This is not ‘Nam, this is judging. There are rules.

When I first encountered the argument that Donald Trump was legally disqualified from re-election because of Section 3 of the 14th amendment, I was dubious. It seemed too much like a juridical magic bullet, most probably beset, as so many constitutional law arguments are, by verbal/historical ambiguities and procedural quandaries. Perhaps there was a good formal legal argument for disqualifying Trump, but pragmatically speaking it seemed like a potentially disastrous litigation strategy, in terms of the practicalities of the 2024 election.

I want to make a full and frank confession here: This initial reaction was simply a product of my own ignorance. It was nothing more than glib seat of the pants reaction, based on my far from adequate knowledge of the full history behind the great Civil War amendments.

I’ve since discovered that, as Sean Wilentz argues, the formal legal case for Trump’s disqualification isn’t “good” — it’s absolutely overwhelming, to the point where counterarguments are sophistic straw-grasping of the most desperate sort.

What Donald Trump did between early November 2020 and late January 2021 was exactly the sort of behavior the framers of the 14th amendment had in mind when they decided to disqualify anyone in Trump’s position who engaged in such actions from holding any future federal or state office, unless Congress by a supermajority vote should decide to remove the disqualification.

Leave aside for the moment the fact that Trump is the leader of a fascist movement that is trying to destroy democracy in this country. In legal argument, there are many circumstances in which genuine indeterminacy of various kinds — linguistic, historical, precedential, prudential/practical — makes it very difficult if not impossible to say what that somewhat mysterious oracle, “the law” requires. This is not one of those — extremely common in constitutional appellate litigation — circumstances.

To say that Donald Trump is not currently constitutionally eligible to be president is no different in any meaningful way from saying Barack Obama is not currently constitutionally eligible to be president, or Arnold Schwarzenegger, or Ariana Grande. These people aren’t currently eligible to become president because the Constitution states in completely unambiguous terms that they aren’t. Exactly the same holds for Trump:

These lawyers—indeed, all the academics and pundits quailing at enforcement of the Constitution—would profit from the words of Abraham Lincoln at the outset of the Civil War. The American people, Lincoln said, had established that they could successfully create and administer a democratic government. They had yet to establish, however, whether they could maintain that government “against a formidable internal attempt to overthrow it.” Now they were left “to demonstrate to the world that those who can fairly carry an election can also suppress a rebellion.”

The conservative majority of the Supreme Court—and the historical legacy of the Roberts Court—have reached a point of no return. The law, no matter the diversions and claptrap of Trump’s lawyers and the pundits, is crystal clear, on incontestable historical as well as originalist grounds. So are the facts of the case, which in any event the Supreme Court is powerless to review. The conservatives face a choice between disqualifying Trump or shredding the foundation of their judicial methodology.

But the choice is far more profound than the Court’s consistency. In 2000 it disgraced itself by manipulating the Fourteenth Amendment to produce Bush v. Gore, a ruling that changed the course of history and was later described by Justice Antonin Scalia, who concurred in it, this way: “As we say in Brooklyn, a piece of shit.” Now the Court must decide whether it will honor the original meaning of the Fourteenth Amendment and disqualify Donald Trump. If it does so, it may redeem in part the terrible judicial malpractice of 2000. If it does not, it will trash the constitutional defense of democracy designed following slavery’s abolition; it will guarantee, at a minimum, political chaos no matter what the voters decide in November; and it will quite possibly pave the way for a man who has vowed that he will, if necessary, rescind the Constitution in order to impose a dictatorship of revenge.

I understand that legal reasoning creates enormous gray areas in politically charged circumstances. Law is politics, as various strains of legal realism have demonstrated over and over again, but law is not only politics. At some point, there are actual legal rules that actually exist. A twice-elected president isn’t eligible for election to the presidency, nor is a native of Austria born of Austrian parents, nor is a 31-year-old woman. None of these propositions are controversial. Similarly, nor should the proposition– to any fair-minded person who has looked at the relevant legal history — that Donald Trump is not currently eligible to be elected to that office.