaved people) and Nelson’s tuition through law school was paid by his father selling one of his family’s enslaved individuals.

So Congress — fearing President Johnson was preparing to appoint another Confederate sympathizer to the Court — passed legislation in 1866 cutting the size of the Supreme Court from ten to six members.

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That’s how concerned they were — and how extreme an action they were willing to take — to rescue the fragile democracy that the Confederate oligarchs had just recently tried to destroy.

Congress, particularly the Radical Republican faction Stevens led, then essentially went to war with President Johnson and those who supported him, who bitterly opposed ratification of the 14th Amendment.

The landslide victory of the Radical Republicans in the election of 1866 arguably saved the day for the Amendment and helped save American democracy.

That virtually none of this history was mentioned by the attorneys representing Colorado in the arguments before the Court yesterday is tragic; even worse is how the justices seemed so intent on finding technical reasons to ignore the plain language of the Amendment’s Section 3.

“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.”

The simple reality is that the future of American democracy is as much on the line in this case as it was in 1866. That was completely lost in yesterday’s arguments: it should have been central to them.

So, why did even the “liberal” wing of the Court go along with this charade? Was it because, like Mitt Romney said of his Republican Senate colleagues who failed to convict Trump in his second impeachment, they were afraid for their own safety?

As Romney’s biographer, Atlantic writer McKay Coppins, wrote:

“One Republican congressman confided to Romney that he wanted to vote for Trump’s second impeachment, but chose not to out of fear for his family’s safety. The congressman reasoned that Trump would be impeached by House Democrats with or without him — why put his wife and children at risk if it wouldn’t change the outcome?

“Later, during the Senate trial, Romney heard the same calculation while talking with a small group of Republican colleagues. When one senator, a member of leadership, said he was leaning toward voting to convict, the others urged him to reconsider. You can’t do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right.”

Were we watching the consequence of Trump’s thuggish threats? After all, just a few weeks ago Trump attorney Alina Habba said on Fox “News” of Bret Kavanaugh:

“You know, people like Kavanaugh, who the president fought for, who the President went through how to get into place, he’ll step up.”

Nice little house and kids you’ve got there, Brett; be a shame if something were to happen to them…

This is how fascists and authoritarians have seized and held power for all the millennia we’ve had what we call civilization: by inducing terror. Just ask Ruby Freeman or Paul Pelosi. Or read Shakespeare or the Bible. Or talk with Alexi Navalny’s wife.

Did they never learn in American History class that there was a time, spanning about a generation, when democracy had been replaced by strongman oligarchy in the South and Trump is merely echoing the values and postures of that time?

That the 14th Amendment was written to prevent or rescue us from exactly today’s situation?

Stevens, Howard, and Conkling went to their graves believing they’d secured America’s future. Tragically, Trump’s lawyers, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence “sugar baby” Thomas (among others) proved they were wrong.

Yesterday’s hearing was a disgrace. Now that the Supreme Court has apparently failed in their responsibility, it’s up to us to prevent this monster or anyone like him from ever again setting foot in the halls of American power.

Make sure everybody you know is registered to vote and understands what’s at stake this November.

Thom Hartmann @THOMHARTMANN NY Times bestselling author 34 books in 17 languages & nation's #1 progressive radio host. Psychotherapist, international relief worker. Politics, history, spirituality, psychology, science, anthropology, pre-history, culture, and the natural world.

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