Memeorandum points me to an essay by Teri Kanefield that dissects how the 14th Amendment’s Insurrection Clause went from vestigial afterthought to novel legal theory to cause of partisan outrage in a span of three years. It’s part of a larger project of hers on what she terms “The Misinformation-Outrage Cycle,” the tendency of the pundit class to paint complex issues as black and white and thus generating anger if the outcome doesn’t go their way.
Edited to add: It’s worth noting at the outset that Kanefield isn’t a Trump defender. Indeed, she’s a longtime Democrat, going back to at least the Carter campaign in 1980, and has spent most of her long legal career working for indigent defendants and fighting for voter rights and just treatment of asylum seekers.
The piece is worth reading in full but the timeline is roughly this:
Before the 2020 election, nobody gave much thought to Section 3 of the 14th Amendment.
December 29, 2020, and January 19, 2021, Law professor Gerald N. Magliocca wrote a detailed paper entitled Amnesty and Section Three of the Fourteenth Amendment outlining the history of Section 3, how it has been applied, and it might in the future be applied. Then he published a similar piece in Lawfare.
Indeed, my first OTB commentary on the idea, “The Disqualification Clause and January 6,” came the very next day, in response to a NYT piece by the late Blake Hounshell and Leah Askarinam. I was “highly skeptical” of the idea but noted that it “really hasn’t been tested” and speculated as to how it might be.
Regardless, the idea gained steam:
February 4, 2022: This is from law professor, Brian Kalt, who was interviewed for Politifact, said this about section 3:
In the same Politifact piece, Princeton political science professor Keith Whittington observed that Trump was “potentially” among the “likely candidates” who could “reasonably” be kept from office under Section 3:
June 6, 2022: Democracy Docket published an explainer on How the 14th Amendment Could Disqualify Trump and His Allies. Among other things, the article asks: “How does Section 3 apply to those who engaged with the Jan. 6 insurrection?” and concludes that, “Important legal questions remain unanswered.
December 16, 2022: House Democrats introduced a bill to bar Trump from office under the 14th Amendment. The proposed legislation went into detail about how Trump pushed Pence to refuse to certify the election, failed to do anything to stop the mob, etc. (Obviously the bill was never passed.)
Common to all of those pieces, Kane notes, was that “the issues in applying section 3 of the 14th Amendment are complex and good arguments could be made on both sides.”
Indeed, in what appears to be my second post on the matter, “Banning Trump From Office,” a response to the January 6 Committee invoking the Clause, quotes numerous legal scholars noting that many questions, including whether it even applied to the Presidency, were completely unsettled.
So what happened?
August 19, 2023: Laurence Tribe and Judge Luttig publish a piece in The Atlantic with this headline:
The Constitution Prohibits Trump From Ever Being President Again
The subtitle is this:
The only question is whether American citizens today can uphold that commitment.
September 6, 2023: CREW filed a lawsuit to remove Trump from the ballot in Colorado under section 3 of the 14th Amendment. Here is their press announcement. As you would expect from litigants filing a lawsuit and making a press announcement, what they release is powerful advocacy:
Suddenly, there were no questions! It’s black and white! Any answer other than banning Trump from office as an insurrectionist was dereliction of duty!
Tribe is a recurring character throughout the rest of Kanefield’s essay. What’s amusing—and I only realized going back through my own writing on this—is that he was quoted in the aforementioned NYT report twenty months earlier:
Laurence Tribe, an influential law professor at Harvard University, has held private conversations with several members of Congress on the topic as they puzzle through how statutes written in the 1860s might apply in an entirely new context. And while Tribe’s view is that Jan. 6 was indeed an insurrection, it is by no means obvious how courts will interpret the 14th Amendment without clearer signals from Congress.
“You’re dealing with a very murky and open area of constitutional law,” Tribe said in an interview.
But, having gone on the record with a bold declaration on the matter and the filing of a lawsuit trying to bring this once-novel idea to fruition, steam gathered.
Kanefield embeds a series of ever-more-excited Tweets from Tribe on the matter, including this one:
And various pundits going on television and declaring that the Constitution and democracy itself were at stake in the case. And, suddenly, it was no longer a murky legal theory but a slam dunk. The only question was whether the courts would have the fortitude to do what was right.
Fast forward to a unanimous SCOTUS ruling striking down the Colorado ruling and, quite naturally, people are angry. Even the three liberals are coming under attack for failing to do their obvious duty under the clear language of the Constitution.
Kanefield’s argument is not that the Court got it right. Rather, it’s that by giving the impression that no other outcome was reasonable, legal pundits did a disservice to the public.
Tribe and Luttig are not behaving the way an expert should behave. Instead of trying to educate the public about the law and how it works, they are acting like advocates. People think everything Larry Tribe says is true and he lets them think that.
As a result of Tribe’s time on TV and social media, the public is less educated, not more. I consider that a problem.
In the context of her larger project:
If everyone who appeared on cable news was an emotional hothead, the network would have zero credibility. But when reasonable opinions are set alongside emotionally charged doomsday opinions, people remember doomsday opinions.
Moreover, putting lots of opinions next to each other doesn’t clarify an issue, particularly when the opinions are not flagged as opinions but are put forward as if they are facts. It creates noise.
Noise, in fact, is a Russian propaganda technique. Here is how it works: Russian TV doesn’t shut down truth-tellers. Instead, they release a lot of noise, putting bad information alongside the truth. People come away confused and feeling like the truth is unknowable.
As a result of our current information disruption, people who inhabit certain media ecosystems are being sprayed with a firehose of speculations, conjecture, and hype. They get confused. They don’t know what the truth is.
[…]
Unfortunately, many people who are continually confused (and who are accustomed to casting blame) may conclude that the entire system is hopelessly broken. People who believe a democratic system is hopelessly broken, instead of seeing that democracy is flawed, will give up on democracy. Russian disinformation deliberately tries to confuse people and make them think democracy is hopelessly broken so they give up on it.
Intellectual humility is the lifeblood of a scholar but, alas, deadly for a pundit. “I don’t know” is the beginning of wisdom but makes for a lousy debating stance. And, even if the incentives didn’t otherwise mitigate against it, it’s next to impossible to convey complexity in 15-second sound bytes or 160-character Tweets.
It’s also, frankly, just to become too caught up in the rightness of our own analysis. Two years ago, Tribe had no stronger opinions about the Insurrection Clause than I did, having given it very little thought. When Magliocca introduced the idea in the aftermath of the 2020 election, it would likely have remained that way were it not for the events of January 6 gave rise to applying it to Trump and others. The more he thought about it, the more Tribe liked the idea and, eventually, hardened his stance such that what once was a “murky” and “open” question was now one with no room for debate.
While I started and remained skeptical that the “14th Amendment Solution” would or should remove Trump from office, the more I read about it, the more plausible the idea seemed. While originally dubious, I came to agree with my colleague Steven Taylor that the processes in both Colorado and Maine were actually thorough and well-considered. But, not being a renowned legal scholar like Tribe, I never developed anything like his level of certitude.
Indeed, when I blog about novel suggestions or most areas outside a few areas of genuine professional expertise, I’m almost always doing so to generate conversation and enhance my own understanding through the back-and-forth. Unfortunately, too much of our national conversation takes place in the arena that rewards loud declarations that things are Black or White with no room for gray.
