MAGA, Biden, and the American Core

 In the upcoming presidential race between Trump and Biden, I am for neither.  I think either one, if elected, will have serious detrimental effects on the country.   So many people say they will pick between “the lesser of two evils”, but don’t they realize that even picking the lesser evil is indeed picking an evil?

But is it possible that only one is the evil and the other is simply going to be a terrible president?  But then again, if both are simply terrible, we have the same problem:  picking the less terrible is still picking the terrible.

I do think the two candidates are terrible (or perhaps evil) in different ways, and while I do not want to vote for either, the difference that I explain below helps me choose one over the other, but only if absolutely necessary to try to stop the one that I truly cannot vote for.

America is resilient but only if…

I believe that America can recover from just about anything as long as her core remains intact.  By her core I mean the keys to our democracy:  the Constitution, the three separate and co-equal branches (judicial, legislative, executive), the rule of law, and the core/original cabinet departments (Defense, State, Treasury, Attorney General).

While one or more of these may be battered and weak from time to time, as long as they are not destroyed they can and will give this country the way and means to recover, even from a terrible or evil administration.  But, if any of these are significantly damaged to the point that the people no longer respect or support them, then this country will not have the necessary tools to recover.

I believe that only one of the two major candidates is actually acting in ways that undermine and have the potential to destroy this necessary American core.  That candidate is Trump.

The key difference between the terribles

Biden wants to transform America into a more progressive (socialist) state.  He and the Progressive Left do this by using the core institutions while at the same time transforming them to a more progressive framework.  The institutions are not destroyed although they may be significantly altered. 

Yes, one may argue that if altered enough, these institutions, and with them America, are effectively destroyed.  But I do not think that is the intent nor the likely result of the progressive Left whose policies Biden has adopted.   Neither the Left nor Biden disrespect the institutions themselves, but only the fact that they are not as progressive as they believe they should be.  They may disrespect opponents, even to the point of aggressive legal and other actions against them, but even then they are using (in some cases misusing), not trying to destroy, institutions.

In contrast, MAGA, led by Trump, openly attacks and undermines the institutions themselves.  If those institutions do not totally favor MAGA positions, then MAGA has no use for them, distrusts them, calls them corrupt, and would do away with them.  If MAGA loses on an issue, then the institutions involved in that decision are labeled bad and are given no respect.  If MAGA dislikes one individual within an institution, rather than attack the one individual, it attacks the entire institution of which that individual is a part.

MAGA, led by Trump, has disrespected and failed to accept our Constitutional electoral process since 2020 when Trump lost.  They believe the entire justice system is corrupt because Trump has been charged with offenses based on facts that can arguably support the charges.  They disrespect and condemn the jury system when a jury finds Trump liable.  They believe laws they do not like do not apply to them.

Beyond the justice system, Trump and MAGA assert that core administrative departments and their agencies are beyond repair.  Their vitriolic language disrespects all three branches of government, core departments, and the Constitution.  Their active and blatant expressions of hatred for these core American principles and institutions are on display daily and are effectively undermining those principles and institutions as the disrespect, distrust, and hatred worm their way into the minds of the American people.

While Biden and his party lean heavily socialist, they know that they need these institutions that they are trying to transform in their goal to transform America.  This is why they will not destroy them.

Trump/MAGA on the other hand are a purely populist movement based on mob rule which does not need these institutions.  And the fact that this populism is led by a leader who demands absolute adherence also indicates that there is little if any respect, let alone need, for these core institutions. 

I listen to these two men when they give their campaign speeches about America.  We all know that these are nothing more than campaign words, but Biden’s, even when he attacks his opponent and his policies, always includes some sort of references to America as a good place while Trump will tell us that America is currently a horrible place, primarily because his opponents are in power. 

I would prefer that a president or presidential candidate remind and uplift us about America rather than tell us that we should hate our country because politicians with different policy views have been elected.  It is not hatred, but a positive and tolerant view that will be necessary to correct whatever damage the next four years bring.

Trump has never been a statesman.  His rough mannerisms have always been unpleasant. But in 2016, a time when much of America was feeling hopeless, we needed someone to shake us up a bit and remind us that we, America, are capable of a can-do and hopeful existence.  He pointed out some things that needed fixing and made America believe we could fix them.   For the first two years of his presidency Trump gave renewed hope to many in this country and that was a good thing. 

But Trump also showed us his divisiveness, his ability to goad his “enemies” into attacking him and also inciting the desire in them to simply create assaults against him on their own. The country became focused on attacks, counterattacks, investigations, counter-investigations and a growing actual hatred against political opponents who came to be seen as literal “enemies.”  If Obama divided the country based on identity politics, Trump took that to a whole new level based on party politics and refusals to even talk to, let alone compromise with those “enemies”, even for the good of the country and its represented populace.

Authoritarian expert Ruth Ben-Ghiat has stated that Trump’s ability to play the victim “does not get enough attention in that it makes his followers feel protective of him.”  She explains that anything that happens (or continues to happen) to him “is just confirmation of this belief that he is a victim being persecuted.”  And now Trump incites his followers to hate those enemies who persecute him, including the core American institutions that he sees as part of this attack. 

In the end, destruction is worse than transformation – it’s, well, totally destructive.

Socialist transformation is, well, transformative, and in the end not a good idea, especially for America, but it is reversible if we have our American core to support us.   But if that core collapses due to and is undermined by distrust, anger, and hatred incited by the country’s leader, that core has effectively become completely ineffectual.

In 2028, America will not be the America of 2024.  The question is, what will the new leaders of 2028 have to work with as they lead America forward.

Trump has made it clear that if elected for a second term he will at least in part focus on revenge for what he perceives as the many attacks against him.  If we follow his thinking, his words, those attackers include not just individuals, but the core institutions of America themselves.  Without respect for the core of America he cannot possibly uphold his oath to preserve and protect her.

And, if the attack on these institutions succeeds, we will have no America to help us to recover.  But, if we elect a terrible president who is not hell-bent on revenge against the very country that he is elected to lead, the core of that country will give us the strength to recover from whatever damage he may have done.

In the final analysis, at this time in America, I am Pro-America but Anti-Trump.

Thoughts in reading today’s opinion in Trump v. Anderson

 

“What it does today, the Court should have left undone.”

              -Concurring opinion of Justices Sotomayor, Kagan, Jackson

The general principle is that a court can only decide the case before it and once it has done so it should not go further and give what amount to advisory opinions on future possible controversies.  Yet that is exactly what the Supreme Court per curium opinion does in Trump v. Anderson.   While the Justices unanimously agreed that the federal government rather than a state must decide the question of disqualification for federal office under Section 3 of the Fourteenth Amendment, four Justices disagreed with the remainder of the majority opinion.

Opening of 20 page Opinion

The unanimous Court decided that Colorado, a state, did not have the authority to remove Donald Trump’s name from the 2024 presidential primary ballot in Colorado pursuant to section 3.  At that point the case was decided and the Court should have stopped.  But the majority went on and the remainder of their opinion, which I believe in the end is nothing more than dicta, is incredibly damaging to the Constitution and to the federal-state relationship.

First, let me briefly comment on the unanimous part of the decision.  The Court concludes that “States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”  I do not happen to think that the Court’s legal reasoning is strong here. The Court seems to pull simply this piece and that piece of the Constitution almost out of context to attempt to present what appears to be a strong logical argument to support the conclusion but which is really, it seems, based on the simple fact that the Supreme Court doesn’t want the Colorado court to decide this because of the chaos it might create.  But, strong or not, this is the Court’s decision and the result is that Trump will appear on the ballot.

And we could all stop there.  Happy or not with that decision, it is the decision of the Court and we could and should move on.

But the Court does not move on.   Instead, it addresses issues and questions that are not before it and which it has no business deciding as a part of this case.  

As Justice Barrett stated in her concurring opinion: “I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.”  She further points out that this was a state case brought by Colorado voters under Colorado law and did not require the Court to address questions of federal legislation related to Section 3.  Yet the Court’s opinion did just that.

The Court decided that a Section 3 disqualification can only occur when a particular type of legislation is enacted by Congress.  As Justices Sotomayor, Kagan, and Jackson point out in their concurrence, the Court has not only shut the door to any potential other means of federal enforcement of section 3, it also insulates petitioner Trump from future controversy – controversy not currently before the court – over this question.

Perhaps ironically, this decision which diminishes state authority while broadening federal legislative authority will likely be most favorably received by Trump supporters who typically demand broad state rights and limited federal authority.  Similarly, this opinion reflects a very activist court, something that Trump supporters generally abhor.

The Court’s opinion that federal disqualification requires legislation,  as the concurring opinion of Justices  Sotomayor, Kagan, and Jackson makes clear,  is not supported by the text of Section 3 or the rest of the Fourteenth Amendment.  As that opinion suggests, the Court simply created a special rule for insurrection disability out of thin air.  And, it had absolutely no need to do so, no need to even address this issue, when the entire Court had already agreed and decided that Colorado could not remove Trump’s name from the ballot. That unanimous opinion effectively decided and ended this case.

Not only must a Court decide the case before it, it also can only decide the case before it.  It should not opine or speculate on future cases.  While the Court may have thought that by doing so it would lead to some sort of healing to the political discord in this country, what it did was nothing less than weaken our justice system and its rule of law.  It lessened the command of the respect that the Supreme Court should be given for its ability to deeply understand and reason about constitutional questions placed before it.  And, as the concurring Justices noted, “By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” 

By going beyond this case and addressing constitutional issues not before it, the Court created far reaching and likely unforeseen possibilities and consequences that go well beyond the simple question of whether Colorado could or could not remove Trump’s name from the ballot.  This is not a good thing for this country, and I am disappointed with the majority for its lack of wisdom here.

 

The Choice when there is No Choice

 Today is Presidents Day.  It’s a good day to review the basics of American civics – our form of government and its three separate but equal branches, the role of each branch, the Constitution and its meaning and power in our system, and the meaning of our Constitutional Federal Republic which is a representative democracy - a form of, but not a pure, democracy.

With knowledge comes power.  In terms of the presidency, once we know what we are voting for and why, then we are able to select the best individual for that job.  It is not about for whom we are told to vote or whom we might like or dislike for other reasons.  We then can vote for people who are actually qualified for the job, not who simply hold a label of Democrat or Republican or simply most popular.   The corollary to this is that we know we do not have to, nor should we, vote for anyone whom we believe is not qualified.  That doesn’t mean simply someone we don’t like or someone whose policies we may not agree with, but someone who actually is not qualified. 

In my opinion, in 2024 neither Trump nor Biden is qualified to be elected President of the United States of America.  Biden because his mental and physical abilities are not up to the demands of the office and because he often disregards the importance of some American freedoms.  Trump because since 2020 he has shown a disregard towards the institutions, courts, and Constitution that a President must swear to uphold and protect.

While I can, and have, voted for people whom I am not delighted with, with whom I disagree on some important issues, I have felt that even with faults, even with not being made of superior presidential stock, that these people were at least qualified to hold the office.  I do not feel that way about either of our leading presidential candidates this year.

So, a choice between Biden and Trump, for me (and I believe for many Americans) is really no choice at all.  If one sees it as simply picking the lesser of two evils, one must remember that even the lesser is still evil.   I do not believe that we should choose to go along with, to make such a choice.  And I don’t think that I am the only one in this predicament.

As I think about this today, I also have in mind Alexei Navalny, the Russian dissident who was killed last week in a Russian prison camp above the Arctic Circle.  In reading about him, as well as some of his own statements, interviews, and letters, one thing that is clear is that he believed that one should never give up, never concede to that which one knows is wrong.  Rather than stay safely out of Russia after an assassination attempt, Navalny returned to Russia and faced torture and ultimately death.  But he was not afraid to stand up for truth, for what is right.  His soul remained free.  In an interview in 2022 he stated that “If I am killed, my message is very simple:  Do not give up.”

Compared to what Navalny faced, it is a simple act to refuse to vote for either Trump or Biden.  And yes, that leaves the likelihood that one of the two will be our next president.  That is also true if I do vote for either one.  But if a mass of people were to vote for neither, while it might slightly raise the unlikely possibility that a third candidate would win, it definitely makes a clear statement that neither candidate is acceptable.  And it leaves those voters who choose to vote for no one that they find unqualified with a moral and political and patriotic sense of clarity that can begin to set an example for others: the current state of affairs is not acceptable, is not right, and we will not go along with it.

Our country is a mess.  Perhaps the whole world is a mess.  But it will never be repaired if we just choose to go along and join the mess.  Navalny knew that only too well as he nonetheless chose to face early death as he stood for what is right and set an example, based on dissidents before him, for those to follow that we must do what is right if things are ever to change.  In a letter to a fellow dissident less than a year ago Navalny wrote: “But I continue to believe that we will correct it and one day in Russia there will be what was not. And will not be what was.”

Navalny was aware that this is a long haul and no one person, no one act, no one election, will fix what is wrong, be it in Russia or America or the world.  But he also knew that if no one acts, if we don’t actually engage in the long game, nothing will change.  It is up to us to stand up and do what is right.

An American election is nothing like Russia whose problems Navalny stood up against and died for.  What an easy thing it is for us to say we will not vote for either of the two major candidates because neither is actually qualified to lead our country.  Yet many will not do that, simply doing what they have always done, vote for one of two parties based on any number of reasons that are not connected to the qualifications for, and duties of, the office of president.  Too many will simply concede, go along, and pick one rather than stand up and say neither one is right for America in 2024.  And so, nothing will change, no movement forward will take place, and America will remain the mess it is or devolve further into the hatred and tribal warfare that both candidates encourage.

You may recall the story of the Christmas truce of 1914 where soldiers on both sides of the war, sworn enemies, came out of their trenches, set their weapons aside, and celebrated Christmas together recognizing that they were all just people with the same thoughts and prayers in their souls.  

Think of these people as Americans today.  The politicians, the power hungry, have taught us to hate, have made us enemies of one another, and it is they who are leading us into war with one another, if not with the entire world.  We need to put aside that hatred that they are fomenting and see the humanity in all of our fellow citizens.  We need to see their souls and find our own. 

We need to remember that America is a country of tolerance and compromise and show our leaders that we will not accept those who see it otherwise. And we need to let our current leaders and prospective leaders know that the people of America can and will join together to do what is right for America. If we stop to consider what is good for America as well as for our own selves, and if we vote accordingly and perhaps by voting against both major candidates, we can take a step forward in the long game of doing what is right. 

We have a choice beyond a choice between two evils, beyond accepting that we must vote for one of two men neither of whom should be president.  We can choose to vote for someone else or for no one.  We may end up with Trump or Biden for president (though perhaps not), but even then our votes can help to restrain their actions as well as guide America’s future.

New Party not Third Party

 The two major political parties are not really in sync with and do not represent the majority of Americans today.  But a third party is not the answer; rather, we need a recalibration of the two parties that currently exist.

Through Trump and MAGA, the Republican Party has come to represent a far Right that I and many other Americans do not want to be a part of.  Meanwhile, while it may not be clear what Biden stands for, his Democrat Party seems to represent a Leftist progressive socialism of identity politics, again something which I and many Americans do not want to be a part of. 

Faced with the likelihood that these two parties will choose Trump and Biden as their candidates for 2024, we hear much talk of a third-party candidate.  But, even with two such poor major candidates, we all know that a third party will likely do nothing more than prove to be a spoiler for one of those candidates. 

So where does that leave the Americans who do not find themselves on either the Right or Left extremes, who are basically moderates leaning towards one party on some issues and the other party on others?  The growing number of people labeling themselves as Independents is not a bad thing – these are the people who will vote not simply because someone wears a Red or Blue label but because of the ability and qualifications of the candidates along with the policy agenda that they put forth. 

These Independents and others who feel in one way or another abandoned by both Democrats and Republicans, need a party.  Not a third party, not a one issue party, not a spoiler party, but a real party that has the size and resources to truly contend for the high offices of this land, including President.

If such a party could rise and replace one of the current two major parties, I believe that the remaining party, be it Democrat or Republican, would, in order to survive and be competitive, move more toward its moderate aspects, which, in both parties once was characterized by bipartisanship and negotiation rather than the current divisiveness and hate. 

I believe that two such parties would provide us with two far better candidates from which to choose.  With two such parties we could perhaps find our way as Americans to come together again as one country and to work not against each other as enemies but together as allies who hold different views but want to solve the same problems. 

Our system is not set up for three parties, but it demands that the two parties we have be representative of more than just the extremes of our society and campaign on more substance than simply that they are not their allegedly evil opponent.  This could, perhaps, be the election where we could begin to build that strong replacement party.  We already have some strong possible candidates who might represent it:  Bobby Kennedy, currently running as an Independent; Joe Manchin, not yet a candidate but a strong contender for the No Labels party; Nikki Haley, currently running for the Republican nomination but whose supporters, in reality, are the moderates of both parties as well as Independents.  I am sure there are others out there who, if it did not seem futile, might be interested. 

But no third party or third candidate has a chance if the people do not give them one. We should not assume that we have no choice but Trump or Biden: neither is yet the official nominee of his party.  With concerted effort to deny one or both the necessary delegates to become that nominee, by voting for a different candidate in the primaries, then we the people can perhaps supplant one or both candidates with someone more representative of the moderate rather than the extremes of their respective party, and in so doing take a major step in replacing at least one of the two parties with one that is more representative of more Americans.

I think this could be managed against either Trump or Biden, either the Republican or the Democrat party, though I think it is more likely at this time to work in the Republican Party.  There is anti-Trump and/or anti-MAGA sentiment from both moderate Democrats and Republicans as well as Independents, and there is a viable candidate currently running along with Trump for the party’s nomination.  Imagine if many primary voters, rather than assuming the nomination has already been wrapped up, were to vote against Trump in the primaries:  they actually might effectuate a different nominee.

If this replacement effort were in regard to Trump, realistically Haley would likely rise as the nominee.  I believe she could and would move the Party more towards the center.  But it could just as easily be some other more moderate write-in candidate who would dethrone Trump or Biden. 

Assuming it were the Republicans who replaced the presumptive nominee with a more center-focused candidate, the Party would begin moving away from the quite frightening far Right of MAGA towards a more moderate center.  I believe this would push a similar move of the Democrat Party away from its Socialist Left toward its more traditional liberal base.  We actually might end up with a two-party system that would give us the kinds of candidates we were once used to in this country:  strong and wise statesmen not out to destroy their opposition but to work with them to find ways to lead America forward.

Unlikely as this may seem, it is possible.  But the people have to stand up and do this.  If they continue to cower behind the demands of the party leaders on both sides, we get exactly what we do not want but what we will deserve:  a country full of hate that continues to destroy itself from within.

Politics is smothering good Politicians

 The bodies weren’t even cold when the MAGA crowd started politicizing yesterday’s drone attacks by Iran-backed groups that killed three U. S. military in Jordan and wounded many others.  As expected, Trump immediately blamed Biden’s “weakness and surrender.”  Senator Tom Cotton (and Trump supporter) released the following statement almost immediately following the news of the attack:

 “Joe Biden emboldened Iran for years by tolerating attacks on our troops, bribing the ayatollahs with billions of dollars, and appeasing them to no end. He left our troops as sitting ducks and now three are dead and dozens wounded, sadly as I’ve predicted would happen for months. The only answer to these attacks must be devastating military retaliation against Iran’s terrorist forces, both in Iran and across the Middle East. Anything less will confirm Joe Biden as a coward unworthy of being commander-in-chief.

 

“On behalf of Arkansans, I extend my deepest condolence to the families of our brave fallen warriors. May God comfort them as He welcomes their loved ones into His embrace. And may God quickly and completely heal their wounded comrades.” 

Nothing wrong with the second paragraph of Cotton's statement, but notice how it comes as almost an afterthought to the political rhetoric of the first paragraph, rhetoric characteristic of many MAGA supporters yesterday.  One would think that someone with Sen. Cotton’s distinguished military service would have more sense.  But no, in the ever-growing insanity of the MAGA cult, politics (i.e. electing Trump) is everything. 

As to retaliation against Iran, there must be a U.S. response, but this is really a very complex issue.  Iran denies it ordered the attack.  We need proof that it did before we respond directly against Iran for that attack.  And whatever action we take must be carefully considered in light of the already potentially explosive nature of the Middle East following the terrorist attack on Israel, Israel’s legitimate response, the prisoners held by Hamas, and the many questions about Gaza.  Just a blind return of fire could cause far worse problems than a delay in order to respond with well thought out action.

But, this inability to think beyond political posturing, rampant on all sides, actually defines the MAGA Republicans today.  Consider the bipartisan immigration bill that was on a likely path to passage until Trump urged Republicans to vote against the bill because he needs to be able to attack his rival Biden over the border crisis. The bipartisan bill would have provided money to Israel and Ukraine in return for Democrats agreeing to several Republican demands that address the border crisis and immigration laws.  As one senator put it, “[Trump] doesn’t want us to solve the border problem because he wants to blame Biden for it.”

Oklahoma Republican Senator Lankford, who continues to negotiate with Democrats to try to save the bill stated on a Sunday TV news interview:

“It is interesting: Republicans, four months ago, would not give funding for Ukraine, for Israel and for our southern border because we demanded changes in policy. So we actually locked arms together and said: ‘We’re not going to give money for this. We want a change in[immigration] law.  And now, it’s interesting: A few months later, when we’re finally getting to the end, they’re like, ‘Oh, just kidding, I actually don’t want a change in law because of presidential election year,'” 

And what does Sen. Lankford get for his efforts at bipartisanship to solve our country’s problems?  The Oklahoma Republican Party approved a resolution censuring the Senator and attacking him for negotiating with Democrats on a potential border deal.  Just more proof that the Republican party cares little for people affected by the issues it campaigns on but rather simply uses those issues as political talking points to achieve its own power.

This is the new MAGA Republican party, and it has frightening authoritarian tendencies.  This party is led by the presumptive (but hopefully not actual) nominee Donald Trump.  While it is true that Trump’s 2016 presidency did much to improve the day to day lives of many Americans, it also had a dark side.   There is no question that Trump’s words were often acerbic and designed to get a response.  The response, beginning immediately upon his 2016 election was a series of never-ending attacks and allegations, many false and pursued out of seemingly pure hate for the man, but some with at least nuggets of truth to them.  While racial and perhaps other divisiveness became apparent during the Obama years, it increased during Trump’s presidency and continues to this day. 

Both parties have fanned the flames of this atmosphere of anger and overwhelming divisiveness since 2020.  The parties and their supporters have become true enemies of one another rather than simply political opponents and all seem ready if not eager to sue, impeach, censure, or otherwise fully attack anyone whose views or policy decisions they do not like.  This does little for the American people but seems to satisfy some political need within our current leaders. 

Since 2020, Trump and his MAGA supporters seem to be the most eager to stir up hatred and discord against any who are not 100% with them.  Since he lost the 2020 election, Trump has a track record of attacking our Constitution and our very form of government.  His claims of a fraudulent election, his actions leading up to and on Jan. 6 (which I believe disqualify him from holding office) and his unsubstantiated and continuing assertions that Joe Biden was not elected and is not our real president are now joined by his actions setting up the same claims for 2024 as he currently asserts that the only way he will lose is if the Democrats cheat.  These assertions are all attacks on our elections, our institutions, and our rule of law, core elements of our democracy and the America and Americans which these folks claim to love.

But beyond these election related tirades, Trump regularly debases, ignores, and encourages others to violate the Constitution and laws of the United States.  In his many ongoing court cases he consistently ignores the court processes, procedures, and rule of law.  He then verbally attacks the courts, attorneys, and jurors for simply doing their jobs when he does not obtain the outcome he seeks.  Moreover, he uses these serious judicial matters as opportunities for campaigning.  The disrespect (which is  encouraged by MAGA supporters who, for example, urge the Governor of Texas to disobey an order of Stay from the United States Supreme Court), if not violation, of both Constitution and Rule of Law are direct assaults on the core of our democracy.  These disregarders of the Constitution are the same folks who assert they believe in its every word – apparently that’s only when they like what it says.

The MAGA cult wants what it wants, and its political ambitions trump (excuse the pun) any concern for the American people.  Sometimes their needs or desires may benefit, but that is nothing more than coincidence. 

While Trump’s rhetoric has always been acerbic, it has taken an extremely dark and un-American turn. When he says that immigrants are “poisoning the blood of our country” (spoken at a New Hampshire rally December 2023) and then doubles down on that statement when given an opportunity to offer some less repulsive explanation, one can’t help but hear the echo of Hitler asserting Jewish blood was poisoning Aryan German blood.  And when his Christmas message is a hope that his opponents rot in hell, one can see that he is not interested in working across the aisle or finding space for all Americans in this country. (Trump’s Christmas rant included the following: “World Leaders, both good and bad, but none of which are as evil and ‘sick’ as the THUGS we have inside our Country.” The message ended with, “MAY THEY (referring to Biden and Special Prosecutor Smith) ROT IN HELL. AGAIN, MERRY CHRISTMAS!”) Such rhetoric, in my opinion, does not belong in America, and certainly not in the mouth of a presidential hopeful.

Trump’s exclusive and authoritarian tendencies are apparent as he tries to push out of the Republican Party any and all who do no swear allegiance to his MAGA regime.  He asserted that all Nikki Haley supporters are now permanently barred from the Republican party which he now refers to as the “MAGA community.”  (So much for the big tent where all are welcome!).  MAGA, in true fascist fashion, does not really care about the people, but only its power and its own ideology. 

And, lest we forget the Democrats, they too are often more likely to attack their opponents as totally evil individuals out to destroy America rather than attack the positions and policies of those with whom they disagree.  President Biden himself has given some pretty dark and angry speeches and his view of opponents as enemy is often apparent.  Expect these type of attacks to become more common as we approach the November election.  

We have a changing world fraught with many crises.  These are not the fault of one person or one party.  The problems and complex and often interconnected.   We need politicians who want to solve these problems, not just use them to blame others for their existence.

The primary political responses to the drone attack simply underscore the overwhelming and devastating role that politics itself has taken in our country.  There are good and bad and mediocre politicians, and we vote in or out those whose policies we do or do not agree with, giving those we choose the opportunity to represent us, the people.  But when it is politics itself that begins governing our country – when decisions are made based not on what is good for the American people but on what effect they will have on the enemy/other party, then we are in real trouble.   This politicization of almost everything smothers the opportunity for real dialog, debate, and solution to this country’s and the world’s problems.

We the people need to begin thinking like Americans who believe in our country and all of its people and who can work together to find solutions to our problems, and we need to demand that our politicians do the same.  We must no longer tolerate a politics that is synonymous with a blood-thirst against those holding opposing views.  And we need to elect politicians who will help us to stand united as one country rather than trying to divide us until we fall.

Why SCOTUS Should Affirm the Colorado Trump Ballot Decision

I spent a fair amount of time working out my thoughts on this case and decided I might as well share them. There is certainly more than one reasonable position and possible conclusion about this case.  This is mine.

This post explains why I believe the Colorado Decision should be upheld.  My conclusions are based on my reading of the facts and the law relevant to this case and not on my personal feelings about political personalities or stances or any political motives that may underlie this case.  Clearly, I am not a Supreme Court Justice, a sociologist, or a politician, but in my opinion the Colorado opinion should be affirmed and hopefully the Supreme Court of the United States will do so unanimously.

To keep this post to a reasonable length, I explain many of the underlying legal concepts somewhat simplistically.  I think that this case is deeply important to our country and our Representative Democracy form of government.  I am saddened that events of the past few years have brought us to this point, and I hope that the Justices will be able to be appropriately blind to public opinion as they analyze the Constitution and this case.  I also hope that the public will take time to fully understand this case, our form of government, and the Court’s role in it so that they are able to accept the Court’s decision even if not agreeing with it.

A Brief Summary of the Colorado Case

In 2023, Colorado electors filed a petition against the Colorado Secretary of State seeking to have Trump’s name removed from the primary ballot in Colorado.  The Colorado Court promptly set the matter for a five-day trial.  Following that trial which included presentation of evidence along with proposed findings of fact and conclusions of law by all the parties including former president Trump, the District Court concluded that Trump had engaged in insurrection, but that Section Three of the Fourteenth Amendment did not apply to a president.  Both the Electors and Trump appealed to the Colorado Supreme Court.

Appeals usually address not the facts themselves which have been determined by the lower court, but the law and its interpretation and application to those decided facts.  That is, was the law correctly interpreted and did or did not the facts fit the requirements of that law so as to support the decision reached by the lower court?

The Colorado Supreme Court affirmed the lower Court’s factual conclusions that Trump had engaged in insurrection, but reversed its conclusion that Section Three does not apply to presidents.  It also revisited and addressed several other relevant issues.  Ultimately the Court held that because Donald Trump is disqualified under Section Three of the !4^th Amendment, it would be a wrongful act under Colorado State’s Election Code for the Secretary of State to list him as a candidate on the presidential primary ballot. 

The U.S. Supreme Court will now hear an appeal of the Colorado decision on February 8 of this year.

A note on Courts’ Roles

Before examining the issues in this case, a note on the role of evidence in trial and on appeal is  appropriate.  At the trial level the evidence is presented and the finder of fact determines what facts that evidence supports.  The finder of fact is either a jury or, in a case where there is no jury then it is decided by the judge or other authority who presides over the case.   There are many reasons why there may or may not be a jury in a particular case; sometimes the nature of the case does not provide for a jury, sometimes a party chooses not to request a jury.

Once the findings of fact are rendered, the trial court will apply relevant law to those facts and render a decision.  Unless there is absolutely no evidence to support those facts, those facts will not be reversed by an appellate court.  Rather it is the appellate court’s responsibility to ensure that the correct law was correctly interpreted and correctly applied to those facts.  That is, there is not a factual hearing at the appellate level.  If the appellate court finds that there is a problem with the findings of fact, it will remand the case to the lower court for a further hearing.  If the law was incorrectly interpreted or incorrectly applied, the result might be a reversal, or it might be a remand to the trial court for reconsideration of the facts in light of the corrected understanding of the law.

Section Three of the Fourteenth Amendment

Section 3 states in full:

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.

There are 3 key concepts in this section that must be clarified:  First does it apply to presidents, second, what constitutes “insurrection or rebellion”, and third, what does it mean to “engage in”?

Generally, when interpreting Constitutional provisions, the Court’s goal is to effectuate the intent of the drafters.  It will begin by looking at the plain language, giving terms their ordinary and popular meanings.  If, however, there is more than one reasonable interpretation, then, due to the ambiguity, the Court may consider textural, structural, and historical evidence.

              Application of Section Three to Presidents

This section applies to anyone who is an officer of the United States who has taken an oath to support the Constitution of the United States.  It prohibits such person from holding office if they have engaged in insurrection or rebellion against the United States.

The presidency is an office within the United States government and the person who holds that office is an officer of that government.  Plain dictionary meaning as well as prior case law makes this clear.  Moreover, the Presidential Oath is an oath to support the Constitution as mandated by the Constitution itself.  This section then applies to presidents.

              What is an “Insurrection”?

After an examination of various definitions of this word both past and present (beginning with 1860) as well as examining relevant precedent, the Colorado Supreme Court stated:

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. (Opinion p. 99).

This definition comports with current dictionary definitions of insurrection:  “an act or instance of revolting against civil authority or an established government” (Merriam-Webster); “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established govern” (dictionary.com); “a violent uprising against an authority or government” (Google dictionary); “an uprising against a larger force that's in power” (Vocabulary.com); “an organized and usually violent act of revolt or rebellion against an established government or governing authority of a nation-state or other political entity by a group of its citizens or subjects; also, any act of engaging in such a revolt.” (Britannica).

While the definition has not been addressed specifically in the context of Section Three, in other legal contexts courts and legal scholars generally interpret the term "insurrection" as a violent uprising or organized resistance against the government or its regulations.

The actions of January 6 were an attempt to interfere with a government action in progress, specifically the counting of electoral votes and the transfer of presidential power.  There is really no question that was the intent of the January 6 protesters.  Their intent was to stop Vice President Pence from certifying Biden as the next President of the United States.

It is this attempt to interfere with this government action that distinguishes the January 6 events from riots or general protests that become violent but are not directed at hindering a specific governmental act, especially one in progress.  Even vocal and perhaps violent protesting outside a courthouse or governing body, while it may be an attempt to persuade officials, is not an attempt to actually halt governmental action in progress. 

              “Engaged in”

Again, the Colorado Supreme Court conducts a thorough examination of relevant law and general definitions from 1860 forward.  It ultimately concludes that “engaged in” requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.” (Opinion p. 105).  The Court further clarifies, “we do not read “engaged in” so broadly as to subsume mere silence in the face of insurrection or mere acquiescence therein, at least absent an affirmative duty to act. Rather, . . . . [t]he force of the term to engage carries the idea of active rather than passive conduct, and of voluntary rather than compulsory action.” (Opinion p. 105).  

Note that per this definition, “engage in” does not necessarily require marching with the protesters.  Rather, it could consist of other acts that support or encourage those physically conducting the insurrection.

Donald Trump Engaged in Insurrection

Given the above definitions, we must look at the evidence to see if it supports the conclusion that Donald Trump engaged in insurrection.   I agree with the Colorado Supreme Court that it does.  We should note, however, that if the U.S. Supreme Court redefines the above terms, then their appropriate action would be to remand the case to Colorado for reconsideration of the facts using the revised terms.

I think it is fairly clear that the events of January 6 constituted an insurrection.  The key question then is: Did Donald Trump engage in that insurrection?

In this case, the Colorado Court thoroughly went through the evidentiary record from the Trial Court.  It noted that much of the evidence against Trump went unopposed by him.   Basically, the evidence supportive of finding that Trump engaged in insurrection falls into three piles.  First is the behavior of Trump leading up to the 2020 election in which he laid the groundwork for a claim that the election would be “rigged.”

 Second is the evidence pertaining to the time between the election and January 6 when Trump “ramped up” his claims that the election was stolen from him.  He continued to allege election fraud and propelled the “Stop the Steal” movement of cross-country rallies leading up to January 6.  A rally in November turned violent; Trump acknowledged the violence but justified it as “self-defense.”  He referred to stealing the election as an “act of war” which his supporters must fight against.  The rhetoric became more and more aggressive as January 6 approached.  The Court found that the evidence “established that President Trump’s messages were a call to his supporters to fight and that his supporters responded to that call.” (Opinion p. 109).  I would further note that this rhetoric goes beyond legal means which Trump could and did pursue in courts of law regarding challenges to election counts.

The third bundle of evidence comes from January 6 itself.  It includes Trump’s speech to his supporters at the Capital.  Trump issued a number of calls to “fight”, to “take back our country”, to not be “weak”, to “show strength” and “be strong”, to “fight like hell.” He told his supporters that without “fighting like hell” they were “not going to have a country anymore.”  When he was informed that the Capitol was under attack Trump took no action for about an hour, and then sent out a tweet, read by bullhorn to his supporters, attacking V.P. Pence.  This escalated the violence.  Sometime after that, he finally tweeted and encouraged the mob to “remain peaceful” (which at the time they were not), but he did not condemn the violence, nor did he ask the mob to disperse.  Finally, about another hour later, Trump sent a video asking the mob to “go home now” and told them he loved them and that they were “very special”.  He then repeated his claim that the election had been stolen, thus endorsing the mob’s effort to try to stop the peaceful transfer of power. 

The court concluded that the evidence (which the opinion presents in far more detail than I have summarized here) established that Trump engaged in insurrection.  It also noted that the bulk of the evidence was undisputed by Trump at trial.

I agree that this evidence is sufficient to support a finding that Trump engaged in insurrection.  It meets the requirement of “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose” of interfering in a governmental process.  He repeatedly riled up his supporters and should have known not only that the January 6 rally could, but that it probably would, get out of hand.  His purpose was to stop the government from accomplishing a peaceful transfer of power; indeed, it was to stop any transfer of power, seemingly by any means necessary.

However, deciding that Trump engaged in insurrection is not the end of the discussion.  There are several issues that are or may be the subject of dispute in this case before it can be ultimately concluded that Trump’s name should be withheld from the ballot under Section Three of the Fourteenth Amendment.

Can a State Court decide this issue?

State legislatures create election codes and statutes governing elections in their states.  In Colorado, the state courts have the authority to assess precedential qualifications.  Hence this case was properly filed in a Colorado state court.  The State Supreme Court further noted that the trial court properly followed the procedures and requirements of the Colorado statute.

More generally as to a state’s authority to address Constitutional issues, the Constitution itself delegates to the states the authority to prescribe the “Times, Places and Manner” of holding elections.  U.S. Supreme Court precedent tells us that “States exercise these powers through comprehensive and sometimes complex election codes, regulating the registration and qualifications of voters, the selection and eligibility of candidates, and the voting process itself. . . . These powers are uncontroversial and well-explored in U.S. Supreme Court case law.” (Colorado opinion p. 30).

Under Article II of the Constitution, states are authorized to appoint presidential electors in such manner as their legislatures may direct.  The Supreme Court has stated in precedent that “So long as a state’s exercise of its appointment power does not run afoul of another constitutional constraint, that power is plenary.”   States clearly have the power to assess the qualifications of a presidential candidate.  Then Court of Appeals Judge Gorsuch recognized that it is “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” (495 F. App’x at 948).

An example of states’ authority over elections and electors in a different but current context is seen in New Mexico where the Attorney General there has explained that unlike in other states, New Mexico’s “five Republican electors cannot be prosecuted under the current law for filing election certificates that falsely declared Donald Trump the winner of the 2020 presidential race.”  Indeed, he is now seeking modification of the state’s law to allow this in the future.  The fact that various state statutes allow this while others do not is an example of the fact that states can have and do have significant control over elections and electors in their own state.

Colorado law allows the State Court to decide the issue of whether Trump can appear on the primary ballot and that Court properly followed its state’s laws in arriving at that conclusion.

It should be noted that the dissenting opinions in the Colorado Supreme Court case seem most troubled by whether the Colorado law indeed allows the State Court to make this decision or whether the law is more limited in scope.  I am not familiar with the intricacies or detailed precedent of Colorado law, but it seems that this might be the most likely way that the Colorado decision could be attacked.  If the U.S. Supreme Court were to decide that the Colorado courts acted beyond their powers and were thus without jurisdiction to hear and decide the case, then the U.S. Supreme Court could dismiss the case entirely and avoid addressing the Constitutional issues.

Adequate Due Process

The Fourteenth Amendment’s Due Process Clause states that no State “shall deprive any person of life, liberty, or property, without due process of law.”  Due process simply requires that before a person can be deprived of certain rights, they must be given notice and an opportunity to be heard.

In this instance Trump was given notice of the case and indeed participated in it by filing various documents and other information.  He had the opportunity to present evidence during the hearing but, as the Colorado Court noted, most of the evidence about the insurrection and Trump’s participation in it went unopposed by Trump.  Rather he focused more on legal arguments attempting to prevent the Colorado court from hearing or deciding the case.

There has been no due process violation, unless, as noted above, there is some defect in the Colorado laws.  It is clear that Trump was given notice and opportunity to be heard.  However, if the Colorado court hearing the case had no jurisdiction, then there was no due process.

Section Three does not require Implementing Legislation.

There is an argument that Section Three cannot be enforced without legislation from Congress that implements that Section; that is, the argument is that Section Three cannot be “self-executing.”  This is simply ridiculous.

First, we do not need legislation to tell us we can enforce the Constitution of the United States. 

Secondly, the authors of Constitutional provisions and amendments know how to suggest such additional legislation when necessary.  The 13^th Amendment in Section One abolishes slavery.  It then, in Section Two, provides that “Congress shall have power to enforce this article by appropriate legislation.”  Note that this does not require such legislation but allows enforcement by Congress through appropriate legislation.  Even with this authorizing section, the Supreme Court in the Civil Rights Cases recognized that “legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it,” but that “[b]y its own unaided force it abolished slavery” and was “undoubtedly self-executing without any ancillary legislation.”  The Court has also explicitly confirmed that the 15^th Amendment (again a part of the Reconstruction amendments) is self-executing. There is no reason to think that this does not hold true for the 14^th Amendment as well.

Moreover, Section Three itself reveals that its authors were cognizant of what role they wanted Congress to play.  Its final sentence reads, “But Congress may by a vote of two-thirds of each House, remove such disability.”  It gave Congress this specific power, and had the authors wanted Congress to be required to create enabling legislation as well, they would have so stated.  The fact that Congress is given this power while no mention is made of enabling legislation certainly signifies that there could be decisions of disqualification without Congressional action and that such decisions were valid unless and until overturned by Congress.

Disqualification under Section Three does not require Criminal Charge or Conviction.

Federal statute 18 USC §2383 makes it a crime to assist or engage in rebellion or insurrection.  While of course conviction under this statute would also disqualify a person under Section Three, there is no requirement in either the statute or Section Three that such conviction or even a charge under the statute is a requirement for disqualification under Section Three.  In any potential criminal case there are many reasons for not pursuing criminal charges.  Because a prosecuting attorney decides not to pursue a criminal charge should not be seen as a way in which to negate the clear language of the Constitution.

The People cannot ignore Constitutional law.

The argument that instead of a court deciding ballot qualification the people should decide, that any name should be allowed and people should simply decide the issue by voting, goes blatantly against our form of government, which is a Representative Democracy.  Ours is not a Pure Democracy, which would effectively be rule by mob.   

Yes, the vote is sacred, and it is one way in which the people’s voice is heard.  It is the process by which we select those who will represent us.  And those representatives effectuate our rule of law that does not allow us to do whatever we want.  Here, the Constitution allows our representatives in our state governments to carry out decisions regarding ballot qualification. Ignoring that, simply saying we can vote for whomever, constitutionally qualified or not, is an effective way to ignore if not cancel our very Constitution, something which many of those urging reversal of Colorado’s decision claim to hold if not sacred at least in high esteem.

Moreover, simply following the Constitution will not create, as some people fear, a new political tool to use with abandon against opponents.  Our Rule of Law will always require evidence, due process, etc., which protect against such fears.  This is a fact specific case and will not open the floodgates for Constitutional abuse.

The Constitution provides qualifications and, in Section Three, has provided for disqualification.  The people cannot simply ignore or rewrite the provisions of the Constitution by their vote for someone who, under due process of law, had been found not to be qualified.

Was President Trump’s January 6 speech protected by the First Amendment?

Trump argues that his January 6 speech was protected and therefore cannot be used to justify his disqualification.  I think this argument must fail.

First, the right of free speech is always not absolute under all circumstances. Speech that incites lawless action is not protected.   In looking at context, the Colorado Court held that it was appropriate for the district court to consider President Trump’s “history of courting extremists and endorsing political violence as legitimate and proper, as well as his efforts to undermine the legitimacy of the 2020 election results and hinder the certification of the Electoral College results in Congress.” (Opinion. p. 123).  As to incitement, that was addressed above in discussing the evidence relevant to “engage in.”  The trial court identified specific incendiary language in the January 6 speech. 

Further, the speech meets the requirements that must be met for the speech to not be protected: it demonstrates intent to produce lawless or violent action and of being likely to do so.  The District Court concluded that President Trump exhibited the requisite intent here. It found that, before the January 6 rally, “[President] Trump knew that his supporters were angry and prepared to use violence to ‘stop the steal’ including physically preventing Vice President Pence from certifying the election,” and that President Trump’s response to the events following his speech “support . . . that [President] Trump endorsed and intended the actions of the mob on January 6,” (Opinion p. 129).

The Trial Court also found that President Trump’s calls for imminent lawlessness and violence during his speech were likely to incite such imminent lawlessness and violence. When President Trump told his supporters that they were “allowed to go by very different rules” and that if they did not “fight like hell,” they would not “have a country anymore,” it was "likely that his supporters would heed his encouragement and act violently.” (Opinion p. 132).

Looking at the tests for whether speech is protected (context, intent to incite and likelihood of doing so) and applying this test to the Trial Court’s findings of fact, it can reasonably be concluded that Trump’s January 6 speech was not protected by the First Amendment.

Remember, the trial judge or hearing officer is the finder of fact, not those of us who were not there to see the evidence presented and second guess what was and was not presented along with its credibility.  Also recall that Trump did not counter most of the evidence that was submitted.

A note on the Maine Case 

The Secretary of State of Maine has similarly decided that Trump’s name should be removed from the primary ballot there because he is not qualified under Section Three of the Fourteenth Amendment.  The reasoning for this decision is similar to that of the Colorado Supreme Court.

Though Maine’s election laws are different from those of Colorado, and in Maine the decision was made by the Secretary of State following an administrative hearing, this process was proper under Maine’s election laws.  Moreover, although this was an administrative hearing rather than a judicial trial, due process was satisfied:  the parties had notice and an opportunity to be heard.  Evidence was presented, though again Trump chose to offer little if any evidence countering the facts.

There is no reason that the Maine decision should not be affirmed just as the Colorado decision should be affirmed.

 Conclusion

There are several possible outcomes for this case at the U.S. Supreme Court.  They include:

• The decision is entirely affirmed.
• The Supreme Court decides that the Colorado Court exceeded its powers, it had no jurisdiction to hear or decide the case and the case is therefore dismissed.
• The Supreme Court redefines some or all of the terms of Section Three and remands the case for further consideration under those terms.
• The Court decides that for some reason due process was violated and remands or dismisses the case.
• The Court decides the January 6 speech was protected and it therefore negates or cannot be used as evidence for application of Section Three disqualification.
• Or any combination or modification of, or addition to, the above.

I believe that that the Colorado Supreme Court decision should be affirmed in its entirety.  Under reasonable and legally supportable definitions of the terms, there was an insurrection and according to the evidence presented, Trump engaged in that insurrection.  He had notice and opportunity to be heard, so due process was not violated.  The Colorado law provided jurisdiction to the Colorado court to hear and decide the case, and the Colorado Supreme Court has determined that Colorado law and procedure were properly followed.  The people’s right to vote for qualified candidates is not being infringed; the people do not have a right to ignore or overwrite the Constitution.

This is a difficult decision not because the legal issues are not clear, but because of the mood of the country and the disinclination of so many to respect any decision, no matter how well reasoned, if they do not like the result to which that reasoning leads.  Moreover, too many do not really understand our government, our Constitution, the interplay of federal and state law, and the fact that we are not a pure (i.e. mob rule) democracy but are a Representative Democracy guided by the Constitution and the Rule of Law.   I certainly do not envy the Supreme Court Justices’ current task, and I pray they will find strength to shut out the (very loud) noise of the mob and follow the Constitution wherever it leads.

Horseshoes Anyone? It Depends.

 I find that in political discussions my positions are often opposed by both Right and Left.  A current example:  I adamantly support Israel, its position on the war, on Gaza, and on its right to exist.  I also adamantly support the right to protest in favor of Palestine, Gaza, and against Jews, even though I find such views abhorrent.  I supported the Harvard president in her testimony about the Harvard student protests and oppose Rep. Stefanic and others who are keen on silencing her and other university presidents who testified.  I find Stefanic to be doing exactly what she condemns the Left for doing – trying to silence those views with which she disagrees.

This sort of hypocrisy from both Right and Left which is more and more the norm these days along with the denial from both sides that they do what they condemn the other side for doing, is more than annoying, but even worse is the fact that so few are willing to see or acknowledge it.  The extremes of both sides are dug in against one another and yet cannot see that they and their enemy are more alike than they are different.

Trying to explain this in the context of political discussions with individuals who clearly identify with Right or Left is difficult.  But recently I was reminded of the horseshoe theory of politics, and that indeed is a perfect explanation.  Moreover, it leads me to realize that if this dynamic of our politics continues we absolutely must see the development of a strong third party (perhaps as the two extremes merge into one?) if our country as we know it is to survive.

The Horseshoe Theory

The horseshoe theory holds that the political spectrum, rather than being shaped as a straight line, is in the shape of a horseshoe.  The center of the horseshoe represents the political center and as you move upward toward the end of either side you will move more and more to the Right or the Left until you reach the end of each side where reside the Far Right and Far Left. 

You will note that these ends of the horseshoe bend toward one another indicating, according to this theory, that the Far Right and Far Left, rather than being at opposite ends of a linear continuum, approach and are really quite similar to one another.

While this theory is often criticized for being too simplistic, I think that it is worth thinking about, if for no other reason than to try to objectively view one’s own viewpoint in contrast and comparison with that of one’s own political foes.

What makes the extremes similar while still appearing different?

The commonly used example of sameness is Communism (Left, strong central state, work for common good) and Fascism (Right, strong central state, work for the common good).  There are of course differences: Communist ideals include a classless society with economic equality while Fascism includes a top-down class system and rule by dictator. 

But we can certainly come up with more topical concrete examples. Consider identity politics.  The Left likes to identify people based on certain characteristics and then label these groups as victim or victimizer (e.g. white vs. black, male vs. female, rich vs. poor, etc.).  The Right complains about such identity politics and yet it also uses this approach as it condemns members of groups that advocate (usually progressive) ideas that the Right opposes (thus, enemy groups include LGBTQ, anti-traditional religion, abortion advocates, etc.). 

Again, there are differences, not only with the specifics, but Left identity groups tend to be based upon external and often immutable characteristics  while the Right’s placement of someone in an identity group more often begins with a belief that they hold that is contrary to that held by the Right.  But regardless, the end result is that both Left and Right create identity groups and then either embrace or condemn all those whom they have placed into that group.

For both Far Right and Far Left, a person’s color affects the group’s perception of them.  The Left sees white people as oppressors and racists while people of color are seen as victims of that oppression.  The Right condemns people of color for what they see as taking advantages including jobs, education, etc. from white people due to affirmative action type programs.  Both Far Right and Far Left reduce individuals to a perceived group identity.

Cancel culture and free speech are other areas in which the Far Right and Far Left are more similar than different.  The Left will gladly justify the silencing of those holding views contrary to their progressive values; for example, they will gladly shout down a pro-life or anti-transgender speaker but will assert the rights of protesters to call for the annihilation of Jews.   Meanwhile, the Right will attempt to silence those who protest or support the right to protest for Palestine and Hamas but will demand the freedom of speech for advocates against progressive ideals.  The Right condemns the Left for censorship and silencing in various areas such as vaccine debates.  Yet the Right would silence progressive views by condemning and banning books relating to gender identity.

Both sides will assert the Constitution and the First Amendment free speech right as their support for their approved speech, but they seem to forget those things when they wish to silence speech with which they don’t agree.

In deciding whether Trump should be allowed to appear on primary ballots, the Far Right suddenly ignores their previous demands that the courts and especially SCOTUS be literalists in their reading of the Constitution and not cave to or interpret the Constitution’s plain and clear language to satisfy popular demand.  Meanwhile, the Left is now looking for a simple reading of the 14^th Amendment within the 4 corners of its language.

Both sides also regularly use ad hominem attacks (directing their opposition and anger against the person rather than the position maintained by that person).  Again, while the precise form or will differ language (e.g. racist, communist, fascist, deplorable, plain stupid etc., all of which and more I have personally been called by both the Left and the Right), the bottom line is that both sides find it easier to engage in name-calling rather than to engage in a rational discussion about their differing views, a discussion in which they begin by acknowledging the other’s right to hold a view different from their own.

A horseshoe?  It depends.

Whether this horseshoe theory works depends on what you are comparing.  If you look at the specifics you can conclude that the theory fails – the sides are nothing alike.  Certainly shouting down a pro-life speaker is nothing like trying to silence someone who yells “from the River to the Sea.”  The words are different, the issue being addressed is different, the people involved are different.  And you may agree with one speech but disagree with the other.

And yet, if we go beyond the surface, they are far more alike than different.  In both cases there is an attempt to deny someone their First Amendment right to speak their opinion.  It denies others of hearing that opinion which in itself goes against one of the cornerstones of our democracy: our form of government demands a free marketplace of ideas where all will be heard and individuals will be left to make up their own minds rather than be told by government or some other majority what they can, cannot, and must believe and what they can and cannot say.

Beyond ignoring this core principle, it also violates the tolerance that is a necessary characteristic if our free society is to succeed.

Claudine Gay was attacked for saying “it depends on context” in regard to whether the pro-Palestinian protests violated her school’s code of conduct.  But that is exactly what a good American should say.  As a mentor of mine recently stated:

[S]everal decades of "critical thinking" being taught in junior and senior high schools didn't seem to deal appropriately with the meaning of "critical" in the context.   The guy who taught my [children] in the so-called "gifted" program would just review whatever he had heard on NPR on the drive to school.  

Remember my admonition to [pre-law] students - every question you are going to face should be answered, in the first instance with two words - "It Depends".   Instead each side gets its thinking orders from Fox or MSNBC and then proceeds to see everything through that lens.  All surface.

In the case of the protests and conduct codes, one would have to look at the actual activity and the language of the codes to understand whether this was within the context of speech which, though abhorrent, was within the First Amendment rights of the students to utter, or was this more, perhaps combined with actual violence or immediate threats thereof?  If we allow the silencing of speech alone, no matter how abhorrent, in essence we are advocating the end to the protections of the First Amendment for all Americans. 

It all depends. Not just determining free speech rights, but in determining most of the underlying issues of our day and of our country.   It does often depend on context.   But core rights such as free speech should not depend upon one’s view or on the speech being uttered.  Yet for too many on both the Far Right and Far Left, freedom of speech depends upon what is being spoken. 

That hypocritical ability to view the same core concepts differently depending upon what one is seeking to accomplish is the similarity that drives the two political extremes to become almost as one.  While their stated goals may be different, their means are the same and both conflict with our core democratic principles.

Think

Good Americans think.  They ask why.  The extremes of both the right and the left are too wrapped up in themselves and their mandatory causes to understand the phrase “it depends.”  They don’t think, or if they do, they don’t understand that issues can be more complex than a simple yes or no, black or white, up or down, day or night. Yet if they apply this thought process to their own views as well as those of others, they may realize that they are often doing exactly that for which they condemn their opponents.

So, if we go beyond the surface, if we look beyond the overt details to the deeper concepts directing various actions, we will likely see far more similarity than difference between the two extremes of the political spectrum.

I think it is that deeper conversation that desperately needs to be had in America today.  People need to think and ask why rather than simply accept what they are told and the soundbites they repeat from their chosen news source.  That conversation can only be had if the conversants understand the why underlying the positions they assert.  Otherwise, when their position is countered they likely feel threatened because they don’t really understand the position that they are parroting and so a simple contradiction of their position and memorized phrases becomes almost a contradiction of themselves.  It is impossible to reason and explain a position that is merely memorized but not understood. 

When the focus becomes upon only the surface dissimilarities rather than the suggestion of complexity, any hope of real understanding is likely to dissolve and become something akin to a playground dispute.   If forced to look at the deeper concepts the response is likely either to attack not the ideas of the counterargument, but rather to attack the bearer of the unmemorized, considered idea, or to simply run away.

The Parties – not for most Americans

The horseshoe theory is a somewhat simplistic way of viewing politics and political parties, but it is a good place to begin to review one’s own views as well as those of one’s opponents.

Both the Republican and the Democrat parties currently seem in large part controlled by their extremes. It would be more likely that they merge into one than that they actually distinguish themselves on underlying principles.  In the end, both sides seek power to control the rest of society – individual thoughts, beliefs, and actions would all fall under their control.   While what might be allowed or condemned would differ, both would take away individual right and responsibility to choose.  That is not American, not traditional and not progressive.

Indeed, both extremes are more than willing to dismiss the Constitution, the rule of law, and any number of core American principles to ensure that all individuals conform to what they think is proper and good.   That is not America, traditional or progressive.

I think that, divorced from their chosen Right or Left newsfeeds, most Americans would fall somewhere near the middle of the horseshoe, rising a bit to the Right on some things, to the Left on others.  But we have given those Americans (including myself) nowhere to go.  If both the current major parties are but two sides of the same extreme then Americans are almost forced to take sides against one another rather than work together for solutions to serious problems. 

We need a middle party.  A strong middle party, not just a third party stealer but a real party that represents the vast number of Americans who find themselves standing on one or the other end of the horseshoe – a place where they really don’t want to be.

2024

It is almost, but not yet, too late for the appearance of a candidate who fits more to the middle of the horseshoe.  It could come from a third party or it could come from one or both of the major parties.  Donald Trump or Joe Biden (or hopefully both) could be replaced by candidates more representative of the middle, candidates who have slid down from those horseshoe extremes to a point of moderation that allows them to represent the policy positions of their party in reasonable ways, avoiding the extremism and lack of cooperation and compromise that are the destructive stance of both parties today.

We can only hope.