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No way out

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This op-ed from Yale law professor Samuel Moyn illustrates a big problem for American elites, which is that they know that around 40% of the electorate are flat-out delusional members of the Trump cult, but you can’t really acknowledge that straightforwardly without calling into question whether this whole thing of ours — la cosa nostra in this case being American semi-quasi liberal democracy — is actually working at all any more.

Some aspects of American election law are perfectly clear — like the rule that prohibits candidates from becoming president before they turn 35 — but many others are invitations to judges to resolve uncertainty as they see fit, based in part on their own politics. Take Section 3 of the 14th Amendment, which blocks insurrectionists from running for office, a provision originally aimed at former Confederates in the wake of the Civil War. There may well be some instances in which the very survival of a democratic regime is at stake if noxious candidates or parties are not banned, as in West Germany after World War II. But in this case, what Section 3 requires is far from straightforward. Keeping Mr. Trump off the ballot could put democracy at more risk rather than less.

Part of the danger lies in the fact that what actually happened on Jan. 6 — and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him — is still too broadly contested. The Colorado court deferred to a lower court on the facts, but it was a bench trial, meaning that no jury ever assessed what happened, and that many Americans still believe Mr. Trump did nothing wrong. A Supreme Court that affirms the Colorado ruling would have to succeed in constructing a consensual narrative where others — including armies of journalists, the Jan. 6 commission and recent indictments — have failed.

It’s the official position of LGM that as both a formal legal and politically prudential matter it’s not clear how Section 3 of the 14th amendment ought to be applied to the circumstances of the 2024 presidential election.

But this has nothing to do with the question of whether Trump tried to overthrow the government by abrogating the lawful results of the 2020 presidential election. That’s not a question: that is a fact. The odd thing is that the mainstream/legacy/elite media all agree that this is a fact! One of the remarkable features of our present situation is that Trump’s false claims about the 2020 election being stolen from him are, as a matter of standard journalistic practice, described as false, rather than as contestable in any way. The non-fascist media do not, despite the enormous inertial and institutional forces pushing them to do so, treat this as something that ought to be the subject of political debate. There aren’t two sides here: there’s the narrative put forth by the Democrats, which happens to be true, and that put forth by the Republicans, which happens to be false.

What Samuel Moyn is choosing to ignore is that this problem isn’t going to go away, no matter what the SCOTUS does or doesn’t do about the Colorado lawsuit, and by extension the other lawsuits in swing states that actually could legally guarantee Biden’s victory, if the Supreme Court were to allow those lawsuits to remove Trump’s name from the ballot in those states (Spoiler: It won’t). That’s because “a consensual narrative” about the 2020 and 2024 (and 2016) presidential elections isn’t forthcoming, because the Republican party is a cult, under the control of Donald Trump, cult leader and aspiring dictator, and cults don’t provide their members with a la carte epistemological options. Either you’re in or you’re out, and if you’re in, you have to accept Donald Trump’s false claims about the 2020 election being stolen from him as true. And no court decision or national election is going to change that.

It’s already the case that Republicans won’t accept Biden’s re-election as legitimate, and that Democrats won’t accept Trump’s re-election as legitimate. Republicans won’t accept the former because they’re in a delusional cult, and Democrats won’t accept the latter for the perfectly good reason that liberal democracy is not a suicide pact, and an election that puts a fascist in power is not legitimate by definition.

They have taken the Bridge and the Second Hall. We have barred the gates, but cannot hold them for long. A Shadow moves in the dark.

We cannot get out.

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