Three Former Attorneys General File Amicus Brief in Trump v. Anderson

Other amici include me, law professor Gary Lawson, and Citizens United.

Three former Attorneys General, Edwin Meese III, Michael B. Mukasey, and William P. Barr, together with me and B.U. law professor Gary Lawson, and with Citizens United, joined an amicus brief that was filed yesterday on Donald Trump's side in Trump v. Anderson.  This is the case which the Supreme Court is hearing on whether former President Donald J. Trump is disqualified from being re-elected as President by Section 3 of the Fourteenth Amendment.  The brief was written and filed by Gene C. Schaerr and Kenneth A. Klukowski (of Schaerr, Jaffe LLP) working with a first draft written by me.

The brief argues that, whatever one thinks about the events that occurred on January 6, 2021, Section 3 of the Fourteenth Amendment does not apply to the office of President of the United States.  The brief also argues that Section 3 is not self-executing and requires congressional legislation to take effect.  Finally, the brief argues that upholding the ruling of the Colorado Supreme Court would lead to chaos as multiple candidates for office would be excluded from running for office by judges and state election officials.

The three Attorneys General, on behalf of whom the amicus brief was filed, served under four different Republican Presidents: Ronald Reagan, George H. W. Bush, George W. Bush, and Donald J. Trump.  This is a striking level of consensus among Attorneys General for Republican Presidents, who served at some point between 1985 to 2020,  in favor of overturning the Colorado Supreme Court decision barring Donald Trump from being on the ballot in the current presidential election under Section 3 of the Fourteenth Amendment.

Comments

[ah....Clem]

The court has multiple ways to reverse the Colorado ruling without resorting to the laughably sophomoric assertion that the office of the president is not an office.

I don’t know quite what peg they will hang the ruling on, but the one that makes the most sense to me is that sec 3 prevents some people from *holding” office, it does not prevent them from running for office. The case is not ripe until an allegedly ineligible person has actually been elected.

Were the plaintiff Cornell West or RFK jr, the court could just put them on the ballot and wait for the results to make the case moot.

Of course, doing that with Trump would make for an awkward situation if he’s elected, so I doubt they will kick the can down the road that way.

Note that even if you stipulate that Trump is currently ineligible, in theory that could be reversed by a 2/3rds vote by Congress. So kicking him off the ballot now is premature.

For candidates who will never be eligible in time to be seated, it seems proper to not allow them on the ballot, but as long as there is a path to eligibility that candidate should remain on the ballot.

[Brett Bellmore]

I largely agree. As I've said before, we didn't even HAVE 'ballot access' when the 14th amendment was adopted: People brought their own ballots, they didn't fill out government provided ones. The 14th amendment has nothing to say about ballot access, because it wasn't a thing at the time.

At the time, the right to vote was the right to vote for anybody you wanted!

Confederates announced for office. They ran. Their votes got counted. And if they won, the went to DC, and Congress refused to seat them. That's how it worked.

But you're right, they'll be scared off by the prospect of Trump being elected and THEN disqualified.

I think they'll just say that federal insurrection law is Section 3 enabling legislation, convict him of insurrection in a criminal trial or go away.

[ah....Clem]

I doubt the scotus will go so far as to assert that a criminal conviction is necessary to disqualify under sec 3. Granted, one of the Colorado dissents asserted that, but with no analysis or supporting arguments. Is anyone else making that argument to the court?

However, raising questions of what standards and proceedings apply and remanding to the Colorado Supreme Court while staying their ruling neatly accomplishes the goal of reinstating Trump on the ballot and might even achieve a unanimous opinion.

If their remand is complicated enough there’s no way it will be resolved in time.

[Brett Bellmore]

But simple delaying tactics have the negative effects that,

1) They risk attempts at Section 3 disqualification becoming a routine political tactic.

2) The issue keeps coming back to them.

Whereas the "Convict him or go away" ruling largely makes Section 3 disappear as a pretextual tactic.

I don't think they'll want to have this repeatedly coming back to them, they'll want to settle the matter.

[ah....Clem]

Requiring a criminal conviction with it's attendant burden of proof in what is basically a civil matter would fly in the face of a lot of established jurisprudence. I'll leave it to someone with more legal training to elaborate, but it's a huge departure.

Plus, almost everyone disqualified under 14A sec 3 were not convicted so precedent strongly argues against requiring it.

[Brett Bellmore]

"Basically a civil matter" is the conclusion, not a starting point.

"Plus, almost everyone disqualified under 14A sec 3 were not convicted so precedent strongly argues against requiring it."

That's true, but as I keep pointing out, consider the context: Right after a bloody civil war, the losers were being disqualified by the winners. You can't ignore that context! It's insane to try to ignore it. Totally insane. It would have me pulling out my hair if I wasn't already bald.

What the winners of a war can get away with doing to the losers of a war is NOT the same as what one faction in a country at peace can get away with doing to another faction.

You can't follow Civil war precedents in a peaceful country, and expect it to remain peaceful.

[Martinned]

That’s true, but as I keep pointing out, consider the context: Right after a bloody civil war, the losers were being disqualified by the winners. You can’t ignore that context! It’s insane to try to ignore it. Totally insane. It would have me pulling out my hair if I wasn’t already bald.

Except that that observation is legally completely irrelevant.

[Brett Bellmore]

And people accuse ME of being "autistic".

[Rev. Arthur L. Kirkland]

One of those people is Brett Bellmore.

[David Nieporent]

That’s true, but as I keep pointing out, consider the context: Right after a bloody civil war, the losers were being disqualified by the winners. You can’t ignore that context! It’s insane to try to ignore it. Totally insane. It would have me pulling out my hair if I wasn’t already bald.

And as everyone else keeps pointing out in response, that's not a fucking legal argument.

[Brett Bellmore]

And as I keep pointing out, you can "that's not a fucking legal argument" yourself right into a second civil war, if you're sufficiently uncaring about what half the country thinks about what you're doing.

[Sarcastr0]

If your argument is hostage-taking of the republic, then dunno why you're putting all the effort into irrelevant (and spurious) historical nonsense.

[Allan L.]

We should not apply the Constitution here because we are afraid of the blowback.

[Nige]

'if you’re sufficiently uncaring about what half the country thinks about what you’re doing.'

Yeah, and if enough people really, really believed Trump won, then he should have been president or else Civil War!

[Krayt]

Everyone banned in the past were obviously Civil War southern people, not a facetious drumbeat to get a political opponent.

What did a commentator say yesterday? We're supposed to believe a 4 hour tantrum almost accomplished what the Civil War could not?

Please, liars.

[Nige]

No, you're supposed to respect the rule of law, unlike Trump and his supporters.

[Imreasonable]

That four hours could have overturned a legal election. That may not equate to all the deaths in the Civil War, but it does equate to destroying the democratic rule.

[Kazinski]

Why is it basically a civil matter?

It's up to Congress to decide whether it's a civil matter or a criminal matter based on their section 5 authority.

Congress has since 1862, and several times since, decided that insurrection is criminal, and carries a penalty of disqualification from office as well as a prison term and fine.

There has been a lot of debate over what section 3 may or may not say about the presidency, but Section 5 is clear: "The Congress shall have the power to enforce this article by appropriate legislation."

[not guilty]

As I have pointed out ad infinitum on these threads, disqualification from office under the Fourteenth Amendment, § 3 is necessarily a civil disability. If it were criminal punishment, it could not have applied ex post facto to disqualify ex-Confederates based on conduct occurring prior to 1868 -- the primary purpose of the amendment.

I have raised this point numerous times, and no one in the Trump cult has even attempted to respond.

[Brett Bellmore]

"If it were criminal punishment, it could not have applied ex post facto to disqualify ex-Confederates based on conduct occurring prior to 1868"

And we had a Conspirator right here saying that Section 3 over-rides every constitutional provision that gets in it's way, including the ex post facto clause.

And I point out here, repeatedly, that Congress started disqualifying Confederates BEFORE the 14th amendment was ratified, or even written. They weren't even trying to color inside the lines, they were just doing whatever they felt like, and throwing people who made a fuss about it in jail without trials. Did you not notice that, in your American history class?

[Sarcastr0]

That Conspirator is a dumbass though.

[Magister]

That states did not print ballots in the 19th century says nothing about current practice; every state now has its own rules about how to get on the ballot (so many signatures, some fee, and at least in the case of Colorado and Maine, being eligible to serve in the office).

[Brett Bellmore]

No, it just demonstrates that denial of ballot access wouldn't have been an anticipated application.

My greater point is that until very recently by historical terms, once you had the right to vote, there wasn't any limitation on who you could vote for. Obviously so prior to the Australian ballot, but even after it was introduced, write in votes were a normal thing, and as recently as Reynolds v Sims, in 1962, the Court said, "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."

It was actually somewhat of a shock in '92 when the Court first upheld a prohibition on write-in voting in Burdick v. Takushi.

For most of this country's history, the right to vote was the right to vote for anyone you damned well pleased, qualified or not. Prohibiting voting for somebody isn't a violation of their rights, it's a violation of the voters' rights.

[Magister]

But states are now allowed to limit who you can vote for. Radio, television and the internet were not anticipated applications of the first amendment freedom of the press.

[Brett Bellmore]

Yeah, the Court has endorsed violating the rights of voters. We should do something to fix that, not build on it.

[Sarcastr0]

There are no rights of voters.

Though the right to ballot access for your chosen candidate is not really going to be under that umbrella, anyway.

You don't like the actual right to vote, whether applied during Covid via state constitutions, or as a priority over security measures that address speculative problems.
You do not have a right to have your concerns addressed so you 'trust the system.' Even pragmatically, anti-intuitionalism like the right soaks in is not going to be solved by kowtowing to what they've been told to be mad about today.

[Alpheus W Drinkwater]

The constitution certainly doesn't give any voter the right to vote for "anyone you damned well please" for President.

[JasonT20]

I don’t know quite what peg they will hang the ruling on, but the one that makes the most sense to me is that sec 3 prevents some people from *holding” office, it does not prevent them from running for office. The case is not ripe until an allegedly ineligible person has actually been elected.

No, this is a really bad I idea. If a candidate wins an election, to have judges rule afterwards that the candidate can't take office would really look like unelected judges thwarting the will of the people, because that is exactly what it would be. If someone is ineligible for office due to provisions of the Constitution (which is also the will of the people, by the way, and the Supreme Law of the Land until it is amended), then that ineligibility needs to be demonstrated and take effect before any election. In the case of Section 3 of the 14th Amendment, Congress can even remove that ineligibility prior to the election if there is enough pressure on it to do so from voters.

That no one in Congress is even suggesting that this occur, which would settle the issue without having to resort to court cases, tells me that Trump's true support is well short of a majority. Iowa actually reinforces this. Trump's fans make up perhaps a majority of Republican voters, particularly those that will vote in primaries, but the rest of registered Republicans would really prefer someone else to get the nomination so they don't have to choose between Trump and Biden.

Of course, this concept of "true support" I use is itself not limited to Trump, but is a feature of most candidates for office. A large percentage of people that vote for a candidate would vote for anyone of the same party in their place. The enthusiasm for a particular candidate is always less than what that candidate would do in actual match-ups against someone from an opposing party.

[ah....Clem]

Agree that waiting until after the election to decide eligibility would have a *poor smell" and seriously doubt the SC will let the election proceed without clarifying Trump's eligibility for that reason.

Note that the RNC argues in their brief that the question is not ripe prior to the election so I'm not alone here.

There's a difference between what I'd like the law to say and what I think it actually says and that's my reading. I'm open to the argument that he is ineligible unless Congress acts, but I doubt that's going anywhere at the SC.

[Lee Moore]

the laughably sophomoric assertion that the office of the president is not an office

Which no sophomore, or anyone else, has yet made.

[NvEric]

This A14 S3 thing against POTUS 45 is bunk and everyone, who has any realization of what planet they're on, knows it.

It's good that there're people willing to say so. Good job all in confronting the persons who transmogrify LAW into a miasmic swill based on notions founded not in actual law, but rather their warped, ill-rational ideas.

While my "argument" here lacks certain standards practiced by others, it is lawful, nonetheless, and is by someone who has been in court enough to know how the kids of today, anyone under 65, fail in receiving their birthright.

Of course, without a couple of centuries on these shores, it's, sadly, understandable most people do not know what Self-Government is and why We have it.

We are the latest, best, hope of Earth to grow into the beginnings of adulthood for our kind.

[ReaderY]

In this country, presidents are selected by a college of electors in the manner directed by each state legislature. Each state legislature can let voters decide, decide itself, and or split the decision and allow voters to decide within limits it sets.

If that’s not “self-government,” then we don’t have “self-government ” on this point. Deal with it. After all, the public has no say at all in selecting members of an entire branch of the federal government, the judiciary. Does that mean we have no “slf-government”? The manner for selecting Presidents is simply a compromise between the way members of Congress are selected and the way judges are selected. The Framers left it up to state legislatures to decide how it would occur.

[Life of Brian]

As I've said before, this may well be completely correct in theory. But in practice, over the past couple of centuries we've consistently adopted the well-established exercise of collecting individual votes in every state, tabulating them, and the electors voting accordingly (as well as, more recently, making a huge fuss about whether the ultimate winner did or did not win the "popular vote").

This de facto agreement of course isn't legally binding in the most technical of senses, but after ~200 years of settled expectations I very much suspect that a sudden departure (particularly at the last minute, just to obtain the "right" result in a given contest) would be... not very well received, and over the longer term likely would trigger a race to the bottom that seems likely to end in a process that would engender a whole lot less confidence and trust than does our current one.

So there doesn't seem to me to be a lot of value in pretending that none of the above is in play, and appealing to other appointed offices where we've set no expectation to the contrary.

[y81]

Well, if you take that literally, then Trump has never been on the ballot in Colorado, only electors pledged to vote for him. The Colorado court is attempting to disqualify those electors, none of whom (to my knowledge) has been accused of insurrection. There is no legal justification for that action.

I don't expect the Court to employ this line of reasoning, but stranger things have happened.

[Alpheus W Drinkwater]

The case involves appearance on the ballot for a primary election. In a primary election, the voter is voting directly for the candidate, not a presidential elector. The voter is selecting which candidate will represent that party in the general election. For the two major parties, these votes translate into a certain number of delegates to the party conventions, based on rules within the party.

[y81]

Good point, although it applies to the original comment by the ReaderY.

[Matt F]

Where is the link?

[Lee Moore]

Finally, the brief argues that upholding the ruling of the Colorado Supreme Court would lead to chaos as multiple candidates for office would be excluded from running for office by judges and state election officials.

This is the argument that is likely to weigh most heavily with the decisive Roberts-Kavanaugh-Barrett axis. Sadly, because it is not a legal argument, but a policy argument and so ought to be irrelevant.

[Brett Bellmore]

I actually agree that it's a policy argument, but Supreme court jurisprudence would look radically different if they ignored policy arguments.

They're going to want to avoid chaos, they're going to want to avoid adding to their work load, and they're going to want to avoid rendering Section 3 moot in the process. Only the last is actually a legal argument, but they'll care about all three.

So they'll probably come up with an answer that makes Section 3 challenges extremely difficult, but still possible.

[ReaderY]

It’s no more chaos than having voters be permitted to support a demogogue is chaos. Or having guilty people go free over a Due Process technicality is chaos. If you can overthrow the Constitution because you don’t like the policy behind what the Framers did, you can equally well argue that this whole Presidential election nonsense every four years breeds nothing but chaos and we really ought to stop all this nonsense and have a king or dictator for life. A Supreme Court would be equally justified in ruling for that on policy grounds. As many a dictator has pointed out, dictatorships are often more consistent and stable than democracies. If you can’t stomach political uncertainty and “chaos,” democracy and for that matter free speech is not for you.

Why in the world is it chaos for political parties to have to take states and their laws into account, not just citizens, when deciding what candidates to field? It’s just our ordinary system for selecting Presidents at work. Nothing chaotic about it.

[Brett Bellmore]

What makes it "chaos" is the expected escalation of pretextual disqualifications of candidates.

You want the candidates competing on the basis of who the voters care to vote for, not on the basis of random officials rigging the selection of candidates available to vote for.

[ReaderY]

The Framers of our Constitution left the matter entirely up to state legislatures, who were given free reign to vest as much of the decision as they wanted to whatever random officials they want. It’s totally OK for that to happen.

You may not want that. But so what? What you or I or the Supreme Court wants doesn’t matter squat.

The only election for President we have in this country is the one by the Electoral College. There is no other. Presidential electors get appointed, not elected. They can be appointed entirely by random officials if state legislatures want. Or appointment rules that disqualify people not meeting certain criteria can be set by random officials if state legislatures want.

Whether we thjnk that’s good policy or not, it’s well within the constitutional system for selecting Presidents. Why wouldn’t we want it?

[Brett Bellmore]

The original Constitution left it entirely up to the states. The Constitution as amended does not.

The states are free to decide to pick their electors by some means other than a popular election. Throwing darts at a board. Directly naming them in a statute. Any way they want.

But, IF they decide to hold a popular election, they are then constrained to actually hold a popular election. Not set up a rigged election where only the candidates they like are allowed on the ballot.

[ReaderY]

What amendment do you claim removed the states’ power?

Due Process and Equal Protection only mean that whatever residual say is left to a popular election has to be divided equally among the voters, every qualified candidate has to have an equal shot, and there have to be rules and notice and hearing regarding what the qualifications are and whether candidates have met them. It in no way limited state legislature’s power to set them.

Texas could, if it wanted to, have a popular presidential election subject to a condition that only candidates who pledge to strictly enforce immigration laws and not have any general amnesties or paroles will be allowed on its Presidential ballot. Nothing in such a rule would violate Due Process or Equal Protection. It couldn’t limit the ballot to whites only. But it could impose any qualification rule that it could impose for any policy-sensitive job.

[ReaderY]

When the Senate majority leader refused to hold hearings on Merrick Garland, that was precisely vesting decision power in a random official who made a clearly pretextual decision (as Barrett clarified).

So what? The Senate used and delegated its advise and consent power as it wished, which is its right. State legislatures have every right to be the same. You could argue that just as the Senate can vest a random official with the power to decide which presidential nominees get on the ballot for the Senate to vote for them, and that official can use completely political (“pretextual”) grounds to do so, state legislatures can do the same.

But that wouldn’t be quite true. In Anderson v, Calebrezze, the Supreme Court held that Due Process and Equal Protection apply to candidates, which means there have to be rules and there has to be an evidence-based hearing a candidate violated a rule to disqualify. This prevents or at least limits purely pretextual decisions, although it doesn’t prevent policy-based rules if a state wants to have them.

But both Due Process and Equal Protection were satisfied in this case.

[Alpheus W Drinkwater]

I agree with you, for the most part. I'm not sure SCOTUS will. But I do have one question. In your opinion, is it significant that in this case, it is the State Supreme Court deciding the disqualification, and not the State Legislature?

[Lee Moore]

The State Supreme Court purported to be applying the Colorado Legislature's law. Which brings us to whatever case it was recently in which SCOTUS said that "the legislature" in the relevant bits of the constitution meant {the whole state lawmaking process} ie state constitution, legislature passed laws plus Governor sign off, and interpretation thereof by the state courts.

But they left themselves a bit of wriggle room by hinting that totally absurd egregious state court rulings might be overrulable as not being based on rules established by the legislature.

I believe the Trump brief to SCOTUS says the Colorado SC decision is not based on Colorado law, but I doubt SCOTUS will go for that. Having skimmed the Colorado SC decision it looked to me as if they'd shoehorned it quite well into something that at least had a trace reading in the law, even if it was a stretch. So I think SCOTUS will pick something else.

Though as I've mentioned before, I don't think Thomas is by any means a sure vote for the trumpies. He seems to think the constitution leaves these things up to the states.

[David Nieporent]

What makes it “chaos” is the expected escalation of pretextual disqualifications of candidates.

As I've said before, you almost have to admire the brazenness of the MAGA GOP. Some might dress it up in high-minded language, but they just come right out and say it: "If you do this, we will act in bad faith."

[Bruce Hayden]

I very much disagree. In cases like this, CJ Roberts can, and does listen to policy concerns. That’s very likely nuked Trump’s challenges to the 2020 election, as well as challenges from several states. It doesn’t say in the Constitution that the Supreme Court has to follow the law, and nothing else, or that it can’t weigh policy concerns.

One of Roberts’ jobs is to protect the Judicial System in general, and his Supreme Court in particular. To protect their legitimacy and soft power. And here, protecting the Presidential election from the otherwise pending chaos of not having the same people on the ballots across the country is likely, I think to drive their decision making. As with the 2020 election challenges, I think that he will find a minimalist way of keeping Trump (and Biden) on the ballot across the country. My thoughts are that it will be by not finding the President an officer under § 3 of the 14th Amdt. I doubt that they will go for the Oath argument, because Biden did swear the “Support” oath as a Senator, and he could still be kept off the ballot if that hair were split. But I fully expect that in the back of the minds of the majority are the policy ramifications of allowing the CO decision to stand.

[David Nieporent]

That’s very likely nuked Trump’s challenges to the 2020 election, as well as challenges from several states.

No, you half-wit. What nuked those challenges was the 100% utter lack of any factual or legal merit to any of them.

[Bruce Hayden]

Plenty of evidence of election fraud, just no chance to present and develop it in any court. Catch 22. Cases were being dismissed right and left for prudential reasons, with no chance for an evidentiary hearing. Then the Electors were certified, and cast their votes. After that, any other cases filed were, of course, dismissed as moot.

[Sarcastr0]

You don't think there was any evidence presented in court?

[David Nieporent]

Plenty of evidence of election fraud, just no chance to present and develop it in any court. Catch 22. Cases were being dismissed right and left for prudential reasons, with no chance for an evidentiary hearing.

There was zero evidence of election fraud. The Kraken litigators did have the opportunity to present what they called evidence in court, and in fact did do so. And they were laughed out of court because what they were calling evidence was either completely fabricated or wasn't probative of fraud.

In fact, on a couple of occasions when Trump's people had chances for evidentiary hearings they then said, "Um, actually, we're not alleging fraud. We're just belatedly challenging election procedures." That happened at least in Florida and Michigan.

There were something like 60 different suits filed, and about half of them were rejected on the merits. Others were indeed rejected for lack of standing and laches and other procedural grounds of that nature.

[David Nieporent]

For the record, that was a brain fart. I meant Pennsylvania and Michigan, not Florida and Michigan.

[Lee Moore]

One of Roberts’ jobs is to protect the Judicial System in general, and his Supreme Court in particular.

I remember something about deciding cases and conroversies arising under the law, but I must have missed the bit about protecting the judicial system in general.

[Kazinski]

Not really, because the brief is right that the issue will almost certainly be decided by SCOTUS in the end: what does Section 3 mean, does Section 5 reserve the authority to enforce Section 3 solely to Congress, and if it is self executing what is the standard of evidence needed and the sufficientcy of proof (preponderance, clear and convincing, or beyond a reasonable doubt)?

So the Supreme Court, as a matter of policy, and recent practice as to election law, should decide the matter decisively at the earliest opportunity.

[ReaderY]

Will address only the last comment.

Having each state determine what it wants to see in a President, and having political parties needing to take their wishes into consideration when deciding what candidates to field, is not “chaos” but is exactly the system that the Framers of our Constitution established for our country.

If people on the other side of the Constitutional Convention debate were writing briefs today, one can imagine a brief arguing that permitting ordinary citizens to have a say would lead to chaos as the fact that a demagogue and an insurrectionist can excite people’s emotions and wreak chaos and political havoc on the country proves the wisdom of not letting selecting the President be up to tbe people. They could with equal justification argue that the fact that ordinary citizens continue to adhere to a candidate who was a known insurrectionist proves that the Framers could not seriously have intended for popular vote to be a permissible method, and conclude the Supreme Court should strike down popular vote as a method for appointing Presidential electors as unconstitutional on political stability grounds, on grounds the Constitution is not a suicide pact.

Both “chaos” arguements have equal constitutional legitimacy, which is to say, they have no constitutional legitimacy. The Framers left the matter up to state legislatures. This permits each state legislature and the state judges interpreting its laws to leave matters mostly up to the people, most of the time, but allows them to take matters out of their hands for candidates who fall below a floor of acceptability.

This is not “chaos.” This is not even a problem This is precisely the system the Framers of our Constitution ordained and established. If political parties and their lawyersfind this inconvenient, they just jolly well have to deal with it.

[Commenter_XY]

ReaderY, was reading your comments with interest. If I am following you correctly, you are saying the states can do what they wish on matters of ballot access b/c how elections are conducted in their state is a matter of state law.

In this scenario, what is the enforcement mechanism...The Shoe on the Other Foot? That could take several election cycles to wear itself out (states denying access to ballot for whatever reason).

[Abdul Abulbul Amir]

Lawsuits have already been filed to keep Biden off the ballot. When "insurrection" is whatever a state court or Secretary of State says it is, that is the expected result.

[ReaderY]

I’m not sure of the argument being made with respect to Biden. I will say that under Anderson v. Calebrezze, the 14th Amendment somewhat cabins state’s authority, requiring among other things notice and fair procedures. That prevents people from giving “insurrection” whatever definition they want, because too creative a stretch of the term would violate vagueness and fair notice requirements.

Nonetheless, if they follow notice and fairness requirements, red states could if they want to establish rules that would result in removing Biden but not Trump from the ballot.

My position is that state legislatures are not limited to the options of appointing the electors themselves or letting the voters do it themselves. They can split the decision. They can say the people get ro choose, but only among candidates the legislatures finds acceptable.

My general principle is that if two courses of action are constitutional, then any compromise between them is also constitutional. Having a popular election subject to limits set by state law, splitting the decision between the legislature and the electors, is simply a compromise between having the legislature do the entire job of appointing the electors itself and having the peopls do the entire job. I think that straightforward constitutional principles make such a compromise a perfectly acceptable course of action.

[Alpheus W Drinkwater]

Yes! If some states disqualify Biden from the ballot legally and constitutionally, then he is off the ballot in those states. As I wrote before, when enough states don't want you to be President, you don't get to be President. That's how it's supposed to work.

[M L]

Maybe we should just let the state governors or legislatures elect the president. Would be simpler.

[Alpheus W Drinkwater]

It would be A LOT simpler. And constitutional.

[SRG2]

"This is a striking level of consensus among Attorneys General for Republican Presidents,"

I hardly think it is striking that Republican AGs think the likely Republican candidate for president remain on the ballot.

[Brett Bellmore]

Heck, it's not striking that presidential AGs might think Presidents not subject to Section 3, either.

[PaulS]

Letting Colorado and every state decide would result in no democrat or republican candidate being the same on every state’s ballot. In this case – for example – Trump could be the republican nominee in some states and Haley in others, Biden in some, Harris in others. There’s a good chance no one would get a Majority so it would be thrown to the house – same as if the house decided the disqualification. In this election Haley would probably win states that Trump would have no chance in – Harris (nor any other dem nominee I can think of) would have a hard time winning any Trump states. Having said that – it seems like a lousy way to run a democracy

[Ed Grinberg]

"it seems like a lousy way to run a democracy"
Is there anything Democrats haven't loused-up yet?

[Brett Bellmore]

A further consequence would be pretty dire for the Democrats: In a number of 'red' states, there were insurrectionary riots in 'blue' cities, and the local authorities either did nothing, or actively aided and encouraged them.

Gosh, looks like those local authorities are disqualified from holding office!

[Sarcastr0]

No. These are not analogous incidents. The right can claim that, but I expect it to have some issues when it's tested in actual court, versus before the sort of people who think BLM and Antifa are terrorists in service of the Democratic Party.

[Brett Bellmore]

Sarcastr0, are you somehow under the delusion that people who agree with you would be making that call?

[Sarcastr0]

Yes; I think you are an outlier. I also think out institutions are good enough at their jobs not to allow some theory like 'BLM Antifa Democrat nexus' to fly for long.

[Brett Bellmore]

OK, you are delusional enough for that. Thanks for confirming it.

Well, that explains why you're cool with minimal due process: You figure only people who agree with you are going to be playing the game. That's a pretty silly way to approach procedural safeguards.

[Sarcastr0]

Remember, *I want the Supreme Court to keep Trump on the ballots*

You can't seem to remember this, and keep getting it wrong. Because you just can't understand not being outcome-oriented.

Your comment here is the comment of someone who believes and embraces living in a world of men not laws.

You used to think only Democrats were evil legal realists. How far you've come this past year, moving towards full nihilism.

[Brett Bellmore]

Sure, you want Trump on the ballot. I believe that, the Democratic party is largely divided between those who want him off the ballot because they think he'd win, and on the ballot because they think he'd lose.

The tit for tat I'm concerned about isn't so much at the Presidential level, because generally you're only going to be able to pull off a pretextual disqualification at the Presidential level in a state the guy being disqualified was going to lose anyway. (Though Trump might lose 1 EC vote if he's disqualified in Maine, they're an unusual case.) So tit for tat disqualifications aren't going to alter the EC outcome.

It's for lower office, where local candidates of the state-wide minority party could face disqualification. Plenty of urban politicians in 'red' states or rural politicians in 'blue' states could be targeted.

[Sarcastr0]

You've once again speculated your way into a crisis that is not in evidence.

There was one guy kept off some local ballot for actively participating in Jan 06. I guess you think he should have had a trial with full criminal due process for that to happen, and since he has not it's only a matter of time before it happens everywhere?

I'd say wait until this starts actually happening before you spin up the Supremes. I know you have great faith in your crystal ball; I do not.
And even if you're right, that doesn't mean the only solution is your anti-textual precedent-breaking one.

[Sarcastr0]

I also have no problem taking the bet that courts are not going to go along with your 'BLM is the paramilitary arm of the Democratic Party' because that's a factual question, and you're factually wrong.

Similar stark 'so dumb it our judiciary goes there, we've got bigger problems' are 'Unfreezing the Iranian assets is treason' and 'Democratic politicians paying for protester bail is aid and comfort of terrorists.'

[Jason Cavanaugh]

I agree with you, and I say that despite knowing States like Texas and people like Ken Paxton exist.

State court systems can handle this issue. They are not reactionary partisan clowns.

Not to name names, but some people here still haven't read the CSC decision and still have no idea how much care was taken to arrive at a legitimate ruling based on the law and the facts.

[Stephen Lathrop]

PaulS, it is not a job for the Supreme Court to figure out the best way to run a democracy. More the opposite. It is the job of the Court to obey its members' oaths, and endorse the plain meaning of the Constitutional text which governs in this case—even if the Court thinks that text is a terrible way to run a democracy, and will lead to chaos.

[y81]

Actually, I think it is a very plausible argument that faced with an ambiguous statutory or Constitutional provision--and there quite a few here--the Court should decide it in a way that produces the most democratic outcome.

[Stephen Lathrop]

That is not even what you actually think. If it were, you would be sensitive to the inherent paradox in, ". . . in a way that produces the most democratic outcome." Except for ducking the case, no choice before SCOTUS avoids ignoring the Constitution to instead hand partisan advantage to one tribe or the other.

[Alpheus W Drinkwater]

There is good historical evidence that the founders expected this exact thing to happen. They expected that in most elections, no candidate would garner the majority of electoral votes and it would be sent to the House.

[F.D. Wolf]

How about providing a link to this brief?

[F.D. Wolf]

https://www.supremecourt.gov/DocketPDF/23/23-719/298122/20240118165315506_Trump%20v.%20Anderson-Amici%20Brief%201.18.24.pdf

[Brett Bellmore]

Here, Blackman provided it.

[Dan Schiavetta]

Trump was quite clear that he wanted to overthrow the government, on January 6 and in discussions with his officials in the weeks previous.

Last week in registering for the Illinois primary he refused to sign the standard pledge not to overthrow the government. It’s been signed for decades by every candidate. Explain this.

[Life of Brian]

This particular serving of deceptive-headline red meat is about two weeks old.

Here’s the really simple way to cut through the crap: how many of the Presidential candidates DID sign the (optional, not “standard”) pledge? I’ll even link to the original article for you:

A WBEZ/Chicago Sun-Times analysis of those petitions found Biden and Republican Florida Gov. Ron DeSantis both signed the oath — as did several lower-tier Trump acolytes in Illinois, but not Trump.

[Dan Schiavetta]

You're confirming what I said.

Why did Trump not sign? I suppose you will tell us it was trivial.

Just like when during the 2016 campaign, he refused to say that he would concede the election if he lost. Trivial?

[Life of Brian]

You’re confirming what I said.

No, I was contextualizing it and giving you the opportunity to realize you'd gullibly fallen for a word-game headline that confirmed your priors.

Two candidates -- Biden and DeSantis -- signed it. No other candidates did.

So either every other candidate -- Republican and Democrat alike -- are leaving the door open for insurrection, or this is a Big. Fat. Nothingburger.

Which do you (truly, not defensively) think is correct?

[Magister]

Candidates nobody expects to insurrect? Nothingburger whether they sign or not; those who signed were probably aiming to pressure, or to make it an issue for, candidates who have refused to commit to accepting the election results.

Given Trump's statements in 2016 and actions in 2020/2021? Rule of Goats.

[Dan Schiavetta]

https://www.youtube.com/watch?v=GQjM5qsVryw

[Life of Brian]

Yes, I know: you're suspicious, so you see your suspicious reflected in every garden-variety act in the world around you. When objective facts literally don't matter, there's no rational discussion to be had.

Since we're apparently now down to posting snarky YouTube videos, I'll put this one back up.

[Magister]

January 6th was a garden variety act? And not an objective fact? What objective fact do you think doesn't matter to me?

It's not a problem for any candidate except Trump, because of his past rhetoric and his past actions. Only a tiny one, but not one you can dismiss by comparison to other candidates.

[Life of Brian]

It's like a Godwin variant: every thread must eventually turn into a referendum on Jan. 6. Apparently just talking about the subject at hand -- who did and did not sign a play-pretty, optional, held-unconstitutional form -- just doesn't give you enough material to work with.

It’s not a problem for any candidate except Trump

Well, thanks for finally saying the quiet part out loud: Trump is held to a different standard than any other candidate. That's a you problem, not a him problem.

[Magister]

January 6th is a major element of what distinguishes Trump from other presidential candidates. If we talk about Nazi Germany then Hitler's probably going to come up. Section three of the Fourteenth Amendment would continue to languish in obscurity without Trump and January 6th.

Trump is held to a different standard because he's an insurrectionist, and awful as many presidential candidates are, he's really the only one. That's a Trump problem, and only a Trump problem.

I am completely indifferent to the Illinois pledge; I am disputing your false dichotomy of either nothingburger or very bad for every non-signing candidate; one of these non-signing candidates is not like the others.

(I should add that I have consistently maintained that Trump should be on the ballot if Republicans choose him. There is a risk that he might win with terrible consequences for this country, but if Americans are collectively that stupid or can be cheated to that extent, then I would rather know right away that the Constitution is a suicide pact.)

[Life of Brian]

"If only he would stop making us hit him!"

[Magister]

Criminal actions catching up with him.

[Bruce Hayden]

What terrible consequences? Closing the border? Requiring that everyone has a Real ID to fly, and not just itizens and legal aliens (exempting illegals)? Getting DEI out of the govt, and esp the military? Quit wasting $billions$ on idiotic Climate Change fighting measures (including wasting money on solar, wind, EVs, charging stations, high speed trains from nowhere to nowhere, removing limitations on drilling and nuclear, etc)? LE agencies spending their resources fighting crimes, instead of investigating peaceful Christians and 2020 election septics? Hiring cabinet members at least somewhat on competence, instead of sexual orientation or wearing the clothing of the opposite sex? Putting our military needs ahead of Ukraine’s (since part of why our readiness was sacrificed for them were the bribes the Bidens took from them)? Keeping (illegal) cocaine out of the private areas of the WH? Etc.

[Brett Bellmore]

Here's the oath.

Heck, I wouldn't sign it either: I'm not a citizen of Illinois!

[Sarcastr0]

He refused to sign, LoB. That's an affirmative act.

You don't think that's a signal? Trump supporters been talkign about getting violent since 2016; some tried it in 2020, and Trump is signaling he's open to trying again, if he loses.

This is not a risk you should defend. Of course if violence does ensue, I'd guess you would say it's called for.

[Life of Brian]

He refused to sign, LoB. That’s an affirmative act.

Dear god you’re tiresome. You “refuse” when someone demands/asks first. Choosing not to file a voluntary form — as all other candidates except for Biden/DeSantis also did --- is not that.

[Dan Schiavetta]

So why did Trump not sign?

[Brett Bellmore]

1. The oath is optional, though that doesn't put it strongly enough. You might as well ask if he's paid his poll tax. Most candidates don't bother signing it.

2. The oath says, "I, ___do swear (or affirm) that I am a citizen of the united states and the state of lllinois", and Trump isn't a citizen of Illinois, and wasn't willing to falsely swear that he was?

3. He also doesn't swear an oath that he's stopped beating his wife.

[Dan Schiavetta]

He still refuses to accept the 2020 results and has gotten two thirds of his party to agree with him.

He’s called what happened on January 6 “a beautiful day” and says if elected he will pardon those convicted of their violent acts that day.

I can’t believe I have to explain this.

And somehow you don’t think it’s suspicious that he hasn’t signed that oath. If it was someone else, maybe it would be no big deal. But with the above history, with Trump it’s a clear signal as to what will happen if loses again.

[Life of Brian]

So now that the "Trump was the ONLY ONE WHO REFUSED" fairy tale fell flat, what you're down to is that there should be a special rule just for Trump, where we should attach different significance to an act by him as opposed to any other candidate. That's of course a choice you yourself can make, but it's certainly not an objectively rational one.

This is, of course, fully apart and aside from the other point I mentioned when this first came up a couple of weeks ago: the idea that Illinois waving around a piece of paper and saying "but, but YOU PWOMISED" would materially affect anything that might be in the process of going sideways is sadly comical.

[Dan Schiavetta]

You’re getting ridiculous now.

No, the sky is not green.

[Life of Brian]

Ridiculous? Complete the above picture. What happens next?

If Trump really had the nefarious designs your irrational paranoia is screaming at you, he would have just signed the damn thing. Try to step back and actually think about it for 10 seconds.

[Nige]

Why? He's not exactly trying to hide his intentions. He's not being secretive. He's playing to a crowd that wants him to never accept a result where he loses and to engage in fraud and conspiracy and fire up his supporters to commit acts of violence.

[Brett Bellmore]

They just want him to say that he's not beating his wife, at which time they'll attempt some gotcha based on the claim that he is.

[Nige]

Except he's been boasting about all the wife-beating he's been doing and promising to do more.

[Brett Bellmore]

You don't have to explain any of that to me. My position is that you're asking him to sign an oath that he's stopped beating his wife. And there's no reason that he should.

[Nige]

No oath would stop him beating his wife anyway.

[Sarcastr0]

It's a poll tax to say you're not going to do an insurrection.

Hmmm.....

This feels more like just reflexive defense of Trump than apologizing for future violence.

Same diff in the end, though.

[Life of Brian]

The oath is optional, though that doesn’t put it strongly enough. You might as well ask if he’s paid his poll tax. Most candidates don’t bother signing it.

And just for the sake of completeness, the reason it's optional is because requiring it was held unconstitutional over 50 years ago.

[Sarcastr0]

You're playing dumb.

Peopls cared, and asked him about it; he refused. That is not the same as a buncha also-rans that weren't asked.

No, this is not a legal requirement. That does not mean one cannot draw conclusions from his refusal.

You really seem like you're covering for Trump leaving the door open to political violence if he loses.

[Life of Brian]

And you really seem like you're stuffing outrageous words in my mouth -- as usual -- because the ones I'm actually saying are plain, straightforward, and incontestable, yet you feel compelled to attack so you just make nonsense up and attack that.

I'd say you're better than that, but you're really starting to make me wonder.

[Sarcastr0]

Everyone here, even those agreeing with you, can see what you're defending.

[Life of Brian]

To the extent I'm "defending" anything (I'd go with "calmly and consistently presenting"), it's that pesky thing called reality.

Try it sometime -- it won't hurt nearly as much as the overwrought campfire stories from your echo chamber might lead you to fear.

[Roger S]

Trump was the President. He was not trying to overthrow anything. Certainly not himself. He was merely trying to make sure that the ballots were fairly and legally counted. Unfortunately they were not.

[Nige]

The outgoing president, who claimed the election was fraudulent without a scrap of evidence.

[Bruce Hayden]

Quit lying. There was plenty of evidence. Election officials in 5 states stopped counting at about the same time, threw the Republican election judges out, then restarted counting, at which time Biden picked up hundreds of thousands of votes in each of these cities, swinging them to him. Video of that. Video of boxes, trays, etc being rolled in, from who knows where, where the ballots were not properly packaged or checked in. Of video of a mother/daughter in Atlanta running the same batches of ballets through counting machines, time after time. Etc. And later, a lot of dead people or people who had moved away long ago, voting, or people ostensibly having voted multiple times (sometimes, at least, it was because someone else had voted in their name). The problem wasn’t that there wasn’t a lot of evidence. There was. The problem was that in the time available, they weren’t able to properly present it to a court that could change the election results. And after the Electors met, and elected Biden, it was moot.

[Sarcastr0]

All of this evidence was found to be nonsense. The mother/daughter? That was a paper jam.
The dead people voting? No evidence of that. Some years of birth had some jankiness, but the people were living not actually 400 years old.

It's all like this. You remember stories reported as too good to check in 2020, and have done nothing to check if they've been addressed since then.

Your evidence didn't make it to court because there is no evidence. Never was.

[Life of Brian]

That was a paper jam

"Wardrobe malfunction"

[Roger S]

That's right, plenty of evidence. Furthermore, there were many millions of votes that were not processed in any verifiable manner. There is no way to know how those votes should have been counted.

[Jason Cavanaugh]

"Quit lying."

Oh, the irony!

[David Nieporent]

Literally none of that ever happened. And they did present these loony conspiracy theories to multiple courts, who rejected them for lacking any shred of evidence.

[Bruce Hayden]

Not in full evidentiary hearings, where he was accorded full discovery and could call witnesses. Most of the cases were dismissed on prudential reasons, instead of on the merits. Even the US Supreme Ct, that dismissed the case by several states on Standing.

[Bwaaah]

Despite your skepticism, Trump failed to produce ANY compelling evidence of significant manipulation of the 2020 election. Courtroom by courtroom, he failed to show EVIDENCE of the stuff of which you speak, despite having had virtually unlimited legal resources at his disposal. (Videos? You say there are videos? Did the courts not let you enter your videos into the record? Did I miss something, or did you just pee on my leg?)

I'm not saying you are wrong. I'm just saying that stories such as yours haven't yet stood up when examined in daylight (such as in a courtroom).

Do the world a favor and shut up about 2020 being a stolen election. The time to put up passed, and Trump had NOTHING. It's just a nasty made up story about your political adversaries. Get over it.

[Nige]

The 2020 lies will be the foundation all the 2024 lies are built on.

[Bruce Hayden]

Cite the cases where he had the chance to develop a full record in court?

[Nige]

The reason none of that was presented in court was because it all turned out to be complete bullshit. I say 'turned out' but as each bit of 'evidence' surfaced, it was immediately obvious that they were bullshit.

[Bruce Hayden]

I don’t think that you followed this very closely. There has been plenty of evidence that substantial numbers of ballots were counted with fraudulent, or missing identification, with no chain of custody, etc. Just last week we found out that an expert had proven, back in 2021, that Dominion electronic voting and counting machines could easily be hacked. The record had been sealed until just now. What, of course, couldn’t be proven, was that the millions of illegal (because there was no chain of custody for the ballots, voters were not qualified to vote there, signatures weren’t properly verified, illegal ballot collecting was utilized, counting was done w/o Republican poll watchers, etc) votes cast went to Biden - because once intermixed with other (legal) ballots, which were legal and which weren’t, couldn’t be identified.

[Reallynotbob]

I don't really understand the "Congress must act" argument. The amendment expressly commands Congress to act if it wants to REMOVE the disability. That's dispositive textual evidence that the amendment imposed the disability without further action required.

The only available textual arguments here are: (1) it wasn't an insurrection; and (2) the Presidency wasn't one of the offices meant by the signers. As to (1) I think the Colorado Court did a good job creating a defensible appellate record. As to (2) I just don't buy it.

Also, I haven't seen an analysis here or elsewhere of what the adopting State legislatures thought they were signing up for when they ratified the 14th. Did those legislatures think the president was an officer? Bet they did....

[ThePublius]

So, someone can be declared an insurrectionist by a court, without be charged, tried, and convicted? I guess then, by extension, someone can be declared to have committed high crimes and misdemeanors and stricken from the ballot, like, I don't know, Joe Biden?

[Reallynotbob]

Well, yes, no, no, and yes.

The amendment permits a state court to declare someone ineligible for US office--i.e. "declared an insurrectionist." Even the amicus brief doesn't impugn the states' respective powers to enforce. The amicis' key argument is that the adopters expected Congress to pass enabling legislation. It is precisely because federal legislation is absent that the states have the strongest claim to enforce 14/3. Were Congress to pass appropriate enabling legislation that occupied the field, perhaps (!) it could preempt states' abilities to enforce it. (Although the states would still have a strong challenge, I think.) And while 18 USC 2383 does create a pathway to disqualification, it is neither exclusive of other non-criminal procedures, nor even coextensive with 14/3.

In this case Trump had ample due process in the Colorado courts, so "charged" and "tried" and "convicted" are moot. (And "convicted" would apply only if Colorado were prosecuting him criminally.)

[Brett Bellmore]

"Were Congress to pass appropriate enabling legislation that occupied the field, perhaps (!) it could preempt states’ abilities to enforce it."

They did. Both a civil action in federal court, and a criminal statute. The civil action got repealed in '48.

[David Nieporent]

Find one person anywhere stating that this statute was an implementation of A14S3.

[Bruce Hayden]

Actually, it is 14A § 5 that provides authority/power for Congress to enact legislation to the various sections (including § 3) of 14A. § 3 merely provides that Congress can remove disabilities.

The argument being made by Republican members of Congress (in the Cruze Brief) is that § 5 gives Congress plenary authority to enact legislation to enforce the 14A. They currently have not chosen to do so with § 3. Their view is that states attempting to do so interfere with their plenary power to do so (or choose not to).

[Nige]

Why not? An insurrection is a thing you do, and the doing makes you an insurrectionist, not a court finding. We all saw what he did and what he and his supporters tried to do. You can declare someone committed anything you like, but if there's no actual sign or record of them doing it, you're just lying.

[Life of Brian]

An insurrection is a thing you do, and the doing makes you an insurrectionist, not a court finding.

In NigeWorld, ALL laws are self-executing! Just think of the money we can save not having to fund pesky courts anymore, and just get on with the beheadings all the "right" people agree are well-deserved....

[Nige]

In LoBLand nobody is allowed to form an opnion until a court has made a finding, and then everyones' opinions must agree with the court's. Like civil findings about sexual assault, for example.

[Alpheus W Drinkwater]

I completely agree, the arguments that the section isn't self-executing and the section doesn't apply to the Presidency are frivolous / borderline frivolous. Other arguments are much stronger.

[ReaderY]

Trump’s brief makes three arguments on a state’s authority to set qualifications.

First, Trump argues (or rather, simply assumes) that Term Limits apples to Presidential elwctions. I thing Chiafolo put this argument to rest. States can not only require that presidential electors pledge to support only a specific candidate, they can prosecute then for violating that pledge. the Hamilton Electors argued that Term Lkmits let them vote for any qualified candidate they wanted and states couldn’t impose additional qualifications, but they didn’t get the support of a single Justice. So much for the claim that Term Limits applies to Presidential elections.

So far as Presidential elector appointments are comcerned, the Constitution itself makes clear that appointments are not elections. Comgress gets selected by the people as a matter of right. But presidents get selected by electors appointed in the manner state legislatures direct. It’s very much the business of state legislatures to provide direction anout what candidates the state considers acceptable. That’s what giving plenary power to state legislatures means.

His second arguement is a variation of the imdependent state legislature theory rejected in Moore v. Harper, basically that state courts cannot interpret state statutes. Moore v. Harper rejected this approach as applied to the constitution’s allocation of power to state legislatures to create congressional districts. I think the samereasoning applies to their power to direct how presidential electors get appointed. State courts get to interpret state law. Their interpretations, however, can’t be completely arbitrary.

The third argument is that the Colorado Suppreme Court misinterpreted the Colorado election code. I think that federal review here exists, but is quite deferential, and is basically only for violation of 14th Amendment fair notice. Did the Colorado courts make up something out of thin air that completely contravened what the legislature obviously meant, or caught candidates and voters completely by surprise? I don’t think that’s the case here. It seems to me that candidates shouldn’t be surprised that a state whose election code contains general language about candidates needing to meet constitutional qualifications would also consider Section 3 to be part of those qualifications. Nor is Colorado’s interpretation of what an “insurrection” is a completely implausible or unfair one.

[Imreasonable]

I seriously question the 'always independent" representation of the authors of this article. I am betting if Obama did what Trump did, they wouldn't be arguing he was not an "officer" or the act was not self enacting (the rest of the 14th amendment has been implemented without enacting legislation, for Pete's sake).

[not guilty]

Donald Trump's principal brief does not explain how the commander-in-chief of the armed forces is somehow not an "office, civil or military, under the United States." https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf

I haven't read many of the amicus briefs. Does any brief supporting Trump address this point?

[Rev. Arthur L. Kirkland]

In his brief, Jonathan Mitchell kisses the ass (and more) of "President Trump" often enough to bolster my hunch: Closeted gay.

Right-wing gays who take aggressively bigoted positions because they think it will protect them in conservative circles are sad, lousy people. As are the conservative gay-bashers who create such an environment.

Mitchell was bound to be disappointed, though, when he learned that Ted "Call My Wife A Pig One More Time And I'll . . . I'll . . . I'll Nuzzle Your Scrotum" Cruz already had dibs on the good parts.

[Brett Bellmore]

No, actually I think the South got what they had coming, I just wish that the North had dotted all the 'i's and crossed all the 't's, instead of cutting a lot of constitutional corners. Let the bastards go, reconstitute the Federation, and then declare war on the Confederacy and conquer them, without all the distortions necessary to pretend they hadn't really stopped being part of the federation.

But I don't want to see another civil war in my lifetime, and trying to treat half the country like they just lost a civil war is a great way to get one.

"In what other areas should original understanding and historical practice be overridden by “context?”"

Sure, here's an example: The 14th amendment was ratified at gun point. I don't mean that metaphorically, I mean it literally: The South was under military occupation at the time, the Union literally had soldiers in legislative chambers when they were voting on ratification in the South.

That's a Civil war precedent. Want to see it used next year after Trump is elected? I'm sure we could get some nifty amendments that way.

[Brett Bellmore]

It's not really controversial among historians, as far as I know. It's just not discussed a lot by constitutional scholars because it's kind of embarrassing at this remove. Like bringing up the fact that Rhode Island only ratified the Constitution because they were threatened with a naval blockade. Polite constitutional scholars pretend everything was done by the book, and ignore things like that.

See, for instance, this discussion: UNORTHODOX AND PARADOX: REVISITING THE RATIFICATION OF THE FOURTEENTH AMENDMENT

[Noscitur a sociis]

That article does not appear to claim that “ the Union literally had soldiers in legislative chambers when they were voting on ratification in the South.”

[M L]

The article does however explain:

"It seems quite clear that the Fourteenth Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment. Furthermore, Article V is the only way the Constitution can be amended. . .
So, if the Constitution can only be amended through Article V, and
the Fourteenth Amendment was not ratified properly under that article, what is its status? It seems as though this question can only be answered in one way."

[Brett Bellmore]

I do recall seeing a reference to troops on the legislative floors years ago, but google bard says it can't find any proof of them actually being IN the chambers, just nearby.

Given a 65 year old brain I might be remembering wrong, but there's not really any question that the ratification wasn't voluntary.

[Dr. Ed 2]

Guns were far MORE lethal back then -- we have trauma centers now.

Lincoln and Garfield would have survived, while Reagan would have died in 1960. GSWs are not inherently fatal anymore.

[M L]

The 14th amendment was never constitutionally ratified. What should be done about that? I have no idea, maybe nothing.