0:01

This court has made momentous decisions

0:03

in the last few years, certainly in

0:06

the last two

0:17

decades, in the name

0:20

of an originalist interpretation of the

0:22

Constitution. And the

0:24

only originalist interpretation of the

0:26

Constitution available to them in

0:28

this case is that Donald Trump cannot

0:30

run for President of the United States. That's

0:37

my colleague Jill Lepore. Jill

0:39

has written extensively about the origins of

0:41

a small, rarely cited clause in the

0:44

Constitution that prevents public officials from taking

0:46

office again if they have aided or

0:48

led an insurrection. That

0:51

clause is now at the heart of a new

0:53

Supreme Court case that could remove Donald Trump from

0:55

the ballot in Colorado and in other states. And

0:58

so I wanted to ask Jill about the history

1:00

and stakes at play in this case and what

1:02

the results could mean for Trump and for the

1:04

country. You're listening to The Political

1:07

Scene. I'm Tyler Foggett and I'm a

1:09

senior editor at The New Yorker. Donald

1:12

Trump is facing a number of trials right

1:14

now, so just to calibrate our audience a

1:16

little bit, this particular case stems from a

1:18

decision made by the Colorado Supreme Court in

1:21

December that decided that Trump is not eligible

1:23

to be on the ballot in that state.

1:25

Jill, what are the origins of that Colorado decision

1:27

and how did this end up all the way

1:29

at the Supreme Court? So

1:33

after January 6, 2021, the House

1:35

impeached Trump and the Senate quite

1:38

narrowly failed to convict him of impeachment.

1:41

So then a series of

1:43

other efforts were taken to hold

1:46

him accountable. The Colorado

1:48

case is one where the state

1:50

Supreme Court decided in

1:53

favor of those

1:55

voters who had sued to get Trump's name removed from

1:57

the state ballot. The decision was made by the state

1:59

of Colorado. was stayed such

2:02

that it needed to be reviewed by the Supreme

2:04

Court. But this decision that the

2:06

Supreme Court will make will

2:08

affect all 50 states. So

2:11

what does Section 3 of the 14th Amendment

2:14

actually say on this matter? So

2:16

Section 3 of the 14th Amendment is

2:18

known as the Disqualification Clause. People

2:21

are more familiar, undoubtedly, with

2:23

other sections of the 14th

2:25

Amendment, including the Equal Protection

2:27

Clause, the Due Process Clause,

2:29

and the Birthright Citizenship Clause.

2:32

Those are the ones you learn about in school,

2:34

the Disqualification Clause. I don't even think it was

2:37

mentioned. And now it's like the center of

2:39

political, legal, and household debate. Yeah, it's

2:41

really not. So remember, the

2:43

Constitution was ratified with a promise

2:46

of amendment. So

2:48

the Constitution is ratified with the promise that

2:50

there will be added to it a Bill

2:52

of Rights, which is what the first 10

2:54

amendments become known as, are essentially part of

2:57

the initial ratification deal. Then there

2:59

are a couple of amendments that pass before 1804. And

3:02

then the Constitution is not amended for a long time. But

3:05

the Civil War is a constitutional crisis

3:07

of the gravest possible

3:09

nature. And it leads to

3:11

what are known as the Civil

3:13

War and Reconstruction Amendments. There are three

3:15

amendments passed in fairly quick succession. The

3:17

13th Amendment, which ends slavery. The

3:21

14th Amendment, then the 15th Amendment, which

3:23

guarantees the right to vote regardless of

3:25

race. Historians consider these three, the 13th,

3:27

14th, and 15th Amendment together.

3:30

They're all designed to deal with the problems

3:32

created by the Civil War. So

3:34

the 14th Amendment was proposed

3:36

by Congress really

3:39

immediately after the end of the war. The war ends in April

3:41

of 1865. The

3:43

new Congress is seated in December of 1865. And

3:48

among the problems that that new Congress has to

3:50

address is what to do with

3:52

the former Confederacy. And how

3:54

to guarantee equal rights to this newly

3:56

freed population of black men and women

3:58

and children. 4 million. people who

4:01

have been enslaved up until

4:03

the end of the war,

4:05

really. So the 14th Amendment that they propose

4:07

has many parts because they're trying to address

4:10

a whole series of problems in a manner

4:12

that will allow for the Union

4:14

to be reconstructed. So guaranteeing

4:16

equal protection of the laws to

4:19

all people regardless of race, guaranteeing

4:21

birthright citizenship to all people born

4:23

in the United States, guaranteeing

4:25

the due process of the law to

4:28

all persons, these are all part of

4:30

what Congress deems necessary for the

4:32

safety and security of the New Republic. But

4:35

none of these things will make any sense unless

4:39

the leaders of the former Confederacy

4:41

are disqualified from holding office

4:43

because otherwise the same people that just

4:45

waged a civil war, waged the war

4:48

for secession and to defend the institution

4:50

of slavery will be returned to office

4:52

and indeed to national office. So

4:55

the Disqualification Clause, which is

4:58

Section 3, its

5:00

immediate purpose is to prevent

5:02

those secessionists from

5:05

returning to office. What were some of

5:07

the major sticking points in the course

5:09

of the debate over how to word

5:12

this clause? What

5:14

was initially proposed as the third

5:17

section was a disenfranchisement

5:19

provision. So the initial

5:21

idea was, all right, how do we make

5:23

sure that the South

5:25

just doesn't return insurrectionists

5:27

to power? Well, we'll

5:30

deny the right to vote to

5:32

anyone who participated in the Confederacy

5:35

for three years. That was the

5:37

initial Section 3. It was considered

5:39

essentially too lenient and also far

5:42

too finite. And then finally, it

5:46

punished people who were

5:48

essentially coerced and conscripted into the Army

5:50

into the Navy. And it

5:52

didn't hold accountable the leaders of the

5:54

Confederacy who were actually dangerous.

5:58

So when it got to the Senate, Section

6:00

3 was entirely rewritten, and

6:02

partly because Congress

6:04

had received a lot of petitions

6:06

from hundreds, maybe even thousands

6:09

of American citizens calling on Congress

6:11

to do something more than just

6:13

disenfranchise anyone who contributed to the

6:16

Confederate cause, to do

6:18

something more targeted and also stricter.

6:21

A series of different revisions were proposed in the Senate.

6:23

You could kind of go day by day. People are

6:25

coming up with different ideas. And

6:28

they say, first of all, they kind of make

6:30

all these arguments. They say, why are we punishing

6:32

the conscripted foot soldiers? That's

6:34

not really going to help. We

6:37

would like people to vote, but we don't want

6:39

people who have violated an

6:41

oath to the Constitution. That

6:44

is to say, not just a foot

6:46

soldier, not just anybody, someone who had

6:48

previously held some kind of an office,

6:51

those people specifically should be barred

6:53

from returning for office, not just

6:56

temporarily, but for life. So

6:59

that's the version that ultimately the Senate

7:01

passed and then the House concurred in.

7:04

Eventually, Congress decides that ratifying the 14th Amendment

7:06

will be a condition for re-entering

7:09

the Union. And so it's

7:11

under those terms that the 14th

7:13

Amendment is finally ratified. In

7:15

what ways are Donald Trump and his

7:18

supporters arguing that Section 3 doesn't apply

7:20

to him? Trump's

7:23

lawyers have a lot of junk arguments, honestly. And

7:25

some of them are junkier than others. I think

7:27

they have one fairly serious argument. But I kind

7:29

of want to back up to say, to remind

7:32

people, the reason this case exists is that

7:34

Republicans in the Senate failed to do their

7:37

constitutional duty and convict Donald Trump of impeachment

7:39

in January of 2021. And

7:42

I think that's really important to remember.

7:44

The proper way to deal

7:47

with the insurrection on January 6th

7:49

was indeed to impeach Donald Trump,

7:51

which the House did. And then the Senate, by

7:53

a very narrow

7:55

margin, failed to reach the two-thirds majority rate.

7:58

It has now come out in. Several

8:00

memoirs that. Some.

8:03

Of the. I believe it was

8:05

ten senators that were needed. To

8:08

convict, Trump's were persuaded to vote

8:10

against conviction because of threats against

8:12

their families, And Mitch Mcconnell said

8:14

of course at the time that

8:16

he voted against convicting Trample of

8:18

Impeachment because I see that this

8:20

is a matter for the criminal

8:22

courts. the criminal prosecutions that are

8:25

now preceding very, very slowly. Are

8:28

you know another way to confront

8:30

the problem of. A. President

8:32

who has engaged in insurrection. But

8:34

this is not the best solution.

8:36

Country is not a great solution

8:38

and one of the reasons it's

8:41

not a great solution is that

8:43

there is very little law around

8:45

it. I was it was in

8:47

forests consistently and eighteen sixties. To.

8:50

Some degree and eighteen seventies you can

8:52

find cases into the eighteen eighties and

8:54

eighteen nineties. But. It then

8:56

sort of. this disappeared from American law,

8:59

So office quibbling can exist because there's

9:01

probably hasn't been resolved like they're are.

9:03

There hasn't been a lot of quibbling

9:05

before now. So from the vantage of.

9:08

The Trump side of this case,

9:10

there any number of ways to

9:12

strike down. The claim

9:14

that Trump has disqualified himself them

9:17

one is to say. There.

9:19

Was no insurrection? That

9:21

as they're not going it really be able to say

9:23

that and others to say there was an insurrection but

9:25

Trump didn't. Engage. In it or

9:27

give comfort or aid to the insurrectionist

9:30

or incited another as to say there

9:32

was an insurrection and maybe the engaged

9:34

in it but that hasn't been proven

9:36

in a criminal court. Another is to

9:38

say. Okay, maybe there

9:40

was an insurrection, maybe even engaged that.

9:43

It doesn't matter that it was unproven

9:45

a criminal court, but the President is

9:47

not covered by section three. Another. okay

9:51

other things my be true the president's covered

9:53

but a presidential candidate is not covered by

9:55

section three so he can run their like

9:57

a world in which they say he keith

9:59

out to run but he's not eligible to

10:01

hold office if he is. Well yeah, then it would

10:03

sort of kick it down the road. Like let him

10:05

wear a loose and then Congress can decide. So

10:08

again, like nobody wants to decide. The

10:10

Senate didn't want to decide. The Justice

10:12

Department didn't even want to pursue criminal

10:15

charges, right? The

10:17

Congress couldn't decide to hold a true inquiry.

10:19

They had to, you know, an outside investigation

10:21

of January 6th, right? Like there are a

10:23

lot of failures to decide to take responsibility

10:26

for holding Trump to account. We're

10:28

at the past the three year anniversary of

10:30

January 6th. We're only now seeing

10:34

the actual workings of holding Trump

10:36

to account for January 6th. So

10:39

Jill, you've submitted an amicus brief to the

10:41

Supreme Court laying out the historical context of

10:44

Section 3. What motivated, you

10:47

know, the brief in the first place? What inspired

10:49

you to work on it? Yeah, so

10:51

I'm the leader author on this brief

10:53

that I wrote with David Blight, Drew

10:55

Faust, and John Witt, good

10:57

friends and distinguished historians. And

11:00

I can't speak for all of us. I'll speak for

11:02

myself here. You know, the court is interested

11:05

in interpreting the Constitution

11:07

by way of its original meaning, intention

11:11

and public understanding. And

11:14

it happens that as much as I care about

11:16

history, I disagree with that way

11:18

of understanding the Constitution. But

11:21

if that's the way the court is going to proceed, then it

11:23

ought to have in hand good

11:27

academic history accountable to

11:29

evidence. And that's not generally what it

11:32

uses in offering originalist interpretations. So

11:34

we chose to write the amicus brief in order

11:37

to provide, you

11:39

know, a rich and accurate accountable

11:42

to the evidence account of

11:44

the origins and the

11:47

original intention of the meaning of

11:49

and the public's understanding of Section 3.

11:52

There really are no historians

11:54

briefs on the other side of

11:56

this case because the historical argument

11:58

just doesn't. fit

12:00

the Trump side of this case,

12:03

this court has made

12:05

momentous decisions in the

12:07

last few years, certainly

12:10

in the last two decades, in

12:13

the name of an originalist interpretation of

12:15

the Constitution. And the

12:17

only originalist interpretation of the

12:19

Constitution available to them in

12:21

this case is that Donald Trump cannot

12:23

run for President of the United States. So

12:26

if the court wants to

12:29

subvert originalism, denounce originalism, defy

12:31

it, renounce it, move beyond

12:33

it, I would be thrilled.

12:36

It is a bankrupt way of understanding

12:38

the meaning of the law, of fundamental

12:41

law. And I want to, I

12:43

honestly just wanted to say, you know, if

12:45

you want to live in a world

12:48

where there are more guns than people in the

12:50

United States, where children can't go to school without

12:52

fear of mass shootings, because

12:54

of what the justices

12:56

on the Supreme Court believe was

12:59

meaningful in 1787 and 1791, then face it, then look

13:01

at this, look at this history. Then

13:08

you explain to me how you stand

13:10

up and say that Section

13:12

3 does not matter to you. Its

13:15

original meaning, its original intention, the public's

13:17

original understanding of it does not matter

13:19

to you, but it matters to you

13:22

for guns and abortion. The

13:26

political theme from The New Yorker will be back in

13:28

just a moment. Thank

13:50

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going to rocketmoney.com/wnyc. That's

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rocketmoney.com/wnyc. On

14:28

this week's On the Media, Chris Hayes

14:31

of MSNBC makes the case for more and

14:33

better coverage of candidate

14:35

Donald Trump. No one hears what he's saying at

14:37

Truth Social. I don't know if you've followed the

14:39

jags about E. Jean Carroll, which are just unbelievably

14:42

vile and despicable, but it is an expression

14:44

of his essential character, and it is being

14:47

completely hidden from the American voters. Don't

14:50

miss this week's On the Media from WNYC. Find

14:54

On the Media wherever you get your podcasts. You're

15:02

saying that the originalist argument of here

15:04

is pretty clear, and that the history

15:06

is ironclad, but at the same time

15:09

you have Trump's legal team arguing that

15:11

this idea of an officer of

15:13

the United States, as it's specified in

15:15

Section 3 of the 14th Amendment, that

15:17

officer of the United States actually doesn't apply

15:20

to the president. From your

15:22

research, why is it clear to you

15:24

that officer of the United States, that

15:26

that also counts the president and the

15:28

vice president? Yeah. During

15:32

an early conversation in

15:35

Congress about the language, the

15:37

question was raised, in

15:39

early draft, specify the president and the vice

15:41

president, and that was removed. The

15:44

question was raised on the floor. Why

15:47

did we remove that? Aren't

15:50

they, obviously they're included, like we wouldn't want

15:52

someone to become president or vice president who

15:54

had betrayed an oath to the Constitution, and

15:57

that the explanation was offered, but they're

15:59

already included. included, like they're encompassed in the

16:01

language that we have here already, so it's

16:03

just redundant. And you don't want to have

16:05

a longer and redundant language in

16:08

a piece of legal or constitutional text.

16:11

And, you know, the guy who would ask the question is like,

16:13

okay, then that's fine. But I think

16:15

that not

16:17

as a matter of history, because

16:19

the history makes clear that Section

16:21

3 was self-executing and intended to

16:23

be self-executing, and the evidence that

16:26

we present about that is the number

16:28

of petitions that ex-Confederates filed to Congress

16:31

in 1868 and 1869 saying, okay, I've

16:33

been disqualified by Section 3, so could

16:35

you please remove my disability, because I would

16:37

like to be able to run for dog

16:39

catcher in Georgia or whatever. And, just for

16:42

a little bit, can you define self-executing? So

16:44

that's the idea that it doesn't take, you

16:46

know, voters petitioning to get someone taken

16:48

off of a ballot or a secretary of state

16:50

making the decision to remove someone from the ballot, it's

16:52

just you're disqualified. You just

16:54

are. Right. Right. The way if you

16:57

were, you know, born in France, or if you

16:59

were 34, you're disqualified.

17:01

You don't have to prove that. Someone

17:03

could challenge it. But you don't have

17:06

to...a secretary

17:08

of state will remove you from the ballot if

17:11

it's clear that you were not born in the United

17:13

States or under the American flag. The

17:15

reason I say that's the strongest argument on the

17:17

Trump side is simply that

17:19

it's fairly terrifying to imagine such

17:22

a thing being self-executing, right? Like, where's

17:24

the due process? Where's the presentation

17:27

of evidence? Where's one's opportunity to

17:30

say, no, I did not engage in an

17:32

insurrection? So, I mean,

17:34

I think as a matter of

17:36

ongoing law and our political life

17:38

and our political arrangements in civil

17:40

society, we should examine whether

17:43

an amendment to Section 3 would

17:45

in fact be required. But that's not what it says

17:47

now, right? Like, that is not what it is now.

17:50

I don't like Section 3, but it is

17:52

in the Constitution and it is our fundamental

17:54

law. I also don't like the Electoral College.

17:56

I think the Electoral College is a disaster,

17:58

but I don't go outside. and defy the

18:00

electoral college and just say, let's pretend it's not

18:03

there, right? Like, this is

18:05

what a constitution is for. I

18:07

did forget one other in my

18:09

list of the things that the Trump lawyers

18:11

will and have challenged was the

18:14

idea that the section, that section three of the

18:17

14th amendment was only

18:19

ever meant to apply to the Confederacy

18:21

and not to future insurrections or

18:24

insurrectionists. That's the question

18:26

that we answered quite squarely. And I think it's,

18:29

I found actually reading the congressional

18:32

debates, letters to members

18:34

of Congress, petitions by citizens and

18:36

groups of citizens, really

18:39

quite moving on this point that

18:41

people have been through this tremendous,

18:44

painful, exhausting,

18:46

devastating, staggering

18:48

set of losses and a war that

18:51

costs 700,000 American lives. One

18:53

of the signatories on our brief is my

18:56

colleague Drew Faust, who's a former president of Harvard

18:58

and her really beautiful book, This

19:00

Republic of Suffering, is about the

19:03

nature of that loss and what those

19:05

kinds of losses did to American life,

19:07

what that scale of death at the

19:10

hands of fellow Americans meant in the

19:12

context of a war of

19:15

emancipation. It's just the sort

19:17

of moral and ethical burdens

19:19

of that kind of suffering and sacrifice

19:22

and the risk of it all being for

19:24

nothing if Confederates returned

19:26

to office or if future

19:29

generations of Americans would suffer

19:31

under repeated waves of insurrectionism,

19:33

secessionism, disloyalty,

19:36

the denial of the legitimacy of the constitution

19:38

and the union, that

19:40

they were writing something that

19:44

would protect their descendants

19:46

from the kind of suffering that they

19:48

had endured. I found

19:50

it incredibly moving. I'm the lead author

19:52

on our brief and I really chose to put that

19:54

front and center because the idea

19:56

that this Provision does

19:59

not apply to because it's. Old.

20:03

Tired. Because it's old when

20:05

we are asked, when we

20:07

are asked to believe that.

20:10

Thirteen. Year olds. Twelve year olds

20:12

can get abortions because of what

20:14

people thought, what fifty five men

20:16

thought, and seventeen eighty seven. But

20:18

this because it's old, doesn't matter

20:20

anymore. This sends

20:23

me off a constitutional plus. I

20:26

agree with you that I think. He.

20:28

Would. My guess is that they're going

20:31

to try. To avoid the

20:33

insurrection. Question: I'm almost entirely

20:35

since. There's a whole separate case and

20:37

be seated to determine whether Trump inside

20:40

it or participated. In the January

20:42

six insurrection, said. I mean

20:44

how can you imagine them ruling if they're

20:46

looking for a narrow way either out of

20:48

there so we're I'm and narrow way to

20:50

to see that they agree with it. I.

20:56

Confess, I don't have. That.

20:59

Oh gore such will say this and suddenly

21:01

or would want. That I'm a not

21:04

that avid of. A court Watch her.

21:08

So I can really only

21:10

speak in broad strokes such

21:13

that. Assuming

21:15

the good faith of justices

21:17

who wish to not insight

21:20

and other civil war their

21:22

desire will be again to

21:24

make. To

21:27

really make the smallest decision that's possible

21:29

for them. That is to say, to

21:32

to to to make the decision of

21:34

the least significance and implication. They

21:37

are looking for a way out

21:40

at. I think there could

21:42

be justices who. Believe

21:45

Constitutionally Absolutely. That.

21:48

Trump disqualified himself on January

21:50

Six. Twenty Twenty one and

21:52

yet. Who. Will

21:56

be daunted by. Fear.

22:00

what a ruling to that effect would

22:02

mean. I think

22:04

the justices also understand

22:07

the tragedy that would be a

22:09

holy partisan, the kind of six

22:11

to three conservatives against liberals ruling.

22:13

The partisanship of the Bush v.

22:15

Gore decision was devastating and

22:18

I think haunts them all and should.

22:20

It haunts the country. So

22:24

I think they, like everyone else

22:26

who has to hold Trump to

22:28

account, wants someone else to do

22:30

it. So they will send

22:32

a message that it is really up to Congress

22:34

to deal with this. And the way

22:36

to do that is to lean on this, it's

22:39

maybe not self-executing. And

22:42

there's a case that they can use to

22:44

that end. There's

22:47

a kind of common sense case and they

22:49

could say there's just really not enough law

22:51

here. We

22:53

don't think it would be good for it to be

22:55

self-executing and therefore it's not. I mean, I don't

22:57

know how they turn

23:00

that into an opinion, but

23:03

I think that's where they'll come down.

23:05

I would be surprised if they

23:09

were to embrace any of the truly

23:12

nonsensical arguments like, oh, it was

23:14

only for the Civil War. It's too old. It

23:16

doesn't matter anymore. Oh, the

23:20

officer language doesn't apply.

23:22

Like that's, I just, I

23:24

can't, or I think it's... My

23:27

favorite one is about the oath that Trump took. Oh

23:30

yeah, it's a different oath. It has a

23:32

different verb. Yeah, because, yeah, in section three,

23:34

the oath is to support the Constitution of

23:36

the United States, which is the oath that

23:38

senators take. But for president, it's like protect

23:41

and defend. So somehow

23:43

fundamentally different. It would make Trump the

23:45

only president ever, I think,

23:47

who couldn't, who this wouldn't, you

23:49

know, sort of basically he would

23:51

be the only president, I think, in history

23:53

who would be immune if that were the

23:56

case, because every other president has held another

23:58

office beforehand and had to take it. The

24:00

sub more right? Oh and that actually is

24:02

where I thought the I thought the people

24:04

who are court watchers and they think the

24:06

court will choose the officer thing because it

24:08

would seem to be likely to only ever

24:11

apply a trump that everyone else past and

24:13

future running for President will have previously held

24:15

the different office for which they had taken

24:17

an oath to the constitution. In

24:19

owning, think about how. Trump

24:21

and his supporters have been talking about the

24:24

implications. Of this case, In In basically

24:26

the argument they're making is that picking

24:28

Trump off the ballot is a form

24:30

of disenfranchisement. For republicans, I'm wondering what

24:33

you think about. That you

24:35

know this idea of i'm mostly take him

24:37

off the ballot and you know all these

24:39

republicans can't vote for him that that his

24:41

arms you know kind of chipping away at.

24:44

Democracy. And. Yeah

24:46

yeah, the right to vote is not a

24:49

right to vote. For some guy, the right

24:51

to vote is that right to vote Like

24:53

you know, Lincoln did not appear on and

24:55

on many bells and eighteen sixty. He has

24:58

the South system landed the on the ballot.

25:00

Like we can disagree with disagree with that

25:02

but people saw the right to vote. You

25:04

know have a right to vote for Donald

25:06

Trump just because he wants to run for

25:09

office. Feast disqualified. He's disqualified. It's not disenfranchisement

25:11

right like that. The that is the point.

25:13

that was the. That was the preferred outcome

25:15

so that people would still have the right

25:17

to them. And the I saw part of

25:19

the issue here is the timing right? Like

25:21

is the you know court have been faced

25:23

with this question. You know, months before the

25:26

primaries and caucuses started and you know Trump

25:28

wasn't even formally on a ballot yet? Then

25:30

I feel like I'll be one thing. You

25:32

know this question of whether he's eligible to

25:34

run again, but I do feel like it's

25:36

difficult when he people have voted for him

25:38

in these early states. And then you know

25:40

the court said that they're trying to decide

25:42

this case before Super Tuesday before he's on.

25:44

All the ballots basically. But yeah,

25:46

yeah, that doesn't like should be

25:49

or Tory right it is. It's

25:51

absolutely tricky territory and it would

25:53

be explosive and earth shattering. and.

25:56

It. Is. Sure, it's fine

25:58

for me to say Technically,

26:00

it's not disenfranchisement, but people are going to experience it.

26:03

People would experience it that way, right? They would believe

26:05

it to be that. They would experience it as that,

26:07

and that's not to be sneezed out. I don't mean

26:09

to trivialize that. I mean, you know, you're absolutely right

26:12

to raise it. The constitutional

26:14

argument remains sound. It is unaffected

26:16

by that. There was a kind

26:19

of great David French piece in the New York Times a

26:21

few weeks ago, the French conservative

26:23

commentator, legal commentator, in

26:25

which he said, you know, people will say, well,

26:28

the Section 3 argument is a bad one because

26:30

it will lead to political violence. Yes,

26:33

constitutionally, it's correct. It's unassailable

26:35

constitutionally, but the political consequences

26:38

are so dire that

26:40

it has to be avoided as an outcome, and the

26:42

court will have to come up with a way to

26:44

steer clear of

26:46

the unassailable constitutional outcome.

26:50

And French said, you know, I

26:52

actually think the threat of political violence is

26:55

why the court has to abide

26:58

by the unassailable constitutional interpretation, because

27:01

you cannot avoid a

27:05

constitutional claim with

27:08

a pitchfork, that to succumb

27:10

to that is to yield

27:12

to insurrectionism itself as

27:14

now a mode of lawmaking.

27:19

I thought that was extremely compelling.

27:21

And for all my fear of

27:23

what is not new political violence,

27:25

but ongoing political violence, for all

27:27

my fear of that, I think

27:30

French is right. Capitulating to the fear

27:32

of political violence is actually a way

27:34

to promulgate a kind of political, a

27:36

way to kind of encourage political violence,

27:38

to submit to it, to yield to

27:40

its inevitability. If I were on the

27:42

court, that would give me a great

27:44

deal of pause. It's interesting,

27:47

because I feel like last time you were

27:49

on the show, you know, you were talking

27:51

about your concerns about political violence in general.

27:54

I think that the way that Trump

27:56

has avoided being held to account for

27:58

January 6 thus far. for three years

28:01

has been because of a series

28:03

of people's genuine fear

28:05

of political violence directed against

28:07

themselves, against their communities, against

28:10

anyone, right? It's not a

28:12

self-interested thing to fear political violence, right? It's a

28:14

tragedy when it happens. The

28:17

country needs to move through

28:19

this very tumultuous and terrifying moment

28:21

into a new era of a

28:24

kind of reconstituted civil society. And

28:27

how we get there is the question of our

28:29

age. Thank

28:35

you so much Jill. All right, thanks a

28:37

lot. Take care. Jill

28:40

Lepore is a staff writer at The New Yorker. You

28:43

can read her work at newyorker.com. This

28:45

has been the Political Scene. I'm Taylor

28:48

Faggot. The show is produced by Julia

28:50

Netter with editing from Stephanie Karauki. Our

28:53

executive producer is Stephen Valentino. Chris

28:55

Bannon is Conde Nast, head of global audio.

28:58

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