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Discussion on the Pomona College class of 1964 listserv

2023-12-22 ge: What will this Supreme Court Originalist” do now?

On pp 31-32 of the Colorado Supreme Court’s decision barring Trump from appearing on the ballot or being counted as a write-in (PDF), they cite a case named Hassan”:

Hassan v. Colorado, 495 F. App’x 947, 948–49 (10th Cir. 2012) (affirming the Secretary’s decision to exclude a naturalized citizen from the presidential ballot); Socialist Workers Party of Ill. v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill. 1972) (per curiam) (affirming Illinois’s exclusion of a thirty-one- year-old candidate from the presidential ballot).

Then they go on to quote Gorsuch:

¶55 As then-Judge Gorsuch recognized in Hassan, it is a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” 495 F. App’x at 948.O

Something tells me that Gorsuch will read the Constitution differently this time.

For more, read this article by Charles Pierce, which links to this article on Gorsuch.

2023-12-22 Frederick Lukoff

Good points, George! My guess is that your conclusion is correct.

2023-12-22 Jeffrey Bruce

I don’t have Fred’s law degree or legal mind, nor do I have George’s knowledge of the scope of responsibility for the Colorado Supreme Court, but some stuff seems certain to me: a) the analogy of 35 years of age or natural born are not at all analogous to felonious behavior as either of the first two can be determined by anyone; whereas, the third has the federal protections of the 6th Amendment, specifically that the court of proper venue is a court within the jurisdiction where the alleged felony took place, that the defendant be confronted in that court by his accuser(s), and that the option of a jury trial be given the defendant. Damned inconvenient, admittedly; but I think required before governmental actions based on guilt. Democracy is difficult.

2023-12-22 Frederick Lukoff

We’ll see what SCOTUS says, but no one has questioned the venue here, and I think you’re reading a requirement into 14th Amend (3) that just isn’t in the text. Still, with this Court, nothing says I’m right.

2023-12-22 Jeffrey Bruce

I’m not even looking at the 14th Amendment. It seems to me that it does not come into play unless and until Trump has been convicted of insurrection by a federal court in DC. What do you contend that I am missing in the 6th Amendment or the news?

2023-12-23 ge


I’ve read part way into a fascinating book by Nick Chater called The Mind is Flat. I don’t want to believe that the book is correct. In fact, Chater himself doesn’t want to believe what he’s writing. But I think that scientists have come a long way proving that we are not terribly rational thinkers. Our minds are engines that do not reason logically, at least not all the time.

We search for ways to explain our situations and our own behavior and we almost always find something that we consider to be an explanation. I remember learning about this in Ms Bissell’s rooming house off campus at Pomona. I still visualize lying on my bed reading the Atlantic Monthly about Jews in Nazi concentration camps. It said that they simply had to explain their horrid situation and they often did, convincing themselves that thay had insulted someone or maybe actually cheated them. Their punishment was unjustified or out-of-proportion, but at least it had an explanation.

We also feel a strong need to argue against what other people say. In fact Americans often spend their time listening” by inventing rebuttals rather than understanding what the other person is saying. For example, you wanted so badly to make a point about the decision by the Colorado Supreme Court that you seemed to have missed my point. (I think I made my point clearly because Fred seems to have understood it.)

What I’m saying here about you is quite close to what I was saying about Gorsuch, namely that you are human. If Gorsuch simply can’t bring himself to agree with the Colorado Supreme Court, he will write stuff like what you wrote - he will find ways to explain why a law has different meanings in two similar cases — he will have to believe that he is not contradicting himself. He will find an explanation, not because it’s correct” or logical” (after all Kurt Gödel proved that language cannot be consistent), but because he needs to. He might even be right, in some sense, just as your arguments might be correct.

- ge

P.S. Let me quote from pp 126 of Chater’s book to give you a flavor of what I think I’m thinking:

Psychologists Petter Johansson and Lars Hall, and their colleagues from Lund University in Sweden, played a trick on voters in the run-up to Sweden’s 2010 general election. First, they asked people whether they intended to vote for the left-leaning or the right-leaning coalition. Then they gave people a questionnaire about various topics crucial to the campaign, such as the level of income tax and the approach to healthcare. The hapless prospective voter handed over their responses to the experimenter, who, by a simple conjuring trick with sticky paper, replaced their answers with answers suggesting they belonged to the opposing political camp. So, for example, a left-leaning voter might be handed back responses suggesting, say, sympathy with lower income tax and more private sector involvement in healthcare; a right-leaning voter might be confronted with responses favouring more generous welfare benefits and workers’ rights.

When they checked over the answers, just under a quarter of the switched answers were spotted: in these cases, people tended to say that they supposed that they must have made a mistake and corrected the answers back to previously expressed opinion. But not only did the majority of changes go unnoticed; people were happy to explain and defend political positions which, moments ago, it appeared they didn’t actually hold!

… But the left-hemisphere interpreter appears to be playing its tricks here too. Confronted with questionnaire responses in which she appears to have endorsed lower taxes, the prospective voter’s (presumably primarily left-hemisphere) interpreter’ will readily explain why lower taxes are, in many ways, a good thing — lifting the burden from the poor and encouraging enterprise. But this statement, however fluent and compelling, cannot really justify her original response: because, of course, her original response was completely the opposite favouring higher taxes.

And this should make us profoundly suspicious of our defences and justifications of our own words and actions, even when there is no trickery. If we were able to rummage about in our mental archives, and to reconstruct the mental history’ that led us to act, we would surely come up short when asked to justify something we didn’t do — the story we recover from the archives would lead to the wrong’ outcome after all. But this is not at all how the data come out: people are able to effortlessly cook up a perfectly plausible story to justify an opinion that they did not express, just as easily as they are able to justify opinions that they did express. And, indeed, we are blithely unaware of the difference between these two cases. So the obvious conclusion to draw is that we don’t justify our behaviour by consulting our mental archives; rather, the process of explaining our thoughts, behaviour and actions is a process of creation. And, as with mental images, the process of creation is so rapid and fluent that we can easily imagine that we are reporting from our inner mental depths.

But, just as we reshape and recreate images in the moment’ to answer whatever question comes to mind …, so we can create justifications as soon as the thoughts needing justification come to mind. (But why might tax rises help the poor? Well — they pay little tax anyway, and benefit disproportionately from public services; or conversely, why might tax rises harm the poor? Surely they are least able to pay, and are most likely to be hit by the drag taxation puts on the economy.) The interpreter can argue either side of any case; it is like a helpful lawyer, happy to defend your words or actions whatever they happen to be, at a moment’s notice. So our values and beliefs are by no means as stable as we imagine.

P.P.S. Speaking of taxes, Jeffrey, we had a personal exchange years ago about graduated income taxes in which you came up with arguments that I was unable to refute. I felt stupid and confused. Of course, being human, I still believe that income should be taxed proportionally, but in the back of my mind, unfortunately not forgotten, is the knowledge that I may have no good argument for my opinion.

I’ve got 25,456 gmail messages from this Pomona list - no wonder I skip or lurk most of the time - but I can’t find our exchange.

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