Video of University of Minnesota Conference on Potential Disqualification of Donald Trump Under Section 3 of the 14th Amendment

The conference includes a variety of legal scholars and other experts on different sides of the issue, including VC bloggers Josh Blackman and myself.

Donald Trump. ( Kyle Mazza/SOPA Images/Sipa USA/Newscom)

 

This Monday, the University of Minnesota Law School held a conference on the potential disqualification of Donald Trump from the 2024 presidential election under Section 3 of the Fourteenth Amendment. Participants included a variety of legal scholars and other experts, including Michael Stokes Paulsen (coauthor of a widely discussed article arguing Trump should be disqualified), Kurt Lash (author of an article cutting more the other way), VC blogger Josh Blackman (coauthor of an article defending Trump's eligibility), and myself.

A list of the participants and panels at the conference is available here. I have embedded the Youtube video of the entire event below. I spoke on the last panel of the day, which addressed pragmatic and political implicatoins of Trump's possible disqualification. It begins at around 4:35:00.

The other participants in our panel were Georgia State University law Professor Eric Segall and political scientist Julia Azari (Marquette University). Political scientist Larry Jacobs (University of Minnesota) moderated.

This is a rare instance where I got to outflank Eric Segall on the left! I am far more supportive of disqualification than he is, even though he is generally far more left-wing than I am.

The Lawfare website has posted an audio/podcast version of our panel here.

I developed some of the points I made at the panel in greater detail in this article. I have written about other aspects of the Section 3 debate here and here.

 

Comments

[M L]

Only 6 hours? I wish there was more.

[Armchair]

I can just imagine the cluster....

"Trump wins election, but Minnesota disqualifies him, leading to victory by Biden".

[santamonica811]

Arm,
You make an excellent argument for (be you pro-DQ or anti-DQ in these cases) a resolution of this issue well in advance of the voting. If I want to vote for Trump, but I know he has already been ruled ineligible in my state, then my vote will not be wasted...I can vote for an alternative. Or, if he has been DQ'd in 5 of the swing states, then even if I'm voting in a safer state; I may vote for someone who actually has a chance to bring Republicans a majority of the electoral college.

The worst case is that the Sup. Ct says, this year, "Case is not ripe...we'll hear it only if and when Trump wins in November 2024." In *that* case, there's the real chance of a Trump putative election being taken away by the courts, which would be the best way to ensure anarchy and chaos. A dreadful result, we all agree.

I don't particularly case which way SCOTUS comes down on this issue. I just want finality and clarity before I case my presidential vote. (And, ideally, well before I cast my vote in my primary, as well, of course.)

[Nameless But Highly Opinionated]

How would federal courts do anything after Nov. 2024? The ball's in Congress' court at that point.

[David Nieporent]

Presumably after Election Day, but before the electors meet to vote, the Supreme Court, or any other court, could rule.

[Nameless But Highly Opinionated]

On what? They might have the authority to determine whether electors were rightly elected. But not the choice of the electors. If that choice was ineligible, that's for congress to decide - and congress could also remove disability at any time.

[Frank Drackman]

You say you want an In-sur-erection, well you know......

[Dave_A]

That's not where this is headed.

The objective, is to get SCOTUS to weigh in with a binding precedent, that would apply to all 50 states.

Then to sue in every remaining state (which would have to rule according to precedent - save maybe a few scofflaws down in the Southeast), and put a stake through the heart, as it were...

[Alpheus W Drinkwater]

Looking forward to watching the whole thing. I was amused to see that the first panel, on the history of section 3, didn't have a single history professor, but instead three law profs, including Josh Blackman. That's how originalism is done, I guess. History is more malleable that way.

[Nameless But Highly Opinionated]

The law panel devoted almost all its attention to who might adjudicate what, and what likely outcomes would be. They largely avoided the merits of core legal issues.

[Social Justice is neither]

Sounds like they plumbed the depths of actual merits based on actual facts instead of veering off into DU space.

[Alpheus W Drinkwater]

That's a shame, the core legal issues are interesting as well. But it would've been nice if the History panel had actually had a historian or two on it. Prof. Graber is a good and interesting writer, but he isn't a professor of history.

[Frank Drackman]

Shakespeare had it right

[SRG2]

This is the kind of case that illustrates both the absurdity and necessity of a Supreme Court decision. Absurd, because given what the amendment says and all the arguments advanced, it is absurd to suppose that any small group of people can give a definitive answers to the questions surrounding Trump's eligibility, and yet it is necessary that answers be supplied and the SC is in principle a more appropriate place than anywhere else to supply those answers.

[Krayt]

Unlike Nixon, no national concensus, and therefore it is partisan hackery. Worried about an election, remove him from the ticket.

Unlikely to do that at a national level, declare any flight of fancy in any state can unilaterally do this for that state. But the election would be close, and a purple state or two turn the election for our guy.

"We're not suppossd to do this for political reasons, but for real, disinterested concerns."

"Fuck that. Let's go!"

"Fine. But has it got a chance to stop his election?"

https://www.youtube.com/watch?v=1yu38kXw7lk

[Randal]

As much as the right likes to complain about the MSM, they’re both the reason there was a national consensus around Nixon and why there isn’t for Trump.

Back in the ’70s, the MSM (and “elites”) had a much tighter grip on national opinion than they do today.

Today, the fractured media landscape puts outlets in greater competition with each other, resulting in more sensationalism (aka clickbait). Trump has taken masterful advantage of the modern media, making his sensational self and message a pretty permanent part of the news cycle for over eight years now.

[Brett Bellmore]

I guess that's one way of putting it. Another is that the media 'fracturing', but mostly the internet, resulted in the media losing their capacity to create the illusion that national opinion agreed with them. People who didn't agree with the media found out they weren't alone, and so weren't afraid to speak up, and the illusion of consensus broke down.

Mind, because the internet allowed like minded people to connect and form bubbles, that illusion of consensus often gets replaced by each little group's illusion that they're actually the majority, and entitled to act like it.

[Randal]

because the internet allowed like minded people to connect and form bubbles, that illusion of consensus often gets replaced by each little group’s illusion that they’re actually the majority, and entitled to act like it.

I find it amusing that you're aware of this phenomenon but not aware that it applies to you.

[Brett Bellmore]

Actually, I try to be aware when I hold positions that are minority viewpoints.

Drug legalization? Nope, not very popular, the public's on board for half-way measures only. Sadly, half-way measures preserve the black market, so you get the worst of both worlds.

2nd amendment? Similarly, while the right to keep and bear arms is generally popular, not a lot of people favor the full blown "every terrible implement of the soldier" stance I hold.

I was opposed to mandating SSM legality through the judiciary, because I don't think it's a legit constitutional interpretation, regardless of what you think of the policy. And I see I was proven right about my concern that they wouldn't settle for it being legal, would demand that you 'bake the cake'. But the public seems to have changed their minds about the topic, so I'm in the minority now.

The public is also more moderate than me on abortion, though they're more moderate than the 'pro-choice' movement, too.

[Sarcastr0]

Actually, facts and reality matter.

The Constitution says what it says even if a lot of people are wrong.

Arguing that there is no real truth it’s all perception is an awful rationalization to appease the deluded or liars.

[Frank Drackman]

It does mean what it says, such as “The Right of the People to Keep and Bear Arms shall not be Infringed” and last time I checked, “45” was POTUS on January 6th, so he was “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” against his own Government?? Speaking of giving comfort to the Enemy, Parkinsonian Joe gave $100 bullion to Ham-Ass, when do we get our Hostages back? Funny how 50 some Hostages under Jimmuh Cartuh was a “Crisis” but the Marxist Stream Media doesn’t give a (redacted) about 5 times as many in Gaza

Frank

[Dave_A]

He very much was engaged in an insurrection against the Constitution.

The entire *point* of Section 3, was to address the former officials of the United States who – despite being members of the US government at the time, had joined the Rebellion in 1860 – by ending their careers unless Congress forgave them.

[Dave_A]

Prior to 1968, the party itself would never have allowed him on the ticket the first time (and yes, any of the others except maybe Kasich or Carson would still have won - 2016 was about Hillary sucking not people really liking Trump)....

The need to even think about this is born out of the aftermath of the 1968 Democratic Convention - wherein we switched to popular-vote primaries for President (A huge mistake).

[SRG2]

I am waiting for his attorneys to argue that Trump isn't covered by A14S3 - because although he apparently swore the oath (one of the requirements), he had his fingers crossed.

[Dave_A]

The authors of the 14th should have given the Supreme Court original jurisdiction on this...

And people should have sued as soon as he announced his candidacy.

[Nameless But Highly Opinionated]

There was no Australian ballot back then, and no concept of ballot access. No one has ever been kept off a ballot due to section 3. Not even actual confederates. They were always dealt with at the end, some being removed or denied seating, but others successfully petitioning Congress to remove disability so that they could sit.

[Nameless But Highly Opinionated]

You hear a ton of "framers' intent" in the video, both out of the mouths of originalists and nonoriginalists.

In Britain, laws are enacted by the King, by and with the advice and consent of his people assembled in parliament. But James Madison did not enact a constitution with our consent. We adopted the constitution, period.

So "framers' intent" is not law. Neither is the ratifiers' intent, if "ratifiers" refers solely to the attendees of ratifying conventions. No constitution was ratified in their name, and they have no innate authority. Our government is one of mutual obedience. The text the ratifiers adopted is imputed to the people as a whole: So take the text and put it in the mouth of the people as a whole, and the intended rule indicated by the text (and the context of the times) is your law. This is why we use original *public* meaning.

The 55 men in Philadelphia had no authority over their fellow Americans. Their fellow Americans did, and they agreed with one another to adopt a constitution, in their name and by their innate authority, binding on all until they should change it.

If we want to understand the intentions of the lawgiver, we have to get the right lawgiver.