A San Marcos, Texas, couple would like to remove a reference to a Ku Klux Klan supporter from the front of their home, but the local historic preservation board has said no dice.
The reference in question is a large metal "Z" bolted to a wrought iron Juliette balcony on the front of Kristy Kay Money and Rolf Jacob Sraubhaar's house in San Marcos' Burleson Historic District.
That "Z" is the initial of the home's owner and builder, Frank Zimmerman, a prominent local businessman and owner of the city's downtown historic theater who served as San Marcos mayor from 1949 to 1951.
Zimmerman also has ties to the Ku Klux Klan. His theater hosted Ku Klux Klan days and screenings of Birth of a Nation.
Given this legacy, Money and Sraubhaar decided they wanted to remove the balcony and its large "Z" from the front of their home.
But because their home is in a historic district, although not a historic structure itself, the couple needed to get the sign-off of San Marcos' Historic Preservation Commission to alter its façade. In May 2023 the commission voted unanimously to deny their application to remove the balcony from the front of the house.
In response, Money and Sraubhaar sued San Marcos in federal court, arguing that the city's refusal to let them remove the balcony and initial is an uncompensated physical taking in violation of the Fifth and 14th Amendments and an unconstitutional exercise of police powers under the Texas Constitution.
"It's an occupation of property for a public benefit. It's for an alleged public purpose, in this case, the people on the design review board want to look at it. So, we think that's a taking," says Chance Weldon, a lawyer with the Texas Public Policy Foundation, which is representing the couple.
In response, San Marcos filed a motion to dismiss the case, primarily arguing that Money and Sraubhaar should first have to appeal their case to the city's Zoning Board of Adjustment before taking their case to court.
The U.S. District Court for the Western District of Texas Austin Division is currently considering the case.
"We think it's wholly un-American that if you want to change something to the aesthetic of your property, you have to get sign-off from a board of unelected bureaucrats based on what they think looks right," Weldon tells Reason.
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]]>Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:
The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.
In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.
The post New Lawfare Article on "What the Supreme Court Got Wrong in the Trump Section 3 Case" appeared first on Reason.com.
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Michael Rappaport is one of the nation's most prominent originalist legal scholars, and author of such important works as Originalism and the Good Constitution (coauthored with John McGinnis). For those who care, he's also considerably to the right of me politically. In a recent post at the Originalism Blog, he skewers the Supreme Court's recent ruling in Trump v. Anderson, the Section 3 disqualification case:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster…. While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it.
The opinion relies upon spurious, non-textual reasoning. It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause…..
The Supreme Court opinion says that nothing in the Constitution delegates to the states the power to disqualify federal candidates. But this is obviously mistaken under the original meaning. The Constitution says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This provision allocates to the states the power how to run their presidential elections. State legislatures could decide not to hold elections at all but could assign their electoral votes to the candidate of their choosing. States have broad authority to structure their presidential elections. While this authority might be subject to other constitutional limitations, the Court does not point to any such limitation here.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications. Even without such federal legislation, the Supreme Court has the authority to hear challenges to the state determinations, as it did in this case (although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions….).
It is true that presidential elections have come to be viewed as national elections. This view has led many people to view the electoral college as inconsistent with such national elections and to argue for a national popular vote method instead. But that is not the system that the Constitution establishes. Instead, the Constitution grants significant authority to states over presidential elections. That is the original meaning.
I think Mike is right here on virtually all counts. I offered some similar criticisms of the Court's ruling here.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an "insurrection," but merely some other kind of violence.
In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump's lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.
Mitchell did make the much stronger argument that Trump's involvement in the attack wasn't great enough to qualify as "engaging" in insurrection. I think that was the best argument on Trump's side of the case, though I also think the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rappaport is right about the federal Supreme Court's reliance on the claim that Section 3 isn't self-executing with respect to candidates for federal office. It is, as he puts it, "an unprincipled, pragmatic resolution" of the case, one that cannot be justified on originalist grounds.
I am less convinced he is right to suggest this outcome occurred because the Court's "self-interest was severely implicated." Perhaps the justices were driven by genuine, even if overblown, fears that letting states adjudicate Section 3 issues with respect to candidates for federal offices would lead to a chaotic "patchwork" of conflicting rulings. But if so, that's still a triumph of consequentialist "living constitution" reasoning over originalism.
The post Michael Rappaport on "the Originalist Disaster" of the Supreme Court's Ruling in Trump v. Colorado appeared first on Reason.com.
]]>As Mark Joseph Stern noted yesterday on Xitter, the three-justice opinion concurring in the judgment appears to have been originally drafted as an opinion by Justice Sotomayor "concurring in part and dissenting in part." So either Justice Sotomayor was confused about how to style an opinion that reaches the same bottom line judgment of the majority (unlikely), or something changed in one or both opinions. [Sidenote: Who thinks to check metadata by double-clicking random parts of an opinion or searching for ghost text?]
There are other indications things may have been revised quite late. For instance, the three-justice opinion accuses the majority of holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." The majority certainly holds that Section 5 of the Fourteenth Amendment vests in Congress the power to enforce Section 3, but nowhere does it require a "particular kind of legislation." Might this be responding to language in a per curiam draft that was later watered down? It's quite possible the per curiam was changed leaving no time for additional revisions to other opinions.
There's also a line in Justice Barrett's separate opinion that seems to be jousting with something that is not there. After explaining why she did not join parts of the per curiam, Barrett writes:
The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.
"Stridency"? Really? Justice Barrett does not strike me as that sensitive. Perhaps the thre-justice opinion's citations to the Chief's separate Dobbs opinion and Breyer's Bush v. Gore dissent were a tad salty, but "strident"? This makes me wonder further whether there was language in the three-justice opinion that was watered down or removed, and the rush to issue the opinion prevented further revisions in response. (Or perhaps Justice Barrett initially drafted this language in response to a Justice Sotomayor partial dissent.
There are other places where the opinions do not quite mesh the way one would expect were there time for lots of back-and-forth, but these are a two I thought worth highlighting.
I had also initially wondered about the lack of a syllabus, but it turns out this is standard for per curiam slip opinions. They are initially issued without syllabi, which are later added for publication in the U.S. Reports.
Well, that's enough procrastination-through-speculation for one day.
The post Were There Last Minute Changes to Trump v. Anderson? appeared first on Reason.com.
]]>Today's unanimous per curiam Supreme Court decision in Trump v. Anderson overturns the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the Fourteenth Amendment. It does so on the ground that Section 3 is not "self-executing." Thus, only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures. This outcome was predictable based on the oral argument. But it is nonetheless badly wrong.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Under the Court's reasoning only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures—at least when it comes to candidates for federal office, and officials holding those offices. The majority claims that Congress' Section 5 power to enact "appropriate" legislation enforcing the Fourteenth Amendment is the exclusive mode of enforcing Section 3.
There are multiple flaws in the Court's reasoning. Start with the fact that there is no good reason to believe that Section 5 is the exclusive mode of enforcing Section 3. As the Colorado Supreme Court pointed out in its ruling, Section 5 allows Congress to enforce not just Section 3, but every other part of the Fourteenth Amendment, including its protections against racial and ethnic discrimination, the Due Process Clause, and more. All these other provisions are considered to be self-executing, under longstanding Supreme Court precedent. Thus, state governments and federal courts can enforce these provisions even in the absence of federal Section 5 enforcement legislation. Otherwise, as the Colorado Supreme Court notes, "Congress could nullify them by simply not passing enacting legislation." Why should Section 3 be any different? Today's Supreme Court decision doesn't give us any good answer to that question.
The Supreme Court ruling also notes, following longstanding precedent, that Congress' Section 5 power is "remedial" in nature: it must be "congruent and proportional" to violations of the Amendment it is intended to remedy. If Section 5 legislation is supposed to be remedial—including when it comes to enforcing Section 3—that implies someone else—state governments and federal courts—has the initial responsibility for ensuring compliance with Section 3. The role of Section 5 is to remedy violations of that duty.
The per curiam opinion emphasizes the need for uniformity in determining eligibility for federal office, and argues that states lack the power to make such determinations:
Because federal officers "'owe their existence and functions to the united voice of the whole, not of a portion, of the people,' " powers over their election and qualifications must be specifically "delegated to, rather than reserved by, the States." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995)…. But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
This argument ignores the longstanding role of states in enforcing and adjudicating other constitutional qualifications for candidates for federal office, such as the requirements that the president must be 35 years old, and a "natural born" citizen of the United States. In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Texas Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen. State courts in Pennsylvania and New Jersey ruled that Cruz was eligible. But no one doubted that they had the authority to adjudicate the issue.
In a 2012 decision written when he was a lower court judge on the US Court of Appeals for the Tenth Circuit, Supreme Court Justice Neil Gorsuch upheld Colorado state officials' decision to bar from the ballot a would-be presidential candidate who was clearly not a natural born citizen. Then-Judge Gorsuch wrote that "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." This reasoning applies to Section 3 just as readily as to the Natural Born Citizen Clause.
The main motive for the Court's decision may be the fear that letting states adjudicate Section 3 disqualifications will, lead to a "patchwork" of conflicting procedures and determinations. On top of that, there is fear that partisan state officials will seek to disqualify opposing-party candidates for specious reasons.
These are legitimate concerns. But, for reasons outlined in my commentary on the oral argument, they are overblown:
If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
Conflicting legal and factual determinations about candidate eligibility for office can also arise with respect to other constitutional qualifications for the presidency. For example, there might be disputes over the accuracy or validity of a candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't really bon in the United States, and that his birth certificate was fake).
The possibility of divergent conclusions on such issues is an unavoidable aspect of a system in which control over elections for federal offices is largely left to individual states, rather than reserved to a federal government agency. Perhaps the Framers of the Constitution made a mistake in setting up that system. Maybe it would be better if we had a national agency administering all elections for federal office, like Elections Canada, which fulfills that function in our neighbor to the north.
But the framers chose otherwise. As the per curiam opinion recognizes,"the Elections and Electors Clauses… authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2." That gives state governments initial authority (subject to federal judicial review) to enforce other constitutionally required qualifications for federal office. Section 3 is no different.
Concerns about a potential "patchwork" of conflicting state rulings are ultimately policy objections to the Constitution's decentralized state-by-state scheme of election administration. As the conservative justices (rightly) love to remind us in other contexts, courts are not permitted to second-guess policy determinations that are under the authority of other branches of government or—as in this case—the framers and ratifiers of the Constitution.
While today's Supreme Court opinion is unanimous, it's notable that both Justice Amy Coney Barrett (writing for herself alone) and the three liberal justices (in a joint opinion) wrote concurrences that seem to reject or at least call into question much of the majority's reasoning. I will likely have more to say about these opinions later.
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the January 6, 2021 attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it (the claim that he didn't strikes me as the best argument for his side of the case), whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices likely hope they can avoid ever having to decide these questions!
The one good aspect of today's ruling is that it eliminates nearly all remaining uncertainty about whether Trump can assume the presidency if he wins the 2024 election. By holding that Section 5 enforcement legislation is the sole mechanism by which federal office-holders can be disqualified, the decision forestalls such potential scenarios as a Democratic Congress refusing to certify Trump's election. In theory, Congress could enact new enforcement legislation between now and January 20, 2025 (when Trump would take office, should he win). But that is incredibly unlikely.
The price of certainty is that Section 3 is largely neutered with respect to federal office-holders. Unless and until Congress enacts new Section 5 enforcement legislation, former officeholders who engaged in insurrection will be mostly free to return to power, and try their hand at subverting democracy again.
Perhaps political norms will keep that from happening. But if norms were that effective, Trump probably would never have been elected to office in the first place, and he certainly would not once more be a leading candidate for the presidency today.
Finally, I should acknowledge an error I made in gauging what the Supreme Court was likely to do in this case. At an academic conference on Section 3 held at the University of Minnesota in October 2023, I said that if this issue came to the Supreme Court, there would be a 50-50 chance of a ruling against Trump. It's now obvious I seriously overestimated the likelihood of such a result, an error likely caused by underestimation the justices' concerns about the potential dangers of a "patchwork" of divergent state rulings on disqualification. When commentators err, they should acknowledge their mistakes, not try to bury them and hope everyone forgets. This is my acknowledgement.
NOTE: I will have more to say about the ruling in an article likely to be published within the next few days.
UPDATE: I should perhaps note I filed an amicus brief in the case, which addressed an issue largely left unaddressed by today's decision: whether a criminal conviction for insurrection is a required prerequisite for Section 3 disqualification.
The post Supreme Court Rules for Trump in Section 3 Disqualification Case appeared first on Reason.com.
]]>The Supreme Court today ruled unanimously that states may not exclude Donald Trump from this year's presidential ballot based on the claim that he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. "Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates," the Court says in Trump v. Anderson, the Colorado Supreme Court erred by applying that provision to the former president and barring him from the ballot.
That conclusion is not suprising given the misgivings the justices expressed when they considered the case last month. The issue that drew the most attention during oral arguments was whether states have the authority to independently enforce Section 3 in federal elections. By focusing on that question, the Court avoids delving into the issue of how to characterize the Capitol riot or Trump's role in it.
Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, says: "No person shall be a Senator or Representative in Congress, or elector of 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 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 against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
The Supreme Court's per curiam opinion endorses the interpretation of Section 3 that Chief Justice Salmon P. Chase embraced the year after the 14th Amendment was ratified. Chase, acting as the circuit justice for Virginia, noted that implementing Section 3 requires determining "what particular individuals are embraced" by that provision. "To accomplish this ascertainment and ensure effective results," he added, "proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable."
The Constitution "empowers Congress to prescribe how those determinations should be made," the Supreme Court says. "The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass 'appropriate legislation' to 'enforce' the Fourteenth Amendment."
The opinion quotes Sen. Jacob Howard (R–Mich.), who explained during the debate over the 14th Amendment that Section 5 "casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith." The Court also notes that Sen. Lyman Trumbull (R–Ill.) said congressional legislation was necessary to keep former Confederates out of public office. Consistent with that view, Congress approved the Enforcement Act of 1870, which "authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3" and "made holding or attempting to hold office in violation of Section 3 a federal crime."
This case "raises the question whether the States, in addition to Congress, may also enforce Section 3," the Court says. "We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."
Federal officials "owe their existence and functions to the united voice of the whole, not of a portion, of the people," the Court notes, quoting a 1995 decision involving term limits. "Powers over their election and qualifications" therefore "must be specifically 'delegated to, rather than reserved by, the States.'" Yet "nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates." The terms of the 14th Amendment "speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5."
That reservation of power, the Court says, is consistent with the general thrust of the 14th Amendment, which says states may not "abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote." It would be "incongruous," the opinion says, "to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office."
The Constitution does "authorize States to conduct and regulate congressional and Presidential elections," the Court concedes. "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power."
The last sentence of Section 3, the Court says, reinforces the impression that Congress alone has that authority. It "empowers Congress to 'remove' any Section 3 'disability' by a two-thirds vote of each house," the opinion notes. "The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people's chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle."
The Court thinks it is telling that the Colorado voters who challenged Trump's eligibility failed to identify "any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment." States "did disqualify persons from holding state offices following ratification of the Fourteenth Amendment," the opinion observes. "That pattern of disqualification with respect to state, but not federal offices provides 'persuasive evidence of a general understanding' that the States lacked enforcement power with respect to the latter."
If the Colorado Supreme Court were correct in concluding otherwise, we would probably not get "a uniform answer consistent with the basic principle that 'the President…represent[s] all the voters in the Nation," the justices say. "Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations." The upshot "could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record)."
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurred in the result. But they filed a separate opinion that faults their colleagues for deciding more than was necessary to resolve the case. They agree that allowing each state to decide whether a given presidential candidate is disqualified under Section 3 "would create a chaotic state-by-state patchwork, at odds with our Nation's federalism principles." That conclusion, they say, would have been sufficient reason to overrule the Colorado Supreme Court.
But the majority went further, they argue, by holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." That conclusion, they add, "shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment."
Sotomayor et al. argue that the text of Section 3 suggests the majority is wrong to conclude that candidates can be barred as insurrectionists only through congressional legislation. "Section 3 provides that when an oathbreaking insurrectionist is disqualified, 'Congress may by a vote of two-thirds of each House, remove such disability,'" they write. "It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3's operation by repealing or declining to pass implementing legislation."
Sotomayor et al. also suggest that the majority opinion misrepresents Trumbull's position on Section 3. The majority, they say, "neglects to mention the Senator's view that '[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,' with the proposed legislation simply 'affor[ding] a more efficient and speedy remedy' for effecting the disqualification."
The majority's position "forecloses judicial enforcement of [Section 3], such as
might occur when a party is prosecuted by an insurrectionist and raises a defense on that score," Sotomayor et al. write. "The majority further holds that any legislation to enforce this provision must prescribe certain procedures 'tailor[ed]' to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law."
By resolving a question it did not need to reach, "the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office," Sotomayor et al. say. "It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course."
Justice Amy Coney Barrett also wrote a separate opinion concurring in the judgment. "I agree that States lack the power to enforce Section 3 against Presidential candidates," she says. "That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced."
At the same time, Barrett implicitly rebukes Sotomayor et al. for "amplify[ing] disagreement with stridency." The Court "has settled a politically charged issue in the volatile season of a Presidential election," she writes. "Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present
purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home."
The post Supreme Court Unanimously Rules That States May Not Disqualify Trump As an Insurrectionist appeared first on Reason.com.
]]>Earlier today, in the case of Anderson v. Trump, Illinois circuit court Judge Tracie Porter ruled that Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment, and therefore must be removed from the Illinois Republican primary ballot. Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Judge Porter's ruling largely follows the reasoning of the Colorado Supreme Court decision on the same issue, which is currently being reviewed by the federal Supreme Court. She has stayed her ruling in anticipation of an appeal, and it will likely remain on hold until the federal Supreme Court issues its own decision.
I think the Colorado Supreme Court got all the major federal constitutional issues right, and therefore also agree with today's ruling. Unfortunately, the federal Supreme Court oral argument strongly suggests the justices are going to reverse the Colorado decision on the grounds that Section 3 is not "self-executing," and therefore cannot be enforced by state governments unless and until Congress enacts additional legislation. If that happens, the Illinois decision won't have any effect. The same goes for a December ruling against Trump by the Maine Secretary of State.
For those interested, I have filed an amicus brief in the federal Supreme Court case, which explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified.
I have also written about other issues related to the Section 3 litigation writings, most extensively here and here. In a series of previous VC, I explained why the January 6, 2021 attack on the Capitol qualifies as an "insurrection" under Section 3 (see here, here, and here).
The post Illinois Court Rules Trump Disqualified from the Presidency Under Section 3 of the Fourteenth Amendment appeared first on Reason.com.
]]>An Ohio law requiring that people under age 16 get parental permission to use social media is unconstitutional, a federal judge held this week.
On Monday, U.S. Judge Algenon Marbley told Ohio's attorney general not to enforce the law against tech industry group NetChoice or any of its members—a group that includes all sorts of major U.S. tech companies, including Meta, Pinterest, and TikTok. While this week's ruling is just a preliminary injunction, Marbley's opinion leaves little room for doubt that the tech companies will ultimately win here.
Marbley's ruling is the latest in a string of federal court orders against state laws intended to limit minors' social media or require platforms to follow special rules for users under the age of 18. Meanwhile, similar measures are still spreading like a bad viral meme throughout U.S. statehouses.
Ohio's "Parental Notification by Social Media Operators" law was passed last summer, following the passage of similar legislation in Utah and Arkansas. It requires many websites and apps to get consent from parents or guardians before allowing anyone under age 16 to sign up. Companies that fail to do this could be sued by the state's attorney general and face fines.
The Ohio law—which was slated to take effect on January 15, 2024—is part of a wave of attempts to childproof the internet through mechanisms like checking IDs for people who want to use social media or visit adult websites, raising the minimum age for opening a social media account, requiring minors to prove they have their parents' consent to use social media, and banning the use of certain social media features for users under a certain age.
Of course, applying specific rules to minors means tech companies must verify the ages and identities of all users. You or I might not need parental permission to use TikTok, but we would need to first prove we are old enough to get around that step.
For a good overview of the issues with online age-check laws, see this series from the R Street Institute's Shoshana Weissmann. She points out myriad downsides and unintended consequences, including the fact that these laws violate privacy, make people vulnerable to hackers and hostile governments, discourage data minimization (even when they sometimes purport to do the opposite), threaten our First Amendment right to anonymity, interfere with parental choice, risk criminalizing kids who try to outsmart them, and sometimes ban features—like algorithms—that actually make platforms more useful and safe.
"Like other States before it, Ohio has unconstitutionally tried to limit certain minors' access to protected and valuable speech on the Internet," argued NetChoice in a complaint filed in January. The group argues that Ohio's parental consent for social media law is unconstitutional in multiple ways.
The law interferes with minors' right to access and engage in protected speech, it "baldly discriminates among online operators based on the type of speech they publish," and its provisions are also "unconstitutionally vague," NetChoice argued. For these reasons, it violates the First Amendment rights of Ohioans under age 16 and the First and Fourteenth Amendment rights of tech companies.
The law would apply to online entities that allow users to interact socially, construct profiles, and create or post content when such an entity "targets children, or is reasonably anticipated to be accessed by children"—a rather porous category. "Websites have no way to know what this means," NetChoice argued in its complaint.
Further complicating compliance and understanding, Ohio's legislature exempted sites where "interaction between users is limited" to e-commerce reviews or to comments on content "posted by an established and widely recognized media outlet" that primarily reports news and current events.
These parameters mean review forums focused on products for sale online wouldn't have to get parental consent, but platforms dedicated to other types of reviews would. Likewise, "established" or "widely recognized" media focused on news or current events wouldn't have to get parental consent, but newer, lesser known, or mixed-purpose media platforms would. This exception discriminates against non-news content, "such as literature, art, history, or religion," argued NetChoice. "Thus, 15-year-olds must secure parental consent to join web forums devoted to United States history, but not to comment on contemporary news stories."
Ohio Attorney General David Yost argued in response that the law didn't concern speech at all but the right to contract, and that this fell within the state's authority to regulate commercial transactions.
This is a common tactic with authorities when it comes to speech restrictions involving social media or internet platforms. Rather than outright banning speech, they'll put burdensome restrictions on it and then argue that since the law focuses on contracts, or paperwork collection (as in the case of a new federal porn bill), or product design or some such thing, the First Amendment couldn't possibly apply.
Judge Marbley does not seem persuaded by Yost's argument. After issuing a temporary restraining order prohibiting enforcement against NetChoice or its member groups back in January, Marbley this week granted NetChoice's motion for a preliminary injunction, extending that temporary block on enforcement as the case plays out.
"The Act regulates speech in multiple ways: (1) it regulates operators' ability to publish and distribute speech to minors and speech by minors; and (2) it regulates minors' ability to both produce speech and receive speech," wrote Marbley, adding that there is no "contract exception" to free speech rights.
"In the State's view, the Act is a regulation striking at the commercial aspect of the relationship between social media platforms and their users, not the speech aspect of the relationship," noted Marbley. "But this Court does not think that a law prohibiting minors from contracting to access to a plethora of protected speech can be reduced to a regulation of commercial conduct." Thus, the judge agreed with NetChoice that the law restricts minors' First Amendment rights.
To come to this determination, Marbley cited a Supreme Court case concerning video games (Brown v. Entertainment Merchants Association), in which the justices wrote that even if "the state has the power to enforce parental prohibitions," it didn't follow "that the state has the power to prevent children from hearing or saying anything without their parents' prior consent." Laws that do so do not "enforce parental authority over children's speech and religion; they impose governmental authority, subject only to a parental veto," the justices wrote in that case.
The judge also agreed with NetChoice that the law represents a content-based regulation, which makes it subject to a more strict level of scrutiny than regulations that are not. Interestingly, the judge reached this conclusion in part because the law targets sites with particular functions. "Functionalities allowing users to post, comment, and privately chat—in other words, to connect socially online—may very well be conveying a message about 'the type of community the platform seeks to foster,'" wrote Marbley (citing a case in which NetChoice challenged a Texas social media law). "The features that the Act singles out are inextricable from the content produced by those features" and thus "the Act's distinction on the basis of these functionalities" is content-based.
Subjecting the law to strict scrutiny means that in order for it to be OK, it must further a compelling governmental interest and be narrowly tailored to that end. But while the state says it's out to protect minors from dangerous contracts, "the Act is not narrowly tailored to protect minors against oppressive contracts," wrote Marbley. The judge also rejected the idea that the act is narrowly tailored to other areas that may or may not be considered compelling government interests, such as protecting kids' mental health.
"Foreclosing minors under sixteen from accessing all content on websites that the Act purports to cover, absent affirmative parental consent, is a breathtakingly blunt instrument for reducing social media's harm to children," wrote Marbley. "The approach is an untargeted one, as parents must only give one-time approval for the creation of an account, and parents and platforms are otherwise not required to protect against any of the specific dangers that social media might pose."
Lastly, the court found that the law's provisions are "troublingly vague" with regard to which websites are subject to it. Terms like "reasonably anticipated to be accessed by children," or established" and "widely recognized" media outlets, do not precisely describe whether or not a particular website or media outlet is subject to the law's rules, and "such capacious and subjective language practically invites arbitrary application of the law."
Marbley's recent ruling is the latest blow to the legislative trend of requiring age checks for social media, parental consent for minors to use social media, or other regulations targeting teens and social media use. Some of these decisions have been quite bold in their rebukes, too.
In August, a federal judge held that Arkansas' law to this effect likely violated the First Amendment. "Requiring adult users to produce state-approved documentation to prove their age and/or submit to biometric age-verification testing imposes significant burdens on adult access to constitutionally protected speech," wrote Judge Timothy Brooks in his decision. Furthermore, "a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."
In September, a federal court in California halted enforcement of the state's "Age-Appropriate Design Code" (CAADCA), in another case where the state tried to argue that the rules didn't regulate speech but conduct—collecting and using data. Among other things, implementation of the code would have required that tech companies use "age estimation" techniques that would be invasive to all users' privacy or else treat all users as children.
Alas, these rulings don't seem to have dampened enthusiasm for this sort of legislation, however. So many states are now considering online age-check proposals that it's hard to keep track of them all.
Some of these—like bills under consideration in Georgia, Idaho, Indiana, Iowa, Kansas, Tennessee, and West Virginia—would require people to verify their ages before visiting sites featuring adult content such as pornography.
Others would require social media users to verify their ages, ban children from signing up for accounts, require parental consent for people under 18 or 16 years old, or set up specific social media features that couldn't be made available to minors. In the past several months, social media restrictions bills like these have been introduced in Florida, Iowa, New York, Pennsylvania, and Tennessee. Utah, which passed the first of these laws last year and is trying to get out of defending it in court, is also considering a revised version.
The Pennsylvania bill is particularly egregious. It would "require social media companies to monitor the chats of two or more minors on the platform and notify parents or legal guardians of flagged sensitive or graphic content," per a press release from the state's Democratic Caucus.
How many times will tech and civil liberties groups have to fight measures like these in court? I guess we're about to find out.
"This is the fourth ruling NetChoice has obtained, demonstrating that this law and others like it in California and Arkansas not only violate constitutional rights, but if enacted, would fail to achieve the state's goal of protecting kids online," said Chris Marchese, Director of the NetChoice Litigation Center, in an emailed statement. "We look forward to seeing these laws permanently struck down and online speech and privacy fully protected across America."
The post Kids Have First Amendment Rights Too, Federal Judge Reminds State Lawmakers appeared first on Reason.com.
]]>Judging from last week's oral arguments in Trump v. Anderson, the Supreme Court will reject the claim that he is disqualified from running for president under Section 3 of the 14th Amendment because he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. The only real question is which of several possible rationales will attract a majority of the justices.
Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, says: "No person shall be a Senator or Representative in Congress, or elector of 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 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 against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
In December, the Colorado Supreme Court ruled that Section 3 barred Trump from that state's presidential primary ballot. But the issue of how to interpret and apply Section 3 in the context of a presidential election raises a bunch of questions that courts had not previously addressed. The one that attracted the most attention during Thursday's oral arguments was whether states have the authority to enforce Section 3.
Justices Clarence Thomas and Brett Kavanaugh emphasized the lack of historical evidence that states can independently apply Section 3. Jason Murray, the lawyer representing the Colorado voters who challenged Trump's inclusion on the ballot, said he could offer just one example: In 1868, John H. Christy was elected as a Georgia congressman, but Rufus Bullock, the state's Republican governor, concluded that Christy was disqualified under Section 3 and instead certified his opponent, John Wimpy, as the winner. A House committee later found that Wimpy also was disqualified because he had served in the Confederate army, and neither man was seated.
Murray said "it's not surprising that there are few examples" because the election process was different back then: Since voters either cast a ballot for a party or wrote in a candidate's name, "there wouldn't have been a process for determining before an election whether a candidate was qualified." But Thomas was unsatisfied with that explanation. Since "there were a plethora of Confederates still around" in the 1870s, he said, there should "at least be a few examples of national candidates being disqualified if your reading is correct."
Kavanaugh echoed Thomas' point, noting that the power Colorado is asserting had been "dormant for 155 years." The year after the 14th Amendment was ratified, he noted, Chief Justice Salmon P. Chase, acting as the circuit justice for Virginia, ruled that Section 3 had to be implemented via the congressional action authorized by Section 5 of the 14th Amendment. That means "Congress has the authority here, not the states," Kavanaugh said. And in 1870, Congress approved the Enforcement Act, which aimed to implement the 14th Amendment by protecting voting rights. "There's no history contrary in that period," Kavanaugh said, and "as Justice Thomas pointed out, there's no history contrary in all the years leading up to this of states exercising such authority." That suggests, he said, "a settled understanding" that Chase "was essentially right."
Chief Justice John Roberts noted that "the whole point of the 14th Amendment was to restrict state power." The amendment says states may not "abridge the privileges or immunities of citizens," "deprive any person of life, liberty, or property, without due process of law," or deny anyone "the equal protection of the laws." And Section 5 says "Congress shall have the power to enforce this article by appropriate legislation." Given the wording and aims of the 14th Amendment, Roberts said, "wouldn't that be the last place that you'd look for authorization for the states, including Confederate states" to regulate "the presidential election process" by deciding which candidates are disqualified under Section 3? That position, he suggested, is "at war with the whole thrust of the 14th Amendment and very ahistorical."
Justice Elena Kagan also was uncomfortable with the idea that "a single state should decide who gets to be president of the United States." The question of "whether a former president is disqualified for insurrection to be president again," she said, "sounds awfully national to me," which suggests that "whatever means there are to enforce it" would "have to be federal, national means."
Justice Amy Coney Barrett shared Kagan's concern. "You say that we have to review Colorado's factual record with 'clear error' as the standard of review," she told Murray. "So we would be stuck….We're stuck with that record." The deference that approach would require, Barrett said, underlines "this point that Justice Kagan was making" that "it just doesn't seem like a state call."
Similarly, Justice Samuel Alito worried about "a cascading effect" in which "the decision by a single judge whose factual findings are given deference, maybe an elected trial judge, would have potentially an enormous effect on the candidates who run for president across the country." Roberts raised the possibility that "a goodly number of states" might decide to reject Democratic as well as Republican candidates, meaning that "it'll come down to just a handful of states that are going to decide the presidential election," which is "a pretty daunting consequence."
Justice Ketanji Brown Jackson wondered whether the presidency qualifies as "an office…under the United States" within the meaning of Section 3. In the part of Section 3 that refers to offices from which insurrectionists are barred, Justice Ketanji Brown Jackson noted, "you have a list, and 'president' is not on it." She suggested it was unlikely that the Framers would have "smuggled" that "high and significant and important office" via a "catch-all phrase." Regarding the question of which prior office holders are covered by Section 3, Justice Neil Gorsuch noted that Article II charges the president with commissioning "all the Officers of the United States," which suggests that category does not include the president.*
By contrast, the question of whether the January 6 riot qualified as an "insurrection" and whether Trump "engaged in" it barely came up. "For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence," Jonathan Mitchell, the lawyer representing Trump, said in response to a question from Jackson. "This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection as that term is used in Section 3."
Murray, by contrast, opened his argument by placing Trump at the center of an insurrection. "We are here because, for the first time since the War of 1812, our nation's Capitol came under violent assault," he said. "For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office."
But that was pretty much it on the subject, aside from Kavanaugh's allusion to the fact that Trump, despite facing numerous criminal charges, was never charged with insurrection under 18 USC 2383. In addition to a possible prison sentence of up to 10 years, a conviction under that statute makes the defendant "incapable of holding any office under the United States." If the concern is that "insurrectionists should not be able to hold federal office," Kavanaugh told Murray, "there is a tool to ensure that that does not happen—namely, federal prosecution of insurrectionists."
*CORRECTION: This paragraph has been revised to clarify the parts of Section 3 that Jackson and Gorsuch were discussing.
The post SCOTUS Is Troubled by the Claim That States Can Disqualify Trump From the Election As an Insurrectionist appeared first on Reason.com.
]]>Since last fall, when our article The Sweep and Force of Section Three was accepted for publication by the University of Pennsylvania Law Review and first posted on SSRN, we have received further comments and suggestions about the draft and taken them into consideration as we have gone through the editing process. As noted at the outset of this series, none of these comments has led us to reconsider and change our core substantive propositions in a major way. As the article goes to press in the next few weeks, it remains very close in substance to the versions from last fall. (We are grateful for all the comments and suggestions, and especially thank all who identified errors in the manuscript.)
We have made just one more meaningful substantive change since September, which we wish to note publicly before the article is published. Though the article is set to appear in print sometime this month, it might not beat the Supreme Court's decision in Trump v. Anderson to press. Indeed, it is a small irony that even though our article was written and posted before these lawsuits were filed (and with no contemplation of immediate litigation) the Supreme Court might nonetheless win the race to publication, leaving some aspects of our article potentially overtaken by events. (We would strongly resist, however, any notion that a law review article becomes "moot" in consequence of a Supreme Court decision! Our views remain our views, and remain correct, or not, whether the Supreme Court embraces them, or not.)
At all events, if we do not mention a substantive change in the content of the article now, nobody might ever notice it. (Or, equally troubling, people might notice and think we surreptitiously altered the manuscript, just before publication, to take account of the Court's decision.)
The change occurs beginning in the place of the draft that occupies pages 32-33 of the version now posted on SSRN. We are discussing the various situations in which different governmental actors might possess duties or powers that provide occasion for application of Section Three as a legal rule. In the course of considering certain "Special Situations" (p. 29), we consider who all might have authority to enforce Section Three with respect to the constitutional ineligibility of an individual for the office of President of the United States. We argue that state election officials, courts, and presidential electors all have the responsibility to faithfully apply Section Three's constitutional disqualification rule, each within the sphere of its respective powers and duties under state or federal law.
We then turn to this question: Does the Twelfth Amendment (and relevant federal law), by providing for a joint session of Congress in which the votes of electors for President and Vice President, transmitted sealed to the seat of government, are then opened and counted, implicitly confer upon Congress authority not to count votes cast for a candidate who is constitutionally ineligible by virtue of Section Three of the Fourteenth Amendment.
In the version of the article posted on SSRN, we stated categorically that the answer was No: Congress possesses no power to reject on substantive grounds votes actually cast by electors (as opposed to a power to determine the authenticity of the submitted votes; that is, whether the votes to be counted were actually the votes cast by the electors of the state).
While we have not changed our ultimate conclusion – we still believe that the better answer is that Congress currently lacks a substantive power to evaluate the propriety of votes cast by electors – we have changed the level of certainty with which we express this conclusion. And we have also set forth at greater length the competing arguments on both sides. We have become persuaded by many discussions that the argument for an implied power of the joint session of Congress to decline to count electoral votes cast for a constitutionally disqualified candidate is at least plausible, even though we ultimately disagree with it.
Here is how the text of our article now reads on this point, as scheduled for publication sometime very soon. (We have omitted the footnotes):
If the voters and presidential electors do select a constitutionally disqualified candidate for the Presidency, does Congress have the power –perhaps even the duty – to reject such a candidate when the votes of electors are counted in joint session called for by the Twelfth Amendment? This is an unsettled question and we are, candidly, not sure of the answer.
On the one hand, the text of the Twelfth Amendment does not in terms confer a power on the joint session of Congress to judge the propriety, legal or otherwise, of the votes cast by electors. The responsibility to count the votes cast is not cast in terms of a power to judge the validity of such votes. Indeed, even the role of counting is formulated in a (very) passive voice: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." This is hardly the language of affirmative power to judge, evaluate, or decide. It contrasts rather sharply with the Article I power of each house of Congress to "Judge of the Elections, Returns, and Qualifications" of "its own Members." Further, the Twelfth Amendment specifically limits Congress's role in selection of the President to the power of the House of Representatives to "choose immediately, by ballot, the President," from the three persons receiving the highest number of votes, only "if no person have such majority [of the votes of the whole number of Electors appointed]." To the extent a power to judge the constitutional validity of votes submitted by electors might verge on a practical power of the joint session to select the President be selective counting of votes, it subtly infringes on the Twelfth Amendment's constitutional design.
On the other hand, perhaps such a power to enforce Section Three's disqualification can be inferred from constitutional structure and history. The argument would go like this. Because Section Three is binding on all officials exercising powers or duties that involve questions of election to, appointment to, or continuance in office of persons who are constitutionally disqualified by Section Three from holding such positions. A case can be made that the logic of this principle—buttressed by the obligation of the oath to the Constitution sworn by the persons exercising duties affected by Section Three—implies that Congress, sitting in joint session pursuant to the Twelfth Amendment, has a constitutional responsibility to refuse to accede to the election of a person for president who is constitutionally disqualified from holding that office. Moreover, another provision of the Constitution, the Twentieth Amendment, is explicit that a disqualified candidate does not become president, even if he has the most votes. It states that at "the time fixed for the beginning of [the President's] term," "if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." The language thus specifically confirms the possibility of a failure to qualify and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President–unless Congress chooses (by supermajority votes) to remove Section Three's disability. If this prohibition is not enforced during the counting of the electoral votes in joint session, then when would it be enforced, and by whom?
Moreover, imagine the situation where a presidential candidate receiving a clear majority of votes cast of electors engaged in plainly constitutionally disqualifying acts of insurrection or rebellion between the time when electors cast their votes and the time for beginning his or her term. Again, and even more emphatically, if Congress cannot determine that such a person cannot constitutionally become President, who can? Must Congress nonetheless pliantly accede to the election of such person as President? (Or, as actually happened in 1872, what if a presidential candidate has died between election day and the day prescribed by law for votes of electors to be counted? Must votes for a dead man to be president be counted? In 1872, Congress said no, refusing to count cast votes for Democratic presidential candidate Horace Greeley because he had died between election day and the meeting of the electors.)
Finally, Congress has enacted two statutes, the Electoral Count Act and the Electoral Count Reform Act. These statutes have been on the books for 137 years and assume that Congress has some role, albeit limited, in judging the validity of electoral votes. They would potentially implicate Congress's powers under the "necessary and proper" clause as well. Even if these statutes are constitutional—that is, even if Congress does have a substantive power to reject votes for a disqualified candidate—there is an additional question whether the current statutes allow it to do so. (This turns on the meaning of the phrase "regularly given," and we take no position on it here.)
On balance, we are inclined to think the stronger argument is that neither Congress nor the Vice President (acting as President of the Senate) has the authority to evaluate the decisions or actions of the electors themselves (as opposed to perhaps determining the authenticity of submitted votes).
But we confess to some uncertainty here. If the Constitution does not supply a clear, determinate answer, the various branches of government are constitutionally entitled each to exercise their own independent constitutional judgments on the question. Thus, even if state election officials, voters, electors, and the judiciary all support (or acquiesce to) the election of a president barred from holding office by Section Three, there is a serious argument that Congress might act as a last constitutional backstop against the installation of such a constitutionally disqualified person in the presidency.
We think the main effect of this revision is simply not to overstate the certainty of our assertion that the Twelfth Amendment does not give Congress power to judge the substantive propriety of votes cast by electors. The issue is more difficult than we initially thought, and there may be separation-of-powers implications that need to be more fully explored.
* * *
With that, we conclude this series of essays responding to objections made against our interpretation of Section Three, whether on policy or legal grounds. A brief recap (with links to each prior essay):
Our first essay introduced the series, and the reasons for it.
Our second essay responded to the objection that enforcing Section Three would interfere with "democracy."
Our third essay responded to the objection that enforcing Section Three would be too "dangerous."
Our fourth essay responded to the argument that federal criminal prosecution and conviction for insurrection under 18 U.S.C. §2383, is somehow a prerequisite to Section Three's constitutional rule of disqualification.
Our fifth and sixth essays addressed the misuses of legislative history employed by some critics and advocates to suggest that Section Three might not be self-executing, might not apply to the office of President of the United States, or might not apply to insurrections after the Civil War.
Our seventh essay discussed why Section Three issues are not nonjusticiable "political questions."
Our eighth essay addressed the "off ramp" argument that a legally disqualified candidate must nonetheless be placed on the ballot, state law notwithstanding, because Congress theoretically might one day relieve the disability.
Our ninth essay discussed why, in the Trump v. Anderson case, it is significant that there has been a full trial of disputed issues of fact, resulting in findings of fact by a trier of fact.
And in this, our final essay in this series, we explained our current thinking about Congress's powers under the Twelfth Amendment and federal law, acknowledging a greater degree of uncertainty than our posted draft had previously expressed.
The post Is Congress A "Backstop"? appeared first on Reason.com.
]]>Today, the Supreme Court will hold oral arguments in Trump v. Anderson, the case addressing whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Co-blogger Josh Blackman and I discussed and debated the case for almost an hour on C-SPAN's Washington Journal program. As regular readers know, Josh believes the Court should rule Trump is not disqualified, while I think they should rule that he is.
The video is available here. If I can figure out a way to embed it in this post, I will do so. But so far, I have not been able to.
My amicus brief in the case, which argues that disqualification under Section 3 does not require a prior criminal conviction, is available here. I have previously written about other issues related to the Section 3 litigation, most extensively here and here.
Josh's amicus brief (written on behalf of Prof. Seth Barrett Tillman) is available here.
The post C-SPAN Washington Journal Appearance on the Trump Section 3 Case appeared first on Reason.com.
]]>A question regularly raised about our interpretation and explication of Section Three is how its rules might bear on various different factual patterns, real or imagined. Does conduct of a particular description, in a specific set of circumstances, on its own unique facts, constitutes having "engaged in" "insurrection or rebellion" within the meaning of the Constitution? What about this situation? What about this one?
Accepting as given our account of Section Three's terms – "insurrection," "rebellion," "engaged in," "aid or comfort to" – folks frequently ask how these legal definitions and standards apply to a variety of real or hypothesized situations. Our answer is that the facts matter. Further, the determination of what the facts are is by and large committed to the legal process – the record amassed at trial and the ensuing judgment of the trier of fact.
As we put it in our forthcoming article, The Force and Sweep of Section Three, it "is not for us to say who all is disqualified by virtue of Section Three's constitutional rule." (Ms. at 126).
That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country. Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Constitution's legal standard to the facts before them in a given instance.
The point is worth repeating, sharpening, and emphasizing: whether and precisely how the legal standards of Section Three apply in particular cases are matters to be determined in the usual manner that questions of how the law applies to a particular set of facts are determined. They are decided by the usual legal processes of a civil trial in which a trier of fact – a judge or a jury, depending on the type of case and in some circumstances the choices of the parties – determines what the true facts are, when there is a genuine dispute over facts material to how the relevant legal standard applies.
In Trump v. Anderson, the Section Three case pending before the Supreme Court, it is important that there has been a full five-day trial of the facts in the Colorado courts. That trial process culminated in detailed findings of fact, made by a Colorado state court judge sitting as the trier of fact. The Colorado Supreme Court held that the trial complied with the requirements of Colorado state law and provided due process of law.
The parties disagreed as to exactly what occurred; what the true facts were; whether Donald Trump engaged in specific intentional conduct; what his motives, signals, behavior, and intentions were; what he did or failed to do; whether Trump's statements to supporters genuinely sought to encourage "peaceful and patriotic protest and respect for law and order" (as his brief in the U.S. Supreme Court asserts (at p. 33)) or were designed to signal other messages and objectives; and many other factual matters of this type. The trial court judge heard extensive factual testimony and argument over these matters of disputed fact, assessed the evidence, and made detailed findings of fact concerning what the evidence led her to conclude about these matters.
This, we think, provides great focus to the legal questions at issue before the Supreme Court. In light of the record before the trial court and the court's findings, it is hard to say that Trump did not engage in the conduct alleged; or that he lacked knowledge or purpose. The trial judge assessed the evidence and reached certain conclusions of fact. Even if one might be able to imagine a different story about the facts, the evidence presented to the court, and the factfinder's conclusions about them, establish the relevant boundaries of what is fairly open to dispute as a matter of legal process. The ultimate questions of constitutional law – whether Section Three's rule remains legally operative; whether Section Three has immediate self-executing force by virtue of its enactment as part of the Fourteenth Amendment; the meaning of the terms "insurrection or rebellion" and "engaged in" and other terms contained in Section Three; and whether the conduct that Trump engaged in (established as a matter of fact) falls within the legal meaning of "insurrection or rebellion" under Section Three – remain questions of law for the Court. But the subsidiary, antecedent questions of fact – whether Trump did (and failed to do) what he is alleged to have done (and failed to do) – have already been determined. They were decided by a trial.
In other words, questions of "law" are for judges to decide, and appellate courts review the legal rulings of lower courts for their legal correctness, typically without deference to the legal ruling of the lower court. The law is the law. But questions of "fact" are for the jury or the judge, sitting as the "trier of fact," to decide, and appellate courts are generally obliged to accept the determinations of the trier of fact on questions of fact. This includes such matters as which side in a dispute is believed to be telling the truth; which side of a dispute the evidence better or more persuasively supports; which expert's testimony is to be credited as a more reliable assessment; what actually occurred as a matter of fact; even what the motives or purposes of a party were. The task of the trier of fact in our legal system is to resolve factual disputes where there is uncertainty or disagreement as to what the true facts are.
To be sure, there are many cases in between these two concepts, where the characterization of a particular question as being one of "fact" versus "law" may be uncertain or arguable. Often an issue involves a "mixed" question of law and fact. Further, the Supreme Court has also described a special rule in some areas of constitutional law (such as First Amendment limitations on liability for defamation) where an appellate court should make an "independent examination of the whole record" to assure that the Constitution have been faithfully applied. Even in such situations, however, a reviewing court typically will not "second-guess the [trial judge] on the credibility of witnesses." And importantly, any review remains bounded by the record amassed at trial.
* * *
Thus while many people may have their own instincts about, or interpretations of, the events leading up to and on January 6, for legal purposes it is essential to start with the trial court's extensive and detailed findings of fact.
The trial court examined at length the language and context of President Trump's speech, and found, as facts, that Trump's language calling on his supporters to "fight" were, in context, "literal calls to violence" and would be understood by his audience that way, and that his statements purporting to negate such an intention "were insincere and existed to obfuscate and create plausible deniability." (Trial court decision at ¶¶84, 85.) The court found that Trump engaged in an extended pattern of deliberately false statements alleging widespread vote fraud, ¶¶87-99, and that Trump "knew his claims of voter fraud were false." ¶100. The court found that extremist groups and individuals supporting Trump understood Trump's statements as endorsements of political violence to overturn the result of the election. ¶¶105, 109. The court found specifically that "on December 19, 2020, when Trump tweeted 'Statistically impossible to have lost the 2020 Election. Big Protest in D.C. on January 6. Be there, will be wild!' he knew he had lost the election, and he knew there was no basis for Vice President Pence to reject the States' lawfully certified electors." ¶115. The court found that Trump sought to focus his supporters' anger over what Trump was saying was a stolen election on the January 6, 2021 session of Congress. "The message he sent was that to save democracy, his supporters needed to stop the January 6, 2021 joint session." ¶116. The court found as facts that Trump continued to stoke supporters' anger over false claims of widespread election fraud between December 19 and January 6, that federal law enforcement agencies expressed grave concern that the assembled crowd would be disposed to violence, and that Trump did not advise law enforcement agencies of his intention "to instruct the crowd to march to the Capitol" and that, as a result, law enforcement was not prepared for the crowd that descended on the Capitol. ¶¶117-125.
The court also found as fact that "prior to the January 6, 2021 rally, Trump knew his supporters were angry and prepared to use violence to 'stop the steal' including physically preventing Vice President Pence from certifying the election. In fact, Trump did everything in his power to fuel that anger with claims he knew were false about having won the election and with claims he knew were false that Vice President Pence could hand him the election." ¶128. The court found that many of the attendees at Trump's speech at the Ellipse on January 6 possessed knives, pepper spray, tasers, and body armor, that some of the attendees were armed, and that Trump was aware of the risk of violence and that the crowd was angry and armed. ¶¶129-135. The court collected a large number of statements in Trump's speech at the Ellipse on January 6, ¶135, and found that Trump called on the crowd to march to the Capitol, and that crowd reacted with shouted statements of "storm the Capitol!", "invade the Capitol building!", and "take the Capitol!". ¶141. (Among many other things, the trial court also credited the expert testimony of Professor Peter Simi on political violence and extremism, and agreed with Professor Simi's analysis that Trump's relationship and communications with supporters and with extremist groups had generated a shared understanding about the violent nature of some of his otherwise potentially ambiguous statements. (¶¶61-83, 142))
The trial court's findings included both the effects of Trump's speech on the crowd and Trump's intentions with respect to the subsequent violent assault on the Capitol: "The court finds that Trump's Ellipse speech incited imminent lawless violence." ¶144. Further, in the overall context of Trump's false claims of election fraud and other statements concerning the need to save democracy and his encouragement of political violence by his supporters, "The Court finds that the call to 'fight' and 'fight like hell' was intended as, and was understood by a portion of the crowd as, a call to arms. The Court further finds, based on the testimony and documentary evidence presented, that Trump's conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the Capitol." ¶145. The trial court made extensive findings of fact about the actions of the mob in attacking the Capitol, and the series of events that transpired. ¶¶146-160, 162-168. The court found as fact that "by sending otherwise non-violent protesters to the Capitol thereby increasing the mob's numbers through his actions and words, Trump materially aided the attack on the Capitol." ¶161.
The trial court found that, after Trump was aware of the attack on the Capitol, of Vice President Pence's public statement that he would not refuse to count certified votes of electors, and of members of the crowd chanting "hang Mike Pence," Trump tweeted at 2:24 P.M. that "'Mike Pence did not have the courage to do what should have been done to protect our country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked previously to certify. USA demands the truth!'" ¶170. The trial court further held that "Trump's 2:24 p.m. tweet caused further violence at the Capitol." ¶173. The trial court made numerous findings of fact concerning the violence that occurred in the course of the assault on the Capitol. ¶¶174-179.
The court found that Trump sent tweets at 2:35 p.m. and 3:13 p.m. encouraging the mob to "remain peaceful" and "[s]tay peaceful" and not harm law enforcement officers, but that neither of these messages "condemned the ongoing violence or told the mob to retreat." ¶178. The court found that aside from these three tweets (at 2:24, 2:35, and 3:13), "Trump did nothing between being informed of the attack at 1:21 p.m. and 4:17 p.m." to intervene to stop the attack, despite pleas from others that he do so. ¶180. Instead, Trump called Senators and urged them to delay the vote certification, responded to concerns expressed that those involved in the attack were saying they wished to "hang Mike Pence" by saying that Pence perhaps deserved to be hanged, and responded to Republican House Leader McCarthy's pleas that Trump call on his supporters to withdraw from the Capitol by saying "'Well, Kevin, I guess these people are more upset about the election than you are.'" ¶180.
The trial court made extensive findings of fact concerning National Guard and Homeland Security resources and personnel available to President Trump that could have been deployed by Trump after learning of the attack and found that there was no evidence Trump took any steps to deploy such resources. ¶¶ 181-184. The court found that Trump "had the authority to call in reinforcements on January 6, 2021, but chose not to exercise it thereby recklessly endangering the lives of law enforcement, Congress, and the attackers on January 6, 2021." ¶185.
The trial court found that at 4:17 p.m. Trump "called off the attack" in a video message. The court quoted the message at length and found that, in the message, Trump "endorsed the actions of the mob in trying to stop the peaceful transfer of power." ¶187. The message "did not condemn the mob but instead sympathized with them and praised them" before instructing them to go home, "emphasizing to the mob that this was an order to be followed." Id. The trial court found that a later message from Trump at 6:01 p.m. "justified violence" by calling the attackers "'patriots'" and affirming "the falsehood that justified the attack in the first place," that Trump had won a landslide victory and that the election had been stolen from him. ¶¶189-190. The court found that this constituted "further proof of Trump's intent to disrupt the election certification on January 6, 2021." ¶192.
With respect to Trump's motive and state of mind, the court found that the evidence further supported the conclusion that "Trump endorsed and intended the actions of the mob on January 6, 2021." ¶193. In the section of its opinion setting forth conclusions of law, the trial court, drawing on its factual findings, stated as follows:
The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.
When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence. The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it, and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.
¶¶293, 294
* * *
In light of the trial record and these findings of fact, the assertions made in Trump's brief (p.33) that Trump "called for peaceful and patriotic protest and respect for law and order" and that "nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as 'insurrection'" cannot be taken at face value. They are contrary to the facts found at trial based on the record amassed at trial, and it would be extraordinary for the Supreme Court to unilaterally impose its own factual conclusions at this juncture.
In our forthcoming article, The Sweep and Force of Section Three, we were careful to qualify our conclusion that Trump's conduct falls within the description of Section Three, because there had not yet been any trial and Trump had not had an opportunity to present evidence rebutting the public record and have that evidence assessed by a trier of fact. We say in that article that "[t]he case for disqualification is strong" that there "is abundant evidence" that Trump set out to overthrow the result of the 2020 election by force or fraud, in a variety of ways and that, "[i]f the public record is accurate" that "the case is not even close" that Trump clearly "'engaged in' 'insurrection or rebellion' and gave 'aid or comfort' to others engaging in such conduct, within the original meaning of Section Three of the Fourteenth Amendment" (Ms. at 118-121).
In light of the record presented, and the facts found, at trial, there is little need for qualification on this score. Based on the factual record established in the Trump v. Anderson litigation and the findings of the trier of fact, the conclusion that Trump engaged in the conduct for which Section Three imposes a constitutional disqualification from office should be taken as firmly established.
The post The Facts Matter, Trials Matter, The Record Matters appeared first on Reason.com.
]]>Another quasi-jurisdictional objection that has been made to the state ballot access litigation in particular is the argument that it is too soon to decide whether Donald Trump is eligible to the Presidency. Though it is not always labeled this way, this amounts to a sort of "ripeness" argument – that the Section Three question is simply not ripe for decision at this stage and in this posture. The timing argument was made at length in an early amicus brief by Senator Steve Daines and the National Republican Senatorial Committee, and has since been picked up in part by Trump's merits brief.
The core of the argument is that Trump cannot be excluded from a state ballot (whether in the primary or general election): (A) because Section Three only prohibits "hold[ing] . . . office," not running for office, and (B) because Congress has the power, by a two-thirds vote of both houses, to remove the Section Three disability, it is possible that by the time of office-holding (or even later), Donald Trump might become eligible to hold office, even if he is currently ineligible to hold office because of having engaged in insurrection. (Indeed, Trump's reply brief argues (at 22-23) that the clock should be held open "between now and January 20, 2029"!)
But this objection misunderstands the nature of ballot access as well as the nature of Section Three.
To start off, it is true that Section Three does not of its own force regulate ballot access. It applies to "hold[ing] . . . office," not running for office. But so what? As we discuss at length in our original manuscript, The Sweep and Force of Section Three, Section Three simply provides a rule of decision that governs anybody whose official duties call upon them to make decisions about eligibility. That can include election officials responsible for creating, distributing, and counting ballots, if state law so provides. And according to the Colorado Supreme Court, the authoritative expositor of Colorado law, Colorado's legislature has provided for the exclusion from the presidential primary ballot of those who are not eligible to serve as President. In other words, Section Three makes clear that Trump cannot hold the office of President. And state law provides that those who cannot hold the office of President should not be on the ballot as presidential candidates.
This state authority is well-established. Article II of the Constitution says that presidential electors shall be appointed "in such Manner as the Legislature thereof may direct." And cases have uncontroversially held, for example, that a state may lawfully a exclude a 27-year-old from the presidential primary ballot, and may lawfully exclude a non-natural-born citizen from the general presidential election ballot. Insurrectionists disqualified by Section Three are no different.
Proponents of this argument claim that Section Three is different because of the amnesty clause: "But Congress may by a vote of two-thirds of each House, remove such disability." This is alleged to make it uncertain whether Trump or anybody else covered by Section Three will still be disqualified in November or January. But what difference does it make? Trump, and others covered by Section Three are disqualified now. (Congress can chose to "remove such disability" only because that disability already exists – here and now.)
Similarly, in theory the 27-year-old and the non-natural-born citizen candidates might also become eligible, if Congress were to propose and the states were to ratify a constitutional amendment. But it has never been seriously suggested that we should not enforce these legal requirements now because they might change in the future. Indeed, in Trump's reply brief he concedes (in n.36) that these questions "obviously must be assessed under the Constitution as it currently exists." Under the Constitution as it currently exists, Trump is not eligible to "hold any office, civil or military, under the United States, or under any State." Now is as good a time as any to say so.
With respect, what seems to have given this argument "legs," in our view, is not so much its dubious legal merits as its supposed political expediency. The argument is seen to offer the Court an "off ramp" that would allow it to reverse the Colorado Supreme Court, ruling in favor of Trump, but without accepting any of his various (unacceptable) arguments about Section Three. Somehow, this is thought to be a politically preferable alternative to a straightforward affirmance or reversal on the merits.
Our specialty is law, not politics, but the political merits of this approach are hard for us to understand. If the Court rules that it is too soon to adjudicate Trump's qualifications for the office he seeks, when will it be time? In November, when most presidential election votes are cast? In December, when the electors meet? In January when the electoral votes are counted in joint session? On Inauguration Day? Each of these options seems riskier and riskier. Far from a convenient "off ramp" (or leisurely rest stop), it looks to us like a formula for a chain-reaction massive multi-car pileup. It would seem safer to us to keep one's eyes on the road.
Law students quickly learn that procrastinating their seminar papers until the day before the due date does not make them any easier to write. And it does nobody any favors for a major contested election to proceed under a cloud of uncertainty. Donald Trump wants to be the President of the United States in 2025. Others believe that Section Three of the Constitution forbids him from holding that office. There is no logical or legal reason not to determine and decide who is right – before the heat of the general election campaign, if possible – rather than waiting for some imagined future day when the questions will somehow become easier or go away.
The post The Objection That It Is Too Soon To Adjudicate Trump's Qualifications appeared first on Reason.com.
]]>Are questions of the proper legal interpretation and application of Section Three of the Fourteenth Amendment nonjusticiable "political questions" – that is, questions that federal courts lack legal power to decide?
The simple answer is no.
The Constitution's text does not commit Section Three issues to the political judgment and discretion of the political branches of the national government. Questions concerning the legal meaning and application of Section Three involve standard and familiar questions of interpretation of the text, structure, and history of the Constitution, a task commonly engaged in by courts. Nothing about interpreting Section Three suggests an absence of standards for courts to employ in performing this task. Nothing about interpreting Section Three requires courts to make political policy judgments inappropriate for courts. Nothing about judicial resolution of Section Three questions implies a lack of respect due a coordinate branch of government, would disrupt a settled and vital political decision of government previously made, or somehow create an unacceptable "embarrassment" of multiple conflicting pronouncements by the national government. In short, none of the factors the courts have identified as relevant renders Section Three issues nonjusticiable political questions.
We thought this point sufficiently clear that we addressed it only briefly, near the end of our forthcoming article, The Sweep and Force of Section Three:
[I]t would be wrong for courts to refuse to decide cases, otherwise lawfully within their jurisdiction, concerning Section Three on the pretense that such matters are "political questions." Outside of certain exercises of power to exclude, expel, or impeach and try, committed to each House's judgment, Section Three is enforceable by the judiciary as well as by other officials. Section Three's terms embody rules and standards, enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial. (Ms. at 125).
We made the same point in a footnote, earlier in the article, in the course of discussing the circumstances in which each house of Congress possesses unique and arguably final authority under Article I, Section 5 of the Constitution to apply Section Three's disqualification rules to exclude or expel members of that house. Aside from those circumstances, Section Three issues properly can be decided by courts:
We emphasize that questions of interpretation and application of Section Three are not in general "political questions" that cannot be decided by federal courts, simply because they have political consequences. Where the Constitution supplies a rule, and the rule's application is not committed by the text of the Constitution to the judgment of one of the political branches, the courts are not disabled from deciding a case based on that rule. We simply think that the provision committing to each house the power be the "Judge" of the "Elections, Returns, and Qualifications" of its own Members does not permit judicial review of determinations of each house that properly fall within these constitutional categories." (Ms. at 30, n. 95.)
Some federal courts, however, and even some state courts (where the political question doctrine's applicability is more disputed), have issued confused and confusing opinions on the doctrine in Section Three cases. At the risk of taxing readers' patience, we explain here a bit more fully why Section Three issues are not political questions. We note that in the Trump v. Anderson litigation, both the Colorado District and the Colorado Supreme Court found Section Three to be justiciable and Trump has not pressed a political question argument in his Supreme Court merits briefs.
The standard formulation of the Court's "political question" doctrine comes from the classic case of Baker v. Carr:
Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
We have added the bracketed numbering of the various Baker v. Carr factors.)
More recent decisions of the Court have emphasized (almost to the point of exclusion of the others) the first two factors: whether the Constitution contains a "textually demonstrable constitutional commitment" of political or policy discretion concerning a matter to Congress or the President (such as an impeachment trial, as in Walter Nixon v. United States) or whether an issue lacks "judicially discoverable and manageable standards" to apply as law (such as political gerrymandering claims, as in Rucho v. Common Cause). The Court has also emphasized that a federal court has a duty to decide cases and issues properly it, even ones it "'would gladly avoid,'" and that courts "cannot avoid their responsibility merely 'because the issues have political implications.'"
Questions involving the meaning of Section Three are not political questions under these criteria. Section Three's application is not assigned by any provision of the Constitution to the exclusive political power or discretion of one of the political branches of the national government (other than, as noted, in the context of other congressional powers such as each house's power to exclude and expel its own members). This is especially plain in the context of presidential elections. Article II, section one of the Constitution specifically provides that states –state legislatures enacting state laws; and state courts and election officials in faithfully applying such laws – are assigned the constitutional power to choose the "Manner" of selecting their state's allotted number of electors for President and Vice President. The text does not explicitly refer to any Congressional power over presidential elections, let alone provide any "textually demonstrable constitutional commitment" of authority in such matters to Congress's exclusive political judgment.
To be sure, Congress, by two-thirds majority vote of both houses, can remove a disqualification from office imposed by the legal operation of Section Three's first sentence. But this scarcely assigns all matters of Section Three interpretation and application into Congress's hands. Quite the reverse: Where Congress is given exclusive political power and discretion in such matters – the power to remove disqualifications that arise in consequence of Section Three's first sentence – the text says so. Plainly, no such discretion is granted Congress as to whether a disqualification exists in the first place.
And so on. Congress's power under Section Five of the amendment "to enforce" Section Three (and other parts of the amendment) does not create a political question, just as Congress other enumerated powers (the Commerce Clause, etc.) do not. The Twelfth Amendment, which provides for a joint session of Congress where the votes of electors "shall then be counted," does not constitute a textual commitment of Section Three questions to Congress. Indeed, it is not clear that its terms give Congress any substantive power to judge the propriety or constitutionality of votes submitted by electors.
As we explain in our article, multiple actors have duties and responsibilities that may involve interpretation and application of Section Three (Ms. at pp. 22-35). Each such actor or body possesses the duty, and the authority, to faithfully interpret and apply the Constitution within the sphere of its responsibilities. This includes state and federal courts, which have adjudicated Section Three questions in the past and continue to do so. Nothing in the Constitution's text commits these issues to another branch in a fashion that excludes judicial authority.
Even more plainly, Section Three issues do not lack "judicially discernible and manageable standards" to apply as law. To the contrary, Section Three presents classic issues of legal interpretation that involve examination of "textual, structural, and historical evidence," as the Court put it in Zivotofsky. Much of our article is devoted precisely to examining such evidence: evidence that the text enacts a self-executing legal rule of direct effect; textual, linguistic, historical, and precedential evidence of the original contemporaneous public linguistic meaning of Section Three's terms "insurrection or rebellion," "engaged in," "aid or comfort" and "officer of the United States, and so on." This is a familiar legal task. In the Court's words in Zivotofsky, "This is what courts do."
It is also what legal scholars do. As we have explained and defended at great length in our article (Ms. 61-111), Section Three presents questions of legal interpretation that are susceptible of judicial decision according to principled criteria of "originalist" legal analysis – consideration of textual, structural, and historical evidence. The words, terms, and phrases of Section Three are sweeping but reasonably clear: they are broad in their reach, but not particularly vague or opaque in their meaning. The meaning of what all constitutes "insurrection or rebellion" and what constitutes having "engaged in" such conduct is illuminated by examination of 1860s general and specialized dictionaries; by evidence of 1860s contemporaneous public and legal usage of such terms by President Lincoln, by Congress in enacting major pieces of legislation (including the "Ironclad Oath" and the Second Confiscation Act), and by the Supreme Court (including in The Prize Cases); by earlier usage in insurrection statutes and to describe earlier, familiar insurrections; and by evidence of congressional understanding and early practice. These are classic tools of originalist legal analysis for ascertaining the meaning of language employed in a constitutional text. Section Three does not lack for "judicially discoverable and manageable standards" and does not present issues that are nonjusticiable political questions on this ground.
As noted above, it does not appear that the political question doctrine extends beyond these two considerations – a textually demonstrable constitutional commitment of such matters to one of the political branches or a lack of judicially discoverable and manageable standards for resolving the issues in question. But even if it did, interpreting and applying Section Three does not implicate these other factors – it does not require a nonjudicial policy determination, does not implicate "unusual need for unquestioning adherence" to "a political decision already made," does not trigger unusual respect for or need to avoid the embarrassment of the other branches, and so on. Applying Section Three can be a constitutional question of significant consequence, yes, but as the Supreme Court has long made clear, federal courts have no freestanding power simply to decline to decide legal cases properly within their jurisdiction simply because they may be difficult, inconvenient, consequential, or unwelcome.
As we put it in one of the last paragraphs of The Sweep and Force of Section Three: "There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial." (Ms. at 125). To the contrary, all officials who swear an oath to support the Constitution have an obligation to do so, each within the sphere of his or her constitutional powers and duties:
No official should shrink from these duties. It would be wrong—indeed, arguably itself a breach of one's constitutional oath of office—to abandon one's responsibilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one's own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing and enforcing the Constitution's commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, resentment, opposition, or retaliation. The Constitution is not optional, and Section Three is not an optional part of the Constitution. (Ms at 125, emphasis added).
The post Section Three Is Not A "Political Question" appeared first on Reason.com.
]]>Earlier today we began discussing the use and misuse of constitutional legislative history in interpreting Section Three of the Fourteenth Amendment. We first set out some important general principles about the proper role, and limitations, of the use of legislative history as potentially probative, second-best evidence of constitutional textual meaning. Next, we discussed at length some serious mischaracterizations of portions of the legislative history of Section Three set forth in recent draft scholarship and essays by Professor Kurt Lash. In particular, Lash misportrays statements by Representative Thaddeus Stevens and by Senator Lyman Trumbull as if they denied that Section Three of the Fourteenth Amendment is a self-executing constitutional command, when they did not. We also despaired that this mistaken account has been adopted by others. This highlights one major concern about the use of constitutional legislative history: its capacity, if not done faithfully and carefully, to mislead and distort. This should be a general caution about its use, and one that we think has proven unfortunately true in Lash's discussion of the self-execution issue.
Today we take up some problems with Lash's use of constitutional legislative history, even where accurately recounted, in the course of legal analysis of the Constitution's text. Here, our point is not that the excavation and presentation of the legislative history itself is flawed. Rather, the legal analysis and conclusions thought to flow from that legislative history are unsound. Lash in our view makes several types of missteps in this regard, and the errors tend to compound one another.
First. Lash at several junctures treats evidence of the drafters' (believed) purposes, motivations, or immediate desired political consequences as if they necessarily constitute limitations on the range of the text's original linguistic meaning. As we wrote earlier, this mistakes the proper role of constitutional legislative history: to explicate the meaning of the text's words. As we have discussed, the legislative debates culminate in the enactment of an authoritative legal text, which sometimes is narrower and sometimes is broader than the "purposes" articulated by some of its drafters. The Constitution is a binding, authoritative legal text, not a collection of specific historical intentions or political goals. Where the rule specified in the text applies, it applies. It is not limited by evidence of subjective intentions of expectations.
Lash's treatment of the legislative history of Section Three departs from these premises at a number of points. He imputes – sometimes reasonably, as an historical matter – certain purposes to certain drafters of Section Three. This is not itself wrong. But Lash then assumes that any reading of the text that might extend its application beyond these supposedly limited historical purposes must therefore be considered "unclear" or "ambiguous." On this assumption, it is very difficult to understand any clear and general statements of law that apply beyond the immediate politics of the day.
For example: "The only thing that is clear about the text of Section Three is that it accomplished the only purposes Reconstruction-era Republicans cared about," Lash writes. These purposes ostensibly were limited to a concern to "prevent leading rebels from returning to Congress" or from being presidential electors or "receiving appointment to federal or state office." "All else," Lash concludes, must be considered "historically unclear or textually ambiguous." (P. 8). At other points, Lash ascribes to Section Three a narrow, historically-specific political purpose of some proponents to affix a "brand of treason" on rebels who supported secession and implies that this might suggest that Section Three is limited in its application to the Civil War situation. (Id. at 25, 44). From this Lash infers that it shaped both how "Trumbull viewed Section Three" and how "The ratifying public understood" Section Three as "targeting thousands of still-living leaders of the recent rebellion." (Id. at 57-58). "Beyond this, little else is clear," concludes Lash. (Id. at 57-58).
At one level, it is no big surprise that draftsmen of the Fourteenth Amendment had in view, and focused their public statements on, what was happening right then and there, in the immediate political situation of Reconstruction. But it is subtly misleading to suggest that this limits the meaning of the text, when the text does not itself contain a limitation to the Civil War but applies to "insurrection or rebellion" generally and to persons who have "engaged in" it in violation of a previously sworn oath to the Constitution. For instance, it has been said that the purpose of the Takings Clause of the Fifth Amendment was to ensure compensation when the military commandeered horses or other supplies from civilians during wartime. But that hardly makes it ambiguous whether the Takings Clause applies to non-horse property, or non-military takings.
Second. Lash at several points uses the absence of legislative history on a particular point – legislative silence, rather than statements – as if the absence of such legislative history somehow established that the text of Section Three must therefore be regarded as "ambiguous." For examples, Lash suggests (at 6) that the office of President of the United States might not be included in Section Three because "no scholar has identified a single example of a ratifier describing Section Three as including the office of the President," making similar inferences-from-silence about coverage of the Presidency throughout the piece (at 21, 31, 41). He makes a similar inference (at 61) from the silence of most people on the issue of self-execution.
These inferences are fundamentally unsound. Just as the Constitution consists of its text and not its legislative history, how much more is it the case that the Constitution does not consist of silence in its legislative history. Negative inferences from silences in legislative history are therefore especially unreliable as a rule. An exception might exist where a proposed reading of the text is so odd or extreme that, if that were actually the correct reading of the text, someone almost certainly would have mentioned it (a "dog-that-didn't-bark" inference). But unless silence in a particular setting shouts loudly and clearly, the absence of discussion in the legislative history, without more, establishes nothing. And interpreters must resist the temptation to assume that their own views are so obviously correct that all opposing views are in this category – thinking, I am so surely right, that if I were wrong, somebody would have said so! Sometimes nobody says anything because there is nothing to say and a point is regarded as obvious – it literally goes without saying; other times they may have limited time, or other concerns, or simply be thinking about something else. Most of the time, we know basically nothing about why nothing happened.
Third. Lash sometimes relies on the statements or positions of opponents of Section Three as persuasive evidence of the text's true meaning, or as at least demonstrating the text's supposed "ambiguity." Indeed, Lash uses dissents to establish textual ambiguity, even where the dissenting views were unrepresentative of the actions of the drafting or ratifying body and are demonstrably unsound readings of the text.
For example, Lash, in discussing the question of ratifiers' views on "whether Section Three applied to future insurrections," states (at 45) that "[v]ery few ratifiers specifically addressed" the question, but those who did "came to different conclusions" on this point. But Lash's chief evidence of supposed disagreement comes from the expressed views of opponents of ratification. Lash gives considerable attention to a "Minority Report authored by members of the Indiana Assembly" which "criticized Section Three because it applied only to the past rebellion." (Id. at 45.) Lash quotes the "Minority Report" as follows:
[Section Three] disfranchises all of that class of persons therein named, who "shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof," but denounces no penalties against those who may hereafter commit the same act. . . . It would be difficult, in our opinion, to frame a law more thoroughly the offspring of passion, and less in accordance with sound policy and statesmanship.
But to place such a provision as this in the Constitution – the organic law which is designed to last for ages, affecting, as it does, past offenses and offenders only, and containing no guarantees for the future, and that must become obsolete at the end of the present generation, is an act of folly that vengeance and not statesmanship could sanction.
(Id. at 45, quoting Indiana committee minority report.) Lash adds the further comment that it "is not clear" whether the majority of the Indiana Assembly "disagreed with the minority's understanding or whether the majority had no objection to a clause addressing only the past rebellion (or whether they found the matter not worth defeating the entire proposal regardless of the meaning of Section Three)." Ms. at 45-46.
As purported evidence of the meaning of Section Three's language, this is highly unreliable stuff. It is not the view of the Indiana Assembly as a body, which voted for ratification, nor of the committee majority, but of its minority opponents. It is also just unpersuasive interpretation of the text of Section Three by those opponents. As we set forth in our article (Ms. 7-11), the text of Section Three sets forth a general rule not limited to the specific historical circumstances that prompted its enactment. To offer, as evidence of possible ambiguity on this score, notwithstanding the seemingly quite plain text, the non-textual analysis of a lone minority report, is about as feeble support for the "ambiguity" proposition as one can imagine. (Indeed, if we were to speculate, it seems just as likely that the minority was repeating a shopworn democratic talking point that had been leveled against the disenfranchisement-until-1870 provision that we discussed in the last post. But such legislative history is unreliable precisely because it requires such speculation.)
Lash then compounds this error by implying that the Indiana majority, by not saying anything in response on this point, might possibly have agreed with the minority on this point but not wanted to mention the fact! This is the mistaken inference from silence again. Silence in the face of nonsense by the minority does not imply acquiescence by the majority – this is a point that should be familiar to nearly every reader of judicial opinions, and also clear from common experience. (We wish to be clear: We do not implicitly agree with every argument we do not refute in this short series of essays! Alas, some arguments simply do not merit attention.)
Lash also discusses at considerable length "The Concerns of Thomas Chalfant," a ratification opponent in the Pennsylvania legislature who believed Section Three would have self-executing legal force as a constitutional rule of immediate application but who also thought that there ought to be a further requirement of prior criminal prosecution and conviction for treason or other crime as a prerequisite to disqualification – but that Section Three contained no such requirement. In essence, it appears that Mr. Chalfant's statement agrees with our analysis of Section Three's meaning on these points, but that Chalfant opposed Section Three as a result. Lash states that "Chalfant presumed that every ratifier in the room agreed with him" that (in Lash's words:) "the only possible solution to the raft of problems" was "Congressional enabling legislation." (Ms. at 53.) But it is mysterious why Lash is justified in drawing this inference. It seems at least as plausible that Chalfant and his audience shared a view that Section Three was self-executing, and he was trying to convince them that this was bad and dangerous.
The core problem with relying on such dissenting views, especially relatively isolated examples, is that it is hard to make responsible inferences when the goal of the dissenters is to defeat the proposal. Sometimes the dissenters correctly state what the majority's proposal is doing, and simply disagree about whether it is good or bad. But other times they incorrectly describe the proposal in order to make it easier to oppose. When there is direct exchange, a meeting of the minds, or some explicit common ground between the majority and the dissent, we can sometimes draw plausible conclusions about their understandings of the text. (We will come to such an example in the next point.) But the claims of an isolated dissenter give us little to work with – unless the user of the legislative history is simply looking for citations to cover for his own pre-existing views.
Fourth. A further problem with Lash's use of legislative history – and an example of his highly selective deployment of skepticism – concerns his bizarre treatment of the exchange between Senator Reverdy Johnson and Senator Lot Morrill over whether Section Three's language covers the offices of President and Vice President. As set forth in our article (at 109), Reverdy Johnson raised an objection to the text as he understood it – its failure (he thought) to include the Presidency and Vice Presidency as covered offices. The proposed amendment "does not go far enough," Johnson said. "I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them?" (Cong. Globe, 39th Cong., 1st Sess. at 2899 (1966)). To which Morrill replied: "Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States.'" Johnson accepted this as a complete answer to his concern. "Perhaps I am wrong as to the exclusion from the presidency; no doubt I am; but I was misled by noticing the special exclusion in the case of Senators and Representatives."
This is an unusually clear and helpful piece of legislative history, because the two speakers did find common ground after their initial disagreement. Sometimes legislators' statements merely muddy the interpretive waters. But here, on a point where the legislative history of the proposal of Section Three is illuminating – where it tends to clarify a possibly uncertain point, serves to answer a question honestly framed, and is a reasonably reliable indicator of the meaning of constitutional terms as they were being used at the time by proponents of Section Three – Lash oddly treats such legislative history not as probative of likely textual meaning but, just the reverse, as proof of ambiguity! In a nutshell, Lash's argument is that because a question was raised in the legislative debate, the text must therefore be ambiguous on that question, regardless of the answer given to the question and apparently accepted as satisfactory.
Lash asserts that the Johnson-Morrill exchange was not widely reported in newspapers, citing one newspaper that did not report this exchange and saying that he had found no others that reported it. But even assuming that Lash is correct about this, it hardly means that the text is therefore "ambiguous" because other persons, Lash speculates, might have misread the text as Johnson initially did, and not had the benefit of specific knowledge of the corrective exchange between Johnson and Morrill.
This is very strange use of legislative history. It is not used in service of ascertaining the objective meaning of the words employed in the text in the sense they were understood by the persons using them. Rather, Lash uses it to suggest that a legislator's initial confusion, even if clarified and agreed to, means that the initial confusion was therefore justified and the agreed-to meaning is actually evidence that the text's meaning is ambiguous. With respect, the proposition practically refutes itself. As Michael Stern, an expert on Congress, puts the point in an extensive criticism of Lash's use of legislative history:
Somewhere Justice Scalia is spinning furiously in his grave. He famously opposed the use of legislative history to resolve textual ambiguity, but this goes far beyond that. It is using the fact that a senator was confused upon casual reading of a legislative text as evidence of its ambiguity, even though he quickly agreed that the text was not ambiguous. And it is suggesting that because some members of the public might also have been confused by the text (which pretty much applies to every legislative text) that itself establishes ambiguity. . . . At the end of the day this is an attempt to create ambiguity out of thin air.
Fifth. Professor Lash draws unwarranted inferences from differences in language choices between one earlier unenacted proposal and the eventual language employed in Section Three. Notoriously, there were many different competing proposals for constitutional amendments suggested at early stages in the process that eventually led to proposal of the Fourteenth Amendment. These various proposals had different objectives (sometimes at odds with one another), different points of concern or emphasis, and different language. It is fair to describe the process as fluid, especially at earlier stages.
Nonetheless, Professor Lash draws an inference from the existence of language in one such early proposal that specifically mentioned the offices of President and Vice President and the fact that Section Three instead used the general category of "offices" under and "officers of" the United States. Lash is more careful here not to overstate his conclusion. He does not argue (at least not quite) that the use of "President" and "Vice President" in the early proposal, and the absence of such language in Section Three, warrants the firm conclusion that Section Three does not cover those offices and officers (in its more general language). But he comes close, suggesting that this is a possible valid inference and renders Section Three ambiguous on this point:
In sum, comparing the final draft of Section Three to the full set of prior drafts renders it unclear whether the drafters intended the final language to include the office of the President of the United States, or barred persons from seeking to "qualify" for that office. Future ratifiers following the framing debates in the daily newspapers could reasonably conclude that the framers had intentionally omitted the language of prior drafts. (Ms. at 4, emphasis added).
Put to one side questions of what "future ratifiers" might or might not have read in newspaper reports of early proposals. The true problem with all such uses of constitutional legislative history – making textual comparisons between unenacted draft proposals and final versions ultimately enacted, and drawing inferences from these differences – is that it is often difficult to tell what inference is the proper one to draw. The Supreme Court has recognized this problem, observing in District of Columbia v. Heller that it is "always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process."
The short explanation for this hesitation is that one never really knows – at least not without a contemporaneous explanation being given at the time that explains, reliably, the reason for the difference between different drafts – exactly why different language was chosen. One perhaps can make intelligent guesses as to why the change was made, and draw possible inferences as to what differences in meaning are thereby signaled. But this is always to some extent guesswork, absent a reasonably explicit and authoritative explanation. One possible inference is that the content of what was omitted was meant to be rejected. But another, quite opposite, possible inference is that the omitted content was viewed as redundant, fully embraced by other retained or substituted language. Both possibilities occur frequently. There is no universally correct answer, and no clear rule for attributing meaning to changes between or among successive or multiple unenacted drafts. The answer depends to some degree, we submit, on context and ultimately on the objective meaning or more natural understanding of the language ultimately employed, standing on its own, in the context of the enactment as a whole.
This brings us back to the point that ultimately it is the language of the Constitution that is the most probative, not the language of the legislative history. If the language ultimately adopted itself reads as rejecting the language of an earlier draft, that is the likely inference. And, by the same token, if the language ultimately adopted reads as entailing or embracing the prior language, then that is the likely inference.
It is precisely for this reason – a focus on the words finally employed – that, on the question of whether Section Three applies to insurrections and rebellions other than the Civil War, we believe the correct answer is that it does. The final language adopted is cast in general, prospective terms. The fact that earlier versions of some proposals would have explicitly limited that version of section three to the "late rebellion" is instructive, by way of contrast. The better inference, if any is to be drawn, is that any limitation to the Civil War was rejected. But ultimately what is most important is that the language ultimately adopted contains no such limitation and that it is extremely difficult to infer from that language an intention to incorporate the limiting language of an earlier, unenacted draft.
Lash implies that the difference between an earlier proposal's specific listing of President and Vice President as covered offices and Section Three's use of the general categories of "offices" under and "officers of" might warrant a similar inference that coverage of the President and Vice President was rejected. This seems to us wrong, for two reasons. First, the language ultimately chosen does not plainly reject inclusion of the President and Vice President. The general language of "officers" is equally (if not more) susceptible to the reading that it includes, by the general category, what a different proposal had listed specifically. Second, on this issue, as noted above, the legislative history does clarify which reading – rejection or incorporation – is the better inference. Reverdy Johnson asked; Lot Morrill answered: the language chosen was understood by its proponents – and accepted by those questioning it – as including the President and Vice President.
As noted, Lash takes some care not to overstate the strength of the inference from the difference between an unenacted early draft and the final language used. But advocates and amici in the Trump v. Anderson litigation have not been so restrained; in some cases they have wildly overstated the inference that Lash says might be drawn from the legislative history in this respect – even to the point of outright misrepresentation. The Meese/Mukasey/Barr/Calabresi/Lawson brief makes an egregious misrepresentation on this score, asserting in a point heading (at 13, point I.B.) that "Prior drafts of Section 3 confirm that excluding the President was deliberate" and arguing, well beyond anything Lash says, that "the words "President or vice president' were deliberately edited out of the final version of Section 3." But the words were not actually "edited out." The earlier draft was merely one of several early proposals that had been offered, and which was no longer under discussion. The two versions differed in the language used, but that is all. And whether the differences were substantive, let alone deliberate, is also unproven. The brief's inference that these changes "make[] clear that the Framers of Section 3 did not intend for it to apply to those running for President or Vice President" is ultimately a flat misrepresentation of what the legislative history supports.
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Constitutional legislative history can be a slippery thing. While it can provide potentially probative, second-best evidence of constitutional textual meaning, it can also be misused and abused to mislead and misinform. One must not confuse a limited purpose with a limited (or ambiguously-maybe-limited) text. One should not treat legislative silence as acquiescence or ambiguity. One must be wary of inaccurate statements by isolated dissenters to a law. One should not selectively ignore clear evidence against one's thesis. And one should be careful in drawing inferences from changed or abandoned proposals. Unfortunately, Lash's analysis of Section Three—and even more so some of the commentary and briefing that has relied upon Lash – does not respect these limitations and simply cannot be trusted as legal analysis.
The post The Use and Misuse of Section Three's "Legislative History": Part II appeared first on Reason.com.
]]>The appropriate role of "legislative history" in constitutional interpretation is a subject of ongoing debate. For originalists – those committed to interpreting and applying the Constitution according to the best evidence of the objective, original public meaning of the words, phrases, and structural logic of the Constitution, taken in context, and accounting for specialized usages or terms of art – the question should be put this way: what light do the debates or drafting history of a provision, contained in (hopefully reliable) reports shed on the objective meaning of the language of the provision as embodied in the final, adopted constitutional text? (In the case of the original Constitution, some of the most crucial proceedings were "secret" – not publicly reported or available to the ratifying public at the time. This raises special problems which are not present in the case of constitutional amendments which were openly debated on the floor of Congress.)
Our shared view is that such constitutional legislative history is potentially probative, second-best evidence of original, objective textual meaning. But it is important to always keep in mind that the search is for the objective meaning of the text – the actual language adopted as law – not for the "intent" or "purpose" or "understanding" of some particular person or any collectivity of persons. It is what the people involved wrote down in words, and voted to adopt, that counts – not what they might or might not have "had in mind." So while evidence of the intention or purpose of individuals involved in the drafting process might be relevant to ascertaining the meaning of the text, discovering their intent or purpose is not the ultimate goal. Legislative history is a potential means to an end: the ultimate goal of getting the objective, original meaning of the words of the text right.
All of this results in several implications or admonitions. First, constitutional legislative history, or imputed "purposes" ostensibly found there, can never properly displace the actual textual meaning. As we note in The Sweep and Force of Section Three (at 7-11), the language ultimately adopted sometimes overshoots or undershoots (whether deliberately or not) the drafters' supposed intentions or purposes. Second, one must be precise and careful about drawing textual inferences from legislative history – careful not to overweight individual pieces of evidence or idiosyncratic views, and precise in specifying what those views show about the actual text at issue. Third, ambiguity in the legislative history is not ambiguity in the text. The drafters of a position may well have different views, and enact a text to reflect the victory of one side or a compromise between them, or simply because something has to get done. Those involved in the drafting may well deliberately spin or unintentionally misunderstand the details of those choices. But again, it is the single, unified, text and its objective, original meaning that becomes law in our system, not the political machinations that produced it.
In The Sweep and Force of Section Three, we hew closely to these limitations on the use of constitutional legislative history. On the occasions where we note relevant evidence from drafting history or specific debates, we carefully qualify our observations about the relevant legislative history. Legislative history does not establish textual meaning. It serves as potentially probative, second-best evidence that can assist in understanding the meaning of the language contained in the text. It must be handled with care.
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With that preface, we turn to the constitutional legislative history of Section Three itself. Over the past months since our article was posted, the ensuing debate has included some instructive – but also some rather dubious – uses of constitutional legislative history. In particular, we must take issue with some serious flaws contained in Professor Kurt Lash's recent writings on this topic, which he has presented in a draft law-review article, titled "The Meaning and Ambiguity of Section Three of the Fourteenth Amendment," and, in a more telescoped form, as an online essay at the Law and Liberty website, titled "The Fourteenth Amendment's Ambiguous Section Three." Kurt is a friend of ours and we do not wish to sound overly harsh. But these writings contain serious problems both of history – concerning what the "legislative history" does and does not say – and of law – concerning the way constitutional legislative history is used in legal analysis of the constitutional text.
We will start by focusing on the former problem here, and take up the latter problem more fully in a subsequent essay. There is a serious problem with Lash's presentation of the legislative history of Section Three itself. With respect, some of what Lash says the legislative history shows is simply wrong. At best, Lash's presentation is misleading; at worst, it is a serious misrepresentation of what was said.
Lash presents a statement by Thaddeus Stevens, a prominent radical Republican member of the U.S. House Representatives, as appearing to argue that that Section Three of the proposed Fourteenth Amendment was not legally self-executing – that is, that Section Three would not have direct and immediate legal effect as a constitutional rule unless and until Congress adopted further implementing legislation. If true, this would be relevant to an important legal point of interpretation of Section Three. One of the propositions of our article, The Sweep and Force of Section Three, is that Section Three is self-executing in the sense that its legal rule does not require congressional legislation in order to have legal effect. (This, we think, is evident from the text, history and structure of Section Three as detailed at length in our original article, including a footnote (59) that cited five typical statements of senators – both proponents and opponents of the substance of Section Three – who all agreed or assumed that Section Three would have immediate consequences, for better or worse.)
But Professor Lash quotes Stevens as saying that Section Three "will not execute itself." That seems like relevant evidence against our conclusion. But with all due respect, Lash's use of this quotation from Thaddeus Stevens is extremely misleading at best. In a nutshell, Lash "mixes and matches" quotations from the legislative history to make it appear that statements by Stevens concerning a different proposal actually referred to the version of Section Three ultimately adopted.
In fact, Stevens was talking about an earlier and much different proposal for a section three of the Fourteenth Amendment that would have denied all persons who had aided or supported the Confederacy of the right to vote, in all federal elections, until 1870. (That is, unlike the real Section Three, it applied to all confederates and not just former office-holders, it applied to voting in federal elections instead of office-holding, and it had a sunset clause.) But as we will explain in a moment, Stevens's comment about effectively enforcing that sweeping requirement throughout the South does not translate to the real Section Three that became law.
First let us present Stevens's comment in broader context (italicizing in bold the words that Professor Lash pulls out of context). Recall that Stevens is arguing in defense of the total voting exclusion he wished to keep in the proposed amendment as section three, even though enforcing the voting ban would require implementing legislation concerning legislative apportionment, voter registration, and other such matters:
The gentleman from Ohio [Mr. BINGHAM] who has just taken his seat thinks it difficult to carry it into execution and he proposes to put it into a bill which the President can veto. Will my friend tell me how much easier it is to execute it as a law than as a provision of the Constitution? I say if this amendment prevails you must legislate to carry out many parts of it. You must legislate for the purpose of ascertaining the basis of representation. You must legislate for registry such as they have in Maryland. It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have the right to do. So that objection falls to the ground.
Gentlemen tell me it is too strong – too strong for what? Too strong for their stomachs, but not for the people. Some say it is too lenient. It is too lenient for my hard heart. Not only to 1870, but to 18070, every rebel who shed the blood of loyal men should be prevented from exercising any power in this Government. That, even, would be too mild a punishment for them.
Gentlemen here have said you must not humble these people. Why not? Do not they deserve humiliation? Do not they deserve degradation? If they do not, who does? What criminal, what felon deserves it more, sir? They have not confessed their sins; and He who administers mercy and justice never forgives until the sinner confesses his sins and humbles himself at His footstool. Why should we forgive any more than He? (Congressional Globe, 39th Congress, 1st Sess. 2544 (May 10, 1866).)
Again, Stevens was not talking about the version of Section Three we have – the officeholding ban—that was substituted for the original comprehensive ban of voting, several weeks after Stevens made this speech. This is especially important because Stevens's reasons for mentioning enforcement legislation are specific to the version of the proposed amendment he is discussing. A ban on voting might involve a voter "registry." It would be directly connected to "apportionment," which Congress deals with by legislation, and which was also altered in profound ways by Section Two of the Fourteenth Amendment, which required the South to enfranchise its newly-freed black population or else lose the ability to count that population for apportionment purposes. (Indeed, in a recent podcast episode Professor Akhil Amar, who has extremely harsh words for Professor Lash, emphasizes the role of Section Two in this passage even more than we do here.) But the fact that Stevens anticipated Congress's passing legislation dealing with federal voting rights does not tell us about the legal operation of a different proposal that did not directly act upon voters.
To be sure, Lash does accurately state that Stevens's remarks came in a "speech introducing the Joint Committee's draft of the Fourteenth Amendment" – the much different earlier draft. But he portrays the statement as evidence that Stevens believed that Section Three as finally proposed was not self-executing. In "The Fourteenth Amendment's Ambiguous Section Three," Lash sets up the statement this way:
Similarly unclear was whether the text automatically disqualified certain persons, or whether Congress would first have to pass enforcement legislation establishing procedures that would preserve every person's right to judgment by an impartial tribunal. (Emphasis added).
Lash then immediately invokes Thaddeus Stevens as if supporting the latter position:
In his speech introducing the Joint Committee's draft of the Fourteenth Amendment, Pennsylvania Representative Thaddeus Stevens declared that the third section "will not execute itself." Stevens later insisted that the text would not prevent rebels from becoming President "unless in the prescription of proper enabling acts."
Lash does much the same thing in his draft law-review article manuscript (at 7):
Finally, none of the multiple drafts of Section Three addressed whether the text could be enforced in the absence of congressional enabling legislation. Instead, key framers insisted that the text was not self-executing. For example, Joint Committee member Thaddeus Stevens explained that Congress would have to pass enabling legislation since the Joint Committee's draft of Section Three "will not execute itself." (emphasis in original)
By giving Stevens as an "example" of a "key framer[]" who "insisted that the text was not self-executing" Lash is mixing-and-matching. Stevens's statement about a different text has been misleadingly transformed into a statement about the Constitution we have. And again, later in the manuscript (at 27):
Stevens reminded his colleagues that Section Three required the passage of enabling legislation. "[I]f this amendment prevails," Stevens explained, "you must legislate to carry out many parts of it," including legislation "for the purpose of ascertaining the basis of legislation." So to in regarding to Section Three. "It will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out both in reference to the presidential and all other elections as we have a right to do. So that objection falls to the ground." No one at that time, or any time prior to final passage, disagreed with Stevens' declaration that the provision would not execute itself, or suggested it be redrafted so that it could be enforced even in the absence of congressional legislation.
Again, this is severely misleading. Lash's treatment conveys the impression that Stevens was speaking about Section Three of the Fourteenth Amendment, when in fact he was talking about the far more draconian disenfranchisement provision that was ultimately rejected. Stevens at no point said that the final proposal – the version of Section Three on which Congress settled, weeks later, and that became adopted as part of the Fourteenth Amendment – would require implementing legislation by Congress in order to have self-executing legal effect. Indeed, as we will see, Stevens himself would later characterize Section Three as it was eventually adopted as "wholly changed" from the May proposal, "by substituting the ineligibility of certain high offenders" for the original proposal of "disfranchisement of all rebels until 1870." (Congressional Globe, 39th Cong., 1st Sess. at 3148 (June 13, 1866)).
Stevens did not like the final, changed proposal very much. But his objection to the final version was not that it required legislation in order to be legally operative. Rather, his objection was that a simple officeholding ban accomplished less than Stevens thought necessary to rein in the political power of what he viewed as a still-disloyal South. Everything of importance to Reconstruction, in Stevens's view, depended on breaking the political vise grip of the disloyal white South.
In addition to advocating for disenfranchisement of the disloyal, this also led Stevens to strongly champion further, more radical, measures to mandate and guarantee that recently freed former slaves be given the right to vote. (That was ultimately accomplished by the Fifteenth Amendment, proposed by Congress in 1869 and ratified in 1870, but Stevens would not live to see it come to pass. He died in 1868.) This leads us to another confusion from Lash.
Here is Stevens, on June 13, 1866, commenting on the final version of the proposed Fourteenth Amendment, including its "wholly changed" Section Three, and on the need to enfranchise black citizens in order to remedy the amendment's shortcomings:
The Third section has been wholly changed by substituting the ineligibility of certain high offenders for the disfranchisement of all rebels until 1870.
This I cannot look upon as an improvement. It opens the elective franchise to such as the States choose to admit. In my judgment it endangers the Government of the country, both State and national; and may give the next Congress and President to the reconstructed rebels. With their enlarged basis of representation, and exclusion of the loyal men of color from the ballot-box, I see no hope of safety unless in the prescription of proper enabling acts, which shall do justice to the freedmen and enjoin enfranchisement as a condition-precedent. (Congressional Globe, 39th Cong. 1st Sess. at 3148 (June 13, 1866)).
Professor Lash spins Stevens's statement this way (at 7): "Once Congress had finalized the language of Section Three, Stevens again noted the need for Congress to pass enabling legislation." Partially true: Stevens thought that further measures were needed to "do justice to the freedman and enjoin enfranchisement as a condition-precedent." But he was not talking about enforcement acts to effectuate Section Three's officeholding ban, nor was he suggesting that Section Three was legally inoperative until such acts were passed. Rather, his point was that there was much more work to be done, in general, to make Reconstruction effective and to protect blacks' civil and political rights. (Indeed, Lash's manuscript acknowledges as much at a later point, recounting Stevens's 1867 proposal of legislation to enfranchise black Americans in the South as part of the 1867 Reconstruction Acts).
Lash tries the same trick with statements made by Senate Judiciary Chairman Lyman Trumbull. Lash invokes a newspaper report of a statement made by Senator Trumbull, again as if to suggest that Trumbull was saying that Section Three was not legally self-executing – that is, that it did not have automatic legal effect as a constitutional rule simply by virtue of its inclusion as part of the Fourteenth Amendment. Trumbull, on Professor Lash's account (at 7), explained that legislation was necessary because the constitutional provision "provides no means for enforcing itself." (Lash quotes a May 5, 1869 Columbus, Ohio newspaper report of a congressional debate of April 8, 1869; but the account is also set forth at Congressional Globe, 41st Congress, 1st Session 626 (April 8, 1869)).
The misuse of the Trumbull quotation is perhaps not quite as troubling as the misuse of Stevens's quotation, but Lash definitely presents Trumbull's views in a false light: Trumbull's statement actually is directly contrary to Lash's thesis. Quoted in full context, Trumbull was making clear that Section Three was already a self-executing requirement of constitutional law. Legislation was not necessary in order to trigger a person's disqualification from office. That was accomplished directly by Section Three.
Thus, Trumbull said, the provision of the bill being debated
disqualifies nobody. It is the fourteenth amendment that prevents a person from holding office. It declares certain classes of persons ineligible to office, being those who having once taken an oath to support the Constitution of the United States, afterward went into rebellion against the Government of the United States. (Congressional Globe, 41st Congress, 1st Sess. 626 (April 8, 1869 (emphasis added)).
Nonetheless, it was appropriate for Congress to add enforcement legislation, Trumbull said, because the Constitution's prohibition wasn't being obeyed everywhere:
But notwithstanding that constitutional provision we know that hundreds of men are holding office who are disqualified by the Constitution. The Constitution provides no means for enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in the Constitution. The Senator from Ohio says it provides for ever afterward disqualifying these persons from holding office. That is nothing more than the Constitution of the United States has done. That Constitution says that no person embraced within the classes specified shall hold any office. This bill does no more.
Once again, this piece of legislative history does not remotely suggest that Section Three as a constitutional provision is not a self-executing legal command with the immediate force of law. Quite the reverse. Trumbull was saying exactly what we argue in our article: Section Three's rule is legally automatic; and it is appropriate for Congress to add its enforcement power on its behalf. As we put it (at 22), "The Constitution is generally self-executing law, but still, somebody has to enforce it." Trumbull's point is no different.
In short, neither Stevens and Trumbull say what Lash portrays them as saying. The positions Lash attributes to them are not the positions they took. The statements Lash cites concerned other drafts, other provisions of law, or proposals for enforcement legislation that assumed that Section Three as adopted had already legally imposed constitutional disqualification from office. This is poor, inaccurate, misleading "legislative history." It is an illustration of precisely what should not be done when looking at legislative debates.
These misrepresentations matter: they can fool people who ought not be fooled. Indeed, strikingly, some prominent scholars and advocates have carelessly picked up Lash's treatment of Stevens's and Trumbull's statement and adopted them in the service of the mistaken argument that Section three is not self-executing.
Disturbingly, Professor Michael McConnell, in a recent essay we have discussed before, seems to have adopted Lash's treatment of the legislative history (perhaps without checking it?) repeating and building on Lash's inaccurate portrayal. McConnell writes that "the leading figures in the drafting and enforcement of the Fourteenth Amendment agreed with [Chief Justice Salmon P. Chase's opinion in Griffin's Case] that Section Three would require implementing legislation." McConnell then offers Lash's out-of-context quotation of Stevens, concerning a different proposal, as if it were legislative history establishing that Section Three was not understood to be legally self-executing. McConnell quotes Stevens this way: "'[Section Three] will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out.'" McConnell then states that "Lyman Trumbull, Chairman of the Senate Judiciary Committee, likewise said that 'Some statute is plainly necessary to enforce the constitutional provision.'"
McConnell is obviously relying on Lash's account, and concludes without qualification or clarification that Section Three was understood to require implementing legislation. But it is simply a factually wrong description of the legislative history to say that Stevens's view, or Trumbull's, was the same as the one Chief Justice Chase would later adopt in Griffin's Case. McConnell appears to have swallowed Lash's account whole, being misled by it perhaps without carefully verifying it himself.
Equally disturbing is the repetition of the Lash account in an amicus brief filed on behalf of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations. Citing Lash, the brief begins (at 22) by noting that Representative John Bingham
expressly raised a concern that Section 3 would be unenforceable without additional action by Congress. Lash, supra note 2, at 27. In response to Bingham's concern, one leading House Republican, Representative Thaddeus Stevens of Pennsylvania, agreed that there was a need for Congress to pass implementing legislation because Section 3 "will not execute itself." Cong. Globe, 39th Cong., 1st Sess. 2544 (1866). On the Senate side, Judiciary Committee Chairman Lyman Trumbull concurred, publicly explaining that it "provides no means for enforcing itself." Lash, supra note 2, at 7 & n.29 (quoting remarks of Sen. Trumbull as reported in The Crisis at 2 (Columbus, Ohio), May 5, 1869)).
The congressional record, moreover, does not show any Member of the House or Senate disagreeing with Stevens' acknowledgement that Section 3 is not self-executing.
The amicus brief thus advances the false view that Thaddeus Stevens thought the version of Section Three ultimately proposed was not self-executing, that Senator Trumbull believed this as well, and that there was apparently no disagreement about this in Congress. (The brief's characterization of John Bingham's position is inaccurate for the same reason.)
* * *
All of this highlights the susceptibility of constitutional legislative history to manipulation, misrepresentation, and abuse. While evidence from such history can indeed be probative, it must be researched with care and reported accurately and with candor. Professor Lash's work fails on this score.
In our next essay / post, we take up several other problems with Professor Lash's use of legislative history.
The post The Use and Misuse of Section Three's "Legislative History:" Part I appeared first on Reason.com.
]]>Some critics have made the argument that Section Three cannot or should not be used to constitutionally disqualify a person from office for having engaged in insurrection or rebellion without that person first having been charged and convicted of the statutory federal crime of insurrection, under 18 U.S.C. §2383.
Professor Michael McConnell appears to have been the first to make this argument, in a post on this blog shortly after we first posted our draft article on SSRN in August, 2023. As McConnell put it:
Congress has enacted a statute, 18 U.S.C. §2383, which covers participation in rebellion or insurrection, and which provides that those found guilty "shall be incapable of holding any office under the United States." This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.
Others have echoed this suggestion. The Wall Street Journal in September 2023 editorialized against applying Section Three to disqualify Trump, saying that "[i]t is surely relevant that Mr. Trump hasn't been charged with insurrection under 18 U.S.C. Section 2383." Trump's brief on the merits in the Supreme Court in Trump v. Anderson asserts (pp. 38-40) that Section Three can only be enforced following a criminal conviction under 18 U.S.C. §2383. At least two amicus briefs supporting Trump make the same claim.
With all due respect, the argument is legally meritless, top to bottom. It is wrong as a matter of the text, history, and structure of Section Three. But it also is wrong on the details of §2383 itself.
Begin with Section Three. The text of Section Three nowhere contains or references any requirement of criminal-law conviction as a prerequisite to, or condition of, Section Three's operation. To read such a requirement into Section Three is to make up something that is not there. Rather, as we put it in our original article, Section Three's "disqualification, where triggered, just is." It parallels the Constitution's other qualifications for office, such as age, residency, and citizenship, none of which of course requires a criminal trial.
The history of Section Three nowhere reflects a need for criminal trials. Indeed, Section Three was enacted as an alternative to widespread prosecutions for treason or other crimes – prosecutions that were thought both practically difficult and needlessly punitive. After Section Three was enacted it immediately disqualified many former Confederate officials from holding office; none of these people was ever criminally prosecuted (let alone convicted) of the federal crime of insurrection, even though the offense was on the books at the time. Early reported state judicial cases holding former Confederate rebels disqualified from office did not require or suggest the need for prior criminal-law conviction. And even Chief Justice Chase, in Griffin's Case, who did quite wrongly suggest that only Congress could enforce Section Three, never suggested that the enforcement must take the form of criminal prosecutions and criminal trials. If this argument had been thought non-frivolous at the time, surely Chase would have been among the first to make it.
And the structure and logic of the Constitution confirms that there is no need for criminal law prosecution either. The existence of legislative power in Congress "to enforce" the Fourteenth Amendment (including through criminal law) does not mean that Section Three, or other parts of the amendment, lie dormant until Congress acts. Congress does not bring the Fourteenth Amendment to life; it has power to add its enforcement arm to the amendment's self-executing legal force, not subtract from it. Even if the criminal-law insurrection statute were believed to have been enacted as a mode of enforcement of Section Three, it is basic that such a statute cannot limit or narrow the meaning of a provision of the Constitution.
These points should be enough to end the matter, but this wrongheaded objection is so persistent, so insidiously misleading, that it is worth saying more.
In fact many of these invocations of 18 U.S.C. §2383 misunderstand §2383 itself. The federal criminal statute in question was not enacted as a device for enforcing Section Three. As we set forth in our original article (see pp. 82-84), the criminal prohibition of insurrection, now codified at 18 U.S.C. §2383, was enacted in 1862 – in the middle of the Civil War, as Section Two of the "Second Confiscation Act" – several years before the drafting of the Fourteenth Amendment. The Act made it a crime to "incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof" or to "give aid or comfort thereto" or to "engage in or give aid and comfort to" any "existing rebellion or insurrection." As such, the statute was certainly a precursor of some of the terms and concepts later employed in Section Three, and to that extent a useful marker in understanding the meaning of the similar terms used in Section Three. (The same is true, we argue in the article, for other provisions of the Second Confiscation Act.) As we state in the article, the Second Confiscation Act "is practically a glossary of terms used in Section Three of the Fourteenth Amendment proposed by Congress just four years later." (Ms. at 82.)
But it is quite simply wrong – indeed, a rather embarrassing error of historical fact – to identify this criminal-law statute as (in McConnell's words) Congress's chosen "mode of enforcement" of Section Three, pursuant to Congress's legislative power under Section Five to enforce the provisions of the Fourteenth Amendment. That would have been impossible. The provisions of the Fourteenth Amendment did not exist at the time the statute was adopted. The notion that the criminal statute punishing insurrection was designed as a "mode" of effectuating Section Three is simply ahistorical – a little like saying that Lincoln's election was attributable to his assassination.
Section Three is something Congress chose to add to the Constitution on top of the already-existing federal crime of insurrection, not the other way around. To hold a new constitutional provision hostage to a pre-existing federal statute would strangle the all-important power of constitutional amendment. The idea that Section Three requires a criminal conviction for insurrection before its constitutional rule can be applied has no legal merit whatever.
Each of the commenters, pundits, and advocates above has misunderstood or ignored these basic points.
As noted above, Professor McConnell (who has since shifted his position) was an early proponent of the theory that the federal criminal insurrection statute should be understood as Congress's chosen "mode of enforcement" of Section Three. It was not. Similarly, the brief of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations, argues that "[t]he big problem for those advocating for the Colorado decision is that President Trump has not been convicted of violating Section 2383," which they wrongly describe as part of "the Enforcement Act of 1870." It was not; they have confused §2383 with a different criminal prohibition which was repealed in 1909 (as we explain in footnote 54 of our manuscript).
And the amicus brief of U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress makes the same claim in an even more emphatic, and embarrassing fashion, arguing that Section Three must not be self-executing because if it were "there would have been no reason for Congress to state expressly in §2383 that a conviction for insurrection would result in disqualification from holding certain offices. Under Baude and Paulsen's view, Section 3 would already have automatically barred such individuals from office." Not in 1862, when the criminal statute was first enacted! Again, this is like saying that there would have been no reason for Congress to enact the First Amendment to the Constitution in 1789 because modern precedents such as New York Times v. Sullivan already protected the freedom of speech.
In the Supreme Court, Trump's lawyers offer yet another variation of this argument, claiming that "Section 3 Should be Enforced Only Through Congress's Chosen Methods of Enforcement." They do not appear to deny that the Constitution itself is self-executing and can be applied by state actors. But they still argue that Congress has limited enforcement of Section Three to criminal prosecution under the statute, describing 18 U.S.C. §2383 as the "exclusive means of enforcing Section 3." But again, that is not what 18 U.S.C. §2383 was and that is not how Section Three works or has ever worked. It is an argument that even Salmon Chase did not think of, and frankly for good reason.
McConnell has, much more recently, taken a new stance. He now concedes that criminal prosecution for insurrection is not required for disqualification under Section Three: "I am not saying that conviction under 18 U.S. Code §2383 is a legal prerequisite to disqualification under Section Three," he writes. Still, McConnell argues, the absence of a federal criminal prosecution for insurrection under the statute implies that the events leading to and culminating in the assault on the Capitol of January 6, 2021 must not be an insurrection within the meaning of the Constitution either: "The best reason to be skeptical that the events of January 6 were an 'insurrection' in the legal sense is that none of the January 6 defendants have even been charged with, let alone convicted of that crime. Insurrection is a crime under 18 U.S. Code §2383, but not a single participant in the January 6 unrest has been charged with insurrection."
But once one concedes, as McConnell now does, that criminal-law prosecution and conviction are not prerequisites for applying Section Three, it is not at all clear why we should draw factual inferences from the absence of that prosecution. The operation of a legally distinct criminal-law statute under which a person might or might not be prosecuted does not define or limit the meaning of a constitutional disqualification provision that is not keyed to prosecutions or convictions under the statute. (In his amicus brief, Ilya Somin gives the example of "O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families." As Somin observes: "The criminal and civil cases were distinct, and the result of one did not determine that of the other.")
McConnell's argument seems to assume that federal prosecutors are so consistently aggressive in their charging decisions that if there were any chance that January 6 was an insurrection under any definition they would have brought charges under §2383. But the truth is that §2383 is very rarely charged under any circumstances, that prosecutors have complex motivations especially in high-profile cases, and that criminal trials are not the same as civil-law disqualifications from office. In any event, the meaning of the Constitution is to be determined by objective interpretation of the Constitution's text, history, and structure, not by deferring to the charging decisions of 21st-century criminal prosecutors.
Whether the events of January 6, 2021 were an insurrection, and whether Donald Trump engaged in that insurrection, are serious questions of constitutional law – questions that we addressed in our original article, and that were addressed in a five-day trial in Colorado as well as a lengthy opinion on appeal. But it belittles and misunderstands the Constitution to think that only a federal prosecutor and criminal jury can answer such questions. And it is simply a historical fabrication to suggest that Congress or the Constitution has ever made a criminal prosecution a condition for enforcing the Constitution.
The post The Objection: "But He Hasn't Been Convicted Of Anything" appeared first on Reason.com.
]]>Of all the objections that have been offered to our interpretation of Section Three, one stands out as far and away the most craven and insidious. It is the argument that, regardless of what the Constitution says and how it is correctly understood, we should not enforce Section Three's exclusion of insurrectionists from future office because doing so might provoke substantial political resistance and even violence by their supporters. To comply with the Constitution in this respect, therefore (it is said), is simply too dangerous. In short, it might tend to produce further, greater acts of insurrectionary violence or rebellion directed against our constitutional order. We should decline to enforce the Constitution's exclusion of insurrectionists from office because that might only make matters worse. Or as Professor Daniel Epps put it in jest: "The Supreme Court shouldn't rule that Trump is ineligible for the presidency for engaging in insurrection, because if they do Trump will definitely stage an insurrection."
Accordingly, it is said, we should not enforce Section Three in accordance with the original meaning of its terms, fairly understood. If the faithful, straightforward interpretation and application of Section Three would risk these consequences, we should not interpret and apply the Constitution faithfully. We should seek ways to avoid carrying out the Constitution's rules on this matter. We should compromise constitutional principle to accommodate the believed practical imperatives of the current political situation. We should appease those who would threaten or engage in political violence, rather than enforce the language of the Constitution.
To state this position plainly, in unvarnished terms, is, we submit, to expose its utter lack of integrity and legal propriety. This is not a legal argument about Section Three, of course. It is not an argument about the meaning of the Constitution's text, structure, history, logic, design, or purposes; nor is it an argument from constitutional precedent or practice. It is, rather an argument from expediency, or cowardice, that a particular provision of the Constitution should be disregarded or dispensed with, out of fear of its consequences or in order to appease those who would hold the Constitution hostage to threats of resistance. It should go without saying that such an argument ought to play no role whatever in legal interpretation of the Constitution, by those who have sworn to uphold it.
We did not take this objection very seriously in our forthcoming article, The Sweep and Force of Section Three, for two reasons. First, we simply did not expect it to be a serious argument. We did not expect that many people would seriously deny that the Constitution should be enforced in accordance with the fair understanding of its terms, taken in their original sense and context, not because of disagreement with such an interpretive approach, but instead out of fear of the consequences of complying with the Constitution.
Second, our article was devoted to legal analysis—an effort to ascertain the original, objective public meaning of a provision of the Constitution, as part of our must fundamental law. We were not concerned with frankly political evaluations of the hypothesized "danger" of applying the Constitution faithfully. We simply sought to arrive at a correct understanding of Section Three as a matter of constitutional interpretation. Had we anticipated the reaction, it still would have been beyond the scope of our project.
Nonetheless, the this-would-be-too-dangerous argument has been among the most persistent and prominent objections made to the thesis of our article. It has been propounded, in various forms, by a conservative writer for The New York Times, by the editorial board of a prominent, conservative-leaning national newspaper, by a celebrated and venerable nationally-syndicated conservative columnist, and by others. The common message is that we should not apply Section Three's original meaning, if doing so would disqualify Donald Trump from eligibility for the Presidency, because it would be "dangerous" to do so. It would (it has been said) "embitter" Trump supporters, who would react with "rage" to a "rigged" system and produce widespread "chaos."
And so, we think the objection needs to be confronted directly:
First, there is a real concern that such rhetoric could become a self-fulfilling prophecy. Some of the public formulations of this objection border on suggesting that extreme reactions might in some sense be justified, or at least understandable, responses to what the writer sees as a great legal provocation. Other writers merely raise a concern that taking Section Three seriously might produce an uncomfortable disruption of usual political processes. Instead of raising and possibly stoking fears of violence, it would be far better, we submit, for these opinion writers to champion the Constitution and the rule of law – to urge their readers to take the Constitution seriously in all of its operative provisions, including Section Three, and to encourage a civic ethos that embraces the controlling authority of the U.S. Constitution as "supreme Law of the Land."
Second, beyond the problem that the dangerousness objection, if repeatedly pressed, might tend to produce its own feared consequences, there is the more basic problem of principle: It is simply wrong to interpret and apply the Constitution incorrectly out of low-political or social-policy or concern-for-social-consequences-and-disruption motives. We've seen this movie before, several times. The Supreme Court's unanimous landmark decision in Brown v. Board of Education in 1954 embraced the Fourteenth Amendment's fundamental guarantee of equality to repudiate racial segregation in public education, and to disapprove of the pernicious doctrine of "separate but equal," notwithstanding that large segments of American society would – and did –resist its holding. In Brown II, the following year, the Court emphasized that, in fashioning judicial remedies to implement the Fourteenth Amendment's mandates, "it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Disagreement (and "massive resistance") there indeed was. But the Supreme Court refused to back down from constitutional principle and, in Cooper v. Aaron in 1958 unanimously reaffirmed the principles of Brown even in the face of public resistance and violence.
Should the Court in Brown have ruled differently – ruled more narrowly, compromised on constitutional principle, avoided deciding the case entirely, or even reaffirmed Plessy (and segregation) on the basis of longstanding precedent and practice – and done so because of concern about how a decision on constitutional principle would be received? Should the Court in Brown deliberately have interpreted the Constitution in a way it thought wrong, on proper interpretive principles, out of fear that committed, hard-core segregationists would be up in arms over a decision embracing the right constitutional answer? The very idea is, by now, almost unthinkable. Such a course would have been shockingly unprincipled – outrageous and reprehensible – then, and now.
And of course we have seen that movie before with a different ending. In the first decade or so after the Fourteenth Amendment was enacted, many republicans in political office were willing to enforce its terms, even when this required aggressive enforcement against massive, even violent, resistance. This was Reconstruction. But by 1876 or so, the political winds had shifted and the will to enforce the Constitution had weakened. People in positions of power and privilege now thought it "dangerous" to insist on enforcing the Constitution too much. And so they stopped insisting, and succumbed to the rise of Jim Crow. As John Harrison has summarized it, "what happened in the 1870s is that the white southerners and the national republicans stared each other in the eye and more or less . . . the national republicans blinked." Was that really the historically preferable policy?
As with Brown, Reconstruction, and interpretation of Section One of the Fourteenth Amendment, so too with Section Three of the Fourteenth Amendment: It should go without saying that the vitality of correct constitutional principles should not be allowed to yield simply because of disagreement, resistance, threats, or even violence.
Faithful constitutional interpretation is of course a special responsibility of judges. As constitutional scholar and political scientist Matthew Franck recently put it, "where the requirements of the Constitution and the rule of law are concerned . . . questions like 'what will voters do if we do X?' are the wrong ones to ask. Certainly such matters cannot matter to judges. … 'What bad things will other people do if I do the right thing?' is a question any judge should be ashamed even to ask himself."
Franck commended the justices for exercising great integrity in putting politics and popularity aside when they overruled Roe v. Wade two years ago in their headline decision in Dobbs v, Jackson Women's Health Organization. "To their credit," the majority focused on reaching what it thought was the constitutionally correct legal answer in the case, and not at all on public reaction. Indeed, the Court in its Dobbs opinion itself emphasized the entire irrelevance to its legal analysis of such things, stating that "we cannot allow our decisions to be affected by any extraneous influences such as concern about the public's reaction to our work." The courts are expected to exercise similar integrity in every hard case.
But faithful constitutional interpretation is not limited to judges alone. It is the duty and responsibility of all officials who swear an oath to support the Constitution. And while ordinary citizens do not typically swear an oath to support the Constitution, all Americans who subscribe to and admire the U.S. Constitution as "supreme Law of the Land" should put that fundamental law ahead of their policy preferences, ahead of their politics, and above their fears about real or imagined dangers. No one should acquiesce in the notion that the Constitution should be subordinated to political "reality" or held hostage to blackmail threats of political violence or unrest.
Indeed, it would be truly dangerous not to enforce this constitutional provision. Section Three protects our constitutional republic against a grave threat from within: men and women who, once having sworn an oath of office to support the Constitution, subsequently demonstrate their infidelity to our constitutional republic by engaging in acts of insurrection or rebellion should not be entrusted with power a second time (unless and until two thirds of Congress makes a political judgment to excuse or forgive). Not to enforce this provision of the Constitution is to place lawful constitutional government at grave risk. And not to enforce this provision of the Constitution because enforcing it will be difficult, disruptive or dangerous – because of the fear of future insurrection – is arguably the most dangerous course of all.
* * *
We end with a relatively small point about a rather different, more minor, type of dangerousness argument: the argument from misuse. That objection has it that Section Three, if interpreted too broadly, could be misused or abused by political partisans who apply it, as a tool to advance partisan political agendas. In some ways, we find this argument weak and generic. Many governmental powers, some of which may involve interpretation and application of the Constitution (or other law), are vested in many different types of elected officials. Many types of government powers could be abused, or misdirected for partisan ends. This does not in any way refute the existence of such authority. As we noted in our original article, the potential abuse of a constitutional power or right is not an argument against its existence. It is an argument against its abuse or misuse – an argument for checks and balances, judicial review among them. And indeed, in the case of Section Three specifically, we note that there have been extensive judicial proceedings about the application of that provision to former president Donald Trump. Indeed, in Trump v. Anderson, the Colorado Supreme Court case now pending on writ of certiorari before the U.S. Supreme Court, there was a full, five-day trial of the facts that formed the basis for application of Section Three.
The possibility of cases pushing Section Three too far is always present. But that is not an argument for not enforcing Section Three at all. It is an argument for careful and faithful interpretation of Section Three's terms, and for careful application of its rules to the actual facts of a given situation. As we wrote in our article and will return to a future post, the facts matter. If the facts, as found by a trier of fact in a court of law, warrant the legal conclusion that an individual is disqualified from office under the terms of Section Three, that conclusion should be given legal effect. The fact that other situations, involving different facts and different individual conduct, might not warrant the same ultimate conclusion, is unsurprising and untroubling.
The fact that different factual and legal situations may yield different legal conclusions in different cases is an ordinary feature of the rule of law. It is not a persuasive argument for failing to give Section Three its proper, original meaning and applying it as part of our nation's fundamental law. It is a reason to try to define Section Three's terms objectively as a matter of the original meaning of the Constitution, without being pushed or pulled by today's politics, so that they can be consistently understood and applied over time. That is what we have tried to do in The Sweep and Force of Section Three.
The post The Objection That Enforcing Section Three Would Be Too "Dangerous" appeared first on Reason.com.
]]>What about democracy?! We should let the people vote for whomever they want!
Perhaps the most common objection to enforcing Section Three is that doing so would be "undemocratic" in some sense. Taking Section Three seriously, and applying its constitutional disqualification rigorously, it is said, would interfere with the right to vote. It would impair the right of the people to select their own leaders. It would be contrary to democracy. It would be downright unAmerican!
So the charge goes. In reality, this is more a political objection than a truly legal one (though it is sometimes cast in legal terms). It is ultimately an objection to Section Three itself – an objection to what the Constitution says and does. It is at bottom an anti-constitutional argument – an argument for not complying with what the Constitution requires. In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is wholly unpersuasive as a legal matter.
This objection comes in many rhetorical forms:
These are different ways of saying much the same thing. However cast, the substance of the objection is always pretty much the same.
The argument has a certain intuitive appeal: everybody supports "democracy" as an abstract proposition. But all versions of the argument share a common analytic flaw: they beg the relevant legal question entirely.
We begin with first principles. Our democracy is a constitutional democracy. The Constitution both channels and constrains democratic choice, and Section Three is one of those many constraints. It is a fundamental feature of the supreme Law of the Land. Accordingly, once we figure out exactly what constraints Section Three in fact imposes, that should settle the matter. The "democracy" objection is thus a complete red herring. If the Constitution imposes such a disqualification, that is indeed a limitation on voting and democratic choice. But it is a limitation that must be honored in a constitutional republic that imposes specific limitations and checks on the democratic political process.
The fact that the Constitution both channels and constrains democratic choice is evident from many different provisions. The Constitution constrains what government may do. It limits—through its grant of only limited federal powers, through its restrictions on state powers, and through its protection of individual rights—what democratic majorities can do, whether through Congress, through the states, or even through popular referenda. As the Supreme Court memorably put it in the case of West Virginia State Board of Education v. Barnette, the Constitution removes certain matters "from the vicissitudes of political controversy," placing them "beyond the reach of majorities and officials." Where the Constitution speaks to a question, such matters "may not be submitted to vote; they depend on the outcome of no elections." No matter how big the electoral majority, the Constitution is higher law that ordinary elections cannot change.
The Constitution's rules governing the elections and the electoral process are likewise supreme law. As to the specific question of eligibility for elected office, the Constitution restricts the right to vote, indirectly, by restricting who is eligible to hold specified elected offices. The President must be at least thirty-five years old. The President must be a "natural born" U.S. citizen, rather than a naturalized immigrant. The President must have been a resident of the United States for 14 years. The President must not have been elected to the presidency twice before. Age, residency, and citizenship restrictions all apply to Senators and Representatives as well.
All of these restrictions limit democratic choice. All of them could be decried as "undemocratic" in that sense. We cannot vote for former presidents Barack Obama or George W. Bush or Bill Clinton because they are disqualified from the presidency by the Twenty-second amendment. We cannot vote for former California Governor Arnold Schwarzenegger because, having been born in Austria to Austrian parents, he is constitutionally ineligible to be president. We cannot by our votes constitutionally choose a twenty-five year old for president. We cannot select a dead man, or a live dog, to be president, as neither one is a constitutionally eligible "person" within the meaning of the Constitution. All of these provisions limit the right of the people to elect whomever they wish. All of these provisions are in that sense "undemocratic." Are they all equally subject to condemnation in the pages of the New York Times? Are these provisions of the Constitution un-American?
This point runs deeper too. It runs to the structure of presidential elections themselves. In 2016, one of the candidates for President, Hillary Clinton, won a majority of the population's vote for President. But the other candidate, Donald Trump, became President because of the plain rules of the Constitution, which decides the presidency through the electoral college, and thus the electoral vote, even if that is not what a majority of the voters chose. Donald Trump lost the 2016 popular election by almost three million votes, but became President nonetheless because we follow the Constitution, not simple majority votes. That is "undemocratic," in a sense, but it is also basic constitutional law. (The same thing has happened in at least three earlier presidential elections, and there was another in which no candidate had an electoral vote majority.)
While there have been plenty of criticisms of the electoral vote system, virtually nobody denies that it is the law. Right-thinking, law-abiding citizens expected supporters of Hillary Clinton to stand aside and accept the election of Donald Trump, "undemocratic" though it might be, because the law is the law and the rules are the rules and that is the only way for a constitutional democracy to survive. And with a few ignoble exceptions, they did. For Trump's supporters and enablers to turn around now, and demand special exemption from constitutional rules they find inconvenient or undemocratic does not pass basic civics.
The essential problem with the "undemocratic" objection, in all its forms, then, is that it is simply legally irrelevant. It is empty political rhetoric that elides the core legal question of constitutional law: Does Section Three impose a constitutional ban on officeholding that applies in the specific situation at hand? If the answer is yes, we are not at liberty to ignore the Constitution's command – at least not if we purport to be governed by the terms of a written constitution. (Indeed, at least one of the objectors quoted above, Professor Samuel Moyn of Yale Law School, is explicit about this. In the pages of the New York Times he has also written that he seeks to "reclaim American from constitutionalism.")
What is more, these constitutional constraints in fact serve basic democratic functions, and that is especially true of Section Three. As others have pointed out, Section Three's disqualification from office of oath-breaking former officers who subsequently engaged in insurrection against the U.S. Constitution by attempting to overthrow or displace lawful government under the Constitution, is itself a fundamentally democracy-protective provision of our Constitution. It protects lawful United States government under the Constitution, by excluding from power men and women who, as demonstrated by their actions, would overthrow democracy and democratic choice under the Constitution.
Indeed, it is precisely Donald Trump's efforts to upend lawful democratic electoral choice under the Constitution that constitute the gravamen of Trump's disqualification by Section Three. Trump's efforts to overthrow the result of a lawful election and to install himself in office notwithstanding having lost that democratic constitutional election and to thwart, by fraud or by force, the peaceful transition of power to the election's winner, form the core of the factual and legal case for Trump's disqualification. These efforts were profoundly anti-democratic interferences with the processes of constitutional democracy. To decline to enforce Section Three in such circumstances may be the most anti-democratic choice of all.
Our friend Michael McConnell offers a subtle variation of the "democracy" argument. His argument is not that Section Three should not be followed at all. It is that Section Three's terms should be given as narrow a reading as possible so as to limit their supposed ill effects and susceptibility to abuse. In a post on this blog last fall, Professor McConnell conceded that he had "not done the historical work to speak with confidence" as to the original meaning and scope of the terms "insurrection" and "rebellion" as those terms were used in Section Three. Nonetheless, McConnell "would hazard the suggestion" that "we should seek the narrowest" reading of the terms that we can fashion, for the policy reason that "we should allow the American people to vote for the candidates of their choice." (Professor McConnell recently repeated this strict construction position in an on-line article, available here, which we will discuss shortly.)
Professor McConnell's variation on the "democracy" argument is no more faithful to the Constitution than the direct argument that we should not enforce Section Three at all because it is supposedly anti-democratic. Like Chief Justice Chase's opinion in Griffin's Case – discussed at length in our original article manuscript – Professor McConnell lets his political skepticism of Section Three drive his legal interpretation of its terms. This is fundamentally methodologically unsound, at least for someone committed (as we are) to "originalism" – the project of seeking to ascertain, and faithfully apply, the original, objective meaning of the Constitution.
A faithful constitutional interpreter should not begin by choosing a political principle and then fashioning a reading of the text trimmed to suit those purposes. The right approach is to seek first the correct meaning of the Constitution itself, and then to apply it faithfully as the law requires. Reading the text narrowly in light of a pro-democracy principle – or really, a pro-eligibility-even-of-possible-insurrectionists-principle – would be justified only if the text itself, or its original legal meaning, reflected that principle. But of course Section Three was enacted precisely because its framers thought its targets could no longer be trusted with power, even if they won a popular vote.
In fairness, McConnell does not really appear here to be attempting to be a constitutional "originalist," seeking the objective meaning of the text. Instead, he is being more a "Burkean" conservative seeking the result he finds least disruptive. One can respect such a stance and still make the observation that it is trimming the Constitution to suit political purposes.
In a more recent on-line essay, Professor McConnell is even more explicit about this approach, laying out his "interpretive priors" under a bold-face heading asserting that "Section Three should be strictly and narrowly construed." Again, this is wrong. The Constitution should not be interpreted with a thumb on the scales in favor of either a "narrow" reading or an "expansive" reading. As the late Justice Antonin Scalia (a noted originalist), and Bryan Garner explain in their treatise Reading Law, contriving an artificially "strict" or "narrow" interpretation of a text is as improper as contriving an unjustifiably expansive interpretation. Scalia and Garner quote Joseph Story for the proposition that we should seek the objective, reasonable interpretation of a legal text, not one driven by a predisposition one way or another. One should not indulge a hostility to the text and therefore seek to construe it in a "strict" fashion:
If . . . we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society; or derogated from the inherent sovereignty of the people. (Reading Law at 355, quoting 1 Story, Commentaries on the Constitution of the United States, §423, at 300 (2d ed. 1858)).
So too for Section Three: It should not be read with a jaundiced eye, "as if it were subversive of the great interests of society," and construed narrowly out of hostility to its policy.
In general, the objection that our reading of Section Three is "undemocratic" largely misses the mark. Section Three is a part of our Constitution, means what it means, and does what it does. Whether one thinks that Section Three is in tension with democratic values or, quite the reverse, is fundamentally democracy-protective, Section Three is part of our supreme Law of the Land and should be enforced in accordance with its terms.
The "democracy" objection is really a political objection to following the Constitution because one dislikes what it states. It is an objection to complying with the Constitution – an argument for not following the Constitution, because of political hostility to what the document says and does. As such, we think it fairly described as an "anti-constitutional" argument that has no proper place in legal analysis of the Constitution as a binding, authoritative written legal text.
The post The Objection that Enforcing Section Three is "Undemocratic" appeared first on Reason.com.
]]>Over on the Election Law Blog, Derek Muller has a post examining Trump's merits brief in Trump v. Anderson, noting that, whatever the Court does with regard to Trump and the 2024 election, the case has "the potential to be the most significant ballot access case in over 30 years." Moreover, while Trump has not leaned into the election law questions, Muller suggests that election law doctrines may offer more support for Trump's position (at least in the posture in which Trump v. Anderson arises) than the constitutional claims he is trying to make.
it seems increasingly likely, to me, that if the Supreme Court rules in Trump's favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.
If one goes back to see how Madison Cawthorn and Marjorie Taylor Greene handed the challenges to their eligibility back in 2022, it was a very different strategy. The original challenges, citing Section 3, were filed in state court. The defendants then went on the offensive. They filed collateral cases in federal court; they secured some delays and temporary victories; they secured sympathetic opinions from judges at the courts of appeals that leaned into some of their arguments on election law issues on the power of Congress to judge qualifications of its members, squarely the kind of election law issue that is a threshold to any substantive Section 3 analysis.
Trump, however, has handled the cases very defensively. He never filed collateral proceedings in federal court on election law issues. He's largely settled into framing the case along the lines the plaintiffs have framed it, as a constitutional law case under Section 3. . . .
It would seem that this significant ballot access dispute would attract a lot more election law attention. But it has not. Indeed, very few election law scholars have weighed in and the amicus briefs, and those that have with in support of neither party, reflecting some hesitation, to some degree, and some questions about the underlying merits. (Disclosure: I'm one of them.) [Here is Muller's brief.]
But I want to focus on Trump's arguments in the merits brief. And I think it seems increasingly likely (in my judgment, anyway) that while this case has not been principally litigated as an election law one, it might end up that way, if the court is inclined to rule in Trump's favor. But if it does not move in that direction. I think it's going to be very difficult for Trump to succeed on the merits, and it seems increasingly likely that the Court will hold that he could be barred from the ballot on the merits of Section 3. Indeed, watching the litigation unfold, my sense today is that Trump's chances of success are lower than they've ever been.
As Muller sees it, most of the arguments presented in Trump's brief do not have much force, but we will see how the justices respond when the Court hears oral arguments in Trump v. Anderson this coming week.
Post-Script: I have made no secret of my feelings about Trump, and those feelings have not changed. I did not support his election in 2016 or his reelection in 2020. I believe he should have been convicted and disqualified from holding future office after his impeachment (either one), and do not believe there is any constitutional bar on "late impeachment." And I would love to seem him disappear from our nation's political life altogether. I am nonetheless not (yet) convinced that he is disqualified from holding office again under Section 3, and I am quite skeptical that Section 3 bars him from appearing on the ballot.
The post What If Trump v. Anderson Is Treated Like an Election Law Case? appeared first on Reason.com.
]]>The article's core thesis – that Section Three's disqualification of insurrectionists from office is legally operative, self-executing, sweeping in scope, and likely disqualifies numerous participants in the efforts to overturn the 2020 presidential election – obviously has enormous implications for our national political life today. Among other important consequences, it means that former president Donald J. Trump, who is running for president again in 2024, is constitutionally disqualified from holding that or any other covered office, unless and until two-thirds of both houses of Congress vote to remove his disqualification.
Shortly after being accepted for publication, we posted the draft manuscript of the article on the Social Sciences Research Network (SSRN). The article (and its thesis) immediately attracted wide interest: For an academic article, The Sweep and Force of Section Three has provoked an unusual amount of interest and attention. It has been widely discussed on air, in print, online, and in the academy. And it has been widely cited in the current litigation about the enforcement of Section Three. As readers surely know, the Colorado Supreme Court held that Mr. Trump is indeed disqualified by Section Three from future office as a matter of federal constitutional law; and that this renders him ineligible for inclusion on the state primary ballot for election to that office as a matter of Colorado state law. The U.S. Supreme Court has granted certiorari to review that decision in what is sure to be one of its most important cases of the term.
For the most part, we have been content to let the analysis and arguments of The Sweep and Force of Section Three speak for themselves and have not participated in the subsequent public debate and litigation over its thesis. The manuscript itself is quite detailed – it runs 126 pages in its pre-publication form – and frankly it anticipates many of the objections that have been raised against its legal conclusions. Up until now, we have not elsewhere responded to these objections in print, at least not systematically.
But the occasion of the Colorado Supreme Court's decision in Anderson v. Griswold, and the Supreme Court's pending review of that decision in Trump v. Anderson, provides, we think, an appropriate occasion for us to address some of the arguments that have been made about Section Three. As noted, we discuss some, even many, of these points in our original article. The article is now in the final stages of editing with the excellent staff of the University of Pennsylvania Law Review. In the editing process, we decided against burdening the article's discussion with many responses to specific objections that have been made to its thesis, as those objections have arisen in public debate over the last four months, for two reasons: First, the version from last fall, as edited, largely stands on its own and has already been read by many in that form, which would makes it somewhat awkward (and perhaps irritating to some readers) to revise that text significantly to respond to assertions or critiques offered since September. Second, and relatedly, responding on the fly in the main text to objections as they arose would have made the article something of a moving target, and perhaps further delayed publication.
We adhere to all the points we made in that manuscript and have changed little. Nothing in the ensuing commentary, discussion, and litigation has caused us to revise our core propositions:
Because of the fast timetable for the Supreme Court's consideration of Trump v. Anderson, we have chosen to address in a short series of blog post/essays a few points in response to the ongoing Section Three debate – points that we might otherwise have reserved for a later law review essay. We will address certain discrete arguments that have been raised, elaborating where necessary on points we make in The Sweep and Force of Section Three, responding to certain discrete points of contention, clarifying points of possible confusion, and parrying objections we could not fully have anticipated but that we think badly flawed (or simply very odd – which might in part explain why we did not anticipate them). We will also address a few general points that have arisen in connection with the U.S. Supreme Court's consideration of the issues presented in the Trump v. Anderson case. Finally, we will point out minor respects in which we have modified, or qualified, positions taken in our article, The Sweep and Force of Section Three, in the course of editing and consideration of further comments. We may collect and revise them into a more final form when they are complete.
Our goal is for each blog post/essay to address a single specific point or theme unburdened by extensive footnotes. For example, we will soon discuss the objection that applying Section Three would be "undemocratic." Another may take on the argument, offered by some, that we should decline to enforce and apply Section Three because complying with the Constitution in this regard would be politically disruptive and perhaps dangerous. Another may examine arguments that Section Three issues are "political questions" that courts should refuse to decide as a matter of constitutional law. Another may look at the way "constitutional legislative history" has been used, and in some instances severely misused, in debating the meaning of Section Three. Another may examine further the assertion (already addressed in our main article) that Section Three does not apply to Donald Trump because he was not, as President, "an officer of the United States" and because the Presidency, the office he seeks again, is not an "office under the United States." Another may examine the suggestion that even if Trump is constitutionally disqualified from being President of the United States, that does not mean he is constitutionally ineligible to be elected as President of the United States. And so on. (We make no promises at this point.)
This introductory essay reflects a broader theme to the anticipated series, reflected in the title of this post: "Fighting the Meaning of Section Three." While we do not in any way doubt the good faith of our many critics, it seems to us that many of the objections and arguments raised against our thesis do not join issue with the legal arguments from text, history and structure. Some are political objections to complying with and carrying into effect the constitutional rules set forth in Section Three, even assuming our analysis is correct. (Or, what is much the same thing, they use burdens of proof or presumptions to override what would otherwise be the correct understanding of Section Three, for essentially political reasons.) Such arguments resist our claims about the meaning of Section Three, but they do not refute it. Others have sought to develop escape hatches, or loopholes, or (in one common expression) "off ramps" to avoid the legal conclusions set forth in our article. Still other objections wrestle forthrightly with the legal analysis of our article on conventional legal terms, but they are ultimately unavailing. Each of these classes of objections is "fighting" the meaning of Section Three in a different sense, but all of them are wrong.
As Gerard Magliocca recently observed, judges often use the phrase "the opinion won't write," to "describe the following situation: Their instinct is to decide a case in a particular way. But when they sit down to write the opinion, they find that they can't logically reach that result. This forces them to reconsider their initial conclusion." He further observes: "In a nutshell, this is what is happening with the Trump case. The instincts go one way and the law goes the other way. The more you look at the legal arguments, the less sure you are that Trump is eligible." This, we think, is the same process we are witnessing with those who are fighting the meaning of Section Three. At some point, it is time to conclude that one is fighting for the wrong side.
Enough said for now. In the next essay, we begin with the question of whether applying Section Three's disqualification to disqualify a presidential candidate is "undemocratic" in any constitutionally relevant sense.
The post Fighting the Meaning of Section Three appeared first on Reason.com.
]]>Today, I filed an amicus brief in Trump v. Anderson, the Supreme Court case addressing the issue of whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. It explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified. Text, original meaning, and O.J. Simpson all support that conclusion! I previously wrote about this aspect of the case here. Here's an excerpt from the brief's Summary of Argument:
Section 3 of the Fourteenth Amendment… safeguards our republic against the threat posed by public officials who have previously undermined it by engaging in insurrection or giving "aid and comfort" to the enemies of the United States. U.S. Const. Amend. XIV, § 3. Having shown their true colors once, these insurrectionist present and former officials are not permitted a second chance to undermine the republic….
The key questions before this Court are whether Donald Trump is disqualified under Section 3, and who has the authority to determine that Section 3 is applicable and, therefore, should be applied.
As this Court undertakes the weighty task of reviewing this case, this amicus brief hopes to provide guidance on two specific issues that have been raised repeatedly by Petitioner and Petitioner's amici. The first is whether Mr. Trump had to be convicted of a crime before he could be disqualified under Section 3. The second is whether disqualification in the absence of such a conviction violates Mr. Trump's right to due
process under the Fourteenth Amendment…. [T]he answer to both questions is a resounding "No."Part I explains why a criminal conviction is unnecessary for disqualification under Section 3. A criminal conviction is not required under the text and original meaning of the Fourteenth Amendment. In addition, the distinction between civil and criminal proceedings is a fundamental aspect of our legal system. The same events can give rise to both criminal charges and civil liability or (as in this case) disqualification. One is not a prerequisite to the other. Indeed, as demonstrated by the famous case of O.J. Simpson, a person acquitted of a crime may nonetheless be subject to civil liability for the very same events.
If there is no general requirement of a criminal conviction, there can be no requirement of a specific conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute. Conviction under Section 2383 is not and was not designed to be the exclusive mode of enforcing Section 3 disqualification.
Part II explains why disqualification in the absence of a criminal conviction does not violate Mr. Trump's due process rights. The Due Process Clause of the Fourteenth Amendment only applies to situations where a person is deprived of "life, liberty, or property." U.S. Const. Amend. XIV, § 1. Neither life, nor liberty, nor property is lost by virtue of disqualification from various public offices. Even if the Due Process Clause does apply, the civil process and standard of proof used by the Colorado courts are more than sufficient.
I am grateful to Gerson Smoger, a highly experienced litigator and Supreme Court amicus brief writer, for his assistance in drafting the brief on short notice. Prof. Gerard Magliocca, one of the leading academic experts on Section 3, provided valuable insights on the historical record.
I have written about other issues related to the Section 3 litigation in a variety of writings, most extensively here and here.
The post My Supreme Court Amicus Brief in Trump v. Anderson—the Section 3 Disqualification Case appeared first on Reason.com.
]]>In a brief filed on Thursday, Donald Trump's lawyers urge the U.S. Supreme Court to reject the claim that he is disqualified from running for president under Section 3 of the 14th Amendment because he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. Their arguments echo the points they made in their petition asking the justices to review the Colorado Supreme Court's December 19 decision to that effect. Among other things, the new brief fleshes out Trump's rebuttal of the premise that his conduct on January 6 can accurately be described as engaging in an "insurrection" against "the Constitution of the United States."
That section of the brief is highly misleading in some respects, minimizing the recklessness of Trump's pre-riot speech and his inexcusable dereliction of duty after the assault on the Capitol began. Those actions and inactions rightly led to Trump's impeachment by the House and should have resulted in his conviction by the Senate, which would have barred him from running for president again. But it does not necessarily follow that they amounted to engaging in an insurrection, and Trump's lawyers offer several cogent reasons to reject that assessment.
"No prosecutor has attempted to charge President Trump with insurrection" under 18 USC 2383 "in the three years since January 6, 2021, despite the relentless and ongoing investigations of President Trump," the brief notes. "And for good reason: President Trump's words that day called for peaceful and patriotic protest and respect for law and order. In his speech at the Ellipse, President Trump told the crowd to 'peacefully and patriotically make your voices heard.' And he encouraged 'support [for] our Capitol Police and Law Enforcement.'…President Trump also sent tweets throughout the day instructing his supporters to 'remain peaceful' and '[s]tay peaceful,' and he released a video telling the crowd 'to go home now.'"
That description omits crucial context, including the two months that Trump had spent ginning up his supporters' outrage with phony claims of a stolen election, his messages encouraging them to attend a rally that he said would be "wild," and the apocalyptic rhetoric of his speech at the Ellipse, which warned that Congress was about to destroy democracy by anointing a pretender as president. "We're going to have somebody in there that should not be in there," he said, "and our country will be destroyed, and we're not going to stand for that." If his supporters did not "fight like hell," he warned, "you're not going to have a country anymore." In this context, it was completely foreseeable that at least some of Trump's followers would resort to violence when he directed them to march on the Capitol in protest against the imminent certification of Joe Biden's victory, notwithstanding his instruction that they should do so "peacefully and patriotically."
The brief also ignores the ways in which Trump continued to stir up his supporters even after the riot began, including his tweet condemning Vice President Mike Pence for lacking the "courage" to unilaterally obstruct the electoral vote tally. And it glides over the timing of Trump's supposedly pacifying messages. He asked his supporters to "stay peaceful" and to "support our Capitol Police and Law Enforcement" at 2:38 p.m., nearly two hours after rioters overran the police perimeter around the Capitol and half an hour after they invaded the building itself. He told them to "remain peaceful" about 15 minutes later, and in both cases his phrasing obscured the fact that his supporters' behavior at that point was decidedly not peaceful. Trump "released a video telling the crowd 'to go home now'" at 4:17 p.m., nearly three and a half hours after the riot started. Even then, Trump continued to insist that "we had an election that was stolen from us," so "I know how you feel."
In the hours before Trump reluctantly recorded that video, he was watching the violence unfold on TV and resisting entreaties that he intervene. "This is what happens when they try to steal an election," he reportedly told a White House lawyer. He publicly offered the same take on Twitter around 6 p.m.: "These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!"
Trump's brief, in short, offers an expurgated account of his actions that would leave an uninformed reader puzzled about why his behavior was egregious enough to provoke bipartisan condemnation and trigger his second impeachment. His lawyers nevertheless raise several cogent points that cast doubt on the Colorado Supreme Court's conclusion that he "engaged in insurrection."
Trump "never told his supporters to enter the Capitol, and he did not lead, direct, or encourage any of the unlawful acts that occurred at the Capitol—either in his speech at the Ellipse or in any of his statements or communications before or during the events of January 6, 2021," the brief notes. Nor did Trump "engage in" any of the unlawful actions, such as fighting with police and forcibly entering the Capitol, that the Colorado Supreme Court cited as evidence that the riot qualified as an insurrection.
"Raising concerns about the integrity of the recent federal election and pointing to reports of fraud and irregularity is not an act of violence or a threat of force," Trump's lawyers say. "Giving a passionate political speech and telling supporters to metaphorically 'fight like hell' for their beliefs is not insurrection either." The voters who challenged Trump's inclusion in Colorado's presidential primary ballot "must show that President Trump's own conduct—and not the conduct of anyone at the Capitol on January 6th—qualifies as 'insurrection,'" the brief argues. "And this they cannot do."
Trump's lawyers note that the Colorado Supreme Court relied heavily on the testimony of Chapman University sociologist Peter Simi, who averred that Trump had a pattern of using "coded language" that hotheaded supporters would understand as a call to violence. "This Court should not allow a candidate's eligibility for the presidency to be determined or in any way affected by testimony from a sociology professor who claims an ability to decipher 'coded' messages," the brief says. "The fact remains President Trump did not commit or participate in the unlawful acts that occurred at the Capitol, and this Court cannot tolerate a regime that allows a candidate's eligibility for office to hinge on a trial court's assessment of dubious expert-witness testimony or claims that President Trump has powers of telepathy."
As the brief notes, the Colorado Supreme Court also "faulted President Trump for (in its view) failing to respond with alacrity when he learned that the Capitol had been breached." But "even if that were true (and it isn't)," Trump's lawyers say, "a mere failure to act would not constitute 'engagement' in insurrection, as even the Colorado Supreme Court recognized." That parenthetical "and it isn't" is blatantly at odds with the evidence, which shows beyond a reasonable doubt that Trump failed to "respond with alacrity" (a polite way of putting it). But his lawyers otherwise are on firm ground in arguing that such a failure is not enough to establish that Trump "engaged in" an insurrection.
The brief also plausibly argues that Trump's behavior did not meet the definition of proscribable incitement laid out in the 1969 Supreme Court case Brandenburg v. Ohio. In that decision, the Court said even advocacy of illegal conduct is protected by the First Amendment unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
"The Brandenburg standard does not turn on whether violence actually occurs in response to a person's speech," the brief notes. "It only matters whether the speech itself was 'intended' and 'likely' to incite imminent violence, and the constitutional status of President Trump's statements would be no different if he had given the same speech and his supporters remained entirely peaceful as he urged. This Court would never tolerate criminal prosecution of a speaker who tells his audience to 'fight like hell' and 'take back our country,' as language and rhetoric of this sort is common in political discourse."
In a widely read 2023 law review article, University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen make an originalist case for a broad reading of Section 3 that they say clearly covers Trump's conduct. Even if that view ran afoul of First Amendment precedents, they argue, Section 3 would trump freedom of speech as the Supreme Court has defined it. Trump's lawyers, by contrast, argue that his speech at the Ellipse fails the Brandenburg test and therefore cannot qualify as insurrection under Section 3: "Because President Trump did not 'incite violence' under Brandenburg, it follows per se that he did not 'engage in insurrection' either."
If the Capitol riot qualified as an insurrection and if Trump's actions amounted to engaging in that insurrection, the implications could extend far beyond one especially odious demagogue. In 2020, his lawyers noted in their Supreme Court petition, "violent protesters" in Portland, Oregon, "targeted the federal courthouse…for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States." Those are all crimes, of course, but do they also amount to insurrection under 18 USC 2383? Could a politician who delivered fiery remarks at such a protest be barred from office under Section 3?
The claim that Trump's January 6 speech passes the Brandenburg test likewise opens a can of worms. The 2020 protests against police brutality inspired by George Floyd's death frequently turned violent. Does that mean protest leaders can be held civilly or criminally liable for that violence, even when they neither advocated nor participated in it? The question is not theoretical.
The Supreme Court need not engage these questions to reject the conclusion that Section 3 applies to Trump, since there are several other plausible grounds for deciding that it does not. But the attempt to characterize what Trump did as engaging in an insurrection or as incitement under the Brandenburg test, while understandable given the Senate's failure to hold him accountable for his reckless behavior on January 6, opens the door to applications of those concepts that his opponents may not like.
The post Trump's Supreme Court Brief Rebuts the Claim That He 'Engaged in Insurrection' appeared first on Reason.com.
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In an article published today, New York Times columnist Ross Douthat responds to my and others' arguments that the January 6, 2021 attack on the Capitol qualifies as an "insurrection" under Section 3 of the Fourteenth Amendment. To his credit Douthat recognizes that uprisings much smaller than the Civil War—including the Whiskey Rebellion and Adolf Hitler's 1923 Beer Hall Putsch "—meet a reasonable definition of insurrection." As I have pointed out previously, these cases featured violence on roughly the same scale as the January 6 attack.
But Douthat nonetheless claims such cases "are obviously different from Jan. 6":
[T]he 14th Amendment disqualifies anyone who engaged "in insurrection or rebellion against the same" — with "the same" referring back to "the Constitution of the United States" in the prior clause. This wording tracks with my own understanding: What transforms a political event from a violent riot or lawless mob (which Jan. 6 plainly was) to a genuinely insurrectionary event is the outright denial of the authority of the existing political order and the attempt to establish some alternative order in its place.
There is no question that this is what the Munich Beer Hall Putsch set out to do….
[T]here was no such equivalent declaration when the QAnon Shaman ascended to the Senate rostrum; no serious claim of military or political authority made on behalf of the assembled mob, no declaration of a dissolved Congress and a new Trumpist Reich. Had there been — had, say, one of Trump's aides rushed to the Capitol and announced that Congress was disbanded and that President Trump was declaring a state of emergency and would henceforth be ruling by fiat — then the riot would have been transformed into an insurrectionary coup d'état. But nothing like that happened: The riot did not culminate in an attempt to depose the Congress; it dissolved before lawful authority instead, remaining a mob until the end.
The problem with Douthat's reasoning is that it implies the Confederates who were the original targets of Section 3 weren't insurrectionists either! Far from rejecting the Constitution and "denying the authority of the existing political order," they argued the Constitution gave their states a legal right to secede, and that Abraham Lincoln and the federal government were the ones acting illegally. Moreover, they had a much better legal rationale for their position than Trump supporters for the utterly indefensible claim that their man was the true winner of the 2020 election. Violently attempting to block the constitutionally required transition of power to the winner of a presidential election is pretty obviously an insurrection against the Constitution—even if the perpetrators don't explicitly say so. I go into these points in greater detail in a post published in September.
Douthat's theory also has the absurd implication that people trying to seize power by force can escape disqualification under Section 3 so long as they claim—however implausibly—that they are actually following the Constitution and their opponents are the true lawbreakers. You don't have to be a constitutional lawyer to see why that's an implausible conclusion—one that would set a dangerous precedent.
The post January 6 and Insurrection—a Response to Ross Douthat appeared first on Reason.com.
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Steve Calabresi has posted an impressively swift response to my post explaining why the January 6, 2021 attack on the Capitol was an insurrection. But I remain unpersuaded. Steve's emphasis on the use of the word "rebellion"—in addition to "insurrection"—in Section 3 of the 14th Amendment only reinforces my point.
Steve relies on the legal rule of noscitur a sociis, which is the idea that words in a statute should be understood by reference to their "associates," in this case that "insurrection" should be understood as similar to "rebellion" because in Section 3 both occur in the same phrase ("insurrection or rebellion"). He then argues that "rebellion" is limited to uprisings on a scale comparable to the Civil War.
While it is reasonable to read the two words together, one can't be interpreted in such a way as to render the other redundant. That would violate another longstanding rule of legal interpretation: the canon against superfluity, which, as Justice Scalia and Bryan Garner explain in Reading Law, requires courts to give effect to "every word and every provision" in a law and to ensure that "none should be needlessly given an interpretation that duplicates another provision" (quoting US v. Butler (1936)). While "insurrection" and "rebellion" may overlap and be similar, it is perfectly plausible that one may include some uprisings too small to be included in the other. If they were completely identical, one term would be rendered superfluous. Thus, my explanation of how the January 6 attack fits any plausible definition of "insurrection" (including Steve's own preferred definition from the 1828 Webster's dictionary) remains unrefuted.
In addition, the events of January 6 fit any plausible definition of "rebellion," as well—including, once again, Steve's own preferred definition. There is no reason to believe that a "rebellion" must be on a scale comparable to the Civil War, or anything like it. There is nothing incoherent or implausible about the idea of a small-scale rebellion that is quickly suppressed. Such rebellions are actually far more common than large and prolonged ones!
Consider the two most famous pre-Civil War events in American history generally labeled rebellions: Shay's Rebellion (1786-87), and the Whiskey Rebellion (1793). Both were on a scale similar to the January 6 attack. Each involved no more than a few thousand rebels (only about 600 in the case of the Whiskey Rebellion; many fewer than January 6). Each occurred in one part of just one state (western Massachusetts and western Pennsylvania, respectively). The number of combat fatalities (9 for Shay's Rebellion, 3-4 for the Whiskey Rebellion, 5 on January 6) is also similar.
The two 18th century uprisings did take longer to suppress than January 6 did. But that was in large part because a comparable number of rebels were spread over a larger area. Plus, the military response to the two revolts was slow to develop and eighteenth century transportation technology made it harder to move troops quickly than is the case today.
I would add that the objectives of Shays Rebellion (debt relief) and the Whiskey Rebellion (repealing the federal whiskey tax) were more limited than those of the January 6 rebels (seizing control of the most powerful office in the land and denying it to the rightfully elected candidate). In that respect, January 6 was actually more clearly a rebellion than either of the other two.
Relying again on the 1828 Webster's Dictionary, Steve defines "rebellion" as "An open and avowed renunciation of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt." The January 6 attack easily falls within this definition. The people who attacked the Capitol clearly took "up arms" and "resist[ed] the authority of the lawful government." Indeed, their purpose was to enable Trump to illegally continue to wield that authority. The fact they believed it rightfully belonged to him does not change the nature of their actions, for reasons I outlined in a previous post. Notice also that Steve's preferred definition indicates no minimum scale that an uprising must reach before it can be considered a "rebellion." A small "revolt" qualifies no less than a big one.
Steve asks whether, under my approach, the 2020 "Black Lives Matter" riots also qualify as insurrections. In my view, the answer is probably not, because the rioters did not seek to take control of the powers of government. Unlike the participants in the Whiskey and Shays' rebellions, most didn't even seek the repeal of specific laws. But if some did seize government power (the case of the "CHOP" group, which took control of parts of the Seattle for several weeks may be an example), then their actions do qualify as "insurrection." I have no problem biting that bullet.
Of course, only those participants who previously held various types of public offices can be disqualified under Section 3. Some Seattle officials apparently helped CHOP. If Steve—or anyone else—wants to get these people disqualified from future office-holding under Section 3, I think they might have a good case.
In sum, January 6 was an insurrection—including under Steve's preferred definition of that term. And, to the extent it matters, it probably counts as a "rebellion" as well.
UPDATE: Steve Calabresi has posted an additional rejoinder responding to this post here. He argues that Section 3 applies only to "rebellions" or "insurrections" that are comparable in scale to the Civil War, which is the "paradigm" case the section was intended to address. But Section 3 speaks in general terms of insurrection and rebellion, and requires disqualifying all covered government officials who "engage" in them. That strongly suggests it was meant to apply to all insurrections and rebellions, not just some subset that may be seen as similar to the Civil War. Steve provides no textual or original meaning evidence to the contrary.
It would make little sense to exempt insurrectionists from the ban merely because their attempts to overthrow the government were ineffective and relatively easily crushed. The whole point of Section 3 is to prevent such people from getting a second chance to subvert the republic. People who try one insurrection that fails miserably may be more effective the next time around! They could even learn from their previous mistakes.
The Constitution has many provisions that were enacted in response to a "paradigm" case (or cases), but nonetheless apply more generally. The Fourteenth Amendment's restrictions on racial and ethnic discrimination was enacted in response to southern states' oppression of blacks, but nonetheless protects other groups, too, and ban state-sponsored racial discrimination that takes forms different from those of the Black Codes of the 1860s. The First Amendment was enacted in response to specific types of censorship and oppression of religious minorities practiced by eighteenth century Britain, but nonetheless protects freedom of speech and religion more broadly.
Finally, it is not true the mob attacking the Capitol "peacefully dispersed on Donald Trump's request." They fled because they were defeated after extensive fighting, and reinforcements arrived to assist the initially overwhelmed Capitol Police. Trump did not issue any request to disperse until after it was clear that the attack he inspired was on its way to defeat. Until that point, evidence indicates he was cheering on the mob (much of it summarized by the Colorado Supreme Court in its Section 3 decision), and trying to use the attack as leverage to pressure members of Congress into refusing to certify the election results.
At this point, we are probably in the realm of diminishing returns in this exchange. I will leave off, unless some significant new point is raised. Many thanks to Steve for his insights.
The post Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi [updated with brief further rejoinder] appeared first on Reason.com.
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Today is the third anniversary of the January 6, 2021 attack on the Capitol, intended to keep Donald Trump in power after he lost the 2020 election. One of the points at issue in the Supreme Court case considering whether Trump should be disqualified under Section 3 of the Fourteenth Amendment is whether the events of that day qualify as an "insurrection." It should be an easy call. The January 6 attack was an insurrection under any plausible definition of that term.
As legal scholar Mark Graber shows, contemporary definitions of "insurrection" prevalent at the time the Fourteenth Amendment was enacted were quite broad: possibly broad enough to encompass any violent resistance to the enforcement of a federal statute, when that resistance was motivated by a "public purpose." That surely includes the January 6 attack!
I'm not convinced courts should actually adopt such a broad definition. It could set a dangerous precedent. As Graber notes, on that theory people who violently resisted enforcement of the Fugitive Slave Act qualify as insurrectionists, too. But January 6 was an insurrection even under a narrow definition that covers only violent attempts to illegally seize control of the powers of government. After all, the attackers were using force to try to keep the loser of the 2020 election in power, blocking its transfer to the rightful winner. If that isn't a violent attempt to seize government power, it's hard to know what is.
It's true many of those who participated thought they were acting to support the rightful winner of the election, and thus believed they weren't doing anything illegal. But much the same could be said of the ex-Confederates who were the original target of Section 3. Most of them believed their states had a constitutional right to secede, and they had much better grounds for that belief than Trumpists ever had for the utterly indefensible claim that the election was stolen from him (one uniformly rejected in numerous court decisions, including by judges appointed by Trump himself).
It is sometimes claimed that the mob attacking the Capitol was unarmed or not violent enough to qualify as an insurrection. That would be news to the five people who were killed, and over 140 police officers injured. There could easily have been many more fatalities had the attackers been more successful in carrying out their plans to "hang Mike Pence" and kill members of Congress (Pence and the members managed to escape). And it just isn't true that the mob was unarmed. After extensive consideration of evidence, Colorado courts found otherwise:
[C]ontrary to President Trump's assertion that no evidence in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—that the mob was armed with a wide array of weapons…. The court also found that many in the mob stole objects from the Capitol's premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers' batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol…. The fact that actual and threatened force was used that day cannot reasonably be denied.
Co-blogger and prominent conservative law professor Steve Calabresi is nonetheless unconvinced January 6 was an insurrection. He relies on a definition of "insurrection" from the 1828 edition of Webster's Dictionary:'
A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.
The events of January 6 fit this definition to a T! The attack on the Capitol was obviously "A rising against civil or political authority" and even more clearly "the open and active opposition of a number of persons to the execution of a law in a city or state." The mob incited by Trump sought to prevent the "execution" of the laws requiring transfer of power to the winner of the election.
Calabresi suggests that the January 6 attack fits the definition of a "riot." Perhaps so. But "riot" and "insurrection" aren't mutually exclusive concepts. An event can be both at the same time. Indeed, that's a common occurrence in history.
Calabresi and others also argue that the attack wasn't large enough to qualify as an insurrection because, as he puts it, the attack "occurred for three-and-one-half hours in one city only in the United States, Washington D.C., and not as an overall insurgency in multiple cities across the United States." But the definition he himself cites indicates that an insurrection is "the open and active opposition of a number of persons to the execution of a law in a city or state" (emphasis added). That suggests one city is enough.
And there is no historical or modern evidence indicating that an insurrection has to last some minimum length of time. A revolt that is quickly put down can still be an insurrection. The same goes for one that is poorly planned and easily defeated.
If actions in multiple cities are required, a great many attempted coups and armed revolts would not count as "insurrections." It is common for attempts to seize power to focus on the capital city where the government is located. If the revolt is put down, it may not spread elsewhere. But that doesn't mean it was not an insurrection.
The Bolshevik seizure of power in Russia in 1917 initially involved just the capital city of St. Petersburg. If the Provisional Government had managed to swiftly crush it, thereby preventing it from spreading to other cities, would that mean it wasn't an insurrection?
Do Steve and others who advance similar reasoning believe Adolf Hitler's 1923 Beer Hall Putsch was as an insurrection? Like the January 6 attack, it lasted only about one day (evening of Nov. 8, 1923 to the evening of the following day), and was limited to a single city (Munich, the capital of the German state of Bavaria). The number of participants (several thousand; 1265 people have been charged with offenses related to the attack on January 6, and many other participants likely got away without being identified or charged) and the number of people injured was also similar to that of January 6.
There were somewhat more fatalities (21) in the Beer Hall Putsch. But 16 of them were participants in the coup (the others were four police officers and a civilian bystander). The Bavarian police and troops who put down the revolt were less restrained in their use of force than US law enforcement officers on January 6 (who only killed one of the attackers). That surely isn't a decisive difference between the two cases. More aggressive law enforcement action cannot by itself transform a mere "riot" into an insurrection.
It seems obvious that both the Beer Hall Putsch and the January 6 attack were insurrections, for the simple reason that both involved the use of force to illegally seize control of government power. It matters not how long they lasted, or that they were poorly planned and quickly put down. And it certainly doesn't matter that they both occurred in just one city.
There is an admittedly more difficult issue over the question of whether Trump "engaged" in the insurrection that occurred. I think the Colorado Supreme Court decision that the US Supreme Court will review dealt with that question persuasively. But Trump has a better argument on that point than on any other. His involvement, while substantial, was less clear and direct than, say, Hitler's in the Beer Hall Putsch or Lenin's in the Bolshevik revolt in Russia. But whatever might be said of Trump's level of involvement, there can be no serious doubt that an insurrection did occur.
UPDATE: I have made minor additions to this post.
UPDATE #2: Steve Calabresi responded to this post here. I have posted a rejoinder here.
The post The January 6 Attack was an Insurrection appeared first on Reason.com.
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This afternoon the Supreme Court agreed to review the Colorado Supreme Court decision disqualifying Trump from appearing on the state's ballot in the 2024 presidential election, under Section 3 of the Fourteenth Amendment. The case will be heard on an expedited schedule, with oral arguments scheduled for February 8, a little over one month from now. The justices likely chose to hear the case quickly so as to make sure it gets resolved before we go too much further into the 2024 election cycle.
Significantly, the Court has not limited the questions presented. That means the justices could potentially consider the full range of issues raised by the case, including whether the January 6 attack on the Capitol qualifies as an "insurrection," whether Trump's actions amount to "engaging" in insurrection, whether the president is an "officer of the United States" covered by Section 3, whether Section 3 is "self-executing," whether it is a "political question," and whether Trump got adequate due process in the state court. There may be some additional procedural questions, as well. But perhaps the Court will issue narrowing questions presented before briefs are due.
Most observers expect the Court to overturn the Colorado decision. That might well happen; it may even be the most likely outcome. But I think many are underrating the likelihood that the justices will affirm the Colorado ruling. The latter is based on strong reasoning, including from an originalist point of view. And to the extent the justices may be motivated by reputational considerations, disqualifying Trump is the perfect opportunity for them to show once and for all that they are not adjuncts of the GOP and especially not the "MAGA Court." In my view, much of the left-wing criticism of the Court is wrong or over overblown; but my opinion is not what's decisive for the Court's public and elite standing.
Of course, I'm far from a perfect prognosticator of what the justices will do. We'll likely get a better sense of where they stand during the oral argument.
I assessed the Colorado decision (which I think is largely correct) here. I went over the issues at stake in the Section 3 litigation in more detail in this article (written before the Colorado decision). In a September Lawfare article, I addressed various pragmatic and moral concerns raised by disqualification, such as claims that it would be anti-democratic and might create a dangerous slippery slope.
The post Supreme Court Will Consider Trump Section 3 Disqualification Case appeared first on Reason.com.
]]>In a petition filed on Wednesday, Donald Trump's lawyers ask the U.S. Supreme Court to reverse the Colorado Supreme Court's determination that he is disqualified from that state's presidential primary ballot because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. The petition suggests several plausible reasons for rejecting that attempt to enforce Section 3 of the 14th Amendment, which was originally aimed at preventing former Confederates from returning to public office after the Civil War.
Section 3 says: "No person shall be a Senator or Representative in Congress, or elector of 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 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 against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
UCLA election law expert Richard Hasen describes Trump's petition as "a strong legal document" that "raises some serious, difficult questions" about how to interpret and apply that language. Here are seven of those questions:
1. Is Section 3 self-executing?
Under Section 5 of the 14th Amendment, "the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." But the Colorado Supreme Court concluded that Section 3 is "enforceable as a constitutional disqualification without implementing legislation from Congress." In an influential 2023 law review article, University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen reach the same conclusion. While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.
That interpretation seems consistent with the second sentence of Section 3, which says Congress can "remove such disability," implying that the disqualification is otherwise automatic. But Congress did enact legislation aimed at enforcing Section 3 against former Confederates during Reconstruction, although it later approved broad amnesties that removed those disabilities. Dissenting Colorado Supreme Court Justice Carlos A. Samour Jr. argued that Section 3 is not self-executing, citing Chief Justice Salmon P. Chase's 1869 opinion to that effect.
The Colorado Republican State Central Committee (CRSCC), in its own Supreme Court petition, argues that "Congress, and Congress alone, can enforce Section Three." It says the only plausibly relevant current statute is 18 USC 2383, which makes insurrection a federal crime and adds that anyone convicted of it "shall be incapable of holding any office under the United States." But as the CRSCC notes, Trump "has not been indicted under Section 2383, let alone tried and convicted," which it says "would be required to trigger application of Section Three."
Trump's petition says that argument is "worthy of consideration" by the Supreme Court. But "even if section 3 does not require enforcement legislation to have effect," his lawyers say, "the lack of such legislation deprives the courts of judicially manageable standards." Echoing a concern that Samour raised, they note that the 14th Amendment does not say who has the authority to determine whether a candidate is disqualified under Section 3 or what standard of proof should apply. "The terms 'engage' and 'insurrection' are unclear and subject to wildly varying standards," they say. "The result is that 51 different jurisdictions may (and have) adopted divergent rulings based on different standards on the same set of operative facts."
2. Is the presidency a civil office "under the United States"?
Although the answer might seem obvious, Section 3 specifically mentions senators, representatives, and presidential electors but not the head of the executive branch, who you might think would have been at the top of the list if that position was supposed to be included. "To find that section 3 includes the presidency, one must conclude that the drafters decided to bury the most visible and prominent national office in a catch-all term that includes low ranking military officers, while choosing to explicitly reference presidential electors," Trump's petition says. "This reading defies common sense."
University of Richmond law professor Kurt Lash makes the same point. "It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers," he writes. "At best," he argues, "the text of Section 3 is ambiguous regarding the office of president."
The original draft of Section 3 did specifically mention the president and the vice president, but those references were ultimately removed. Although that change seems like evidence that Section 3 does not cover the presidency or the vice presidency, the Colorado Supreme Court cited an exchange between two senators that suggests otherwise.
The revised Section 3 "does not go far enough" because ex-Confederates "may be elected President or Vice President of the United States," Sen. Reverdy Johnson (D–Md.) complained during the congressional debate over the 14th Amendment. "Why did you omit to exclude them?" Sen. Lot Morrill (R–Maine) reassured Johnson: "Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States.'" Johnson conceded that "perhaps I am wrong as to the exclusion from the presidency," adding, "no doubt I am," but "I was misled by noticing the specific exclusion in the case of senators and representatives."
3. Is the president "an officer of the United States"?
That phrase refers to the prior status of someone disqualified under Section 3. Again, it may seem obvious that the category includes the president. But Trump's lawyers note that "the phrase 'officer of the United States' appears in three constitutional provisions apart from section 3, and in each of these constitutional provisions the president is excluded from the meaning of this phrase."
The Appointments Clause "requires the president to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and 'all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.'" The Commissions Clause "requires the President to 'Commission all the Officers of the United States.'" Since the president "does not (and cannot) appoint or commission himself," Trump's lawyers argue, those clauses imply that the president is not "an officer of the United States" under the Constitution.
Similarly, the Impeachments Clause says "the President, Vice President and all civil
officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Trump's lawyers say that language likewise suggests Trump was not "an officer of the United States" when he served as president.
4. Did Trump take an oath to "support the Constitution"?
That language tracks with the oaths taken by members of Congress, state legislators, and "all executive and judicial officers," as specified in Article VI. But the presidential oath, described in Article II, is worded differently, requiring the oath taker to "preserve, protect and defend" the Constitution. The Colorado Supreme Court thought that amounted to pretty much the same thing, saying "the language of the presidential oath" is "consistent with the plain meaning of the word 'support.'" But Trump's lawyers argue that the difference in wording underlines the distinction between the president and other government officials. "The drafters of section 3 had before them both the Article VI and Article II oaths," they say, "and they chose to apply section 3 only to those who took Article VI oaths."
5. Was the Capitol riot an "insurrection"?
Two weeks after the riot, Indiana University law professor Gerard Magliocca, who in 2020 wrote "the first scholarly account" of Section 3, said he was "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like."
Magliocca nevertheless thought the Capitol riot could plausibly be described as an insurrection, since "the mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force." More recently, he has taken a firmer stance, telling Boston's NPR station, "I think that January 6 constitutes an insurrection within the meaning of Section 3."
Trump's lawyers unsurprisingly take a different view. Given the historical context, they say, "'insurrection' as understood at the time of the passage of the Fourteenth Amendment meant the taking up of arms and waging war upon the United States." That is notably different, they argue, from what happened at the U.S. Capitol in 2021 or from what happened the previous year in Portland, Oregon, where "violent protestors targeted the federal courthouse…for over 50 days, repeatedly assaulted federal officers and set fire to the courthouse, all in support of a purported political agenda opposed to the authority of the United States." Such incidents, they say, reflect "a long history of political protests that have turned violent," which are a far cry from what Section 3's framers had in mind.
6. Did Trump "engage in" an "insurrection"?
"I think that former President Trump engaged in insurrection before and on January 6," Magliocca says. So do Baude and Paulsen, who make an originalist case for a broad reading of Section 3 that they say clearly covers Trump's conduct.
In reaching the same conclusion, the Colorado Supreme Court relied heavily on the final report from the House select committee that investigated the riot and the testimony of Chapman University sociologist Peter Simi. Simi opined that Trump "developed and employed a coded language based in doublespeak that was understood between himself and far-right extremists, while maintaining a claim to ambiguity among a wider audience."
Since Trump was speaking in code when he gave his inflammatory pre-riot speech at the Ellipse, the court reasoned, divining his intent requires going beyond the surface meaning of his words. He may have talked about "peacefully and patriotically" marching on the Capitol, the majority said, but "his violent supporters" knew what he really meant. And when he urged them to "fight like hell," they knew he meant that literally.
As Trump's lawyers note, Simi's testimony was based solely on the January 6 committee's report and his interpretation of Trump's public speeches. Simi conceded that he was not in a position to say what was "in President Trump's mind" when he gave his speech at the Ellipse. When asked whether he had "evidence that it was President Trump's intention to call them to action," Simi replied that his testimony "is not addressing that issue." Yet "the district court used Simi's testimony to support its factual finding that President Trump intended to incite violence," Trump's petition notes, and the Colorado Supreme Court agreed with that conclusion.
7. Is Section 3 a bar to running for office?
Baude and Paulsen argue that Section 3 "can and should be enforced by every official, state or federal, who judges qualifications" of political candidates. In this case, they say, that means all of those officials have a duty to exclude Trump from the ballot. But Trump's lawyers argue that Section 3 "merely bars individuals from holding office, not from seeking or winning election to office." They note that "Congress can remove a section 3 disqualification at any time," which means it could "remove that disability after a candidate is elected but before his term begins."
These complications might make you wonder whether Trump's opponents are relying on the wrong amendment to stop him from running for president again. Given his continued insistence that he actually won reelection in 2020, the 22nd Amendment seems more promising.
The post 7 Reasons Trump's Lawyers Say He Is Not Disqualified From Running for President appeared first on Reason.com.
]]>On Thursday, Maine joined Colorado in concluding that Donald Trump is disqualified from running for president because he "engaged in insurrection" by inciting the January 6, 2021, riot at the U.S. Capitol. Both of those decisions raise the question of what counts as an "insurrection" under Section 3 of the 14th Amendment and what it means to "engage in" one. The conjunction of Trump's ballot exclusion in Maine, which is based on a decision by the state's top election official, with his disqualification in Colorado, which is based on a ruling by that state's Supreme Court, highlights two more issues: Who decides whether a candidate is covered by Section 3, and what standard of proof should apply?
Section 3, which originally was aimed at preventing former Confederates from returning to public office after the Civil War, says "no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof." In its December 19 decision applying that provision, the Colorado Supreme Court partly upheld and partly overturned a ruling by Denver District Court Judge Sarah B. Wallace.
The case began with a lawsuit by several anti-Trump voters who sought an injunction compelling Colorado Secretary of State Jena Griswold to exclude him from the presidential primary ballot. Trump and the Colorado Republican State Central Committee joined the case as intervenors. After a five-day trial, Wallace concluded that "clear and convincing evidence" showed Trump had engaged in insurrection but that Section 3 does not apply to the presidency. The Colorado Supreme Court agreed with the first conclusion but disagreed with the second.
In Maine, by contrast, three challenges to Trump's candidacy were filed directly with Secretary of State Shenna Bellows, who held a hearing on December 15. Based on "a preponderance of the evidence" (a weaker standard than the one used in Colorado), Bellows concluded that "Mr. Trump's primary petition is invalid" because "he is not qualified to hold the office of the President under Section Three of the Fourteenth Amendment" and falsely claimed otherwise. The Trump campaign is appealing that decision in state court.
According to one interpretation of the 14th Amendment, neither the Colorado Supreme Court nor Bellows had the authority to decide whether Trump is disqualified based on his allegedly insurrectionary conduct. Under Section 5 of the amendment, "the Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress arguably did that when it passed the Insurrection Act in 1948. Under that statute, "whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."
Although Trump has been charged with federal and state crimes based on his efforts to reverse the outcome of the 2020 presidential election, he has not been charged with insurrection, let alone convicted of that offense. According to some critics of the Colorado and Maine decisions, that means he cannot be excluded from the ballot under Section 3. That argument assumes that Section 3 can take effect only through congressional legislation and that a conviction based on proof beyond a reasonable doubt is necessary to disqualify Trump.
One piece of evidence in support of the first premise, dissenting Colorado Supreme Court Justice Carlos Samour Jr. noted, is an opinion that Chief Justice Salmon P. Chase wrote the year after the 14th Amendment was ratified. Chase took the position that Section 3 was not self-executing. University of Chicago law professor William Baude and University of St. Thomas law professor Michael Stokes Paulsen argue that Chase was "simply wrong on this point." While Congress could pass legislation to enforce Section 3, they say, that does not mean the provision has no effect without such legislation.
In a 2023 law review article, Baude and Paulsen make an originalist case for a broad reading of Section 3 that they think clearly covers Trump. They also argue that any state or federal official charged with determining who is qualified to appear on a ballot, which would include state judges and secretaries of state, is not only authorized but obligated to disqualify Trump, along with "potentially many others" who participated in "the attempted overthrow of the 2020 presidential election."
As Baude and Paulsen see it, "Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress." It therefore "can and should be enforced by every official, state or federal, who judges qualifications." Those officials, Baude and Paulsen concede, may have different views about what sort of conduct disqualifies a candidate under Section 3. But they say uncertainty about the reach of Section 3 does not absolve officials of the responsibility to enforce it.
"Some applications," such as "declaring unilateral secession from lawful constitutional government" or "the taking up of arms against government," will be "clear and virtually indisputable, falling within the terms' core meaning," Baude and Paulsen write. "At the other end of the continuum, there will be situations that clearly lie in a safe harbor outside the legitimate range of meaning of Section Three's terms—ordinary expression of political dissent as well as even ordinary law violations."
Between those two extremes, Baude and Paulsen say, "there is a zone of reasonable, fair construction of allowable interpretation and application in which government officials may make judgments that must be conceded to be within the range of what the Constitution permits—and where the decisions and actions of government officials exercising their constitutional powers consequently cannot be considered unlawful and thereby subject to judicial invalidation. Within that fair range of meaning, different interpreters legitimately can reach differing conclusions, all in accordance with the Constitution."
The implication is that Maine's courts have no business second-guessing Bellows' determination that Trump is disqualified from the ballot. Since Baude and Paulsen think Trump is clearly covered by Section 3, Bellows' agreement on that point must qualify as a "reasonable, fair construction" and "allowable" application, meaning it is not subject to "judicial invalidation." Such broad executive-branch discretion in applying an ambiguous constitutional provision seems to open a huge can of worms, especially given Baude and Paulsen's view that not just Trump but "potentially many" other candidates could be affected.
What about due process? Trump argues that neither Wallace's trial nor Bellows' hearing gave him an adequate opportunity to contest the claim that he engaged in insurrection. Many observers, including vigorous Trump critics, agree.
"Our government cannot deprive someone of the right to hold public office without due process of law," Samour wrote in his dissent. "Even if we are convinced that a candidate committed horrible acts in the past—dare I say, engaged in insurrection—there must be procedural due process before we can declare that individual disqualified from holding public office….If President Trump committed a heinous act worthy of disqualification, he should be disqualified for the sake of protecting our hallowed democratic system, regardless of whether citizens may wish to vote for him in Colorado. But such a determination must follow the appropriate procedural avenues. Absent adequate due process, it is improper for our state to bar him from holding public office."
The Washington Post made the same point in an editorial criticizing the Colorado Supreme Court's ruling. "The case's most consequential conundrum," it said, is "whether Mr. Trump really did engage in insurrection….What's missing from the majority's analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn't even been charged with it."
According to Baude and Paulsen, such criticism is misplaced. The Fifth and 14th Amendments say no person may be deprived of "life, liberty, or property" without "due process of law." But "it is far from clear that the right to hold public office is a form of
life, liberty, or property," Baude and Paulsen write. "It is a public privilege, a public trust, to be vested with the power of the people. And though it is a closer case, the same thing may be true even for those who already hold office at the moment that Section Three disqualifies them. Due process protects private vested rights from public deprivation. It does not protect public rights." In any case, they say, Section 3 supersedes due process in this context. They make a similar argument regarding potential conflicts between Section 3 and the First Amendment.
George Mason law professor Ilya Somin agrees that a criminal conviction is not necessary to disqualify Trump under Section 3. Since this is a civil process, he says, it makes sense that a weaker standard than proof beyond a reasonable doubt would apply. He also notes that "none of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War."
While former Confederates had indisputably participated in an insurrection, however, the same cannot be said of Trump. He vigorously denies it, and even critics who think he is manifestly unsuited for the presidency do not necessarily agree that his conduct is covered by Section 3. Nor is the historical record very helpful in answering that question.
In 2020, Indiana University law professor Gerard Magliocca wrote what he described as "the first scholarly account" of Section 3. In a 2021 Lawfare essay, Magliocca said he had been "unable to find any particularly helpful authority" on the question of what counts as an "insurrection." In the 1860s and 1870s, he noted, "everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like." He nevertheless thought the Capitol riot was plausibly viewed as an insurrection.
"The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force," Magliocca wrote. Furthermore, the criminal charges against some of the rioters indicated that they "intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government."
More recently, Magliocca has taken a firmer stand. "I think that January 6 constitutes an insurrection within the meaning of Section 3," he told Boston's NPR station last week. "I think that former President Trump engaged in insurrection before and on January 6."
If "no thought was given to what other insurrections might look like" at the time the 14th Amendment was proposed and ratified, it is hard to be confident in that assessment. And if such disputes are to be resolved by state officials across the country, applying varying interpretations of Section 3 and varying standards of proof, the results are apt to be wildly uneven and inconsistent. "I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis," Samour wrote. "Surely, this enlargement of state power is antithetical to the framers' intent."
To forestall that scenario, the U.S. Supreme Court need not reach the question of whether Trump engaged in insurrection. It could rule that Section 3 is not self-executing or that it does not apply to Trump because the presidential oath does not meet Section 3's criteria or because "any office, military or civil, under the United States" was not understood to include the presidency.
University of Richmond law professor Kurt Lash, a 14th Amendment scholar who recently wrote a paper on "the meaning and ambiguity" of Section 3, favors that last rationale. "At best, the text of Section 3 is ambiguous regarding the office of president," he writes in The New York Times. "The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."
The post Who Decides Whether Trump Can Run, and What Sort of Evidence Suffices? appeared first on Reason.com.
]]>Last week's ruling by the Colorado Supreme Court that former President Donald Trump is ineligible to hold federal office under the terms of the 14th Amendment is a nearly unprecedented situation.
Nearly.
Per Section 3 of that constitutional amendment, passed in the wake of the Civil War, former elected officials guilty of having engaged "in insurrection or rebellion against" the federal government are forbidden from holding office. It is obviously a provision meant to keep former Confederates from returning to Congress after the war, but the Colorado Supreme Court has determined that Trump's role in instigating the January 6, 2021, riot at the U.S. Capitol meets the vague standards outlined set forth in the amendment. On Thursday, Maine Secretary of State Shanna Bellows announced that Trump would be removed from the state's primary ballot because he is ineligible for office under the terms outlined in the 14th Amendment.
Since the end of Reconstruction, Trump is just the second person ruled ineligible for federal office due to that provision.
The first: Victor Berger, who is perhaps slightly more well known for being the first Socialist elected to Congress.
Berger was born in Austria and immigrated to the United States as a young man. In 1910, he won a seat in Congress representing Milwaukee, Wisconsin, and served a single two-year term. After being defeated in 1912, Berger remained active in left-wing politics and opposed America's entry into the First World War. In 1918, he was convicted (along with several other Socialist organizers) of having violated the Espionage Act of 1917, which effectively criminalized any criticism of the war effort.
Officially, Berger was found guilty of 26 "disloyal acts" related to a series of editorials published by the Milwaukee Leader, a paper Berger helped run, arguing against America's involvement in the war.
Despite that conviction—or perhaps because of it—Berger was elected to Congress again in 1918. His campaign called for the country to respect free speech and freedom of the press, and he continued to push for an "early, general, lasting and democratic peace." (Naturally, he also campaigned for a variety of typically terrible Socialist ideas too, like the nationalization of industries.)
Here's where Section 3 of the 14th Amendment popped up. Congress refused to seat Berger when he showed up to work in January 1919, on the grounds that his Espionage Act conviction was tantamount to engaging in insurrection against the country. The vote was nearly unanimous, 311-1, with the lone dissenting vote cast by a Wisconsin Republican.
A special election was held in December 1919 to fill the still-vacant seat, and Berger won again—this time earning even more votes than he had a year earlier. Again, a majority in Congress voted to block Berger from taking his seat.
There was yet another twist to come, and a final bit of trivia embedded in all this: The federal district judge who had overseen Berger's Espionage Act trial was Judge Kenesaw Mountain Landis.
Baseball fans may recall Landis' involvement in another (arguably more famous) decision. After leaving the federal bench in 1920, Landis was hired as the first commissioner of Major League Baseball and charged by the teams' owners with investigating allegations of match-fixing in the 1919 World Series scandal. Though the players involved in the scandal were acquitted in court, Landis exercised his own discretion as commissioner to impose a lifetime ban on eight players—including Chicago White Sox superstar "Shoeless" Joe Jackson.
Landis was known for being ill-tempered and prejudiced, particularly against German immigrants. According to a brief filed with the U.S. Supreme Court seeking to overturn Berger's conviction, Landis once said "If anybody has said anything worse about the Germans than I have, I would like to know it so I can use it."
During Berger's trial, Landis was openly hostile. He declared that Germans "are reeking with disloyalty" and condemned all pacifists as having "the interests of the enemy at heart." After reviewing the case, the U.S. Supreme Court decided that Landis should have recused himself from the case due to prejudice and threw out Berger's conviction on the grounds that he did not receive a fair trial.
Vindicated, Berger again ran for Congress in 1922 and won. This time he was seated without controversy, and he subsequently won reelection in 1924 and 1926.
As a precedent for the current situation involving Trump and the 14th Amendment, Berger's case probably has little value. For one, Berger plainly didn't engage in an insurrection, and the First Amendment should have prevented any conviction for the supposed crime of writing anti-war editorials or publishing Socialist opinions in a newspaper. What happened to Berger says a lot about the awfulness of the Espionage Act and about how war encourages governments to stomp all over civil liberties. But it doesn't say much about how the court should view the 14th Amendment, particularly since the Supreme Court never took up that issue in Berger's case—as it likely will with Trump's.
Still, there's one legal angle that Berger's case demonstrates. Gerard Magliocca, a law professor at Indiana University, told Milwaukee Magazine earlier this year that Berger's case shows that a series of post-Civil War amnesty laws did not fully nullify the 14th Amendment's disqualification clause. That will likely be relevant when, or if, the U.S. Supreme Court or other state courts tackle the question of Trump's eligibility to be president.
Like it was in Berger's day, the notion that banning certain candidates from office is necessary to protect the country from unpopular ideas seems misguided. And wielding Section 3 of the 14th Amendment against political opponents seems certain to worsen the dangerous "will-to-power" politics infecting both major political parties at the moment.
In any case, as we veer into what's sure to be one of the most bonkers years in American political history, maybe there's a small bit of comfort to be gleaned from the knowledge this situation isn't entirely unprecedented.
The post Trump Wouldn't Be the First Non-Confederate Barred From Office by the 14th Amendment appeared first on Reason.com.
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Over the last two days, the states of Maine and Michigan have issued rulings on challenges to Donald Trump's eligibility to run for the presidency, under Section 3 of the Fourteenth Amendment. Maine Secretary of State Shenna Bellows (a Democrat) ruled that Trump is disqualified from being a candidate in the state's GOP presidential primary. Meanwhile, the Michigan Supreme Court refused to reconsider lower court rulings holding that Trump cannot be removed from the state's primary ballot because state law doesn't require primary candidates to be legally eligible for the office they seek election to.
The Maine decision is the more significant of the two, because it actually reaches the merits of the Section 3 issue. Secretary Bellows' ruling is similar to the recent Colorado Supreme Court decision on the same subject. Like the Colorado court, Bellows concludes that the January 6, 2021 attack on the Capitol was an insurrection (an easy call, in my view), that Trump's activities amounted to "engaging" in that insurrection (I think this is the hardest issue at stake), that the president is an "officer of the United States" covered by Section 3 (another easy issue), that Trump's activities were not protected by the First Amendment, and that Section 3 is "self-executing" and thus states can enforce it without additional congressional legislation. Like the Colorado Supreme Court, Bellows also concludes that the laws of her state require candidates whose names appear on primary ballots to be eligible for the office they seek.
I won't review Bellows' reasoning in detail. But, as already noted, it is largely similar to that of the Colorado Supreme Court decision, which I analyzed at some length here. I think the Colorado ruling is correct, and therefore Bellows' decision is sound, as well. As Bellows notes, her ruling is subject to review by state courts and—ultimately—the US Supreme Court.
Bellows' ruling also addresses a number of evidentiary issues, which I will not try to assess, but which can potentially be reviewed by state courts. In addition, she rejects a clever but ultimately frivolous argument that Trump is disqualified from running for president under the Twenty-Second Amendment, which bars people who have already served two terms. The plaintiff alleged Trump is ineligible under that Amendment because he claims he won the 2020 election; if so, Trump has already had a second term as president, and therefore can't run in 2024! Bellows rightly notes that "Application of the term limit turns on whether an individual has actually been elected President twice, not on beliefs or assertions about that fact…. That Mr. Trump has falsely asserted that he
won the 2020 election is no more disqualifying than it would be for him to proclaim that he is not a United States citizen."
Coming on the heels of the Colorado ruling, the Maine decision (especially if upheld by state courts), makes it more likely that additional states will disqualify Trump. That, in turn, makes it more likely the Colorado decision will be reviewed by the US Supreme Court (the Colorado GOP has already asked the Court to take the case). If the federal Supreme Court doesn't definitively resolve the issue, we are likely to end up with a situation where Trump is barred from the ballot in some states, but not others.
The Michigan Supreme Court ruling is a denial of a petition to review lower court decisions that held Trump cannot be excluded from the GOP primary ballot because—unlike in Colorado and Maine—candidates who appear on state primary ballots need not be constitutionally eligible for the office they seek. The lower court and the Supreme Court leave open the possibility that Trump can be barred from the general election ballot, should he win the Republican nomination.
Significantly, neither the lower courts nor the Supreme Court addressed the issues of whether Trump is disqualified from holding office under Section 3. The lower courts simply concluded they need not consider that question, because Trump cannot be barred from the primary ballot regardless of whether he is ineligible to become president, or not. The Supreme Court chose not to review those rulings.
There is a dissent to the denial of the right to appeal by Justice Elizabeth Welch. Some commentators have wrongly assumed this dissent represents the opinion of the Court. But it is actually just a statement of one justice's reasons explaining why she would have preferred for the state Supreme Court to review the case and issue a decision, as opposed to simply leaving lower court rulings in place by denying the plaintiffs the right to appeal.
We cannot assume the other justices necessarily agree with Justice Welch's reasoning. But, to the extent it matters, she writes that she would have affirmed the lower court ruling on the grounds that Michigan state law (which she carefully differentiates from the Colorado law relied on by that state's Supreme Court) doesn't bar constitutionally ineligible candidates from primary ballots. She also notes she "would affirm the Court of Appeals' ruling…, which still allows appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for President of the United States or seek such office as an independent candidate."
I did a more detailed overview of the legal, moral, and political issues at stake in the Section 3 litigation in this article. In a more recent post, I explained why Section 3 disqualification doesn't require a prior criminal conviction for insurrection.
The post Maine and Michigan Issue Rulings on Trump and Section 3 Disqualification appeared first on Reason.com.
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Earlier this week, I put up a post explaining why a criminal conviction for insurrection isn't required for Donald Trump to be disqualified from running for president under Section 3 of the 14th Amendment. Conservative political commentator Conn Carroll has responded to me in a column published by the Washington Examiner.
I remain unpersuaded. Carroll is confused about jurisdictional issues. And even if he were right about them, it still would not prove that a criminal conviction is necessary.
Carroll's main point is that Colorado courts lacked jurisdiction to consider the Section 3 issue:
George Mason University law professor Ilya Somin argues that a criminal conviction for insurrection is not necessary for invocation of Section 3 of the Fourteenth Amendment because our legal system has long recognized that the same events can give rise to both civil and criminal liability.
He cites the example of O. J. Simpson, who was famously acquitted in criminal court for the murder of Nicole Brown Simpson and Ron Goldman but was later held liable in civil court for their deaths, resulting in $33.5 million in damages….
Somin forgets entirely about jurisdiction. Both criminal charges and civil claims must be brought in a court that has jurisdiction over the act in question. This is why Simpson was tried for murder by a California court and not a court in Arizona. Similarly, civil claims must also have a nexus to the court where they are brought. This is why the civil case against Simpson was brought in California court, not Texas. A Texas court would have no jurisdiction to hear a civil claim stemming from a murder in California….
Here in the Trump case, none of the events of Jan. 6 have any nexus with Colorado. The events happened entirely in Washington, DC. Why should a Colorado court be the one to decide if what Trump did was insurrection?
Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government). As the Colorado Supreme Court explained in its ruling, state law requires candidates on the ballot to be legally eligible to hold the office they are running for. And state courts can consider any potential legal grounds for ineligibility—including Section 3 of the Fourteenth Amendment.
In hearing cases, state courts routinely consider relevant events that occurred outside the state. If I am charged with committing murder in Colorado, the state can introduce a recording of me plotting the murder while located in another state. This applies to issues of candidate eligibility, as well. For example, in 2016, state courts considered claims by Trump supporters that Ted Cruz, one of Trump's rivals for that year's GOP nomination, was ineligible for the presidency because he was not a "natural born" citizen (Cruz was born to US-citizen parents while they were living in Canada). It made no difference the relevant event (Cruz's birth in Canada), occurred outside of the states whose courts heard the cases.
Ultimately, courts in New Jersey and Pennsylvania concluded Cruz was eligible, and ruled against the Trump supporters. But no one doubted the courts had jurisdiction to hear their claims.
Even if Colorado courts did lack jurisdiction, it doesn't prove that a criminal conviction was necessary. It would just mean the issue would have to be settled by some other set of courts or officials (perhaps federal courts).
Carroll also has a second objection:
Somin's criminal-civil distinction also fails because, under the Colorado Supreme Court's own reasoning, a civil verdict isn't necessary at all. Any secretary of state in any jurisdiction could simply declare someone they didn't like was an "insurrectionist" and kick them off the ballot.
None of the Confederates denied office after the Civil War had a civil trial to determine if they were insurrectionists. One was denied office under Section 3 by a governor. Another by a county commissioner. Another by the Postmaster General.
Accepting the Colorado Supreme Court's ruling would unleash chaos. Any Republican secretary of state throughout the country could disqualify anyone from office for supporting the Black Lives Matter riots. Is this really what the authors of the 14th Amendment intended?
As I pointed out in my earlier post, none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War. This reinforces the point that a criminal conviction isn't required under the original meaning. Some of them did, however, have their disqualifications reviewed by state courts (which upheld them).
Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues. Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.
But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court. As I have pointed out before, this is an important constraint on skullduggery by partisan officials. And even if such misbehavior is more of a risk than I think, it doesn't follow that a criminal conviction is a constitutional prerequisite to disqualification. It would just mean that state governments should pass legislation limiting officials' discretion. Congress could potentially do so, as well, using its power to enact "appropriate" enforcement legislation under Section 5 of the Fourteenth Amendment. Unless it does so, however, states can use their legal systems to enforce Section 3, just as they enforce other constitutional eligibility requirements for office.
UPDATE [Jan. 2, 2024]: Conn Carroll has posted a rejoinder here. He now claims he never said Colorado courts lacked jurisdiction over Section 3 challenges to Trump's eligibility, but merely meant to "invoke the reasoning behind jurisdiction to highlight the ridiculousness of state courts and officials around the country all rendering their own verdicts on what is and is not an insurrection and determining who and who has not engaged in insurrection."
I think it is pretty obvious Carroll did make a jurisdictional argument in his original piece. But readers can judge that for themselves. In any event, if Carroll agrees, as he now puts it, that "Yes, of course state courts have jurisdiction to hear claims about who should be on the ballot," then these courts also have jurisdiction to make determinations about relevant legal and factual issues that must be addressed in order to resolve cases about candidate qualifications.
It is true, as Carroll argues, that some of the legal and factual issues about Trump's eligibility are more disputed than other candidate eligibility questions are. But courts resolve disputed factual and legal issues all the time. That's what courts are for! In some cases, state executive officials (like the Maine Secretary of State with respect to Trump) also have authority to make such determinations (subject to later judicial review). If this leads to problematic inconsistency between states, the US Supreme Court could agree to review one of these cases, and make a definitive precedent binding across the nation. But there is nothing inappropriate about state courts and officials addressing legal issues over which—as Carroll now concedes—they have jurisdiction.
It is in fact common for courts in different states (and in some cases federal courts in different parts of the country) to come to divergent conclusions on federal constitutional issues. If the Supreme Court concludes the inconsistency is intolerable, they can and often do step in by reviewing one of the cases raising the issue in question.
The post More on Criminal Conviction and Section 3 Disqualification [Updated] appeared first on Reason.com.
]]>One of the most often-raised objections to the Colorado Supreme Court's decision disqualifying Trump from running for president under Section 3 of the Fourteenth Amendment is that Trump has never been convicted of engaging in insurrection. As conservative Washington Post columnist Jim Geraghty puts it: "If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"
The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.
A standard element of our legal system is that the same events often give rise to both civil and criminal liability. For example, a person who commits rape, murder, or assault is subject to criminal penalties, and also to civil suits by his or her victims. In such cases, a criminal conviction is not a prerequisite to civil liability. Indeed, even an actual acquittal on criminal charges doesn't necessarily preclude civil lawsuits against the perpetrator. Just ask O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families. The criminal acquittal didn't stop Simpson from incurring $33.5 million in civil liability. The criminal and civil cases were distinct, and the result of one did not determine that of the other.
The same reasoning applies to Trump. The absence of a criminal conviction for insurrection doesn't immunize him from civil proceedings arising from his role in the January 6 attack on the Capitol. Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.
There are many reasons why civil and criminal cases arising from the same events might turn out differently. The most obvious is that a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard (a slightly more than 50% chance that her position is right). In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a "clear and convincing evidence" standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt).
The lower standard of proof and other procedural differences between criminal and civil cases are justified by the generally less severe consequences at stake in the latter. Civil defendants don't risk the death penalty, prison terms, or getting a criminal record. In this case, Trump doesn't even face the prospect of forfeiting any of his property or paying damages. All he stands to lose is eligibility for various state and federal government jobs.
There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that. But Section 3 disqualification isn't one of those cases.
In addition to these general considerations about the structure of the legal system, there are also points specific to the original meaning of Section 3. None of the ex-Confederates who were adjudged disqualified during Reconstruction had ever been convicted of any crimes related to their roles in the Civil War. That strongly suggests the original understanding didn't require prior criminal conviction for insurrection—or any other offense—before an insurrectionist could be disqualified.
In addition, it's important to recognize that tens of thousands of Confederate troops had surrendered under parole terms that arguably exempted them from prosecution for their wartime activities so long as they did not engage in further insurrection or other lawbreaking. The most famous example is General Ulysses S. Grant allowing Robert E. Lee and the Army of Northern Virginia to surrender under terms that allowed "each officer and man… to return to their homes, not to be disturbed by United States authority so long as they observe their paroles and the laws in force where they may reside" (emphasis added).
Lee's army—and other Confederate forces who surrendered on similar terms—included large numbers of men who could be disqualified under Section 3, because they had previously held public office. That includes Lee himself, subject to disqualification by virtue his previous service as a high-ranking US Army officer (Section 3 disqualifies any insurrectionist who had previously been an "officer of the United States," a category that included commissioned military officers).
After the war, there was disagreement over whether Lee's parole terms exempted him prosecution. Ultimately, attempts to prosecute him were dropped. It is implausible to conclude that the framers and ratifiers of Section 3 thought that Lee and others like him were exempt from disqualification, merely because they were not prosecuted for insurrection, and possibly could not be, given the terms of their surrender.
Legal considerations aside, the victorious Unionists were not willing to prosecute and imprison the many thousands of ex-Confederates covered by Section 3. On the other hand, they were determined to prevent them from holding public office.
In sum, the idea that Section 3 disqualification requires a prior criminal conviction for insurrection is at odds with the general structure of our legal system, which separates civil and criminal liability. It is equally at odds with the original understanding of Section 3.
There is a separate argument about how much civil due process is needed before someone can be disqualified under Section 3. In my view, the trial Colorado held is more than enough. But wherever you come down on this civil due process issue, it's distinct from the claim that a criminal conviction is needed.
UPDATE: Conservative political commentator Conn Carroll criticized this post in a Washington Examiner column. I have responded to him here.
The post Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection [Updated] appeared first on Reason.com.
]]>One of the issues addressed in the recent Colorado Supreme Court decision holding that Donald Trump is disqualified from becoming president again under Section 3 of the Fourteenth Amendment is whether Section 3 applies to the presidency. A key reason to think it does apply is that ruling otherwise would lead to absurd results. As the Colorado ruling puts it, "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land." That sure seems absurd to me! And longstanding precedent disfavors interpretations that lead to absurd results.
In a recent Slate article, Harvard law Prof. Larry Lessig argues that excluding the president from Section 3 is not absurd. But his reasoning ultimately reinforces the very point he is trying to dispute.
Lessig's main argument is that the presidency and vice presidency are unique because state officials barring presidential and VP candidates from the ballot create an "externality":
[T]here is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court's ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.
Lessig ignores the fact that presidential candidates are far from the only ones whose exclusion has an effects beyond the borders of their state. The same applies to members of Congress. They vote on legislation that applies to the entire country. If Missouri excludes Hawley from the ballot, and a Democrat gets elected senator as a result (or a less MAGA Republican), that impacts the entire nation, not just one state. MAGA Republicans across the country might lose out, not just those in Missouri.
If you object to excluding insurrectionist candidates because doing so might create externalities like this, that's not an argument for exempting the president. It's an argument against having Section 3 at all.
It's true, of course, that partisan state officials could try to manipulate Section 3 to advantage their party. But that's why Section 3 exclusions—like other electoral qualification decisions—are subject to judicial review. If state officials try to bar someone who is not actually disqualified under Section 3, that candidate can sue to overturn their decision.
It's also worth emphasizing that the purpose of Section 3 is to prevent a different kind of externality from the type that concerns Lessig: having potentially dangerous former insurrectionists wield political power. If voters—perhaps due to ignorance or partisan bias – elect such people to public office, the harm these officials might do will affect not only those who voted for them, but the rest of the country as well. Insurrectionists in office could prove to be a menace to liberal democracy throughout the nation. The enactment of Section 3 was based on the assumption that preventing this kind of extremely dangerous externality was worth the cost, including other possible externalities that cut the opposite way.
Lessig's externality theory is at odds with the fundamental reason why Section 3 was enacted in the first place. Excluding the presidency from Section 3 on the basis of arguments that imply we shouldn't have Section 3 at all doesn't make any sense. It would, in fact, be absurd.
Lessig also argues the framers of the Amendment didn't need to worry about former insurrectionists becoming president because Section 3 ensures that presidential electors will be loyal, since it specifically bars insurrectionists from that position, thereby ensuring that "the people who would elect the president were not themselves insurrectionists." I explained why this argument (previously advanced by Kurt Lash) is fallacious here:
This argument ignores the possibility than an insurrectionist former president could still potentially hold other offices, such as being a member of Congress or serving as a member of the cabinet…
In addition, there was no reason to think that electors would necessarily abjure supporting former insurrectionists for the presidency. Since Section 3 only covers former government officials of various kinds, ex-Confederates who had not held public office previously (of which there were hundreds of thousands) could still become members of the Electoral College—and some actually did. Furthermore, by 1868 (as still today), electors were almost always little more than ciphers for their parties, who could be reliably expected to support the party's nominee no matter what. It is highly unlikely that committed partisan Democrat electors (most former Confederates backed the Democratic party in the years after the war) would forgo supporting a former Confederate insurrectionist for the presidency if he were the nominee of their party.
Given how the electoral college worked by the 1860s and the ability of many ex-Confederates to become electors, it is implausible to assume that the president was excluded from Section 3 on the theory that electoral college would prevent ex-insurrectionists from getting to the White House.
Lessig also contends (again, following Lash) that Section 3 was supposed to apply only to Civil War-era insurrectionists, and there was no danger of one of them becoming president. But the text of the amendment is general, and in no way limited to Civil War insurrectionists alone. Moreover, in the 1860s, the Democratic Party was one of the two major parties, and it drew much of its support from ex-Confederate white southerners. Absent Section 3, there was every reason to think such a person could potentially win the Democratic nomination for president. And any winner of a major-party nomination has at least some plausible chance of winning the general election.
The absurdity argument is far from the only reason why courts should conclude that the presidency is covered by Section 3. I think the "ordinary meaning" rule, emphasized in the Colorado Supreme Court ruling, is even more compelling. But the absurdity point is also strong. Indeed, the two are mutually reinforcing. An ordinary person reading Section 3 would be unlikely to interpret it in a way that leads to absurd results, especially if there is a plausible non-absurd alternative.
The post Efforts to Show that Exempting the President from the Scope of Section 3 of the 14th Amendment isn't Absurd Underscore that it Actually is appeared first on Reason.com.
]]>"It's self-evident," President Joe Biden told reporters on Wednesday. "You saw it all. He certainly supported an insurrection. No question about it. None. Zero."
Biden was referring to the Colorado Supreme Court's recent ruling that Donald Trump is disqualified from that state's presidential primary ballot under Section 3 of the 14th Amendment, which was originally aimed at barring former Confederates from returning to public office after the Civil War. As relevant here, Section 3 says "no person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same."
Biden, whose reelection bid would get a big boost from Trump's disqualification, takes it for granted that the January 6, 2021, riot at the U.S. Capitol qualified as an "insurrection" under the 14th Amendment, and he says there is "no question" that Trump "engaged in" that insurrection. But the Colorado Supreme Court's reasoning on both of those crucial points is iffy, and I say that as someone who thought Trump richly deserved his second impeachment, which was provoked by his reckless behavior before and during the riot.
On its face, that impeachment supports the court's decision, which was joined by four of seven justices. The article of impeachment, after all, charged Trump with "incitement of insurrection" and explicitly cited Section 3. But that debatable characterization was not necessary to show that Trump was guilty of "high crimes and misdemeanors."
Trump's misconduct included his refusal to accept Biden's victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to "faithfully execute" his office and to "preserve, protect and defend the Constitution." It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.
Achieving the same result under Section 3 of the 14th Amendment, by contrast, does require concluding that Trump "engaged in insurrection." But in reaching that conclusion, the Colorado Supreme Court never actually defines insurrection.
"At oral argument," the opinion notes, "President Trump's counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct." But the court does not offer "a specific definition" either: "It suffices for us to conclude that any definition of 'insurrection' for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country."
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to "hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power" by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.
They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court's premise that Trump's hotheaded supporters acted in concert with the intent of forcibly preventing "a peaceful transfer of power."
Nor is it clear that Trump "engaged in" the "insurrection" that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that "'engaged in' requires 'an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'"
Trump's pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump's demand that his supporters "fight like hell" to "save our democracy" literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump "literally exhorted his supporters to fight at the Capitol."
The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be "marching to the Capitol building to peacefully and patriotically make your voices heard." But they discount that phrasing as cover for Trump's actual intent. Given Trump's emphasis on the necessity of "fight[ing] like hell" to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that "Trump's speech took place in the context of a pattern of Trump's knowing 'encouragement and promotion of violence,'" which he accomplished by "develop[ing] and deploy[ing] a shared coded language with his violent supporters."
That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context. It is harder to believe that he cleverly developed a "coded language" that he knew some of his supporters would understand as a call to violence.
Nor is it clear how the violence that Trump allegedly intended was supposed to benefit him. There was no realistic prospect that it would actually stop Biden from taking office, and in the end it did no more than delay completion of the electoral vote count. Meanwhile, it alienated former Trump allies (albeit only briefly in some cases), led to his second impeachment, and left an ineradicable stain on his presidency.
The Colorado Supreme Court's belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court's 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both "directed" at inciting "imminent lawless action" and "likely" to do so.
The Colorado Supreme Court quotes the 6th Circuit's elucidation of that test in the 2015 case Bible Believers v. Wayne County: "The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech."
It is hard to deny that Trump's speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?
Applying the first prong, the court cites "the general atmosphere of political violence that President Trump created before January 6" as well as the "coded language" of his speech that day. As evidence of the "specific intent" required by the second prong, it notes that "federal agencies that President Trump oversaw identified threats of violence ahead of January 6." It also cites what it takes to be the implicit message of Trump's speech and his reluctance to intervene after the riot started.
"President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power," the court says. "Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended."
All of this evidence is consistent with recklessness and dereliction of duty. But it falls short of proving that Trump deliberately "encouraged the use of violence" or that he had a "specific intent" to cause a riot, let alone that he thereby "engaged in insurrection."
The post Was the Capitol Riot an 'Insurrection,' and Did Trump 'Engage in' It? appeared first on Reason.com.
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Today, the Supreme Court of Colorado ruled that Donald Trump is ineligible to be on the ballot for the 2024 presidential election because he is disqualified by Section 3 of the 14th Amendment. Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The Colorado court ruled that Trump "engaged in insurrection" because of his role in instigating the January 6, 2021 assault on the Capitol, and is therefore disqualified. This—and the lower court ruling it reviewed—are the first decisions that address the Section 3 case against Trump on the merits; several previous rulings in other states have dismissed Section 3 claims against Trump on varous procedural grounds.
I can't give anything like a complete analysis of the 213 pages of majority and dissenting opinions here. But I think the 4-3 majority got it right. Trump is indeed ineligible.
The per curiam majority opinion does an excellent job of handling all the major issues at stake: whether the January 6 attack was an insurrection, whether Trump's role in it was extensive enough to qualify as engagement, whether the president is an "officer of the United States," and whether Section 3 is "self-executing" (that is, whether state governments and courts can enforce it in the absence of specialized congressional legislation). In the process, the justices partly affirmed and partly overruled the trial court decision, which held that Trump did indeed engage in insurrection, but let him off the hook on the badly flawed ground that Section 3 doesn't apply to the president.
The case is now likely headed to the US Supreme Court. The justices may well hear it on an accelerated schedule, so as to resolve the case before we go too far into the GOP primary process. The Colorado Court has stayed its decision until at least January 4, to allow time for appeals to the US Supreme Court.
The 4-3 vote is not as close as it looks. Two of the three dissenting justices did so on the ground that Colorado state election law doesn't give the state courts the authority to decide Section 3 issues. They did not endorse any of the federal constitutional arguments on Trump's side. And these state statutory issues probably cannot be reviewed by the US Supreme Court, because state supreme courts are the final arbiters of the meaning of state law (with a few exceptions that do not apply here).
I think it's fairly obvious that the January 6 attack on the Capitol amounts to an insurrection, and the Colorado justices also concluded this is not a close issue:
[F]or purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word "insurrection." Rather, it suffices for us to conclude that any definition of "insurrection" for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.
This is an important point that I have tried to highlight in some of my own writings about the case. January 6 qualifies as an "insurrection" even under a fairly narrow definition of the term that is limited to the use of force to take over the powers of government. We don't need to rely on much broader definitions advocated by some legal scholars.
The Colorado Court didn't address the argument that there was no insurrection because the rioters and Trump sincerely believed he won the election, and therefore thought they were acting to protect the Constitution. But, under that reasoning, most of the ex-Confederates whom Section 3 was originally enacted to disqualify would also have been exempt, since they sincerely believed the secession of the southern states was legally authorized by the Constitution (and they had far better legal arguments for their position than Trump for his).
As I see it, the hardest issue raised in the case is whether Trump's involvement in the insurrection was extensive enough to count as "engaging" in it. On this question, the justices affirmed the detailed and compelling analysis of the district judge, much of which rests on factual findings that can only be reversed for "clear error." They also emphasized this important point:
As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully under way, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.
As I pointed out in a recent Bulwark article about the case, this goes beyond encouraging violence (as Trump did before the attack) or failing to try to stop it. It amounts to using the attack as leverage to try to force Congress to keep him in power. Using a violent insurrection in this way surely qualifies as "engaging in it," even if Trump's other actions fell short of doing so. Even if this somehow still falls short of "engagement," this and Trump's other actions surely at least gave "aid and comfort to the enemies" of the United States.
The court also gave a thorough and compelling explanation for its rejection of the argument that the president is not an "officer of the United States" covered by Section 3. Here is a key excerpt:
When interpreting the Constitution, we prefer a phrase's normal and ordinary usage over "secret or technical meanings that would not have been known to ordinary citizens in the founding generation."District of Columbia v. Heller, 554 U.S. 570, 577 (2008). Dictionaries from the time of the Fourteenth Amendment's ratification define "office" as a "particular duty, charge or trust conferred by public authority, and for a public purpose," that is "undertaken by . . . authority from government or those who administer it." Noah Webster, An American Dictionary of the English Language 689 (Chauncey A. Goodrich ed., 1853); see also 5 Johnson's English Dictionary 646 (J.E. Worcester ed., 1859) (defining "office" as "a publick charge or employment; magistracy");United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) ("An office is defined to be 'a public charge or employment,' . . . ."). The Presidency falls comfortably within these definitions…..
The preference for "ordinary meaning" is a standard tenet endorsed by most originalist judges. The quote from Heller to this effect is by the late Justice Scalia, a major icon of originalist jurisprudence.
And it's pretty obvious that the ordinary meaning of "officer of the United States" includes the holder of the most powerful office in the federal government! As the Colorado Supreme Court puts it, "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three."
The opinion also addresses the argument that the presidency was excluded because it wasn't specifically listed, but some other positions (e.g.—members of Congress) were:
It seems most likely that the Presidency is not specifically included because it is so evidently an "office." In fact, no specific office is listed in Section Three; instead, the Section refers to "any office, civil or military." U.S. Const. amend. XIV, § 3. True, senators, representatives, and presidential electors are listed, but none of these positions is considered an "office" in the Constitution. Instead, senators and representatives are referred to as "members" of their respective bodies.
I would add that senators, representatives, and electors are less clearly officers than the president, because they do not have individual authority to issue orders to subordinates, a point I expounded on in my Bulwark article.
The Court similarly addressed the issue of whether Section 3 is self-executing. The key point here is that every other part of the Fourteenth Amendment is considered self-executing, despite the fact that Congress can provide for additional enforcement through its power to enact "appropriate" enforcement legislation under Section 5. There is no good reason to exempt Section 3 from this general principle:
The Supreme Court has said that the Fourteenth Amendment "is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances." The Civil Rights Cases, 109 U.S. 3, 20 (1883). To be sure, in the Civil Rights Cases, the Court was directly focused on the Thirteenth Amendment, so this statement could be described as dicta. But an examination of the Thirteenth, Fourteenth, and Fifteenth Amendments ("Reconstruction Amendments") and interpretation of them supports the accuracy and broader significance of the statement….
There is no textual evidence that Congress intended Section Three to be any different…. Furthermore, we agree with the [plaintiffs] that interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal; Black citizens would be counted as less than full citizens for reapportionment; non-white male voters could be disenfranchised; and any individual who engaged in insurrection against the government would nonetheless be able to serve in the government. government, regardless of whether two-thirds of Congress had lifted the disqualification.
Justice Samour, the only one of the three dissenters who based his position on any federal constitutional issue, argues that Section 3 cannot be self-executing because making it so would deprive candidates for office of the "due process of law." But the Due Process Clauses of the Fifth and Fourteenth Amendments only provides a guarantee of due process before a person can be deprived of "life, liberty, or property."
Disqualification under Section 3 doesn't threaten any of these. Loss of eligibility for holding various types of public offices pretty obviously doesn't threaten anyone's life or property rights. And it isn't a threat to liberty, either. No one claims that the Twenty-Second Amendment deprives people of "liberty" merely because they become ineligible for the presidency if they have already served two terms.
The Supreme Court has held (wrongly in my view) that a degree of constitutional due process is required for deprivation of some types government benefits, particularly those that provide essential needs, such as welfare benefits for the poor.
Eligibility for the presidency isn't an essential need in the same way. If Trump is no longer eligible for the presidency, he isn't going to starve or become homeless. And even when it comes to deprivation of vital welfare benefits for the poor, the Supreme Court has held that due process requires only an administrative hearing, not a "judicial or quasi-judicial trial." The five-day trial held by the district court in the Colorado case in which both sides presented extensive evidence and expert testimony easily meets any plausible due process requirements for a case like this, even if we assume that the Due Process Clause applies (which I think it does not).
I am not qualified to comment on the Colorado statutory issues raised by the other two dissenting justices. To me, it would be strange if the law did not give state courts the power to adjudicate cases over Section 3 disqualification, just as they routinely consider other candidate eligibility issues. But I am no expert on Colorado election law, and therefore might be missing something. I will only reiterate that the federal Supreme Court probably lacks the power to review the Colorado state court's resolution of these issues of state statutory law.
The same point applies to the Colorado court's conclusion that, under state law, candidates ineligible for the presidency are barred from appearing on primary ballots, as well as those for the general election.
More can be said. But this post is already too long, and I will stop—for now. I will probably have more to say as this case moves on to what is likely to be review by the federal Supreme Court.
The post Colorado Supreme Court Rules Trump is Ineligible for the Presidency Under Section 3 of the 14th Amendment appeared first on Reason.com.
]]>A yearslong battle over property rights in Seattle may soon have national implications as various groups pressure the Supreme Court to analyze the constitutionality of a law banning landlords from rejecting tenants based on their criminal histories.
In 2017, the city passed the Fair Chance Housing Ordinance, prohibiting landlords from conducting criminal background checks on potential renters, from using information on criminal histories to exclude tenants, and from increasing rents and security deposits for such applicants. The sole exception in the law pertains to prospective renters who have been convicted of a sex offense as an adult, but even then, landlords must convince the Seattle Office for Civil Rights that they have a "legitimate business reason" for denial.
The following year, the Pacific Legal Foundation (PLF) sued to end that law, arguing that the "unreasonable, overbroad, and unduly burdensome" regulation ran afoul of the 14th Amendment right to due process and that its block on analyzing public records violated landlords' free speech rights.
Judge John C. Coughenour of the U.S. District Court for the Western District of Washington disagreed. In 2021, he sided with Seattle, writing that the law was "a reasonable means of achieving the City's objectives and does not burden substantially more speech than is necessary to achieve them."
Earlier this year, the U.S. Court of Appeals for the 9th Circuit reversed it—in part. "We conclude that the Ordinance's inquiry provision impinges upon the First Amendment rights of the landlords, as it is a regulation of speech that does not survive intermediate scrutiny," wrote Judge Kim McLane Wardlaw. "However, we reject the landlords' claim that the adverse action provision of the Ordinance violates their substantive due process rights." In other words, the government cannot bar landlords from looking at public records, the court ruled, but the judges left the ban on using that information to take adverse action.
Now, several advocacy groups—from the Buckeye Institute and the Manhattan Institute to the National Apartment Association and the Consumer Data Industry Association—are calling on the high court to weigh in.
"Instead of allowing political factions to inflict legalized trespasses on each other in the service of their own social and political desires, in a tit-for-tat that deprives all sides of their freedom to choose, the traditional rule is better by far: to allow property owners to decide for themselves who may and may not enter their land and on what conditions," wrote Timothy Sandefur of the libertarian Goldwater Institute in an amicus brief to the Court. "This is not only the more efficient means of resolving disputes over what restrictions on property use are wisest—while simultaneously respecting diverse views on that subject— but it is also the means that is deeply rooted in this nation's history and tradition."
The political push behind Seattle's ordinance had good intentions: People with criminal records indeed often have a harder time finding stable housing and employment. Yet as Reason's Christian Britschgi noted directly after the law passed, sensible policy requires more than simply wanting the best for your constituents.
"It's true that our current criminal justice system unnecessarily tars citizens with arrest records and criminal histories, and that those criminal histories make it more difficult to find jobs and housing," Britschgi wrote in 2017. "But attempting to mitigate the effects of a broken criminal justice system by foisting extra costs onto landlords—who have quite understandable reasons to want to know about tenants' criminal histories—is not the answer."
One reason it is not the answer: The rule would backfire on many tenants—the people the law is supposed to help—as landlords compensate by having more strenuous requirements for the remaining legal rent criteria, like credit scores.
But it's not just about a business' bottom line. Take Chong and MariLyn Yim, a Seattle couple represented by PLF who hope the high court will hear their case. The Yims own a triplex in Seattle where they lived in one unit with their three children. To support themselves, they rented the two remaining units, using the screening process to ensure their tenants wouldn't potentially endanger their children.
"Private rental property owners are not responsible for generalized adverse impacts of the criminal justice system, the high housing failure rates among ex-convicts, or high recidivism rates," wrote PLF in their petition to the Supreme Court. "Seattle's decision to place the burden of housing the most violent and dangerous ex-convicts on private owners violates due process."
The post Seattle Banned Landlords From Rejecting Tenants Based on Criminal Records. Will the Supreme Court Step in? appeared first on Reason.com.
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Today, The Bulwark published my article making the case for disqualifying Trump from future public office under Section 3 of the 14th Amendment. I address a variety of issues, including moral and pragmatic considerations, as well as purely legal ones. Here's an excerpt from the introduction:
The effort underway in several states to use Section 3 of the Fourteenth Amendment to disqualify Donald Trump from becoming president again raises a variety of legal, moral, and political issues. But fundamentally it comes down to this: liberal democracies often have good reason to bar from positions of vast power people whose track record shows them to be a threat to democracy itself, or to basic liberal values. Section 3—originally enacted to bar former Confederates in the aftermath of the Civil War—is a useful tool towards that end. And Trump epitomizes the sort of person who should be barred, for both legal and pragmatic reasons.
Section 3 bans anyone from state or federal office who previously held certain public offices and "engaged in insurrection" against the United States or gave "aid or comfort to the enemies thereof." Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.
A president who tried to use force and fraud to stay in power after losing an election should not be allowed wield the power of office ever again. And we need not and should not rely on the democratic process alone to combat such dangers.
Trump should not be barred from the ballot if there are legal reasons why Section 3 cannot be used against him. But the legal arguments against disqualification are ultimately unsound, and most are very weak. The same goes for pragmatic arguments against disqualification.
I addressed some of the issues related to democratic theory and slippery slope concerns in greater detail in a recent Lawfare article.
The post My New Bulwark Article on Trump and Section 3 of the 14th Amendment appeared first on Reason.com.
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Yesterday, a Colorado trial court ruled that Donald Trump engaged in insurrection, but still cannot be disqualified under Section 3 of the Fourteenth Amendment, because the president is not an "officer of the United States." The Court thereby rejected relatively more plausible arguments against disqualifying Trump, but accepted a very weak one.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." To my mind, the most difficult issue raised by Trump's effort to stay in power after losing the 2020 election is whether his conduct amounted to "engaging in insurrection" or giving aid and comfort to the enemies of the United States. By contrast, I think it's pretty obvious that the president qualifies as an officer of the United States. It would be utterly ridiculous if Section 3 disqualifies an insurrectionist low-level bureaucrat, but not an insurrectionist who holds the most powerful office in the land. For obvious reasons, the latter is a vastly greater menace than the former.
Judge Sarah Wallace nonetheless managed to somehow rule against Trump on his best argument, while ruling for him on his worst.
I think it's pretty obvious that the January 6 attack on the Capitol qualifies as an "insurrection." After all, the attackers were trying to use force to block the transfer of power to the rightful winner of a presidential election. Whether Donald Trump was closely enough connected to these events is a closer question. After all, he didn't personally storm the Capitol himself, and his statements before the attack can be interpreted in different ways. It is also debatable whether his earlier efforts to illegally overturn the election results qualify as engaging in insurrection or giving "aid and comfort" to those who did.
In a detailed and compelling analysis Judge Wallace explains why Trump's actions on and before January 6 do qualify as engaging in insurrection, and are not protected by the First Amendment. Among other things, she shows that Trump's exhortations to the mob to "fight like hell" are best interpreted as literal incitements to violence, rather than merely figurative hyperbole—especially in context of his longstanding advocacy and defense of political violence by his supporters:
The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being "stolen," and that something needed to be done….
Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden's electoral victory as "the most corrupt election in the history, maybe of the world" and as a "matter of national security," telling his supporters that they were allowed to go by "very different rules" and that if they didn't "fight like hell, [they're] not going to have a country anymore." Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder…
Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to "fight" and "fight like hell." The Court acknowledges the prevalence of martial language in the political arena…. This argument, however, ignores both the significant history of Trump's relationship with political violence and the noted escalation in Trump's rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump's language, the Court must consider not only the content of his speech, but the form and context as well….
Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump's speech.
The judge also explains in detail why incitement of the type Trump engaged in qualifies an "engaging" in insurrection, and why the attack on the Capitol was indeed an insurrection, and not merely a non-insurrectionary riot.
Much of the analysis in this part of the decision rests on factual findings about Trump's actions and motives, which are entitled to broad deference from appellate courts. In Colorado courts, as in federal court, trial courts' factual conclusions are only reversible on appeal if there is "clear error."
In contrast to the long and detailed analysis of the insurrection issue, which goes on for some 35 pages, Judge Wallace's discussion of whether the president is an "officer of the United States" is short, cursory, superficial—and extremely weak. She emphasizes that "To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because…. Section Three explicitly lists all federal elected positions except the President and Vice President." The other elected positions, however, are all legislative or electoral (members of Congress and the electoral college). Unlike executive branch officials, they cannot issue legally binding orders (as opposed to merely voting on laws), and therefore might not meet an ordinary language intuitive definition of an officer as a person who has the power to issue binding orders to subordinates. Not so with the president, who obviously does have that authority.
The presumption that the presidency is excluded unless specifically listed is the exact opposite of the on Judge Wallace should have made. To the contrary: it would be absurd to include all other elected and appointed officials—including low-level bureaucrats—while excluding the president—the official with the greatest power, and thus the one whose involvement in insurrection poses the greatest potential threat. Such an exclusion violates the longstanding rule that courts should avoid interpretations of law that lead to absurd conclusions. If such a result is clearly compelled by the text, there may be no choice. But there is no such indisputable clarity here. Judge Wallace "agrees that there are persuasive arguments on both sides." If so, she should have picked the one that does not lead to absurdity.
Judge Wallace cites no direct contemporary evidence that people at the time of the ratification of the Amendment thought the president was not an "officer of the United States" under Section 3. Scholars such as Mark Graber have provided extensive evidence that they did (see here and here). In addition, to the extent that constitutional interpretation should be based on the "ordinary meaning" of words as understood by members of the public, it is pretty obvious that an ordinary reader would assume that the president is covered, and would not embrace the absurd conclusion that it and the vice presidency are the only offices excluded. That's the kind of hair-splitting sophistry that leads ordinary people to hate lawyers!
Judge Wallace relies heavily on inferences from passages in the original 1787 Constitution suggesting that the president is not an "officer of the United States," even though the original Constitution also repeatedly refers to the presidency as an office. The inferences the judge relies on are highly questionable. But even if correct, they have little bearing on the meaning of "officer" under Section Three, enacted some eighty years later.
Finally, Judge Wallace claims the presidency isn't covered because Section 3 applies only to officers who have taken an oath to "support" the Constitution, whereas the President takes an oath to "preserve, protect and defend the Constitution of the United States." But, as she admits, "an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution." Thus, there is no meaningful difference between the two, and no reason to think that a reference to one necessarily excludes the other. At the very least, this kind of circuitous inference isn't enough to justify an absurd conclusion.
Unlike the court's ruling on the insurrection issue, the decision on the meaning of "officer of the United States" is a purely legal conclusion, rather than one that rests at least in part on judgments of fact. It therefore is not entitled to any deference on appeal.
This decision is likely to be appealed all the way to the Colorado Supreme Court. It could even potentially reach the federal Supreme Court. The only certainty here is that the legal battle over Trump and Section 3 is far from over.
Judge Wallace's ruling is nonetheless notable for its thorough analysis of the insurrection issue, for its far less defensible ruling on whether the president is an "officer of the United States," and for being the first decision on Trump's eligiblity that reaches the merits. Previous rulings by the Minnesota Supreme Court (which ruled that Trump was eligible to be on the GOP primary ballot because there is no legal requirement that a primary ballot be limited to candidates legally eligible for the office they seek) and a Michigan state court (which dismissed the whole issue as a nonjusticiable "political question"), dismissed claims against Trump on procedural grounds, which leave open the possibility that he could be legally disqualified. If the Michigan decision is correct (I think it isn't), state election officials could potentially remove Trump from the ballot on Section 3 grounds, without any judicial review.
The post Colorado Court Rules Trump Engaged in Insurrection, but Cannot Be Disqualified Under Section Three Because the President is not an "Officer of the United States" appeared first on Reason.com.
]]>Here is an excerpt from the description (full version available at the Cato website):
Most people would be hard‐pressed to define the "American Dream" without some reference to economic freedom. From Benjamin Franklin's dozens of inventions (bifocals! A flexible catheter!), to self‐made man Frederick Douglass, to serial inventor Joy Mangano's miracle mop, Americans believe that with a good idea and enough hard work, anyone can enjoy economic success—no matter the circumstances of their birth.
They'd be surprised, then, to learn that courts do very little to protect the right to earn a living. By all accounts, that precious right was intended to be a centerpiece of the Fourteenth Amendment. Yet Federal courts have all but written it out of the Constitution…
If we want the judiciary to protect economic freedom, it's time to try something new.
Are there constitutional theories besides due process and equal protection that could provide more effective protection for economic liberty? The Cato Institute's Robert A. Levy Center for Constitutional Studies is calling for legal scholarship on legal theories that would protect the freedom to contract, to innovate, to earn a living, and to freely engage in mutually beneficial economic transactions. The Center seeks a mix of papers that are both theoretical and practical; that both suggest new litigation strategies and identify specific policies that seem ripe for legal challenge. The papers will be compiled in a special journal edition produced by the Cato Institute, which can serve as a blueprint for scholars, researchers, and litigants who seek to restore the Constitution's promise of opportunity through economic freedom.
Examples include:
Evidence of the original meaning of the Contracts Clause and ways it might be reinvigorated through litigation
Potential theories under the Citizenship Clause
State constitutional anti‐monopoly and anti‐gift provisions and other causes of action unique to state law or state constitutions
The Ninth Amendment….
What's left of the dormant Commerce Clause after National Pork Producers v. Ross?…
Surveys of laws that are particularly ripe for challenge
Lessons learned from the past 20 years of economic liberty litigation
Submission Details: Please submit a brief research proposal that describes a new or underexplored constitutional protection for economic liberty. Proposals should be submitted by November 22, 2023, to Anastasia Boden at aboden@cato.org. All proposals will be reviewed on a rolling basis and approvals will allow authors to begin work early.
Honorarium and Other Support: Authors of accepted papers will receive a $2,000 honorarium. Authors will be offered expert feedback on their research, along with peer‐review and copyediting assistance. Papers will be published as a special journal volume through the Cato Institute. If requested during the initial proposal period or soon thereafter, we also will try to connect potential coauthors with different legal and empirical expertise.
Symposium: Completed drafts are due by March 1, 2024, but need not be in polished or publishable form. Each author will be expected to formally comment on others' papers. Authors will present their papers at a symposium at the Cato Institute in April of 2024. Cato will cover the cost of hotel accommodation and reasonable travel expenses to the symposium.
The post Cato Institute Call for Papers on Constitutional Protection for Economic Liberties appeared first on Reason.com.
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This Monday, the University of Minnesota Law School held a conference on the potential disqualification of Donald Trump from the 2024 presidential election under Section 3 of the Fourteenth Amendment. Participants included a variety of legal scholars and other experts, including Michael Stokes Paulsen (coauthor of a widely discussed article arguing Trump should be disqualified), Kurt Lash (author of an article cutting more the other way), VC blogger Josh Blackman (coauthor of an article defending Trump's eligibility), and myself.
A list of the participants and panels at the conference is available here. I have embedded the Youtube video of the entire event below. I spoke on the last panel of the day, which addressed pragmatic and political implicatoins of Trump's possible disqualification. It begins at around 4:35:00.
The other participants in our panel were Georgia State University law Professor Eric Segall and political scientist Julia Azari (Marquette University). Political scientist Larry Jacobs (University of Minnesota) moderated.
This is a rare instance where I got to outflank Eric Segall on the left! I am far more supportive of disqualification than he is, even though he is generally far more left-wing than I am.
The Lawfare website has posted an audio/podcast version of our panel here.
I developed some of the points I made at the panel in greater detail in this article. I have written about other aspects of the Section 3 debate here and here.
The post Video of University of Minnesota Conference on Potential Disqualification of Donald Trump Under Section 3 of the 14th Amendment appeared first on Reason.com.
]]>Sonia Book's autistic daughter was hit by a public school teacher who later pleaded guilty to battering two other autistic students. Book tried to sue, but she happens to live in Louisiana, one of three states where school officials are essentially immune from lawsuits for excessive corporal punishment.
Now Book is asking the Supreme Court to step in.
The Institute for Justice, a libertarian-leaning public interest law firm, filed a petition to the Supreme Court this week on behalf of Book, asking the Court to resolve an issue that it says has made corporal punishment of children categorically exempt from constitutional scrutiny in the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana, and Mississippi.
"If the school system isn't going to hold the people who hit my daughter accountable, then I hoped the courts would, but so far that hasn't happened," Book said in an Institute for Justice press release. "It makes no sense to me that people who hit your kids can get away with it if they work for the school. That's who my daughter should be able to trust, not fear."
In 2020, Book's 11-year-old daughter, who has nonverbal autism, was hit by school employees in the Jefferson Parish school district on at least three separate occasions for acting out. In one instance, the girl kicked in the direction of a teacher without making contact. In another, she pinched a teacher's aide.
Book filed a lawsuit against the teacher and several school officials in 2021, arguing that the school district and employees violated her daughter's rights. However, both a U.S. district court and the U.S. Court of Appeals for the 5th Circuit held that the school officials were exempt from Book's claims under Section 1983 of the Civil Rights Act, which created a right to sue government officials acting under the color of law for constitutional violations.
As the Institute for Justice describes in its petition for writ of certiorari, the 5th Circuit is an outlier. It's the only federal circuit that immunizes school officials from civil rights lawsuits for corporal punishment, as long as that force is plausibly related to maintaining classroom order. Under a binding precedent in the circuit, "as long as the state provides an adequate remedy, a public school student cannot state a claim for denial of substantive due process through excessive corporal punishment."
All other nine circuits in the country allow such claims to proceed under either the Fourth Amendment's excessive force provision or the 14th Amendment's Due Process Clause.
That 5th Circuit precedent has led to federal judges dismissing lawsuits where, for example, a student with disabilities was tased, or a 5-year-old boy was allegedly slammed to the ground and dragged to the principal's office by a school police officer. The 5th Circuit has only recognized excessive violence against students in cases where the abuse was cartoonishly grotesque and devoid of any pedagogical justification, such as tying a student to a chair for two days.
"The Fifth Circuit is way out of step with the rest of the nation's courts on this issue, and we're asking the Supreme Court to right this legal wrong," Institute for Justice senior attorney Patrick Jaicomo said in a press release. "The absolute protection the Fifth Circuit has created for abusive teachers and school administrators is greater than the overly-generous immunities that already extend to police and every other public employee."
Meanwhile, the teacher who struck Book's daughter was not disciplined. She transferred to another school. In September, the New Orleans Times-Picayune reported that the teacher pleaded guilty to simple battery of two other autistic siblings. A related lawsuit against the teacher accused her of slapping the children, segregating them from nondisabled children, and calling them "feral kids" and "filthy little things."
Reason has reported extensively on state violence against children with disabilities. In Florida, school-age children—disproportionately those with disabilities—are frequently restrained by police and involuntarily committed to psychiatric hospitals for throwing tantrums in the classroom. Last year, a Kansas sheriff's deputy hogtied and tased an 12-year-old autistic boy. In North Carolina in 2018, a school resource officer handcuffed a 7-year-old autistic boy and pinned him face-down on the ground for nearly 40 minutes while taunting him.
The Institute for Justice is asking the Supreme Court to resolve whether students' excessive violence claims are cognizable under Section 1983 and whether those claims should proceed under the Fourth Amendment or 14th Amendment.
The post Louisiana Mother of Autistic Child Hit by Teacher Files Supreme Court Petition appeared first on Reason.com.
]]>In July, a divded panel of the U.S. Court of Appeals for the Sixth Circuit stayed a preliminary injunction against a Tennessee law barring pharmaceutical and surgical gender-affirming care for minors diagnosed with gender dysphoria. A similar case arose out of Kentucky. On Thursday, a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed the preliminary injunctions issued in both cases. Chief Judge Sutton wrote the majoirty opinion in Skrmetti v. L.W., joined by Judge Thapar, rejecting both due process and equal protection challenges to the laws. Judge White dissented.
In his opinion, Chief Judge Sutton stresses the high hurdle plaintiffs must clear to justify a preliminary injunction, explains why the plaintiffs cannot show that the Tennessee and Kentucky laws are clearly precluded under existing precedent, and makes the case that judges should tread cautionsly before expanding existing constitutional guarantees to preclude state-level experimentation with emerging issues.
The claimants face several initial headwinds in obtaining relief. First, they do not argue that the original fixed meaning of the due process or equal protection guarantees covers these claims. That prompts the question whether the people of this country ever agreed to remove debates of this sort—over the use of innovative, and potentially irreversible, medical treatments for children—from the conventional place for dealing with new norms, new drugs, and new public health concerns: the democratic process. Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable Constitution to occupy the field.
Second, while the challengers do invoke constitutional precedents of the Supreme Court and our Court in bringing this lawsuit, not one of them resolves these claims. In each instance, they seek to extend the constitutional guarantees to new territory. There is nothing wrong with that, to be certain. But this reality does suggest that the key premise of a preliminary injunction—a showing of a likelihood of success on the merits—is missing. Constitutionalizing new areas of American life is not something federal courts should do lightly, particularly when "the States are currently engaged in serious, thoughtful" debates about the issue. Washington v. Glucksberg, 521 U.S. 702, 719 (1997).
Third, the States are indeed engaged in thoughtful debates over this issue, as the recent proliferation of legislative activity across the country shows. By our count, nineteen States have laws similar to those in Tennessee and Kentucky, all of recent vintage. . . . At least fourteen other States, meanwhile, provide various protections for those seeking treatments for gender dysphoria, all too of recent vintage. . . .
Most of this legislative activity occurred within the last two years. Failure to allow these laws to go into effect would start to grind these all-over-the-map gears to a halt. Given the high stakes of these nascent policy deliberations—the long-term health of children facing gender dysphoria—sound government usually benefits from more rather than less debate, more rather than less input, more rather than less consideration of fair-minded policy approaches. To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the Constitution does not further these goals. That is all the more critical in view of two realities looming over both cases—the concept of gender dysphoria as a medical condition is relatively new and the use of drug treatments that change or modify a child's sex characteristics is even more recent. Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution.
The opinion goes on to walk through the various due process and equal protection arguments and rejects the claims that the laws in question impermissibly infringe upon fundamental rights or violate equal protection, either by adopting an impermissible sex-based classification or discriminating against a suspect class.
Chief Judge Sutton's opinion concludes:
No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.
For these reasons, we reverse the preliminary injunctions issued in these cases and remand them for further proceedings consistent with this decision.
As noted, Judge White dissented, concluding that the laws violate both due process and equal protection. Her dissent begins:
The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. . . .
And her dissent concludes:
As the majority notes, the heated political debate over gender-affirming care has yielded varying laws in Tennessee, Kentucky, and throughout our country. In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently. See New State Ice Co v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
But when a fundamental right or freedom from discrimination is involved, experimentation has no place. "The very purpose of" our constitutional system "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." W. Va. St. Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). Our "fundamental rights may not be submitted to vote; they depend on the outcome of no elections." Id. Similarly, "[n]o plebiscite can legalize an unjust discrimination." Lucas v. Forty-Fourth Gen. Assemb., 377 U.S. 713, 736 n.29 (1964) (citation omitted).
Tennessee's and Kentucky's laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live. The laws further deprive the parents—those whom we otherwise recognize as best suited to further their minor children's interests—of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent.
Given the holding and the current composition of the Sixth Circuit, this is not a particularly strong candidate for en banc review. There is also no circuit split yet on this question. The only other federal appeals court to rule on this issue thus far—the U.S. Court of Appeals for the Eleventh Circuit—reached the same conclusion. Several district courts have gone the other way, however, making it possible that a circuit split could still emerge, precipitating Supreme Court review.
UPDATE: One potential source for a crcuit split could be two cases currently pending in the U.S. Court of Appeals for the Fourth Circuit—Fain v. Crouch and Kadell v. Fowell—which involve state refusals to cover gender reassignment surgery and some other treatments for gender dysphoria under Medicaid or other state-run health care plans. The Fourth Circuit heard both cases en banc earlier this month, and it seems possible the court will disagree with the Sixth Circuit, at least with regard to whether such restrictions violate the Equal Protection Clause.
SECOND UPDATE: There is arguably a circuit split already with the U.S. Court of Appeals for the Eighth Circuit (at least for now). Last year, in Brandt v. Rutledge, the Eighth Circuit affirmed a preliminary injunction against an Arkansas law barring gender transition treatments for minors. The court also denied a petition for rehearing en banc. Of note, five judges called for en banc rehearing, and three more noted they opposed en banc rehearing because of the interlocutory posture of the case, and not because they concurred with the panel opinion. (The Eighth Circuit has eleven judges in active service.) Now that the district court has enjoined the law and the case is now on appeal, Arkansas has petitioned for initial hearing en banc. Should this motion be granted, I suspect the Eighth Circuit will agree with the Sixth and Eleventh Circuits, thus eliminating the circuit split.
The post Sixth Circuit Reverses Preliminary Injunctions Against TN & KY Laws Restricting Gender Dysphoria Treatments for Minors (Updated) appeared first on Reason.com.
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Some argue that Donald Trump is not subject to disqualification from holding public office under Section 3 the Fourteenth Amendment because Trump and those who attacked the Capitol on January 6, 2021 did not think of themselves as trying to overthrow the government. They instead believed Trump was the true winner of the 2020 election, and they were upholding the Constitution by preventing that victory from being "stolen" from him.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Critics of Section 3 disqualification argue that people who used force and fraud to try to keep Trump in power after he lost the 2020 election were not "engaged in insurrection" because they sincerely believed he had won.
Thus, Harvard law Prof. Larry Lessig writes that "the act they [the people who stormed the Capitol] were engaging in was not rebellion. It was an effort to assure what they wrongly believed was the rightful result." He adds that "the vast majority of them thought not that they were overthrowing a government but that they were pressuring their government to do the right thing—at least as they (wrongly) saw it." Stanford law Professor Michael McConnell made a similar point in our recent televised debate on Trump and Section 3.
In the case of Trump, there is a lot of evidence indicating he did know he had lost the election, and his public statements to the contrary were lies. But, for now, let's set that aside. A false belief that you are acting in accordance with the Constitution does not exempt you from disqualification under Section 3. If it did, many of the leading Confederates who fought against the United States in the Civil War would also be exempt.
Section 3 was enacted in the immediate aftermath of the war, included in the Fourteenth Amendment because many feared that, otherwise, ex-Confederate political leaders might return to power. If there's anyone who is disqualified under Section 3, it's leading Confederates who had held public office before the war.
Yet under the reasoning advanced by Lessig and McConnell, many, perhaps even most, Confederates also weren't insurrectionists! After all, Confederate leaders repeatedly argued they were just exercising a right of secession guaranteed to their states by the Constitution. Far from seeking to violently and illegally overthrow the government, they were simply making use of their legal rights. On this view, violence only resulted because the federal government itself violated the Constitution and illegally tried to force the seceding states to stay in the Union.
Soon-to-be Confederate President Jefferson Davis made this argument in his January 1861 farewell speech to the US Senate, where he defended his state's decision to secede. He contended that, under the Constitution, "the right of a State to secede from the Union" is an "essential attribute of State sovereignty." Confederate Vice President Alexander Stephens made similar claims. After the war, he even wrote a book-length defense of them, which he entitled, A Constitutional View of the Late War Between the States.
As a legal matter, the Confederates actually had a stronger argument than Trump and his supporters did. The Constitution is famously silent on the question of secession. Before the Civil War, there was a longstanding debate among experts over whether states could legally secede or not. By contrast, there was never any plausible basis for thinking that Trump was the true winner of the 2020 election. By the time of January 6, that point had been reinforced by numerous court decisions rejecting his claims, including many written by conservative Republican judges, some of them appointed by Trump himself.
Morally, the Confederates were even worse than Trump. Whether they had a legal right to do so or not, Davis and the others seceded for the deeply evil purpose of perpetuating and extending the horrific institution of slavery. That's worse than Trump's motivation of keeping himself in power. But many of the Confederates genuinely believed they were exercising rights guaranteed by the Constitution, and their legal rationale was much less implausible than Trump's.
In sum, any claim that the January 6 attack and related attempts to keep Trump in power was not a true insurrection because of the perpetrators' subjective beliefs, also implies that many Confederates weren't true insurrectionists, either. They too thought they were merely upholding the rules of the Constitution, exercising a right that document guaranteed.
And this implication of the theory is enough to reject it. If your interpretation of Section 3 suggests that Jefferson Davis was not a true insurrectionist subject to disqualification, that's a strong sign you got something wrong!
Whether the Confederates, Trump, or anyone else engaged in insurrection or aided one turns not on subjective states of mind, but on objective reality. Whatever Trump and the January 6 rioters might have subjectively believed, objectively they were trying to use force and fraud to overthrow the duly elected president and replace him with the man he had defeated.
This point also addresses Lessig's concern that "every leader who might resist a future coup attempt risks disqualifying themselves from serving in any subsequent government." If what they are resisting is a true coup attempt (i.e.—an effort to use force or fraud to install in power someone who was not duly elected), then the resistance is not insurrection against the United States and its legally legitimate government. Facts, not feelings, are determinative here.
There are a number of other arguments against applying Section 3 disqualification to Trump, including some that may be weightier than the one addressed here. I have previously criticized some of them here and here.
The post Insurrectionists Who Think they are Upholding the Constitution are Still Insurrectionists—and Still Subject to Disqualification Under Section 3 the Fourteenth Amendment appeared first on Reason.com.
]]>Our debate begins about 4-5 minutes in.
Thanks to Mehdi Hasan for inviting us, and to Prof. McConnell for his thoughtful contribution.
I covered many of the issues we discussed in greater detail in a Lawfare article, and in this VC post. The Lawfare article was, in part, a response to this post by McConnell.
The post MSNBC Debate with Michael McConnell on Trump and Disqualification Under Section 3 of the 14th Amendment appeared first on Reason.com.
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There is an ongoing debate over whether Donald Trump should be disqualifed from holding public office in the future, under Section 3 of the 14th Amendment, which states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Whatever other issues the Trump case raises, it seems obvious that the presidency is an "office…under the United States," and therefore that Trump can be disqualified, so long as he met the other requirements of Section 3. However, a number of prominent commentators and legal scholars claim otherwise, including former attorney general Michael Mukasey, Josh Blackman and Seth Barrett Tillman, and—most recently – Steve Calabresi.
Advocates of the claim that Trump is exempt from Section 3 don't deny that the presidency is an "office." They can't because the Constitution refers to it as such multiple times! Rather, they claim it is not an office "of the United States."
While these critics have impressive credentials, their argument is badly flawed. It has no basis in the original meaning of Section 3, and it leads to absurd conclusions.
The absurdity is clear. If the presidency is not covered by Section 3, that means a president who engaged in insurrection or aided the "enemies of the United States" is not disqualified from future office-holding even though almost any other federal official who did the same thing would be. Surely an insurrectionist who held the highest office in the land is much more of a menace to the republic than one who was merely a low-level federal bureaucrat. It makes no sense to disqualify the latter, but not the former. Indeed, it might be more logical to penalize insurrectionists who held high office more severely than those who held lower ones.
Similar absurdity arises if we apply this theory to the Impeachment Clause of Article I, which states that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" (emphasis added). As Blackman and Tillman have previously argued, their theory leads to the conclusion that the Senate can bar an impeached and convicted office-holder from lower federal executive offices, but not the presidency. Again, this is absurd. If such a person cannot be safely trusted to be a low-level bureaucrat, he surely cannot be trusted with the vastly greater power of the presidency.
Some try to square this circle by arguing the presidency is exempted because it is an elected office. But Section 3 specifically bars members of Congress, who are also elected. Given the Founding Fathers' deep suspicion of pure democracy, it is unlikely they would exempt the presidency from post-impeachment disqualification for that reason. And such reasoning is even less likely on the part of the framers of the Fourteenth Amendment. A big part of the reason for enacting Section 3 in the first place was the fear that southern white voters in ex-Confederate states would be motivated to elect ex-Confederate insurrectionists.
Both Section 3 and post-impeachment disqualification are limitations on democracy, intended to prevent voters from choosing candidates who are a threat to the constitutional order, and ultimately to liberal democracy itself. In this respect, they are similar to other democracy-protecting limitations on democracy included in the Constitution and in the laws of other liberal democratic states.
Given the absurd consequences of the idea that the president is exempt from Section 3, proponents of that theory bear a very heavy burden of proof. Longstanding rules of legal interpretation—and common sense—disfavor absurd results, at least if there is a defensible non-absurd interpretation.
And here there pretty obviously is: the president is an "officer" no less than other executive branch officials, and therefore can be disqualified under Section 3. Similarly, impeached and convicted officers—including the president—can be barred by the Senate from holding the presidency in the future (as well as other offices).
This approach is also supported by the original meaning of Section 3. As Steve Calabresi admits, and Mark Graber shows in detail (here and here), the congressional drafters of the 14th Amendment routinely spoke of the presidency as an officer of or "under" the United States and gave no indication it was somehow exempt. Will Baude and Michael Stokes Paulsen provide additional evidence to this effect in their important article on Trump and Section 3, which jump-started this entire debate.
Standard originalist theory holds that the relevant original meaning is that understood at the time the provision in question was enacted. Even if, as Calabresi and others argue, the understanding of "under" was different in 1787, at the time the original Constitution was enacted, that cannot trump (or Trump!) contemporaneous evidence from the time of the enactment of Section 3 eighty years later.
Language usage changes over time, and the relevant usage (at least for originalists) is that at the time of enactment, not some earlier period. For example, the Guarantee Clause of Article IV refers to protecting states against "domestic violence." In the usage of the time that means protecting them against internal rebellion, not the kind of abuse in the household that "domestic violence" refers to today. But if, in 2023, we were to enact a constitutional amendment requiring states to combat "domestic violence," we would use the modern definition, unless there were strong evidence that the framers and ratifiers thought they were enacting the archaic one.
Perhaps things are different if the term "officer of the United States" is a legal term of art. Sometimes legal language assigns different meanings to words than ordinary language. But there is no evidence that, in 1868, "officer of the United States" was such a generally understood legal term of art. The drafters of the Amendment—many of them lawyers themselves—certainly did not see it that way.
If they did intend to exclude an insurrectionist president from the scope of Section 3, such a momentous—and ridiculous—distinction would surely have been noted and debated. The absence of any such debate is further indication that no such exception was made. It's a proverbial dog that didn't bark.
If we believe, as many originalists do, that constitutional text should be interpreted as understood by ordinary readers, rather than legal experts, the case against exclusion is even more overwhelming. No reasonable ordinary person would assume that the presidency is not an "office" included in the text of Section 3, or that an insurrectionist president should be treated more leniently than a low-level flunky who did the same thing.
Defenders of the exclusion theory mostly rely on inferences from the text of the 1787 Constitution to make their case. For reasons already noted, those inferences can't trump the text and original meaning of 1868. But even on their own terms, they are inadequate.
Calabresi summarizes one such inference:
The Commission Clause of Article II, Section 3 imposes a duty on the President: "he "shall" i.e. must "Commission all the Officers of the United States." (emphasis added). This is done by the President signing a document called a commission formally appointing executive and judicial branch officials to their offices. No President has ever, either before or after, the ratification of the Fourteenth Amendment commissioned himself. Why? Because the President is not technically "an officer of the United States."
My answer is that the President does indeed "commission" himself. He does so by taking the oath of office required by the Constitution. Without that, he cannot take office, just like lower-level officers cannot do so without a commission issued by the president. The forms are different. But the substance is similar. Alternatively, we can plausibly interpret the Commission Clause as only applying to those officers whose positions are not already otherwise authorized by the Constitution. This strains the text; but it is less absurd than excluding the president from disqualification.
Calabresi also cites the Appointments Clause of Article II:
[T]he Appointments Clause of Article II: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:". Here again the phrase: "Officer of the United States" is used to describe appointed persons and not elected persons like the Members of Congress or the President. The Appointments Clause thus bolsters the implication of the Commissions Clause. Presidents are not, technically, Officers of the United States" as that phrase is used as a legal term of art in the Constitution.
Here, we have an even more obvious response. The clause only covers those officers "whose Appointments are not herein otherwise provided for" (emphasis added). That of the president, of course, is provided for in the constitutional provisions under which he is chosen by the electoral college.
I don' think election and appointment are mutually exclusive terms here. Rather, election is one mechanism by which a person can be appointed. That's especially true if the election in question was not (as under the original Constitution) intended to be by the people as a whole, but by a small group of elites—the electoral college (chosen by state legislatures in ways that at that time were not required to be democratic). The Framers (wrongly, it turned out) expected the electors to exercise discretion rather than simply defer to the voters in their states.
"Appointment" by means of a vote conducted by a small elite group is a concept that makes linguistic sense. Indeed, we academics routinely use the term in that way when we refer to the "appointment" of new faculty members by a vote of the current faculty.
Finally, there is the Impeachment Clause:
It provides that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Note that the President and Vice President are mentioned –alone and separately from – "all civil Officers of the United States."
Here again there is a compelling and simple response. The president and vice president are not purely "civil" officers. The president is also a military officer: the Constitution makes him commander-in-chief of the armed forces! The VP is less clearly military, but he succeeds to the military authority of the president if the latter dies, resigns, or is removed from office. Thus, he has a military role, as well. Separately listing the president and VP precludes claims that their mixed civil-military status exempts them from impeachment.
I don't claim my interpretations of these three provisions are incontestable. There is some textual ambiguity in all of them. But, textually, they are at least as plausible as the exclusionist alternative. And they should be preferred to the latter because they avoid ridiculous and absurd results. On top of that, they are more consistent with the original understanding of Section 3, and with the way a reasonable ordinary reader would read that provision.
Not everyone is an originalist, of course. I won't here go into the living constitution case against excluding the president, because it is fairly obvious: doing so excludes the holder of the very office that is likely to be most dangerous to the republic if it falls into the hands of an insurrectionist or an abettor thereof.
Finally, I fully recognize there are other objections to excluding Trump under Section 3 (e.g.—claims that he did not actually engage in or aid an insurrection). There are also pragmatic slippery slope concerns, some of which I addressed here. Some of these arguments are more weighty than the presidential exclusion theory. But we should at least clear the deck of the latter.
UPDATE: In the original version of this post, I erred in focusing on the phrase "office…under the United States" as opposed to "officer of the United States." I apologize for the mistake, which I have now corrected. But all the same points apply.
The post Why President Trump is an "Officer" who Can be Disqualified From Holding Public Office Under Section 3 of the 14th Amendment [Updated] appeared first on Reason.com.
]]>This is an audio version of The Reason Livestream, which takes place every Thursday at 1 p.m. Eastern on Reason's YouTube channel.
Reason's Zach Weissmueller and Liz Wolfe sat down for a live discussion about the political and social ramifications of the indictments of Donald Trump with George Mason University law professor Ilya Somin.
"Trump's attempt to overturn the 2020 election well deserves punishment from the standpoint of both retribution and deterrence," wrote Somin following the four-count indictment filed by Special Counsel Jack Smith in early August. "For the head of state in a democracy, there are few more serious crimes than using fraud to try to stay in power after losing an election."
Somin also says "some of the charges seem compelling" in the case against Trump in Fulton County, Georgia.
Critics of the indictments have pointed out the conspicuous timing of a scheduled trial date, accused Trump's prosecutors of trying to "criminalize speech," and suggested that the former president is being held to a double standard. Others worry the prosecution will inspire "ever more aggressive tit-for-tat investigations."
Sources referenced in this conversation:
"Retribution, Deterrence, and the Case for Prosecuting Trump for Conspiring to Overturn the 2020 Election," by Ilya Somin
"The Georgia Case Against Trump," by Ilya Somin
William Baude and Michael Stokes Paulsen on Trump's presidential eligibility and the 14th Amendment
"FBI resisted opening probe into Trump's role in Jan. 6 for more than a year," by Carol Leonnig and Aaron Davis
John Eastman's memo for how to challenge the 2020 election results
"Section 3 Disqualifications for Democracy Preservation," by Ilya Somin
Today's sponsor:
The post Ilya Somin: Should Libertarians Support the Prosecutions of Trump? appeared first on Reason.com.
]]>I recently did three relatively detailed interviews about the criminal cases against Donald Trump and his potential disqualification from the presidential election under Section 3 of the Fourteenth Amendment.
One is an interview for Reason TV, conducted by Zach Weissmuller and Liz Wolfe, who asked many interesting questions:
Another was for the Washington Post, which included several comments of mine in a video feature on Trump and Section 3 of the Fourteenth Amendment. If nothing else, it features a nice view of one of our classrooms at George Mason university! The video also features commentary by Jeffrey Rosen, President of the National Constitution Center.
Finally, I did a detailed Russian-language interview covering both the indictments and Section 3 for Radio Free Europe/Radio Liberty. The transcript and audio are available here. I recognize that only a few of our readers at this site know Russian. But for those who do, the RFE/RL interview may be of interest. It covers a good deal of ground.
I recently published an article on Section 3 disqualification for Lawfare. Here are links to pieces I have written about the criminal cases against him:
"The Georgia Case Against Trump"
"The Dangers of Giving Trump Impunity are Far Worse than those of Prosecuting Him"
"Against the 'Banana Republic' Critique of Indicting Trump"
The post Three Interviews About the Criminal Cases Against Trump and his Possible Disqualification under the Fourteenth Amendment appeared first on Reason.com.
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