A single footnote and a masterclass in constitutional law

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Jul 22, 2024

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🗳️ Joe Biden dropped out of the U.S. presidential race yesterday and Obama posted on Medium to express his support. VP Kamala Harris, Biden’s pick for the new Democratic nominee, posted throughout her 2020 presidential campaign. In the archives, you’ll find Harris’ perspectives on pay equality, gun violence, and her opposition to the death penalty.
Issue #124: how to innovate, how to mourn, and a tip for flight anxiety
By Harris Sockel

Lawrence Lessig, a professor at Harvard Law School and co-founder of Creative Commons, delivered a masterclass on the nuances of constitutional law earlier this month. It’s a close reading of Trump v. United States, the Supreme Court’s July 1 decision to grant the former U.S. president and future presidents immunity from prosecution for criminal acts committed as part of the job. The piece focuses on a single footnote from Justice Amy Coney Barrett.

The footnote in question essentially says the entire case is irrelevant if the President is acting outside the bounds of the job. (This was established in a civil, not criminal, context via an earlier case: Nixon v. Fitzgerald.)

Some background: There’s evidence that Trump allegedly interfered with the results of the 2020 election. He asked Georgia’s attorney general to “find” enough votes to overturn Biden’s win in the state. The question for the court: Is that legal? In other words: Was he doing that as part of his job? If not — and Barrett’s footnote suggests it isn’t, as the President has no official role in appointing electors — immunity should not hold.

Lessig’s analysis was revealing to me because it’s the only thing I’ve read so far that gets to the heart of why the Supreme Court’s decision doesn’t make sense. Justice Roberts ruled that “If [the President’s] actions could relate to an appropriate federal purpose, or more precisely, to an ‘official responsibility,’ then they are immune, even if it is completely obvious that they are actually unrelated to any appropriate federal purpose.” Lessig calls this out as “imprecise thinking” that wilfully ignores the fact that “acts are only understandable within the context of their purpose.”

Basically: The court ignored why Trump might be taking these actions, in favor of looking only at the actions themselves out of context. Lessig argues that’s misguided thinking.

What else we’re reading

• Playwright Kate Brennan: What we think of as “good” in any art form can become a trap if we don’t interrogate it. If you’re making something simply because you think other people will want it — based on what you’ve seen work in the past — stop. “If we keep on looking to what already exists, to what people think they want, to what has already been done — as our boundaries for future creation, we will never truly create anything new.”
• I mentioned Anthony Bourdain’s Medium archive in issue #114, but I can’t stop thinking about “When They Leave,” essayist Sara Benincasa’s meditation on mental health and suicide. It’s hard to sum up, but here’s one quote, pretty much as real as it gets: “It is neither a failure of character nor an indicator of a genius mind to contemplate suicide.”

Your daily dose of practical wisdom: about conquering fear

The top tip for battling your anxiety about flying? Meet the pilot. There’s something about personifying control that’s very soothing to our amygdalas, a lesson applicable to a lot more than just aviophobia.

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Edited and produced by Scott Lamb, Zulie @ Medium, & Carly Rose Gillis

Questions, feedback, or story suggestions? Email us: tips@medium.com