The “Water Engine” Prank and the Internet of Lies

For people with too much time on their hands, YouTube offers a fun and sometimes educational way to kill it. YouTube offers a wide range of “documentaries” for streaming. They range in length from minutes to hours, and in subject matter subject from politics and business, to astronomy, history, science and climate. Some are snippets (apparently licensed) from major news organizations; others come from God knows where.

In recent weeks, two caught my scientific-engineering eye. They examined a so-called “water engine,” whose “fuel” is water and whose only exhaust is water vapor.

As the clips explained, this “engine,” exploits two well-known scientific-engineering processes. First, applying electricity to water (H₂O) breaks it down into its constituent elements, oxygen and hydrogen. Second, the hydrogen burns explosively in oxygen, recombining the elements into water while releasing a lot of heat energy. So why not combine the two processes—electrolyzing water and explosively recombining its elements in a heat engine that burns hydrogen, instead of gasoline, whose input “fuel” is just water to be electrolyzed?

Why not, indeed? As I write this, there’s a firm in England that makes construction equipment using hydrogen gas for fuel in internal combustion engines (ICEs). It’s a real business because its equipment lasts longer between refueling than those with electric batteries and produces none of the carbon that is heating our planet.

Recently YouTube offered two serious descriptions of a “water engine,” one purportedly from Toyota, and another from Elon Musk of Tesla.

The “Toyota” clip’s announcer has an erudite voice with gravitas and a British accent. It shows scenes of factories making engines and complex multi-colored animations of the electrolysis and internal-combustion processes running. It strongly implies that Toyota is making these marvelous water engines right now, and that our species’ personal transportation future will be based not on gasoline or electricity, but on water as a “fuel.”

The Tesla clip reiterates the “theory” of the “water engine” and, implied that “we, at Tesla, thought of it first and do it better.” It used similar animations of the electrolysis and combustion processes to make its points visual and persuasive.

So well done and “professional” were these clips that they even took me in, despite my 1972 doctor’s degree in physics. I can’t remember precisely, but hours or even a couple of days passed before my long-ago scientific training took hold.

When it did, enlightenment struck me like a thunderbolt. The whole notion of such a “water engine” violates one of the most fundamental principles of physics: conservation of energy. Although energy can be converted into mass and vice versa (as in nuclear weapons), mass-energy is neither created nor destroyed. At the end of the day, a machine not involving nuclear physics has to balance its energy accounts. In the case of the water engine, that balance makes producing net energy impossible.

It takes energy to electrolyze water into hydrogen and oxygen, and you get that energy back—exactly back, no more, no less—by explosively burning those elements. But if you use up the same amount of energy to create the hydrogen that the engine “burns,” where’s the net energy to drive the car forward?

It gets worse. In real engineering, both electrolysis and internal combustion are highly inefficient processes. Much of the heat in the ICE gets wasted in heating the engine’s components and in heating and expelling the exhaust. Real inefficiencies in real electrolysis and combustion engines can reach or even exceed thirty percent for each step. So in the real world of real engineering, making a “water engine” is even more impossible than in the abstract world of physics theory, where it’s impossible enough.

So what are those clips? Are they some gigantic joke or prank, designed to humble the average YouTube viewer and exploit popular ignorance of basic physics and engineering? Maybe.

But to find another possible motive, the ancient Romans might help. They had a simple, two word question to apply to puzzles like this. “Cui bono?” in Latin. “Who benefits?”

The two clips—especially the one with Toyota’s name on it—were quite professionally done. Each may have cost several tens of thousands to produce. Why would someone want to spend that kind of money and effort just for a colossal joke?

Maybe, just maybe, someone clever understood that investors are neither scientists nor engineers. Maybe that same someone also understood that the Japanese are culturally nowhere near as litigious as Americans, so that Toyota would be unlikely to sue. And maybe that someone also understood that the action of “Toyota” clip would produce an equal reaction from Tesla, and that the interim, predictable fluctuations of Tesla’s stock would provide a golden opportunity for making money by short-term trading of Tesla stock options. If so, the “water engine” promotion may not have been a clever prank, but a short-term money-making scheme of diabolical proportions.

Whatever the motive and whatever the profit, this episode proves beyond doubt a key characteristic of the Internet. It’s a cesspool of lies and disinformation, not just about politics and current events, but also about business, basic physics and engineering.

If people can profit by telling lies, they will do it, and the Internet will be their tool of choice.

So in a nation that treats “free speech” the way Christian fundamentalists treat the Ten Commandments, where’s the safety valve? How do we keep a society whose “news” media the Internet is daily gobbling up or putting out of business from becoming proof positive of the old saw, attributed to Euripides, that “Those whom the gods wish to destroy they first make mad”?

There is a safety valve, but we’ve managed to tape it shut, and we’ve taped it shut precisely for the sewer of lies that is the Internet. It’s something that the Brits bequeathed us, as the wise developers of our legal system over the eight centuries since Magna Carta. It’s called the law of defamation.

It’s no accident that the largest reported settlement of a defamation claim in history is the $787 million that Fox agreed to pay Dominion Voting Systems for its false claim that Dominion’s machines contributed to “stealing” the 2020 presidential election from Trump. That was part of one of the biggest lies in history, and so it demanded a big hit. Similarly, the outrageous liar Alex Jones has to pay close to $1 billion to the families of the Sandy Hook gun-massacre victims whom he defamed by saying they had perpetrated a hoax.

But here’s the dirty little secret behind these big lies. They provoked big penalties because they used obsolete technology: broadcast and/or cable media.

If they had used only the Internet, and if Fox and Jones had merely republished the ravings of an Internet troll or Russian spook, those hefty recoveries would have been impossible. Why? Section 230(c)(1) of the ironically named “Communications Decency Act of 1996” wipes out all of the ancient law of defamation for Internet platforms that merely retransmit lies originated by anonymous Internet trolls, foreign spooks or others.

It doesn’t matter how stupid, negligent or even willful the Internet media are in retransmitting those lies. It doesn’t even matter whether they amplify and supercharge the lies by using clever algorithms to transmit them especially to people most likely to believe them, reinforcing their “confirmation bias”. Our Internet media that amplify and pressurize this raw sewage walk free, by federal statute—a single sentence “midnight amendment,” passed without hearings, on the deep reasoning that “Internet good. No make trouble for Big Tech. It makes money and employs people.”

Our big Internet hubs even have an economic incentive to retransmits lies. Lies can be more surprising, emotion-provoking, and interesting, and therefore generate more clicks, than dull, pedestrian and sometimes tedious truth.

Today, artificial intelligence can make the lies yet more realistic and credible. It can artificially collect indicators of verisimilitude, infinitely faster and more “efficiently” than any mere human liar could.

If Euripides were resurrected, he would laugh his head off. He would see how we don’t even need punitive gods anymore. We’re driving ourselves mad, and some of us are profiting handsomely from doing the driving.

All this reflects the slow but steady corruption of Silicon Valley’s Big Tech. In the last half of the last century, Silicon Valley’s now-legendary corporations underwrote and developed some of the greatest real inventions in human history. They included: transistors (to replace vacuum tubes), integrated circuits having millions of transistors (aka computer “chips”), personal computers, smart cell phones, and memory devices that can hold more digital data in your hand than an IBM 360 computer held in a whole room in my youth. Those things were real advances in applied physics and engineering, creating unprecedented possibilities for improving human life.

Then came the Internet, with even broader possibilities for communication, including potentially connecting every human on this planet with every other.

But there the advances in engineering and applied physics virtually stopped. The B-school grads, venture capitalists and profit-seekers took over. The clever business plan for making money overtook the research project in applied physics or engineering. Much of the manufacturing, research and development moved on to China. And that’s where Silicon Valley and Big Tech stand today.

For the last generation or so, the explosive “progress” of Big Tech made gigantic fortunes for a few at the expense of small business and labor. It did so with mass electronic advertising, efficient logistics, and centralized ordering, accounting and delivery.

With these weapons, firms like Amazon, Wal-Mart and the so-called “Big Box Stores” drove millions of small sellers out of business. Internet-based driver and delivery services like Uber, Lyft, Door-Dash and Instacart made fortunes partly by computerized improvements in logistics, but mostly by squeezing their drivers and the restaurants and small businesses they “served” for profit (especially during the Pandemic). They also squeezed their drivers and other workers by calling them “independent contractors” and so legally depriving them of all the benefits that organized labor had built up for “employees” over a half a century of progressive labor policy.

It’s so much easier to make “innovations” in business plans, or to corrupt Congress, than to make real progress in engineering or applied physics. So the corruption of Big Tech continues. It even seems to accelerate.

Has no one but me noticed that, since their illustrious founders entered gilded retirements, Amazon’s and Google’s searches produce far fewer useful results and far more “sponsored” hits that are at best distracting and at worst totally irrelevant? Has no one noticed that the average corporate website makes it nearly impossible to communicate with any sentient being (including a useful AI) on any matter that overstressed and often incompetent programmers didn’t think to include a specific button on the Website for? Has anyone really thought seriously how Apple’s collecting and exploiting independent programmers in its “Apple Store” has affected their livelihoods, income, creativity and productivity? how having call centers in which reps receive calls at random and virtually never talk to the same customer twice affects their motivation and performance, let alone the customer relationship, which now makes my generation-old parody look optimistic?

“Old Europe” has thought a bit about these things. It has begun to address them with legislation, including its General Data Protection Regulation (for privacy) and its more recent Digital Marketing Act (for fairness to small business). Where is our own Congress on these issues? The nation that invented antitrust law after the First Gilded Age seems asleep at the switch today, while “Old Europe” makes progress under its more apt monicker “competition law.”

There are many deficiencies in our nation’s response to the problems of modernity. But the core of them all is governmental adoration of an increasingly dominant and self-serving “tech sector” that long ago stopped making fundamental advances in technology. Instead, it has turned for easy profit to exploiting others, deficencies in our system, and the dark sides of human nature, with increasingly thoughtless and society-heedless software and business plans.

The Internet’s Sewer of Lies is merely Big Tech’s biggest threat to human civility and civilization. It not only propagates the lies; it magnifies them algorithmically for those inclined to believe them. The longer it continues unimpeded and unregulated, the more quickly it will destroy what remains of the Enlightenment, and with it the best parts of human civilization. Bringing honesty and truth to the Internet is Job One in saving democracy, beginning with a repeal of Section 230(c)(1).

Endnote: Lest readers suspect me of being a technological philistine or modern Luddite, I’ll make three points. First, on average I spend hours per day on line. Second, as a professor of law, I used to teach courses in Computer Law and Telecommunications law, which examined the legal and social aspects of the Internet in detail. Finally, I’ll tell a story about Bill Hewlett, a co-founder of the hardware-turned-computer-peripheral firm Hewlett-Packard. Although a shadow of its former self, it still does business now, under the name HP.

Some time in the eighties, Hewlett gave a talk that epitomizes the differences between the Old Silicon Valley, which focused on real engineering and applied physics, and today’s business-plan-and-profit obsessed Big Tech, focusing mainly on software, logistics and legally exploiting others.

Hewlett gave his talk in one of those huge Silicon Valley conference rooms that seemed to go on forever. The assembled techies, business people, reporters and lawyers (including me, then) greeted him with universal adulation. He had been one of the founders of Silicon Valley and had built a mighty business on good engineering, from humble beginnings in a then-legendary garage lab.

The focus of Hewlett’s talk was developing the first hand-held, electronic scientific calculator. About the size of today’s smaller smart phones, it could do far more than add, subtract, multiply and divide. It could compute sines, cosines and tangents for angles in degrees or radians. It could compute arbitrary exponents and logarithms and (IIRC) even factorials and simple algebra. And it could do all these things in an instant, to as many significant figures as the display would hold.

Hewlett drew a laugh by revealing that he, as a company founder, had authorized the multi-million dollar development project without a single marketing study. His Board had been aghast but had let the project proceed. Hewlett had been sure, he told his audience, that the product would succeed because he was an engineer himself. Any engineer, he concluded, would want a hand-held device that did much more than a slide rule, much quicker, and to much greater accuracy.

He was right. The device, which sold for $395 (no small sum in those days), was one of HP’s most successful products.

In comparison, too many of today’s Big Tech leaders are far from engineers, let alone scientists. They are more like glorified accountants. They have the “wisdom” and the “insight” to know that they will make money by taking 30% of the revenue of (a) small restaurants, as Door Dash was reported to do, or (b) of sellers of Apps on its App Store, as Apple is reported to do (subject now, in Europe, to restrictions under the new Digital Marketing Act). Somehow these “insights” seem to me less developments in science or technology and more rapacious applications of economic power, like the nineteenth-century railroads exploiting their control over the land along their ample state-granted rights of way.


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The “End Games” of Climate Catastrophe and Fossil-Fuel Collapse

Last week President Biden announced a halt on permitting new LNG (liquified natural gas) export terminals, pending evaluation of their effect on the climate crisis. He made that decision for strategic reasons having to do with planetary heating, fossil energy as a global resource, short-term geopolitical strategy, the limited supply of fossil fuels, the dangers of stranded assets and pollution, and the likely strategies of competing producers of fossil fuels.

Most of the articles and op-eds that I’ve read on this general subject focus on three issues to the exclusion of all others: (1) the imperative of keeping planetary heating from running away; (2) the short-term pricing of fossil fuels and the profit to be made from them; and (3) the effect of fossil fuels on geopolitical competition, including war. This is like describing an elephant as an animal with a trunk, tusks, and nearly circular feet. In missing so much else that’s important, it falls far short of a useful description of the problems we face—all of us together—as a human species.

In fact, the question of when, how, and how quickly to phase out fossil fuels is one of the most multi-faceted and consequential problems ever to face our species as a whole. Besides nuclear war and pandemic preparedness, it’s the only one that implicates our survival and welfare as a species, including every nation, “race,” bloc, alliance and tiny island on our little blue globe. It exaggerates nothing to say that getting it right will fix the fate of global civilization, both in the long term and quite possibly in the short.

This essay tries to address the problem as a whole, in all its multifarious aspects. It ranks each issue and pitfall in order of its effect on human survival and happiness, beginning with the most drastic effects.

1. Planetary heating is accelerating, NOT moderating. There is no doubt now that planetary heating caused by fossil-fuel-produced greenhouse gases is accelerating. Soon it may reach a “tipping point” beyond which heating becomes self-sustaining, regardless of how quickly humanity phases out fossil fuels.

Half a dozen mechanisms of so-called “positive feedback” increase planetary heating regardless of any increase in our burning of fossil fuels. The most important—and the least-well-quantified—involve the release of methane gas from melting permafrost and deep-sea methane hydrates as the globe and its seas heat up.

Recent events suggest that planetary heating may already have become self-sustaining and may continue to accelerate even if and after we stop burning fossil fuels altogether. There are several such indicators, but I’ll mention only three. First, just ten years ago, climate scientists worried whether and when—how late in our new century—humanity would pass the threshold of 1.5 degree centigrade average heating above pre-industrial levels. We passed that threshold, albeit briefly, for at least three months last year, before the first quarter of our new century has expired. [Search in linked source for “near-term” and see graph below.]

Second, in recent years we’ve seen an explosion of floods, tornadoes, hurricanes, and wildfires. The wildfires in Canada last summer not only brought rare burning-wood-smoke pollution to major cities on our own East Coast. They also burned 5% of Canada’s entire forest area and more than six times it previous burned area for the average summer.

Finally, even cautious scientists are beginning to speculate that their predictions have been low. Routinely brow-beaten by fossil-fuel advocates, scientists have been reluctant to criticize their own quantitative models, which is all that distinguishes them from the “sooth-sayers” of old. But now it’s eminently clear that their computer models don’t (and often can’t) account quantitatively for some of the most powerful forces of positive feedback and so are inadequate to the task of realistic prediction. A few scientists already have started to say so.

The failure of existing quantitative models to account for the acceleration of planetary heating is not just a failure in amount. It’s a failure in kind. If—as recent events suggest—heating has become self-sustaining, then not only won’t decreases in planetary heating “reward” our most strenuous efforts to wean ourselves from fossil fuels. Heating will also continue to boil on, perhaps even increasing without regard to any decrease in our burning of fossil fuels, until global climate reaches a new equilibrium point depending primarily on how much methane there is in global permafrost and deep-sea methane hydrates, i.e., numbers about which today we have no clue.

It’s entirely possible that the next global climate equilibrium, achieved years or decades hence, will be one in which many, if not most, coastal cities have been partially inundated. Most of the tropics will, and even parts of the so-called “temperate zones” of our globe as we know them today may become uninhabitable, at least for much of the year. The implications for global migration are obvious and horrendous.

This outcome is uncertain but, based on our current knowledge, entirely possible. It’s the “wild card” that everyone thinking about planetary heating and fossil fuels should keep in mind, especially as each year’s catalogue of global heating, wildfires, floods, hurricanes, tornadoes, and temperature records exceeds the last’s.

2. Fossil fuels are in limited supply and are running out. As Will Rogers once quipped about land, “They ain’t makin’ any more fossil fuels.”

All the stuff we burn is the result of millions of years of geological forces compressing and fossilizing of long-dead vegetation. By the time similar geophysical forces will have produced significantly more of these fuels, we’ll either have a galactic civilization or be as extinct as the dinosaurs.

But fossil fuels are running out at an infinitely faster rate than that. In 2014, I estimated the then remaining lifetime of global oil supplies and US-controlled supplies of natural gas. The calculations were relatively simple, based on then-prevailing estimates of supply and then-prevailing consumption rates, including an estimated 1% annual increase in consumption.

Under what seem now to have been the most likely assumptions regarding reserves and consumption rates, the results, reduced for the nine years that already have passed, are as follows:

Remaining life of global oil reserves: 28 years
Remaining life of US-controlled natural gas: 30 years

(Estimates of oil reserves in Canada’s tar sands, now roughly 166 billion barrels, were omitted from these calculations. If considered, they would have extended the former figure by 11%, or 3 years. But tar sands have special problems in practical use, including the price of, and massive pollution in, refining them.)

Of course these numbers are moving targets, as much of the developed world goes into overdrive trying to replace fossil fuels with renewable energy, thereby presumably lowering demand, and as the fossil-fuel industries search frantically for yet more reserves, thereby hoping to increase supply. But what these possibly malleable numbers say is that, if we continued at 2012 consumption rates, we would exhaust then-known reserves of global oil and US-gas in about one or one-and-a-half generations from now. Do we really want to bet our species’ long-term future on such short-term needs?

The gas figures in particular shed light on President Biden’s order to reconsider new LNG export terminals. If we export a significant fraction of our own natural gas, our own reserve-lifetime number drops proportionately. It would be easy for massive exports to lower it to a single generation. And there are now good practical reasons, including the war in Ukraine, to export gas massively to Europe. So it looks as if we are likely coming to the end of our national natural-gas reserves in something like a single generation.

So we are not analyzing the distant future here. We’re discussing the time frames in which a baby born this year would reach college age and then height of his or her career.

The lifetime of global coal reserves is much longer. But burning coal produces nearly twice the amount of carbon dioxide per unit of energy as burning oil or gas, and vastly more harmful air pollution, including sulfur dioxide (which causes “acid rain”) and various disease-causing particulates and organic pollutants. London’s Great Coal Smog of 1952, for example, produced a plague of disease and death. It also motivated the Clean Air Act of 1956, which limited coal burning in urban areas and authorized local councils to set up smoke-free zones.

So almost everyone, except perhaps the Chinese and Russians, agrees that conversion to coal use would not only vastly accelerate planetary heating, but would remake most of the civilized world in the image of Hell, perpetually polluted like Beijing on a hot summer day. Therefore, this essay focuses on the “cleaner” and “better” fossil fuels, namely, oil and gas.

3. The unpredictable and erratic market effects of phasing out fossil fuels will intensify the pain of planetary heating, especially for nations and regions that continue to produce and/or consume them to the end. Sitting here in 2024, it’s absolutely impossible to predict with any realism, let alone any semblance of accuracy, how and when oil and gas prices will fluctuate as (1) our cooler climate collapses into one in which parts of the globe are uninhabitable and (2) fossil fuel reserves begin to run out. It’s even impossible to predict whether humanity as a whole will “do the right thing” and leave most remaining reserves in the ground.

But certain long-range predictions are possible because the end game will be much the same whether fossil-fuels are phased out through agreements with petrostates, through political pressure (or even wars!) to idle fossil-fuel infrastructure and save our planet from further runaway heating, or through simple exhaustion. In the end, fossil-fuel production will subside and eventually halt, one way or the other.

What will happen to petrostates like Saudi Arabia, Russia and Venezuela and their diehard customers for fossil fuels as the endgame approaches? Several general conclusions are possible.

First, market prices for fossil fuels will become more and more unstable and erratic. Cartels like OPEC will break down as individual producers “cheat” on their agreed production allotments to maximize their individual profit and advantage from a dying industry.

Low-cost producers with big near-surface underground pools of oil and gas—including Saudi Arabia and Venezuela—will set a floor on prices. Producers like the US, with sophisticated but expensive extraction technologies such as “fracking,” will set a ceiling. But prices will likely fluctuate wildly, between the floor and the ceiling, as various producers decide to maximize income from their “last chance,” exit the market, or wisely save their reserves of oil and gas for use in producing plastics, paints, medicines, and other organic chemicals.

Global supplies may dwindle as producers are priced out of the market by low-cost cartel “cheaters,” decide (far too late) to do their part to arrest the accelerating climate catastrophe, or decide to exit the market for burning and hold their reserves of fossil fuels for chemical, medical and other uses. At some point, these collective impacts on global supply may produce a steady decrease in supply and therefore steadily increasing prices.

Even this possible endgame is uncertain. Why? It depends on the demand-side decisions of multiple consuming nations—whether to wean themselves from fossil fuels and avoid the worst of these wild endgame energy-price fluctuations and possibly steadily increasing prices, or whether to take their economic chances on the theory that each is a small part of the problem and therefore their decisions will have a small effect on the outcome.

This dilemma will be the fate of virtually all of the “less-developed” world. Each smaller nation, island or region will have a complex decision to make. The decision will involve assessment of its own (and its geopolitical friends’) fossil-fuel reserves, its resources of sun, wind, geothermal, hydroelectric and other forms of renewable energy, and its own (and its geopolitical friends’) financial and technological resources to exploit them.

Those with wise leaders, good local resources, and strong and wise friends may survive the transition well. Those with deficiencies in any of these categories will come out poorly. Some may go extinct, whether from economic catastrophe, climate catastrophe, or (in the case of inundated islands) total out-migration. Out-migration from the slower, weaker or less capable states will likely become a torrent to make the so-called “invasion” of our Southern Border look like a walk in the park.

4. Phasing out fossil fuels will leave mankind, and especially the petrostates, with an enormous array of largely useless “stranded assets”. Whether through exhaustion of reserves or through their deliberate, strategic nonuse, our species eventually will stop extracting and refining oil and gas in order to burn them for energy. That endgame is certain to occur in this twenty-first century.

When the last barrel of oil and cubic meter of gas has been extracted for fuel, what will remain is an enormous and hideously expensive array of so-called “stranded assets.” They will include: drilling rigs, derricks, drills, bits and the factories to produce them, “fracking” equipment (including that used to inject fracking fluids into the ground), tanks, tank cars, other storage devices, oil refineries, and oil and gas distribution pipelines and meters, including both long-distance oil and gas transportation pipelines and in-city lines for the distribution of natural gas to homes and businesses throughout the US and the developed world. The stranded assets will also include all the internal combustion engines that burn fossil fuels in cars, trucks, railroads, aircraft, industrial equipment, construction equipment and fossil-fuel burning power tools. (Some of these engines might be converted to burn “clean,” mostly electrolized, hydrogen.)

When oil and gas run out or stop being burned for energy, all or most of these expensive and heavy assets will become useless. Some may be capable of being repurposed to use other sources of energy, principally electricity and “green” hydrogen. Some may be useful for scrap and melted down and recycled as such.

But many—such as the derricks on the huge oils fields of South Texas and the massive refineries there and in South Louisiana will remain, perhaps for millennia, as ugly monuments to our species’ era of profligate and thoughtless burning of carbon-bearing things for energy. It goes without saying that those nations and regions that first stop investing in and building these to-be-stranded assets, and that devote their corresponding resources to more enduring assets, including those for producing and using renewable energy, will have an economic advantage over others.

* * *

In every prediction regarding climate change and fossil-fuel use, the level of uncertainty is and will remain high. The rate of heating of our pre-industrial climate depends on so many variables. Some of them—including the rate of positive feedback—are at present literally impossible to predict, for lack of solid data. Others involve the responses of human beings, both individually and collectively, and so depend on all the vagaries of humanity, including including brute selfishness, disinformation, denial, politics and demagoguery.

But one thing is fairly certain. Land masses on or near the Equator are highly likely to become uninhabitable before humanity’s energy transition is complete. There is little seasonal variation in climate there, so the only possibility for long-term human survival there will be building cities underground. (The likelihood of maintaining surface agriculture in a much hotter, drier surface climate, with occasional devastating floods, seems low.) Possibly these regions could be used to produce cheap solar and wind energy, and transport it, in the form of electrolyzed (“green”) hydgogen gas, to the rest of the globe.

How far from the Equator the zone of uninhabitability will range is, as of now, completely uncertain. The only certainties are that its extent will depend on: (1) the amount of methane released from melting permafrost, dissociating deep-sea methane hydrates, and last-ditch attempts to exploit natural gas as an energy source; and (2) how quickly our species begins to understand and accommodate to the facts of life. Those facts include: (1) that planetary heating is accelerating; (2) that positive-feedback mechanisms may become (or may even now be) the dominant causes of the acceleration; and (3) that a species-wide concerted effort to address the problem is the best, if not the only, way to avert a global climate catastrophe, or at least to keep the one that now appears to be unfolding from getting much, much worse.


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Debunking the Media Hit Job on Prosecutors Fani Willis and Nathan Wade

Recently I’ve written two posts lamenting how our mainstream media are failing our people and our democracy, big time. (See this post and this one.) In the run-up to the New Hampshire primary, the two mainstays of our MSM did it again. The NYT and WaPo both served up a media hit job on two prosecutors who are fighting to bring Trump to justice for trying to overturn the 2020 presidential election.

The hit job was reportedly prepared by lawyer for a Trump co-defendant, not even Trump himself or his own staff. Its nub is the allegation of a romantic relationship between Fani Willis, the Fulton County, Georgia, District Attorney, and Nathan Wade, one of three lawyers she hired as co-counsel to help prosecute her case against Trump and others.

The main WaPo piece on the subject is actually one of the more complete ones factually. But it goes so far as to say—in just its third paragraph—that accusations that Willis and Wade are lovers and that he paid for their joint vacation travel, if true, “could present a conflict of interest or could amount to fraud.”

In what legal universe is this even plausibly possible? There is no conflict of interest between people working on the same side of the same case, as Willis and Wade are working on the Trump prosecution.

I would argue that, if they sleep together, the public of Georgia gets an unusual benefit. If their “pillow talk” includes discussions of the case, they are unlikely to jump out of bed to record the number of minutes of each bedtime discussion for billing purposes. So the good people of Georgia get this much of their joint effort “off the clock,” without charge. And if Willis and Wade are like most of us, they get some of their best ideas while waking from or falling into slumber.

In order to gin up a conflict of interest, let alone fraud, you would have to prove that Willis paid Wade as a special prosecutor solely or primarily for the purpose of giving him money to spend on their joint travel. How in hell do you prove that? With an abject, tearful breakdown of one or the other on the witness stand, of the type that once happened routinely in the old Perry Mason TV series but never happens in a real courtroom?

To prove a conflict of interest or fraud, you would have to assume the darkest intentions on the part of one or both of these experienced prosecutors and find some way to prove the evil you assume to lie within them in a court of law. Good luck with that!

This is one of many examples showing why our MSM need to have good lawyers on tap to vet legal stories before their publication. The claim that an alleged love affair and joint travel between co-workers on the same side of the same case equals a conflict of interest or fraud would motivate only the most desperate and starving attorney to take that case. Any lawyer with a good practice would turn it down cold.

The next bit of MSM malfeasance concerns Nathan Wade’s pay. Both the WaPo and the NYT stories report that Wade and his firm received over $650,000 for work on the case. To the average minimum-wage worker, paying one’s lover that amount of money sounds bad, real bad, doesn’t it?

But the NYT story neglects to report Wade’s hourly rate, which the main WaPo story recites. It’s $250.

Why is that significant? Because $250 per hour is a pedestrian rate—even a low rate—for high-stakes lawyers of some experience. (In comparison, top lawyers working on the FTX cryptocurrency bankruptcy earn between $1,000 and $2,000 per hour.) And if you divide the $650,000 by that rate, you get 2600 hours.

Now one reason why lawyers have money is that most of them work hard. For every lawyer I knew (and I practiced for eight years and consulted for another 25), forty hours a week was a bare minimum, seldom achieved in practice. The typical lawyer’s week is more like 50-60 hours, with bursts of 80-100, for example, near trials. So if Wade did a typical 52 hour week, on average for single year of 50 weeks, with two weeks off for vacation, his gross pay would amount to that “horrible” $650,000, with no tricks, conflicts or fraud.

Any BTW, the WaPo piece reports, albeit much later, that Wade and his firm were paid “more than $650,000 over two years to lead a criminal investigation typically managed by civil servants.” (emphases added). It also reports that the two other prosecutors whom Willis hired, both of whom are white, and who are not even suspected of being her lovers, were paid at exactly the same rate. Not much to see here, is there, when the facts are presented in logical order?

The nub of the matter is yellow journalism, even at the WaPo which had, in my view, the most comprehensive summary of the relevant facts. The end of the first section of its article reports that the claims of conflict of interest and fraud were made by a lawyer for one Mike Roman, a Trump co-defendant in the case, and that, “Other co-defendants, including Trump, are weighing whether to sign on to the pleading.”

In other words, the claims were just that, bare claims of a single defendant, which Trump and his team hadn’t even reviewed. Yet the WaPo’s language (quoted in my second paragraph above) makes it seem as if the reporter and/or the WaPo editorial board, or at least some competent staff lawyer, had reviewed these claims and found them credible. Thus the WaPo served as a (perhaps inadvertent) megaphone, letting an obscure lawyer for an obscure Trump co-defendant stir up mud with garbage claims.

This is bald yellow journalism—sensationalism near the lead! In the interests of selling “news” and baiting clicks, the reporter gave the apparent approval of an exemplar of the MSM—the same venerable WaPo that, in another guise, had broken the Watergate story and brought down a president (Nixon)—to the most tenuous and unlikely of legal theories.

To me, the intent of these tenuous claims is obvious. They are hardly designed to make any headway in the legal case against Trump and his co-defendants. They would be subjects for outright dismissal in court, if not for sanctions for frivolous filings. Rather, they are designed to rile up the public, especially the MAGA “base.”

Claims that DA Willis paid her alleged lover a small fortune to prosecute their cult leader, and that he “kicked back” some of that money to her for romantic travel, seem designed for a single purpose only. They might get voters without legal knowledge to suspend all reason and conclude that the prosecution for trying to overturn the 2020 election was and is a “witch hunt” after all.

So I believe the target of these claims is not the judge or the legal system, but the Trump-susceptible voting public. If Georgia has an analogue to federal Rule 11—which imposes monetary penalties for filing frivolous claims in federal court—I hope and trust that Willis and her team will assert it against the attorney (and the client) who pushed this misuse of court time on nonsense.

As for Wade, the only credible claim against him that I saw in the whole, long and sordid WaPo story was for allegedly turning off the recorder and trying to intimidate a witness with unrecorded threats. If true, this behavior might result in: (1) exclusion of that witness’ possibly coerced testimony at trial and/or (2) a judicial admonition or even sanction against Wade himself. The notion that it would cause, let alone force, the judge to throw out the whole case, let alone long before trial, is the kind of fantasy that no one who had attended a decent law school would seriously entertain.

The cases against Trump and his co-defendants will be decided based on evidence adduced at trial. Every bit of evidence, or the person who introduces it, will be subject to examination and cross-examination by skilled advocates. The motivations of the advocates are simply irrelevant, and the courtroom procedures—developed over centuries for precisely that purpose—make them so.

In our legal system, what motivates prosecutors (or any other lawyers) doesn’t matter. They could hate the defendant personally, love each other, or just be doing their jobs. What matters is how the jury views the evidence, under the judge’s watchful eye. The judge makes sure the evidence satisfies the rules (also developed over centuries) and is not unduly prejudicial to one party or another.

Defendants’ attempts to bring the prosecutors’ personal motivations into the courtroom is nothing less than a frontal assault on the way our courts work, developed over the 809 years since Magna Carta. No Anglo-American court will or should approve that assault.

Like the whole thrust of the complaint against the two alleged lovers, this media hit has little or nothing to do with the law. It’s par for the course for Trump and his team. It’s a cry to the public: “See, my persecutors (sic) have feet of clay. They do bad things, too. Therefore, I am innocent.”

That’s a nonsequitur of truly Trumpian proportions, and one which no judge or decent newspaper should ever entertain. These days, when Trump and his team have long histories of pandering to emotion and the general public’s ignorance and base instincts, our newspapers have got to do more. They have a sacred obligation to support Reason, one of the foundations of the Western Enlightenment and our legal system, which now, with Trump apparently ascendant, may be on the ropes.

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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Overturn Chevron, Kill Science in Government

When people talk about “Chevron” these days, they aren’t discussing the oil company. They’re discussing a 1984 Supreme Court decision involving that company, Chevron USA, Inc. v. Natural Resources Defenses Council, Inc.. Our current Supreme Court seems poised to modify or overrule it. Yesterday the Court heard arguments to that effect, in a case involving fishermen, namely Loper Bright Enterprises v. Raimondo.

Unfortunately, all the current news and discussions about these cases that I’ve seen completely miss the point. And they miss it by a mile.

Chevron is the decision that opened the door to science in government, and a bit of engineering, too. If our current Justices weaken or overrule it, they will take us back to the bad old days, before Galileo invented observational science in 1632. They will take governmental decisions involving science, health, medicine, industrial safety and the environment out of the hands of experts in our administrative state, our highly-developed expert bureacracy. Instead they will put these decisions in the hands of politicians or judges like themselves. In so doing, they will wipe out, in one deadly stroke, a mighty pillar of the Western Enlightenment.

Science of course will carry on. Private companies will continue to practice it, ignoring or suppressing results that threaten their profit margins. Universities will continue to do basic science, as long as funding from government sources survives, but otherwise subject to the strings that private funders impose. Science will continue to flourish abroad, increasingly in places like China, where its results will be put to use controlling and manipulating the masses. But science as practiced by democracies will suffer perhaps the greatest blow since the Church tried Galileo for heresy for having the temerity to suggest that ourlittle blue planet, in a spiral arm of a minor galaxy, is not the center of the Universe.

The mechanism for this wipeout is profound but easy to describe. Chevron requires that politicians and judges defer to duly appointed administrative experts in decisions within their fields of expertise. If their decisions are a reasonable—even a plausible—interpretation of the federal statute that governs their activities, then the judges should not substitute their own, inexpert judgment for the experts’. That, in a nutshell, is the teaching of Chevron.

This rule makes common sense from many perspectives. It makes supreme sense from the perspective of division of labor. As a body that represents all the people but has few, if any, experts on any given subject, Congress is best positioned to establish broad goals for regulation. For example, Congress might empower a federal agency to reduce industrial threats to human health. Federal experts in that agency then might decide, based on published science and their own measurements, how to best meet that goal. They might decide, for example, to reduce the emission of olefins from cars’ and trucks’ exhaust pipes, or to phase out coal-fired electric power plants.

What basis would judges, nearly all of whom have just three years of postgraduate training in law and history, to second-guess the decisions of experts with doctors’ degrees and years of practice measuring emissions and their effects on human health and happiness? Wouldn’t judges’ views on the relative merits of such precautions be like practicing medicine without a license?

Today there is yet another powerful reason to defer to experts’ decisions on what Congress must have meant. Congress is in perpetual gridlock.

These days Congress can’t even decide to fund the basic functions of government. So which approach is better: (1) to let experts decide how to make life better for our people, subject to Congress’ later veto power if it can ever get its act together; or (2) to let the experts do nothing that is not specifically and unquestionably authorized by Congress, so that nothing that any business might object to gets done unless a dysfunctional Congress can agree enough to order it? In the age of gridlock, wouldn’t Option (2) simply shut down our administrative state?

Of course Option (2) is what so-called “conservatives” appear to desire. But would that desire remain when parts of the airplanes they fly on start falling off in midair, or when authorized asthma medicines start driving their kids nuts?

Congress can always de-authorize an administrative rule or practice of which it disapproves. The question posed by Chevron is whether the details of such rules and practices should, if they seek to advance congressionally specified goals, be determined by experts duly appointed for that purpose, or by generalist judges with no special training or expertise. Doesn’t that question answer itself?

(The possibility of the Demagogue winning a second term as president threatens a second kind of assault on administrative expertise. He has indicated that he would make personal loyalty to him, rather than expertise, the primary if not the sole criterion for appointment to administrative positions in his second regime. Analysis of this threat and of ways to combat it—other than by refusing to re-elect him—is beyond the scope of this essay.)

The final point of common sense also relates to expertise. The vast majority of both politicians and judges doesn’t just lack the specific expertise to second-guess experts in various diverse fields of science and engineering. They lack the basic mindset and training. They lack the training in math and science even to appreciate quantitative results beyond simple fractions and percentages. They lack the expertise to evaluate which scientific papers and experiments have validity or warrant further study, and which have enough flaws or raise enough doubt to require further verification.

On what do I base these statements? I left behind my Ph.D. in science (geophysics) to study law and become a lawyer in 1975. In all my careers since—three years in law school, eight years in law practice, and 24 years of consulting and teaching law—the number of lawyers and legally-trained people whom I met who had similar training in science and engineering I could count on the fingers of one hand. One was a medical doctor who put himself through law school working in emergency rooms on weekends.

The people who most often become our politicians and judges are nearly all trained in law, history, politics and the “liberal arts,” not science, technology, engineering or math (the so-called “STEM” fields). By and large, they don’t think quantitatively. They don’t think much about physical, biological or even sociological cause and effect, as for example, did MLK (who was not a lawyer!). They think in airy abstractions and abstract syllogisms often unanchored in anything approaching physical reality. They rely on a priori abstract reasoning, much as did Aristotle, most of two millennia before the Enlightenment and the modern science that came with it.

This “Aristotelian” mode of thinking is seductively attractive. Many pols engage in it even today. But it’s worth pointing out that, in the five or so millennia of recorded human civilization, only the last four centuries stand out as improving human life beyond the “nasty, brutish and short.” Those four centuries coincide entirely with the advent of science in the 1620s and the Enlightenment that followed. Surely this was cause and effect.

If cause and effect be tallied, this so-called “conservative” Supreme Court has a dismal record. In Citizens United, it gave corporations the same free-speech rights as real, individual people. Now every good law student knows that corporations are legal abstractions with no physical embodiment but their employees and managers. The effect of giving these abstractions human rights was to grant overwhelming power of “speech,” backed by corporate billions, to corporations’ big shareholders and managers. Fox, Sinclair, Elon Musk, our former president and every like-minded billionaire have used this power to subject our people to propaganda for “alternative realities” the likes of which not even Orwell could have conceived.

In MacDonald v. Chicago, the Court interpreted our Second Amendment, with its clear predicate of a “well-regulated Militia,” as a personal right to personal armed protection. Its later decisions expanded that right to “keep and bear Arms” not just in one’s home, but on the streets of our cities, and not just with pistols, but with automatic weapons of war. The effect has been a rash of senseless gun massacres, mostly by demented people, which last year reached the level of far more than one per day. A secondary effect has been a sense of personal insecurity and dread that pervades our culture and civic life.

In Dobbs v. Jackson Women’s Health Organization, the Court largely took away womens’ rights to control their own bodies and reproductive destinies when pregnant, even with the aid of modern medical science. It left them at the mercy of state pols and religious leaders, who have their own axes to grind. At least women—for the time being—still have the hard-won right to vote and can own property without their husbands’ consent!

So our good Justices just might follow the abstract lure of this Aristotelian reasoning and take decisions about our health, safety, environment and biology out of the expert hands of scientists and engineers in the federal bureaucracy and put it in their own hands and the hands of their subordinate judges. If there is one common theme among all these dismal decisions, it will have been the lack of any attention to practical cause and effect and reliance on abstract, a priori reasoning worthy of Aristotle or a medieval pope.

In all this willful ignorance of evident cause and effect, the good Justices seem loath to recognize some undeniable facts of life. No one elected them. Three of them were appointed by self-evidently the worst president in our history. And the sole simulacrum of “democracy” in their selection was senatorial hearings that have become a partisan charade, with several justices apparently lying openly about their devotion to precedent.

We and our media today may miss all these earmarks of abrupt intellectual and societal decline. But future historians will not. They will note the Court’s role in our nation’s decline and increasing internal dissension. And they will leave clear digital records advising future democracies, should they arise, to have better checks on their judicial branches. For the branch that is supposed to be the “weakest,” with no army to enforce or bureaucracy to apply its Aristotelian edicts, ours may turn out to have been instrumental in accelerating our national decline.


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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MLK Day 2024: Celebrating a Great Thinker

“At cusp, choice is. With choice, spirit grows.” — Robert A. Heinlein, Stranger in a Strange Land

MLK would know. We Americans are at cusp. This year we have a grave choice. Either we continue our flawed democracy and our long quest for a “more perfect Union,” or we take the path downward toward one-man rule, chaos, and tyranny.

Why would MLK know? He was not just a good man, in the Biblical sense of that word. He was also a brilliant thinker.

MLK could invent a pretty future and give us Biblical-style injunctions to inspire us to greatness. That he did in his “I have a dream” speech. But like few American pols before or since, MLK could also predict the future by analyzing cause and probable effect.

In his speech on April 4, 1967, just one year before his assassination, MLK did just that. He foresaw the catastrophic effects of our blunder in Vietnam and came out against that war. He had waited, perhaps for years, out of reluctance to break with his one-time ally in equality, LBJ.

That’s why MLK’s 1967 speech was so fraught. As we all know today, LBJ had gambled his personal legacy, his “Great Society,” and his presidency on escalating the most bloody and tragic foreign-policy mistake in our history. (Next to our war in Vietnam, which killed 50,000-plus Americans and about 3.5 million Southeast Asians and at one time involved over half a million US troops, our wars in Iraq and Afghanistan were puny.)

Both the Civil Rights Act of 1964 and Voting Rights Act of 1965 were joint works of MLK and LBJ. Neither could have pushed them into law without the other. MLK provided the political impetus. His marches, speeches and non-violent protests forced our people—and our pols— to see and taste the bitter fruits of segregation and Jim Crow up close and personal. Then LBJ used the social conscience that MLK has aroused to push the laws through Congress by twisting the arms of reluctant Southern bigots.

I’ve thought and read a lot about those legislative triumphs, and I still don’t know how LBJ managed them. From the perspective of some sixty years later, we can now see how resilient was and is bigotry in America. It’s like mold in a shower or bathtub that keeps growing back, despite repeated applications of bleach.

So MLK thought long and hard before giving his 1967 speech, condemning the military obsession of his erstwhile partner in equality, who had pushed through the greatest legal advances in equality since the post-Civil-War Amendments and their Disqualification Clause.

Everyone who wants to know MLK’s greatness should read or listen to that speech. It’s a work of literature, with ample quotations from the Bible and felicitous turns of phrase. But it’s also a brilliant work of prognostication.

In it, MLK predicted precisely what would (and did) happen if we continued our fatal obsession with Vietnam as a false fulcrum of Communist domination. We lost focus on social and economic progress at home. LBJ’s “Great Society” came to an ignominious end. The militarization of our nation and our economy accelerated. And all this led to the neglect of labor and minorities and the apotheosis of weapons of war as solutions to social problems like crime.

If you read that speech with a knowledge of subsequent history, you might think that it came from divine inspiration. I don’t. I just think that MLK was smarter than most of us.

He had devoted his life to practical, cause-and-effect thinking about political and social problems. Those years of hard and careful thinking paid off. He was the ultimate realist, seeing the good and bad in all of us and in our social history. He didn’t think in vague abstractions like “freedom,” without considering what kind of freedom and how that kind of freedom for some would affect others. Our own Supreme Court ought to adopt his brand of cause-and-effect thinking as it decides whether our States may disqualify Trump under Section 3 of the Fourteenth Amendment.  

Like Mahatma Gandhi before him and Nelson Mandela after, both of whom had freed disfavored majorities, MLK figured out how to reduce the oppression of a disfavored minority without violence. He relied on the cooperation and empathy that, far more than our overhyped opposable thumbs, are our species’ more important survival traits. Isn’t it interesting that the only three leaders in history to have achieved similar feats without violence were non-white?

But I digress. Today we Americans have a clear choice. We can follow a man without empathy, without logic, whose grasp of cause and effect is limited to manipulating his fellow creatures by intimidation, coercion, delay, stonewalling and projection. Or we can follow a good man, with solid values and immense wisdom and experience, whose only notable deficiencies are in oratory and perhaps age.

If MLK had not been assassinated—along with JFK and RFK in the same decade!—he would be 95 today, younger than Jimmy Carter. As he did in his short but influential life, he would urge us to quell our emotion and suppress our fears. For our times are not just scary ones. We have a choice. We have a chance.

We can re-elect Joe Biden and continue his and MLK’s work to pursue equality, level our economy, empower labor, make voting universal, and secure peace through strength and cooperation abroad. We can follow the leadership of strong and smart Black people in positions they never could have held in MLK’s time: Lloyd J. Austin III, Alvin Bragg, Charles Q. Brown, Jr., James Clyburn, Ketanji Brown Jackson, Letitia James, Hakeem Jeffries, Wesley Moore, and Fani Willis, among many others.

With just a few more votes in the Senate, we can kill the filibuster forever. Then, with federal legislation, we can outlaw gerrymandering and voter suppression, restore women’s reproductive rights nationwide, empower labor unions as FDR did, suppress the tech monopolies that are crushing our economy and letting lies and propaganda overwhelm us, and make billionaires and oligarchs pay their fair share of taxes.

Think of Hakeem Jeffries as Speaker of the House! Last year, he missed winning that office by only six votes out of 435.

MLK was not just a good man and a great leader. He was a brilliant, clear thinker. He would see both the opportunity and the danger in our present times. And he would urge us, as only he could, to seize our chance with both hands, work hard, and never give up hope.


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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Why Our Supreme Court Should Let the States Disqualify Trump

“Evil triumphs when good men do nothing.” — Modern proverb falsely attributed to Edmund Burke but paraphrasing the words of John Stuart Mill, a key Founder of the Western Enlightenment

“The best lack all conviction, while the worst
Are full of passionate intensity.” — William Butler Yeats, “The Second Coming”

In my most recent post, I analyzed the Disqualification Clause (the “Clause”) in Section 3 of the Fourteenth Amendment from a legal and historical perspective. My primary goals were two. I sought to refute the nonsense memes circulating in the mainstream media that the Clause requires additional legislation for enforcement, or that it doesn’t apply to candidates for president.

I also sought to demonstrate how, in our federal system, in which the several States control and manage both state and federal elections, there can be no one-size-fits-all decision on the subject of disqualification. Not only does disqualification depend on the details State law, electoral rules, procedures and practice. The Supreme Court is not, and can never be, a finder of fact because it is an appellate court, not a trial court. It has to depend on judges and juries in lower courts to find facts and can only (lawfully) overturn their findings for procedural of evidentiary error or for failure to reflect substantial evidence.

But an erstwhile colleagues of mine at the University of Akron School of Law, Professor William Rich, made a key point in a private email. If it so desires, the Supreme Court has a more plausible way of refusing to disqualify Trump.

The Court could interpret Clause’s the legal language to hold that Trump did not “engage in” the Insurrection that took place on January 6, 2021, and thereafter, even though he incited and promoted it. And it can rule that, while Trump may have given “aid and comfort” to the insurrectionists, they were not “enemies” of the United States as the Clause requires. (The Court has to reach both these conclusions in order not to disqualify Trump.) The Court could base the latter conclusion on the idea that the Clause’s two parts focus on different things: “insurrection” as part of domestic treachery, and “aid and comfort” to “enemies” that are foreign or foreign-inspired. Otherwise, it could reason, the two parts would be redundant.

I don’t myself subscribe to this rationale for refusing to disqualify Trump. (Nor do I think Professor Rich does.) I merely point out that this putative ruling would not do violence to the Clause’s language and historical context, at least not as much as the false memes, indulged by our media, that the Clause requires legislation for enforcement and/or does not apply to the presidency.

Eventually, advocates for our democracy will have brought forward evidence of Trump’s inciting, encouraging, and inspiring (if not ordering) the January 6 Insurrection. They will adduce evidence of his failure for hours to stop the violence at the Capitol while it was ongoing, and while he was watching it unfold on TV! They will reveal his efforts for weeks and months afterward to keep the Insurrection alive with his “Stop the Steal” movement, which continues to this day. With all this evidence properly introduced, I believe the better and only proper decision would be to disqualify Trump.

But the Clause’s precise language gives the Court an excuse to take the cowardly way out and hold that the operative language regarding engaging in insurrection doesn’t apply to Trump’s conduct. At least such a holding would not be a self-evident embarrassment to the very notion of impartial judging.

I have no crystal ball and thus no way of knowing whether the Court will take this cowards’ way out. This essay addresses another question entirely: should it? Would the Supreme Court’s decision to let voters decide Trump’s electoral fate best preserve democracy in these United States? Or would such a decision help destroy American democracy forever?

These are not questions of law. They are primarily practical questions. They involve something that judges ought to hold dear but lately seldom do: insight into the practical interplay of cause and effect.

It’s not as if we don’t have historical precedent. We do. Nearly all our species’ recorded history is a dreary succession of kings, monarchs, tyrants, dictators—all male, except for the occasional queen. (The fact that a one of the rare queens—Elizabeth I of England—was one of the best leaders in human history tells a lot about the intrinsic value of alpha-male rule.)

This dismal fact arises from our evolutionary history, in which alpha male apes ruled our small clans of thirty or so individuals with force, personal whim, and individual violence. Today, leadership by a single alpha male is wildly inappropriate to our modern nations of hundreds of millions or billions of individuals, whose proper government requires vast learning and expertise that no single individual can possibly possess.

Yet throughout all of our species’ dismal recorded history, only a single nation had a democracy with power, influence and global scope comparable to ours: ancient Rome. In comparison, the democratic Greek city-states were tiny, minor powers. And even at its height, the British Empire was nothing like the global hegemon that the US has become today, or that Rome was in its heyday.

So can we look to ancient Rome to see our own possible future? Maybe.

Late in its own history as a democracy, Rome endured a demagogue much like our own Donald J. Trump. His name was Julius Caesar. Unlike Trump, Caesar was a conquering military general. He wrote a book about his conquests still read today. But there are nevertheless important parallels between the two men and their times.

In both cases, there was a solid practical basis for the popular discontent that the demagogues reflected, amplified and used to propel their own ambitions. In Trump’s case it was our oligarchs’ sale of our factories and most of our skilled workers’ jobs to China. In Caesar’s it was Rome’s reneging on its promise to give its soldiers an acre of land and peaceful retirement if and after they survived twenty years of service. It’s not at all hard to imagine Caesar saying—in Latin of course—“I am your retribution!”—as he rallied his discontented troops in rebellion.

Both Trump’s and Caesar’s demagoguery arose in times of increasing civic violence. Today we suffer the use of firearms of war (unknown in Caesar’s day) to kill innocent civilians at random, in massacres that last year reached the level of nearly two per day. In Caesar’s time, Rome forced outlaws and political undesirables to fight each other to the death in the Coliseum. It regularly staged “mock” battles, with real blood and death, as public spectacle. And it let early Christians be killed and devoured by hungry lions, also as public “entertainment.” So we can accurately describe both ancient Rome and the US today— albeit in very different ways—as cultures suffering orgies of violence.

But Rome’s democracy was vastly different from ours today. It had nothing like our system of courts, let alone our Supreme Court. Roman courts were minor appendages of government set up to punish and control criminals and renegades.

Ancient Rome also had nothing like our President or our Executive Branch, with all its administrative agencies. What we today call “Executive” power was held in Rome only temporarily, by a “dictator”—yes, that exact word, in Latin!—appointed by the Senate during times of national emergency. (Later, as Rome morphed from a true democracy to an empire, the Emperor assumed that role.)

In ancient Rome, the Senate held all the reins of governmental power in the name of Rome’s people. The government had as it symbol a standard that Roman legions carried in triumphal parades and into battle. It consisted of just four letters, “SPQR,” the initials of the Latin words for the Senate and the People of Rome—the ultimate sources of power in ancient Rome’s democracy.

So of what we today call the “three branches” of government, ancient Rome had only one: the legislative branch. The Roman Senate was the seat of all of Rome’s political power.

So what did it do when Caesar challenged the very foundations of Rome’s democracy and the Senate’s power? It killed him. Or at least some of the more daring Senators did. None of the killers was ever charged with murder or brought to justice.

I hasten to add that I am not advocating anything of the like for Trump. Even if it were moral, legal and wise—all of which it is not—Trump’s assassination would be likely to cause widespread violence in the short term.

In our own nation, today, assassination or other violence is completely unnecessary. All we have to do is use the law the our Second Founders left us after the most terrible war (for us) in our national history.

Unlike ancient Rome, we have an existing Executive and a Supreme Court. Together, they can remove Trump as an existential threat, or let our States do so, and so insure the continuation of our species’ second-ever globe spanning democracy. They can do so through entirely legal means, without violence, simply by doing their jobs.

All the Supreme Court in particular has to do is apply the Disqualifying Clause as its post-Civil-War drafters meant it to be applied. It must save our democratic government from a talented demagogue who incited, aided and abetted a violent insurrection for the purpose of overthrowing the democratic order and prolonging his own personal power.

Here history has another tale to tell. After Caesar’s assassination, ancient Rome muddled along for nearly another half a millennium. Roman Senators killed Caesar in 44 B.C., and Rome survived until Alaric the Hun sacked the “Eternal City” in 410 A.D.

Alaric achieved that feat partly with the aid of once-foreign soldiers, which Rome had “imported” to replace the native ones who had been placated with retirement. The foreign soldiers, with concealed personal loyalty, turned against Rome when given the chance.

Herein lies another history lesson that needs heeding. Whatever the ultimate disposition of Trump’s demagoguery, we as a nation must attend to the real discontent of America’s skilled workers, whom our oligarchs have left to languish and die deaths of despair by selling their factories, jobs and futures abroad for profit.

If we do not assuage that discontent, those millions of displaced workers and their disgruntled descendants will remain as much a threat to our own democracy as the imported foreign soldiers posed to ancient Rome. President Biden is trying, in his own way, to reduce that threat by supporting strong labor unions, strengthening antitrust law, and at least considering reigning in the as yet totally unrestrained economic and political power of our tech monopolies, the anti-progressive equivalents of the railroads, steel and oil monopolies of our First Gilded Age.

But history’s most important lesson is stark and clear. We don’t have a “one-branch” democracy like ancient Rome’s. Ours is much more sophisticated and better developed. We have clear written law that disqualifies insurrectionists and traitors from holding high office. We have an independent Executive and fifty sovereign States to enforce that law, and a large and complex system of courts to apply it, without violence or unrest. Our Executive is doing its job of enforcement admirably. All we need is a Supreme Court that recognizes its historic duty and acts within its clear authority to prevent the worst from happening, without further violence or unrest.

The practical alternative is also stark and clear. If Trump remains on the ballot in all states, he has a good chance of winning the White House again. He will do so, if at all, by winning a few key “battleground” states by small margins, while losing the national popular vote by a margin of millions, just as he did in 2016.

Trump has told us, through his own mouth and in his own words, exactly what he will do in that event. He will use his power as president to wreak vengeance on his political opponents, in the name of justly aggrieved skilled workers thrown out of dignified and well-paid work by “globalization” and its false economic promise. He will pardon all his cronies accused or convicted of federal crimes, including all the participants in the January 6 Insurrection. He will suborn the Department of Justice to prosecute and sue his political enemies and business rivals. He will appoint heads of our military and administrative agencies based primarily on their personal loyalty to him, not their knowledge, previous experience, competence or expertise. He will then use all the concentrated power that results to destroy his political opponents and the so-called “Deep State”—the administrative bureaucracy and the courts that protect our human rights from infringement, our air, soil and water from pollution, our women and many minorities from discrimination, and our planet from runaway heating.

In other words, Trump will use all the power of the presidency and the spell he has cast over a huge minority of our people to destroy all semblance of popular democracy in the United States, and to subject everything and everyone to his mercurial, narcissistic and vengeful personal will. In the process, he will suborn, misuse and ultimately destroy our huge federal bureaucracy, which is the practical embodiment of modern science for day-to-day governing.

Think about that. The Western Enlightenment began when when Martin Luther and his Protestant Reformation released our species from the Catholic Pope’s totalitarian grip on human thinking. It gained speed when Galileo Galilei “invented” modern science with his heliocentric theory of our Solar System. Eventually, the Enlightenment brought us the idea of the freedom and autonomy of each human individual, and democratic parliaments and senates began to restrict and replace kings, emperors, dictators and other tyrants. The result, eventually, was the United States, which took democracy and the distributed governance of scientific expertise as far as they have gone in our species’ history, but which was and is deeply flawed as a result of its foundational dependence on slavery.

Now that entire enterprise is at stake. Just as Caesar put Rome’s democracy at risk with brilliant demagoguery that Roman Senators ended with decisive action, so our own Demagogue has put our species’ second great experiment with a mighty democracy at risk. Along with it, he puts at risk the expertise and wise government of our huge federal bureaucracy, filled with Ph.D.s and other real experts, which he wants to convert into a personal fiefdom of sycophants.

Does anyone, including the Justices, think that our big, powerful, industrial and populous blue states will accept all this meekly, like lambs going to the slaughter? Or will Trump’s attempt to impose his personal whim on a great nation facing existential challenges produce the greatest civil unrest, the most massive protests, and possibly ultimately dissolution by secession or a Second Civil War?

The great Justice Oliver Wendell Holmes once opined that “A man is presumed to intend the natural consequences of his acts.” The good justices had better start thinking hard about natural consequences—cause and effect—before making a decision to duck the last clear chance to use our law to avoid the destruction of our Republic arising out of the Demagogue’s re-election, inevitably by a minority of all our nation’s voters. My next essay in this series will explore these points of possible cause and effect in more detail.


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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Disqualifying Trump

[NOTE TO READERS: Yesterday the US Supreme Court agreed to review the recent decision of the Colorado Supreme Court to disqualify Donald J. Trump from the Republican primary ballot under Section 3 of the Fourteenth Amendment (the “Disqualifying Clause”). My post below, which I had been working on for two weeks, states my opinion why the Supreme Court, if it follows the law, should hold the Disqualifying Clause self-enforcing and applicable to any candidate for president of the United States, but why it might reverse and remand for procedural or evidentiary errors, or due to particularities of Colorado’s (or any State’s) election law and procedure. For my legal background, click here.]

The “Disqualification Clause” of our Constitution is Section 3 of the Fourteenth Amendment (the “Amendment”). It disqualifies persons from serving as civil or military officers of the federal government, or of any state, if, after having taken an oath to “support the Constitution of the United States,” they “shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.” U.S. Const., Amendment 14, Sec.3 , quoted in full at the end of this post.

By virtue of his actions and omissions on and about January 6, 2021, this language likely disqualifies Donald J. Trump, the former President of the United States, from running for or holding any such office again, including the presidency. This post analyzes how and why the Clause applies and how those seeking disqualification should best assert it.

Parts 1 through 3 are arguments based solely on the law, its language, logic, and reason, disregarding politics, partisanship, political tactics, strategy, convenience and ease of execution. In my view, far too many commentators, including some with legal expertise, confuse the law with things that have nothing to do with the law. Part 4 summarizes my view of best practical way to apply these legal conclusions nationwide, State by State, with attention to this nation’s federalism, State sovereignty and diversity.

Part 1. The Disqualification Clause is, by its terms and under precedent, self-enforcing. It requires no action of Congress or any state legislature to enforce it. State election officials are best situated, as a practical matter, to serve as the first line of enforcement, because they administer and control federal elections in most states. (See part 4 below.)

Section 5 of the Amendment (the “Enforcement Clause”) reads as follows: “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” The words “this article” refer to the entirety of the Amendment.

In contrast, the Amendment itself calls each of its numbered parts a “Section.” If further proof were needed, one can cite the customary practice, both at Ratification and in the post-Civil-War Era, of referring formally to amendments to the Constitution as “Articles of Amendment.” Thus, the Enforcement Clause refers to and applies to each and every other section of the Amendment without distinction or discrimination among them.

By its terms, the Enforcement Clause is a grant of power to Congress to provide procedure and perhaps clarifying substantive details for applying the various Sections of the Amendment. Nothing in it states or even suggests that Congress must pass a law before the Amendment, or any part of it, can be enforced.

Subsequent history is clearest on this point for Section 1 of the Amendment. That Section creates so-called “due-process rights” by prohibiting any State from “depriving any person of life, liberty, or property without due process of law[.]”

In a number of cases, federal courts have struck down federal and state statutes, and state courts have struck down state statutes, as inconsistent with these “due-process rights.” In many cases, the court applying the Amendment has not cited, let alone required, any federal or state legislation to support this invalidation of otherwise valid law as “unconstitutional.” All these cases reflect the universal understanding that the Amendment, like all grants of basic human rights in our Constitution, is self-enforcing.

Even more persuasive is the Supreme Court’s gradual application of federal human rights, even though explicitly phrased as rights against the federal government, to the States through the medium of the Amendment and its Section 3. An example is our First Amendment, which expresses the human right of free speech as a prohibition against the federal government only: “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” (emphasis added.)

By its terms, this language limits only “Congress,” i.e., the federal legislature. But the Supreme Court has applied it to the States, their legislatures and their executives, recognizing freedom of speech as part of the “due-process rights” that Section 1 of the Amendment guarantees against infringement by the States. See Gitlow v. New York, 268 U.S. 652 (1925). The Supreme Court has similarly “extended” other human rights in our Bill of Rights for protection against state infringement under the Amendment’s due-process clause. See Gideon v. Wainwright, 372 U.S. 335 (1993) (right of indigent defendants in criminal cases to effective assistance of counsel).

At least a half-dozen similar decisions apply federally-protected human rights to the States, reasoning that the Amendment and its due process protections are self-enforcing. None required federal legislation to conclude that the federal right applied as against the States. This phalanx of Supreme Court decisions, taken over the course of most of a century, is conclusive on the issue of self-enforcement.

Additional corroboration comes from the part of Section 1 that grants so-called “birthright citizenship” to “persons born . . . in the United States[.]”. This right is universally recognized as granted by the Constitution through the Amendment, although other federal statutes refer to it.

The Amendment’s plain language and precedents applying it to federal and state statutes over the course of a century are conclusive. No part of the Amendment, and consequently not the Disqualifying Clause, requires federal legislation in order for it to have legal effect.

The Fourteenth Amendment is not just another dreary entry in the list of twenty-seven amendments so far. It’s more like a second Constitution or a second Bill of Rights. Over 600,000 Americans on both sides died before it and the other Civil-War Amendments became possible. That’s more combat deaths than in any other single war of ours, and not far from the total in all our other wars put together, including those in Vietnam, Afghanistan and Iraq.

In the aftermath of our Civil War, the victorious Union and its representatives pushed through the three so-called “Civil-War Amendments,” namely, the Thirteenth through Fifteenth. Together, the three amendments abolished slavery, granted birthright citizenship and basic due-processs rights to “any person” (not limited by citizenship), recalculated the approtionment of representatives by States, disqualified insurrectionists and traitors from serving in public office, validated public debt but not rebel debt, and gave citizens the right to vote without regard to “race, color, or previous condition of servitde.” In so doing, they reconfigured our nation from a mixed economy based in large part on the enslavement of human beings to a unified, free nation based on liberty, basic human rights for “any person”, birthright citizenship (plus naturalization), and universal voting rights.

Can anyone in possession of reason believe that the victors in our most deadly war ever did all this, and passed these changes at the highest level of our law (our Constitution), only so they could be whittled down subsequently during votes in Congress to “implement” them, or possibly killed by filibusters, a notorious tool of Southern slaveholders and racists? Such a belief not only beggars reason; it would deprive the victors in the War and in subsequent reconfiguration of our nation of the fruits of both their bloody victory and their crowning political achievement, the Civil-War Amendments.

Some historians and legal scholars consider those three amendments a second and more promising Founding. Accordingly, they give them a broad and liberal construction, just like our Bill of Rights.

After decades of suitably broad interpretation, the Fourteenth Amendment, through its Section 1, now lets all persons enforce certain basic human rights not just against the federal government, but also against the States. It thus extended our Bill of Rights to insure against incursions on our basic human rights at the State level.

Today we are slowly coming to terms with slavery as the core of our Civil War. But Lincoln’s pretext for waging it, and the motivation for much of the Union Army at the time, was preserving our Union against the Confederate States’ rebellion and treachery.

The Fourteenth Amendment as a whole, and especially its Disqualifying Clause, were a pledge of “never again!” written in blood. They are attempts to insure, through law rather than violence, that such a bloody, fratricidal war will never come again, and that rebels and traitors cannot achieve by demagoguery, guile or subterfuge what they could not achieve in the bloodiest war in American history. The notion that they require modern legislation to take effect is tantamount to erasing the Union’s victory in the Civil War, the sacrifices of all those who suffered and died in it, and the suffering of all the freed slaves and their descendants who have waited patiently for full equality ever since.

Part 2. The Disqualification Clause applies to the office of the President of the United States. In relevant part, the Amendment provides, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State,” who, having taken an oath to support the Constitution, has broken it. The presidency falls literally within the language “any office, civil or military, under the United States.” In fact, the president is both a civil and a military officer under the United States. Our president is the civil head of the Executive branch, and, by virtue of Article II, Section 2, “the Commander in Chief” of our armed forces. Is not the top commander an “officer”?

The explicit mention of an “elector of President” clinches this interpretation. It beggars reason to conclude that the drafters of the Amendment meant to disqualify traitorous electors for the presidency, but not the traitorous candidate for president that they sought to elect. Among many other things, such an interpretation would encourage traitorous candidates for president, themselves not disqualified, to suborn otherwise loyal electors by bribery, intimidation or coercion. Surely the drafters of the Disqualification Clause were not that foolish.

Similar common-sense reasoning refutes arguments based on the slight difference in language describing the federal offices subject to disqualification (“office . . . under the United States”) (emphasis added), and the langauge describing an officer who earlier took and later broke an oath of loyalty (“officer of the United States”) (emphasis added). Interpreting the former phrase as excluding the president would have the absurd practical result of disqualifying traitorous electors but not the traitorous candidate for president for whom they vote. It would also contravene the general notion of the rule of law under our Constitution. The president may be the Commander in Chief but is indeed “under” the United States, unless he or she becomes a king or dictator. And we all know what our Founders thought about kings.

The part of the Disqualification Clause relating to previous oaths of loyalty only strengthens this interpretation. It explicitly calls out as disqualified anyone who had “previously taken an oath . . . as an officer of the United States” and later broke it. Surely the president is an “officer of the United States,” at very least as “the Commander in Chief”. U.S. Const., Article II, Section 2. Thus a traitorous former president is disqualified from all the offices mentioned in the first part of the Disqualifying Clause. It’s nonsense to conclude that he can’t run for Congressman, Senator or elector of a president but can run for the top job again.

Thus, straightforward interpretation of the Amendment’s wording, Article II, common sense, history, and the absurdity of contrary interpretations compel the conclusion that candidates for the presidency—and, even more so, candidates who committed acts of insurrection or treasonous acts as former presidents—are subject to disqualification under the Disqualification Clause.

Part 3. The Supreme Court does not decide whether the conditions for disqualification have been met. The Disqualifying Clause sets out the conditions for disqualification precisely and in detail. An official is disqualified (“shall not be” any designated official) “who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Whether the subject took such an oath, and whether s/he engaged in insurrection against the United States, or gave aid and comfort to its enemies, are quintessential matters of fact.

The Supreme Court is not a trier of fact. The Constitution is clear on this point. Article III, Section 2, limits the Supreme Court’s “original” (i.e., trial) jurisdiction to “all Cases affecting Ambassadors, other public Ministers and Counsels, and those in which a State shall be a party.” In other words, the Supreme Court has original jurisdiction in certain cases involving international affairs. “In all other Cases . . . , the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

“Appellate Jurisdiction . . . as to . . . Fact” does not mean finding fact. That’s the job of a trial judge or jury. The Supreme Court is not set up for that job: it does not take evidence, and it has no means of accommodating a jury.

Like other appellate courts, the Supreme Court decides whether lower tribunals’ findings of fact are procedurally proper, for example, whether the lower tribunal failed to observe the rules of evidence or procedure, and whether the ultimate decision reached is grossly inconsistent with properly admitted evidence. In either case, the Supreme Court returns (“remands”) the case to a lower tribunal for a second look. Then the lower tribunal either corrects its procedural or judgment error or (if the trial court) holds a new trial, after which the parties can appeal the case again, all the way up to the Supreme Court.

It bears emphasis that the Supreme Court’s appellate role is not to determine right and wrong, correct and incorrect, in matters of fact. It determines only whether a lower tribunal’s findings of fact fall within a “range of reason,” based not on some abstract vision of absolute truth, but on admissible evidence properly presented to the trier of fact, i.e., the original trial tribunal.

It’s entirely possible, although perhaps not likely, that the Supreme Court could uphold separate decisions to disqualify Trump and not to disqualify him, based on the differing evidence (and different errors) introduced in, and the different rules of, different jurisdictions. At least the Court might deny a request to disqualify filed too late in one jurisdiction, while upholding a similar request to disqualify filed on time in another.

So the notion that Trump and his opponents will try their disqualification cases, in person, before the Supreme Court, regardless where and in what jurisdiction they originate, is wildly inconsistent with the Supreme Court’s constitutional function, its minuscule role as a court of original jurisdiction, and they way it operates in practice. Our system of law is simply not set up for that.

Part 4. While a uniform, nationwide decision on Trump’s eligibility to run for president may be desirable in theory, it is not required, not legally or politically desirable, and not possible in practice. The so-called “double jeopardy clause” of the Fifth Amendment has no application to disqualification. It decrees, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S. Const., Amendment 5. By its terms, it applies to criminal offenses—and then only serious ones involving “jeopardy of life or limb”!—not disqualification from the privilege of running for president.

In any event, the privilege of running for president depends on the rules and procedures of multiple districts across fifty States. Filing deadlines and administrative requirements vary among jurisdictions. Procedural rules for filing challenges, deadlines for filing them, and procedures for substantiating the challenges through hearings and submission of written evidence vary from State to State. Ignoring these essential elements of State sovereignty is practically impossible and legally undesirable.

Under these circumstances, insisting on a single, uniform decision on disqualification would put a single judge or jury from a single State essentially in charge of the whole nation’s electoral fate. Suppose, for example, that a judge or jury in ruby-red Alabama decided that there had been no insurrection and no aiding or comforting the enemy, and the Supreme Court decided that there was no cognizable procedural or evidentiary error in that decision. Would the whole country, including all the big, blue, industrial states, accept that decision and keep Trump on the ballot?

Or suppose the contrary, that a judge or jury in mostly blue New Mexico decided that there had been an insurrection and aiding and comforting the enemy, and the Supreme Court found no cognizable procedural or evidentiary there. Would the rest of the nation, including red Texas and Florida, willingly strike Trump from their ballots?

A moment’s reflection reveals just how much chaos such an arrangement would cause. An attempt to produce a nationwide decision in a fragmented legal system would only inflame division and discord and produce exploding satellite litigation. Neither our electoral system nor our judicial system, including the Supreme Court’s appellate-only jurisdiction in these matters, is set up for that.

It would be far better for each State to decide on eligibility or disqualification under the Amendment according to its own rules, requirements and procedures, subject to the Supreme Court’s review for clear error in procedure or evidence. To act otherwise would be to “roll the dice” on a single decision in a single, probably small jurisdiction that would only inflame discord and resolve nothing.

The Disqualifying Clause applies nationwide, and it is self-enforcing. But nothing in it demands that different judges or juries in different States see the evidence the same way. Whether they do will depend not only on the imponderables of trying to separate evidence and law from human error, preconceptions and confirmation bias, but also on how skillful the lawyers and administrative personnel are in each case.

To bet the outcome of what probably will be the most consequential election in American history on those imponderables in a single State or single district is unwise to the point of national suicide. It will only encourage an unruly rush to judgment, as partisans push hurried and thoughtless litigation in ill-considered places in the hope of reaching the Supreme Court first.

Nothing in law requires a single overweening decision. There is no anti-double-jeopardy clause in the Amendment. And in any event disqualification (or not) in different jurisdictions is nothing like double jeopardy because the consequences are different in each. Each state has different and distinct electoral votes.

Conclusion. The Fourteenth Amendment is the law of the land. Its Disqualifying Clause is self-executing, just like its Section 1, which has been so interpreted for a century. By its terms, as well as by logic and reason, the Clause applies to disqualify insurrectionists and traitorous candidates for president, as well as traitorous candidates who broke their oaths taken in a previous presidency.

But the notion that it must be applied just once, in a legal-political version of Armageddon, possibly in a small state known for its vicious partisanship, is not only legally unsupported, but profoundly misguided.

For better or for worse, we are a nation of States, as our nation’s very name reflects. Let each State apply the Amendment and its Disqualification Clause in its own way, in accordance with its own procedures, deadlines and administrative needs, subject to loose review by the Supreme Court as the ultimate appellate body, which does not find facts but only legal error, and which reviews factual findings for evidentiary error and possibly gross errors of judgment. Only in this way can the law maintain order and avoid legal chaos while, at the same time, recognizing our federal system and its deep political divisions. And only in this way can our legal system accommodate the reality that different States have different timing and far different rules for primary elections.

Epilogue: I am not a Constitutional scholar. So there might be some obscure piece of federal legislation or national history that casts doubt upon the straightforward, common-sense interpretation of our highest written law set forth above. But there are strong reasons to doubt that any such tidbit should be decisive.

The possibility of applying the Disqualifying Clause to Donald J. Trump has been under intense scrutiny for three years, since the January 6 Insurrection of 2021, which he apparently helped incite, encourage, and, with extraordinary negligence, recklessness or even deliberation, failed to timely suppress. If there were any tidbit of law or history so decisive as to upend the straightforward interpretation of the Disqualifying Clause, its language and history, it would have been cited and argued by now.

None has been. On the contrary, opponents of disqualification have repeatedly cited the lack of precedent and a plethora of supposedly open issues as reason for caution in applying the Disqualification Clause, or for not applying it at all. But there is well over a century of precedent in applying the Fourteenth Amendment generally, and its text supports applying that precedent no differently to Section 3 (the Disqualification Clause) than to Section 1 or any other section. Could it be that opponents of disqualification, having no solid legal arguments, are simply blowing smoke?

As for history, the most striking and self-evident history of the Fourteenth Amendment and its Disqualifying Clause was what preceded and motivated their adoption: our Civil War. Failure to interpret and apply it as written would be as grievous an error against our democracy and our nation’s future as one can imagine. By allowing insurrectionists and traitors to seize power illegally but without violence, it would very likely conduce, in time, to the far greater violence of a Second Civil War.

Disqualification Clause, Fourteenth Amendment, Section 3 (full text, with modern capitalization):

Section 3

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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