“Section Three of the Fourteenth Amendment is self-enforcing,” Steven Calabresi writes at The Volokh Conspiracy. “It is ‘the supreme Law of the Land’ binding on each of the 50 State Secretaries of State and their subordinates who draw up primary or general election ballots.”

Calabresi believes former president Donald Trump has disqualified himself as a candidate for president per that constitutional provision by engaging in “insurrection or rebellion” against the United States, and that those Secretaries of State must, therefore, ban his name from upcoming ballots.

When Calabresi calls the provision “self-enforcing,”  he means that “no jury verdict is required.” A Secretary of State simply decides that Trump is an insurrectionist and that’s that. It’s over. He’s done. He may not appear on your ballot, and you may not vote for him.

Unlike Mr. Calabresi, I’m not a professor of law, but I have at least three problems with his claims.

First of all, Section 5 of the 14th Amendment makes clear that no, it isn’t “self-enforcing.” “The Congress,” it says, “shall have power to enforce, by appropriate legislation, the provisions of this article.”

Secondly, the section he cites forbids insurrectionists to hold, not to run for, office.

And thirdly, when the 14th Amendment was ratified in 1868, there was no such thing as “ballot access” under which Secretaries of State had any say at all over which candidates Americans could vote for.

Until the 1880s, all American election ballots were, effectively, “write-in” ballots. At the polling place, the voter wrote out his choices, or verbally dictated them to an election official if the voter himself couldn’t write, or simply cast a pre-printed ballot provided to him by his preferred political party (yes, “his;” women weren’t allowed to vote until 1920).

Unless we  credit the ratifiers of the 14th Amendment with prophetic abilities, AND assume that they didn’t really mean it when they assigned enforcement of the “insurrection” provision to Congress, AND assume that such “self-enforcement” also magically bypasses the court system set up to adjudicate claims under both the Constitution and subordinate legislation, Calabresi’s argument simply doesn’t hold water.

Personally, I’m in favor of returning to the “write-in ballot,” which would inherently require that election of an “insurrectionist” be challenged in the courts after the votes are counted. OK, actually I’m in favor of dissolving the government, but barring that, we should get the government out of the job of deciding who we may or may not vote for.

And even accepting the legitimacy of the existing system, the only legal way to bar Trump, or anyone else, from the ballot is to prove to a court’s satisfaction that he is indeed an “insurrectionist.”

Which, frankly, doesn’t seem like a very high bar.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

Elon Musk and other Very Special Important Wealthy People want to use “your” airports, “your” airspace, and “your” air traffic control systems, but don’t want you and your fellow smelly peasants to know the details.

Per Axios, the VSIWP class has contrived — probably through lobbyists, although direct whispers or even outright bribes to their friends on Capitol Hill aren’t unthinkable — to get their desire included in the  Federal Aviation Administration “reauthorization” bill now before Congress. Per the quietly inserted new provision, the FAA would have to establish a special process to help private jet owners hide their comings and goings from the hoi polloi.

Why the desire for secrecy? Musk considers public knowledge of his jet’s comings, goings, and locations to be “basically assassination coordinates,” a “security risk.” “I don’t love the idea of being shot by a nutcase,” he told the owner of Twitter account @ElonJet, a bot which tracked his jet, in early 2022.

But if such a security risk exists, it’s just as applicable to every commercial air passenger as it is to a private jet owner. Maybe even more so.

Suppose that on Friday, August 11, you boarded Delta Air Lines Flight 308 at New York’s JFK airport, bound for Los Angeles. Every would-be terrorist in the world knew — or at least COULD know, via various flight tracking web sites — that your flight was scheduled to taxi out for takeoff at 10:15pm Eastern time and  land at 1:15am Pacific time. He or she could even track your flight’s progress in a real time on a handy-dandy map for ease of picking “assassination coordinates.”

Why? Because the use of “your” airports, “your” airspace,” and “your” air traffic control systems are matters of public record.

About those scare quotes:

Libertarians and anarchists like me come up against the problem of how a free society would deal with the property status of airspace.  Do you own the air over your homestead? If so, are you entitled to buy yourself a Stinger missile and shoot down any trespassing planes?

I don’t profess to have good answers for such questions, but the government’s answer, way back when, was to declare airspace above a certain altitude effectively “public” — that is, your — property, and establish an agency (the FAA) which  directs traffic through that airspace in your name. Which, in turn, makes all of that your business.

Whether that’s a good way or a bad way of doing things, there’s no good argument for an exception to it in the case of Very Special Important Wealthy People.

In point of fact, we regular folk who travel on the 84% of flights the FAA designates “commercial” pay 98% of the taxes that fund the FAA. “Private” jet operators, responsible for the other 16% of flights, pay about 2%.

They want us to subsidize them AND be barred from knowing where those subsidies are going.

Oh, the poor dears. Next time I fly, I’ll bring the world’s smallest violin along in my carry-on to play a sad song commemorating their plight.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

US Senator Elizabeth Warren (D-MA) is a school-marmish New England pseudo-liberal technocrat. US Senator Lindsey Graham (R-SC) is a Deep South pseudo-conservative militarist. They’ve staked out their respective stomping grounds in opposing wings of the American uni-party. So when they agree on something — anything at all — Katie bar the door. Trouble’s on the way, because while they might seem like political opposites, they share one overriding value in common: Both of them want to run your life.

The theoretical purpose of their “bipartisan” (another warning signal not to be ignored) Digital Consumer Protection Commission Act is to “protect consumers, promote competition, secure Americans’ privacy, guard national security, and prevent harm online.”

Its actual purpose is to put  a pack of bureaucrats in charge of the Internet so  you don’t get to see anything Warren and Graham think you shouldn’t see. Which, between the two of them, is probably pretty much everything (except perhaps press releases from the offices of Warren, Graham, and their fellow political cultists).

Aside from the risible “Consumer Protection” claim, naturally, they justify their prospective power grab on a “for the children” basis: It’s not that they’re megalomaniacs,  see, it’s that they’re against all the things everyone is against — “child sexual abuse material and sexual exploitation, human trafficking, drug trafficking, cyberbullying … eating disorders, addictive behaviors, and teen suicide.”

Presumably most of us agree that the Graham/Warren laundry list is chock full of Very Bad Things.

But it’s a giant leap of faith to expect a new government bureaucracy, armed with powers that clearly violate the First Amendment and other basic principles of anything resembling a free society, to accomplish much in the way of fighting Very Bad Things, real or imagined. The next time that happens will be the first time it happens. And there’s not going to be a first time.

By the time the federal government gave up on alcohol prohibition, more Americans were consuming more booze than when it started.  While the war on drugs may not yet be formally ended, it’s increasingly clear that the drugs have won. And if you’d like to see a mass shooting, just park your car in any area marked “gun-free zone” and wait a little while.

Graham and Warren are just the latest pair in a long, eternal line of busybodies who think they’re entitled to police what you read, view, listen to, smoke, drink, or otherwise ingest, and who demand that you trust them to do so.

I don’t know that these two are any less trustworthy than their predecessors, but that’s not the issue. The issue is that no one’s entitled to, or should be trusted to, make such decisions on your supposed behalf.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY