The Supreme Court Said the Constitution Doesn’t Apply to Donald Trump

Why the Supreme Court’s Decision Is Even Worse Than You Think

Hi. How’s everyone? Today we’re going to talk about what the Supreme Court just did. How bad is it? Much worse than you probably think. There’s a deeper, longer discussion over at the Issue, my new little publication — if you haven’t joined already, click on over, we have plenty of awesome conversations and there’s plenty (plenty!) To read. Here’s a quick take.

By now, you should know the basics. Section 3 of the 14th Amendment says that anyone attempting an insurrection is “disqualified” from holding office. It states this clearly and explicitly. So before the Supreme Court was just this issue: is Trump disqualified, or not? The Court, as you’ve probably heard by now, ruled not just that Trump is qualified, but went several steps further.

In effect, it said he can’t be disqualified. The other Reconstruction Amendments — those passed after the Civil War — are “self-enforcing,” meaning that they don’t need to be enforced by legislation or any governmental or institutional mechanism. Those are the rules, and they don’t need “enforcement.” But the Court said that this particular section of this particular amendment is the only that’s not self-enforcing.

What does all that abstruse jargon really mean?

The Supreme Court just said that Constitution of the United States doesn’t apply to Donald Trump.

It’s crucial to understand that point, and that is what’s hiding in plain sight behind all the jargon and theories and history. The Constitution is crystal clear: attempt an insurrection, you’re disqualified from holding office. History says that doesn’t need to be made to happen, it just is. But the Supreme Court — this Supreme Court — took precisely the opposite position. And by doing so, let’s not mince words, it’s said that Constitution doesn’t apply to Donald Trump.

Let me delve into that for a second before we go deeper. That principle can or might also be extended to others who attempt coups, or in the antiquated constitutional parlance, “insurrections.” But for now, the only person who’s done that, and is attempting to go on holding the office of the Presidency, is Donald Trump.

The Supreme Court’s position here is a radical one. It breaks with legal precedent. It breaks with history. It breaks with how capital-A Amendments to the US Constitution are applied. And it does that all to…let Donald Trump run for office, or in other words, not to disqualify him. So the Supreme Court went out of its way — breaking with all that — to back Trump, effectively, which is what this decision is: validation, a kind of seal of approval, the closest a Supreme Court can get, really, to an endorsement. It’s a license, and in this case, a license to kill. A democracy.

If you think those are strong words, let’s think even more clearly and deeply about what really happened here.

Right now, over the last few months, the question before American jurisprudence has been: is Trump above the law? And numerous cases have been brought to trial, precisely to test this proposition, and prove it wrong: no, Trump’s not above the law, as he’s clearly thought for the last few years, decades, throughout his life. So Trump now has — what’s the count, 91? — felony charges against him.

The Supreme Court went way, way further than this, and decided this matter on another level entirely — the level above the question: “is this demagogue above the law?” Instead, they said, in effect: “the law? Forget that! He’s above the constitution.”

Where do laws come from? From constitutions, of course, which grant legislative bodies powers to make them, and courts powers to interpret them. Without constitutionality, there is no rule of law. And one way we see “banana republics” operate — or democracies implode, or societies implode, choose your preferred turn of phrase — is for corrupt judiciaries to not just sidestep the question of legality, but to in effect overrule it.

And they do that by placing demagogues not just above laws, but above constitutions themselves. This distinction is really, really crucial to understand — it’s what really just happened in America, and it’s incredibly disturbing to see. As a scholar, survivor, and witness of and to social collapse, let me assure you, this isn’t something to take lightly. Why not?

You see, when a judiciary resolves the question “is this demagogue above the law?,” by saying “forget the law! He’s above the constitution!,” then we’ve reached a whole new level of collapse, implosion, meltdown. That is because of course constitutions operate a higher — or more fundamental — level than laws, creating and providing the basis for them.

To say that a demagogue is above the constitution is an incredibly dangerous thing for a Supreme Court to do. Because it gives them superpowers, in effect. Impunity, of the most unassailable kind. If you’re above not just the law, but the constitution, then to what extent do society’s rules apply to you? History’s precedents? Norms, values, codes? Nothing then is a constraint, check, or balance upon you. This is the kind of thing that creates monsters.

Let’s apply that for a moment, using the court’s ruling. Since Section 3 isn’t “self-enforcing,” according to the weak, poor arguments of this Supreme Court, what…does it…mean? They recommend criminal prosecution. But of course, that doesn’t disqualify someone from holding high office. The problem isn’t solved, and the constitution, crucially, isn’t applied. So the Supreme Court has said that in effect, the constitution doesn’t matter.

It could have done many things. Instructed Congress to provide a mechanism to apply the rule, if it really believed that much was even true. Provided guidelines for what the criteria for insurrection are, and then those for disqualification. Any number of possibilities spring to mind. It did none of that, and basically took the most extreme position it could, and perhaps the most extreme position there is.

It didn’t exculpate Trump — it said the question doesn’t even matter, because the constitution doesn’t apply to him. Guilt, innocence, qualification, disqualification? It rendered these questions merely theoretical, and by doing so, said these issues don’t exist in the real world whatsoever. Congress can now simply ignore the issue, and hey presto, everything’s fine. But it’s emphatically not fine, because of course, now we have a situation where a demagogue is above not just the law, but the constitution itself.

That is a constitutional crisis, whether or not enough people understand it as one. This is where America is now — the constitution just got shredded, to back an openly aspiring dictator, and I’m sure the irony of it being done by “originalists” is lost on no one. A demagogue who wants to wreck democracy is bulleting towards the Presidency, and this time, he’s out for vengeance, and he’s far more practiced. Instead of checking and balancing this peril, the Supreme Court handed him a rope, with which to suffocate democracy, and said, hey, go for it. Nobody’s looking, and even if they are, they can’t do anything about it, so…did it really happen?

We’ve talked a lot, over the years, about American democracy drawing to a close. It seems to me that we’re heading towards the final scenes in this dismal play. The Supreme Court’s decision will live, as they say, in infamy. But Americans, unfortunately, it seems, will live in tyranny. Will it be the salvation so many of them appear to think, though?

Come on over to the Issue, where we’re going to be discussing all this and plenty more, and if you want to read the deeper dive into the Supreme Court’s decision, here it is. Welcome, if you’re new, and I’ll see you there.

Umair March 2024