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Yesterday, we wrote that the College of Cardinals would probably choose a fascist to succeed Pope Francis whenever he shuffles off this mortal coil. Quite a few readers wrote in to remind us that is not likely because most of the College was appointed by Francis himself, and many/most/all Benedict XVI/John Paul II appointees won't be allowed to vote due to age limits (79). So what we have here is a system where elderly, mostly white, men who are much more conservative than the general populace, and who wear robes to work, eventually see their power significantly curtailed as they age. How can the U.S. sign up for something like that?

One Florida Man Down... Two to Go?

Mayor Francis Suarez (R-Miami) didn't exactly have many victories during this campaign cycle. He didn't top any state-of-the-race polls (or even crack the Top 5 in any of them), he didn't triumph in any of the various conservative conference straw polls, and he certainly didn't win the debate because he wasn't there. Yesterday, however, Suarez notched the first win of his campaign. That's right, he won the competition to be the first candidate to drop out.

Exactly what the point of Suarez' campaign was, we still do not know. He obviously wasn't going to be president; surely even he knew that. Presumably the goal was to get some name recognition, so that he can make a future play for the U.S. Senate, or governor, or a Cabinet post, or something like that. But he got in way too late, operated with far too few resources, and left far too early to actually burnish his brand. Now he's a political Icarus, a guy who flew too close to the sun too fast, and who came crashing down. Is an embarrassingly bad presidential campaign a plus on someone's political résumé? We certainly don't think so. And if you don't believe us, perhaps you could ask "Senator" Tim Ryan or "Governor" Beto O'Rourke.

Who will be the next to go? We assume one of the folks who could not make the debate stage, namely Perry Johnson, Larry Elder or Will Hurd. That said, we are not clear that those men are actually out on the road, campaigning. It's easy to stay in if that just means "continue to sit on your living room couch." Certainly, the bottom tier of debate participants—Gov. Doug Burgum (R-ND) and Asa Hutchinson—actually are putting in the work. They may get tired of it, particularly if and when it becomes clear they aren't going to make the second debate stage.

Of course, the only question that really matters is when the two Florida candidates will throw in the towel. For one of them, we would guess that date will be something like March 6, 2024. For the other, well, he might not ever throw in the towel, no matter what happens next year. Or, at least, he won't throw in the towel until the day it's replaced by a shroud. (Z)

Trump Likes Vivek

It's no secret that Vivek Ramaswamy has been remaking himself in the image of the ideal Donald Trump running mate. And, at least preliminarily, it is working. Yesterday, Trump was on one of the many right-wing platforms he frequents, and said that Ramaswamy is "smart" and "young" and "full of talent," and that "He's got good energy, and he could be some form of something." We are not exactly sure what Trump means by "some form of something," but we will guess that he's saying that Ramaswamy has the ability to transform himself into plasma at will. If so, that would not only make Ramaswamy eligible to join a Trump ticket, but also to join the Avengers. Always good to have options.

At the moment, if you had to bet, you'd have to put your money on Ramaswamy to be the pick. But it's a long time until the decision will be made, and we are very skeptical that he will ultimately be chosen, for these reasons:

Now that Ramaswamy thinks he's really and truly auditioning to be #2 (a position that, in a Trump administration, entitles you to be treated like a number two), he's going to go even further off the rails than he already has. It will be quite a show, even if the audition is likely doomed to end in failure. (Z)

Trump Has a New Hampshire Problem, Too--And No Guy from Vermont to Solve It

Recently, in view of the shortage of workers in the economy, Oregon got rid of the rule that drivers could not pump their own gas. That means that New Jersey is the last state left where the gas pumps are "hands off" for drivers. According to the linked article, not to mention polling on the matter, this is a source of much pride for Garden Staters.

This seems like a strange thing to be proud of, but it is what it is, and we point it out because it's an illustration of the fact that people tend to glom onto the things that make them, or their town, or their state, or their country, distinctive. And so, Joe Biden and the Democrats were rather unwise to try to take away New Hampshire's first-primary-in-the-nation status, which the New Hampshirites take considerably more seriously than the New Jerseyites take their gas pumping. Especially since the blue team chose a "replacement" state (South Carolina) that is not under Democratic control, so is not going to be changing to accommodate the desires of a Democratic president. This is why, as we wrote earlier this week, Sen. Bernie Sanders (I-VT) has been dispatched to New Hampshire to help clean the mess up.

As it turns out, Donald Trump might well have a problem in New Hampshire, too, and there is not one thing that Sanders can do about it (not that he would, if he could). Democrats across the nation have noticed that Trump might not be eligible to run for president, per the terms of the Fourteenth Amendment. And, as chance would have it, some Republicans have noticed, too. Such is the case in New Hampshire, where the state GOP is hotly divided on the issue.

There are actually three different schools of thought (although, in some cases, there is overlap). The first "school" is represented by Republicans who just don't want Trump as their standard-bearer, for a variety of reasons. The second is personified by Republicans who would be OK with Trump, but who are nervous about sticking with him too long, only to have the rug yanked out from under them if he's declared ineligible mid-2024. These folks believe it might be best to pull the band-aid off now, and give the Party the opportunity to hold a real primary. And the third the third set of ideas is held by Republicans who claim to be highly principled (and may well be so), and who like Trump but also believe the Constitution is crystal clear on this matter.

In New Hampshire, the leader of the "maybe we better look elsewhere" faction is Bryant "Corky" Messner, who is not only a Trump voter but who also ran for the U.S. Senate in 2020, with Trump's endorsement, before losing to Jeanne Shaheen (D). Messner, who endorses the third school of thought, remarked, "I'm a constitutional conservative. The words say what they say." He's actually open to still supporting Trump, but he wants the former president to take the matter to court, and to get a judgment clarifying that he's OK to run.

There is no doubt that Messner's view is the minority position among the members of the New Hampshire GOP. However, it is not the party members, or even the party functionaries, who decide which names appear on the ballot. It is the state Secretary of State, in this case New Hampshire Secretary of State David Scanlan (R). Scanlan has already been contacted by Messner (and by "there's no problem here" Republicans, like state GOP chair Chris Ager), and has said that he's looking at the matter and he's already solicited outside opinions.

Unless Trump drops dead, or his legal woes overtake him to the point that he drops out of the race, it is a certainty that somewhere (in fact, many somewheres), Trump's ballot eligibility will be challenged. But it's the first challenge that matters the most, because that one is likely to end up in the Supreme Court, and therefore is likely to answer the question for the rest of the country. This is one reason we mention the New Hampshire situation; by virtue of their early place in the primary voting line, and given that state officials are already looking into the matter, this could well become the test case.

The second reason we mention what is going on in the Granite State is that if it's a Republican who becomes the first to pull the trigger, that will significantly weaken arguments that this is some sort of Democratic-led/Biden-led deep state conspiracy. Trump would still claim that he's being victimized by deep-state RINO puppets, but we think that would impress very few people outside the base that's already voting Trump no matter what. If it's a Democratic SoS who pulls the trigger first, by contrast, the "political witch hunt" conspiracy theories will likely find a somewhat wider audience. (Z)

The Fourteenth Amendment, Part I: The Passage of the Amendment

Lo and behold! As you can see, there actually wasn't that much Donald Trump legal news yesterday. So, we have an opportunity to get to some of the things that have been on the back burner. Although one of those things is the historical background... to Trump's legal problems. Specifically, we thought we'd try to make clear, as best we can, why the Fourteenth Amendment is both very assertive, and yet also very vague, when it comes to disqualifying insurrectionists from political office.

To begin note that, bar none, there is no period of American history that is more difficult to teach than the Reconstruction Era (1865-77). The Colonial Era, the Revolutionary Era, the Jacksonian Era and the Roaring Twenties are no walk in the park, either, but nothing comes close to Reconstruction. There are many, many moving parts; there are a lot of nuances and subtleties that turn out to be very important; and things changed quickly on the ground, such that something that was definitely true in 1866 might be completely untrue by 1870. It's a real mess, and it's somewhat laughable that college professors are expected to teach The Civil War (doable, but also complicated) and Reconstruction in just one quarter or just one semester.

Point is, this isn't terribly easy. We've decided the best way to start is to run down the key considerations that played a role in the promulgation and adoption of the Fourteenth Amendment:

Now that the major considerations have been addressed, let's run down the key players in late-1860s politics:

As a consequence of the considerations outlined in the first list, there was plenty of potential in late-1860s America for broad, transformative legislation of one sort or another. After all, there were plenty of things that needed to be addressed, and the Congress was firmly in control of Republicans (the moderates plus the liberals) who liked the idea of flexing their muscles a bit.

That said, there were a couple of very big obstacles. The first of those was Andrew Johnson, who was more than happy to wield his veto pen, and did so multiple times, most notably for the Civil Rights Act of 1866. His veto was overridden, but that takes a supermajority, of course, and those are not always so easy to put together. Sometimes, but not always.

The second obstacle, meanwhile, was the Supreme Court. The nineteenth century was a time of limited government, and quite a few officeholders had serious scruples about what powers Congress did, and did not, have. And so, even many of the moderates who voted for things like the Civil Rights Act of 1866 wanted the Supreme Court to weigh in and confirm that everything was kosher. And even absent the moderates' concerns, people were nearly as lawsuit-happy back then as they are today. So, any transformative bills passed by Congress, even with a veto override, were likely to end up before the Supreme Court. And, as noted, the Supreme Court was a known unknown in the late 1860s.

There is, however, a workaround available. Or, at least there was from 1865 to 1870, or so. The one thing that a president can't veto, and that a Supreme Court can't strike down, is a constitutional amendment. And the fact that the Southern states had left the union conferred two... opportunities when it came to passing amendments. The first is that the states left with deciding power were Northern states, and more likely to sign off on something pieced together by a bunch of predominantly Northern congressmen. The second is that when Southern states rejoined the country, one of the prices of admission was... they had to sign off on the new amendments. If you were to try to pass, say, an anti-gerrymandering amendment today, then a state like Tennessee would be an automatic "no." Back then, not only was Tennessee not an automatic "no," it was an automatic "yes." The residents literally had no choice if they wanted back in. So, if that vote was needed, all that was required was to wait a little bit.

The direction in which all these threads were pointing was so obvious, particularly after Johnson became veto-happy, that there were more than 70 different variants of the Fourteenth Amendment put before Congress. At the same time, it was clear that the window of opportunity was going to close. First, as memories of the war faded, the taste for transformative change was sure to wane. Second, once Southern states were readmitted, they were no longer required to vote as ordered on amendments. Add it all up, and it's no surprise that the Fourteenth is something of an omnibus amendment that covers a great deal of territory. The Republicans in Congress just weren't sure they'd have another chance. They did ultimately get one more bite at the apple, with the Fifteenth Amendment (1870), but they didn't know that at the time.

The breadth of the Fourteenth is indicated by the vast number of issues in which it's been invoked, from jus soli citizenship (e.g., United States v. Wong Kim Ark), to the right to be represented by appointed counsel if you cannot afford an attorney (e.g., Gideon v. Wainwright), to access to contraceptives (e.g., Griswold v. Connecticut), to abortion rights (e.g., Roe v. Wade; Dobbs v. Jackson Women's Health Organization), to Japanese internment (e.g., Korematsu v. United States) to voting rights (e.g., Shelby County v. Holder).

But now let us return to the main question at hand. Here is the actual passage from the Fourteenth Amendment that might (or might not) apply to Donald Trump and his band of merry co-conspirators:

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.

This passage was put into the amendment for two main reasons, both of which we've already mentioned. The first is that there was an actual problem with Confederates being elected to high office. The second is that the members of Congress wanted to be on 100% firm legal ground when they rejected former Confederates who showed up with their certificates of election. Recall that jurisprudence making clear exactly which members Congress can, and cannot, refuse to seat was close to 100 years in the future.

But why is it so imprecise? There are three good answers to that question. The first is that the members did not know what form an insurrection might take in the future. For Americans today, the only true insurrection in U.S. history was the Civil War. But someone living in 1868 might well have living memory of other rebellions that were quite different from the Civil War. They might have thought about Dorr's Rebellion (1841-42), or perhaps one of the slave rebellions, like Nat Turner's Rebellion (1831). They almost certainly were thinking about various acts of resistance undertaken by the Native Americans, like the Sioux Uprising of 1862. They might also have been mindful of incidents from recent European history, like the Revolutions of 1848. The upshot is they had every reason to think that insurrection could take many forms, and it was necessary to cover for them all, as opposed to trying to implement a definition for what does and does not constitute "insurrection."

A second issue is that the courts still had plenty of Democratic appointees left over from the string of Democratic presidents who served prior to Lincoln. Meanwhile, as of 1868, Congress had already acted decisively to eject Confederate members-elect. So, at the moment the amendment was passed, most members undoubtedly preferred to reserve the enforcement of this clause to themselves. That said, they knew that a pretty Democratic and conservative judiciary, and an overwhelmingly Republican Congress, were not states of affairs that would last forever. This is why the Amendment includes no clear directions as to who gets to decide on disqualification, or even if any decision is needed at all. The members had some fairly good reasons to keep it loose, and to neither claim the power solely for themselves nor to assign it to some other entity.

Third, and finally, there were a lot of moving parts when it came to the Fourteenth Amendment, with a lot of different stakeholders needing to be accounted for. And the fact is that the trickiest and most contentious issue was the freedpeople. That's where most of the attention and energy and political capital was expended. As to the Disqualification Clause, it might have been hammered out a bit more in different circumstances, perhaps. But it also might not have passed under different circumstances.

And that, in a nutshell (admittedly, a pretty lengthy nutshell), is how the country ended up with a dictum that is simultaneously assertive and vague. In the next part, we'll talk about how the Disqualification Clause was, and was not, enforced, and why, in the years immediately following the adoption of the Fourteenth Amendment. (Z)

Democracy Is Not Doing Well in Tennessee

Assuming you don't skip around (or just skip), you just read an item about the year 1868. Now we have a couple of stories that are actually from 2023, but might as well be from 1868.

To start, from Black Codes back in the Reconstruction Era, to birthing the Ku Klux Klan, to literacy tests, to voter ID laws, Tennessee has always been an "innovator" when it comes to keeping certain groups of people from voting. We don't want to give away the surprise ending and tell you who those certain groups might be, but we'll give you a hint: It's not white people.

In recent weeks, the state often described as the worst in the country for voting rights has been at it again. In Tennessee, voting is overseen by the Tennessee Election Division (TED), which answers to the state Secretary of State, currently Tré Hargett. We do not know why his nickname is Tré, since his real name is Gus Lusk Hargett III. Maybe it's because of that III, maybe it's because he used to run the Tennessee Regulatory Authority (TRA), maybe it's something else. If a Tennessee reader knows the answer, please do send it along. What we do know about Hargett is that he is a Trumper, a fan of Confederate icons like Nathan Bedford Forrest, and an anti-vaxxer. He's also no fan of voting rights; at the height of the pandemic he tried to put a stop to voting by mail, and was overruled by a Tennessee court. Hargett is also unelected, by the way; in Tennessee the sSoS is chosen by the legislature. So, his only constituents are the (mostly Republican) members of the legislature.

These things being the case, it's not a shocker that last month, presumably with the boss's approval, TED officials announced a new interpretation of state law. If someone in Tennessee is a convicted felon, it used to be the case that in order to restore their voting rights they had to undertake a paperwork-based process that was inefficient and poorly managed, but at least was doable. Now, convicted felons have to go through that process and then get approval from either a court or the governor before being allowed to vote.

Most of the 470,000 Tennesseans who are convicted felons are not friends with the governor, and do not have the money to hire a lawyer for a court proceeding. So, unless there is a new "interpretation" of the rules, perhaps at the business end of a court order, then they will largely be disenfranchised. And in case you are wondering, Tennessee is one of the states where convicted felons are disproportionately non-white. The full list of states like that is Tennessee, plus the other 49.

Meanwhile, in an apparent attempt to make martyrs out of molehills, the members of the Tennessee legislature are at it again when it comes to silencing their minority colleagues. State Rep. Justin Jones (D), who is a minority in both ways that term is used in U.S. politics, is one of the now-famous "Tennessee Three." During a debate over gun-related legislation, he had some strong opinions (though expressed in workplace tone of voice) on the subject. Rather than hearing what he had to say (or just waiting until his time had run out), the majority voted to silence him for the rest of the day. The underlying justification is that he was talking about things not in the bill in question, since he was mostly listing things that the legislature should be doing to help combat gun violence (as opposed to putting more armed cops in schools, which is what they are going to do).

And guess what? The rule used to shut Jones down was ostensibly only temporary, and adopted because the legislature is in special session right now and so can't afford to be wasting time. However, Tennessee House Speaker Cameron Sexton (R) liked what he saw (or, more accurately, what he didn't hear), so now he's talking about making those rules permanent.

We'd hate to sound conspiratorial, but if you squint just right (or you don't squint at all), it sure looks like Tennessee Republicans are doing everything in their power to keep Black and brown Tennesseans from having a voice in their own government. Or, maybe we're just crazy. After all, we once read an article on Critical Race Theory. And you know what that does to a person. (Answer: It makes them trans, as we understand it.) (Z)

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