07 January 2024

Three Years Later

I still dare call it treason. (Migraines do not respect precise anniversary dates.) Or if not within the strict confines of "treason" — which is admittedly, and perhaps vehemently so, something that requires clear proof of acts notwithstanding state of mind, and the evidence is not yet of record however convinced I am that the forthcoming trials will do so — then an attempted coup nonetheless falls within the broader scope of "insurrection."

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.

U.S. Const. Amd XIV § 3 (no corrections or changes made). So there; and not just as to the ballot for President.

   Which is not to say, at all, that if this text were presented to me as a student exercise today, I wouldn't exhaust all the ink in a red pen on it. It lacks definitions, and mixes technical and common-to-the-social-class-of-the-drafters language that may mean/have meant something slightly different to the voter in the street (let alone the ESL/other-immigrant voter in the street); it's poorly punctuated; the order of incidences of disabilitydisqualification is neither historically nor military-theoretically appropriate; it revolves around a single run-on sentence that should instead be a nonnarrative list; and the wording of the mechanism for lifting the disqualification leaves just enough doubt as to what has to be demonstrated to disabledisqualify to allow allies of those disableddisqualified to argue about it. This is a zero draft.

And this rather snide quasieditorial comment is also a rather snarky rejoinder to advocates of "original public meaning" originalism who presume that all source texts were created by fabulously competent writers who said what they meant and meant what they said, and further neither understand nor simultaneously impose contemporaneous-to-the-writers nonvocabulary written-word understandings. Silly things like the now-disfavored use of precatory clauses (see, e.g., U.S. Const. Art. I § 8; id. Amd. II). Silly things that turn "original public meaning originalism" into a moderately-well-disguised exercise in translation, with all of the pitfalls of obtaining directions to a nunnery using an Ordnance Survey map of London from 1987 (I happen to have one on my bookshelf; and it has a number of clear, relevant locations, for Bethlehem if not for Jerusalem).