The Colorado Supreme Court Bars Insurrectionist Trump: Who Should Ultimately Decide?

On December 19, 2023, Colorado’s Supreme Court ruled that Don Trump, a former U.S. president, had engaged in insurrectionist activity as a matter of fact, and furthermore, as a matter of law, the U.S. Constitution bars him from holding any office, including the presidency. With an appeal to the U.S. Supreme Court a certainty, realized even by the Colorado justices, and some notable (and very visible) Republicans arguing that the American people should have the final say on whether Trump will be president again beginning in 2025, the question of who should have the final say—the judiciary or the people—was pressing, and indeed, very important. I contend that the determination of fact should have been made by a jury in a criminal proceeding, and that even absent that, the ultimate decision should still be made prior to, and thus not during, the election, for the question is whether Trump can be listed as a candidate for the office. Ultimately, the tension lies between the value of a politics-free judiciary and democratic (majority) rule.

Section 3 of the 14^th Amendment to the U.S. Constitution “prohibits anyone who swore an oath to support the Constitution and then ‘engaged in insurrection’ against it from holding office.”[1] The Colorado Supreme Court reversed the decision of a trial judge with the simple logic that the section doesn’t explicitly mention the U.S. Presidency because it is so obviously an office. That it is so because, as the majority of Colorado’s high court’s justices wrote, the presidency serves “we the people” seems more like rhetoric than logic; the majority opinion could have left it at the rather obvious point that the presidency itself is not mentioned in section 3 because that section refers to all offices, federal and state, as being subject to the prohibition. Indeed, in political discourse, “the office of the president” is often mentioned, so the point hardly seems necessary to be made, but for the strange reasoning of the trail judge who had sought explicit mention of the presidency as if it were not included in “any office, civil or military, under the United States, or under any State.”[2] That both appointed and elected offices are included is also indisputable on the face of it, and that the section expressly names senator and representative in Congress does mean that the presidency too must be named, for the distinction here is between the legislative and the two other branches (a justice is also an office). In fine, the presidency of the United States is indeed a governmental office.

Colorado’s high court was on shakier ground, and this is noted in the dissent in the 4-3 opinion, in accepting the district judge’s determination of fact that President Trump had “engaged in an insurrection.”[3] Insurrectionist activity was at the time a federal crime in the U.S., and yet Donald Trump had not even been charged with the crime, much less convicted by a jury. Rather, a district judge had made the finding of fact, such that not even any criminal sentencing could be done. At Yale more than a month before Colorado’s high-court ruling, I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, whether someone would first have to be charged and convicted of insurrectionist activity. “No,” he said flatly, without feeling the need to elaborate.[4] I thought I had asked a stupid question until I read in Colorado’s decision that the dissent makes the same point. Presumably someone should be found guilty of the crime before being barred from holding any public office because of said crime. Therefore, I submit that Colorado’s majority opinion erred in accepting the district judge’s determination of fact in lieu of any criminal prosecution and conviction as a sufficient basis apply the 14^th Amendment to Donald Trump.

Given the weaknesses in the judicial rulings of both the lower and higher court in Colorado, it is a good thing that the U.S. system of government is federal because the U.S. Supreme Court could make corrections. By implication, perhaps a plurality of state supreme courts should be able to overrule a decision of the U.S. Supreme Court. Checks and balances should apply to the judiciary too. Relatedly, the lack of check and balance concerning some of the unethical gifts taken by Justice Thomas of the U.S. Supreme Court from a Republican activist could diminish the legitimacy of the U.S. court in being the final decider on the questions of Donald Trump being an insurrectionist and, furthermore, being barred from holding any office. 

After the decision of the Colorado Supreme Court was made public, some of the Republican candidates for president publicly asserted that the American people should decide through the presidential election whether Trump should be president. A number of serious problems attend to this proposal.

Firstly, it is highly unrealistic, to say the least, that every voter would vote on the basis of the question of whether the U.S. Constitution forbids Trump from holding office. Even if Trump were to lose the election, it could not be inferred that the American people had decided that Trump was barred and thus could not hold any office.

Secondly, such a position incurs the worries noted by James Madison in his Notes on the constitutional convention that excess democracy, such as by having a de facto democratic judiciary (i.e., decided by votes of the people rather than rulings by justices), brings with it insufficient check on the passions of the people. A judiciary is one such check, and judicial review renders that branch a check also on the two other branches of government. In short, leaving the final word in interpreting the constitution to “we the people” leaves us without the ability to protect us from ourselves. For example, the rights of the minority would have no protection against the tyranny of the majority—democracy of course being by majority rule. Not the least of considerations, politics would also inevitably be involved.

Even in the U.S. Supreme Court, politics have likely been more of a force than the public realizes. Justice Sandra Day O’Conner, whose funeral took place just days from Colorado’s high-court ruling, had written the majority opinion for Bush v. Gore (2000) even before oral arguments were heard. She had been active in the Republican Party when she was an Arizona legislator, and her majority opinion sided with Bush. Objections to her partisanship imply a belief that the judiciary should be neutral politically.

Handing over the court’s functions to “we the people” would only add politics to constitutional interpretation. Voters in favor of Trump personally, or his policies, would likely find that he did not engage in an insurrection, and thus that the Constitution does not bar him from holding any office. President Biden’s supporters would be inclined to view Trump’s speech on January 6, 2020 as fomenting an insurrection. Who then should decide? This is the rationale for having a judiciary, especially where criminality is to be decided. Just as politics should not be criminalized, so too criminal proceedings should not be politicized.

I asked James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, why the federal prosecutor had not included insurrection among the criminal charges against Donald Trump. “It’s messy,” the judge replied. He meant that it is difficult to get a conviction. If so, then the fact that the district judge in Colorado so easily found that Trump had indeed been engaged in insurrectionist activity by urging his supporters to disrupt the counting of the electors’ votes for president warrants strict scrutiny. In other words, if the charge is “messy,” then shouldn’t a jury hear the case and be made to deliberate? Then, of a jury were to convict the former president, then appellate courts, including ultimately the U.S. Supreme Court, would be oriented exclusively to deciding the questions of law concerning section 3 of the 14^th Amendment.

Separating the criminal proceedings from the work of the U.S. Supreme Court would buffer the impact of politics inside that court unless its justices would disregard a jury verdict. Such a rationale would have to be strong in its reasoning, least it appear to be part of a political effort to decide the 2024 presidential election by judicial fiat, as in 2000. Such an effort would effectively prioritize a decision by the electorate. Absent such judicial corruption, deciding whether section 3 of the 14^th Amendment applies to Don Trump by an election incorrectly treats the United States as a direct democracy rather than a republic in which democracy is a part of the system of the system of government. Especially when democracy itself is in dispute, a judiciary free from politics is so very valuable. Boasberg’s dismissiveness of my two questions at Yale in early November, 2023 left me wondering about the neutrality of the federal judiciary. At the very least, what he took for granted is hardly settled law.

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1. Nicholas Riccardi, “The Constitution’s Insurrection Clause Threatens Trump’s Campaign. Here Is How That Is Playing Out,” APNews.com, December 20, 2023.
2. The U.S. Constitution, Section  of the 14^th Amendment.
3. Kinsey Crowley, “What Is the 14^th Amendment? Why Colorado Disqualified Trump and Removed Him from Ballot,” USA Today, December 20, 2023.
4. Not even the report of the judge’s talk in The Yale Daily News includes any mention of the judge’s answer to my question. Presumably the student-reporter did not think the reply could be controversial.

On the Role of the U.S. Supreme Court in Safeguarding the Peaceful Transfer of Power

In the E.U., the state governments and federal institutions can ask the European Court of Justice (the ECJ) for an opinion on a legal matter. This is rare in the U.S., though waiting for a dispute to winds its way formally through district and appellate courts may be unduly bureaucratic, not to mention lengthy. On December 11, 2023, Special Counsel Jack Smith asked the U.S. Supreme Court the ECJ’s counterpart, to decide whether the former U.S. president Donald Trump had any immunity from criminal prosecution of his involvement in the riot at the U.S. Capitol that interrupted the formal counting by a joint session of Congress of the Electoral College presidential ballots. The trial was set to begin the following March, and the question of the former president’s immunity had to be decided before the trial could begin. Hence the “extraordinary request,” which I contend should not be extraordinary given the time frame and the important role of the highest court in safeguarding American democracy from domestic threats.

The prosecutor asked the U.S. Supreme court to review district Judge Tanya Chutkan’s ruling that Donald Trump is not immune from “the election subversion prosecution case.”[1] Trump’s lawyers had argued that Trump’s actions in speaking outside the White House on January 6, 2020 were part of his official duties because he was protecting the American democratic system from alleged vote-fixing by Democrats. Chutkan rejected that argument, pointing out that the speech was oriented to Trump’s re-election and thus was not part of a president’s official duties—efforts to secure another term extend beyond the performance of the office within the current term of office.  Essentially, applying to continue in an office is not a function of the office. Chutkan classified Trump’s speech as falling under the rubric of campaign speeches even though the election had passed because he was using the speech to try be re-elected by Congress (by disputing the authenticity of several state electoral ballots).

To be sure, it was not as if Trump went with the option that he was considering of surrounding the Capitol with tanks—something President Nixon had also considered doing in 1974 during the Watergate scandal, which by the way ended up prompting him to resign. Instead, Trump was trying to throw the election to the Congress by pressuring it to vote on the validity of several of the Electoral College ballots that had been submitted by the state governments to be counted. The U.S. Constitution does give Congress a role in presidential elections, both in certifying the ballots and electing a president outright if no candidate gets a majority of the Electoral College votes. Had there been evidence of significant election fraud that would justify Congressional votes on the Electoral College ballots from several key states such as Arizona, Pennsylvania, and Michigan, then Congress could have intervened while staying within the constitutional framework. It was Trump’s way of applying pressure, by instigating a mob to disrupt the official counting, that resulted in the federal indictments that run just short of insurrection. By the way, I asked a judge on the D.C. district court why he thought Trump had not been indicted on insurrection. “It’s too messy,” he replied. “Isn’t that charge and a conviction based expressly on it necessary for someone to be barred from running for office in the U.S.?” I asked. “No,” the judge replied. “A judge in Colorado is looking at that now,” he added, presumably without there being a trial. It’s a pity that no one asked the U.S. Supreme Court to rule on what a Colorado judge was doing in lieu of a trial on the facts decided by a jury.

Perhaps even more than the presumption of innocence unless convicted of a crime, the rule of law applied even to U.S. presidents is vital to American democracy. Writing to the U.S. Supreme Court, the prosecutors with the special counsel insisted that “nothing could be more vital to our democracy” than holding a former U.S. president accountable for breaking a law.[2] Indeed, a “cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”[3] Many democracies have turned into military dictatorships precisely because the peaceful transfer of power was not respected. With a past of rule by kings, both domestic and colonial, many African countries have had trouble with the peaceful transfer of power. As a result, the foreign direct investment of multinational corporations has not been as large as the continent would need to develop economically. Even though it was hard to imagine a military coup in the U.S. in 2023, the precedent of a president getting away with having violated the U.S. Constitution could begin a slippery slope downward. More than sufficient grounds existed in 2023 for the U.S. Supreme Court to fast-track the question of Trump’s immunity.

The question of whether the trial could go forward was subject to time constraints; were the trial date of March, 2024 delayed pending the question of Trump’s immunity from prosecution going through the lengthy appellate process, the question of Trump’s guilt could still be unanswered by the next presidential election, in early November, 2024. Even though several presidential candidates were insisting that they would support a convicted felon for president, presumably voters would want to know whether Trump had committed a crime in attempting to thwart the results of the 2020 presidential election before casting their respective ballots.

Hence, the prosecutors wrote to the U.S. Supreme Court, “Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024. . . . It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”[4] The public importance has to do with the electorate having as much information as possible concerning the charges against the presidential candidate before going to the polls that upcoming November.

The fast-tracking would not be without precedent. In US v. Nixon (1974), the U.S. Supreme Court fast-tracked the question of Nixon’s claim of presidential privilege in being immune from a Congressional subpoena for the Oval Office tapes. “In that case, the high court moved quickly to resolve the matter so that one f the Watergate-era cases could proceed swiftly.”[5] It was not long after the ruling that the White House handed over the tapes to a congressional committee, and Nixon’s political fate was doomed from that point. Indeed, the difference between Nixon’s public persona and what he had been saying behind closed doors stunned many Americans who had no idea that even a “law and order” president could have such a squalid criminal mind. The public interest in furnishing the American electorate in 2024 with as much crucial information as possible on one of the presidential candidates can thus be appreciated. It should not be “extraordinary” for the U.S. Supreme Court to see to it that Trump’s federal trial could take place in time for the 2024 presidential election. Winding down the clock, to use a sports analogy, should not be a tactic that any defendant in a criminal trial should be able to use effectively, especially if accountability protecting the peaceful transfer of power is at issue.

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1. Hannah Rabinowitz and Devan Cole, “Special Counsel goes Directly to Supreme Court to Resolve Whether Trump Has Immunity from Prosecution,” CNN.com, December 11, 2023.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.

U.S. Anti-Trust Law: Applicable to Amazon?

In September, 2023, the Federal Trade Commission and seventeen states sued Amazon on ant-trust grounds for restraining trade and excessively raising prices on third-party sellers and consumers. Three months later, a leaked internal memo revealed Amazon’s anti-labor strategies of buying off local politicians and gaining reputational capital through well-publicized charitable work. Such work, as an anti-union strategy, demonstrates that the very expression, corporate social responsibility, is an oxymoron, or at the very least a misnomer (i.e., misnamed); a more accurate, and thus revealing, label would be corporate marketing. One effect of the “responsibility” connotation is that companies such as Amazon with mammoth market power could effectively hide strategic efforts in restraint of trade, and thus curtailing competition. Combined with feckless anti-trust prosecution, the result is an American economy that has not lived up to Adam Smith’s theory wherein competition via the price mechanism is necessary for individual self-interests to have beneficial unintended consequences systemically and thus in terms of the public good.

The civil case accused Amazon “of engaging in anti-competitive practices through measures that deter sellers from offering lower prices for products on non-Amazon sites.”[1] Amazon was being accused of deprioritizing listings of products sold at lower prices on non-Amazon sites, forcing merchants to raise their prices on Amazon’s platform and other sites “in order to keep their products competitive on Amazon.”[2] The customers suffer as relevant results of searches are replaced by paid advertisements that favor Amazon’s own brands. Also, the company was charging third-party sellers nearly half of their total revenue as fees for using Amazon’s platform, the result being higher prices for the consumers. The company was also compelling the sellers to use the company’s logistics service in order to qualify for Amazon Prime. With nearly 40 percent of the e-commerce market, Amazon was allegedly flexing its muscle at the expense of competition.

Yet the chairperson of the Federal Trade Commission, Lina Khan, was not asking the court to break up the mammoth company, preferring instead to limit herself to “liability.”[3] I contend that such an avenue falls short as a vehicle for instituting a competitive market. Firstly, a company with market power of nearly half of the e-commerce market can be expected to use its muscle in restraint of trade even while paying out liability claims because the oligopolistic excess-profits (akin to “monopoly rents”) more than compensate for the (tax deductible) expenses. Secondly, I submit that it is utterly unrealistic to suppose that a company with such overwhelming market power will not use it merely because of external disincentives such as civil fines. The use of “sticks” and even “carrots” to get such a company to not act as a profit-maximizer comes up short because such “motivating” tools are tertiary; they do not shake the fundamentals, whereby a non-competitive market is restructured to be competitive and thus composed of price-takers rather than a price-setter.

It is worth expanding on the tactics that an oligopolistic company can use to protect itself from extraneous attempts to fundamentally change the market. We get a glimpse of Amazon’s “play book” from an eight-page memo that reveals how one of America’s largest companies “executes on its public relations objectives and attempts to curtail reputational harm stemming from criticisms of its business. It also illustrates how Amazon [sought] to methodically court local politicians and community groups in order to push its interest in a region where [the company] could be hampered by local moratoriums on warehouse development, and [where the company was] facing resistance from environmental and labor activists.”[4] Knowing the company’s tactics in Southern California can give us an insight into how the company’s management blunts federal legislative action that could break up Amazon itself in order to create a competitive playing field in e-commerce.

In a nutshell, Amazon’s strategy was to create the illusion of on-going charity work and to pay off elected government officials to, among other goals, resist unionization of the company’s workforce and restrictions on where the company can build. Specifically, the management “’cultivated’ Michael Vargas, the mayor of the town of Perris, through pandemic-related donations” ostensibly to “support the region,” but actually to buy off his support for new warehouse construction.[5] This is proof that companies use money even aside from political campaign “donations” to get elected representatives to affect public policy favorably to the companies themselves. If this is so locally, we can be assured that companies as large as Amazon wouldn’t withhold the tactic from being used to buy federal lawmakers, whose power could include breaking up the company.

In regard to Amazon’s corporate “social responsibility” programs, the leaked document includes plans to have employees drop off food to the Los Angeles Food Bank “in big media moments that are broadcasted/posted.” The illusion of ongoing charitable work would of course work to the company’s advantage in public relations. As the “memo suggested curating similar moments during a back-to-school donation event and a [Christmas] toy drive, where drop offs occur and Amazon executives, as well as groups who receive grants from the company, ‘speak about Amazon’s impact” to the media present, even as the company planned on cutting off groups that “did not result in measurable positive impact,” charity was clearly viewed by Amazon’s managers as a promotional tactic.[6] The false societal image of a benevolent oligopolistic company could be expected to shield governmental efforts to break up the company and perpetuate the erroneous assumption that civil liabilities (i.e., verdicts against the company) are enough to safeguard consumers because the company’s management is benevolent.

In conclusion, the Federal Trade Commission shirked its governmental mandate to enforce the Sherman Antitrust law from the onset of the litigation, thus hampering the ability of the judiciary to order an effective remedy. In a large industry in which one company has 40 percent market share, and that company actively buys government officials and strategically uses public relations, the danger is not just to competitive markets, but also to American representative democracy and the rule of law itself. It is, I submit, no accident that the chairwoman of the FTC did not include breaking up Amazon as a remedy. We need only look at the company's strategially placed political contributions to surmise which elected officials might have put political pressure on the FTC. The company’s memo reveals that Amazon uses its extraordinary wealth to bend public policy away from the public good, like a black hole in space bends even space itself, to protect the company's viability by donating directly or indirectly to elected officials. I submit that plutocracy, rather than mob rule, is the greatest threat to American democracy.  At the very least, private wealth knows how to protect itself politically, and even how to cover its tracks under the patina of corporate social responsibility.

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1. Haleluya Hadero, “Amazon Sued by FTC and 17 States over Allegations It Inflates Online Prices and Overcharges Sellers,” APNews.com, September 26, 2023 (accessed December 7, 2023).
2. Ibid.
3. Ibid.
4. Haleluya Hadero, “Amazon’s Internal Plans to Advance Its Interests in California Are Laid Bare in Leaked Memo,” APNews.com, December 7, 2023.
5. Ibid.
6. Ibid, for the quoted material, which is both from the article and the memo itself.

On Trump’s Eligibility to Run for President: Who Decides?

The 14^th Amendment of the U.S. Constitution “bans anyone who took an oath to uphold the Constitution but who subsequently ‘engaged in insurrection or rebellion against,’ or gave ‘aid or comfort of the enemies’ of the Constitution from seeking any federal or state office.”[1] Did Donald Trump, when he was President of the United States, engage in insurrection? Furthermore, who decides this and bars him from office?

During the summer of 2023, lawyers opined on whether Don Trump is eligible to run for the U.S. presidency in 2024. It is one thing for lawyers on law-school faculties to decide whether Donald Trump, a former U.S. President as of 2023, is ineligible to run for president in 2024; it is quite another thing for the U.S. Supreme Court to make the determination; only the latter has governmental legitimacy that can legally be enforced, for the U.S. Constitution gives the federal supreme court the task of interpreting that constitution. In this case, the high court would be in the position of making decisions of fact—did Trump engage in an insurrection—and applying that decision to the 14^th Amendment. “The question of Donald Trump’s disqualification under the 14^th Amendment will be decided by the Supreme Court,” Michael Luttig, a conservative former federal appellate judge said in 2023.[2] Aside from the prediction, I contend that it should be.

The comment made by Luttig, who had actually been a judge, didn’t stop lawyers who teach at law schools from writing as if their own opinion were enough to render the former president ineligible to run for president. Just because someone ventures an opinion does not make it so. Even lawyers who specialize on writing in the field of constitutional law are, after all, merely private citizens like the rest of us. Of course, they, along with the rest of the American electorate, could decide indirectly through voting for or against Don Trump on the basis of determinations of whether he engaged in an insurrection. There are several problems with this method.

First, the voters would need to know how the framers used the word, insurrection, assuming an original intent hermeneutic, or else what the word means in its legal sense in 2023. The electorate would also have to “research”—and some potential voters put me off when I canvassed door to door by saying that they needed to research the candidates (yeah, right)—the Trumps various actions that could be considered to be insurrectionist: urging a crowd to pressure Congress on January 6, 2020 when it was counting the states’ respective ballots of electors, telling Vice President Pence that he had the authority to substitute slates of Trump electors in Arizona, Georgia, and other states, pressuring election officials in Georgia to “find” votes so Trump would win the state, and considering the use of the military on the capitol so Congress would use his slates of electors in states that he lost. Thomas Jefferson and John Adams agreed in retirement that an educated and virtuous citizenry is essential to the viability of a republic. They are also necessary for an electorate to apply constitutional vigor even to a candidate whom some voters like.

Secondly, letting the voters decide cannot keep Trump off any ballot prior to the election, not to mention prior to the Republican Party’s nomination process, because an election is the means by which voters would decide Trump’s fate. Former New Jersey governor Chris Kristy’s assertion, “The voters of our party are going to need to determine this question,” is neither competent nor fair to the Republic Party. An election before the election might be feasible, but then perhaps the first election would then de facto be the presidential election itself.

Deciding the matter by whatever means after the Republican Party’s convention would not be fair to the party. If election officials or a court later decide that Trump is ineligible, the party would suddenly be left, after its convention, without a nominee for president.[3] Because the U.S. Supreme Court “keeps its own schedule and is not bound by electoral deadlines, there exists the possibility that Trump could lock down enough delegates to win the Republican nomination—or even be officially nominated—only to be subsequently removed from the presidential ballot.”[4] Perhaps in such a case the Republican National Committee would be tasked with selecting the nominee, opening the door to the possibility of “back room” political deal-making and even bribes. That rather undemocratic consequence would be ironic if the people had been the deciders in a special election or referendum.

So, leaving the matter up to the voters is problematic; the matter of a nominee could ironically be decided by committee. That leaves us with either election officials acting independently of each other or all together, or the U.S. Supreme Court justices to decide. Just because some citizens claim that Trump is ineligible to run for office does not make it so. That almost all lawyers teaching constitutional law in the United States have only one—hence undergraduate—degree in law is all the more reason why their writings should not be taken as binding for election officials. Even if “the case is not even close,” as William Baude and Michael Paulsen wrote, it is not necessarily the case that, “All who are committed to the Constitution should take note and say so.”[5] Not only are articles in law reviews, whose editors are undergraduate law students, not objective analysis at least in constitutional law; such writings can be deemed political, and even instances of political activism claiming that readers should take action of a political sort.

But should election officials of local, state, or federal jurisdiction be the deciders? I contend that they should not. Firstly, if even just a few officials at the local or state level decide to exclude Don Trump, then the judgment in favor of Trump by other election officials would be impaired because he would not be on the ballot in every locale or state. It would be extra-constitutional (i.e., outside of the constitution) should all of the officials in the U.S. vote on whether to exclude him, for all of the officials, as a group, are not organized as a group constitutionally. Secondly, election officials do not necessarily have expertise on what exactly constitutes insurrection. Thirdly, they would inevitably be sued, whatever they decide, so the U.S. Supreme Court would be the final decider anyway.

An alternative way that the high court could wind up deciding on Trump’s eligibility would be deciding the inevitable appeal that would be made if Trump will have been found guilty of insurrection by a jury. It is significant that Trump had not been indicted on the charge of insurrection even though 91 charges were leveled against him as of August, 2023. Presumably Jack Smith, a Special Council in the U.S. Justice Department, would have charged the former president with insurrection had evidence existed to support that particular charge. Unlike the lawyers who teach in law schools, Smith had a formal means—a grand jury and a court with a judge—to make the charge, and he did not. Smith also had access to the evidence, which lawyers in law schools did not have. So, it is odd that the lawyers who claimed that Trump had engaged in an insurrection did so knowing that Smith had decided not to level that charge. Even stranger would be such a lawyer presuming that one’s opinion, whether in an interview or argued in an article in a law school’s undergraduate publication, is sufficient for election officials to keep Trump off their respective ballots.

In short, it could be argued that because Trump has not even been charged with insurrection, he cannot be found to be ineligible for office based on insurrectionist activities. It could also be argued, however, that the inclusion of insurrection in the 14^th Amendment is a political rather than a judicial matter. Under this reading, Congress could pass a law—rather than using the word insurrection for January 6^th in an award given to three Capitol Hill police employees—declaring that Trump engaged in an insurrection, and the high court would decide the inevitable constitutional challenge in court. But unlike impeaching and removing a president from office, no constitutional language supports applying the political process of how a bill becomes law.

Of all the chatter by experts and non-experts alike, the fact that Jack Smith did not charge Don Trump with having engaged in an insurrection is most salient to me in this case. To be sure, the U.S. Supreme Court justices could find that if he is found guilty of any of the existing charges bearing on January 6^, 2020, pressuring Georgian officials to “find” votes, or instigating false slates of electors in a few states, that they constitute insurrectionist activities.  The “finding” of votes, such as probably happened in Chicago in 1960 for Kennedy, constitutes garden-variety corruption in American politics, however. Even so, the justices could find on their own that Trump is guilty of fomenting or agitating an insurrection. The justices would need a suit to be brought to the court, however.

The legitimacy of the court as the final arbiter hinges on the nonpartisan nature of a judicial ruling that is based on legal reasoning. Unfortunately, the U.S. Supreme Court had its legitimacy tarnished by imprints of politics. In 2023, the media reported that Justice Sandra Day O’Conner had written the majority opinion of Bush v. Gore (2000)—the case that effectively handed the presidency to George H.W. Bush—before even the oral arguments. She had been a Republican legislator in the Arizona legislature. In signing onto the court’s majority opinion in Dodds v. Jackson (2022), which overturned both Roe v Wade (1973) and Planned Parenthood v. Casey (1992), some of the justices reneged on their confirmation-hearing statements that they would respect Roe v. Wade as precedent on abortion. All of those justices had been nominated by Republican presidents. In this context, the court’s ruling on whether Don Trump is ineligible to run for president would likely be seen as political, especially if the majority were to hold that he is ineligible even though the Special Counsel had not included insurrection among the charges bearing on the riot at the Capitol on January 6, 2020. The need for an impartial, judicially-oriented supreme court could not be more; in fact, the eventual undoing of the United States might be triggered by the absence of any such honest broker outside the reach of political factions.

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[1] S.V. Date, “Trump May Need Supreme Court To Say His Coup Attempt Does Not Violate Constitution,” The Huffington Post, September 2, 2023.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.

The Screen Actors Guild Strike: American Capitalism Is Inherently Unbalanced

On July 14, 2023, Hollywood actors joined the writers in going on strike against the studios, which had changed the business model in ways, according to the Screen Actors Guild (SAG), that were leaving the vast majority of actors out financially. At the time, AI (artificial intelligence) was the red-hot buzzword, promising unheard of advances but also baleful clouds on the horizon. The president of SAG sounded the alarm on not only the threat of AI given the studios' new business models predicated on ubiquitous streaming and digital technology, but also the more long-standing and ingrained American corporate system of Capitalism wherein upper managements get away with not sharing the surplus of corporate wealth due to an inherent or institutional conflict of interest. Indeed, Fran Drescher, the president of SAG, was not far from calling into question the taken-for-granted assumption in Capitalism that residual profits should go to stockholders exclusive. Questioning that default (as well as claiming that CEOs get to set their own compensation by controlling their respective boards of directors) would have made Drescher's announcement of a strike truly revolutionary. She was so close. 

Regarding AI, even Drescher's position can be perceived as short-sighted even though it was an improvement on the studios' new business model. The ability of studios to use the likenesses (images) of actors who have been bodily scanned (creepy) in one project for use as computer-generated “acting” in future movies in which the actors themselves are neither compensated nor participate was among the issues to be arbitrated in which the studios and SAG were far apart. To an actor, the loss of control over one’s image can complicate or even detract from one’s efforts to construct a public image. To be sure, not being paid for such extended likenesses being used was noxious to the actors even though no additional work on their part would be required. This just means, however, that royalties, or residuals, rather than pay for the use of the images would be appropriate, and thus fair. Furthermore, rather than being able to pressure actors on a project to agree to their respective likenesses being used in perpetuity, studios should be required to get permission for the specific uses (rather than a general permission) at the time of each future project. Actors would not feel that they might lose their existing work if they refuse to give a general permission in perpetuity. Even such an arrangement, incorporated into the studios' new business models, might not last long. A student of AI suggested to me that just as non-profit organizations have open-source libraries of written works, such organizations in the film industry might make available, royalty-free, images of volunteers that start-up film companies, students, and even Hollywood studios could use. Extras, or background actors, could conceivably be used only in shots in which mere images won't do. 

Of greater significance, SAG’s position extended to challenge a basic tenet of Capitalism itself. Were the strike a true inflection point, as Fran Drescher, the president of SAG claimed, the union had an opportunity to make the dogmatic, or arbitrary, tenet transparent if for no other reason that Drescher was aware and critical of the long-held assumption that had long before become embedded as a “necessary” plank in the economic system.

I contend that it is arbitrary to set the owners of a corporation as the receivers of the residual from the surplus of revenues over expenditures (i.e., profit), whereas banks and labor get only a fixed amount classified as expenses. All three groups can be thought of as providing inputs, or resources, that a management can use to make a profit. From this perspective, it seems arbitrary to say that only one of the group has a right to the residuals from the profits. The philosopher John Locke claimed that a person “mixing” one’s labor with land gives rise to a property right on said land. Centuries later, the U.S. Supreme Court ruled that a maker of wedding web-sites could refuse to have same-sex couples as clients because she had expressed herself in her work. It seems rather obvious that screenwriters and actors are also in an expressive profession. In “mixing” their self-expressive labor in a film, writers and actors can be said to have an ownership interest in what is typically referred to as art. Painters, after all, sign their paintings. It is possible that the writers and actors of a film have more of a claim on the profits than do the studios. In depicting the strike as occurring at an “inflection point,” the president of SAG had the opportunity to make such a claim, thus challenging the monopoly on profits hitherto enjoyed by the owners of the studios.

In announcing the strike in 2023, Drescher called attention to the large gap in compensation between the CEO’s of the studios and 99% of the members of the SAG union who were struggling financially. To be sure, the inclusion of “extras,” or background non-speaking roles that are on a per-project pay basis, means that the 99 percent were not depending on acting as a full-time job. Even so, the astounding pay of “A-list” movie actors may give people outside of the industry the misimpression that acting constitutes a wealthy profession.

The impression left by films grossing hundreds of millions of dollars that studios are wealthy is more accurate. The studios plead poverty, the SAG president exclaimed in astonishment, and yet somehow they have the money to pay tens of millions of dollars to their CEOs. In fiscal 2022, for example, the CEO of Disney made $24 million just before the company laid off 7,000 employees.[1] Drescher could have added that Netflix co-CEOs earned $43.2 million and $39.3 million in 2020—when the company raised the monthly price of its subscription.[2] Doubtless the management claimed that the company had no choice but charge customers more. It is interesting that managements can so easily put their companies in convenient straightjackets.

The union president must have sensed an opportunity to challenge the greed of American CEOs more generally as evinced in the increasing inequality between their compensation and the average of their respective workforces. “High seven figures, eight figures, this is crazy money that they make,” she said.[3] Implying that a basic shift in wealth distribution between upper managements and workers was justified, she stated, “What’s happening to us is happening across all fields of labor. . . . When employers make Wall Street and greed their priority, and they forget about the essential contributors that make the machine run, we have a problem.”[4] A basic problem in the American system of Capitalism.

The ratio of CEO compensation to that of the average worker in the U.S. in 2020 was 299.[5] Just one year later, the ratio was nearly 400, according to Statista. Even as the coronavirus shuttered or hampered many businesses, which meant mass layoffs, CEOs made out well nonetheless. Some CEOs made a thousand times that of the average worker. The annual ratios in the E.U. were much lower than in the U.S. That CEOs of American corporations had typically reached complete control of their respective boards of directors, which are technically to function in part as a check on their managements, presents not only accountability issues more generally, but also a situation in which the CEOs can set their own compensation and that of their managerial cadres. At one major corporation in 2023, the stockholders voted to deny the management’s proposed compensation package. Astonishingly, the resolution was nonbinding and the board approved the package anyway. This points to the existence of a major structural flaw in corporate governance in the U.S.

In pointing to the greed of CEOs of American companies in general, Drescher expanded her union’s agenda beyond the immediate financial interest of the members. She was making a societal contribution in claiming that the huge disparity of wealth between managements and workers was by then so large that an inflection point had been reached wherein SAG would try to set an example for other unions to follow in objecting to the arbitrary feature of American Capitalism wherein CEOs do not have to share the surplus of corporate wealth. She could have gone a step further by taking the opportunity to question the underlying assumption that stockholders should get the residual of profits that are not retained or invested. Even though the business model of studios had changed due to AI, the greed of American CEOs and their ability to set their own compensation packages had existed for some time and was finally too much for workers to take. That is to say, it was time for an enduring yet arbitrary (rather than necessary) aspect of American Capitalism to be changed. The system had been broken for some time, and the advent of AI meant that the harm would soon become even more unbearable.

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[1] Samantha Bergeson, “Fran Drescher Blasts Bob Iger’s Strike Comments: ‘I Would Lock Him Behind Doors,’” IndyWire, July 14, 2023.
[2] Todd Spangler, “Netflix’s Ted Sarandos to Earn $40 Million in 2022, Read Hastings Pay to Top $34 Million,” Variety, December 31, 2021.
[3] Bergeson, “Fran Drescher Blasts Bob Iger’s Strike Comments: ‘I Would Lock Him Behind Doors.’”
[4] Ibid.
[5] Moira Ritter, “CEOs Made 299 Times More Than Their Average Workers Last Year,” CNN.com, July 15, 2021.

The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

Pittsburgh Businesses Encroach on Public Property with Impunity

Private property, competition, and the market-mechanism have come to be assumed to be integral to the economic system of Capitalism. The assumption that this cluster of attributes is necessary is faulty though, as, for example, the state can own some or all of the “means of production” (i.e., firms) that are subject to market competition, especially if privately-owned enterprises also exist. China had a mix of private and state-owned enterprises compete in several industries when the state opened the economy to competitive forces setting supply and demand. In Wisconsin, the Green Bay Packers, an NFL football team, is owned by the residents of that city, such ownership being Socialism, and yet that team has competed not only to win, but also in the hiring of players and managers. A competitive market does not require that the property of the means of production be privately owned. Even in the case of private ownership of companies, the widely accepted custom wherein the owners receive the residual profits after expenses is dogmatic in the sense of being arbitrary. Alternatively, creditors or employees/managers could receive any excess revenue after expenses have been paid. In short, Capitalism as it has come to be known and exercised is more arbitrary than capitalists may realize. Even the taken-for-granted distinction between public and private property is not as stark as may be typically supposed. This is no excuse, however, for businesses that knowingly encroach on public property as if it were their own private property. A Capitalist economic system predicated on private property may contain not only the seed of monopoly, as Marx claimed, but also a tendency of private enterprises to over-reach on the public domain. If so, government has a responsibility to prune back the overweening tentacles. Two examples make this point.

Once while walking on a narrow sidewalk, I glanced down at my phone and was instantly startled as I ran into and tumbled over a metal chair in the middle of the sidewalk. A restaurant’s employees had set up tables on the side of the sidewalk with chairs out into the middle of the sidewalk, and a bit beyond a table had been placed in the middle of the sidewalk, with a potted plant placed making it even more difficult to navigate around the tables and chairs. Who would want to eat in the middle of a sidewalk, with people passing by at close range? The manager of that restaurant was guilty not only of missing this rather basic point, but also of the incredible presumption that the public sidewalk was essentially part of the business’s private property, which astonishingly placed the public at a disadvantage on public property!

A month earlier, I had called the zoning department of the city. I had been assured that a restaurant cannot obstruct a sidewalk. However, the city then failed to act, perhaps capitulating to the business interest (and wealth). So, after I nearly fell from running into the chair, I called the city again. The employee who answered insisted that the city gives permits allowing businesses to permanently block or obstruct public sidewalks. So, I called again and spoke with another person who had more of a sympathetic ear when I explained that I had almost fallen, and that a hazard exists because numerous pedestrians walk into the street because of the obstruction. Two weeks later, with Franks Bar and Grill still interlarding on public property, I left a phone message for the code enforcement person. Two weeks after that, as the photo below demonstrates, the restaurant was still blocking the sidewalk. 

I know that the city had opened an investigations months earlier, so I surmise that the restaurant's owner or manager knew of the complaints and dismissed them. Additionally, I suspect that the city of Pittsburgh had bowed to the business interest at the expense of the public good. This is as much of a problem as is the presumptuousness and dismissiveness of a business that can take advantage of a corrupt municipal government.

Another example of companies encroaching on public "space" is the overreaching of security guards and private police employees presuming that their turf extends beyond a company's private property. When I lived temporarily in Pittsburgh, while I was walking on a public sidewalk along a hospital that was part of the University of Pittsburgh, I stopped at a food-truck only to realize that a security guard was perched on a small hill from which he seemed to have been presumptuously patrolling the sidewalk. In the distance was another security guard. 

Initially, I thought he was in line to order food from the food truck as I was. So I held back. Strangely, he likely viewed my standing position with suspicion, or, more likely, dislike as I was looking generally in his direction. Not all subtle, he strategically walked past me up close and stopped further along on the sidewalk, presumably there to talk to another food vender, yet his body position reveals his real orientation. 

The presumptuousness of that university-affiliated hospital was visible in the choice of the security guard’s uniform mimicking that of the police—including with a silver “badge” and handcuffs. If the hospital was breaching the state's monopoly of police powers, which in general is a larger problem, I submit that the visible artifacts added to the possible presumptuousness of the wearers that company security hyper-extends "off campus" even if the state permits it. The artifacts also misled the public into supposing that the company's police were the same as the city police. At the very least, a company's private security or "police" employees do not necessarily receive the same training as the regular police receive. There is also the problem of legitimacy from a democratic standpoint once the state's monopoly of police powers, as per the U.S. Constitution, is violated by companies. 

Just a public property is distinct from private property, a company's employees are distinct from a government's police force (and power). Encroachment onto a government's use of force puts a company in a conflict of interest in that its security employees are not in an even-handed position in disagreements between a company's management and its stakeholders. Human nature being what it is, we should not assume that the employees would be fair in cases in which a management oversteps its own authority ethically or legally. 

I contend that business managers have a tendency to overreach, even perceiving public property as fair game to be captured for the private, narrower, interest of a business as the public interest suffers. This tendency on the microlevel is the same as that which fuels a company in a competitive industry to become a monopoly. John D. Rockefeller, for example, pressured competitors unwilling to be bought by his Standard Oil company. The titan had the audacity to view himself as a Noah saving the drowning competitors from being ruined by the destructive competition especially in the 1860s, and as a Christ-figure saving them. Unlike Rockefeller, Jesus in the Gospel stories does not kill off people who are unwilling to accept his help. Rockefeller even pressured the railroads to pay Standard Oil a “drawback” when they carried the oil of his competitors. Such encroachment breached what was thought to be ethical business conduct at the time, which in turn included some practices that would come to be regarded as unethical. The titan’s presumptuousness thus extended to treating the railroads as akin to his own property. By such means of encroachment, Rockefeller built his company into a monopoly in the refining industry. Fortunately, the U.S. Supreme Court broke up Standard Oil in 1913, but made the mistake of keeping in tact the same ownership in all of the resulting companies. The managements thereof were even allowed to be in the same building! A willingness to stand up to powerful businesses and competency as to how to break up their excessive market power from previous encroachments are both important if the private-property attribute of modern Capitalism is not to eviscerate the attributes of competition and the market-mechanism. Given the tendency of business managers to shirk the public interest, society needs some means of protecting public property from the inevitable encroachments.

American Law Enforcement: Extricating the Aggressive Personality and Presumption to Violate the Law Off-Duty

The assumption that more police than we might expect have in not being subject to the law even while off-duty suggests that hiring, training, and retention practices of police departments are inadequate. The presumption of being an ubermench and thus untouchable is dangerous when the person can legally carry a gun. Memo to police departments in the U.S.: please notify your employees that they are subject to local, state, and federal laws, period. Any indication of any presumption to the contrary subjects the culprit to termination. Unfortunately, police departments and their respective city governments in the U.S. are far from such enlightenment as could hold their employees accountable.

In June, 2023, a police employee of Orlando, Florida faced charges by the Seminole County Sheriff’s Office for reckless driving and resisting and fleeing from a deputy. The culprit “refused to show the deputy his license, got back in his car, and took off . . .”[1] He had been driving at 80 mph in a 45 mph zone. It is significant that he thought that going to work was a viable excuse for speeding. Even more incredibly, he told the deputy to notice his police uniform, as justifying the speeding! When the deputy asked for the man’s driver’s license, the violator abstinently said a quick, “NO!,” and turned to get into his car before fleeing the scene. How dare you as me for MY license! That’s something I do to OTHER PEOPLE. How arrogant, wrong, and incorrect. Moreover, the man’s reaction to being held accountable provides the public with a view of someone having the legal use of a gun and yet not willing to be held accountable himself. He may have incorrectly appropriated the former President Nixon’s erroneous declaration that if the president does something, it is legal. A local police employee is not even close to being the president of the United States. Even aside from prosecuting the presumptuous law-breaker in Florida, the city of Orlando would have done well in considering whether such a person should be granted the legal right to use lethal force.

My point includes the subtle one that prosecution is not sufficient and is thus inadequate as a litmus test for deciding whether a police employee literally takes liberties off duty should remain employed. Due to lack of evidence of a malicious intent, a police employee of Chicago, Illinois was not found formally guilty of assaulting a 14-year-old, whom the off-duty employee had wrongly assumed had stolen his son’s bike. The employee inserted one of his knees in the eighth-grader’s back.[2] Regardless of whether there was sufficient evidence for a criminal prosecution, the photograph of the man on top of the boy should be enough for a chief of police to decide that such presumptuousness predicated on being a police employee should eliminate the attitude from being on a police force. The presumption in being allowed to attack a child who happens to walk past a stolen bike would be a red flag even in the case of a police employee on-duty. Off-duty, a man who happens to work as a police employee is just like any other dad. While any father may feel like being judge, jury, and executioner of a suspected thief of one’s son’s bike, what father would actually act on the urge? Hence, the off-duty police employee can be seen as presumptuous, and even as questionable psychologically, as can a police employee who curtly says no when asked for his driver’s license for speeding to get to work. An aggressive tenor can be detected from both men, and this alone should bar them from having the legal right of lethal force.

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1. Connor Hansen, “Orlando Police Officer Accused of Reckless Driving, Leaving Traffic Stop after Exchange with Deputy,” Fox35 Orlando, June 12, 2023 (accessed June 17, 2023).

2.  Alex Hammer, “Moment Off-Duty Chicago Cop Kneels on 14-Year-Old Boy’s Back after Mistakenly Accusing Him of Stealing a Bike,” DailyMail.com, July 4, 2022 (accessed June 17, 2023).