Thread by @judgeluttig

I apology for the length of this rejoinder. A "Letter to the Editor" seemed futile for the needs and purposes of this tweet. Thank goodness for Twitter!

This editorial today by @washingtonpost is perhaps the most journalistically incompetent and irresponsible editorial on the Constitution of the United States and a question of constitutional law by a major national newspaper that I ever remember reading.

The editorial inauspiciously begins by "misquoting" the Disqualification Clause of Section 3 of the Fourteenth Amendment itself, next dismissively pronouncing the argument for disqualification made by the nation's foremost constitutional scholars as little more than "intriguing,"

and then admonishing the American public that "banking on an arcane paragraph to protect the country from a second Trump term would be foolish" of them.

(Note: Section 3 of the Fourteenth Amdt. is, in the WP's opinion, an "arcane paragraph" of the Constitution of the United States, presumably best ignored, and then note the conspicuous omission of the word "Constitution" from anywhere at all in this damning editorial paragraph.)

The Washington Post never tells us why the American public should not rely on a provision of their Constitution of the United States because to do so would be foolish. But it is probably because, as we see in the newspaper's buried cynical lede in the concluding paragraph,

the WP fears the current Supreme Court will never interpret the Constitution to disqualify the former president, no matter what the Constitution says.

One would at least expect that serious reasoning would have to follow in support of its warning that the American public's resort to and reliance upon the Fourteenth Amendment would be "foolish." Instead, what follows borders on, if it does not pass into, the silly and absurd.

All the editorial offers thereafter by way of "reasoning," such as it is, is a chronicling of its own (no one else's) on-the-one-hand on-the-other-hand, hand-wringing confusion over (1) the "hurdles [that] involve the provision’s legal intricacies.

For every clause comes a question," you know, and "the answers, in most instances, aren’t terribly clear," the WP tutors us as if we were school children, (2) the "confounding . . . debate" over whether, even assuming Section 3 remains in effect," it applies automatically," and

(3) the issue of whether Donald Trump [is] an insurrectionist," which the WP allows makes "all these [other] quibbles seem academic." As to this one issue the WP deems important, it proceeds to give with its one hand what it promptly (and mistakenly, by the way) takes away

with its other: "There’s a strong case that the events of Jan. 6, 2021, meet the definition of insurrection[,] there’s less of a case, however, that Mr. Trump engaged in this insurrection[]," primarily for the reason that "the various prosecutors who’ve indicted him so far have

charged him with plenty of crimes — but not, notably, the federal crime of insurrection." (This latter point is probably the singularly most unpersuasive point one could possibly make for the proposition the WP enlists it for.)

But far more damning is that both points rest on the WP's "misquotation" and palpable misunderstanding of Section 3 as disqualifying one who engages in an insurrection or rebellion against the "United States" or gives aid or comfort to the "enemies of the United States,"

rather than as disqualifying, which the Disqualification Clause does by its actual terms, one who engages in an insurrection or rebellion against the "Constitution of the United States," or gives aid or comfort to the "enemies" of the "Constitution of the United States."

The WP, in other words, mistakenly believes that Section 3 "approved just after the Civil War, declares that no one who has “engaged in insurrection or rebellion” against or “given aid or comfort to the enemies” of the United States may hold a number of high federal offices."

Suffice it to say, there is a world of constitutional difference between the WP's misstatement of the Constitution's text and the actual text of the Constitution itself.

And with this "analysis" of the constitutional question, the WP throws up its hands (and throws in the towel), likely in exasperation from its own utter confusion over what it "wants" to say to the American People about their Constitution and the former president:

"Where all this leaves the courts that may eventually adjudicate this subject is unclear."

But not even this, before last asking us to "imagine that all these concerns, constitutional and philosophical, could be surmounted[]" and then leaving us with what the Washington Post

apparently and also mistakenly believes is the most unanswerable of all questions, namely, "The question of how the disqualification is actually supposed to happen" -- which, of course, is quite possibly the easiest question of all to answer.

Finally and mercifully, the editorial comes to an end with what one must believe is the long ago buried, cold-in-the-ground, cynical lede: "The disputes that invoking Section 3 of the 14th Amendment would elicit would almost certainly make their way to the Supreme Court

— where the chances of Mr. Trump’s disqualification being affirmed seem low."

washingtonpost.com/opinions/2023/…