Some Personal Reflections on the Recent Litigation Involving Section Three of the Fourteenth Amendment

Abstract

From the Introduction:
What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.

Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.

And From the Conclusion:
It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.

Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?