New Article: Sweeping and Forcing the President into Section 3

A Response to William Baude and Michael Stokes Paulsen

Seth Barrett Tillman and I wrote a new draft article, titled Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen.

Here is the abstract:

Does the full "sweep and force" of Section 3 of the Fourteenth Amendment disqualify Donald Trump from the presidency? In a new article, William Baude and Michael Stokes Paulsen argue that the answer is yes because "essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . ." This sweeping conclusion is not accurate. Establishing the original public meaning of Section 3 is difficult because there is originalist and textualist evidence pointing in different directions. Our research is built on more than a decade of scholarship in areas that are, regrettably, neglected in modern courts and scholarship, but would have been well understood in the 1860s.

Our Article proceeds in five parts. Part I begins with a threshold question: Is Section 3 of the Fourteenth Amendment self-executing? Baude and Paulsen say the answer is yes, pointing to other provisions of the Constitution as models. Yet, the answer is not so clear. Constitutional provisions are not automatically self-executing, nor is there any presumption of self-execution for such provisions. We will illustrate our position with discussions of the Supreme Court's appellate jurisdiction, Article I qualifications, and more. Section 1 of the Fourteenth Amendment, which includes the Due Process and Equal Protection Clauses, can only be wielded as a sword supporting affirmative relief with federal enforcement legislation, such as Section 1983. But, even absent enforcement legislation, Section 1 of the Fourteenth Amendment can be wielded as a shield as a set of defenses. Section 1 is self-executing in the latter regard, but not the former. If Section 1 is a guide, then Section 3 cannot be used as a sword to disqualify Trump, absent federal enforcement legislation. Trump has not been disqualified pursuant to any federal enforcement legislation. If Section 3 requires federal enforcement legislation, then States cannot unilaterally remove Trump from the ballot.

Part II provides a careful study of Griffin's Case, a federal circuit court case decided by Chief Justice Salmon P. Chase in 1869. Chase stated expressly that Section 3 can only be enforced by Congress through federal legislation. Yet, Baude and Paulsen tar-and-feather Griffin's Case, and their article reads like an effort to discredit Chase. But their criticisms miss the mark. They fault Chase for not adhering to doctrines developed decades later, and they condemn Chase for breaching invented ethical standards. All things considered, Griffin's Case lies in the heartland of judicial thinking and scholarship. Baude and Paulsen misread Griffin's Case, misunderstood Chase, and misconstrued the holding. Chase's opinion was, and remains, reasonably probative evidence of the original public meaning of Section 3, and whether it is or is not self-executing.

Part III turns to another case that Chief Justice Chase presided over. This case also implicated Section 3: the treason indictment against Jefferson Davis. A version of the case, reported nearly a decade after it was decided, includes a sentence which suggests that Chase viewed Section 3 as self-executing. If so, the Case of Jefferson Davis (1868) would seem to be in tension with Griffin's Case (1869). However, this sentence was added to the report by a former confederate general who had apparently plotted to kidnap Abraham Lincoln. Plus, the general was subsequently the lawyer for the respondent, another former confederate, in Griffin's Case. The reporter's connection to the self-execution issue is some cause for concern. A contemporaneous report, published in 1869, does not include that sentence. Even taken on these terms, the two Chase opinions can be reconciled. Griffin was an applicant in a collateral challenge; he sought to use Section 3 as a sword, that is, offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield–as a defense in his criminal prosecution, and he could do so without enforcement legislation. Even under modern doctrine, Griffin's Case is not in tension with the Case of Jefferson Davis.

Part IV focuses on the conduct that can trigger a disqualification. The offense element of Section 3 has two prongs: (i) engaging in insurrection or rebellion against the United States, and (ii) giving aid or comfort to the enemies thereof. These elements are textually distinct, and they reflect longstanding aspects of domestic and international law. Yet, Baude and Paulsen conflate "engaged" in insurrection, a direct and substantive criminal law offense, with giving "aid or comfort" to enemies, which permits liability based on indirect and inchoate wrongs. And in the process, they constructed a new offense that does not appear in the text of Section 3: giving aid or comfort to insurrection. The text of Section 3's "engage" prong does not extend to wrongs and crimes that are inchoate or indirect. Nor does the "engage" prong extend to inaction—for example, failing to take action with regard to an insurrection or rebellion.

Part V considers another threshold question: was Trump ever subject to Section 3? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office on January 20, 2017. Section 3 of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an "Officer[] of the United States." In 2021 we published an article concluding "that the President is not a Section 3 'officer of the United States.'" In their article, Baude and Paulsen summarily dismiss our position. But Baude and Paulsen disregard substantial evidence about the meaning of the phrase "Officers of the United States" in the Constitution of 1788. And they disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic. Instead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism. These sorts of arguments are weak evidence of original public meaning and do not pass originalist muster. More importantly, Baude and Paulsen offer no complete or comprehensive theory to explain what other positions are included and excluded by the phrase "Officer of the United States." Without ever explaining what Section 3's "officer of the United States"-language means, they only seek to establish that the President falls in that category. In short, Baude and Paulsen punched a textualist ticket good for one ride on the Trump train.

The theoretical defects and other errors in Baude and Paulsen's article are not insubstantial, and they span multiple independent issues. And we see no sound basis for their article's startling conclusion: "In the end, essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . ." We suggest that scholars, litigants, elections administrators, and judges allow Baude and Paulsen's article to percolate in the literature before placing too great a reliance on its novel claims.

Comments are welcome.

Comments

[Kazinski]

I was hoping you would get into which of these two phrases include the President:
"Senator or Representative in Congress, or elector of President and Vice President, or [] any office, civil or military, UNDER the United States"

And the tension between an office under the United States in the list of forbidden offices and "officer of the United States" in the potentially disqualified office holders.

I think President of the United States is an Officer of the United States and potentially disqualified from Congress etc., but the Presidency is not an "office under the United states" thus not a forbidden office.

As for self execution if Trump were disqualified from office by default under section 3, wasn't he also removed from office automatically on Jan 6th? Which of course nobody asserts.

[Lee Moore]

My recollection, which may well be awry, was that Tillman (+ Blackman's) conclusions were somewhat the other way round, ie
P is not an officer of the US, and probably, but definitely, not an officer under the US.

The gist of the argument for the former being a couple of SCOTUS cases limiting officer of the US to appointed positions.

[Kazinski]

Perhaps, howerver I'm not sure all those distinctions survived to the drafting of the 14th amendment. But I'm very skeptical that this list includes the President or VP or Judges either for that matter: "Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States,"

Especially since they list every federal office explicitly except President and VP, the presidency is an executive office, not civil or military and I wouldn't say its "under" the United States, of or even over, but not under, although it could be said to be civil AND military, and judges are judicial officers not civil or military either.

[Brett Bellmore]

"and judges are judicial officers not civil or military either."

I think "civil" and "military" actually cover the field, don't they? "Civil" relating to offices with authority over civilians, and "military" to offices with authority over soldiers.

We have, after all, both military AND civil courts. And administrative, sure, but those last are of dubious constitutionality. In fact, isn't there a current Supreme court case questioning that?

[Alpheus W Drinkwater]

I'm still waiting for an answer from any of you, including Tillman and Blackman, as to why the 14A framers would've been fine with a confederate officer or oath-breaker as President, so that they would've excluded that office from the amendment?

[Brett Bellmore]

I'm not sure why you'd ask ME that question; If "Civil" and "Military" cover the field, then Trump is included, since there's no third category for him to be in.

I'm happy to say that Presidents are subject to Section 3. I just think that the required due process is conviction of a statute carrying disqualification as a penalty, which would be considered enabling legislation.

[David Nieporent]

I just think that the required due process is conviction of a statute carrying disqualification as a penalty, which would be considered enabling legislation.

You just think that despite the lack of a single piece of text that says that.

[ReaderY]

I think the argument that only the federal government can enforce the 14th Amendment is the weakest. No other section of the 14th Amendment works that way. States can’t act on Due Process or Equal Protection on their own?

Moreover, Professor Blackman forgets a fundamental fact that renders his entire argument moot. State legislatures have complete control over how Presidential electors are selected. That means that unlike members of Congress, who are actually elected by the people de jure, stares can impose whatever additional qualifications on the office of President they want.

So an anti-Trump state has evety right to disqualify Trump from its ballot, based on its legislature’s plenary power over presidential elections. After all, its legislature could pick the state’s electors themselves if it wants. It can disqualify anyone it wants to from its ballot directly, by name. It can certainly jmpose qualification rules different from the Constitution itself. And that means it can define “insurrection” for itself, however it wants.

Because states’ power to disqualify Presidential candidates comes from their plenary power over Presidential elections independent of what the 14th Amendment says, whatever the 14th Amendment says is no obstacle to states acting through state statutory law (law created by their legislatures) if they want to.

[Krayt]

You’re basically saying a blue state can keep him off the ballot because they can tell their electors to not vote for him.

We love democracy! Until we don’t.

I can’t imagine the fun when the other side retaliates.

[loki13]

Yeah. It's kinda how the electoral college works. In fact, it's how the electoral college is SUPPOSED TO WORK. Federalist 68.

Maybe the electoral college is not such a great idea any more? We have all the drawbacks of it, and none of the benefits.

[Krayt]

Now that's an interesting point. They are educated people who are fit to understand and elect the president.

Too bad the people who might push that screetch about faithless electors, or their goodness depending on context, fine them, or pay their fines, depending on goal.

It's almost like battles to get a political opponent. Nah.

[loki13]

Look. It's pretty simply.

The reason that the GOP generally likes the electoral college has northing to do with the actual function. It's only because of the weighting that states are given.

The reason that the Democrats generally don't like the electoral college has everything to do with the actual function- because it's counter-majoritarian. But they are certainly aware that (as things stand) it would benefit them politically as well.

The reason the EC is dysfunctional, however, is because it leads to bad policy outcomes. With the increased polarization and with foot-voting (ahem, Somin) increasing the number of safe states on both sides, there is no need to appeal generally to people; just to the base. The EC exacerbates this, and doesn't lead to natural correction.

That said, no one actually wants the EC to perform its actual function; to act as a deliberative body to investigate and choose a correct candidate. Because if that was the case, I would argue that neither Trump nor Biden should be selected from the EC. At a certain point, while there are no actual age restrictions, a real deliberative body would probably avoid putting someone in office who is, or will be, an octogenarian.

....I'm not going to touch the other stuff, but that seems relevant as well.

[Magister]

The electoral college could be eliminated without dropping the advantage given to small states, by weighting votes appropriately; a vote in a state with N representatives would be weighted at (N+2)/N. This would reward voter turnout and encourage candidates to appeal to voters in their safe states to increase turnout and their margin; it would also highlight the mockery of "one person, one vote".

[Mr. Bumble]

That would require an amendment to the Constitution. Good luck.

[Magister]

The most likely path forward from the electoral college is the popular vote compact.

[Life of Brian]

Serious question: is there a realistic, non-wishful-thinking path to 270 EVs there now? Seemed like no realistic shot in our lifetimes when I last looked at it a few years ago.

[Magister]

From Wikipedia, states totaling 205 electoral votes have joined it; states with 63 EVs are listed as "pending" (it's in committee in the state legislature) but a couple of them seem really unlikely to me. I guess whether it's constitutional will only be adjudicated if it reaches 270.

[Brett Bellmore]

The obvious problem with it is that it's mostly been adopted by states that are reliable Democratic EC votes, (The only exception being Minnesota, the last state to adopt it, by Democrats stuffing it into a must pass omnibus bill.) and in order to reach 270, it needs to pick up small swing states.

Which know damned well that if it did go into effect, that's the last they'd ever matter to Presidential candidates.

[Magister]

That the current system favors Republicans (the only ways they've been able to win the popular vote in 30 years is with incumbency, once of two tries) is clear, and Republicans will not give up power on principle (cf. Gorsuch and Barrett appointments). So, yes, probably not going anywhere until that advantage dissipates or Democrats gain a lot more traction.

Pity the small swing states that would lose attention, but reliable states big or small are already largely ignored by presidential candidates, precisely because extra turnout or a better margin don't gain either side anything, and the loser isn't going to win it (or it wouldn't be reliable). (Reliable states get more attention in the primaries, though.)

[Dilan Esper]

Actually, we almost had a situation in 2004 where the EC helped Kerry. Had that happened, so that in both 2000 and 2004 we had the EC helped opposite party candidates win the presidency without the popular vote, I suspect we would have quickly gotten rid of the EC because everyone would have agreed it was bad. But that didn't happen.

In any event, the EC GENERALLY favors Republicans, but it's not as cut and dried as that. It depends on what states the Democrat wins.

[Brett Bellmore]

It's back to the fat tail/skinny tail thing: Republicans tend to have modest majorities where they're dominant, Democrats, once they control an area, it tends to go overwhelmingly Democrat.

The result is that Democrats waste a lot of votes in any first past the post system.

The EC accords each state a number of votes equal to the sum of it's Senators and House members. This doesn't actually have a lot of partisan impact, because some of the smaller states are Democratic, too, and you have both California AND Texas at the other end. Really, the weighting is a wash.

It's not the weighting hurting Democrats. It's the first past the post allocation of EC votes. If EC votes were allocated on a popular vote basis, as a couple of states do, Democrats would still be at an advantage, because they're getting that popular vote majority by piling up huge majorities in a few states, while Republicans are generally winning a lot of states by modest margins.

[MatthewSlyfield]

"The result is that Democrats waste a lot of votes in any first past the post system."
It isn't fist past the post that causes that waste, but the winner takes all allocation of EC votes.

“If EC votes were allocated on a popular vote basis, as a couple of states do” No states do a proportional allocation on the state wide vote.

There are two states that aren’t winner take all. The system they use is one elector is decided by the winner of the vote in each House district, and the last two go to the winner of the state wide vote. This aligns with how the members of Congress (that determine how many electors they get) are elected.

[Life of Brian]

The reason that the Democrats generally don’t like the electoral college has everything to do with the actual function- because it’s counter-majoritarian.

High-sounding to be sure, but basely inaccurate. Recent history is replete with examples of Democrats and their endless wagon train of special-interest subgroups loving them some counter-majoritarianism for exactly as long as it took for them to feel like they were in the majority and didn't need it any more.

[Kazinski]

It could be reformed without a constitutional amendment using the Maine/Nebraska option, and allow one vote per congressional district, with a 2 vote bonus for carrying the state.

It certainly would help with voters in say Alabama, Texas, Florida where there are Democratic seats but little chance of carrying the state.

Same in a lot deep blue states for republicans.

[Sarcastr0]

We love democracy! Until we don’t.

Same argument works for term limits, or age limits.

I can’t imagine the fun when the other side retaliates.
Yeah, refraining from doing the right thing because the GOP might go crazy has not historically had much of an effect on the GOP going crazy.

[loki13]

Q. Would you like to go to the Trump rally?

A. No, thank you. I am acquainted with as many crazy people as I'd care to know.

[Krayt]

You are confusing democracy with unlimited, vox populi, simple majority democracy. It's perfectly fine for democracy to use supermajority to bind itself against stupid decisions and behaviors of simple majority, as defined by most voters' agreement.

Simple majority is the low bar demagogues specialize in.

And I am not the one running around saying democracy uber alles...except here...or here...and here.

[Sarcastr0]

I’m not sure how you’re drawing your line where *this* sort of choice is stupid and thus it’s still a democracy if you restrict it via the Constitution, but *that* decision is not and thus it’s vital the people be heard regardless of the Constitution.

[bernard11]

You are confusing democracy with unlimited, vox populi, simple majority democracy. It’s perfectly fine for democracy to use supermajority to bind itself against stupid decisions and behaviors of simple majority, as defined by most voters’ agreement.

Well, sometimes. But what does that have to do with the EC?

[bacchys]

This is the other side retaliating.

As for ordering their electors to not vote for him: per MAGA jurisprudence the state legislatures have that authority anyway. No need for a Sec. 3.

[Nameless But Highly Opinionated]

They can...and reap the consequences. Like voters putting a requirement for elections in the state constitution. Or using an initiative to enact a provision that requires that everyone in the current legislature to leave office immediately.

[Michael P]

States have a general police power that the federal government does not, so they have authority to demand due process or equal protection if they want. The concern of the Fourteenth Amendment was that some would rather not, and so Congress had to be authorized to require them to.

States do not have analogous authority to impose further limits on candidates for federal office. See Powell v. McCormack, 395 U.S. 486 and U.S. Term Limits v. Thornton, 514 U.S. 779.

[ReaderY]

Sorry, but these cases are totally irrelevant to Presidential elections. Unlike members of the House of Representatives and Senators, Presidential Electors are not elected by the people, but appointed in the manner determined by the state legislatures. A state legislature can pick the electors itself if it wants. And should a state choose to have a popular election as its appointment method, its legislature can impose any limitations on what kind of candidates can be on the ballot that it wants.

Not quite: it can’t impose racial, religious, or similar qualifications prohibited by Equal Protection or the Religious Test for Public Office Clause. But it can impose any qualification outside those constraints it wants. It can have a Soviet-style single-candidate election (just a yes/no on a single nominee) if it wants. And if it wants to, it can have a completely advisory popular election and, after considering public opinion, reject it and pick its electors itself anywway. It can do all these things and more, long as it establishes the procedures for doing so in advance and the electors get selected by the appointed day.

[Zarniwoop]

I've vaguely surprised that the highly-gerrymandered GOP legislative supermajority here in Wisconsinland hasn't proposed appointing electors themselves rather than risking a vote in 2024 that the Democrats might win.

Relatedly, the WI GOP is talking about impeaching our new State S.Ct. justice, because she won the election (by 11%, which is basically a landslide here) and might rule against the gerrymandered maps that produced said legislative supermajorities in what is basically an evenly-divided state.

[Nameless But Highly Opinionated]

This. Yes!

I've been trying to argue it on the "Analyzing Removal Jurisdiction" post from a few days ago, but you say it better than I do.

[Kazinski]

No the state legislature canNOT “impose any limitations on what kind of candidates can be on the ballot that it wants.”

When the CA legislature put a requirement that presidential candidates had to release their income taxes to appear on the California ballot, the CA Supreme Court struck down the law because it violates the US Constitution by adding additional qualifications to the qualifications listed in Article II.

[Nameless But Highly Opinionated]

The CA Supreme Court focused on Article II Section 5(c) of the California constitution. They said nothing in that decision about the U.S. Constitution. The case was Patterson v. Padilla 8 Cal. 5th 220, in case you're curious.

[Kazinski]

I see you are right on that, it was the Federal District Court judge that issued an injunction against the law based on the US Constitution.

The point is thus made doubly that the state legislatures can not impose its own ballot restrictions on the presidency or congress.

[Nameless But Highly Opinionated]

That doesn't make the decision right, and no opportunity to appeal existed, thanks to the Cal. SC decision. Decisions can be wrong, precedents can be overturned, and some cases are ultimately adjudicated outside the Article III judiciary.

[Nameless But Highly Opinionated]

According to SCOTUS. But court's errors don't actually change the law, and in any case, SCOTUS doesn't have the last word on seating members of Congress. (Or certifying a presidential election, though ReaderY does a good job of showing why Thornton's logic doesn't extend to presidential elections.)

[DaveM]

This is a terrible take. I can't imagine what would happen if my state legislature voted to disallow a party's chosen nominee from appearing on the ballot! Democracy dies in darkness, indeed.

[ReaderY]

The President and Congress can ignore popular opinion on who Supreme Court Justices should be if they want. Are we living in darkness on that?

The Framers required popular elections for only the House of Representatives. Only one additional governmental body has been added since, the Senate. The Presidency, like the Senate used to be, remains in the hands of state legislatures, who involve citizens in the decision only by custom, and can use a different method any time they want.

We are a mixed form of government, not a pure democracy.

[Life of Brian]

If your proposal is to scrap presidential elections altogether and return to a selection/appointment system, I highly doubt you're going to get any traction on that at all.

For the same reason, a thinly-veiled functional equivalent -- that has the appearance of an election but where the choices are limited to those selected by the voters' self-proclaimed betters -- should receive no meaningful traction either. Which is why this recent too-clever theory of 50-laboratory ballot access is particularly insidious.

[Krayt]

Not for SC justices, no. They are not currently elected. Feel free to agitate for it if it concerns you.

The president is elected, and people defend tricks to keep him from being voted on. This is shameful for America.

Of course, his attempted tricks were also shameful. A pox on both your houses.

[Magister]

States are not allowed to add qualifications for Congressional candidates, at least as far as creating term limits - U.S. Term Limits, Inc. v. Thornton (1995). Given your argument, could a state exclude candidates on the basis of race, religion or national origin? The question is how states can act on the additional constitutional requirement of not being an insurrectionist.

It would simplify election horse race reporting if states that were solidly controlled by one party simply decided on a candidate well before the election, and in most states everyone knows which party will win the state long before election day. But it seems unlikely that voters would be happy with that in swing states, especially where permanent control by a now-minority party was achieved through gerrymandering.

I favor putting Trump on the ballot. If Republicans nominate him and voters elect him, it will doom the US, but the constitution allows the country to choose suicide even if it's not a suicide pact.

[ReaderY]

Unlike members of Congress, Presidents are not selected by voters, but by electors appointed in the manner directed by state legislatures. There is no comparison between the two cases.

The situation is more like other offices that the constitution says are appointed offices, not elected ones. Consider Supreme Court Justices. Congress cannot pass a law saying Supreme Court Justices have to be white male Christians. But nonetheless, that doesn’t demonstrate that Supreme Court Justices have to be selected by popular election.

The difference between Presidential electors and Supreme Court Justices is that legislatures have flexibility in setting up appointment procedures for Presidential electors. If a state’s legislature chooses not to appoint them directly itself, it can have a commission appoint them. If it chooses a popular election, it can impose any qualifications or conditions on their appointment it wants, as long as they are constitutional as applied to any other politically-focused job or office.

[Magister]

While a state could choose electors by some other means than an election, once they decide to have an election they're bound by a lot of requirements. When some state actually decides not to have presidential elections, I'll give your argument some credit.

[Alpheus W Drinkwater]

That's exactly right. ReaderY and others might believe that states can add any presidential qualifications they want, but there are no court decisions stating that (that I know of), and some cases finding that in fact states may not impose additional requirements.

[DaveM]

"Presidents are not selected by voters, but by electors appointed in the manner directed by state legislatures."

And that manner in every state is to choose electors based on the majority vote. No one takes your suggestion seriously that the legislatures have "flexibility" on this point. In some states, you'd even have to change the state constitution to change how this is done.

[Jason Cavanaugh]

You might want to actually read the Constitution before thinking anyone wants to read your ignorant replies.

Beyond that, you should check your 'facts' before making assertions that aren't true.

[DaveM]

Indeed? Ok, which state does not apportion electors on the basis of an election? In which state would it be possible for the legislature to be "flexible" wrt voting procedure? Granted, "flexible" is not a well-scoped word, but the way the GP was using it, he meant that they could just decide to pick and choose electors on a whim.

[Jason Cavanaugh]

Notwithstanding specific State constitutions, according to the Constitution, they absolutely can 'pick electors on a whim' if that is the process they write into law for their State.

I notice that you've already moved your goalposts regarding how "every" State apportions electors. I suspect maybe you went off and did a quick fact check of yourself and now want to pretend you didn't ignore Nebraska and Maine.

[ReaderY]

Many an at-will employee who had been working comfortably for many years and assumed would stay there for life didn’t take seriously the legal technicality that his employer retained the right to fire him at any time, until after it was too late.

[MaddogEngineer]

Section 3 is only self-executing insofar as there is a due process identification of the grounds for disqualification.

In the Civil War context, that would be POW capture/parole when serving in a rebel army (recorded by the Union Army) or service in the Confederate government where oaths of allegiance/office were recorded. Because those activities occurred in combat areas where civil courts were not operating.

Absent something like that, you need a civil court conviction for a qualifying offense, because there has been no sustained rebellion/insurrection for the Civil War type events to be recorded and satisfying due process in peacetime (civil courts continuing to operate as clarified by Civil War era habeas precedents).

Secretaries of state or people filing challenges can’t just point to news reporting to satisfy this threshold. Congress could define such a process for adjudicating contested facts outside a criminal trial under its 14A authority, but that would mean Section 3 isn’t self-executing.

[Sarcastr0]

Lots of assertions. Not much to back it up. Certainly no originalist sources.

You have a self-consistent picture of what Section 3 could do, which is more than a lot around here. But no reason why this is indeed what Section 3 does do.

[MaddogEngineer]

That’s not actually a rebuttal to anything I wrote. You say I haven’t actually demonstrated anything, but then neither has anyone else. Everyone is making raw assertions. Lots of people want to say Trump is disqualified, but can’t say what satisfies due process beyond Orange Man Bad. Baude and Paulsen hand-wave that away by saying 14A disqualification overrides any other provision of the Constitution. THAT is quite breath-taking, and even though they use a lot of words, it remains unsatisfying to American jurisprudence due process.

Due process really is a thing. I explained why it wasn’t a problem in the Civil War context, that the disqualifying of ex-Confederates under the terms of the Section 3 was undisputed--no question whether it was self-executing. Certainly not tested in court, both because (1) nobody disputed what was disqualifying at the time, and (2) presidential pardons and congressional amnesty under the provisions of 14A.

[Brett Bellmore]

In the Civil war context, they actually started disqualifying Confederates before the 14th amendment was even drafted. There wasn't any due process, it was just an exercise of raw power by the winners of a war over the losers. THAT is why due process wasn't a problem, not comprehensive records of who'd been enlisted on the Confederate side.

The 14th amendment was essentially a way of papering over that, because the courts were starting to raise serious questions about what was being done, and they weren't going to be able to operate on a "we just won a war, so STFU" basis forever.

[Sarcastr0]

The 14th amendment was essentially a way of papering over that
This remains bullshit. The 14A was the result of plenty of substantive Congressional debate, it was not some after-the-fact fix!

[Brett Bellmore]

Except that what I said was true: The 39th Congress, seated in 1865, refused to seat Confederates, despite the fact that they'd actually won their elections. No arguments, I don't think they even bothered voting on the matter, they just ignored them when calling the roll call. The first Civil Rights act was enacted in April 1866.

The 14th amendment wasn't submitted to the states until June 1866, and it wasn't ratified until July 1868.

So, yeah, refusing to seat Confederates after the Civil war was NOT based on the 14th amendment, and neither was the first Civil rights act. The 14th amendment's purpose was to retroactively legalize both actions, which were just "We won, so we get to do what we want!" exercises of power.

[Sarcastr0]

You say I haven’t actually demonstrated anything, but then neither has anyone else. Baude/Paulsen absolutely come in with originalist scholarship.

They also point to how the Constitution tends to operate when 2 clauses come into conflict - the later in time wins.

And they don't say due process doesn't apply - the paper fully contemplates a disqualified person having their day in court.

I've said before, I think this is an entirely academic exercise. But it is very funny how many people are coming in and trying to front they've read the paper and they absolutely have not even read the intro.

[Brett Bellmore]

"They also point to how the Constitution tends to operate when 2 clauses come into conflict – the later in time wins."

Yeah, when the conflict is explicit. The general rule is against implied repeal.

"And they don’t say due process doesn’t apply – the paper fully contemplates a disqualified person having their day in court."

Yeah, that's their idea of due process: Somebody arbitrarily declares that you're guilty, and then you're guilty until you successfully appeal that declaration. That's a pretty shitty idea of "due process".

[MaddogEngineer]

Yes, that’s exactly it: having to prove your “innocence”, absent any congressional implementing legislation.

If Congress did establish such a process, I would agree with Baude/Paulsen that it would be “immune” from other constitutional rights challenges, assuming it provided the accused a fair opportunity to respond and make the accusers prove their case.

Pursuing an ad hoc process by state election officials, absent federal statutory standards, violates due process. Nobody can be sure of the rules of the game, which is arbitrary and capricious.

[Alpheus W Drinkwater]

What you describe as an "ad hoc process by state election officials" is literally how elections have always been managed. State law empowers certain officials or boards with the task of determining eligibility to appear on the ballot, and there are avenues for candidates to challenge adverse decisions, including state and federal court. State elections officials act to remove a candidate for federal office who doesn't meet constitutional requirements all the time, with no Congressional implementing legislation.

[David Nieporent]

Yeah, that’s their idea of due process: Somebody arbitrarily declares that you’re guilty, and then you’re guilty until you successfully appeal that declaration. That’s a pretty shitty idea of “due process”.

Sigh. I've explained to you at least three times here that this is actually a perfectly normal application of due process in the administrative context.

(And, yes, whether one is eligible to appear on a ballot is an administrative context, not a criminal one.)

[MaddogEngineer]

You inadvertently state exactly why Section 3 cannot be self-executing as most people mean it:

the paper fully contemplates a disqualified person having their day in court

Without implementation legislation, there are no procedures for such a case to proceed. Certainly, it may be legitimate for states to pass laws implementing such a fact finding procedure. But absent a definition of “insurrection” for the purposes of 14A, general ballot disqualification procedures insufficient. In the particular case of January 6, 2021, any such attempt now at a definition would probably violate ex post facto prohibitions. So you would need:

1. A criminal conviction of insurrection or rebellion 2. Evidence of taking up arms, such as a military capture/parole 3. Rebel oath of allegiance/office to a rival government in the territory of the United States

Absent any statutory procedure, any state adjudication should stop if none of these 3 things have been found by election officials. Just like establishing native citizenship or minimum age for an office. Determining whether an individual engaged in insurrection is a fact-finding exercise (if no criminal conviction), which should require a statutory defined procedure. This is why I think many keep objecting to the notion of Section 3 being self-executing.

There is a particular reason the U.S. Constitution defines treason. In English history, “constructive treason” was used as a legal weapon against political enemies. The problem with Baude/Paulsen’s “originalism” is that they are searching for a reason to disqualify Trump under Section 3, and working backwards, knocking down roadblocks they encounter to achieve their goal. Little different than “constructive treason”. If you start from the beginning, asking what offense has Trump committed, you don’t get anywhere. He has not been charged with any insurrection or sedition offense (my #1). He certainly hasn’t done #2 or #3. We’re supposed to be a government of laws. Giving men (or women) the arbitrary authority to decide whether disputed facts makes them the law and violates the fundamental principle of fairness. Such an ad hoc process violates due process.

I happen to think, as a default state, that Congress is the arbiter of this question for congresspersons and the president/vice president. Either by not seating an offender in each house (something most state legislatures could also do for state representatives), or by disqualifying presidential electoral votes during the count, based on one of my 3 conditions. It's not a bill of attainder because 14A grants them this authority. If Congress wanted to pass implementation legislation giving the states a process in their courts (or federal district court), it is free to do that. But it hasn’t. Almost no one has standing to sue absent that. (I say almost, because there might be some situation I had not considered.)

This is not even originalism, it’s just what the text says, and doesn’t say, before you even go any farther.

[Stephen Lathrop]

MaddogEngineer, what makes you suppose due process has anything to do with the jointly sovereign People's exercise of their constitutive power, acting at pleasure and without constraint?

[Kazinski]

But you are ignoring section 5.

Congress decides how to enforce section 5, so once Congress decides, and they did, the states must follow Congress.

[ReaderY]

I’m saying state legislatures can select among and further subset constitutionally qualified candidates , they can in effect impose their own additional qualifications.

I’m not saying that states can pick a constitutionally unqualified candidate.

[Kazinski]

Yep, and I’m saying, and every court that has addressed the issue, including the Supreme Court, says the states can’t add their own qualifications.

[loki13]

Leo: Send out the alert ... we need some hacks to write something about Section 3 of the 14th Amendment!

Staffer: Well, we've already had a lot of people write about it, and pretty convincingly. It's not looking good....

Leo: C'mon. Get me Dershowitz!

Staffer: Eh, he doesn't really write, you know, things any more. We can prop him up on Fox News to talk about stuff, but write? Probably not a good idea.

Leo: Look, there's got to be someone out there that's hacktastic enough to just give me what I want to hear.

Staffer: Well, there's always Blackman and Tillman......

[David Welker]

You ought to be better than this Loki.

That is a non-substantive ad hominem attack.

Addressing the actual substance of the argument, do you have any reason to prefer the argument of on set of authors over another. And, if so, what are those substantive reasons???

[loki13]

Why? Talking about Blackman's "scholarship" is like wrestling with a pig; the pig is happy, and you both get dirty.

It's just a result in search of an argument, as usual. If you're genuinely curious, read the Baude and Paulsen article. Then put on your wading boots.

[David Welker]

Loki:

Why engage in ad hominem?

If there is something wrong with the substantive argument, you should be able to point that out.

I am not detecting any ideas in the summary the Blackman provided that are out-of-bounds or straight up crazy. But if there was such an idea, you could do us a favor and point it out.

Substance is better than posing.

I don't know why, but I guess I just used to think you were better than that.

You see it from both sides. Just people trading ad hominem attacks. It is self-indulgent, boring, and a waste of time.

I am NOT against ad hominem attacks in all instances. But they should be used very sparingly, at least.

[loki13]

"Why engage in ad hominem?"

Because ... it's funny. I wouldn't do it to any of the serious scholars here. But it's remarkable how Blackman "acquires" expertise in so many numerous and disparate fields whenever a sudden need for shoddy scholarship arises. I don't actually think that there is a secret bat signal (although ... I am a lot more cynical than I used to be), but I do think that, at a minimum, he continually picks partisan topics in the news, and reasons his way backwards to support his choice.

"I am not detecting any ideas in the summary the Blackman provided that are out-of-bounds or straight up crazy."

Try reading the other article first. Then read more than the summary. If you don't understand why this is a hack job, then I can't really help you. It's never even a good-faith effort; it's just an attempt to buy time (that's why it's all about letting the ideas "percolate" for a while).

But sure, read the Baude/Paulsen section that detail, in depth, the "Blackman" analysis of officer of / office under (complete with actual debate on the provision in question). Then get back to me.

It's the usual. It's not worth the time or the effort; it's just something they are putting out to give someone, somewhere, a "colorable" argument they can use. Same as it ever was.

[David Welker]

For the officer point. I am already on record disagreeing with Blackman on that particular point here at VC.

The non self-executing argument is a serious argument. And I find it plausible. More research needed.

I am not going to find that argument uninteresting merely because it was raised by Blackman. Bugs Bunny could raise the argument and I would still think it was worth thinking about.

[loki13]

We all use heuristics in life.

Just saying, "ad hominem" means nothing more than the fact that someone has been on the internet for a time.

Look, a person can truthfully say, "You can't dismiss the time from a stopped clock; after all, it is right twice a day." Or you might just say, "Look, maybe I'm not going to rely on the stopped clock to tell the time."

You want to be Charlie Brown with the football? Go ahead. But you're going to have to do better than, "Something something ad hominem something something Summary something something Doggone it, Lucy took the football away AGAIN???!!!??"

[Sarcastr0]

Yes, Blackman being wrong and also a clown can both be true. And often are!

The comments below his posts have room for both discussions.

[shawn_dude]

His articles tend to have higher thread counts than others do. Perhaps this is just the academic version of click bait or even shit-posting?

[Noscitur a sociis]

It’s not even the academic version.

[Rev. Arthur L. Kirkland]

it’s remarkable how Blackman “acquires” expertise in so many numerous and disparate fields whenever a sudden need for shoddy scholarship arises

That's a bingo.

What is not remarkable is that Prof. Blackman's scholarship -- despite his self-description as a "national thought leader" -- has caused him to remain mired for more that a decade on the faculty of one of America's worst law schools.

It appears downscale partisan hackery isn't the ticket to a faculty position at a good -- or average, or somewhat below-average -- law school.

[David Welker]

Well, if you “believe” in US News and World Report rankings, in my view, you are being very superficial.

It is true that there is some general way you can group law schools together based on the quality of the student body. Students who perform better in undergraduate will tend to seek positions at the more highly ranked law schools in order to improve their job prospects. But the law is the law, no matter where you learn it. One must always distinguish between style and substance. A school’s ranking is style, the law that is taught is the substance.

The idea that knowledge should be associated with such fierce scarcity and competition when knowledge is a non-rival good should be a giant clue that these rankings are more about perceived social status (which shouldn’t matter to anyone) rather than anything substantive.

That you always mention rankings is an indicator of superficial non-substantive thinking on your part. With respect to this issue, at least.

Do better.

[Rev. Arthur L. Kirkland]

Did your law firm consider a candidate's academic and/or practice record when hiring legal professionals?

Answer that one and I will know whether it was a law firm to which I would refer work or from which I would hire a lawyer.

[David Welker]

Well, considering that I chose to work as a software engineer after I graduated from law school, your question isn't on point.

Right at the moment, I am transitioning my career to start a solo law practice. If I am ever (1) fortunate enough to hire other people and (2) decide that I would actually like to work with other people, I would judge people's analytical abilities primarily by having a conversation with them. One thing I would be looking for is to see whether they are inclined towards superficial thinking or not.

[Rev. Arthur L. Kirkland]

You plan to interview every applicant? Good luck fulfilling your billable hour goal.

[NvEric]

“Why engage in ad hominem?”

Every argument and legal action against Trump is ad hominem.
From the very beginning 2015-2016 to this day is, and has been, pure ad hominem.

[loki13]

No.

Look, if you had half a brain (which is assuming facts not in evidence), you might have heard of Trump prior to 2015. And if you did, and you knew about him from before his heavily scripted appearances on The Apprentice, you'd know that he was, and always has been, a joke. I mean ... have you met a bona fide real estate developer before? Let alone one that operated in New York City?

You're right, people didn't take him seriously, because the idea that a lying, corrupt, narcissistic Democratic real estate developer from New York City with a penchant for paying off porn stars and whose failed marriages are only exceeded by his failed businesses would somehow become the darling of the GOP still seems too surreal to be true.

But that's only because people failed to take into account the capacity not of Donald Trump to lie (which was well-documented in the '80s), but of people to lie to themselves.

Still, you did manage to say "ad hominem" twice, so ... gold star!

[Vryedni]

The meme of Donald Trump as a Democrat is mostly urban legend. For 9 of the last 36 years, he was a Democrat. For 25 of those years he's been a Republican.

[Kazinski]

Well Loki, how many times have you gotten your opeds printed in the NY Times or WaPo?

How many times have you been cited by the Supreme Court in your briefs?

[loki13]

“How many times have you been cited by the Supreme Court in your briefs?”

Well, gee willikers Kaz, I wouldn’t want to the Supreme Court to cite me in my briefs; besides, I’m much more of a boxers kind of commenter.

That said, cases I’ve argued (and won) have been cited by state appellate and federal courts, including (yes) the Supreme Court. Which is something, I guess. But I somehow manage to not run my mouth about it in five poorly-written blog posts every day.

But sure, since you want to bathe in the reflected glory of … I can’t believe this …. Josh Blackman, actual practitioners care about the cases they win for clients.

But let’s play your game- how many cases have you won in court, Kaz? Both trial and appellate? Guessing the over/under is 1, and I’m taking the under.

[Kazinski]

I’m undefeated in court, I’ve beaten all my raps.

[Flight-ER-Doc]

So Far!

[Rev. Arthur L. Kirkland]

Well Loki, how many times have you gotten your opeds printed in the NY Times or WaPo?

I worked, briefly, for the New York Times and have been a quoted source for the Washington Post. I also collaborated with The Times for years on reporting. The Times hired me for editorial work, though, not as a mouthpiece for a fringe point of view. In Prof. Blackman's case, my experience at newspapers tells me he was engaged as an exercise in "let's give both sides a shot" coverage, which often involves finding someone extreme or dopey enough to try to advance or defend a weak position. That "both sides, no matter how lame" rubbish developed in the '70s and '80s and persists to this day.

Also, I once wrote an op-ed that was published by one of the three national newspapers under someone else's byline (I didn't know it would work that way until I saw the publication). In Blackman's case, though, I sense he was the author.

[loki13]

(FWIW, while I think the Baude, et al., scholarship is both interesting and persuasive, I also don't think it matters. As a matter of fact, I don't think that Trump will be disqualified from any ballots due to Sec. 3 of the 14th Amendment. It's akin to someone saying, "But the Air Force and the Space Force aren't provided for in the Constitution." Great, and then?)

[Doug Heffernan]

There will always be an “and then” (https://www.youtube.com/watch?v=CkdyU_eUm1U).

The “and thens” never end. But you’re quite correct that there will be no practical effect of all of this academic jibber jabber. The die is already cast for Trump winning the next election. It’s like watching a car accident in slow motion.

The "and thens" after he wins will be much more consequential.

[Rev. Arthur L. Kirkland]

The die is already cast for Trump winning the next election.

Are you confident there are enough poorly educated, superstitious, disaffected, bigoted hayseeds remaining in America's lesser jurisdictions to give Trump a chance? There are millions fewer clingers today than there were in 2020, and probably close to 10 million fewer clingers will be alive in America in 2024 than were around in 2016.

[Dr. Ed 2]

You are not going to tell 80 million people that their choice for President can't be on the ballot without major problems happening.

[Magister]

If you're going to just make up numbers, you might as well say 80 billion. You could add the 2016 and 2020 votes for Trump and pretend that he's the choice of 137 million.

[David Welker]

If you are going to criticize his number, how about you give us a source for your own number.

In this case, you might start with a link to a source. For example here:

https://www.nbcnews.com/politics/2020-elections/president-results/

And then note that it reports that in 2020, 74.2 million voted for Trump and 81.2 million voted Biden. In 2016, 63.0 million voted for Trump. That represents an 11.2 million increase.

Assuming that Trump might get as many votes in 2024 as Biden did in 2020 doesn't seem unreasonable. Dr. Ed's 80 million figure might also be considered to have only 1 significant digit, depending on how it is interpreted.

Overall, my point is this. Why even go about criticizing someone's number without doing basic research on your own number???

[Magister]

Eighty billion - made up number, since there aren't that many people in the world; that was the point.

Trump got 74,225,845 votes in 2020 (according to Dave Leip's Presidential Atlas); I looked up his vote totals from 2016 and 2020 to get 137 million. Big Lie supporters have claimed he got 80 million votes in 2020, and given Dr. Ed 2's track record it's highly likely that he is quoting one of those debunked claims. Current polling has Republicans divided on their choice for nominee, even if Trump leads. Why not challenge Dr. Ed 2 to produce a source for his number?

It's ludicrous to claim that Trump's vote totals will continue to climb from 2020 in the face of his election loss in 2020, his loss of incumbency, January 6th, his second impeachment, and his many indictments.

[Rev. Arthur L. Kirkland]

Don't forget the millions of dead clingers, who have been replaced in our electorate by better, younger, less bigoted, more diverse Americans since 2020.

[David Welker]

You fail to grapple with the fact that recent polling indicates that Biden's majority with minorities is decreasing compared to what it was in 2020.

You are going to have to update your "schtick" with actual facts someday, right?

[Rev. Arthur L. Kirkland]

Both Trump and Biden exhibit a lot of drag, but Trump's core audience -- disaffected, religious, obsolete, bigoted old-timers residing in can't-keep-up communities -- is dwindling as the old "Gods, guns, and gays" voters die off.

Trump also must contend with Republicans who will place country ahead of party. Not enough to rehabilitate conservatism and conservatives, or influence the tide of the culture war, but enough to make it even tougher for Trump to pull off another three-cushion, behind-the-back bank shot at the Electoral College.

Biden beat Trump by roughly seven million votes in 2020. Four years, a few million dead clingers, and maybe a conviction or three later, the likelihood Trump would overtake Biden seems . . . well, someone that people who expect a Rapture could believe in.

[David Nieporent]

You fail to grapple with the fact that recent polling indicates that Biden’s majority with minorities is decreasing compared to what it was in 2020.

Setting aside every other problem with that argument — and there are many — you are mistakenly comparing an approval rating to a vote.

[David Welker]

"Dr." Ed's post says 80 million, not 80 billion. Those are VERY different numbers.

Even if Trump did get 80 million votes in 2020, that is still fewer than Biden. Kind of a strange number to gravitate towards if you are a conspiracy theorist.

Regardless, you are assuming that "Dr." Ed is talking about the past, but since disqualification would act prospectively and not retroactively to apply to an election Trump already lost, I think the better interpretation is that he is talking about the future, since the people who would like to vote for Trump now are the ones that would be prevented from voting for him.

[Magister]

80 billion was my comment to mock Dr. Ed 2.

There's no evidence that 80 million people currently have Trump as their choice for president. Plenty of Republicans in polls do not want him to run. And a bigger percentage of independents. 80 million now is a fantasy.

[Krychek_2]

I really don't like the idea of a major party nominee being kept off the ballot. That said, the "major problems happening" threat is fairly tiresome and not likely to happen. In 2000 and 2016, the majority of voters were told that the candidate they voted for would not be president. The majority did some grumping and grousing, but ultimately they accepted the result. "Major problems" did not happen.

Would the Republicans also accept a result that was permissible within the rules but nevertheless gave them a result they didn't like? I would like to think so. Sure, you've got the crazies who might try storming the Capitol again, but I'd like to think most Republicans are grownups who would also grump and grouse but ultimately accept the results. Maybe I'm wrong.

[David Welker]

Grump and grouse because the electoral college, which has been existence since the very beginning, is annoying is one thing.

This keeping people off the ballots thing. That sounds like a trick they would use in Cuba or the Soviet Union or Communist China.

We must first destroy democracy to save it!

I do think that something about the combination of Trump and COVID-19 has caused some people to lose their minds.

[Krychek_2]

I also think that whatever the legalities may be, keeping Trump off the ballot would be a terrible tactical decision and bad for the country. It would be a bad tactical decision because Trump is the Republican least likely to beat Joe Biden. It would be bad for the country because it would further polarize and enrage our already polarized and rage-based politics.

My hope is that Trump runs, gets his butt kicked, and then disappears into the oblivion he so richly deserves.

[David Welker]

I agree, let the American people decide. That is democracy.

And the country will be fine either way.

[Rev. Arthur L. Kirkland]

I hope by oblivion you mean a prison cell.

[Krychek_2]

In my view he richly deserves a prison cell, though at this point I'd be content with just having him disappear.

[David Welker]

Are you actually using the word "hope" to refer to yourself? As in you have human hopes???

Be careful, or your troll mask might melt off.

[Rev. Arthur L. Kirkland]

I have great hopes for America. That why I have devoted so much time for many years to ensuring Republicans and conservatives lose on the issues and at the polls and continue to be pushed toward irrelevance as an important element of American progress.

[Rev. Arthur L. Kirkland]

This keeping people off the ballots thing . . .

has been part of the Constitution for a long time. Would you be equally upset if a party wanted to nominate a 25-year-old for president?

(That would be strange, because being an un-American insurrectionist asshole seems more troublesome that being a young American.)

[windycityattorney]

Trump in the lead up to Jan 6 and even now... employs rhetoric that makes it seems like his election is a make or break moment for the entire country. To paraphrase the simplest of rhetorical tools he uses, "If Trump doesn't win, then YOU won't have a country anymore."

The democrats in this rhetorical spin zone are not just the other major party looking to have their own candidates elected. They are communists who want to destroy the United States. They purposefully allow an invasion of the southern border to take away YOUR country and YOUR rights.

In other words, the rhetoric proposes an existential threat. And the only way to stop the threat, is to elect Trump and defeat the communists. It's a con man's game and many commenters on this blog use the same rhetoric so are either really good trolls or true believers...calling for the death of the enemy. It's all really quite pathetic and so transparent. But the right wing media circus repeats the phrases, doesn't ever actually engage in what the rhetoric means or what it is meant to do and people spit the phrases back out as if on cue. "Second civil war is coming." Gotta keep the fear alive (and donations flowing).

[shawn_dude]

And the folks raking in the cash from this con all have bolt-holes in other democratic nations like Europe and NZ. That way, if they're successful, they'll get to spend their graft freely and not have to worry about falling out of hotel windows.

[Rev. Arthur L. Kirkland]

I really don’t like the idea of a major party nominee being kept off the ballot.

Do you like the Constitution?

[Krychek_2]

Sometimes.

[David Welker]

Good answer!

If someone were to say that they like the Constitution completely, that would probably be an indication that they have never read it and are likely unfamiliar with its use in American history.

Even James Madison did not love every part of the Constitution. The document did and does contain political compromises, after all.

[Rev. Arthur L. Kirkland]

The Constitution bars 25-year-olds and insurrectionists from the presidency. That someone would be devoted enough to Trump — a vainglorious, boorish, vulgar, lying, bigoted, reckless, belligerently ignorant asshole — to disregard the Constitution is a reliable pointer toward a lousy person.

We have millions of those losers remaining in America. Fortunately, they have been watching their stale, ugly thinking -- and their failed communities -- become increasingly unimportant in America for more than a half-century.

[Dilan Esper]

(FWIW, while I think the Baude, et al., scholarship is both interesting and persuasive, I also don’t think it matters. As a matter of fact, I don’t think that Trump will be disqualified from any ballots due to Sec. 3 of the 14th Amendment. It’s akin to someone saying, “But the Air Force and the Space Force aren’t provided for in the Constitution.” Great, and then?)

This is the correct answer. Law professors don't get to disenfranchise 80 million voters, no matter how strong their arguments about constitutional meaning are.

The voters enforce Section 3 in a presidential election. Biden is welcome to argue that Trump is ineligible to serve. If he picks up a few votes because of that argument, maybe it can sway the election. But you can't stop the public from voting from an ineligible candidate if that is who they really want. I've been banging this drum for years, dating back to all the arguments about Obama and McCain and where they were born/were claimed by opponents to be born.

[Mr. Bumble]

A question.
So we have an election and the "winner" is ineligible under some term of the Constitution (age, native born, section 3). What stops the electors from still voting for him/her?
If the electors refuse to vote for the "winner" who becomes President? The VP?

[Dilan Esper]

Presumably whoever the EC selects, but that won't happen- the electors almost always vote for the candidate they are directed to and many states have faithless elector laws to ensure it.

[Mr. Bumble]

But the "winner" is only 34 years old.

[Dilan Esper]

So what?

Seriously, I'm shocked at how many people don't understand that you aren't going to disenfranchise 80 million voters just because you believe the Constitution says something. If the public votes for a 34 year old, it will surely come after it is pointed out to them that the person is ineligible. They vote for him anyway? He has to be seated. Because the only reason the Constitution means anything is because of public legitimacy, and because there's no God who can come down from Mt. Olympus and strike down government officials who seat a 34 year old.

[loki13]

"and because there’s no God who can come down from Mt. Olympus and strike down government officials who seat a 34 year old."

And as we've seen, they wouldn't do anything even if the government officials eat a 34 year old.

[Kazinski]

It’s not clearly established government officials can’t eat a 34 year old?

Probably depends on which circuit.

[Jason Cavanaugh]

Amusing, but false.

Until such a time as the Constitution is amended or thrown out, it is the law of the land - including the restrictions and qualifications of President.

You don't get to ignore it just because "80 million" people decided that's what they wanted to do when the other 240+ million aren't on board with that idea.

[David Nieporent]

Well, yes, if 240 million people say no and 80 million say yes, we've got a problem. But you're not arguing with Dilan's position; you're just qualifying it. Dilan's point is that ultimately the people, not a piece of paper, decide. The constitution is only the law because people agree it's the law.

[Kazinski]

No, you get to ignore it until Trump gets convicted of insurrection.

The offense Congress decided would upon conviction disqualify the insurrectionist from office.

There are lots of opinions as to whether Jan 6th was an insurrection, and there aren’t any publicly available facts that show Trump had any involvement in planning an illegal breach of the capitol or encouraged anyone to do so.

The way Congress has decided to adjudicate such claims is for a prosecutor to charge Trump with insurrection and prove it in court.

[Sarcastr0]

there aren’t any publicly available facts that show Trump had any involvement in planning an illegal breach of the capitol or encouraged anyone to do so.

This was a plan written down by his people to use protesters to pressure Pence. He knew of this plan - he made tweets to further that plan. His people help coordinate with violent right-wing groups.
He wanted to join the protesters as they were breaching the Capitol. He spent hours refusing to defuse the situation.

At some point recklessness becomes intent.

[Rev. Arthur L. Kirkland]

Because the only reason the Constitution means anything is because of public legitimacy

Are you contending a majority of Americans can ignore the law, or should ignore the law, if it wins an election? That what you appear to be advocating with this "a 34-year-old must be permitted to take the Oval Office if he wins at the Electoral College" reasoning.

That seems quite wrong.

[Krychek_2]

As a practical matter, I think that then becomes a political question — Congress can decide whether to certify the election. And whatever Congress did, I think the courts would find any excuse they could to stay out of it.

[Mr. Bumble]

Well, so much for the supremacy of the Constitution.

[Dilan Esper]

Constitutions may say they are supreme, but they need people who can enforce them. And in certain instances, they can't be enforced.

Nobody has the power to actually disenfranchise 80 million Americans. That's true no matter what the Constitution says. The Constitution can't write checks it can't cash.

[Mr. Bumble]

What about the other 80 million who feel differently?

[Dilan Esper]

Persuade.

[Krychek_2]

The Constitution is only as good as the people implementing it, and that's always been the case.

[David Nieporent]

If the electors refuse to vote for the “winner” who becomes President? The VP?

How do you mean? That they vote for someone else? That they just don't vote at all? Whoever gets the majority of the EVs becomes president. If nobody does, the House decides who becomes president. If the House doesn't decide, then as per the 20th Amendment the vice president shall act as president.

[Kazinski]

Yes but the house is restricted to only the top 3 electoral vote getters.

I suppose in the middle of December a an elector sees which way the wind is blowing could cast a vote for DeSantis, Haley, etc. and it would only take one vote to be in the top 3.

But not a likely scenario

[Alpheus W Drinkwater]

That may be true, but the argument isn't for law professors or President Biden to declare Trump ineligible. It's for those already empowered to make qualification decisions to so declare. The board of elections of Dare County NC wouldn't be disenfranchising 80 million voters, but only about 15 thousand or so.

[David Nieporent]

I doubt a county elections board is entitled to make that decision; it would be a state election official's decision.

[Stephen Lathrop]

Law professors don’t get to disenfranchise 80 million voters, no matter how strong their arguments about constitutional meaning are.

Esper, you presume for some reason that the Baude – Paulsen originalist analysis is dismissible as an illegitimate attempt at personal agency, but somehow your constitutionally vapid take announces the true voice of the People? Seems peculiar.

Baude–Paulsen have been reminding folks with arguments like yours that they can't win an argument about constitutionalism with assertions about politics. Even if events prove you right on the politics, you still lose on the constitutional question. Maybe it would make sense to explain forthrightly that you do not care about that, and explain where it takes the nation if everyone else decides to follow your example.

[DaveM]

To this layman, the strongest point made was that to be an “enemy”, one’s nation must be at war with the US. From a legal perspective, that may not be the strongest element, but citizens need to be able to argue even for succession without being considered an enemy of the state. And even if that arguing gets out of hand and they riot, they are to be treated as criminals, not as traitors.

[Stephen Lathrop]

That is an inaccurate description of the law of treason. There need be no other nation to war against the United States. United States citizens can make war against the United States without any implication of foreign entanglements. See Chief Justice Marshall, who was explicit on that.

[David Nieporent]

You're so eager to knee-jerk your dumb ideas because you read one court case from a few centuries ago that you didn't bother read what he wrote. There are two separate ways to commit treason:

1. One can levy war against the U.S.
2. One can adhere to our enemies, giving them aid and comfort.

You are correct that there need be no foreign enemies for #1. He wasn't talking about #1. He was talking about the definition of enemy, which applies to #2.

[apedad]

"In 2021 we published an article concluding 'that the President is not a Section 3 'officer' of the United States.'"

Agree and I wish the Supreme Court would issue an opinion stating that so we can get off this side show.

[Reallynotbob]

I just can't get there. It takes a special type of bologna-cutting to slice the Section 3 language, "having previously taken an oath as an officer of the United States," away from the presidential oath to execute the office of president:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

That's even more clear to me when reading the Twelfth Amendment, which predates the Fourteenth by 60 years:

"...But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

The drafters of the 14th would have understood the presidency to be an office of the United States.

[apedad]

Either way, we need a ruling so we can proceed accordingly.

[Lee Moore]

And yet contemporaneous SCOTUS judgements say precisely the opposite – that “officer of the United States” is limited to appointed officers. And there’s even 21st century dicta to the same effect from the Chief Justice.

[Reallynotbob]

Those SCOTUS decisions (e.g. Mouat) did not consider the status of the President. They rely on U.S. v. Germaine, which also did not consider the status of president as officer. What Germaine did consider is whether a surgeon could be criminally charged under a statute prohibiting "officers" from extortion, where the surgeon asked for unauthorized fees from pensioners he was examining. The Germaine court held that officers were those who had been properly appointed under Section 2, Art. 2 of the Constitution--and Germaine had not been so appointed. To the extent Germaine is the basis for holding that the Office of President is not held by an "officer" of the United States, it is flimsy dicta and I suspect the Honorable Justice Miller would be astonished to learn from Prof. Blackman that he had so held.

[George A Mudge]

Section 2 of Article II states that "The President shall be Commander in Chief of the Army and Navy of the United States..." As Commander in Chief, Donald J. Trump was surely an officer.

In the second impeachment of Donald J. Trump, the House of Representatives voted 232 to 197 to indict Trump for “Incitement of Insurrection,” and the Senate voted “Guilty” by a vote of 57 to 43. While the Senate vote fell short of the two-thirds necessary to convict in a Senate impeachment trial, Congress has determined by a majority vote of both the House of Representatives and the Senate that Donald J. Trump engaged in insurrection.

Congress has not acted to remove the disqualification of Donald J. Trump.

Thus, while Congress has determined that Donald J. Trump engaged in insurrection, it has not removed the automatic disqualification of Section 3.

The Constitution of the United States of America controls. Section 3 applies to Donald J. Trump. The Constitution of the United States prohibits Donald J. Trump from ever being President again, and Donald J. Trump should not appear on any ballot in the upcoming presidential election cycle.

[Mr. Bumble]

Quite a stretch.

[DaveM]

Translation: although Congress didn't actually convict Trump, they came super-duper close on strict party lines, therefore lock him out, Orange Man Bad.

No one is fooled by this silly argument. You want to believe so hard you're willing to delude even yourselves.

Really, just stop. It's embarrassing.

[Zarniwoop]

Speaking of embarrassing beliefs, the vote to convict Trump in the second impeachment was not along "strict party lines". There were 48 (D) votes, 2 (I) votes, and 7 (R) votes to convict.

Still not over the threshold of 67, but don't lie to yourself that the vote was purely partisan.

[DaveM]

Ok, minor hit to the forward turret, but the steering wasn't damaged and the big guns still shoot.

[Reallynotbob]

Interesting thought. But wouldn't that mean Congress (Democrats) missed an opportunity after the second impeachment trial to invoke Section 3 right then? If you're correct, they should have done it immediately notwithstanding the Senate's failure to convict, yes?

[George A Mudge]

Yes, perhaps, but Baude, Paulsen, Luttig, and Tribe are correct. Section 3 operates automatically without need for action by Congress. Secretaries of State must make their own independent determination re qualification. The action of the House and Senate in the second impeachment trial validate and support independent action by a Secretary of State. Failure of Congress to remove the disqualification is a critical element.

[Lee Moore]

“Incitement of Insurrection,”

is not

"engaging in insurrection"

[George A Mudge]

"Incitement of Insurrection"

is

engaging in insurrection or rebellion against the Constitution, or giving aid or comfort to the enemies thereof

[Lee Moore]

Which leg are you claiming ?

(a) engaging in insurrection or rebellion against the Constitution, or
(b) giving aid or comfort to the enemies thereof, or
(c) both ?

En passant, the actual wording says :

"....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. "

and it's not clear to me that "the same" naturally means "the Constitution of the United States" rather tham "the United States."

An insurrection against a document seems odd, and the "enemies" of a Constitution would seem to sweep up quite a lot of folk, including people seeking to amend it.

Is there some precedent on what "the same" means here ?

[George A Mudge]

Two fair questions.

The facts support both (a) and (b).

I am not aware of any precedent re meaning of "same," and I am not sure it makes any difference.

[George A Mudge]

Further thoughts:

The better reading is that "same" refers to "Constitution," not the United States.

The provision reads "insurrection or rebellion," not "an insurrection or a rebellion." A course of conduct is covered, and it is not necessary to point to a specific event.

Trump's disqualifying insurrection or rebellion against the Constitution is a course of conduct over a period of time, and not just the action on January 6.

[Mr. Bumble]

The world according to Mudge.

You sound like Harry Mudge.

[Flight-ER-Doc]

The Constitution also requires that offices of the US be commissioned by the President.

The president cannot commission himself.

[George A Mudge]

Trump was "Commander in Chief of the Army and Navy of the United States" (2 of Art. II)

Was he not an officer?

[Flight-ER-Doc]

I stand by my statement. He is the Commander in Chief and has subordinate officers to actually carry out his orders.

Just as the President is not the Handyman of the White House.

[George A Mudge]

But the Commander in Chief is not an officer?

[David Nieporent]

Correct. Well, to be precise, the Commander in Chief is an officer — but only because the Commander in Chief is president, and president is an officer. "Commander in Chief" is a role, not an office. The office is president.

[Sharper]

So your claim is that because Trump was acquitted of "Incitement of Insurrection" in the Senate, that's conclusive judgement that he's guilty?

I'm not sure you understand what being acquitted of a charge means...

[George A Mudge]

The Senate voted 57 to 43 that he was "Guilty." That was not enough for an impeachment conviction, but it was clear majority vote.

Section 3 does not require action by Congress.

A Secretary of State should make his/her own independent determination of qualification or disqualification.

A disqualification decision by a Secretary of State is supported, validated by a majority vote of both houses of Congress (and the report of the January 6 Committee).

Congress has not removed the disqualification which requires a two-thirds vote of both houses.

[Kazinski]

Yes, but was President Trump an officer OF the United States, or an officer UNDER the United States?

[George A Mudge]

"Commander in Chief of the Army and Navy of the United States" (2 of Art II).

Was he not an officer?

[Kazinski]

Whoosh.

President of the United States is an officer of some flavor, obviously.

Is the Presidency an “Office OF the United States?

Or it an office “UNDER the United States”?

[Flight-ER-Doc]

H/T David Hardy:

https://armsandthelaw.com/archives/2023/09/off_topic_but_i_1.php

Seems Congress removed the prohibition.

[George A Mudge]

When? By what action with two thirds vote in both houses, as required by Section 3?

[Hank Griffin]

Amnesty Act of 1872. The language of the Act is quite broad and arguably applies to events after the Act was passed (courts have ruled both ways on that question).

[Sarcastr0]

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States"

[George A Mudge]

Thank you, but it is a stretch to say this applies to Trump, 150 years after passage, particularly because he falls within the exception.

[Hank Griffin]

How does Trump fall within the exception? He never served in Congress or the judiciary nor was he ever a head of department or foreign minister.

[George A Mudge]

As "Commander in Chief of the Army and Navy of the United States" (2 of Article II), Trump was an officer in the "military, and naval service of the United States."

As President, Trump was head of the "executive Power" (1 of Article II) Was that not head of a department?

[Don Nico]

"Was that not head of a department?"
No.

[David Nieporent]

As “Commander in Chief of the Army and Navy of the United States” (2 of Article II), Trump was an officer in the “military, and naval service of the United States.”

No. Absolutely not. CinC is a civilian position, not a military one.

[George A Mudge]

Authority?

[Flight-ER-Doc]

All persons, whomsoever.....

[Brett Bellmore]

Yeah, I can't see that applying prospectively. You can't remove something from somebody who doesn't already have it.

And you can't repeal constitutional amendments by passing a statute.

IF Trump were convicted of insurrection, he'd be disqualified. It's telling that they haven't tried charging him with it.

[Hank Griffin]

Section 3 explicitly says it can be waived by a 2/3 vote of Congress (which the Amnesty Act had). As to prospective application I agree that is arguable, but 'all political disabilities...removed from all persons whomsoever' is extremely broad - it seems at least plausible that it applies prospectively as well as retrospectively.

[Stephen Lathrop]

It is only as plausible as the crazy notion that legislation can amend the Constitution.

[Hank Griffin]

The Amnesty Act of 1872 does NOT 'amend the Constitution'. It exercises power granted to Congress by Section 3: "Congress may by a vote of two-thirds of each House, remove such disability"

[Reallynotbob]

It's right up there with prospective plenary pardons.

[Krychek_2]

No it's not telling. They don't need to charge insurrection as they've got plenty of other stuff to charge him with and insurrection would only complicate things.

[Brett Bellmore]

They're throwing the kitchen sink at him, the only reason they're not throwing the refrigerator (Insurrection) at him too, is that they can't lift it.

Don't try to pretend that, if they thought they could convict him of insurrection, they wouldn't have him on trial for it. Don't even try, you just look stupid. They'd do it in a heartbeat.

[Flight-ER-Doc]

That particular Amendment specified a method to overturn it.

Just like they specify when they go into effect.

[Nameless But Highly Opinionated]

Hrm... The way the end is worded could give credence to the idea that the Presidency isn't covered.

[CJColucci]

Whatever the correct answer is to any of the issues around article 3 of the 14th amendment, we have let it sit there for 150 years without using it or creating standards and procedures for using it. Although I agree that Congress doesn't have to create them, though it could, and that in default of Congressional action this is a matter of state law, anything done now, correct or not, will look like ad hoc partisan hackery. Even if it isn't.

[Darth Buckeye]

What happens in the deep blue or deep red states does not matter. It won't be a problem if NY or CA keep Trump off the ballot; he would never win those states anyways. I doubt that any deep red states will keep him off the ballot. But there are five states with Dem Governors and Secretaries of State that voted for Trump in 2016. If THOSE states keep him off of the ballot it is doubtful that Trump could win enough votes in the EC to win. That is where the real fight is going to be.

The Dems are making a mistake by litigating this issue now. Fortunately for them, these cases will almost all be dismissed for being moot. The ideal thing for the Dems would be to delay any litigation until as late as possible, them make that litigation and protracted as possible. If the case goes to the US Supreme Court, I am pretty certain they will rule that Trump is not disqualified. The ideal thing for Dems would be for this decision to come down AFTER election day 2024. Next, have the decision come down as late as possible. That way mail in ballots can go out without Trump's name on them. The more chaos they create, the harder it will be for people in those swing states to get their votes for Trump in.

[Brett Bellmore]

You can divide the Section 3 crowd into two factions: The people who really want to follow some kind of abbreviated, but non-trivial, due process, and are tentatively willing to accept that this might mean he doesn't get disqualified, and the people who just want to defeat him by any means necessary, and think Section 3 looks like a handy club to beat him with.

The first bunch are going for litigation as early as possible, because that's what real due process would look like, and the second bunch had no way to stop them.

But the second bunch aren't going to refrain from a last minute action just because of all the early legal action being defeated. They'll wait until they think there isn't time enough for Trump to appeal, and then strike.

[David Nieporent]

What happens in the deep blue or deep red states does not matter. It won’t be a problem if NY or CA keep Trump off the ballot; he would never win those states anyways.

You're not CrazyMAGA familiar enough; some have argued that he did win CA in 2020, but that it was stolen from him.

[Mr. Bumble]

Who claimed he won CA?

[Mr. Bumble]

To make things more interesting: Impeachment inquiry opened against Joe Biden.

[windycityattorney]

What are chances Biden is impeached and convicted in this senate with the required majority to do so?

[David Nieporent]

As I just posted in another thread, I think there's pretty much no chance of impeachment. The GOP can only afford to lose 4 votes, and there are at least 4 non crazy GOPers in the House.

[Mr. Bumble]

I’m sure you will discount this but the reason claimed for opening an impeachment inquiry is to expand Congressional access to information that is being slow walked or withheld. Obviously a vote to impeach would be a waste of time, since there is no chance of conviction unless someone found Burisma cash in the trunk of Biden’s Corvette.

[Voize]

Less than two weeks ago:

“To open an impeachment inquiry is a serious matter, and House Republicans would not take it lightly or use it for political purposes. The American people deserve to be heard on this matter through their elected representatives,” McCarthy told Breitbart News. “That’s why, if we move forward with an impeachment inquiry, it would occur through a vote on the floor of the People’s House and not through a declaration by one person.”

Today he announced that the House would begin an impeachment inquiry without a vote. At last count, Kevin McCarthy is only one person.

He is hoping this will be enough to pacify Matt Gaetz and stave off his own removal from the Speaker's seat, but with a shutdown looming it makes the GOP far more vulnerable to charges that they fiddle while Rome burns which could hurt them in the polls next year. McCarthy is willing to damage his party and the country to cling to that seat.

[Enrique]

In addition to Josh's highly-technical arguments, I offer two more basic criticisms in my reply to Baude and Paulsen, which is titled "The Limited Sweep and Ineffectual Force of False Analogies": https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4564998

[dwshelf]

None of this is going to matter, although some of it may be cited in any SC decision.

The SC is not going to allow Trump to be removed from the ballot. That's where they will start, that's where they will end.

[George A Mudge]

Secretaries of State Should Act Now

Draft 09082023

Declaration of the Secretary of State of _________

As Secretary of State of ____, I am authorized and obligated to issue this Declaration. In my oath of office, I committed to support the constitution of the state of _____ and of the United States of America. This Declaration is issued in execution of that oath. I have conducted a thorough review of recent events and relevant law and commentary by legal scholars.

1. Section 3 of Amendment XIV to the Constitution of the United States of America states:

“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.”

2. If Section 3 applies, the disqualification from future office is automatic (“No person shall ...). The disqualification does not require an act of Congress or a decision by any court.

3. Donald J. Trump was an officer of the United States.

4. Donald J. Trump took an oath to support the Constitution of the United States.

5. Donald J. Trump engaged in insurrection or rebellion against the Constitution, or gave aid or comfort to the enemies thereof.

6. Section 3 applies to Donald J. Trump, and Donald J. Trump is disqualified from holding any office.

7. In the second impeachment of Donald J. Trump, the House of Representatives voted 232 to 197 to indict Trump for “Incitement of Insurrection,” and the Senate voted “Guilty” by a vote of 57 to 43. While the Senate vote fell short of the two-thirds necessary to convict in a Senate impeachment trial, Congress has determined by a majority vote of both the House of Representatives and the Senate that Donald J. Trump engaged in insurrection.

8. Congress has not acted to remove the disqualification of Donald J. Trump.

9. Thus, while Congress has determined that Donald J. Trump engaged in insurrection, it has not removed the automatic disqualification of Section 3.

10. The Constitution of the United States of America controls. Section 3 applies to Donald J. Trump. The Constitution of the United States prohibits Donald J. Trump from ever being President again, and Donald J. Trump should not appear on any ballot in the state of _____ in the upcoming presidential election cycle.

/s/_________________

Secretary of State Date: ______

[Mr. Bumble]

"9. Thus, while Congress has determined that Donald J. Trump engaged in insurrection, it has not removed the automatic disqualification of Section 3."

...except they didn't!

[Brett Bellmore]

"9. Thus, while Congress has determined that Donald J. Trump engaged in insurrection, "

By acquitting him! They determined he was guilty by acquitting him...

[MaddogEngineer]

This is exactly it.

In criminal cases, we don’t consider the accused guilty if only 10 of 12 jurors vote to convict. It’s a majority, but also merely a hung jury with no guilty verdict.

Sure, in civil cases, the law may define a different jury majority threshold.

An impeachment conviction requires a 2/3 vote. Anything less than that is just like only getting 10 of 12 criminal jurors to vote guilty.

Of course, Congress has the discretion to pass 14A implementing legislation that declares a person disqualified if a Senate impeachment vote reaches only a majority on an insurrection article–another Baude/Paulsen adjacent idea where I take some of their scholarship seriously. Unfortunately Congress has done no such thing, which is why the idea that Section 3 is magically self-executing is bogus. Yet it hasn’t stopped people from touting facts helpful to their position (like the Senate majority voting to convict). None of that kind of advocacy is due process or the rule law.

[Voize]

If a statute can disqualify with less than a 2/3 vote, surely a constitutional amendment can do the same.

[MaddogEngineer]

Why? Where does the amendment say something less than an impeachment conviction counts? It doesn’t. That’s just wishcasting by people who want to disqualify Trump from the ballot, and don’t particularly care about the legal niceties.

Donald Trump has not been convicted on any article of impeachment. How many votes the articles got in the Senate is irrelevant. It is politically interesting, but this is a question of law, not politics.

Like others have been saying, such an ad hoc standard, absent any statute, is arbitrary and capricious.

[Alpheus W Drinkwater]

By adding requirements outside the actual text of the amendment, you are the one being arbitrary and capricious. Where does the amendment say that a criminal conviction is necessary? Where does it say absent Congressional action no other actors can enforce its provisions?

[Don Nico]

Where does it say that anyone has the authority to enforce the provisions. Is it by divine right?

Capriciously, keeping a major party candidate for President off the ballot in even one State, is a profound offense ought to appall you if you actually care about democracy. For that reason, the sooner a case ruling on self-execution goes to federal court, the better

[Jason Cavanaugh]

Who enforces the age qualification on President, Don?

Think before you post next time.

[Jason Cavanaugh]

Hey genius, where in Section 3 do you see the words "impeachment" or "convicted/conviction?"

[DaveM]

5. Please define what constitutes an “enemy” and list the “enemies thereof” Trump was aiding.

Make sure your definition doesn’t sweep in Gore, Clinton, Abrams, any Democratic representative who ever challenged an elector, or any protestor who ever threw a rock or a bottle at a Federal building.

[Stephen Lathrop]

DaveM, no need to improvise now. In his opinion on the case of Ex Parte Bollman and Ex Parte Swartwout in 1807 Chief Justice Marshall defined at length what it meant to make war against the United States. On the basis of information already publicly available, Trump has checked off the entire list.

It was a blunder by the Justice Department to under-charge Trump, and in the process raise questions which have demonstrably confused many. It would have been a much simpler case to argue, and to understand, had Trump been charged with treason, and the case taken to trial to let publicly disclosed evidence determine an outcome—either guilty beyond a reasonable doubt, or an acquittal which would end contention except in the history books.

[DaveM]

.

[bacchys]

Most of the Fourteenth Amendment is self-enforcing. That is, a person who thinks they have been harmed in a manner prohibited by that Amendment could go into court and seek relief from their injury. Congress is also authorized to enact legislation to enforce the Amendment, but the Amendment is not reliant on Congress doing so to have any force.

Further, it's preposterous to think the Black Republicans thought they were prohibiting anyone who had previously taken an oath of office under the Constitution and engaged in insurrection from ever holding future office except the presidency and vice-presidency. That's just stupid. Jeff Davis and Bobby Lee couldn't run for dogcatcher, but they could have run for POTUS? Please.

[David Nieporent]

Most of the Fourteenth Amendment is self-enforcing. That is, a person who thinks they have been harmed in a manner prohibited by that Amendment could go into court and seek relief from their injury. Congress is also authorized to enact legislation to enforce the Amendment, but the Amendment is not reliant on Congress doing so to have any force.

And, as Baude and Paulsen point out, the 13th amendment is similarly self-executing. The moment it was ratified, all remaining slaves in the U.S. were automatically free as a matter of law. That’s so even though Congress was empowered by its text to enforce it, and it was the case regardless of what Congress said or did in enforcing it. (Congress was given the power to enforce it, not to limit it.) Congress making slavery a crime (which it ultimately did) did not mean that slaves weren't free without going through some sort of legal process. Slave"owners" didn't have some sort of right to due process before they lost their "property."

[Brett Bellmore]

"And, as Baude and Paulsen point out, the 13th amendment is similarly self-executing."

Yes, and no. Almost all of them were automatically free, but if you came across someone holding a free person in slavery, you couldn't charge them with enslavement without a statute. Kidnapping, false imprisonment, assault and battery, lots of things, but not enslaving somebody.

You want to say that somebody's disqualified, Section 3 lets you, by itself. And that's enough of a hook for Congress to exercise its constitutional authority to judge the qualifications of its own members, which is how Section 3 actually got enforced after the Civil war.

You want to actually impose that disability on somebody who's not being elected to Congress? Yeah, I think you need a statute.

[Sarcastr0]

This is a magic words argument. The law does not require magic words be spoken to operate.

[David Nieporent]

Why are you talking about "charging" people? That's an entirely different conversation that nobody is having except you.

[Brett Bellmore]

No, plenty of people take the position that his foes should either charge him with criminal insurrection, or go away.

I know you want to pretend that insurrection is just an objective matter that can be casually observed, like age. Screw that, I'm not signing onto that nonsense. Being an insurrectionist is a legal status, so establish it by legal means: A trial.

[Sarcastr0]

Brett, your sudden stand on functionalism is very un Brett-like.

It's also trying to pick a fight that no one else is having.

And your magic words 'enslavement isn't a crime' argument only underscores your magic words 'the crime isn't called insurrection' argument, as well as your 'only criminal due process will do for reasons not in the text' argument.

You really are an inconsistent shambles on this issue.

[Steve_E]

Initially, I thought all discussion/debate over the possibility of disqualifying Trump under the 14th amendment was frankly just annoying when it wasn't boring, but it has an unanticipated benefit:

Anyone who offers that Trump has been disqualified under the 14th amendment can safely be put into what I call the "bag of ridiculously useless legal authorities". Anyone in the bag can safely be ignored whenever they opine on anything in the future--this will save everyone a lot of time.

To be fair, Larry Tribe was already in the bag.

[Jason Cavanaugh]

Ah yes.

Everyone loves the standard of "they disagreed with my ignorant opinion on one thing, so they must not be right about anything."

Mute.

[Mr. Bumble]

Seems that by muting him you are doing the same thing.

[Rev. Arthur L. Kirkland]

Anyone who offers that Trump has been disqualified under the 14th amendment can safely be put into what I call the “bag of ridiculously useless legal authorities”. Anyone in the bag can safely be ignored whenever they opine on anything in the future–this will save everyone a lot of time.

Will your opinion change if Trump is convicted in Georgia and/or in the insurrection case . . . or are you a "shoot someone at the center line of Fifth Avenue" variety of clinger?

[Alpheus W Drinkwater]

I look forward to reading the paper, and hope it is as thorough and convincing as the Baude - Paulsen paper. Although I found their paper very convincing about 14A being self-executing, and less so that Trump engaged in activity which would qualify under it.

[Don Nico]

“and less so that Trump engaged in activity ” but who is to say? and what is the penalty for their mischief if the say so wrongly?

Just to be clear about my position regarding Mr Trump. The sooner he disappears, the better. Unfortunately, idiot Republicans don't see it that way and prefer to remain out of power even against an octegenarian.

[David Welker]

Queen:

Inductive logic is not the same as your knee-jerk emotions, as you seem to think.

Speaking of community college, you actually are on to something. I did take a class called Symbolic Logic in community college. It was a very high quality class that was above average in quality compared to classes I later took at a university after transferring.

I suppose that you think your implied dig at community colleges is justified. It that based on deductive logic or inductive logic? Or is it based on just pure ignorance??

I vote for ignorance.

[David Welker]

Queen:

You appear to be completely failing to grasp basic logic. Logic is logic, whether it is taught in community college or Mars.

That you seem to be so triggered by logic that you have to play status games is "interesting." But not interesting in a way that is flattering to you.

I took Chemistry in community college too. I suppose next, you are going to say that the Periodic Table of Elements is super different at Harvard (which I also attended... not that it matters).

Your superficiality is duly noted. You can always redeem yourself in the future by using substance. And the logic that you find so triggering.