Sunday, December 24, 2023

Christmas bonus: Ambiguity in American laws

A 2023 legal research paper entitled, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment, exemplifies rich sources of ambiguity that plague many or probably most American laws. In this case the law being analyzed is the Constitutional provision that bars people from running for office if they engaged in rebellion or insurrection:
Section Three of the Fourteenth Amendment disqualified anyone from serving in the House or Senate, or as a presidential elector, if they had betrayed their oath of fealty to United States and joined the Confederacy during the American Civil War. Whether Section Three accomplishes anything more remains unclear as a matter of history and ambiguous as a matter of constitutional text. Section Three does not expressly (1) apply to future rebellions or insurrections, (2) apply to persons elected as President of the United States, (3) apply to persons seeking to qualify as a candidate for the Presidency, or (4) indicate whether the enforcement of Section Three requires the passage of enabling legislation.

Prior drafts of Section Three included versions that expressly named the office of the President of the United States, expressly banned presidential candidates from qualifying as a candidate, and expressly applied to both past and future rebellions. Congress omitted all of this language from the final version of Section Three. This final language led the best lawyer in the House to assume that the text did not include the office of the President. Although a single member disagreed, their exchange went unreported in the press, leaving open the possibility that less sophisticated members of the public might also read the text as excluding the office of the President. The exclusion would not have been "absurd" since the Electors Clause ensured that only properly constructed slates of electors could vote for the President.

Key framers and ratifiers also expressly insisted that Section Three would not be self-executing. As Thaddeus Stevens explained, Section Three “will not execute itself,” and at least some participants in the ratifying assemblies expressly agreed (no one claimed otherwise). As far as future rebellions were concerned, the historical record reveals both framers and ratifiers dividing over the text’s possible application to future insurrections. In sum, the historical record supports Lyman Trumbull’s explanation of the original understanding and scope of Section Three: The provision was “intended to put some sort of stigma, some sort of odium upon the leaders of this rebellion, and no other way is left to do it but by some provision of this kind.” Whether the public understood the ambiguous text as allowing for anything more remains historically unclear.

No work to date has presented a systematic investigation of the framing and ratification history of Section Three. As a result scholars (and judges) have been working in the historical dark, insufficiently informed about how the draft developed over months of debate, uninformed of the constitutional precedents against which the final draft would be understood, and without any understanding whatsoever of how ratifiers engaged the proposed text. 
For example, since some prior drafts of Section Three expressly limited the provision to the “late rebellion,” [the American Civil War] some scholars claim that the absence of such language in the final draft means Section Three applies to future rebellions. What has gone unrecognized, or undiscussed, is that there were multiple prior drafts of Section Three. Some of these drafts expressly declared that the provision would apply to future rebellions. The final draft, however omits any such reference, rendering the text ambiguous in regard to its application to future rebellions or insurrections.
In that ambiguity, one can see how DJT could avoid being barred from running for president in 2024. I believed that Sec. 3 was self-executing because its language, engaged in rebellion or insurrection, seemed to indicate that. My belief appears to have been wrong if this analysis is right.

Some legal scholars have toyed with the idea that the rule of law itself in essentially contested concept. A 2021 legal research paperJudicial authority, legitimacy and the (international) rule of law as essentially contested and interpretive concepts: Introduction to the special issue, comments:
Beyond setting the stage, the Introduction makes three claims about the conceptual triangle of the rule of law, judicial authority and legitimacy. The first is that all three are essentially contested and interpretive concepts in the sense of Walter B. Gallie and Ronald Dworkin. In their expositions, the contested and interpretative nature of such concepts is nothing to be ‘solved’, rather the formulation of different conceptions and contestation about them are central functions of such concepts. The interpretive and essentially contested nature points us to the relevant ‘actors’ and to conflicts and trade-offs between contested competencies. Thus the second point is that arguments about the rule of law and judicial legitimacy are often a means of questioning or securing the authority of a particular actor or institution in relation to other actors and institutions. The final point is that transposing concepts from the domestic to the supranational is a constructive endeavor because it entails creating new conceptions and substituting old ones as well as legitimizing new authorities and delegitimizing old ones. Thus, this special issue also cautions against discourses that ultimately are more about legitimation than about legitimacy and more about new ways of ruling than the rule of law.
One can see in American law sufficient ambiguity and an judicial interpretative freedom to convert the US from democracy grounded in the rule of law to an authoritarian state calling itself a democracy operating under the rule of some form of authoritarianism or rule of the dictator and/or powerful elites (autocrat, plutocrats, Christian theocrats, kleptocrats).

Ambiguity in American law is why I see and call out the immorality and evil of mendacious authoritarians speaking and acting in bad faith to get the wealth and power they desperately want. The Constitution and rule of law gets in their way so they have to go, to be replaced by the rule and whims of the powerful.

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