Prof. Alan Dershowitz (Harvard) vs. Prof. Tom Ginsburg (Chicago) on Whether Trump Is Disqualified Under § 3 of the 14th Amendment

Very glad to see substantive debates like this, this one moderated and organized by David Steele.

Comments

[mydisplayname]

Ginburg's second point (the definition of insurrection) is notably weak, but at least he acknowledged it is an open issue. Dershowitz's final points (both that the controversy has the unwanted effect of increasing, rather than reducing, support for the former president and that some proposed resolutions are likely to lead to a parliamentary system of governance) demonstrate a great deal of wisdom.

At the time the fourteenth amendment was offered for ratification, 30% (11 of 36) states had no representation in Congress: the legitimacy of the fourteenth amendment hasn't been fully adjudicated. Unlike the thirteenth [version "B" thereof -- not the Corwin Resolution], the fourteenth amendment was ratified by the military juntas ruling in the states of NC, LA, SC, and GA and the ratifications by the states of OH and NJ were rescinded. Not even the military juntas ruling VA, TX, DE, and MD (as well as the folks in KY) timely ratified the amendment. Throughout the 1940s, France offered greater support for the NSDAP.

[Brett Bellmore]

The definition of insurrection point is incredibly important, because, while Dersh gives as an example of "insurrection or rebellion" Biden's failure to secure the border, there are much, much better examples, like riots where federal buildings were attacked, OTHER cases where people forcibly invaded legislative chambers, various 'autonomous zones'.

"Insurrection or rebellion" is all over the place, if you define it at all broadly, so a remarkable number of current public officers are at Section 3 risk depending on that definition, and as Dersh says, who gets to decide. You could just about decapitate the Democratic party in Washington based on aid to Antifa and BLM rioters.

[Sarcastr0]

Your false equivalence is an awful argument. You can draw lines wherein J6 was an insurrection and BLM and Antifa were not. Easily.

The Capitol being violently breached with intent to overturn the peaceful transfer of power that our electoral system is based on.

Some asshole rioters and shitty twitter randos with more violence than sense is not the same thing.

[Brett Bellmore]

Literally you had people physically attacking government buildings, and violently denying government authority over territories. That is, by any reasonable definition, "insurrection or rebellion". The 'autonomous zones' are not even a close case.

The only tough part is connecting the politicians to the insurrections. But that's the tough part with Trump, too.

[Nige]

'That is, by any reasonable definition, “insurrection or rebellion”'

No.You've just mad vandalising a courthouse and suing the police into insurrections. Sit-downs, demonstrations, protests, random acts of violence - all now insurrection because you want to protect Trump, a man who tried to overturn an election and who had a violent mob try to do it for him.

If you want to claim the autonomous zones as insurrection or rebellion, go ahead, they seem to have been in that spirit. But then you concede Trump's an insurrectionist.

[Mr. Bumble]

Here are the 30 times the Insurrection Act has been used.
https://www.brennancenter.org/our-work/research-reports/guide-invocations-insurrection-act

[ObviouslyNotSpam]

That refers to the Insurrection Act, not the 14th Amendment.

[Brett Bellmore]

If the 14th amendment says "insurrection", and there's a law against insurrection already on the books, we can take it as reasonably given that the amendment refers to commission of that crime, not some nebulous, metaphorical sense of the term.

[ObviouslyNotSpam]

Ah, so the Act of Congress can therefore overrule the Amendment of the Constitution. Sure, that works.

[Mr. Bumble]

"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

"Ah, so the Act of Congress can therefore overrule the Amendment of the Constitution. Sure, that works."

Not overrule. The 18th Amendment required an Act of Congress as the enforcement tool.

[Dilan Esper]

I agree with Brett that the definition of "insurrection" is slippery and if you construe it broadly, the attacks on the Portland courthouse in 2020 absolutely could qualify. And that's a problematic interpretation.

But remember, the 14th Amendment only applies to officeholders who have previously taken an oath and then insurrect. So it doesn't really present a problem under present circumstances because nobody who was elected actually participated in the attacks on the Portland courthouse.

[Kazinski]

That's a good point Dilan.

And I will add nobody who was elected and took such an oath actually breached the capitol.

[Krychek_2]

Kazinski, and Osama bin Laden didn’t personally fly the planes into the World Trade Center. What’s your point?

[ObviouslyNotSpam]

The 18th Amendment, which was repealed in its entirety by the 21st Amendment? Persuasive!

The "Insurrection Act" relates only to the President's power to call out the military to enforce federal law; it has absolutely nothing to do with the prohibition in the 14th Amendment on insurrectionists holding future office.

Congress was granted the power to enforce the 14th Amendment by Section 5 thereof, but they were not granted the power to moderate or change the rights or rules enshrined in the 14th Amendment itself.

Moreover, if this matter does go to the Supreme Court, they decide what the Amendment 14 means, not Congress.

[Sarcastr0]

Taking your facts are correct for the sake of argument:

1) Because the actual situations are quite different (intent, effect, purpose, branch of government, timing...) you hand-waive your way to similar magnitude. That is a weak and subjective equivalence

2) Trump was vastly more directly involved in J6 than Dems were in BLM.

[Brett Bellmore]

1) Many of the riots and 'autonomous zone' incidents were WORSE in magnitude than January 6th's invasion of the Capitol.

2) Define what you mean by "J6", then. Because if you mean the Capitol invasion, you've got squat in the way of evidence. If you mean the EC challenge, you've got a problem with calling that an "insurrection".

I suspect you just want to vaguely conflate them, so as to use the clarity of Trump's involvement in the EC challenge, and the clarity of the violence of the Capitol invasion together, pretending that they weren't separate things perpetrated by different people.

[Nige]

Vaguely conflate them? They’re absolutely fixed as part of the same anti-democratic authoritarian Trump scam.

[I Callahan]

same anti-democratic authoritarian Trump scam.

Pure opinion, not based in fact in any way whatsoever.

[Nige]

I can back that opinion up with facts, to wit: everything Trump did and said.

[Sarcastr0]

Your subjective sense of magnitude is not shares by anyone not already deeply in Trump's camp.

Cheering on a movement that does many things is not the same as having your administration plan a specific protest, as you fan the flames of violence and concentrate them towards your veep in the hopes of targeting a specific procedure to try and throw things into doubt to the public so you can ignore the voters.

They took notes on their criminal conspiracy, Brett.

[Brett Bellmore]

"Your subjective sense of magnitude is not shares by anyone not already deeply in Trump’s camp."

And neither is yours shared by anybody who is not already deeply in the anti-Trump camp. That's the damned POINT! There's no bipartisan agreement here, only people who want Trump taken down agree with you, only people who don't agree with me!

Dersh is making an "if the tables turn" argument here, that the proposed standards would be horrific in their application if applied in exactly the same way by the other side. You could take out Biden and decapitate the Democrat leadership of Congress just by applying the exact same reasoning from a conservative, not left-wing, perspective.

But I've noticed that the left are remarkably resistant to "if the tables turn" arguments. They just don't get any purchase with you guys. Why is that? Are you assuming the tables will never, ever turn? Or is it just that you're so invincibly persuaded of the justice of your own position, and the injustice of the opposition to it, than you can't reason about things from the other side's perspective?

[Sarcastr0]

No one but the committed Trump folks thinks about CHOP anymore. The US is not Trump supporters and then a vast swath of committed anti-Trump people.
You may think reality is fully partisan, but that's you, not everyone else.

Dersh is making a false equivalence. It's been your go-to since Trump first got indicted. It's not that people are resistant to 'the tables turn' arguments, it's that the right can't seem to find anyone equivalent to Trump so they start with failure baked in and then complain that no one is buying their nonsense.

[Brett Bellmore]

You desperately NEED it to be a false equivalence, that's all. You really, really want to throw that stone, so you tell yourself your own house is bullet proof glass.

[Sarcastr0]

I mean, I’ve made arguments. Go ahead and play pop-psychologist rather than engage with the distinctions I’ve pointed out. (timing, area of impact, hoped for future impact, intent, level of support provided by politicals)

Do you wonder why you keep sidling away from substance into speculative telepathy?

[Social Justice is neither]

You did have Kamala bailing them out for their actions so they could continue rioting, then there is all the ACT BLUE money for failing to restore civil order.

[Krayt]

But that’s what Jan 6 was, asshole rioters and shitty randos with more violence than sense.

You’re hanging a lot on it being some real attempt to do something.

The serious, democracy-threatening attempt here is jailing an opponent, removing him from the ballot. If we look about the world in any historical period, including today, there is tons of this going on. Opposition jailed in Russia, China, numerous smaller countries.

Like Dersh, I didn’t vote for him either time, nor would again. But all I see is raging “git ‘im!” in the exact form the Republicans went after Clinton in the 1990s.

Donald “Lock Her Up!” Trump does not deserve this defense. But American freedom and democracy does, and should ban such types of attacks. Myriad other cases having nothing to do with this demonstrates it amply.

[Nige]

'The serious, democracy-threatening attempt here is jailing an opponent, removing him from the ballot'

I think the threat is the demand that someone who tried to overturn an election and is accused of conspiracy and fraud in relation to those efforts be treated as above the law and immune from prosecution.

[Sarcastr0]

Jan 6 was, asshole rioters and shitty randos with more violence than sense

We have social media posts indicating differently. Oh, and a powerpoint on how to overturn the will of the electorate that expiclity includes J6 in it's plans

[ObviouslyNotSpam]

It's akin to arguing that it couldn't have been an "insurrection" because Biden became President anyway.

[hoppy025]

Were most of the "rioters" even aware of this Powerpoint?

[Krychek_2]

It wouldn't matter if none of them were. The question is whether Trump was guilty of participating in an insurrection, not whether the rioters were.

[Mr. Bumble]

So a one man insurrection?

[Krychek_2]

No; the rioters aren't on trial (at least not in Trump's criminal case). So their knowledge is legally irrelevant.

[Mr. Bumble]

Of the hundreds tried in DC who has been charged and convicted of insurrection?

[Kazinski]

That's true.

But I've never seen any evidence Trump participated in or encouraged anything other than constitutionally protected protest on the day of and the days leading up to Jan. 6.

[Sarcastr0]

There's an indictment. You should read it, lest you sound like an idiot.

[Kazinski]

There is no indictment for insurrection which is the offense specified in the constitution, and by Congress, for disqualification.

[Sarcastr0]

The indictment sure as heck presents evidence Trump participated in or encouraged the violence and threats of violence on J6.

Quit moving the goalposts, ya weasel.

[Nige]

But what is that other than him being a cagey weasel during and after the event itself, trying to maintain deniability? He didn't even have the courage to stand up and accept responsibility for what his supporters did in his name, in response to his rhetoric.

[Brett Bellmore]

And when did the left ever take responsibility for the BLM/Antifa riots, that killed dozens, and caused billions of dollars worth of property damage?

[Nige]

‘The left’ is an amorphous almost abstract concept, even more so when you add in delirious right-wing misconceptions, deliberate and otherwise, a category that encompasses millons of people with widely differing attitudes to BLM, the riots and antifa. Trump is one man, and was the entire focus and purpose of Jan 6th.

Why do you act as an apologist for someone who tried to overturn an election while condemning a group that objected to state violence?

[Krychek_2]

That's a question of fact for a jury. A jury may decide that January 6 was nothing more than a bunch of drunk frat boys letting off steam, which seems to be the argument of Trump and his supporters. Or, it may decide it was a genuine attempt to prevent the peaceful transfer of power. But the fact that a jury may or may not agree with the prosecution's theory of the case is not grounds to dismiss the indictment.

[Brett Bellmore]

"A jury may decide that January 6 was nothing more than a bunch of drunk frat boys letting off steam, which seems to be the argument of Trump and his supporters. "

Actually, I think it was a mix of drunk frat boys letting off steam, really stupid bad actors being egged on by the FBI, and everything in between.

But, you know, you're not trying to use Section 3 to stop Buffalo guy from running for President. You're trying to use it to stop Trump. So you don't just have to establish that an 'insurrection' happened that day. You have to establish that Trump was part of it.

[ObviouslyNotSpam]

Obviously.

Hence the indictment citing all that evidence and the impending criminal trial.

[Krychek_2]

Right, Brett, that's why there's going to be a trial.

[Brett Bellmore]

And what's being discussed in the above debate? In part, whether or not there has to be a trial.

Practically nobody disputes that if you charged Trump with insurrection, and convicted him in a full criminal trial, that he'd be disqualified from being President. But nobody has charged him with that offense.

That's no accident. It's because the legal case for him being guilty of insurrection is laughably weak.

[Krychek_2]

Well, let's see how it plays out, Brett.

[Mr. Bumble]

Where has he been charged with insurrection?

[Krychek_2]

I don't have the indictment in front of me so I don't remember off the top of my head if he was charged with insurrection or not. However, whatever he was charged with, will play out.

[Mr. Bumble]

Seems like for this 14th Amendment claim to matter there needs to have been an "insurrection".

[Krychek_2]

If the elements of an insurrection are present, I don't think it's necessary to actually use that word. Some jurisdictions have statutory rape; other jurisdictions have sex with a minor. Same act, same conduct, same basic principle.

[ObviouslyNotSpam]

This is the game where they abandon originalism and pretend that the meaning of the Constitution today hinges upon what Congress may or may not have had in mind when it enacted certain legislation in the same general area before or even after the Constitutional provision in question was ratified. So much fun!

[Kazinski]

Kyrchek, the federal government has an “insurrection” offense which carries penalties of jail, fines and disqualification for office.

Jack Smith did not charge Trump with insurrection.

[Vryedni]

But, you know, you’re not trying to use Section 3 to stop Buffalo guy from running for President. You’re trying to use it to stop Trump. So you don’t just have to establish that an ‘insurrection’ happened that day. You have to establish that Trump was part of it.

You're ignoring the "aid or comfort" provision of Section 3.

[Brett Bellmore]

And that's where Dersh points out that, on the same level, Biden and a substantial fraction of Congress have "given aid and comfort" to insurrectionists.

You're throwing stones while living in a glass skyscraper, he's pointing out. And you're too obsessed with getting Trump to see it.

This whole line of attack on Trump seems premised on the notion that the tables will never, ever be turned, that nobody who hates the left will EVER be in a position to use the same tactics.

If these tactics are allowed to work, they'll never STOP being used. And they will eventually be used by both sides.

[ObviouslyNotSpam]

Sure, you just need an analogy which makes sense. This one falls short.

The J6 operation apparently had a specific purpose, which was to subvert the Constitutional transition of power from Trump to Biden by disrupting the session in Congress on January 6, 2021. That is the "insurrection" event in question here.

Feel free to posit hypothetical events which could also reasonably be called an "insurrection", but if the best you can do is something which no reasonable court would characterize as such, then you're left with the question of whether an "unreasonable" court would do so.

Obviously, the answer to that is "yes", but it also renders the entire discussion pointless.

[Nige]

'that nobody who hates the left will EVER be in a position to use the same tactics.'

People who hate the left being in postions to use tactics involving abuse of power against them has been a feature of the US for most of its existence. Now you're just issuing threats.

[Tom for equal rights]

Sacastro - you have a very broad definition of violently

[I Callahan]

The Capitol being violently breached with intent to overturn the peaceful transfer of power that our electoral system is based on.

Objection. Assumes facts NOT in evidence.

[Sarcastr0]

Evidence: 1. Select insurrectionist’s social media posts before after and during. 2. The powerpoint. 3. *That the day they chose was January fucking sixth.*

You make an argument that insults your intelligence. And I do not hold you to a high bar.

[Krychek_2]

“Who gets to decide” is the same as who gets to decide in any other case in which the law or the facts are disputed – a judge or a jury, subject to appellate review. Next stupid question.

[hoppy025]

Fien with me, as long as it's not a D.C. jury made of 5 white liberals and 7 13%ers.

[Krychek_2]

Well, fortunately, it doesn't matter whether it's fine with you or not.

[hoppy025]

Since the Constitution requires an impartial jury, and 13%ers are genetically incapable of impartiality with regard to white defendants, it does matter. I do hear they like to jog though.

[Krychek_2]

Assumes facts not in evidence. Anecdotally, I've had white clients and black jurors, and I haven't noticed that the black jurors treated my white clients any better or worse than the white jurors did.

But just keep spouting your racism; nobody is paying attention. Your racism carries as much weight as kittens mewing in a box.

[Rev. Arthur L. Kirkland]

But just keep spouting your racism; nobody is paying attention.

At a blog that habitually publishes racial slurs? A blog that wallows in various forms of bigotry every day? That claim is unpersuasive.

[Krychek_2]

Sorry, I meant nobody whose opinion matters to how law is practiced in this country.

[Nige]

Yes, you're trying to define it broadly enough to render it meaningless, an act of patent intellectual dishonesty, for Trump, yet another example of what people are willing to sacrifice for this corrupt would-be demagogue.

[Krychek_2]

The thing is, anyone can spin anything to make it mean anything, but the job of the courts is to stop spinning and look at what it actually means.

The military once defined "homosexual conduct" as "physical contact between persons of the same sex for the purpose of sexual gratification." Some smart ass said that if a heterosexual male gets a haircut from a male barber because he has a date with a woman that night and he's hoping to score, the haircut was physical contact between persons of the same sex for the purpose of sexual gratification.

That's the Dershowitz -- and Brett -- method of statutory interpretation.

[JasonT20]

The definition of insurrection point is incredibly important, because, while Dersh gives as an example of “insurrection or rebellion” Biden’s failure to secure the border...

Wait...what? Did he really say that a President executing his duty of national defense poorly could fit a definition of insurrection? WTF?! I want to know if Dershowitz really said something to that effect or if Brett is relaying what he said in a confusing way.

[Mr. Bumble]

"I want to know if Dershowitz really said something to that effect or if Brett is relaying what he said in a confusing way."
Then watch the linked debate before you comment.

[JasonT20]

Then watch the linked debate before you comment.

The linked debate is 40 minutes long. It isn't too much to ask for a bit of clarification before I spend that kind of time on it. I thank Brett for replying fairly quickly with clarification. I understand where I misinterpreted what Brett wrote.

[Brett Bellmore]

He gave it as a bad example a motivated Republican might come up with to misuse Section 3. He clearly wasn't making any effort here at steelmanning.

[Sarcastr0]

The argument seems to require that border policy is the same thing as J6.

[Brett Bellmore]

The argument is that deliberately enabling an invasion of a state is giving aid and comfort to the nation's enemies. It's not a great argument, as I say, Dershowitz was hardly steelmanning the position, he was trying to show that somebody in a position to act under the 'self executing' theory of Section 3 could find a pretext for doing so against Biden that a sensible person SHOULD reject. I suppose he didn't want to muddy the water by suggesting a basis Republicans might use that was arguably legit.

Lots of easily distinguished actions would legitimately trigger Section 3. Assassination attempts against public officials. Espionage. Taking over areas of cities and purporting to run them as independent territories outside of US jurisdiction.

I know you'd like to narrow the application of Section 3 to just what you claim Trump did, and nothing more, so as to avoid having to admit it could never be turned around and used on your own allies. It's pretty transparent.

[Nige]

'It’s not a great argument,'

But it'll do as a threat.

[Sarcastr0]

enabling an invasion of a state is giving aid and comfort to the nation’s enemies.

You can dress up your policy difference with all the drama you want, none of that is anything like J6.

[Brett Bellmore]

Geeze, do you have the working memory of a gerbil? Read the whole comment, why don't you? I think the claim that Biden's throwing the border open was "Giving aid and comfort to the enemy" is a BAD argument!

[Sarcastr0]

Brett, I'm not attacking the argument, I'm attacking the equivalence you make between it and Trump's involvement in J6.

It is not equivalent.

[Brett Bellmore]

Yeah, you desperately wish it wasn't. But, "I like this theory, and only my opponents like THAT theory!" isn't a relevant legal difference.

[Kenneth Almquist]

Dershowitz: “If a group of self-enforcing Republicans were to try to remove President Biden from running [for] office, saying--foolishly, but saying--that he has engaged in rebellion and insurrection against the laws of the United States by keeping the borders of Texas open and allowing so many people to be killed as the result of illegal immigration, the question again would arise, who decides that? Surely, the framers didn't intend to allow impeachment to be circumvented by the 14th Amendment.... If this argument were to be given the weight that you would give it, it would provide a way of removing sitting officers.”

Dershowitz is responding to an argument that Tom Ginsburg didn't make. Section 3 of the 14th Amendment addresses the question of who is qualified to hold office; it doesn't change the procedures for dealing with situations where someone seeks and possibly gains an office when they don't meet the qualifications to hold that office. I don't see how anyone could seriously dispute this, and Tom Ginsburg certainly doesn't.

[Tom for equal rights]

14 Also includes the phrase aid and comfort to our enemies

"...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof....""

Does that bar Biden from holding office with his allowance of the southern border invasion or his current deal or attempt to restart the jcpoa with iran

[Nige]

Ah yes, the invasion that charges in with guns blazing to work in the fields and factories and garden maintenance services jobs that are too poorly paid to attract US citizens.

[Brett Bellmore]

Excuse me, but did anybody charge into the Capitol with guns blazing?

[Nige]

In their fantasies.

[Religion and Politics, my life]

The vote for or against Trump will be a vote for or against the charge that underlies that law..forget the relevancy of it.

The ONLY reason the prosecuation continues is to make sure he can't run. We all know this 🙂

[DaveM]

I'm of the opinion that only half of the left wants this to keep Trump from running, but unfortunately the other half wants it to ensure that he IS.

[Sarcastr0]

This neatly makes every possible action and outcome a plot of the left.

[Alpheus W Drinkwater]

Ah yes, the "we all know this" argument. Similar to the "people say" argument.

[ah....Clem]

As Ken White (Popehat) has pointed out repeatedly, Alan Dershowitz has a habit of proclaiming what he *thinks* the law *ought* to be without bothering to explain that his opinion is not what settled precedent actually establishes the law to be.

So, any arguments from him need to evaluated in that context.

Personally, I think Dersh is wasting away in Gulianiville, searching for his lost shaker of the Four Seasons Total Landscaping. YMMV.

[hoppy025]

Which is exactly what you leftists do when you claim that the 2nd Amendment allows for your "reasonable restrictions" and that the 14th Amendment gives the Rev. Kirkland a right to groom little boys.

[Mr. Bumble]

"As Ken White (Popehat) has pointed out repeatedly, Alan Dershowitz has a habit of proclaiming what he *thinks* the law *ought* to be without bothering to explain that his opinion is not what settled precedent actually establishes the law to be. "
So what settled law is there in this case?

[CJColucci]

In the '80s, the New York City Bar Association hosted a debate on the conflict between pretrial publicity and a fair trial. The participants were Dersh and Rudy. I decided not to go because there was nobody representing the other side.

[Josh R]

I was surprisingly impressed by Dershowitz's arguments on process, in particular assuming Section 3 is self-executing, how is it enforced for a candidate versus a sitting officer? I think Ginsburg countered the "normal process" is used, which means impeachment and conviction for federal officials (even if the president turns out to be 27). The problem with Ginsburg's argument is it is not clear we have a "normal process" for candidates. Maybe secretaries of state can leave Section 3 violators off the ballot and the would-be candidates can appeal. But then, what is the standard on appeal for determining if the would-be candidate violated Section 3.

I would feel better about this case if we had a clear roadmap for the process in place. But since we don't, I worry the roadmap that is eventually agreed upon will be tainted by politics.

All that being said, we could and should have avoided this problem with conviction and disqualification by the Senate back in 2021. Instead, we had cowardly Republican senators who were more concerned about their electoral prospects than the good of the country.

[Sharper]

The key point is of course that it’s just as easy to make a “self-executing” case for: 1. There were BLM riots and attacks against the White House while Trump was president, AKA a violent “insurrection”. 2. Various Democratic politicians (including Biden) publicly supported the BLM cause, therefore they’ve given aide and comfort to them. 3. As a result, State Secretaries of State should refuse to allow any of those politicians on the ballot in future elections.

If Ginsburg (and others) were to accede to that interpretation, then we’d at least know he was sincere in his belief, but this interpretation seems like a case of motivated reasoning, where the objective is known (keep Trump off the ballot!) and the arguments are just soldiers to that end, who will march the other direction if used against Democratic politicians instead.

Back in a more principled reality, someone is guilty of insurrection if a criminal court has found them guilty of insurrection, and everyone else is innocent until proven guilty and no Secretary of State is entitled to make their own judgement that someone is guilty of a crime without a criminal process first.

[Josh R]

I don't think criminal conviction is required (this isn't a criminal charge).

I would suspect Ginsburg would be fine with a rogue secretary of state leaving Biden off the ballot so long as there is a process to reverse that decision. Trump should be afforded the same process (but in this case, the outcome is not so easy to determine).

[Brett Bellmore]

Historically speaking, excepting the absolute most recent cases, we had two situations;

1) Immediately after the Civil war, the people being disqualified were mostly military and civilian officers of the just defeated side in the civil war, in no position to dispute the factual basis for their disqualification, and mostly just thankful they didn't get hauled before a military firing squad and summarily executed. The Union wasn't big into procedural niceties at the time; They started disqualifying Confederates BEFORE the 14th amendment was even a twinkle in anybody's eye, remember, and didn't bother with providing excuses. It was an exercise of raw power.

2) Later, Victor Berger, who was only disqualified after being criminally convicted, and was seated after the conviction was overturned.

I think the former precedent, though vastly predominant in numerical terms, is really only reasonably applicable to the same sort of situation: Right after a civil war, where "The winner does as he wills, and the loser endures what he must." It's just insane to try to apply it under any other circumstance; You might as well say that the federal government can station troops in legislative chambers to compel states to ratify amendments; They did so right after the Civil war, after all, so there's precedent for it...

Go with the Victor Berger precedent, unless you just won a civil war.

[Sarcastr0]

Why do you suddenly care about precedent, Brett? You, the one who says the Constitution saying what you know it to say renders all judicial precedents meaningless?

Why are you suddenly Mr. common law?

I mean, we all know, but you should at least admit it.

[Brett Bellmore]

Since the 14th amendment DOES have an enabling legislation clause, by normal constitutional interpretation it NEEDS enabling legislation. All this "self enforcing" crap is nothing more than a transparent excuse to avoid having to prove the criminal case, and to outsource the decision to enough people to guarantee that at least some of them will act against Trump.

And I'm trying to make a prudential case here, just as Dersh was: You just don't DO THIS, if you want civic peace. It doesn't matter if you can squint hard and claim to see a license to do it, you don't do it if you don't want things to turn ugly, fast. Not everything you can make a case for doing is a smart move!

Constitutionally speaking, there's all sorts of crap you could pull that would be on solider grounds than this, and would still utterly break our civic peace. Peace survives from people NOT doing everything they could find an excuse to do!

I'm starting to wonder if the left even wants peace in this country any more, or they're just hoping they can provoke enough violence to have an excuse to sic the military on their enemies.

[Sarcastr0]

Since the 14th amendment DOES have an enabling legislation clause, by normal constitutional interpretation it NEEDS enabling legislation

Absolutely incorrect. Check out the 13th Amendment.

Your prudential case is an appeal to violence, which is not something anyone will or should listen to. I don’t fucking care if you are so sure of yourself you’ll get lethal over it; either such nonsense will never happen, happen and be stopped, or we’ll lose the US. If we surrender to threats of violence, though, we’ve already lost the US.

You can argue the violence will be righteous. Then we're back to square 1. Except your faith in your arguments is undercut by how willing you are to short-circuit to civil war bullshittery.

[Brett Bellmore]

"Absolutely incorrect. Check out the 13th Amendment."

Oh, you think that somebody can be legally penalized for enslaving somebody else, without having to cite an actual law, and criminally prosecute them? You really think that? Sure, the 13th amendment means that slavery can't be legal in the US, except as a penalty for a crime. That doesn't get you very far in imposing consequences without citing a statute, though, now, does it?

We're not discussing whether people can point at Trump and say "Insurrectionist!". We're discussing whether he can be subject to legal consequences on the basis of being an insurrectionist.

And, of course he can. Just as soon as you guys deign to prosecute him and convict him for a relevant offense, instead of settling for pointing and yelling "Insurrectionist!".

[ObviouslyNotSpam]

The US didn't need a 14th Amendment to arrest and convict someone of a criminal offence, and Section 3 is not a "punishment" for the crime of insurrection; in 14th Amendment terms it is a "disability".

Congress was also given the power to, "by a vote of two-thirds of each House, remove such disability". Obviously, they could not do the same for a criminal conviction for insurrection.

[Sarcastr0]

There were BLM riots and attacks against the White House while Trump was president
That's quite hard to compare that to J6.

Various Democratic politicians (including Biden) publicly supported the BLM cause, therefore they’ve given aide and comfort to them
But as you admit, BLM is a cause, not an institution or action, so support for a cause is not the same as supporting, say, ISIS.
Also, 'I like this cause' is not aid and comfort.

This is a very weak equivalence on a number of levels.

[Brett Bellmore]

Oh, come off it, Sarcastr0. You had organized violence targeting government offices, you had mobs taking over areas of cities and declaring that they were independent of the civil authorities. TEXTBOOK insurrection!

"But as you admit, BLM is a cause, not an institution or action"

Who the hell admits something that stupid? Of course support for them was the same as supporting, say, ISIS, especially once they were trying to burn down occupied government offices.

[Nige]

'TEXTBOOK insurrection!'

So you're admitting Jan 6th WAS an insurrection? And since Trump is heavily implicated in it, are you going to vote for him as an insurrectionist?

[Brett Bellmore]

More of an insurrectionette, compared to events of the previous several years, but, sure, at least some of the idiots involved in breaking into the Capitol seem to have been up to something like that.

So? Like I said, are you trying to prove that Buffalo guy is disqualified from being President? I guess you've got a pretty solid case, then.

"And since Trump is heavily implicated in it"

And there you're back to indulging in fantasy.

[Nige]

If he tries to run make the case, meanwhile, we have Trump, who tried to overturn an election.

‘And there you’re back to indulging in fantasy.’

Oh I’m sorry, at a bare minimum, reacting to his rhetoric, acting in his name, at a rally he addressed, trying to restore him as president, while he was expressing rage at Pence not going along with it, while he, at best, watched and dithered, doesn’t implicate him AT ALL. If you think you can somehow seperate Trump from Jan 6th, the fantasy is yours.

[Brett Bellmore]

Son of Sam was acting in the dog's name. Was the dog guilty of murder?

[Nige]

Would you vote for the dog if it ran for office?

Wait, you probably would if it pwnd the libs.

[ObviouslyNotSpam]

Only if the dog had been found to have engaged in a criminal conspiracy with Berkowitz.

[Sarcastr0]

Weirdly, the violent invasion of the national capitol seems to be what folks are viewing as an insurrection, not some Washington dumbasses declaring a no cops club, and then fucking off a week later.

[Brett Bellmore]

Oh, is that all they did? “Declared” something? No actual physical acts? No barricades, or anything like that?

I’d ask you not to be such an asshole, but it’s clearly too late for that.

When people declare the riot at the Capitol not an insurrection because nobody brought guns, you'll just say that even an incompetent insurrection is still an insurrection. I guess that principle goes out the window if you like the insurrectionists.

[Nige]

'I guess that principle goes out the window if you like the insurrectionists.'

If one had succeeded there would have been significant police reform and budget reprioritisation, ultimately resulting in fewer fatalities at the hands of the state. If the other had succeeded a dictator would have been installed. I think which you 'like' is pretty significant, actually.

[Sarcastr0]

You don't seem to understand why these two things are viewed differently by everyone but committed Trump people, do you?

J6 was an actual violent incursion into the Capitol at a time at least perceived as vital.
CHOP or whatever was not an incursion, not violent, and didn't really threaten the levers of power outside like a block for like a week.

Luckily the American People don't share your instrumental lack of perspective.

[Brett Bellmore]

Yeah, you're just grasping at fictitious distinctions to avoid admitting that we've had a fair number of insurrections over the last decade.

[Sarcastr0]

It’s a number of distinctions, and most everyone else also sees them.

[Brett Bellmore]

Everybody who agrees with you agrees with your distinctions, you mean? Sure, that's trivially true.

[ObviouslyNotSpam]

Riots themselves are not an “insurrection” within the meaning of Amendment 14, and the BLM riots in particular were not intended to overthrow the government or defy the Constitution. But if they were, then yes, Section 3 could bar anyone from holding office who had participated in them. (Assuming the Supreme Court agrees, obviously.)

However, I don’t see how the 14th Amendment can bar anyone from appearing on a primary ballot. The 14th just bars them from holding office, not running for it or even winning an election for it.

[Brett Bellmore]

That's what I keep pointing out: Section 3 NEVER kept anybody off a ballot. Keeping people off a ballot wasn't even a possible thing when it was written, the government wasn't printing ballots yet! But even then, the votes got counted, if you got the most votes you won, regardless of qualifications. You "just" didn't get seated.

Doing it any other way would have been considered a violation of the rights of the VOTERS, not the candidates. If the voters picked somebody who didn't qualify for the office, the office was empty, not filled by the loser.

That's how qualifications for office worked, before the government usurped the power to dictate who people could vote for, by preprinting ballots, and recently, refusing to count any votes for a name that wasn't printed on them. Treating Section 3 as kicking in at the ballot access stage is utterly unhistorical.

[Sarcastr0]

I keep pointing out this kind of past practice argument is both bad and very not your usual thing.

You usually say precedent doesn’t matter in The face of text and original intent. But suddenly you are citing cases and norms all over the place.

But beyond your instrumentalist choice of arguments, Trump like antidemocracy hasn’t held office before. So past practice doesn’t apply well.

[Brett Bellmore]

"I keep pointing out this kind of past practice argument is both bad and very not your usual thing."

And you're wrong on both counts. Practice at the time of ratification is a normal originalist tool for determining meaning where there's textual ambiguity. If you're suddenly interpreting a clause of the Constitution in a way it was never interpreted before, you're almost certainly wrong.

[Sarcastr0]

Did you read *any* of the Baude-Paulsen piece?

[Brett Bellmore]

Of course I did. It was embarrassing reading something like that by a guy I respected.

[Mr. Bumble]

Did you?

[Sarcastr0]

Not all of it!
The top matter, and some spot-checks.

Enough to know that Brett's refusal to engage as to evidence of intent, and contemporary practice.

[ObviouslyNotSpam]

Really? Well, okay then.

[Alpheus W Drinkwater]

Thanks for the link, looking forward to watching it.

[Mr. Bumble]

"...that one can be an expert scholar on so many varied topics. The fact that he pontificates on them so seems like a bug, not a feature, in evaluating him in that role…"
Never looked in a mirror, have you?

[Dilan Esper]

He's famously a very skilled law professor. Richard Kahlenberg's memoir of law school includes some extremely vivid excerpts from his classes.