The Arguments For Placing Trump Above The Constitution Are Glib And Shrinking. bbb uBrian Beutler

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One of the only amusing things about the debate over disqualifying Donald Trump for the presidency is watching conservatives throw originalism overboard in favor of Whatever Interpretive Legal Method Might Salvage Trump’s Candidacy. 

Self-professed originalists claim to believe that the Constitution and the law should be interpreted as understood by their framers at the time of adoption. Conservatives typically extol originalism because limited interpretive methods make it easier for them to treat right-wing dogmas as binding on governments and citizens. The framers didn’t understand equal protection or due process to create civil equality for gay people, so the Constitution can’t be read to establish a right to same-sex marriage. Ta-da! 

Their difficulty now stems from the fact that the arguments for disqualifying Trump on 14th amendment grounds are originalist in nature. Trump supporters and anti-anti-Trump conservatives (and even some squeamish liberals) thus have two choices: mangle the construction of the 14th amendment in various ways, or retreat to a kind of living constitutionalism (disguised as “judicial restraint”) in which the 14th amendment doesn’t apply to Donald Trump because applying it to him feels somehow inapposite. 

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Nevertheless, if I’m being honest, in the realm of elite discourse, they seem to be winning the argument. Republicans are howling in bad faith about the sanctity of the democracy they tried to overthrow; Democrats are, as usual, hiding from the controversy, leaving their frontline members like Rep. Jared Golden (D-ME) to undermine the anti-Trump effort; and they sum to this kind of credulous news coverage in which Trump’s attempt to steal the 2020 election is relegated to the footnotes.

The political establishment’s unease with accountability for elites or with upsetting militant Trump supporters may give his allies may have a leg up in this spin war. But on the merits, and on their own terms, they’ve already lost.