Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment
From the Introduction:
What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.
Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.
And From the Conclusion:
It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.
I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.
Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?
An important topic.
“Frank and Civil Discourse”…? We tried that with the Tea Party. Now it’s time for the cultural/political/legal version of Sherman’s March to the Sea. Once the Dems have been reduced to Lee’s position at Appomattox, then we can have frank and civil discourse…. About the conditions for their unconditional surrender.
Mr. Tillman, you take your historical vantage point as the surrender at Appomattox and the end of the First American Civil War. Sadly, it can be argued that our current situation is just the opposite of a “Frank and Civil Discourse”. What passes for our national discussion, in our main stream media, is partisan political agitprop. Elected officials, in both the Executive branches of state, federal, and local government, and in the legislative branches of the same; can be expected to neglect their duties and the law for personal and political benefit. The laws, especially as applied to those not in any official position, are not applied in any recognizably even way.
Your Humble Servant spent the bulk of his working life “fighting felons”. And in an overwhelming percentage of the cases those in charge of prosecution and judgment chose to plea down the crimes to a level where the convicted criminal would functionally be given a pass for most of the harm he/she had done. When the equity of the criminal justice system and the surety of punishment according to the law are things that cannot be depended upon by the mass of the population; national reconciliation is not at the top of everybody’s agenda. I fear the world I am leaving to my grandchildren.
Subotai Bahadur