Section 3 of the Fourteenth Amendment

Why an insurrectionist can run for and serve as President, but not as an Elector of the President

My initial view that Trump was covered by Section 3 of the Fourteenth Amendment was formed because I believed then, and do still now believe, that the events of January 6, 2021 were an "insurrection."  Daniel Webster's 1st edition of his Dictionary of American English, which had been published in 1828, and would have been authoritative to the Framers' of the Fourteenth Amendment, defines the word "insurrection" as follows:

"INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]

1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

It is found that this city of old time hath made insurrection against kings, and that rebellion and sedition have been made therein. Ezra 4:19.

2. A rising in mass to oppose an enemy. [Little Used.]"

I take this to mean that an "insurrection" is more than a "riot" or a "sedition" or a "mutiny", but less than a "rebellion".  Specifically, I think an "insurrection" is a "riot" for the purpose of changing the outcome of "an important political decision or event."  I thus tend to think that what happened on January 6th, 2001 was technically an "insurrection."

I also think that Donald Trump gave "aid or comfort" to the enemies of the Constitution that day because he watched the whole thing unfold, along with cries of "Hang Mike Pence", on national television and never once, despite his duty to take care that the laws be faithfully executed, sent out a Tweet calling on the rioters to stop the violence nor did he call out the National Guard, which it was his duty to do.

I changed my mind and concluded that Trump had a right to be on the ballot once former Attorney General Michael Mukasey pointed out in an excellent op-ed in the Wall Street Journal that Section 3 only disqualifies oath-breakers from being "a Senator or Representative in Congress or [an] elector of President and Vice President or [a holder of] any office, civil or military, under the United States," or "a member of any State legislature [or] an executive or judicial officer of any State."  Oath-breakers are not disqualified from running for or even serving as President, so long as the presidential electors who elect the President are not oath-breakers.  I also do not believe the President is an "Officer of the United States" because the Commissions Clause says that "[The President shall" i.e. must "commission all the Officers of the United States", and there is no practice, either before or after, the adoption of the Fourteenth Amendment of Presidents commissioning themselves.  Indeed, the whole idea of that is absurd.

For all of these reasons, I concluded Section 3 of the Fourteenth Amendment does not require or allow Trump being kept off any presidential primary or general election ballots.

Two days ago, my friend Kurt Lash sent me a wonderful draft law review article, which establishes beyond a shadow of a doubt that originally the Framers of Section 3 had Presidential oath-breakers in the enumeration of people disqualified from holding office, but that that language was deliberately taken out of the final draft of Section 3 to appease conservatives and on the assumption that presidential oath-breakers being disqualified from being "electors of the President and Vice President" was sufficient protection against "insurrectionist Presidents".  The link to Kurt Lash's excellent draft law review article is here:   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838                                                                                            

Donald Trump had better be very careful in picking the presidential electors who will vote for him if he carries a State in 2024.  Trump presidential electors who engaged in the January 6, 2001 insurrection are barred from being on the ballot and their votes  should not be and will not be counted.

I have tried throughout the discussion of this matter to be law-abiding and to be a strict a textualist. I will add that, prudentially, keeping Trump off the ballot, and infuriating his die-hard supporters, would be much worse for American democracy, anyway, than would be another term of Joe Biden as Michael McConnell pointed out in a post on this blog in response to my initial post.

Comments

[Randal]

100%

[Tim]

Thanks for contributing on the topic here!

Lash’s point is an interesting one to consider, thank you.

At the same time, I’m hoping you’re willing to elaborate on a point that many have raised about your position: Why do you think arguments about “officer of the United States” excluding the President in the original constitution would override evidence that the drafters of the 14th Amendment had a different definition, which included the president?

Lash’s point would bypass that, yes. If his argument fails, though, you’d seem to need to fall back to this other idea. And I’ve wrestled to understand why someone would think that.

[Kazinski]

I think its important to note the that two different phrases are used in section 3, "Senator or Representative in Congress, or elector of President and Vice President, or [] any office, civil or military, under the United States" are the forbidden offices.

But the class of oath breakers uses slightly different language "who, having previously taken an oath, as a
member of Congress, or as an officer of the United States".

Its hard to believe the difference between the two terms was just accidental or sloppiness.

[Randal]

Duh. The difference is not under vs of. It's office vs officer. Offices are under, and officers are of. You're an officer of the court, not an officer under the court. Similarly, you could establish a new office under the Department of the Interior, but you couldn't establish a new office of the Department of the Interior.

[Kazinski]

Well you would be wrong.

Here is Will Baude writing about the distinction of Officer (not Office) under and of of the United States:
"“Officer of the United States.” See, e.g., Article II, Sections 2-3 (“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law … and shall Commission all the Officers of the United States.”)
“Officer under the […] United States.” See, e.g., Article I, Section 6 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”)"

Baude's post approvingly lays out Tillman's definitions:

Office Under the United States is any office created by Statute.

Office of the United States is a subset of Office Under the United States and is only those offices that require appointments and confirmation.

All Officers Under the United States require a commission.

So clearly it is not a distinction between Office and Officer.

More from Baude here (in 2016 before the issue actually mattered much):
https://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/

[Randal]

I can’t help it if Will Baude is also retarded. Neither 14/3 nor I/6 ever says “officer under.” They both say “office under.”

[Kazinski]

Baude isn't infallible, but resting your argument on the premise he's retarded isn't much of an argument.

Although the idea isn't completely without any supporting evidence:
http://www.law.uchicago.edu/faculty/baude

[Randal]

Ouch!

[David Nieporent]

Its hard to believe the difference between the two terms was just accidental or sloppiness.

It's not hard to believe. What's hard to believe is that such a major legal distinction is hidden in a preposition. Mark Graber has shown that in fact the terms were used interchangeably by the people who wrote the 14th amendment, and were used to describe the presidency.

[Dan Schiavetta]

So the Framers wanted to preclude Confederates from running for any number of offices, but actually running for President was o.k.

"A statue must not be construed in a manner that makes it ridiculous."

[Randal]

Presidential oath-breakers being disqualified from being "electors of the President and Vice President" was sufficient protection against "insurrectionist Presidents".

[JasonT20]

Right, so the idea is that while nothing would stop an oath-breaker from running for President, they figured that only other oath-breakers would vote for him. Thus banning oath-breakers from being electors was good enough. That the idea? Now, if only we had evidence that this was true, it might work. Instead, we see that there are plenty of people that aren’t disqualified from being presidential electors that are finding all kinds of rationalizations to continue to push the candidacy of someone that just argued in court that his oath wasn’t to “support” the Constitution.

[JasonT20]

https://news.yahoo.com/trump-tells-court-had-no-220216709.html

[Randal]

So? Just saying something with exasperation doesn't mean the Constitution is wrong.

I can completely see the argument that while we don't want a bunch of random insurrectionists meddling in government, if the electors / public want an insurrectionist President, that's a different story. In fact, people are making that argument today, so I bet they were making in in the 1800s too. It is what they wrote down after all.

[Brett Bellmore]

Hypothetically, they could have thought that, if non-insurrectionist electors none the less picked a President with an insurrectionary past, they' have to have a damned good reason for doing it. So the notion isn't totally stupid.

Personally, I don't take seriously the notion that Section 3 doesn't apply to the Presidency. The real argument is over whether Trump actually did anything relevant to Section 3, and what the due process for determining that is.

Unfortunately, a lot of people are determined that the answer has to be, "Self-evidently yes, and as little due process as we can get away with."

[MaddogEngineer]

Ding!

Section 3 is self-executing only so far as there is an existing public record of insurrection that satisfies due process. Like a criminal conviction, or capture/parole in a rebel army, or serving in a rival/rebel government.

Trump's behavior up to Jan 6 is disputable, and therefore requires its own adjudication process, essentially a criminal conviction. Now if the states or federal government had already established by law a means to adjudicate 14A disqualification claims, a case could be brought there. That would satisfy due process. A general ineligibility process, like for age or natural born citizenship, cannot satisfy determining insurrection aid/comfort behavior under section 3.

[David Nieporent]

Section 3 is self-executing only so far as there is an existing public record of insurrection that satisfies due process. Like a criminal conviction, or capture/parole in a rebel army, or serving in a rival/rebel government.

That's nonsensical. Either due process is required or it isn't. "Due process is required unless guilt is obvious" is not a thing.

[Brett Bellmore]

The problem here, and I've remarked on this before, is that almost all of the precedent concerning application of Section 3 dates from just after the Civil war, and was in the context of the winning side of that war just doing whatever they pleased to the losing side. There wasn't any due process involved, AT ALL. Zip. Zero. Nada.

But that's not a practical precedent to follow when you haven't just had a civil war! Why are people having trouble grasping that? The Union did all manner of things to the Confederacy in that time frame that you wouldn't dare do ordinarily. Hell, the Civil War amendments were ratified at gun point! Think you could get away with that today? But that's as valid a precedent as applying Section 3 without a conviction, people have even used it to justify not allowing states to rescind their ratification of amendments like the ERA.

You just can't take those Civil war era precedents and follow them today, when you haven't just won a war, and are doing until the losers. Not unless maybe you want to start a civil war.

[Randal]

The due process is that the Supreme Court will decide. What's the problem with that?

[Stephen Lathrop]

Maddog, constitutional decrees are made at pleasure, not according to constraints by due process, or, in fact, by any other constraints. For a court to rule otherwise—and get away with it—would turn constitutional principles upside down, and empower the courts to constrain the sovereign.

[not guilty]

"The real argument is over whether Trump actually did anything relevant to Section 3, and what the due process for determining that is."

Resolving questions such as that is why we build courthouses, elect or appoint judges and (in some cases not relevant here) empanel juries. The pending state court lawsuit in Denver looks like a good proceeding to adjudicate Donald Trump's eligibility to appear on the March 5, 2024 Colorado Republican Presidential Primary ballot. The state law procedures there afford Trump, as a Defendant-Intervenor, significant procedural process safeguards.

"Due process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976), quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, at 335.

No one disputes that Donald Trump has an important interest in appearing on Colorado's Republican primary ballot. The Secretary of State also has an interest, if not a duty, to protect the integrity of Colorado's political processes from fraudulent candidacies. Storer v. Brown, 415 U.S. 724, 732 (1974); Bullock v. Carter, 405 U.S. 134, 145 (1972), specifically including a legitimate interest in protecting the integrity and practical functioning of the political process which permits the Secretary to exclude from the ballot candidates who are constitutionally prohibited from assuming office. Hassan v. Colorado, 495 F.App'x 947 (10th Cir. 2012) (Gorsuch, J.).

To that end, the parties are afforded a full trial on whether Trump is or is not eligible to serve as president if elected. The lawsuit was filed on September 6, 2024. A bench trial on the merits is scheduled for October 30, 2024. This allows time for appropriate discovery and filing and determination of pretrial motions. The burden of proof at trial is on the petitioners seeking disqualification. Colo. Rev. Stat. § 1-1-113(1). The parties are entitled to be heard by counsel, to cross-examination and to compulsory process for the appearance and testimony of witnesses.

Given the tight deadlines for conducting elections, § 1-1-113 is a summary proceeding designed to quickly resolve challenges brought by electors, candidates, and other designated plaintiffs against state election officials prior to election day. Frazier v. Williams, 401 P.3d 541, 544 (Colo. 2017). Section 1-1-113(3) provides:

The proceedings may be reviewed and finally adjudicated by the supreme court of this state, if either party makes application to the supreme court within three days after the district court proceedings are terminated, unless the supreme court, in its discretion, declines jurisdiction of the case. If the supreme court declines to review the proceedings, the decision of the district court shall be final and not subject to further appellate review.

The Colorado Supreme Court, if it exercises discretionary review, is likely to act expeditiously. A ruling by that court is reviewable by SCOTUS by writ of certiorari pursuant to 28 U.S.C. § 1257(a) as a final judgment of the highest court of a State in which a decision could be had. If the Colorado Supreme Court declines review, the District Court judgment becomes reviewable under § 1257(a). SCOTUS has shown itself to be capable of moving quickly in election disputes. See, Bush v. Gore, 531 U.S. 98 (2000).

These procedural safeguards provide ample due process to Donald Trump, to the plaintiffs challenging his eligibility to hold office, and to the Colorado Secretary of State.

[bacchys]

But if they don't construe it ridiculously then Trump might be ineligible. Can't have that.

[Dan Schiavetta]

Right. Sorry, I forgot.

[bookwork83]

They also only wanted to exclude oathbreakers. So if trump had been running for election 1 in 2020 and did all this he'd still be eligible?

[Brett Bellmore]

Um, yeah.

Remember, they took oaths a lot more seriously than our current political class. And federal offices such as the Presidency require you to undertake an oath of office to assume them.

Once somebody has proven that their given word is worthless, how can they qualify for an office that requires them to undertake an oath? They can't meaningfully take that oath, because everybody knows they won't be bound by it.

[Krayt]

Thank you. I’ve said all along the flaw here is not the idea, which is fine, but the facetious git ‘im hyperbole, which clearly is unconvincing to half the population, and therefore an invalid application of the concept.

It’s sneaky, weasel trickery for something that should be obvious to all.

And god knows I don’t want him to win because I don’t want Ukraine abandoned.

[MatthewSlyfield]

Back at the time 14A was ratified the electors had discretion. It is not completely unreasonable or implausible that they might have assumed that as long as insurrectionists were excluded from being electors that the electors would not elect an insurrectionist President.

Obviously, with the discretion of the electors having been eliminated, that no longer holds, but that change in circumstances by itself can’t change the meaning of 14A section 3.

That said: My personal opinion is that section 3 does cover the President.

[Dilan Esper]

Capt, believe it or not I think that's completely rational.

Basically, if there were a situation where a majority of the country (or close enough to it to win the EC), sufficiently spread out among the states to win the EC, supported a confederate insurrectionist for President (with, as Prof. Calabresi points out, non-insurrectionist electors), a rational drafter might well say that it would tear the country apart to allow judges or election officials to disqualify that person and disenfranchise more than half the country.

The public simply cares about the presidency a lot more than they care about their own congressman or some other federal officer. So they will be a lot more upset at ineligibility determinations, which means you don't want to be in the business of declaring candidates ineligible.

[Dan Schiavetta]

It was outside the realm of possibility in 1868 for a Confederate to seriously run for President, let alone get enough votes of electors to come anywhere close to winning. So I don't think that scenario was considered by the Framers.

[Nameless But Highly Opinionated]

There's a common tendency to assume that anything in a constitution is antidemocratic. The 19th century was a very populist time, and people in general but Republicans in particular were staunch popular constitutionalists. They weren't trying to tie the country's democratic hands. There was a concern that disloyal subsets of the people would put disloyal people in positions of power, and the country as a whole couldn't do much about it without the amendment. But if the whole country wanted to elect so-and-so president, good for them. There wasn't the perceived need, unlike today, to protect the people from themselves.

Unrelated: Is it true you have your own blog?

[Dan Schiavetta]

I do, and I'm continuing to post "Today in Supreme Court History". I'm updating them to include cases decided last year. Thanks for asking! Let me know what you think.
http://www.captcrisis.com

[Dilan Esper]

It's ridiculous to claim that the framers of the 14th Amendment couldn't imagine a confederate running for President. If they really couldn't imagine such a thing, that would be a strong argument for not applying Section 3 to this situation.

I think they did imagine it and correctly concluded that you don't screw with Presidential elections directly and disenfranchise half the public.

[Michael P]

That's an awfully expansive reading of "aid and abet". It would sweep in most national-level Democrats, who did similar things to aid and abet various insurrective acts in the summer of 2020. And by similar token, Joe Biden has probably engaged in treason by giving aid and comfort to our nation's enemies. Should he be impeached and removed from office for failing to carry out the duties of his office?

[bacchys]

LOL.

What similar things did "national-level Democrats" do to aid and abet any insurrections during 2020?

[bookwork83]

It's self executing. Doesn't really matter. But supported assaults on federal buildings and officers, supported disruption of nominees etc etc. It wouldn't be to hard to come up with something

[Michael P]

Using the distinction between insurrection and rebellion from Webster’s, as quoted by Calabresi: Democrats not only watched as rebels established “autonomous zones” (which is the same core thing that Calabresi says disqualified Trump except Trump only watched an insurrection rather than outright rebellion), they often cheered on the rebellions and rejected Trump’s offers to help beat down those rebellions. Democrats also verbally supported a number of insurrections that did not rise to the level of rebellion. Unlike Trump on J6, Dems went beyond mere inaction.

If watching an insurrection or rebellion on TV while not acting out one’s oath to defend the country is passively oath-breaking “aid and comfort”, then many Congressional Democrats actively disqualified themselves from office.

[mydisplayname]

If we agree that "insurrection are barred from being on the ballot and their votes should not be and will not be counted," isn't enforcement entrusted solely to the newly-elected Congress, which can determine whatever definition of insurrectionist it desires?

Ultimately, Section 3 is nothing more than purposely vindictive wording without significant effect: it gave cover to the heinous acts of Lincoln (who deemed his victims insurrectionists rather than members of a warring nation-state entitled to fair and just treatment) while cementing the role of a self-preferred sliver of the elected legislature (to the exclusion of _its_ victims).

Hopefully, we can all recognize the folly of Section 3 before we need to discuss adjustments of the border between Israel and the property of the Hamas insurrectionists (or are they truly a warring nation-state entitled to fair and just treatment according to rules of international law).

[Michael P]

Section 3 of the Fourteenth Amendment was probably understood to replace, ensuring constitutional significance and enforceability, Section 3 of the Second Confiscation Act (1862), which used almost the same criteria and imposed similar disabilities. The criteria probably were not expected to be arbitrarily defined by the next Congress.

[Brett Bellmore]

I view the Second Confiscation act as essentially out of order enabling legislation for Section 3; They knew when they enacted it that it had no constitutional basis, and that this would eventually cause problems. Likewise they'd enacted civil rights legislation that had no constitutional basis, too.

So they gave them a constitutional basis after the fact, before the courts resumed normal operation and were able to take notice of the deficiency.

[David Nieporent]

Neoconfederate acts as apologist for confederacy. Film at 11.

[SRG2]

This is beginning to be like all those analysts predicting the outcome of a major sporting event a day or two before it happens. Enough already - let's see what actually happens when it goes through the courts.

[Krayt]

Which is evidence of failure all by itself. Breaking Democracy should be open and obvious to all. It is not, and running off to courts proves it.

Do not let weasels dictate to you your choices.

[Nameless But Highly Opinionated]

The worst thing about Bush v Gore was that Congress just shrugged it off and didn't use certification to address the matter.

[not guilty]

"The worst thing about Bush v Gore was that Congress just shrugged it off and didn’t use certification to address the matter."

How do you mean? IIRC, George W. Bush was certified by the relevant Florida state officials (prior to SCOTUS halting the recount), and Congress counted Florida's electoral votes for him.

[Nameless But Highly Opinionated]

A limited county recount may well have presented fairness issues, but a state-wide recount was mandated by state law, and the result of the recount would be determinative of who got a slate of electors.

Since SCOTUS asserted authority that it didn't have to interfere with the selection of electors, Congress should have not recognized the Florida electors until a proper recount could be conducted.

[Nameless But Highly Opinionated]

Some things are political questions, including much of what we give courts jurisdiction to decide in the first place.

[Josh R]

presidential oath-breakers being disqualified from being "electors of the President and Vice President" was sufficient protection against "insurrectionist Presidents"

I don't see why that is sufficient. Couldn't a insurrectionist candidate easily find loyal electors?

[Magister]

Yes, the number of people participating in an insurrection who had previously taken an appropriate oath would seem to be much less than all. The more likely expectation would be that, with all the states voting, an insurrectionist would not win a presidential election; if pro-insurrectionist voters outnumber anti-insurrectionist voters, how would the insurrection have failed? (Notwithstanding the distortion of the electoral college.)

Trump should be on the ballot, just so we can find out if the voters favor insurrection or not. If they don't, everything is fine. If they do, keeping him off the ballot won't save us.

[Brett Bellmore]

That seems to assume that Trump is actually guilty of insurrection. Generally, people who'd vote for him don't favor insurrection, but instead think there wasn't one.

[Magister]

There was an insurrection. Trump receiving enough votes in 2024 to win would indicate that enough voters agreed that Trump should be President; they could rationalize that stupid opinion in a number of ways, one of which you just demonstrated.

[Stephen Lathrop]

I have tried throughout the discussion of this matter to be law-abiding and to be a strict a textualist.

That comes with a built-in paradox, of which Calabresi is obviously unaware. The historical standard insists that no text created in the distant past arrives in the present complete with the context of creation which informed its authors and audience at the time the text was written. Thus, anyone in the present who insists the meaning of the text is apparent from its words alone, insists without realizing it that it is okay to substitute a modern context for the long-forgotten historical context, and after doing that, interpret the text according to that inevitably transformed modern context. To do that is not dishonest only because it is so naive that it is unfair to attribute moral reflection, and thus assign blame to the hapless would-be textualist.

[DaveM]

“The historical standard insists that no text created in the distant past arrives in the present complete with the context of creation which informed its authors and audience at the time the text was written.”

The “no text ... arrives complete with context" part of your comment is the point where you veer into the straw-man ditch. It’s just way too categorical of a statement. If there was literally no surviving context, we wouldn’t be able to even parse the text, much less understand it.

So, there’s no paradox or intellectual dishonesty as far as I can tell. Textualism does, indeed, need to ascertain whether or not the meaning of a term has changed over time, but that’s only to make sure we’re still talking apples, not oranges, so we know how to apply the term to present-day facts. But that’s a far cry from saying there is “no” surviving context.

[Stephen Lathrop]

DaveM, note that I did not say no context survives. I said instead exactly this, "The historical standard insists that no text created in the distant past arrives in the present complete with the context of creation which informed its authors and audience at the time the text was written."

That leaves plenty of room to suppose that the actual context of creation for a particular text has also survived, but has been left behind, dispersed and scattered throughout an extensive historical record. What was salient at the time the text was created thus became obscure before now, but perhaps not inaccessible.

The task to test whether that now-dispersed and forgotten context can be recovered involves mobilization of a vast range of other historical survivals, using them to critique each other, and thus to infer from those critiques a reasonably reliable reconstruction of the context which informed the text's creation. That is work which academic historians, almost exclusively, have been trained to accomplish.

Others might learn to do it, and a few others have learned it from time to time. But to learn it takes years of commitment, and a near-encyclopedic familiarity with relevant historical records applicable to the times and places under study—and not just to the obviously related records, but to all of them, of every kind. To know what the law says is not sufficient basis to claim understanding of the law. To understand the law requires also knowledge of the activities which the law purports to govern.

And by the way, the requirement for familiarity does not extend only to kinds of records which can be found. It extends in equal or even greater force to recognizing myriad kinds of inferences which can never be considered at all, because they remain predicated on occurrences and notions which post-date the period in question. Thus, to rely mistakenly on a pattern of thought conditioned by the existence of electrical apparatus, or the notion of an economic profession, or the scientific practice of medicine, or near-universal literacy, or laws uniformly enforced everywhere, or law enforcement without distinctions among social classes, or on prompt transoceanic communication, etc, and on and on, would be the very essence of present-minded error. The work of forgetting the present, and the more-recent past, thus becomes at least the equal of the work of relevant historical discovery. Few people untrained in professional historical methods even suspect that problem. Almost none of them could propose a method to get around it.

Thus, anyone who claims access to a general purpose method to deliver contextual insight, such as purported, "textualism," applicable alike to all cases, at all times, and in all places, is spouting poppycock. It is a method structurally guaranteed to deliver present-minded distortions almost every time.

[ravenshrike]

"I also think that Donald Trump gave "aid or comfort" to the enemies of the Constitution that day because he watched the whole thing unfold, along with cries of "Hang Mike Pence", on national television and never once, despite his duty to take care that the laws be faithfully executed, sent out a Tweet calling on the rioters to stop the violence nor did he call out the National Guard"
He called on increased security prior to the event up to and including the National Guard and was told to fuck off by Pelosi et al. As for him being culpable because he didn't tweet, that is utterly farcical on it's face.

[BillyG]

I wonder if he even looked at the tweets sent before Twitter suspended his account?

Donald J. Trump @realDonaldTrump
Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

[David Nieporent]

He called on increased security prior to the event up to and including the National Guard and was told to fuck off by Pelosi et al.

He did not, and of course Pelosi had no ability to do any such thing.

[Brett Bellmore]

You are remarkably fond of just flatly denying objective facts that get in your way.

Ex-Capitol Police Chief Says Requests For National Guard Denied 6 Times In Riots

"Sund told the Post that House Sergeant-at-Arms Paul Irving was concerned with the "optics" of declaring an emergency ahead of the protests and rejected a National Guard presence. He says Senate Sergeant-at-Arms Michael Stenger recommended that he informally request the Guard to be ready in case it was needed to maintain security.

Like Sund, Irving and Stenger have also since resigned their posts."

So, who does the House Sargent at arms work for? Yeah, the Speaker.

[David Nieporent]

So, who does the House Sargent at arms work for? Yeah, the Speaker.

The House Sergeant at Arms works for the House. And of course regardless of who the House Sergeant at Arms works for, the House Sergeant at arms is not named Pelosi. So if the House Sergeant at Arms does something bad, you should accuse the House Sergeant at Arms of doing it, not "Pelosi" of doing it.

You may want to also note that the House Sergeant at Arms does not, in fact, control the Capitol Police. The Capitol Police are overseen by the Capitol Police Board, made up of the House Sergeant at Arms, the Senate Sergeant at Arms, and the Architect of the Capitol.

And of course none of that has a damn thing to do with the quote to which I was responding, which says that Trump "called on increased security prior to the event up to and including the National Guard."

[Kazinski]

David you are right about that.

Trump signed off on the Pentagon's plans and asked them about planning for contingencies, they told him 'we have a plan and we've got it handled'.

That was exactly what he should have done. He left it to the experts.

Sound the Capitol Hill police chief did want troops on hand, the House and Senate Sargeant at Arms disprove the request because of optics.

All this is detailed in the Pentagon IG report on the Pentagon's J6 response.

[shawn_dude]

Trump was our nation's leader. Did he leave that to experts too when he watched the insurrection and surrounding riot drive the House to erect make-shift barricades to protect themselves? When he triggered the "Hang Mike Pence" chants? When he saw Capitol police being bludgeoned by fire extinguishers?

He watched it all unfold for 187 minutes, ignoring please by the people around him to do something the entire time. All of this is also detailed in hours of testimony.

[David Nieporent]

Trump signed off on the Pentagon’s plans and asked them about planning for contingencies, they told him ‘we have a plan and we’ve got it handled’.

He asked about planning to protect his supporters, not about planning to protect Congress from his supporters.

[Bruce Leichty]

I want to back it up. How can all you learned law professors smugly decide Jan 6 was an insurrection if the majority of the protesters were there because of a good faith belief that the election was influenced by fraud and a majority were nonviolent and there were very few bearing arms and .. a minority were federal agents and provocateurs? And the doors were opened from the inside on at least some approaches to the Capitol? Don’t give me your angels on a pinhead till you address that one.

[Martinned]

Good faith use of violence against the US government? Sure...

[ravenshrike]

I have yet to see an accounting of all the CI’s and undercover LEO’S, and more importantly which entrance they were primarily stationed at. Indeed, the FBI itself lost count of how many CI’s the various government agencies had there. Until those things are known, how much violence the actual protestors were responsible for cannot be answered. Also, I want to know what happened to the pipe bomb dude.

[Nameless But Highly Opinionated]

Good faith use of violence to preserve the US government?

I'm not saying that's what this was. But there is such a thing.

[JasonT20]

"Good faith" is doing an awful lot of work for you here. Can there still be a "good faith" belief that the election results were "influenced by fraud" when several dozen lawsuits by Trump or his allies were rejected or withdrawn with some of those rulings coming from federal judges Trump appointed? When Republican governors and secretaries of state were rejecting those fraud claims and insisting that the results were legitimate? When his own AG that had defended him steadfastly in many other ways had said that the fraud claims were "bullshit"?

Rather than good faith, a better description of the motivation and thinking of the people that stormed the Capitol that day is self-delusion.

[shawn_dude]

Edgar Maddison Welch believed in good faith that there really was a Democrat-supported, satanic child sex ring that included Hillary Clinton in the basement of a pizza parlor. Sure, he brought an AR-15 with him but he only shot a door lock and no one was hurt. He went to D.C. to help people! So unfair he got 4 years in prison, amirite?!

And all those folks who "non-violently" stepped over the battered barricades and bludgeoned police at the Capitol building, I mean, that was totally no different than your average high school football game, right? Practically a non-violent tailgater of a party.

[Sarcastr0]

Good faith but wrong is still wrong.

The Constitution is not a postmodern document. The actual facts matter, not the perceptions of the deluded and violent.

[Kazinski]

Calabresi does a good job making the case that Jan. 6th was an insurrection, he fails utterly making the case that Trump is an insurrectionists or gave the insurrectionists aid or comfort.

He made no overt act, had no direct communication with the insurrectionists planning or condoning any illegal act. He approved Pentagon plans days before to provide needed troops, and was Assured by SecDef and General Milley ‘We’ve got a plan and we’ve got it handled’. And no Pentagon official ever said that the delays were due to needing further orders from Trump, indeed nobody from the Pentagon even asked for anymore authority than they already had before troops were ordered deployed.

I’m not defending or praising anything Trump did that day, but none of it could be described as participating in the insurrection.

And I will also note, by Calabresi’s Insurrection definition the entire BLM summer was an insurrection.

And that makes Kamala Harris ineligible to hold any office under the United States or return to the Senate because she contributed to a bail fund for insurrectionists, and that is an overt act of aid and comfort.

[Brett Bellmore]

That last is a major factor in my lack of patience with all the Section 3 talk. It is so obviously motivated by a "get Trump" obsession, not any impartial desire to see Section 3 enforced.

There's no defensible definition of "insurrection" that could possibly sweep up Trump, and not at least dozens of Democrats, after all the BLM/Antifa rioting, multiple legislative chamber invasions, 'autonomous zones', literally clawing at the doors of the Supreme court while Kavanaugh was being sworn in...

OK, people were somewhat shocked to find out that right-wingers could riot, too. It came as a surprise to everybody. But it was just a case of the right starting, fitfully, to act like the left has for years now. If it was "insurrection" the left have been committing insurrection for most of my life.

With many office holders being at least as complicit as you can show Trump being.

[Joe_dallas]

Concur - Its difficult to make an intellectually consistent and honest case that Trumps actions were an insurrection while the behind the scenes actions promoting the BLM and antifa riots somehow were not insurrections nor arguing that Hillary's actions in starting and perpetuating the Russian hoax were not a back door insurrection or a backdoor attempted Coup.

I am not defending trumps actions - just noting the selective inconsistency ie the double standard.

[Randal]

Would you consider a negative campaign ad to be a “backdoor insurrection?” You’re retarded.

The BLM riots don’t count since they didn’t have overthrowing the government as a goal.

There's no such thing as an antifa riot.

[Joe_dallas]

Randal retarded is intentionally misstating the facts and the statement that was made, the claiming the person was wrong based on your intentional misstatement.

No antifa riot - were you in a coma during 2020? did the riots in Minnepolis or portland never happen?
Nobody mentioned a negative campaign ad - except you

Just a few examples of you being completely wrong

[Randal]

Given that Hillary chose not to make "the dossier" public, even comparing it to a negative campaign ad is giving it too much credit.

[Joe_dallas]

Randal - not surprising you intentionally omit facts
Hillary made sure the FBI got involved chasing the russian hoax

[David Nieporent]

And that makes Kamala Harris ineligible to hold any office under the United States or return to the Senate because she contributed to

False.

a bail fund for insurrectionists,

Also false.

and that is an overt act of aid and comfort.

It is, of course, not. Wow. Three errors within the span of a single sentence.

[Randal]

It's a close call. Trump intentionally set up the conditions to make an insurrection likely. I can see how a reasonable person could say that that counts.

When I parse 14/3 finely...

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

... I think "setting up the conditions" falls short of "engaging," and I read "given aid or comfort" not to apply to insurrections or rebellions but only to "enemies," which in this context means foreign enemies. So I would say that it doesn't quite reach Trump.

[Brett Bellmore]

I don't think Trump 'set up the conditions" for the break in at the Capitol any more than the Democrats set up the conditions for the House baseball shooting. Giving people motivation with over the top rhetoric doesn't make you responsible for them acting criminally on the basis of it.

Indeed, if you were going to identify anybody who was guilty in that regard, wouldn't it have to be the FBI? The Proud Boys were lousy with government informants, if not actual provocateurs. How in the world could that break in have happened without the FBI knowing in advance? They actually had people on site!

[Randal]

1. He decided to hold a rally near the Capitol on Jan 6 in the first place. That wasn't a coincidence.

2. He promoted it aggressively and suggestively. For instance with this tweet:

Big protest in D.C. on January 6th. Be there, will be wild!

I certainly knew what that meant, as did his followers. As did he. And that wasn't the only tweet, and his rhetoric about Jan 6 at rallies was even more direct.

3. He told the crowd to march to the Capitol and "fight like hell."

There were other things too, but just that is sufficient to say that he intentionally set up the conditions for an insurrection.

I'm sure the FBI knew that the break-in was going to happen. I fucking knew. That doesn't make them (or me) complicit, and certainly not responsible for intentionally setting up the conditions.

Giving people motivation with over the top rhetoric doesn’t make you responsible for them acting criminally on the basis of it.

I never said it did. All I said was that Trump intentionally set up the conditions to make an insurrection likely. I also said that he didn't himself engage in it.

[Brett Bellmore]

You've just proven my point: By the standard you're propounding you could disqualify dozens of Democrats.

[Randal]

How do you keep missing the fact that my whole point is that Trump is not disqualified by this standard?

Your reading comprehension is... astounding.

[Kazinski]

Near the Capitol?

It's 2 miles and a 42 minute walk to the Capitol from the Ellipse where Trump spoke.

It's not Pittsburgh, but it's hardly right on top of Capitol Hill.

[Randal]

If that's your best defense, I'll take the win.

[shawn_dude]

If someone plans a heist but does not participate in the actual event, are you saying they did not "engage" in the heist? There could be a legal term of art here that I'm not grasping but in laypersons terms, prep work for an insurrection seems like "engaging" to me.

[Randal]

Plans, yes. Prep work, yes. But I'm not sure you could call these Trump actions either plans or prep.

It would be more like someone who worked in the security department at a bank and intentionally advocated for weaker security measures, and then wrote a letter to the editor saying how evil the bank is and wouldn't it be great if someone relieved it of its ill-gotten gains.

I don't think that person would be responsible for the ensuing heist.

[Joe_dallas]

Randal - "… shall have engaged in insurrection or rebellion against the same [the US], or given aid or comfort to the enemies thereof."

Giving aid or comfort to the enemies would include paying gobs of money to our enemies to fund the terrorism would it not ? or does giving aid or comfort to the enemy only apply in times when done by a republican.

Try to be intellectually honest and consistent.

[Randal]

Yes, giving gobs of money to our enemies to fund (international) terrorism against the US would surely count as giving aid or comfort to the enemy.

[Joe_dallas]

Glad you recognize that giving gobs of money to the enemy would be giving aid or comfort to the enemy. Lets see how well you do denying Obama's hand in funneling money to Iran.

[Randal]

As far as I know Obama didn't give Iran money for the purpose of funding terrorism against us. If you have evidence to the contrary that would be quite a bombshell!

[Nameless But Highly Opinionated]

Granting someone "aid or comfort" is unlawful behavior.

Bailing someone, even someone caught red-handed is perfectly legal. When has law ever considered offering bail to make someone an accessory? If it were so, the magistrate who allowed bail at all would also be an accessory. Bail is a right, where appropriate, and if a magistrate allows it, anyone could offer to be someone's surety.

This is as absurd as suggesting that being someone's lawyer makes one guilty of giving "aid and comfort".

[Mr. Bumble]

If memory serves, there have been about 20 times that a president has invoked the insurrection act; all in response to civil disturbances.

[David Welker]

Whether January 6 is an insurrection or not is a question that must be accessed on an individual level.

For it to be an insurrection, it is necessary for a person to believe that they are “rising against civil or political authority” to use Calabresi’s quote.

But if you sincerely believe that someone or something is going to steal an election, then that someone or something isn’t “authority” under our system of government. Because an election goes to the very question of who exercises authority on behalf of We the People.

I have read another of outcomes in which judges lecture January 6 regarding their patriotism, and I believe such lectures are out-of-bounds and unreasonable UNLESS that judge knows that the person thought they were overturning an election. I do not buy the idea that one has to knowingly consent to an election being stolen and not take action to prevent it. In fact, just watching an election being stolen, if you KNOW it is being stolen, seems more akin to cowardice than praise-worthy behavior.

Let’s throw a hypothetical out there. You KNOW for a fact that Congress, having rejected democracy and our Constitution, is going to intentionally choose the loser rather than the winner of an election as President. In such a scenario, it would be Congress that is behaving in an insurrectionist manner (because Congress would be “rising against” the authority of We the People) and not the people who interfered with Congress. And the idea that members of Congress can be insurrectionist is far from out of bounds, the text of section 3 of the 14th Amendment makes it quite clear that anyone, including members of Congress, might be guilty of insurrection.

Anyway, what Jan 6 was varied based on the person. If the person thought they were rising up against a legitimate election, then they were an insurrectionist. If they thought that Congress itself was behaving in an insurrectionist manner and they were trying to uphold the system by stopping it, then they were not an insurrectionist.

The idea of someone being an "accidental" insurrectionist is a ridiculous idea. Insurrection is a very extreme crime, not some sort of strict liability offense. And unlike murder, there are not nuanced "degrees" of insurrection. You either are an insurrectionist or you are not an insurrectionist.

[David Welker]

...

[David Welker]

The argument that the President is not an officer of the United States is, frankly, a ridiculously counter-intuitive one. The Constitution refers to the presidency as an office. Therefore, the President is an officer. And he isn’t an officer of Mars, he is an officer of the United States. End of discussion. The Constitution was intended to be read and understood by ordinary people. It isn’t some elaborate code that only a heroic specialist priest class, known as lawyers, can read and understand.

Article II refers to the President commissioning all other officers and these other officers don’t include the President of the United States. But that isn’t evidence for the frankly ABSURD assertion that the President holds an office, but isn’t an officer. That is called context. All people who the President wants to be officers (but aren’t yet) must be commissioned before they can be officers and exercise executive authority as officers. This is important, because the Constitution vests executive authority in the President and the President alone.

As far as taking the word President out of section 3 of the 14th Amendment, if it was ever in a draft, that is highly irrelevant. What is binding is the language that is ratified, not some secret language with some secret meaning. The argument that you “have had to be in the room where it happened to understand the true meaning” is completely contrary to the idea that a Constitution is a document meant to be read and understood by ordinary people.

The Constitution needs to be understood in general context and the overall purpose of a provision may be derived based on the generally known historical context that ratifiers would certainly know. The historical context of the 14th Amendment was the Civil War. And the text of section 3 limits disqualification to those who took an oath of office to uphold the Constitution rather than everyone. It is ABSURD to exclude a President from section 3 even though the President takes an oath. The idea is that an insurrection against something you personally and voluntarily took an oath to uphold is especially bad, and it is grounds for disqualification from further office. It is illogical and ABSURD to exclude the President even though he takes an oath to uphold the Constitution.

The views of Blackman and Calabresi I believe are simply pure narcissism. They are looking at their reflection in a river and can only see their own pure beauty. They flatter themselves to think they are one of the few who can understand the Constitution, and mere mortals cannot. Their next logical step is to translate the Constitution into Classical Latin, ban all English versions, and insist that ordinary people be deprived of access unless they be misled from the true meaning that only high priests such as themselves can rightfully understand.

The idea that the President is not an officer despite holding an office is HIGHLY counter-intuitive. And for that reason, it must be wrong.

I know that my assertions must be a let down for people who decide to devote their whole life to reading the Constitution. But if you have a strong desire for rigorous thinking resulting in counter-intuitive results that are true regardless of what anyone else thinks about it, you should go into theoretical physics rather than constitutional law.

The Constitution is not your personal playground as a scholar. It belongs to We the People and is meant to be understood by ordinary people. I am SO SORRY if bizarre counter-intuitive findings that must be joyful to find after reading the same old boring document over and over again aren’t really going to be a legitimate part of your career if you go into constitutional law.

Dear Steven Calabresi:

I am sorry sorry that you chose the wrong major. But your future career in theoretical physics is waiting for you! You will find so many counter-intuitive results in quantum mechanics that will be true no matter what anyone else not trained in physics thinks about them!

As far as your career in law goes, I think maybe you need to accept that you have read the Constitution TOO MANY TIMES and as a result have had TOO MANY THOUGHTS about it, causing your views to SHARPLY DIVERGE from how anyone else would read it. After enough readings, the idea that the President holds an office but isn’t an officer ceased to seem like an insane proposition to you. I know you think you have found the Schrödinger’s cat in Constitutional Law, but I regret to inform you that there is NO such cat in Constitutional law. Sadly, there is no field of “quantum Constitutional interpretation.” There is just the plain old boring Constitution, with its logical consistency and non-absurd outcomes.

Like, this thing we call the Constitution was drafted over a period of four months. And you have been obsessing over it for decades. If you want to be able to read it properly STILL, you may need to step back and realize that your original readings are more valid than your latest crazy ranting and raving. You need a shift in perspective. And you should recognize that your boredom is, in fact, not a license to twist the meaning of the document in search of counter-intuitive results.

[DaveM]

One should never respond to a soapbox rant, except to point to the parts they enjoyed the most. This was my favorite bit:

"They flatter themselves to think they are one of the few who can understand the Constitution, and mere mortals cannot. Their next logical step is to translate the Constitution into Classical Latin, ban all English versions, and insist that ordinary people be deprived of access unless they be misled from the true meaning that only high priests such as themselves can rightfully understand."

Yikes!

[Randal]

The Constitution refers to the presidency as an office. Therefore, the President is an officer.

You and I guess Will Baude both seem to think that office and officer are basically the same word. They are not. Office holders are not automatically officers any more than people in a particular role are rollers or someone in a position is a positioner.

Lots and lots of officers don’t hold an office. Police officers, for example, or officers of the court.

There are also examples, like the President, of people who hold an office but aren’t officers. People who hold the office of Mayor are Mayors, not officers.

If you agree that the English language is the starting place, then the initial assumption is that offices and officers are disjoint. If you want to make the case that the two categories overlap in any particular way in some context, you need to give the reasoning.

[David Welker]

Here is the Oxford English Dictionary:

officer: “A person who holds a particular office, post, or place.”

A President holds the office of President. Therefore, the President is an officer. The Secretary of Defense holds an office. Therefore, the Secretary of Defense is an officer. Even though we can also refer to the Secretary of Defense as the Secretary of Defense, we can also refer to them more generically as an officer.

It is a huge exercise rebelling against the ordinary meaning of words to argue that the President is not an officer. And it is an inappropriate approach to interpretation when it comes to the Constitution, which as I have mentioned, is intended to be understood by ordinary people.

I like how, in the end, you tried to shift the burden to me. Yeah, I have been playing this game for a long time. So, stupid tricks don’t work. The burden is on you. You are the one that wants to go to bizarro-land where the President and the President alone doesn’t have to take their oath to uphold the Constitution seriously.

If you are going to come up with the batshit crazy interpretation, contrary to ordinary language, the burden of establishing your extravagance is on you.

[Randal]

officer: “A person who holds a particular office, post, or place.”

By your logic, anyone who holds an office, post, or place is an officer.

So, a security guard is an officer. A caddie is an officer. A board member is an officer. An administrative assistant is an officer. A toll-booth operator is an officer. A lifeguard is an officer.

Guess what. Although an officer is someone who holds a particular office, post, or place, not everyone who holds a particular office, post, or place is an officer.

So stupid.

[David Welker]

"By your logic, anyone who holds an office, post, or place is an officer."

Based on the English language as it is conventionally used, everyone who holds an office is an officer.

That doesn't mean they are an officer of the United States. For example, a governor is an officer of their state, not an officer of the United States.

I don't think people call the position of caddie an office. But if they did, then a caddie would be an officer.

The Constitution describes the Presidency as an office.

Article II, section I:
"The executive Power shall be vested in a President of the United States of America. He shall hold his Office..."

So, the Constitution explicitly says that the Presidency is an office. It does not say that the position of Caddie to Tiger Woods is an office. Therefore, the President is an officer of the United States and the caddie chosen by Tiger Woods is not.

This is not rocket science. I think all the existence of this argument proves is that sometimes you have to read the Constitution LESS to have an accurate view. Because the more and more you read it, the more and more weird ideas become more and more plausible in your mind.

The Constitution was created over a four month period. But the final draft was produced over an even shorter period of just weeks. There were, of course, other drafts along the way.

I think this context needs to be remembered when interpreting the Constitution. The final draft, primarily drafted by Governor Morris, took about two weeks.

If you spend decades reading it, maybe you start to see something that no human then existing would. I don't think that is a legally valid perspective though. What is most persuasive to me as the most relevant perspective is the perspective of the ratifiers and the voters who selected them, because it was their consent that caused the Constitution to go into effect.

So, for example, the notes of James Madison are of limited relevance to the extent not available to the ratifiers. However, looking at various drafts and things might be useful to elicit how certain words might be treated by reasonable people at the time.

[Kazinski]

Whoosh.

The fact you can’t understand the basic argument makes it hard to give your assertions much credit.

The core argument is that the Presidency is not an office UNDER the United States, not OF:

“Section 3 only disqualifies oath-breakers from being “a Senator or Representative in Congress or [an] elector of President and Vice President or [a holder of] any office, civil or military, under the United States,”

To be sure Calabresi muddies the waters by saying after that “I also do not believe the President is an “Officer of the United States” , but that assertion, which I don't think has merit now or in 1868, has nothing to do with the primary point that an Office UNDER the United States does not include the highest office in the land.

[David Welker]

Try again. The Presidency is under the United States. It certainly is not above it.

You are literally talking about a process of final drafting that took two weeks and an overall process of four months.

And you are reading prepositions like they are computer code rather than English. A President is not an office ABOVE the United States, goof ball.

I am not going to even call this motivated reasoning. Instead, it is a desperate to find a secret code in prepositions. But if we actually deal with the MEANING of under, it adds nothing. The Presidency is not EQUIVALENT to the United States. The President is not ABOVE the United States. The Presidency is UNDER the United States.

You know what this is like. It is like trying to find a secret code in the Bible or something. You are picking at words and seeing more than is there. And that, I say, is highly inappropriate. It is unrepublican and undemocratic. The Constitution was intended to be simple and easy to understand, not the reading of entrails or an exercise in superstition.

But under versus of you screech! IT MUST BE DEEPLY MEANINGFUL. IT MUST BE!

Yeah, calm down, buddy.

[Old Smokin' Egg]

Trump’s actions on January 6 were beyond a doubt despicable; it’s pretty clear that he wasn’t at all displeased by the Capitol invasion, and only very late in the game did he call on his followers to go home, even then telling them what swell people they were. For this, I was 100% in favor of his impeachment, and have nothing but disdain for the craven Republicans, including those from my own state and district, who voted against it.

But the point that Trump failed in his duty to “take care that the laws be faithfully executed” seems to leave out the notion of prosecutorial discretion. Let’s say, for instance, that a President happens to walk by a car that’s illegally parked on Federal property, so in contravention of Federal law. Does the oath of office require him to call in the G-men?

Granted, there’s a very wide gap between parking in a loading zone and breaking into the Capitol. But there’s no bright line within that gap, such that we can say that the President’s not obligated to take action against violators on one side but not the other. And this is why we have impeachment for undefined “high crimes and misdemeanors”, instead of requiring that the subject of impeachment be guilty of a clear violation of an unambiguous law.

[Brett Bellmore]

"and only very late in the game did he call on his followers to go home, even then telling them what swell people they were."

Assuming you wanted his call for them to go home to work, do you think, "Go home already, you scumbags!" would have been more effective? This last seems like a silly complaint.

[David Nieporent]

How about: "The people and the courts have spoken: I lost the election. I know you are disappointed, as I am, but Congress's lawful duty is to certify those results. I appreciate the sentiment behind your support, but the time for that has passed, and your acts, no matter how well-intentioned, are illegal. It's now time to come together to support our new president as he faces the difficult challenges that confront our country. Please go home immediately."

[Magister]

Pivoting to being presidential after 1447 days would have been a mind blowing plot twist. Even M. Night Shyamalan wouldn't attempt that.

[Nameless But Highly Opinionated]

AI could probably come up with a "nice Donald Trump"

[David Nieporent]

The odds of him saying that were about as likely as the odds of him sprouting wings and flying to Jupiter, but the question was what he should've said.

[apedad]

I don't think the section/amendment apply to the President because the President is not an officer of the US.

However, looks like we'll start to get some official decisions soon.

‘It is in the public’s interest’: Judge refuses to toss voters’ insurrection clause lawsuit to kick Trump off 2024 ballot, speeding the case towards trial

Judge Sarah Wallace of the 2nd Judicial District Court in Denver, in a 21-page order, sided with a group of voters represented by Citizens for Responsibility and Ethics in Washington (CREW) who, citing Jan. 6, sued in September to “challenge the listing of Respondent Donald J. Trump as a candidate on the 2024 Republican presidential primary election ballot and any future election ballot, based on his disqualification from public office under Section 3 of the Fourteenth Amendment to the Constitution of the United States.”

https://lawandcrime.com/high-profile/it-is-in-the-publics-interest-judge-refuses-to-toss-voters-insurrection-clause-lawsuit-to-kick-trump-off-2024-ballot-speeding-the-case-towards-trial/

[Nameless But Highly Opinionated]

"However, looks like we’ll start to get some official decisions soon."

The better question is why the people of any state would leave handling such matters to their courts.

[not guilty]

Thank you for the link, apedad. The District Court's opinion is here. https://s3.documentcloud.org/documents/24031198/judge-denies-trump-special-motion-to-dismiss.pdf

[DaveM]

"I will add that, prudentially, keeping Trump off the ballot, and infuriating his die-hard supporters, would be much worse for American democracy, anyway, than would be another term of Joe Biden..."

Just so. And there, please dear God, let us leave it.

[Syd Henderson]

With all the nitpickers here, none of you pointed out the OP confused Daniel Webster with Noah Webster, who was the lexicographer.

[Brett Bellmore]

“For all of these reasons, I concluded Section 3 of the Fourteenth Amendment does not require or allow Trump being kept off any presidential primary or general election ballots.”

Worth pointing out again that, at the time the 14th amendment was ratified, and for about 20 years afterwards, “keeping a candidate off the ballot” wasn’t even a consideration, because the Australian ballot hadn’t yet been adopted anywhere in the US. So the drafters of it could NOT have been thinking in terms of ballot disqualification. It wasn’t even on the horizon.

At the time, Confederates ran for office, campaigned, got voted for, the votes got counted, and if they got the most votes, they even won. They just didn’t get seated. That’s all.

So, we know at what point in the process enforcement was to take place: At the point where the winning candidate was to be seated. Not at ANY point prior.

So, why try to keep Trump off the ballot?

I suppose because if he's on the ballot, and wins the election, it would be just too transparently obvious what was actually going on: The voters were being denied the ability to select the President.

[Randal]

Why do you try to be intentionally stupid so much.

In general, if you're running an election, you don't want people on the ballot who don't meet the requirements. We don't put 20-year-olds on the ballot for President and then just not seat them when they win. If the reasons for that aren't obvious to you, then you're being intentionally obtuse.

[Brett Bellmore]

You can not want a lot of things, doesn't mean you're entitled to get them. People running for office and getting voted for, who didn't meet the qualifications for the office, has been a thing our whole history. It wasn't until quite recently, historically speaking, that the government used pre-printing ballots as a convenience for the voter to control who you were permitted to vote for.

[Randal]

Ok, then why are you so confused about why people wouldn't want a disqualified candidate on the ballot? Like you said, it's kind of the point of ballots.

[Nameless But Highly Opinionated]

It could be a great way to convince Congress to use its power to remove disability. And unlike other areas of the constitution, I don't think states are obliged to expend any energy removing people/vetting them. If the country wants to have quo warranto or some other cause of action to keep people out of state office, they can do it. But we repealed it back in 1948.

A state is also free to defer to the houses of Congress in assessing the eligibility of Congressional candidates. In the case of President and VP, Congress will be the ultimate judge of eligibility. If someone is elected by the People of the whole nation, rather than a questionably loyal subset, who is Congress to say no to them? The people and electors are either making a judgement that the person is not covered by section 3, are making a judgement that their actions were justified, or otherwise making an argument that removal of disability is in the national interest.

[Brett Bellmore]

I'm not the least confused about why they'd want it. I'm just saying that they're not entitled to GET it.

[Randal]

So, why try to keep [a disqualified candidate] off the ballot?

You sure acted confused.

[not guilty]

Brett, "a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) (Gorsuch, J.), citing Munro v. Socialist Workers Party, 479 U.S. 189, 193-95 (1986); Bullock v. Carter, 405 U.S. 134, 145 (1972). “Moreover, a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.” Storer v. Brown, 415 U.S. 724, 732 (1974), quoting Bullock, at 733.

Hassan involved a naturalized citizen’s attempt to be placed on the Colorado general election ballot as a candidate for president. Do you have any authority that a state is required to place the name of a candidate who is ineligible to hold the office he seeks on that state’s ballot?

[mlhouse]

While I disagree with the claim that Donald Trump committed "insurrection" in any way, including what would be defined as insurrection by Section 3 of the 14th Amendment, it is ABOUT TIME someone other than me states the obvious:

The Insurrection Clause does not apply to the President of the United States. Section 3 explicitly applies to Senators, Representatives, presidential electors, "officers" of the federal government and states. Notice the President is not mentioned, so unless you think the Framers of the 14th Amendment decided that the President should just be dumped into a hodge podge of "others", then we must come to the conclusion that office is not covered.

And understanding the purpose of Section 3, originalism, is perhaps the easiest way to understand this. The Framers of the Civil War Amendments were just coming off a REAL insurrection in which 600,000 US citizens (even the Rebels were US citizens) died, hundreds of thousands more wounded, and untold destruction of families and property (to put it into modern perspective this would be equivalent to 6,000,000 dead in today's population level). Eleven states of the union had seceded, causing this massive destruction.

What they did not want is to have those 11 states lose the civil war, then within their state elections send right back to Congress and their state legislatures the same men who led them to secession. As a result, the Congressional Framers of the 14th created limits that Congress could control on these state elections since they can control who is seated in Congress, who is appointed by the Executive, and since Congress controlled "Reconstruction" of the States, who could be in state government (this part of Section 3, who can be members of state governments, is rather dubious in non-Reconstruction environments).

But the President is a different issue. It is the only office elected with a national election. The Framers removed the President because of two reasons: they did not want to prevent the people from electing who they wanted on a national level and Congress has no power to control the Executive because of separation of powers.

[JasonT20]

The Framers removed the President because of two reasons: they did not want to prevent the people from electing who they wanted on a national level...

Well, except for Congress.

...and Congress has no power to control the Executive because of separation of powers.

Except for impeachment, the ability to give "advice and consent" to all appointments, control the budget of the country that the executive oversees, etc.

What they did not want is to have those 11 states lose the civil war, then within their state elections send right back to Congress and their state legislatures the same men who led them to secession.

Again, except that apparently it was fine with them if the President was a secessionist.

You managed to throw in a lot of contradictions into one post. Good job.

[DZM212]

*Moops. I'm sorry, the card says Moops