American presidential election | Trump, the voter and the judges

The false suspense is over: it will not be the courts, but the American voters who will decide whether Donald Trump will return to the presidency.

False suspense, because anyone who heard the arguments at the U.S. Supreme Court last month knew that Trump was going to prevail with an overwhelming majority of at least eight of the nine justices.

Ultimately, the Court unanimously overturned – with good reason – the Colorado court’s decision excluding Trump from the ballots for having participated in an insurrection.

Unanimity in the Supreme Court of the United States, on an angry subject, is not seen every day, it is worth celebrating.

The question of whether or not Trump participated in an insurrection (which he is accused of in criminal court) was not at issue, and not a line is written about it.

The only question was whether Colorado – or any other state – could exclude a presidential candidate on this basis.


The Supreme Court of the United States, Washington

During the hearing, the “progressive” or “conservative” judges made their opinions quite clear in their questions: letting states decide whether a candidate is on the ballot without further trial for insurrection would result in an “election quilt chaotic.” This is political evidence.

But the law doesn’t always say what political logic suggests. Also, several experts, including conservative jurists, believe that the Constitution is clear and that Trump should be excluded. This was what the Colorado Court of Appeal concluded by a majority.

After the American Civil War (1861-1865), the period of Reconstruction was legally inaugurated by “amendments” 13, 14 and 15 to the Constitution. We came to regulate the powers of delinquent States to enter this new era.

The 13the is the best known, because it formally prohibits “slavery or involuntary servitude”.

The 15the establishes the right to vote for all (…men) “without regard to race, color or previous state of servitude”.

Between the two, the 14e amendment is the most robust: it includes 5 articles. The most fundamental is the first, which states that everyone born or naturalized in the United States is equal before the law, and prohibits states from infringing on a person’s right to property or liberty without a fair trial. Because despite the superb language, in the first Constitution, African Americans did not have these rights.

This is article 3 of this 14e amendment that was discussed in this Supreme Court decision. However, it had the appearance of a museum relic before January 6, 2021. It aimed to exclude from any position in the American state those responsible for the secession of the Southern states. Thus, any former elected official, federal or state, or any holder of a state office who has “participated in a rebellion or insurrection” does not have the right to run for Congress or any other office.

It would never be used again after the 19th centurye century, that was certain!

The problem, as the Court says, is that this power of exclusion has never been exercised. Despite the fact that “hundreds” of secessionists have obtained positions in contravention of this article, no procedure has ever been taken against them. The lack of historical precedent should provide us with a clue to the problem surrounding this power to disqualify a candidate.

For five of the judges, this power must be formalized by a law of the American Congress. The amendment specifically says that Congress “shall have power to implement this section by appropriate law.” Congress never did so, probably for reasons of political appeasement.

The “progressive” judges express their dissent only on this subject: it was not necessary to go so far in the decision, it was enough to overturn the Colorado decision.

Yet, if one rejects the chaotic “quilt,” it seems logical that a uniform rule, adopted by Congress, be put in place to determine who can be excluded.

We will be told that given political divisions, and the shadow of Trump, such a law is unthinkable at this time. That doesn’t seem like a very good argument to me: if we want to avoid state-by-state decisions, we need a single federal mechanism. Especially since the historical idea of ​​this amendment was to overcome the violent divisions between states after the Civil War.

The very existence of this debate shows us to what level of deviance American politics has descended: we are debating the rules surrounding the candidacy of a man accused of crimes against the federal state at the highest level. Can he introduce himself? Who should decide? How ?

Next month, the same Supreme Court will seriously consider another question, which one would also have thought theoretical, almost absurd: does a president enjoy immunity for crimes he may have committed during his mandate?

I predict another unanimous judgment, or almost. Trump, that’s already it, will have succeeded in creating a rare judicial consensus twice in the same year in a very divided court.

He will lose. But he will probably have succeeded in the meantime in delaying several criminal trials through these maneuvers without which he would have had to face his judges before his voters. Voters who say they can change their opinion depending on the outcome of these trials.

Justice delayed, justice denied (justice delayed, justice denied), says the maxim. This time, it is the accused who buys delays, and it is the public’s rights that are violated.

The voter must decide in the final instance: it is not up to the court to exclude him from the ballot.

All right.

But this same Supreme Court participates in the extension of deadlines in criminal cases, and therefore jeopardizes the timely conclusion of trials exposing crimes of candidate Trump.

This is where these judges take the place of the voter, flouting their rights.


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