Weekly Roundup: J6 3 years Later + 14th Amendment Originalism
More Americans think J6 was not big deal than ever. Why? Because the myth of the Big Lie has festered in the three years since the Insurrection, creating an alternate reality in which Donald Trump is not responsible for what happened - and the event wasn't that violent. Brad and Dan break down the statistics and take stock of where we are 3 years from the riot and less than a year from the election.
In the second segment, Dan provides an in-depth look at the formation of the 14th amendment, pointing out how its framers explicitly stated that it covered the presidency. It's an originalist argument set to appear before an originalist-dominated SCOTUS in February.
In the final segment the hosts discuss trans care in Ohio and why the governor vetoed a ban on it. It's a surprising development worth digging into.
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My name is Brad Onishi, faculty at the University of San Francisco, and I am joined today after a few weeks of like holidays and festivus and stuff with my co-host.
Yeah, I'm the Grinch coming back.
No, my name is Dan Miller.
I'm professor of religion and social thought at Landmark College.
Nice to see you, Brad.
We're in a reprieve, just so everybody knows.
My roof is being replaced today, so it could get noisy.
But right now, I think all the roof people are having lunch, so maybe we can squeeze it in here.
But it's nice to see you for the first sort of joint episode of the new year.
Yeah, it's good to be back.
I have so many thoughts about your roof being replaced, but I'm going to leave those to myself, or I'll text you later, because I'm sure they're riveting.
I do need to say something, and if you're listening right now and you don't want a personal tidbit from my Festivus expressions, then just fast forward here about a minute.
But Dan, on Festivus, I went on a rant about how you cannot call little bits of cauliflower rice.
You cannot say this is cauliflower rice.
It's so offensive, Dan.
It's so offensive.
And I'm not going to stand for it anymore.
Okay?
I've lobbied Congress.
I've called my representative.
I'm really upset about it.
But I had a revelation because it seems to me like if you call cauliflower rice, you're basically saying that all rice looks the same, which Asian people are used to hearing.
I think that's why I'm so upset about it.
There's so many different kinds of rice.
You just want these random bits of cauliflower to be called rice now?
You clearly don't know anything about rice.
That's one thought.
Second thought is, here's my analogy.
It's like calling Dippin' Dots quinoaed ice cream.
See how stupid that is?
You know what Dippin' Dots are?
Ice cream of the future?
Anyway.
All right, Dan.
I'm done.
Do you want to respond to this?
I just had to get this out of my brain because I've been furious ever since I did my Festivus and I wanted to say it on air.
I just want to know if there's a video online anywhere of you pacing back and forth at the frozen foods aisle, muttering at the freezer and stuff, or having the nice people at the grocery store have to escort you out because you're frightening other shoppers.
If you come to my house and talk about cauliflower rice, I'll go full Larry David.
I'll just be like, it's over, get out.
No, this friendship is over, I'm going to block you, it's over.
I have never wanted to come to your house more than I want to come right now with a bag of riced cauliflower.
That drives me crazy, the riced cauliflower.
Just to present it to you.
Maybe with like body armor or something to protect myself.
But yeah, I have an overwhelming desire to do that now.
It's the older brother.
I'm an oldest brother.
So it's the definitely wanting to like poke.
I gave this rant and somebody called me a racist.
So I'm going to leave it there.
All right.
We're done.
We're done.
It's over.
Okay, so it is our first Weekly Roundup of the year, and guess what it is, Dan?
It's January 5, 2024.
We are three years from January 6th.
And I want to give some stats on that and talk about what that means.
I think then we'll get into some more of the 14th Amendment stuff, which is just going to keep being a story, friends.
We have a lot of lawsuits.
There's one, I believe, Dan, in Massachusetts right now in your state.
There's also one in Illinois that has popped up to keep Trump off the ballot.
Colorado, of course, happened.
We've had decisions in places like Maine.
California.
So there's actually some updates or some context, I think, that you'll provide us on that whole set of issues.
And then we want to talk about gender affirming care in Ohio and the governor and a kind of interesting turn of events there that may portend a kind of bigger Approach to this issue or not on the part of the Republican Party.
So we will see about that.
All right, Dan, let me give you some numbers about January 6th and Donald Trump.
Right after January 6th, 2021, 52% of US adults said Trump bore a lot of responsibility for what happened.
So over half of American adults were like, yep, Trump has some, or excuse me, has a lot of responsibility.
By early 2022, so like months later, that went down to 43%.
The number of Americans who said Trump bore no responsibility increased to 32% in 2022 compared to 24% in 2021.
in 2022 compared to 24% in 2021.
I chronicle this in my book.
The longer things lasted, the more time that went on after January 6th, the more people said, "Trump does not bear responsibility and you're making too much of a big deal out That is what happened in the American electorate.
The farther we got from January 6th, the more people bought into the myth that Trump did not bear responsibility and that this was not a big deal and so on and so forth.
This week, we got a poll from Washington Post, University of Maryland.
It found that seven in 10 Republicans say too much is being made of the attack.
Just 18% of GOP supporters say that protesters who entered the Capitol were, quote, mostly violent.
So basically one out of five GOP supporters is willing to say that the protesters in the Capitol were mostly violent.
77% of Democrats say that, 54% of independents say that.
Okay.
So we have like less than one out of five GOP supporters are like, yeah, the people in the Capitol were mostly violent.
This is after the January 6 hearings.
This is after, I believe it's nine people lost their life there.
This is after the videos, the overwhelming social media posts about it.
Okay.
Let's look at some more here.
A December poll from the Associated Press found that 87% of Democrats and 54% of Independents believe a second Trump term would negatively affect U.S.
democracy.
82% of Republicans believe democracy would be weakened by another Biden win.
Okay.
Dan, we are in a situation three years after January 6th that I feel like you and I have predicted.
We get it wrong for sure.
We are not right all the time.
We have said that.
We have apologized on this show.
We mess up.
But I feel like we've been pretty consistent, and if you don't believe me, you can look up my book.
Our argument has been that if you don't adjudicate what happened on January 6th, meaning if you don't hold the people who created that insurrection responsible, then it will continue to not only hang around our public square, but it will grow.
It will take over, okay?
It will be something that becomes a new lost cause myth.
It will take on the character of a story that people tell.
And for some it will be, it's not that big a deal.
Let it go.
It's in the past.
You ever have that person that you're trying to like work out something that happened with them and they're like, it's in the past, bro.
Live in the future.
Move on.
There's other people that are going to say this was actually a good thing.
It was a good day for democracy.
It was a good day for the United States.
It was a good day for people who want to fight back for their country.
Okay.
All right, I want to give you one or two more statistics, and then I'll throw it to you.
McKay Coppins tweeted this out last night, and it's from the Desiree News.
64% of Republicans say Donald Trump is a person of faith.
So Dan, like two-thirds of Republicans are like, Donald Trump?
That's a religious man.
All right, I'm going to put you on the spot.
I did this before, I'm going to do it again.
What percentage of Republicans say that Joe Biden is a religious man?
12%.
Pretty good.
13%.
You were right.
Yeah.
You would have won the Price is Right on that because you did not go over.
That was good.
All right.
Do I win a new roof?
I'm just asking.
We can ask the people.
Yeah.
Get them on the line.
All right.
64% of Republicans say he is a man of faith.
13% say Joe Biden is.
Joe Biden Got plenty of criticism for Joe Biden, and there's many ways to determine if somebody's religious, and it's all flawed, and if you're a religious studies scholar out there, you know that, and I get it.
But Joe Biden, just, he goes to mass like six times a week, Dan.
He's been Catholic the whole time.
He talks about it all the time.
You may not agree.
If you're a Christian, you might think he's not the kind of Christian I am or that I think people should be.
But guys, I don't know what else you want.
Now, here's the real kicker.
I'm going to give you one more.
64% say Donald Trump is a man of faith.
13% Joe Biden.
What about Mitt Romney?
Mitt Romney.
What's the percentage there, Dan, of Republicans? 24%.
It's pretty close, 34, so more than you expected.
I undercut Romney even more, yeah.
Only one third of Republicans think Mitt Romney, the man who, again, you can say whatever you want about people and their character, their religious practice, whatever.
But I don't know, Dan, if I just do a cursory look at Mitt Romney, he seems to be a man of faith and talks about it all the time.
Now, it may not be what anyone would call good faith, but we can talk about that.
That's fine.
This is so telling.
I mean, this is the whole ballgame.
I mean, and I feel like, friends, if you've been paying attention for the last three years, you know that this is part of it.
That if you consider Trump and what happened on J6 to be an act of godly revolution, Then that is basically a pretty good explainer at the state of American conservatism, American evangelicalism, American Christian nationalism, and so on.
I have more to say about this.
I want to go back to something I wrote a couple years ago, explaining why I thought January 6th, as soon as it happened, was such a turning point for us.
That if we didn't weed this out, if we didn't take care of it, that it would turn into something That would plague us for generations, just like the lost cause, just like so many other myths of our country.
So I'll throw it to you for some thoughts and then I'll come.
I got one more thing I want to mention on this.
Yeah, I guess I'm going to come back to something I talk about a lot.
I get asked this.
I know that you get asked this.
And there's people who say, why call it Christian nationalism?
These people don't oftentimes, they don't do the kinds of things that we think Christians do.
They don't necessarily go to church.
They don't necessarily read their Bible a lot.
They don't do these kind of things.
Why do you keep calling it Christian nationalism?
And there are people that say, Christian nationalism has just become anything on the right.
It's meaningless.
And I always tell people, I've said this, I know you say similar things, but I'm like, if I've got my religious studies scholar hat on, What I tell students, what I tell others, is religions are what their adherents do.
And if you have a mass of people who identify as Christian, they consider themselves Christian, they recognize somebody like Donald Trump as Christian, and they think that the things they're doing, like their articulation of why they're doing this, is part of being in a Christian nation means you've got to stop certifying the election that Biden won.
And we can hear the roof now.
That means that it's Christian nationalism.
And I guess what I'm saying is, it highlights so much the way that people who support Trump want to deny any other kind of religious person.
So let's just say Romney's not religious, Biden isn't religious, and whatever.
But I think it's also important for us to understand that for millions of Americans, this is what it means to be Christian.
There are millions of Americans who believe, in my view, you can't be a good Christian if you don't support Donald Trump.
You can't be a good Christian if you think that the last election was free and fair.
You can't be a good Christian if you think Donald Trump should be, you know, off of ballots for the 2024 election, and we'll get to that in a few minutes.
And I think that's the thing that I always come back to, because folks are always asking, how can this be Christianity?
And I'll say, if you're part of a Christian community, you get to debate all you want about who the real Christians are, what Christianity should be like.
If that's the perspective we're taking, that's one thing, right?
But if you're looking at it in a bigger picture to understand, why call it Christian nationalism?
Because that's how the Christian nationalists understand it.
They understand it as part of their faith to support Trump.
Trump is this kind of quasi-messianic, divinely appointed figure, things we've talked about for years.
But that's what stands out to me is, again, just revisiting that question of why do we keep calling it Christian nationalism?
Because this is what it is for millions of Americans who participate in it.
So I think there's good news, bad news here.
And I don't, I don't want to overlook that.
So I'll start with the good news.
I think three years on from January 6th, we're going to talk about this later today.
There is a chance Donald Trump may be held accountable in a, in a number of ways.
One will be in court.
One will be in Georgia.
One will be by way of Jack Smith and that whole case.
So those things are happening.
Okay.
And those things are moving.
He may not be on the ballot in some places.
I talked to Andrew Seidel about this, constitutional lawyer, and I see, from a very non-constitutional lawyer perspective, I see reasons why he would not be on the ballot if you...insurrection.
Andrew Seidel agrees with that, or I agree with him, probably more...better to say.
So there's good news here, but there's also, Dan, I think, missed opportunity.
Okay, because we didn't have to wait this long.
We are now at that point where we're up against the clock.
Is this going to happen before the election?
Is there going to be delays?
Is the Supreme Court going to drag its feet?
Are there going to be reasons that in, right, we're in January, when we get to March or April or May, that we're sort of start saying, hey, what's going on with these cases?
When are they going to be decided?
And we're up against the clock because Republican primaries basically started now.
I mean, people are going to vote in Iowa very soon.
And, you know, November is coming.
So there's missed opportunity here because right after this happened, there was impeachment.
There was ways that this could have been taken care of.
So I'm going to read something real quick from my book.
I know, pretty lame to read from your own book, but you know what?
I'm doing it, Dan.
People have the audacity to call cauliflower rice.
I'm going to read from my own book on my own podcast.
So just, I don't know, deal with it.
Okay.
January 6th, 2021 could have been the end of MAGA Nation's role in the story of American politics.
If politicians, media voices, religious leaders, and celebrities had formed a united front that painted the insurrection as a disqualifying event that barred Trump and anyone who advocated for the attempted coup from serving in political office, our political future might look differently.
As it stands, however, It seems that J6 will become the foundational event in a long, perhaps slow-moving attempt to thwart American democracy.
Like the 1923 Beer Hall push in Germany, the 2021 Capitol insurrection may have been a failure only for its time and in name only.
When authorities stop a coup attempt and when that insurrection births martyr stories and rituals and symbols among its adherents, Any effort to trim back the myths that led to the coup simply end up stimulating their growth.
That is where I fear we are at now, Dan, is that this has taken root.
People believe all kinds of things about January 6th.
They certainly, many, many, many Americans do not believe Donald Trump incited an insurrection.
They don't hold him accountable.
So, I'm going to link this to one thing, then I'll throw it to you, and then we can wrap this segment up.
People are like, well, we had January 6th.
Are you really sure we're gonna have more of that?
Is there really more violence ahead for us?
Are we gonna have a new civil war?
Doesn't, you know, what's up there?
Here's what happened this week.
State Capitol buildings in at least six states, Connecticut, Georgia, Hawaii, Kentucky, Michigan, Mississippi, were forced to take safety precautions as a result of bomb threats.
So we live in a country that not only has mass shootings, Every day.
Had one in Iowa, or there was a school shooting, I should say, in Iowa this week.
But we live in a democracy where on the third anniversary of an insurrection, six of our state capitals had to take precautions as a result of bomb threats.
The Mississippi Capitol building was evacuated for a second day in a row on Thursday, and the Supreme Court building was also evacuated.
Separately, officials I had to evacuate government buildings in Arkansas's Pulaski County, Massachusetts' Nantucket County, and Maine's Cumberland and Kennebec counties.
In addition, and I mentioned this earlier this week, there was a man who entered the Colorado Supreme Court building and fired shots.
Okay?
We live in a democracy where this kind of stuff happens.
It's regular.
It's normal.
Do you remember when the IRS, you know, was willing to crack down on Trump a little bit?
Guess what happened?
Somebody tried to shoot up the IRS!
Dan, this is the post-January 6th world, and it might be the frog in the pot slowly boiling.
We may not have a civil war where New York and Massachusetts have entered into an alliance with California and, you know, whatever.
They're fighting, you know, the Texas and the South or something.
But this is the world we live in now, okay?
I'll give you one more.
Trump's lawyer.
Last night on television.
I think it should be a slam dunk in the Supreme Court.
I have faith in them.
You know, people like Kavanaugh?
Who the president fought for?
Who the president went through hell to get into place?
He'll step up.
Dan, that's like mob talk.
When people wonder how democracy gets hollowed out from within, you get the president who appointed a judge, and that same president is now not going to be allowed on a ballot because he incited an insurrection, having his proxies and his mob lieutenants go on TV and say, well, I'm sure the judge will make the right decision.
I mean, we've been good to him.
He'll be good to us.
This is the kind of stuff you get.
Three years from January 6th when you've never taken care of the root of the problem.
The ivy grows and it covers the entire public square.
All right.
Thoughts from you before we take a break and talk about the 14th Amendment in more detail.
Just to reiterate, especially that first point you made, people are taking up arms in defense of Trump.
I mean, that's what it is.
Like, boil down all the other ways we talk about it and whatever in that Civil War language.
As you say, yeah, there's probably not, like, The New York militia mounting up against Virginia, or I don't know what, you know, if people think of that.
But people are actively taking up arms to try to support Donald Trump and to make sure that he can get into office, to make sure that what they view as, you know, obstructions to that are removed by force if necessary.
I feel like that says everything, everything we need to say about the state of American democracy and a whole wing of Oh, and if you don't believe that he's a force for democracy, we will take up arms and install him by force.
This is banana republic stuff.
All right, last bit.
Sorry, I got to sneak this in.
So Brent Tannehill, who I talked about on Monday, had a new piece at the New Republic this week.
And here's what Tannehill notes.
A recent poll of likely Iowa caucus goers found that 42% of them were more likely to vote for Trump based on his assertion that immigrants are poisoning the blood of the country.
So 42% of Iowa caucus goers were more likely to vote for Trump based on his assertion that immigrants are, quote, poisoning the blood of the country.
29% said the comments don't matter.
Dan, that's a full 71% of Iowa caucus goers that are like either, yeah, that makes me want to vote for him more, or that doesn't matter. - Sure.
It doesn't matter that he just said, a la Hitler, that immigrants are poisoning the blood of the country.
So Tannehill concludes, right, that if you think about that, 42% are willing to go along with statements that sound in dehumanizing ways like they came from Mein Kampf, and another 29% are like, I don't know, it doesn't affect me, who cares?
It doesn't matter.
Okay.
Once again, this is where you land three years after J6, if you let the person who attacked your democracy continue to try to be the one who is president of what is supposed to be your democratic country.
So I'll just, you know, those numbers are really frightening to me, but I think they illustrate where we've arrived after January 6th.
All right, let's take a break.
We'll come back and talk a little bit more about the 14th Amendment.
Dan, you and I are not usually fans of originalism.
I don't think anything we say or do or talk about today is going to convince me that originalism is a good way to do law or to decide things, because originalism is basically founded on the idea that we can know the original intent of the authors of laws and documents and the Constitution.
And you and I have been trained well enough, I think, in our grad school studies and our Sojourns into French poststructuralist philosophy and other things, that that's really a fool's game.
And if you want more about all that, tune in to future episodes, because then I'll talk about it.
Here's the point.
Originalism is not something that you and I are usually in favor of.
However, there are some interesting originalist Details about the 14th Amendment that are at least worth noting when figuring out what's going to happen with Trump and the ballot.
So I'll turn it over to you.
What is going on there?
Yeah, I'll also throw out here that whole thing about originalism and recovering authorial intention and all of that.
People can also listen to the It's In The Code when I get into the inerrancy stuff, because it's the same thing.
It's the same sort of philosophical position.
So I'll just plug that here.
So a couple things.
One, I think maybe it was last week, like, I don't know, holiday brain and temporality is a little like COVID temporality, where it's hard to keep things straight.
But there was an opinion piece that came out on CNN by Damon Linker that said it was breathtakingly foolish to take what he called this 14th Amendment gambit against Trump.
And what he's actually giving voice to is he's not defending Trump.
He's not saying that he wants Trump to be president.
But his argument is that you can't defeat MAGA in court.
If you want to overcome MAGA Nation, it's a political problem.
You have to deal with it.
I agree with that.
But I fundamentally disagree that that means that if somebody breaks the law, violates the Constitution, that they shouldn't be held to account for it.
I think that's going to be important as we go along and talk about and look at and follow what happens with the adjudication of these 14th Amendment kinds of stories and developments and cases.
And it's also relevant to originalism as we're going to get to it.
So, What is he talking about?
What Linker really spurred him for this was that, and everybody's familiar with this by now, right, the Colorado Supreme Court became the first state Supreme Court to rule that Trump was ineligible to appear on ballots in Colorado.
Now, it's going to be stayed.
They know it's going to be appealed.
Right now, Trump is still on the ballot, etc., etc.
They're allowing the process to play out.
Other Supreme State courts have ruled that the 14th Amendment didn't apply to Trump, so you've had split rulings and so forth.
The main Secretary of State, as you alluded to earlier, made news earlier.
In the last week or so, because she removed Trump from the state ballot in Maine.
So that wasn't a court.
That was the person in charge of elections, essentially leaning on the decisions of the Colorado Supreme Court, saying that they found this compelling and that Trump was off the ballot.
So this has become Even bigger issue than it was, and it's going to go to the Supreme Court.
Trump has now appealed the Colorado decision to the Supreme Court.
Everybody knows it's going there.
Eventually, as you said, activists and others in different states, like, as you said, Massachusetts, are now trying, you know, making the same argument that was made in Colorado and so forth.
So, why does it all matter?
It matters because some argue that Trump should not be disqualified on the basis of the 14th Amendment.
Now, there are lots of reasons.
You have the linkers of the world who say that this just pours fuel on the MAGA fire.
You have Chris Christie who says you're turning Trump into a martyr and so forth.
But you also have others invoking, again, this idea of originalism, trying to say that basically the 14th Amendment just doesn't apply to Trump.
And usually when they highlight this, they highlight this because it was written in the context of the Civil War, the immediate aftermath of the Civil War.
And one of the arguments I've heard, too, from Trump and others is that it doesn't cover the presidency.
Well, you know, the 14th Amendment might apply to some offices, but the presidency is not named.
So when it comes to the actions of a president, sorry, he's immune, he's shielded, whatever.
Yeah, so it's Section 3 of the 14th Amendment.
We've read it before, but I'm going to read it again here because this is the part that's relevant.
It says, quote, No person shall be a senator or representative in Congress or elector of the 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 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
Okay?
And as you say, it lists Senator, Representative in Congress, Elector of President, and Vice President, but doesn't list other offices.
You talk about Andrew Seidel.
He's the expert.
We're not.
But lots of other experts.
For me, I look at the president.
I'm like, the president, I think, is an officer of the United States.
Like, that seems pretty evident to me that that person is included.
And in places, courts like the Colorado Supreme Court came to the same decision.
So what they're arguing, opponents of this, one of the arguments is it doesn't say president.
And it was about Confederates.
It was about Confederates and people that fought in the Civil War.
It's not about this now.
Lindsey Graham, I think, back when the 14th Amendment was under debate because of affirmative action, said the 14th Amendment's outdated now.
That was his argument then, but I think that's kind of the argument now.
It just doesn't apply anymore.
So why does that matter?
It matters because there's a great piece by Adam Serwer in The Atlantic this week, and basically he makes the argument and says, you know what?
This is actually wrong.
The Colorado Supreme Court essentially teed this up on originalist grounds.
Basically, he says, this is, if you read their reasoning, they are trying to make an originalist argument That the 14th Amendment does indeed apply to Trump.
And why are they doing that, Brad?
They're doing it because we have a Supreme Court with a bunch of conservative justices who pride themselves on being originalists.
They are basically setting it up for SCOTUS.
And this is becoming a test case to say, will the SCOTUS so-called originalists Will they actually follow through?
Will they be originalists, right?
And they'll make arguments, as you just did, that if they wanted to limit it to Confederates, they could have limited it to Confederates.
They didn't.
There's no mention of the Confederacy in this, right?
If the intention of the people writing the 14th Amendment was to limit it to people who fought in the Confederacy, they could have done so.
If they wanted to say this doesn't apply to the office of president, they could have excluded it, and they didn't.
I'll just throw this out there.
Can you imagine anybody arguing that, like, I don't know, Jefferson Davis, president of the Confederacy, would have been allowed to run for, you know, American president, and that he wouldn't have been disqualified on the basis of the 14th Amendment, right?
Because he's running for president?
Of course not.
But the article also cites, and I think this is significant, a number of conservative legal scholars who make the same argument.
And so I'm reading from the article, and I'm not sure that I'm going to get these people's last names correct.
I think it's Bode, maybe, B-A-U-D-E.
I don't know if it's Bode or Bode and Paulson, two legal, conservative legal experts.
This is what they said, okay?
And these are conservatives.
These are people who Except conservative interpretations of jurisprudence and so forth.
They said, quote, it would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States, we all see that.
That's what happens in the inauguration.
knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d'etat against the constitutional system, excuse me, against the system and the constitution and its system of elections, and overturn the results of the constitutional process in order to maintain himself in office as president contrary to law.
That's what they said.
So the whole argument about this is that lots of analysts are looking at this decision and saying, this is not, quote unquote, judicial activism.
This is not people departing from what is understood to be the context and the intent and so forth of the law.
This is the Colorado Supreme Court reasoning, and people can go and read that in more detail if they want.
Conservative legal scholars saying, nope, this ticks all the originalist boxes, if you want to do that.
And I think it's interesting that the point that I was making earlier, that you want to play this game of authorial intention, you want to play this game of we're going to read the mind of the people who wrote it and what they meant.
If they meant to limit it to the Confederacy, they could have done that.
Again, if they wanted to exclude the president, they could have done that.
Serwer makes this statement on originalism that I want to visit as well.
It says, in theory, originalism is committed to interpreting the Constitution according to its original meaning as it was understood at the time of adoption.
That's the principle.
We know the conservatives on the court have said for years, That this is what they believe, and this is why it's significant.
You've got people like the opinion piece, Ryder Linker, that I mentioned earlier, who say, this is going to have really bad consequences.
You're taking it out of the hand of the electorate, or it's no longer a political decision.
You've now made it a court decision, or it could be destabilizing, or it could lead people to not trust in democracy or whatever.
All of these arguments.
Here's the key, Brad.
The originalists say none of that matters.
The originalists on the Supreme Court say it's all about what the law says?
And what the people who wrote it meant.
And the effects of the law are irrelevant.
Clarence Thomas says this basically every time he writes a dissent or an opinion.
And he says, if you take the consequences of an interpretation into account, that's wrong.
You shouldn't do that.
You simply apply the law.
If Congress doesn't like the consequences, they can write new laws and so forth.
But we as jurists are committed.
Our hands are tied.
We have to just interpret the law as it stands.
I think there's a strong argument, and the Colorado Supreme Court thought that there was too, and the Maine Secretary of State thinks that there is, that you can make this argument that this fits on an originalist interpretation This fits and this applies.
This is why it's going to be a test case because Serwer also notes that despite all the talk of originalism, conservatives on the court, they're not really originalists.
They just kind of take whatever conservative position they want and, you know, try to find ways.
He describes it as giving it a patina of rationality, giving it a sense of rationality by trying to cite some historical precedent and so forth.
I'll just take, you know, Antonin Scalia and the Second Amendment as my case study there.
All of that to say, what are we going to see now?
It's going to go to the Supreme Court.
Trump, as you said, and his people say that they're confident that, you know, basically the justices are bought and paid for.
You know, we worked hard and spent a lot of money and a lot of time and worked with John Birch Society and all of them to get you these positions.
It's time for you to come through for us.
But it's going to be interesting to see if the Thomases, well Clarence Thomas should recuse himself, he won't, but he should, and others, if the originalists are really going to stand up and do what it is that they've said for Decades that they're going to do that this is how you interpret the law, or if they're really going to show their true colors and show that they're just another partisan element of the GOP and make sure that he can stand on the ballot.
So a lot there.
I could go on my own further rants and so forth.
But your thoughts on this.
It was a really interesting piece.
Again, Sir, we're with The Atlantic.
Invite people to take a look.
It's a really good way of explaining what originalism is, why it is that basically this has been set up as a test case to go to the Supreme Court to try to get them to hold up to the originalism they say they hold.
So there's a piece at ABC News by Stephen Portnoy, and he deals with the same issue, and he's sort of covering the same ground.
And there's this quote in there that I think is really interesting, okay?
There's a question during the congressional debate about the 14th Amendment and Section 3, okay?
And there's a question of, Would the disqualification clause of the amendment not cover the top posts in the executive branch?
So if we're not going to name the president in the third section of the 14th Amendment, does that mean that he's excluded, or she's excluded, or they are excluded?
Why did you omit to exclude them, asked Maryland Democratic Senator Riverdy Johnson at the time.
That's quite a name.
Maine's Lot Moral.
You know, Dan, when you read old congressional names, it's just, it's a whole thing.
We have Reverdy Johnson, and he's responded to by Maine's Lot Moral.
So Lot Moral says this during the debate, let me call the Senator's attention to the words, or hold any office, civil or military, under the United States.
So Lot Moral, and this ended the discussion, as Portnoy notes.
That when I say hold any office, I mean any office, and that includes the president.
Yeah, it's not sneaky.
So for the originalists, this question that everybody has now of, well, could they have meant the president?
Yes, they did.
Like, these are the authors of the amendment and, as you say, the congressional records where somebody asked, hey, it's really handy.
They asked that question.
They got really cool names to go with it, which just makes it even better.
Yeah, it's nothing sneaky.
And this is like Originalism 101, right?
Of going and finding that kind of statement.
I'm sorry, I didn't mean to cut you off.
I get too excited.
No, no, no.
I mean, you're right.
So if we look behind the scenes of the creation of the 14th Amendment and the ratification of it, then we have the people that put it together saying the president is part of this.
There's no immunity.
There's no exemption.
He does not have to be impeached.
I mean, these are the kinds of things you're going to hear from MAGA and from Trump in these lawsuits.
The bigger issue, and I've talked about this already, but I'll just mention it again before we go to break, is that you're going to hear the things that you've already said today.
You're going to hear this will tear the electorate apart.
You're going to hear that this is going to polarize the nation.
I heard David Axelrod, the Obama advisor, say that this week.
And my response is, as to compared to where we are now?
Exactly.
Like, because we're not in a polarized nation now.
MAGA Nation hasn't already martyred, declared Trump a martyr from having an election wrongly seized and so forth.
Yeah.
It's compared to what?
Like, what's the utopia that we're going to have if we somehow don't pursue this?
Like, there's just still this feeling of like, if we can just rationalize with these folks, then we'll get back to the good old days of having some kind of functioning two-party system.
They tried to kill Mike Pence!
They tried to kill Mike Pence!
And Trump was like, all about it.
I mean, what?
Why are we pretending that a movement that tried to kill the sitting vice president, a lifelong, overwhelming, explicit, sickening-to-the-point-and-won't-stop-talking-about-his-evangelical-christianity vice president.
A movement that was like, put him in a noose.
Why are we pretending that that movement just needs a chance to vote for their guy a third time to feel good about it, and then they'll go home and say, you know, we lost.
It didn't happen for us.
You know?
Like, Dan, do you remember, this is going to be a very weird example, I have no idea why I'm bringing it up.
I remember being a kid, and I don't even, I'm not even like a football person, but wasn't there, Dan, at a time when you and I were growing up when the Buffalo Bills lost the Super Bowl like three times or something, or four times?
Four times in a row.
Four times back to back, and they lost all four times.
Okay, so they went to the Super Bowl four times in a row and they lost all of them, right?
Okay, so I'm not making fun of that, and if you're in Buffalo, don't email me, I'm not trying to poke fun.
What I'm getting at is, There is a world where you can say, we went to four Super Bowls.
That's pretty cool.
We gave it our best.
No other team's ever done it.
Yep.
It didn't work out.
And it sucks.
And we're not happy.
And it hurts.
But you know what?
We gave everything we had.
I don't know.
We're not in a situation where if you let Trump run again and he loses by 7 million votes again, people are going to be like, well, we voted for a guy, you know, it's his third time, probably time to move on.
Let's do our best for good old U.S.
of A. Let's really just get in here with our neighbors, cook the hot dogs and see if we can't be better neighbors tomorrow now that, you know, Trump's not going to be our president.
Friends, they tried to kill Mike Pence.
He tried to overthrow the government.
He called the Michigan canvassers and was like, hey, don't certify the election.
He called Brad Raffensperger.
Hey, find me 11,000 votes.
He's on the stump right now, citing lines from Mein Kampf, saying immigrants are poisoning the blood of the nation.
He's talked about being a dictator.
Insurrection Act.
Opening camps.
I've said all this on this podcast in recent weeks.
Some of you are like, Brad, we've heard it.
And guess what?
I'm going to keep saying it.
You know why?
Because I just don't think David Axelrod is correct.
We live in a society where this week six of your state capitals had to be evacuated from bomb threats.
We live in a society where the Supreme Court ruled Trump off the ballot and somebody shot it up.
Where do you think we are, David Axelrod?
I'm sorry, I just, where do you think we live now?
I mean, that's what I... So I just don't think...
One more thought, and I'll throw it back to you and then I'll try to calm down, is this.
If any of you have ever dealt with a toxic person, if you've had a toxic person in your life, friend, family member, sibling, parent, loved one, romantic partner, whatever, you know what never works with a toxic person?
Is saying, well, just don't upset them and things will be good.
And I get it.
It's easy to fall into that idea because you don't want there to be, you know, a blow up in your house or an argument or something worse.
And I totally get it.
But the idea that, like, not upsetting Trump and his people will somehow, like, make things good?
Dan, they're always mad.
They're always mad.
They're like my two-year-old.
It doesn't matter.
If I give my two-year-old cheese and yogurt, she's like, where's the oatmeal?
If I give her the wrong toy or if I... I mean, you ever had a two-year-old?
You give them, like, the apple sliced a little bit too big?
They're like, they look at you like, are you serious, bro?
You're gonna give me this apple sliced two inches wide?
Not two and a half?
Dan, they were mad that Joe Biden had people tap dancing at the White House.
They were mad that Disney had a black mermaid.
They were mad that Starbucks cups look this way or Target was selling these.
They're always mad.
Always.
It does not matter what you do.
Their modes are fear and anger and resentment.
That's it.
This is not gonna ameliorate anything.
No one is gonna, at Manga Nation, gonna be like, you know, at least they let Trump on the ballot.
That was fair.
Okay, now we got a fair fight.
If you win, I'll accept it.
No problem.
Like, that's not the mode here.
The mode is, oh, Trump lost in November?
Guess what?
It was cheated.
Something weird happened.
Oh, Trump didn't become president?
Must have been those ballots being dropped at 3 a.m.
There it is.
So, I'm just trying to say, if your tact is to, like, not get them mad, A, you need to get more gall, and B, it's a bad tact because that's not going to fix the toxicity of the whole thing.
That's my thought.
Final thoughts on this before we take a break.
To your point, grievance is the aim.
They need grievance.
Grievance is what they feed off of, so there will be grievance.
And it's the perfect analogy, because we do have people in our lives.
Literally nothing you do can make it better or can satisfy, because there is no resolution, right?
They will manufacture reasons.
The grievance is what their identity is built off of.
Christian nationalism in America is built on, among other things, White grievance and a certain kind of Christian grievance.
And so you're exactly right.
And I'm with you.
This is the same reason Damon Linker's piece about it's breathtakingly foolish to do this.
It's the same kind of logic.
And I'm just like, have you looked around at like the America we live in?
Are we just going to keep playing these like intellectual games that if we can give a fair shot or just reason better or explain ourselves more, they're suddenly going to fall into line and flip a switch and not be angry anymore.
It's just it's just not how it works.
All right.
I'm revved up.
I could yell for the next two hours about how I feel about this.
I'm not going to do it though.
Here we go.
Let's take a break and come back and talk about something in Ohio.
All right, Dan.
So this week, something happened that's worth digging into.
Ohio, a pretty conservative state, has a Republican governor.
And that governor vetoed the ban on gender affirming care.
So the state legislature passed something that would have banned gender affirming care, and all that they needed was the signature of the governor.
And the governor was like, nope, veto.
Not something that you might expect.
There have been other bills, anti-trans bills, going through state legislatures across the country.
There's an anti-trans sports bill in New Hampshire that's going through right now, and other pieces of legislation.
So tell us what happened in Ohio and why this bill was vetoed.
Yeah, so this was really interesting.
So, as you say, just to be really clear, it was like a lot of other Republican states, Republican-majority states, that put forward a bill that would have banned various kinds of gender-affirming care for minors and also banned trans women from participating on women's sports teams and so forth.
And Mike DeWine, the conservative Republican governor of Ohio, vetoed the bill, which means Because there's a lot of sort of double negatives, vetoing a ban.
It means that gender affirming care for minors is still allowable in Ohio.
What's interesting about this and really telling for me, and I think is notable for a lot of reasons, is The rationale that DeWine used for having made this decision.
We have argued on this show a lot that these things hurt transgender youth.
They threaten the lives of transgender youth.
They are also aimed at punishing parents and providers.
We've talked about the facts.
Behind that, the reason why I make statements like that are readily available.
They are not hard to find.
Every major medical and mental health association in America supports affirmative, gender-affirming care for minors and so forth.
And Yet, when these bills are passed, it's always about parental rights and it's about protecting children.
That's the rhetoric that's used.
I've argued that it's just it's positively Orwellian.
It's aimed at hurting people.
Well, Mike DeWine illustrated all of this because what he did is he made a decision to veto the ban, but his rationale, and I say now this was kind of my reason for hope this week, too, because I could be accused of cynicism from time to time.
We've talked so often about how often these arguments are not conducted in good faith, right?
When somebody says they want to protect youth and they want to protect parents' rights and they want to do what's best, it's not an argument in good faith.
These are just reasons that are given.
But Mike DeWine, to all appearances, actually decided to go out Seek the facts, talk to medical experts, talk to trans people, talk to parents of trans people, and then based on all that data, he decided that this would be a bad idea.
So here are some things that he said, okay?
He said that people who had transitioned had told him, quote, they are thriving today because of that transition.
He said, quote, parents have looked me in the eye and told me, but for this treatment, their child would be dead.
So he went out and he talked to parents to hear what they actually said.
He said, quote, I have also been told by those who are now grown adults that but for this care, they would have taken their life when they were teenagers.
He said, quote, the consequences of this bill could not be more profound for transgender minors and families.
And he said, ultimately, I believe this is about protecting human life.
All the stuff we talk about, a culture of life rhetoric, the rhetoric of saving kids and all of this, he went out and it sounds like he actually decided that that was important and actually listened to the data.
He said, flipping the script on his conservative critics, and there were plenty on this, he said the sign of the bill, quote, would be saying that the state, the government, knows what's better for youth and their parents.
So he invokes parental rights and that they should make medical decisions for their kids about this.
He also debunked some of the false narratives.
He noted that gender-affirming care includes a wide range of treatments and that these typically do not involve surgery.
I don't know how many times we've said that on here, especially for minors, and for people who aren't minors.
Lots of trans people never have surgery.
He said, quote, there's a fallacy out there that such care goes right to surgery.
It just doesn't.
He went on to point out that about two-thirds of youth who seek counseling, in other words, they're dealing with gender identity, trying to understand what that means, what it might mean to transition and so forth, that two-thirds of youth who seek counseling don't even progress to receiving medication.
These are all true facts.
And what really stood out to me, as an exception to the rule, is that we had a Republican governor who I'll do my own thing on intention here.
Sounds like when he said that he wanted the facts and wanted to understand, he actually did.
And actually did what, in my view, is the right thing.
This is really noteworthy.
I want to be really clear.
I'm not, like, suddenly a Mike DeWine fan.
There are lots of things about him and his policies that I don't support.
He was silent about the issue of trans women participating on women's sports teams.
Like, that was just kind of conveniently not really discussed.
It's not clear what happens going forward, but this was a really, I think, interesting and telling piece of positive, hopeful news, especially for thousands of trans and gender nonconforming minors in the state of Ohio and their families.
Yeah, I'll be interested to see what the Ohio legislature does, how they respond to this and where this goes moving forward, if this has any kind of ripple effect or not, but it was a really interesting and really positive sort of development this week.
And it's just an example, a rare example of like, you know, you can be a politician with a complex approach to things and it doesn't mean Mike DeWine's progressive or liberal or anything.
It just means Mike DeWine made what you and I, I think, would call a humane decision, a humanitarian decision, a decision that really...
Let's go talk to experts who actually deal with this and people who experience this and let's find out what we should do.
Let's let them tell us, those of us who aren't the experts, let's let them give us their expert opinion and maybe proceed from there.
All right.
My reason for hope this week is all of you.
I just want to say the support that you've given us in 2023 and you continue to give us really, it's a lot to do this show.
We put a lot into it and we do it because we think it's It's pro-democracy work that really is designed and cultivated to help educate folks, activate folks, and make links to things that are sometimes hard to see, but once you do see them, you can take action.
So, we hope you're going to join us in 2024 on this ride.
We are more committed than ever to doing this work.
We have plans, as we've talked about, to innovate the show, to renovate the show, to add things to the show.
And so, you know, we're going to be talking this year to experts on Pentecostalism and charismatic Christians who are a big part of MAGA Nation and Trump's plans for reelection.
You know, have plans to talk to our friends and journalists and scholars about everything from rising fascism to militant masculinity to the, you know, John Birch Society, the history of the NRA, and much, much more.
So we hope you'll join us.
We hope you'll take this ride with us.
And we just see this next 10, 11, 12 months as some of the most decisive that we're going to face in our lifetime.
And my hope is that all the folks that are in this community are working to preserve and create something like democracy in the United States, and we're going to keep at it as well.
All right.
Dan, good to see you on our first Weekly Roundup of the year.
We'll be back next week with great stuff.
I have an interview coming with Tim Alberta, author of a big new book on evangelicalism in America.
We'll have it's in the code and the Weekly Roundup for now I'll say.
