The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Luttig and French on Section Three: Constitutional Remedy or Pipe Dream?
A virtual event examining whether Donald Trump is disqualified from running for President under the 14th Amendment.
On Thursday, Checks & Balances is hosting an online forum on whether Section Three of the Fourteenth Amendment bars Donald Trump from running again for President due to his efforts to overturn the results of the 2020 election. The event, "Section Three: Constitutional Remedy or Pipe Dream?" will feature former federal judge J. Michael Luttig and NYT columnist David French in conversation over whether Trump is disqualified under Section Three and what, if anything, state officials or federal courts should do about it. The online event is at noon, EDT, and is free of charge. Registration info is here.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Why isn’t Brandon disqualified for aiding and abetting the Taliban?
When did the Taliban engage in rebellion or insurrection against the United States? Even the events of September 11, 2001 were not orchestrated by the Taliban, but by Al-Qaeda, a different organization.
I think you need to re-read Section 3, you’re forgetting part of it.
Uh, no. Negotiating an end to hostilities with an adversary is not giving aid and comfort to an enemy. If it were, Joe Biden and Donald Trump (who negotiated the agreement in the first place) would be in pari delicto.
You’re forgetting the part where it’s self executing- your local election admin gets to decide, not a court of law
Come now.
The idea is that *some* local officials might be authorized under specific state statutes to exclude someone from a ballot based on their legal qualifications, and that the section 3 qualification doesn’t require a *prior* court ruling.
If any local official did that, Trump (or whoever) would challenge it in a court of law.
See Minnesota!
Im talking about the view of the proponents. And yes, thats what they say. But if thats the case that it necessitates judicial review, its a pipe dream. Why would you suggest something like this? How would it work if it happened close to the election. Or post election? Or if vp harris decides hes ineligible while counting the ec?
Negotiating an end to hostilities with an adversary isn’t necessarily giving aid and comfort to an enemy. But it certainly can be, depending on how you go about it.
You know, like giving somebody $6B can just be “paying debts” if they’re a neutral, but could be “aid and comfort” if you deliberately give $6B to a hostile nation you admit to knowing will spend it on terrorism, some of which will be directed against your own country, and most of which will be directed against allies?
Would that be better, or worse, that just giving Iran weapons when there is a ban on giving them weapons? Asking for a friend.
Seriously, this “look, there’s a squirrel,” argument proves too much. If you want to say that regular statecraft that you happen to disagree with is subject to this provision, then you’re going to have a really tough time, and you’ll just end up beclowning yourself. On the other hand, if you just want to raise your partisan point du jour, you’re not really doing much, are you?
Anyway, on the merits (and as I have previously said) I think that any threat to the orderly transfer of power is anathema to our system of government and needs to be stamped out with extreme prejudice. The slide to populism and strong-man rule is, to borrow a phrase, sad, and “many people say” that it needs to stop now.
But I still maintain the hope that you can’t fool all the people all the time, even though it would appear that there are many people that are quite content to fool themselves.
Jack Marshall is of course a legal ethicist who understands neither law nor ethics. (By not understanding ethics, I do not mean that he does unethical things. I mean it literally: he doesn’t understand the concept. He means “Things which annoy me.”)
From what I’ve seen, the whole field of “ethicists” is chock full of people who really don’t understand ethics. I think maybe they studied ethics because it puzzled them, but the study wasn’t productive?
Then you get into field specific “ethicists”, and they usually don’t understand the field, either.
Perhaps it’s similar to the phenomenon of people with mental problems becoming psychiatrists?
Don’t leave us in suspense – which position is David French taking?
Are you being sarcastic?
I think French thinks Trump’s ineligible and also assumes that the whole matter is for SCOTUS to figure out. I’m pretty sure we’ll hear two people agreeing with each other for an hour. That’s the best kind of symposium (not).
“Trump: Threat or menace?” What point is there in a debate between people who cover the gamut of opinion from A to B?
In all fairness, despite setting expectations with the repeated use of “whether” that it’s something other than just a set-and-spike explainer, they do very carefully avoid using the word “debate.”
More like A to A.
From Checks and Balances:
What inclines so many conservatives to masquerade in unconvincing libertarian costume?
You used to say “libertarian drag.” Why did you stop using that particular terminology?
I have not stopped. Mostly because these disingenuous right-wingers continue to wear silly libertarian drag.
Should Donald Trump be imprisoned for the rest of his life and disqualified from office for advocating actions expressly authorized by the Electoral Count Act?
Tune in to hear the answer from our group of hysterically overwrought Trump haters.
The Electoral Count Act expressly authorizes people to forge electoral vote certificates? It expressly authorizes the vice president to ignore certified electoral votes? It expressly authorizes the president to use DOJ to threaten state officials if they don’t fabricate votes to get him a win?
Literally none of that happened, but you do you.
Dude, you’re a bit obsessed. You’ve become Ilya discussing immigration now.
I anxiously await you providing an INTERESTING topic for a change.
How is this not interesting? How do we all not have an interest? And since SCOTUS may neither force him to be kept on a ballot nor take him off a ballot, this decision effectively falls to the states.
Are we just going to sleep as courts decide that it is for them and only them to figure it out, without even the intervention of a jury? Are we just going to sleep as they apply the wrong standard of proof, both as to law and as to fact? Since I care deeply about how this plays out long term, well after Peach Man is gone, I want to make sure they get it right. For starters, my state’s General Assembly should make sure no one can be taken off a ballot on account of Section 3, and leave enforcement after elections to Congress, if it chooses.
The people are absolutely a part of this.
Gee, summer 2020 sure seemed like a full on rebellion with the assaults and the seizing of territory from the US. Would be horrible if the people funding and supporting that terrorist insurrection were held to these standards wouldn’t it. Whole lot of seditious Democrats there either directly, through their speeches or through ACT BLUE and their getting locals to stand down so their footsoldiers could violate the civil rights of others with impunity.