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Fighting the Meaning of Section Three
Preparing responses to some objections
Five and a half months ago, in August 2023, our article on Section Three of the Fourteenth Amendment, The Sweep and Force of Section Three, was accepted for publication by the University of Pennsylvania Law Review.
The article's core thesis – that Section Three's disqualification of insurrectionists from office is legally operative, self-executing, sweeping in scope, and likely disqualifies numerous participants in the efforts to overturn the 2020 presidential election – obviously has enormous implications for our national political life today. Among other important consequences, it means that former president Donald J. Trump, who is running for president again in 2024, is constitutionally disqualified from holding that or any other covered office, unless and until two-thirds of both houses of Congress vote to remove his disqualification.
Shortly after being accepted for publication, we posted the draft manuscript of the article on the Social Sciences Research Network (SSRN). The article (and its thesis) immediately attracted wide interest: For an academic article, The Sweep and Force of Section Three has provoked an unusual amount of interest and attention. It has been widely discussed on air, in print, online, and in the academy. And it has been widely cited in the current litigation about the enforcement of Section Three. As readers surely know, the Colorado Supreme Court held that Mr. Trump is indeed disqualified by Section Three from future office as a matter of federal constitutional law; and that this renders him ineligible for inclusion on the state primary ballot for election to that office as a matter of Colorado state law. The U.S. Supreme Court has granted certiorari to review that decision in what is sure to be one of its most important cases of the term.
For the most part, we have been content to let the analysis and arguments of The Sweep and Force of Section Three speak for themselves and have not participated in the subsequent public debate and litigation over its thesis. The manuscript itself is quite detailed – it runs 126 pages in its pre-publication form – and frankly it anticipates many of the objections that have been raised against its legal conclusions. Up until now, we have not elsewhere responded to these objections in print, at least not systematically.
But the occasion of the Colorado Supreme Court's decision in Anderson v. Griswold, and the Supreme Court's pending review of that decision in Trump v. Anderson, provides, we think, an appropriate occasion for us to address some of the arguments that have been made about Section Three. As noted, we discuss some, even many, of these points in our original article. The article is now in the final stages of editing with the excellent staff of the University of Pennsylvania Law Review. In the editing process, we decided against burdening the article's discussion with many responses to specific objections that have been made to its thesis, as those objections have arisen in public debate over the last four months, for two reasons: First, the version from last fall, as edited, largely stands on its own and has already been read by many in that form, which would makes it somewhat awkward (and perhaps irritating to some readers) to revise that text significantly to respond to assertions or critiques offered since September. Second, and relatedly, responding on the fly in the main text to objections as they arose would have made the article something of a moving target, and perhaps further delayed publication.
We adhere to all the points we made in that manuscript and have changed little. Nothing in the ensuing commentary, discussion, and litigation has caused us to revise our core propositions:
- that, as a matter of the original public meaning of the text, the structure, and the history of the Constitution – our methodology for interpreting and applying the Constitution – Section Three of the Fourteenth Amendment remains legally operative and in force;
- that it directly enacts a specific and discernable set of constitutional rules of disqualification of prospective officeholders and requires no further action or legislation in order to have immediate and binding legal effect;
- that the rules enacted by Section Three are binding on all officials of government whose duties are affected by those rules (including state and federal officials, legislatures, and state and federal courts);
- that Section Three supersedes or qualifies (or satisfies) prior constitutional rules to the extent of any conflict between them;
- that Section Three enacts a set of sweeping but readily ascertainable set of rules of constitutional disqualification from office, defined by the meaning of specific constitutional language that should be understood and applied in its original sense, in context;
- that those rules apply to persons who have held or who now seek the office of President of the United States;
- and that the operation of those rules renders Donald Trump constitutionally ineligible for the office of President or any other.
Because of the fast timetable for the Supreme Court's consideration of Trump v. Anderson, we have chosen to address in a short series of blog post/essays a few points in response to the ongoing Section Three debate – points that we might otherwise have reserved for a later law review essay. We will address certain discrete arguments that have been raised, elaborating where necessary on points we make in The Sweep and Force of Section Three, responding to certain discrete points of contention, clarifying points of possible confusion, and parrying objections we could not fully have anticipated but that we think badly flawed (or simply very odd – which might in part explain why we did not anticipate them). We will also address a few general points that have arisen in connection with the U.S. Supreme Court's consideration of the issues presented in the Trump v. Anderson case. Finally, we will point out minor respects in which we have modified, or qualified, positions taken in our article, The Sweep and Force of Section Three, in the course of editing and consideration of further comments. We may collect and revise them into a more final form when they are complete.
Our goal is for each blog post/essay to address a single specific point or theme unburdened by extensive footnotes. For example, we will soon discuss the objection that applying Section Three would be "undemocratic." Another may take on the argument, offered by some, that we should decline to enforce and apply Section Three because complying with the Constitution in this regard would be politically disruptive and perhaps dangerous. Another may examine arguments that Section Three issues are "political questions" that courts should refuse to decide as a matter of constitutional law. Another may look at the way "constitutional legislative history" has been used, and in some instances severely misused, in debating the meaning of Section Three. Another may examine further the assertion (already addressed in our main article) that Section Three does not apply to Donald Trump because he was not, as President, "an officer of the United States" and because the Presidency, the office he seeks again, is not an "office under the United States." Another may examine the suggestion that even if Trump is constitutionally disqualified from being President of the United States, that does not mean he is constitutionally ineligible to be elected as President of the United States. And so on. (We make no promises at this point.)
This introductory essay reflects a broader theme to the anticipated series, reflected in the title of this post: "Fighting the Meaning of Section Three." While we do not in any way doubt the good faith of our many critics, it seems to us that many of the objections and arguments raised against our thesis do not join issue with the legal arguments from text, history and structure. Some are political objections to complying with and carrying into effect the constitutional rules set forth in Section Three, even assuming our analysis is correct. (Or, what is much the same thing, they use burdens of proof or presumptions to override what would otherwise be the correct understanding of Section Three, for essentially political reasons.) Such arguments resist our claims about the meaning of Section Three, but they do not refute it. Others have sought to develop escape hatches, or loopholes, or (in one common expression) "off ramps" to avoid the legal conclusions set forth in our article. Still other objections wrestle forthrightly with the legal analysis of our article on conventional legal terms, but they are ultimately unavailing. Each of these classes of objections is "fighting" the meaning of Section Three in a different sense, but all of them are wrong.
As Gerard Magliocca recently observed, judges often use the phrase "the opinion won't write," to "describe the following situation: Their instinct is to decide a case in a particular way. But when they sit down to write the opinion, they find that they can't logically reach that result. This forces them to reconsider their initial conclusion." He further observes: "In a nutshell, this is what is happening with the Trump case. The instincts go one way and the law goes the other way. The more you look at the legal arguments, the less sure you are that Trump is eligible." This, we think, is the same process we are witnessing with those who are fighting the meaning of Section Three. At some point, it is time to conclude that one is fighting for the wrong side.
Enough said for now. In the next essay, we begin with the question of whether applying Section Three's disqualification to disqualify a presidential candidate is "undemocratic" in any constitutionally relevant sense.
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So if Section 3 is broad in scope, and self-executing, does this mean the military can overthrow Brandon from office for aiding and comforting an enemy of the United States?
That username tracks.
He makes a great point.
Because, if Section 3 is self-executing, then the military would be duty bound to overthrow a President they deem disqualified, because they took an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic, which supersedes laws against mutiny.
Vivek Ramaswamy pointed this out.
https://www.supremecourt.gov/DocketPDF/23/23-719/295491/20240111125114383_23-719%20Amicus%20Brief%20Ramaswamy%20Supp.%20Pet..pdf
“Now imagine that political opponents of President Carter in 1980 or President Reagan in 1984 had filed challenges to their eligibility under Section 3, predicated upon the notion that each man had deliberately pursued a policy of delivering dangerous weapons to a group of dangerous men who intended— once they had gained the necessary capability—to attack United States government and civilian targets (which, tragically, did in fact come to pass). In short, the complaint would allege that these administrations had intentionally “given aid or comfort to the enemies” of the United States, with deadly consequences. U. S. Const., Amdt. 14, §3. Although the long-term effects of this bipartisan policy may not have been clear at the time (and were not intended by either Reagan or Carter), the inherent risks are obvious in hindsight.”
Could the military have overthrown Carter or Reagan back then? After all, Section 3 is superior to laws against mutiny.
An example I would add is the CIA-backed assassination of South Vietnamese President Ngo Dinh Diem. This had the effect of destabilizing the South Vietnamese government, which clearly aided and comforted the Viet Cong and the North Vietnamese.
Was it right for Lee Harvey Oswald to kill JFK? After all if Section 3 is self-executing, then Oswald had as much authority to execute Section 3 as the military does and as that Maine secretary of state does.
So, if a Marine private, believing earnestly that Section 3 is self-executing, attempts to depose FJB, and is apprehended and court-martialed for mutiny, are Baude and Paulsen willing to represent the private pro bono?
I think you may need to review what “self-executing” means.
“Self-executing” means anyone can go to court to get a court order; it does not give anyone a “licence to kill”.
As I have replied to you at least twice, that is not what is meant by something in the constitution being “self-executing.” You are arguing persuasively against the straw man you have created.
If as you imagine that a criminal conviction under 18 USC 2383 is required then does 18 USC 2383 apply to the president?
You mean, like Trump aided Putin?
Was Putin an enemy?
Not to Trump.
I was unaware the U.S. was fighting a war with Russia.
As a matter of fact, did not someone say, “The 1980’s called, they want their foreign policy bsck”?
Are you unaware of countries not fighting wars but still having antagonistic relations? Or is the US best pals with, say, Iran, for example?
In what way did he “aid” Putin?
Your conjecture is formed around a lack of understanding of what section 3 outlines, and what self-executing means. If you bothered to read even the opening abstract of the authors’ thesis, which was linked at the beginning of the article, or even the short paragraph that is section 3, perhaps you would’ve presented an actual argument worth debating.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
https://constitution.congress.gov/browse/amendment-14/section-3/
How many fingers…
” He further observes: “In a nutshell, this is what is happening with the Trump case. The instincts go one way and the law goes the other way.”
HIS instincts. That short essay was an exercise in projection.
You realize that the “instinct” here is that Trump isn’t disqualified, right?
Yeah, yeah, you’re right. I got that backwards.
Still a mistake to think they’ll find writing that opinion even a little hard. His own conviction of Trump’s guilt is coloring his judgement here, I think.
The real issue here isn’t whether or not Trump is eligible. It’s how you go about determining if he’s eligible. I don’t think the Court is even going to touch the question if his eligibility, they’re going to focus on process, not conclusion. And will have no trouble arriving at the conclusion that the wrong process was employed.
All of the arguments that Trump caused the Insurrection®™ boil down to this.
Trump promoted Badthink®™, and because some people rioted on the basis of Badthink®™, that was an Insurrection®™ and Trump incited it.
Some may argue this applies to Patrice Cullors, Nikole Hannah-Jones, Charles M. Blow, and many others. After all, they chanted, “Hands Up, Don’t Shoot”. They claimed that the police habitually hunt down and gun down unarmed Black men. They claimed that the cirminal justice system is systemically racist. And some people rioted on this basis.
It would apply if this principle was enforced in an even-handed manner. But the same side that says that Trump was promoting Badthink®™ also believe that Cullors, Jones, and Blow were promoting Goodthink®™, and those who riioted based on this Goodthink®™ were not engaging in Insurrection®™, but fighting White Supremacy®™
OK, fine, but you’re wrong. Reason escapes anyone who pushes A14 S3 in this manner, for the meaning is exclusively in past. If anyone, anyone other than Trump where in question, there would never have been a single word written about A14 S3 whatsoever. No, not a single paper written, ever.
You folks know this to be true, and yet you persist in a delusion, nay, a degeneracy in thinking. Degeneracy of legal minds is too prevalent these days as is seen in the many post 2016 machinations attacking the country’s executive and the many supporters of Trump.
If anything, you and your cadre of devolved legal nabobs, who by majority, most likely, are of too recent of citizenship in this country to have absorbed, fully, the meaning of our system, and its attendant truths.
While you may have crafted something which may sound worthy of publication, please, for your sake, consider your errors first, and your willingly participation in your very own sort of Insurrection. Indeed, such is more likely as to be true, as to not be false !
Quit before the right side of history takes its place leaving you, et al, in contempt and nonetheless degenerate.
Nonsense. Any other oath-taker who had evidently engaged in insurrection would also be ensnared by Section 3.
Only Trump (and his cult) think he’s that special.
This would carry more weight if people hadn’t been engaged in a neverending series of initiatives starting long before this, giving lie to your supposed disinterested concern for rule of law, to use the power of government to hurt him, and several times, remove him, and, several times, jail him, and, finally, use the power of the tyrant kings to expropriate a political opponent’s estate.
You are a historical level stain on this great nation, a threat to democracy far greater than a 4 hour tantrum on January 6.
Dude posting on the Internet is a ‘historical level stain on this great nation.’
Take off the drama pants, it’s not working very well.
(Extended, derisive snorting noises)
cult /kŭlt/
noun
1.A religion or religious sect generally considered to be extremist or false, with its followers often living in an unconventional manner under the guidance of an authoritarian, charismatic leader.
2.The followers of such a religion or sect.
3.A system or community of religious worship and ritual.
The American Heritage® Dictionary of the English Language, 5th Edition • More at Wordnik
Quite a “cult” with 74 million followers in the 2020 election.
If the cult consists of the Big Lie adherents who are fine with the January 6th insurrection, then you can’t count as members all of the 74 million voters in 2020 (at least some of whom voted for Trump as the incumbent, or from identity as Republicans, or as the lesser of two evils).
Regardless of numbers, definition 1 seems to fit; extremist (down with a violent insurrection) and false (denying that Trump lost); authoritarian, charismatic leader (dictator on day one, can shoot someone on Fifth Avenue without losing votes).
From Oxford: “a misplaced or excessive admiration for a particular person or thing.
‘a cult of personality surrounding the leaders.'”
Not that I or anyone but you needs a dictionary to understand the word as used. Literacy is fundamental, kids, or you’ll end up a vacuous troll like Bumble, spending 16 hours a day in a blog comment section blathering about nonsense.
No, Trump IS different. He’s the first President the opposition party had resolved to impeach before he even took office.
Politico, April 2016: “Could Trump Be Impeached Shortly After He Takes Office?”
He had done absolutely nothing at that point to merit impeachment. He wasn’t even the nominee yet! And they were already talking about it.
Washington Post Jan 20th, 2017: “The campaign to impeach President Trump has begun”
January 20th, the day he was sworn in. What had he done to impeach him over?
By early February, polls showed a majority of Democrats favoring impeaching Trump, and they couldn’t even identify a charge to impeach him over! They just wanted to impeach him, that was enough.
So, towards the end of his term they finally worked themselves up to actually doing it. Twice. And it failed both times because they didn’t have a case that persuaded anybody who didn’t already hate him.
I don’t think this was just about Trump, though the fact that he wasn’t a member of the establishment certainly played a role. I think Democrats have just lost their grip on the idea that people who aren’t Democrats are actually legitimately entitled to win elections and exercise power. Trump was illegitimate because he wasn’t Hillary Clinton, not because of anything he’d done.
Because, never forget, they resolved to go after him before he had actually done anything.
Bellmore, do you still acknowledge that one of the things Trump actually did was a coup attempt?
In order to “still acknowledge”, I’d have to have agreed with that previously, wouldn’t I? You mean “nonetheless”, I think?
No, I don’t think there was a coup attempt. The word “coup” has a bloody meaning, and in this case it’s literally a bloody meaning: “a sudden, violent, and unlawful seizure of power from a government.”
Trump was engaged in something completely different, a form of what we call “lawfare”. He was attempting to use political pressure to get people engaged in a ministerial role, counting the EC votes, to instead exercise discretion in his favor.
This was, I think, an illegitimate thing to do. But it was illegitimate in the same way Gore’s “keep recounting until I win, then stop” strategy in Florida 2000 was illegitimate. Politically, even morally, illegitimate, but working within the superficial forms of the law.
Not “March the army in and declare yourself President for life” illegitimate.
As he was using political pressure on people who had the very real option of refusing to respond to it, actual physical force was the very last thing he needed. In fact, the Capitol break in ENDED his scheme, it didn’t advance it!
So, no, no coup.
Gore again, huh. I guess you relish public ridicule?
But it was illegitimate in the same way Gore’s…
Let’s skip to the end this time. You’ve never identified a single action by Gore that you find illegitimate. What specific decision or action did he take that was illegitimate, which a legitimate candidate would’ve done differently?
The word “coup” has a bloody meaning, . . .
Bellmore, maybe it shades that way. There must be some reason, “bloodless coup,” is such common coinage.
But consider the death toll—and hundreds if not thousands of injuries—associated with the Capitol attack. It certainly was a violent attempt to seize power, and it certainly was not a, “bloodless coup.”
The glove fits
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.
I assure you that I am completely astonished that your sources don’t actually support any of your conclusions.
Why, because you see the same thing for every President?
The Politico article:
The Washington Post article:
He promised to do impeachable things, and people talked about impeaching him. He promptly did impeachable things (obstruction of justice found repeatedly by Mueller) and continued with the subjects of his two actual impeachments. Show us another presidential candidate who posed as his own publicist and who ran a scam as big as Trump University and who refused to commit to accepting an election loss, and maybe then you can argue that Trump has been treated differently.
Brett blathers:
You should refresh your understanding of Betteridge’s law of headlines.
‘He’s the first President the opposition party had resolved to impeach before he even took office.’
How do you know he’s the first?
‘Determined to do it’ and ‘finally worked themselves up to doing it’ are contradictions that can only be resolved in your head.
Fair enough.
“He’s the first President we have evidence of the opposition party resolving to impeach him before he took office.”
“‘Determined to do it’ and ‘finally worked themselves up to doing it’ are contradictions that can only be resolved in your head.”
Oh, you never decided to do something, and had to work your self up to doing it anyway? You should try the showers at McClain state park in Michigan. Fed straight from Lake Superior.
I’m not a supposedly omni-powerful political party that is at once ruthless and cunning as well as diffident and cautious, depending on whichever your narrative needs.
If “one guy wrote something online” constitutes “the opposition party resolving to do it” then Trump isn’t even the first one in the 2016 election! NR’s Andrew McCarthy argued for Hillary’s impeachment before she was elected.
Now, you need to parse that carefully. I don’t mean that before Hillary was elected, McCarthy was making the argument that she could be impeached. I mean that McCarthy was arguing that the GOP should just go ahead and conduct the impeachment before she even took office. A preemptive impeachment.
Yeah, like it was one guy.
You are lying.
You picked a nut, and you say it’s the Democratic party. That is a lie. When called on it, you shrug.
You didn’t used to lie.
You’re really fond of saying I’m lying, aren’t you? Usually after I’ve actually provided evidence. Of course, neither of those links had to do with just one person advocating it.
Februrary 7th, 2017: “More Than 650,000 People Have Joined a Campaign to Impeach President Trump” Oh, wow, you’re only off by a factor of 3/4 of a million. Oopsie.
February 3rd, 2017: “Poll: 40 percent of American voters want President Trump impeached” (Spoiler: 72% of Democrats, 72% of Greens, 3% of Republicans)
Yes, Trump is unique in that Democrats began talking about impeaching him before he took office, and started organizing to do it before he was 2 weeks into his administration.
Though I don’t think he’ll be unique in that regard for long, I expect it to be a constant from here on out.
An online petition? What a fucking joke. Same with an opinion poll of randos.
You said: “the opposition party had resolved to impeach…’ and provided *nothing* about the opposition party.
Not even Bumbles would pull this nonsense.
I see Brett continues to lie about this, citing the same two articles that he has never actually read.
Indeed, such is more likely as to be true, as to not be false !
You have crafted something nonetheless degenerate.
Ah yes, the always persuasive “You folks know this to be true…” argument.
This series promises paradoxical interest. MAGA types who are fighting Section 3 will prove unable to respond without QEDing themselves.
If I had to identify my biggest problem with Baude’s position here, is that he’s completely ignoring the context of Section 3 enforcement after the Civil war. Like it doesn’t matter at all.
They’d just had a war. The Southern states were literally under military occupation. The North could basically do anything they wanted, and get away with it. What were the Confederates going to do if they didn’t like it? Secede?
And then he takes the way they were operating then, and thinks it’s reasonable to do things the same way in a country at peace, one party dealing with the other party. Only we didn’t just have a war, and the people they’re doing it to didn’t just lose a war, and DOESN’T THAT KIND OF MATTER?
Why not apply this reasoning to other amendments? Lincoln shut down opposition newspapers. I guess that means Biden can, too, without violating the 1st amendment. Precedent!
It’s legal formalism carried to the point of literal insanity.
The melodramatic projection of someone whose plan is political violence if shit doesn’t go his way.
Everybody’s plan is violence if shit doesn’t go their way badly enough, or else they’re just a slave looking for somebody to supply their chains.
I don’t WANT violence, if it comes to violence this country will never be the same again. I want the other side to understand that they’re pushing the country towards violence, and pull back from the brink.
But I’m afraid the other side is actually hoping for violence, because it gives them an excuse to let their inner authoritarians loose. So, yeah, it’s probably eventually going to end with violence. And the country I grew up in will finally die, even if there’s still one on on the maps using that name.
“I want the other side to understand that they’re pushing the country towards violence, and pull back from the brink.”
IMAX-quality projection right there. The MAGA crowd are the ones constantly predicting and threatening violence.
You and your ilk have been talking about it for years.
And the other side is all, “Bring it, we can finally sic the military on you, and start the high altitude bombing.”
It’s a game of chicken, and it takes two to play chicken.
Chicken is a game where both sides are staring down the other to see who blinks.
That’s not at all what you and Jason are describing, where one side is threatening violence if they don’t get their way, and the other side has to choose between principle and negotiating with terrorists.
We’re likely to choose principle. That does not make us responsible for your violence.
Get a grip on yourselves, or you’ll end up rotting in prison alongside the Jan 6 perps.
I’m struggling to identify this “other side” who wants to sic the military on and bomb right wingers. Extremist and violent talk from the right comes even from major figures (Trump’s not the only major Republican candidate to tout Second Amendment remedies, although I can’t recall others telling an extremist militia to stand by); the worst case from prominent Democrats I know of is Chuck Schumer’s “whirlwind”, which he promptly walked back (and which was obviously a reference to Kavanaugh’s angry and political promise that Democrats would reap the whirlwind).
For someone as good as deciphering coded messages as you are, it shouldn’t take any effort at all to parse a not-so-thinly veiled threat out of the oft-repeated “if you want to fight against the country, you need an F-15. You need something a little more than a gun.”
Biden mocking the gun nuts; it’s pretty straightforward in context. He’s got a point; if the insurrectionists had been able to bring an F-15 on January 6th, they might have stopped Congress.
I doubt it would have fit through the window.
But seriously: if you bring less than an F-15, what happens? Biden laughs at you?
In the case of January 6th, you get arrested after people identify you to the FBI and maybe go to prison after conviction. More generally, you would be met with an overwhelming force of federal law enforcement (or military if the Insurrection Act were invoked). I am not aware of Biden laughing at people who suffer the consequences of criminal activity or other adversity.
What else are they going to say? ‘Oh alright, do what you like, please don’t hurt me?’
Bellmore, do you really think to organize for violence, and then threaten violence to try to dictate terms to political rivals is a legitimate part of American constitutionalism? For starters, that skirts the boundary of constitutionally-defined treason. One overt act to make it happen and you are over the line.
Politics, not force, is the method prescribed constitutionally to govern the nation. Sworn office holders have in fact sworn an oath to suppress with legitimate force the illegitimate force you call for.
“to organize for violence, and then threaten violence to try to dictate terms to political rivals”
Talk about projection; you invent an imagined scene in the future to support you crazy theory about treason against Sovereign People of the United States.
You must have been the pinnacle of an objective newsman.
Nico, for any publication I worked for or managed, I did what I could to indeed keep coverage near the pinnacle of objective news practice. I was somewhat successful doing it.
One instance involving crime reports might improve your insight. I had happened by chance to witness and photograph a pre-dawn arrest at a crime scene—it was a fine art gallery heist in which loot was piled high in a pickup backed up to the gallery door. That, as it turned out, was only the final load; it had required two previous loads, followed by return trips, to empty the gallery.
I interviewed the cops before they reported, researched and reported on the ensuing investigation, and published the story and photograph (pickup with plywood side panels to extend capacity above cab level; piled loot bulging over the top) as front-page news. Later, I wrote a harsh editorial condemning the defendants. I called for severe criminal sentences to make examples of them.
But then I got called for jury duty on that very case. Despite earnest efforts to escape, which of course included lengthy discussion during jury selection of all the foregoing, and my own forthright insistence that I was obviously prejudiced, the defense attorney did not object to seating me. I was astonished.
After the defendant was convicted, I asked the defense attorney—who I had previously known casually—why on earth he had chosen to let me sit on the case. He said he knew he had a weak case, he only needed one juror, and of all the people he knew, there was no one whose objectivity to decide only on the basis of courtroom evidence he respected more.
In a tight-knit community where I was widely known, I enjoyed a widespread reputation for fair-mindedness, and insistent, earnest objectivity. I could not have succeeded without it. I remain proud of that. It enabled me to win respect for published opinions which were not always to the taste of the advertising community I was obliged to serve to thrive in business.
By the way, your repeated jibes about my newspaper career do you little credit. On the basis of what I have seen from you here, I would not have considered hiring you—or for that matter, anyone as careless as you seem to be with imputed conclusions about many-decades-old events you cannot possibly know much about. It has been my pleasure to let that go unanswered. I remain confident that in the unlikely event your remarks ever came to the attention of someone who did know that story, he would think you a fool. I actually think you are better than that, but that is what an objective observer who knew the facts would think.
Do I think it’s a legitimate part of the constitutionalism of a country born in revolution? Yeah, sure. The Constitution was written by the same generation that penned the Declaration of Independence, remember. They were not under any illusion that the government THEY were creating was exempt from what they’d done, if it pissed off enough people. They actually intended that it be subject to that check, and said so.
Recall what Tench Coxe said of the 2nd amendment, writing in aid of Madison to promote the new Bill of Rights: “Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms. ”
Now, you might claim this was some idiosyncratic view of Coxe’s. Nope.
Letter from Tench Coxe to Madison, 18 June 1789
Letter in reply, 24 June 1789
Our founding generation fully expected that the government they were creating would be subject to violent check by the people if it went off the rails itself.
I seem to remember some commenter here recently going on about how context matters, and that we should ignore parts of the Constitution written when circumstances were different than they are today.
By that reasoning, since it has been centuries since the states have been under the thumb of an overseas monarch the only parts of the Constitution that can possibly be retained are a few of the later amendments.
“and that we should ignore parts of the Constitution written when circumstances were different than they are today.”
Gee, who would that be? Because I’m pretty sure “precedent” and “written into the Constitution” aren’t the same thing.
You, and the 14A Because the Civil War.
Inconsistency didn’t used to be one of your problems.
You didn’t think that when parts of the country rose up against police violence, by definition state violence. In fact, you were mortified that there was some violence associated with the demonstrations, as if you’re not literally promising violence if you don’t get your way.
Rose up against police violence by… looting department stores?
Your civil war will come with no looting, obvsly.
What they evidently failed to anticipate was the way in which this very rationale would be cited centuries later by aging, fat retirees on the political fringe, as inspiration for violence if they should happen to lose an election.
We’re not living in a tyranny, not even close. And yet the calls for revolutionary violence are only increasing on the right. Your own rationale, Brett, doesn’t even point to anything actually happening; you just point at what could happen, if violence from the right doesn’t stop it first.
The Founders would be ashamed of people like you, Brett. You have no right to invoke their heritage.
Do I think it’s a legitimate part of the constitutionalism of a country born in revolution? Yeah, sure.
No. It’s not.
It’s a recipe for endless civil war. You think that court rulings you don’t like are grounds for violence. That’s insane.
Bernard, also to the point, neither did almost any of the founders suppose violence was part of American constitutionalism, except in defense of it against violent attack. Many founders supposed, and said, that violence against an unresponsive sovereign overlord was different than violence against a joint popular sovereign. The latter case they deemed paradoxical, because it would example people practicing violence against themselves.
They did understand, of course, that managing factions and factional interests are an unavoidable part of everyday government business. No founder that I am aware of ever said that to do that violence was a legitimate part of the tool kit—although Jefferson in his Tree of Liberty remark enjoyed a bit of ambiguity on the point.
Bellmore, however, advocates violence instead of politics, and he advocates violence in support of minoritarian power. Bellmore’s advocacy tends toward objects the founders insisted violence was justified to suppress.
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That’s the disaffected, antisocial, bigoted, delusional, autistic perspective from the culture war casualties in America’s can’t-keep-up backwaters.
This guy is the target audience of this blog . . . and the reason the modern mainstream of American legal academia dismisses the Volokh Conspiracy and disrespects the Volokh Conspirators.
Oh the delightful irony of that line from you who denies that Commander-in-Chief Biden could not prevent a coup next January when Trump loses.
Oh, the horror, Biden preserving the nation might mean that an American soldier or policeman might shoot an American citizen. Wait, that actually happened on January 6.
Talk about being a drama queen, pot meet the kettle. (yup, that is trite)
So, do you think Biden could shut down opposition newspapers? Suspend the writ of habeus corpus, and have the military jail editorialists saying things he doesn’t like?
That’s no less a Civil war precedent, Sarcastr0. Why, you could argue that Korematsu is still good law, despite Roberts’ dicta in Trump v Hawaii. Shall we open up prison camps for Americans the administration doesn’t trust?
My position is that the precedents established in time of war have no place, and should be accorded no force, in time of peace. In fact, I think that’s vital, if you want them to REMAIN times of peace!
That’s because it doesn’t matter at all.
It absolutely does matter, to interpret the meaning of insurrection.
The New York Draft Riots happened during the American Civil War.
Not a big Trump fan, or of Jan 6th, but it cant possibly be the case that one biased judge in some name-your-forum court can declare Trump an insurrectionist. Nor can it be a function of a state court, based on idiosyncratic state rules. Even if he was one, it simply encourages forum shopping.
If Trump disqualification stands, I have no doubt we will find a forum in the 5th circuit where Biden and Kamala Harris can be declared insurrectionists for allowing as border invasion. **
I do not see the SC encouraging this kind of lawfare, or canceling the vote of the leading GOP candidate for office. People are focusing on the one case, ignoring the 61 other cases that failed to reach the conclusion Trump is disqualified. The Supreme Court will not announce “new rule: We’ve discovered legal consequences that have not been appreciated or enforced.”
One can agree with most of what Baude and Paulsen write about the Section 3 amendment and still not reach the conclusion Trump is disqualified.
** And this statement is against self interest, because if Trump, Biden, and Harris were disqualified, the world would be a better place.
In America we stand for the rights of people to protest idiotic causes and vote for idiotic people.
dwb68, repeated calls for illegitimate political abuse do not become more legitimate as repetitions multiply. What your commentary does suggest is a need to better define and punish criminal oath breaking.
SL,
dwb is not calling for political abuse. With your talk abot treason, you are.
Nico, read, Ex Parte Bollman and Ex Parte Swartwout. Then read the Abrams amicus brief. Then explain to me any element of treason Trump’s conduct has omitted.
I predict you will either ignore that challenge, or you will come back with counter-arguments which show that you omitted to read thoroughly both sources. Show me I am wrong.
Former AG Barr made a related point about needing a formal legal process to remove the privilege of running for office from someone, based on A14S3. That dovetails nicely with what you wrote.
Agree about SCOTUS…can you imagine a Chief Justice Roberts looking for ways to upend the legal system and electoral process simultaneously? Him? Mister ‘Protect the Institution for the future’? No way! And all the other Justices, like they want to upend the country also? Double no way!!
My question is: If you are a SCOTUS justice, how do you narrow the legal question you are ruling on to be a 9-0 unanimous vote? At this juncture, I really think it would be good for the country to have a ‘civic anchor’ of some kind, just to help steady American society for a short respite.
A 9-0 vote is probably not in the cards. If he can get to 8-1 he’s a miracle maker. 7-2 is the best I anticipate.
Came back to say this. Sotomoyor will write a screed. I doubt she’s even trying to be collaborative or persuasive anymore.
I am not sure they need to narrow the question. Held: 1) Section 3 applies to the President but 2) there is a Federal Statute for insurrection, he needs to be convicted of it in a Federal Court. Toss it back to the DOJ to pursue charges.
Edit: I thought the DOJ or SG filed a brief, but I dont see it on the docket.
That is exactly my expectation of what they’ll rule. But it ain’t gonna be 9-0.
It checks all the boxes:
1) It doesn’t make Presidents immune to Section 3.
2) It doesn’t require them to rule on the factual matter of Trump’s guilt.
3) It prevents Section 3 from becoming a casual political weapon.
4) It can be justified based on Constitutional and statutory text.
So IOW Brett, the net effect of your predicted SCOTUS ruling: Follow the process. Bring an insurrection case against POTUS Trump up through the Federal Courts and present SCOTUS with a developed trial and appellate record.
That ruling does have the virtue of buying the country some time to let passions dissipate. IMO, it would effectively end the matter.
“I am not sure they need to narrow the question. Held: 1) Section 3 applies to the President but 2) there is a Federal Statute for insurrection, he needs to be convicted of it in a Federal Court. Toss it back to the DOJ to pursue charges.”
The United States is not a party to the lawsuit, and the Solicitor General has filed no amicus brief. There is nothing to toss back to the DOJ.
Nothing in the Fourteenth Amendment, § 3 requires a criminal conviction as a prerequisite to the civil disability that the amendment imposes. Disqualification from holding civil or military office, standing alone, is not criminal punishment. It is more akin to occupational debarment, which is civil in nature. Hudson v. United States, 522 U.S. 93, 103-105 (1997).
Criminal culpability/amenability to punishment and being subject to civil penalties or disabilities can arise from the same conduct. Indeed, Donald Trump could theoretically be indicted under 18 U.S.C. § 2383, tried and acquitted, and still remain subject to disqualification in a civil proceeding according to the Fourteenth Amendment, § 3. Compare, United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); Helvering v. Mitchell, 303 U.S. 391, (1938).
SC often solicits the opinion of the SG on important issues.
DOJ rarely charges people with “insurrection or rebellion” because it implicates free speech and freedom of association.
You can hold whatever opinion you want, SC simply wont allow disqualification of the leading GOP candidate because a few robed people in Colorado said so. They will raise a high bar to prevent tit-for-tat lawfare.
SCOTUS here has not called for the views of the Solicitor General. The Department of Justice is a stranger to this litigation.
It is simply irrelevant that Donald Trump has not been charged criminally under 18 U.S.C. § 2383. Disqualification from federal office under that statute is markedly different from disqualification from state and federal office under the Fourteenth Amendment, § 3.
Application of § 2383, which creates a substantive criminal offense and fixes the penalties for its violation, is both broader and narrower than the civil disability imposed by § 3.
The Enforcement Act of 1870, § 14, explicitly references the Fourteenth Amendment, § 3. https://www.senate.gov/artandhistory/history/resources/pdf/EnforcementAct_1870.pdf Compare and contrast 18 U.S.C. § 2383, which conspicuously does not.
Disqualification under § 3 is limited to those persons who had previously taken an oath to support the Constitution. Application of § 2383 is not so limited.
Congress may by a vote of two-thirds of each House, remove a § 3 disability. Congress has no such power to nullify any part of the judgment of an Article III federal court imposed as punishment for a crime. Only the President can do so by issuing a pardon or reprieve.
Disqualification from holding office under § 2383 applies only to holding any office under the United States. Disqualification under § 3 applies to any office, civil or military, under the United States, or under any State.
Disqualification from holding office under § 2383 cannot be applied ex post facto to conduct occurring prior to the enactment of the statute in 1948. The very purpose of the Fourteenth Amendment, § 3 was to disqualify ex-Confederates based on their conduct during the Civil War, which occurred prior to ratification of the amendment in 1868.
Criminal culpability/amenability to punishment and being subject to civil penalties or disabilities can arise from the same conduct. Disqualification from holding office is akin to occupational debarment, which has not historically been viewed as punishment. SCOTUS has long recognized that “revocation of a privilege voluntarily granted,” such as a debarment, “is characteristically free of the punitive criminal element.” Hudson v. United States, 522 U.S. 93, 104 (1997), quoting Helvering v. Mitchell, 303 U.S. 391, 399, and n.2 (1938).
Donald Trump could theoretically be indicted under 18 U.S.C. § 2383, tried and acquitted, and still remain subject to disqualification in a civil proceeding according to the Fourteenth Amendment, § 3. Compare, United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); Helvering v. Mitchell, supra.
Yeah, but to them, preventing Trump from being elected is like preventing Jesus from preaching.
Trump is not a character in a fairy tale.
If 18 USC 2383 applies to a president then is it unconsttutional because taking an oath is not a requirement for disqalification?
If 18 USC 2383 applies to a president then isn’t that the Congress saying that A14 S3 also applies to the President
“Nothing in the Fourteenth Amendment, § 3 requires a criminal conviction as a prerequisite to the civil disability that the amendment imposes.”
No, that’s true. The 1870 Enforcement act allowed the disability via a federal civil quo warranto act by a federal AG.
The reason a criminal conviction is necessary is that this act was repealed in 1948.
The disability under § 3 is itself civil in nature, Brett. Whether the putative office holder has or has not been charged criminally under § 2383 is simply irrelevant. Neither conviction nor acquittal under the criminal statute would preclude disqualification under § 3.
Does 18 USC 2383 cover the president? And if it does and it’s suosed to be the enforcement mechanism for A14 S3 then isn’t that proof that A14 S3 also covers the president
Let’s start a lottery for how many fucking times you have to be told that A14 does not say “CONVICTED OF” anywhere.
Mr. “Originalism” over here injects words to suit his arguments that don’t exist in the original document.
And we can match it with one for how many fucking times I’ve never claimed that it did. Section 3 of the 14th amendment doesn’t say “CIVIL PROCEEDING” anywhere, either.
My position is that enabling legislation determines how Section 3 is enforced, and the only current enabling legislation is criminal in nature. That didn’t used to be the case, but it is now.
Congress could reenact the 1870 Enforcement act tomorrow, and Section 3 would once again be subject to civil enforcement. It just happens not to be right now, as a matter of statutory law.
The problem, once again, is that you are pretending that because § 2383 uses the word “insurrection,” it is “enabling legislation” for the 14th amendment. But that’s completely unsupportable.
Brett, the disability imposed by the Fourteenth Amendment, § 3 is itself a civil penalty. That the same underlying conduct can result in both a criminal conviction and the imposition of civil sanctions is entirely unremarkable. Neither proceeding is the sine qua non of the other.
A conviction under 18 U.S.C. § 2383 would have a collateral estoppel effect in a subsequent § 3 proceeding. An acquittal, OTOH, would have no such effect. That does not make § 2383 implementing legislation vis-a-vis § 3.
The Enforcement Act of 1870 at § 14 expressly referenced Amendment 14, § 3. https://www.senate.gov/artandhistory/history/resources/pdf/EnforcementAct_1870.pdf The 1948 criminal statute does not do so. That difference is meaningful — it shows that Congress knows what language to use when it intends to enforce or implement § 3.
Why would a petition for a writ of quo warranto be any less appropriate today?
Again, because the statute permitting it was repealed.
A writ of quo warranto does not require a statute to “permit” it; it’s a common law remedy. The statute in question, which I doubt you’ve read, did not “permit” such an action; rather, it required it. Specifically, it made it the “duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office;”
Yes, the Section 14 of the statute requiring the district attorney to act was repealed, which means the district attorney is no longer required to enforce it in that way.
But the wording of Section 15 of the same act is instructive: “That any person who shall hereafter knowingly accept any office under the United States, or any State[,] to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States…”
It’s written almost as if Section 3 of the 14th Amendment has a meaning independent of whether Congress enacts legislation to enforce it under Section 5 or not. Fancy that.
6 to 3 with Roberts joining the Liberals and 2 of the 3 stooges to overturn
Alito and Thomas have no core judicial values and will vote to overturn.
Sotomayor, Kagan, and Jackson will happily become texturalists fr this case and uphold.
That leaves Gorsuch, Kavanauh, and Barret. I’m guessing that 2 of them have enough integrity to stay with their deeply held judicial principles and they will vote to uphold.
Roberts has shown in other decisions that he is more than wiling to vote for politically activist decisions when he sees fit. This is one of those cases. He will be a vote to overturn until there are 5 votes to uphold. Then he will flip so he can write the opinion.
6 to 3
I agree with this entirely with one exception. Alito for sure has no core judicial values (or even superficial ones). But I’m not sure he’ll see the politics in this case as favoring Trump. He’s an old-school Republican and might relish the opportunity to finally rid his Grand Ole Party of its ridiculous charlatan antisavior.
Making Thomas the only sure vote for Trump.
“Not a big Trump fan, or of Jan 6th, but it cant possibly be the case that one biased judge in some name-your-forum court can declare Trump an insurrectionist. Nor can it be a function of a state court, based on idiosyncratic state rules. Even if he was one, it simply encourages forum shopping.”
Yeah, right. District Judge Sarah Wallace was so biased that she ruled that the Fourteenth Amendment, § 3 is inapplicable to Donald Trump, despite finding by clear and convincing evidence that he had engaged in insurrection. The accusation of bias here doesn’t make sense. In fact, as a gospel preacher from my youth was fond of saying, that doesn’t even make good nonsense.
Dude, once she determined Section 3 wasn’t applicable to him, there was no POINT in concluding the factual matter of his guilt, because it was legally irrelevant. Normally once a court finds a law isn’t applicable to a case, the analysis ends right there.
But it didn’t end right there, because she didn’t mean for her ruling to stand, she was just teeing things up for the state supreme court.
She procured the gun, loaded it, and pointed it, and then left it to the state supreme court to pull the trigger, so that the shit storm would be theirs to deal with.
How many cases have you litigated, Brett? It is quite common for a court, whose judgment is subject to review by an appellate court, to decide a lawsuit based on a dispositive issue and go on to rule on other issues in order to facilitate appellate review. That is sound jurisprudence and promotes judicial economy.
Indeed, Judge Wallace said that she was doing exactly that, writing at footnote 12:
dwb68 posited upthread “that one biased judge in some name-your-forum court . . . declare[d] Trump an insurrectionist.” The reality is nowhere near that.
It will be if the Colorado lawfare is allowed to stand.
No. The Trump case would be decided. The general case would still involve the same appellate review the Colorado case got.
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In the Court of Delusional And Disaffected Wingnuts (Conspiracy Theorist Division)? Too many to count.
Well, dweeb, it’s not the case that a single state judge is making the decision. SCOTUS is making it. So what, exactly, is your problem?
And please, do us the favor of disqualifying Biden! We don’t have this perverse psychological infatuation with our candidates like you do for Trump. You should be begging for Trump to be disqualified.
In America we stand for the rights of people to protest idiotic causes and vote for idiotic people.
This would be a more relevant sentiment if Trump or Biden were remotely popular. They are the (presumptive) nominees because of partisan capture of presidential elections. Nikki Haley would beat either of them handily, and the same could be said for many other potential Democratic and Republican candidates. But we’re stuck with Trump and Biden for structural reasons. Maybe it would be a good thing to use Section 3 as a pretext for disqualifying candidates with limited appeal.
Brandon aided and abetted the Taliban by botching the withdrawal from Afghanistan.
Cuntala is also disqualified for this reason!
https://twitter.com/KamalaHarris/status/1267555018128965643
I realize you may not like how this part of the fourteenth amendment works, but that’s really not an argument against applying it. As someone cogently put it,
I’m distinguishing here between “how this part of the fourteenth amendment works”, and “how this part of the Fourteenth amendment was applied”.
I don’t think the 14th amendment actually specifies how it will work in practice. That’s up to what enabling legislation Congress enacts.
During military Reconstruction the Union just did whatever they felt like, without any concern for due process, because they were in a position to, the South was under military occupation. That’s the period Baude wants to use as precedent today, and that causes me to observe that we didn’t just have a civil war, and half the country isn’t under military occupation.
In 1870, Congress passed the Enforcement Act, (Enforcing the 14th amendment!) and it specified a process where federal prosecutors would disqualify you by civil writs in federal court. The states were completely cut out of the loop in this act. Why wouldn’t they be? Do you trust a Confederate state to faithfully enforce disqualification of Confederates?
We also had a criminal statute at the time, the 1862 Confiscation act, that provided for a criminal process for disqualification, and eventually became the basis for our current federal insurrection law.
So you had both civil AND criminal routes to disqualification.
But the 1870 act was repealed in 1948, so at present there is only the criminal route.
But that’s not because the 14th amendment mandates a criminal process. It’s because Congress mandated a criminal process, and, no, Section 3 isn’t ‘self enforcing’ unless you mean by that, that an occupying army doesn’t have to provide anybody with a trial before doing unto them.
The military took an oath to protect and preserve the constitution against all enemies foreign and domestic.
why shouldn’t they just overthrow Brandon?
In that same oath they also swear to uphold the orders of the President of the United States. Gotta read to the end, dude.
Brett, I’m amazed how much you’ve learned over the past couple of months. The Enforcement Act and even the Confiscation Act! You’re welcome.
But the notion that the entire country (well, the part that hadn’t recently engaged in a rebellion) went through the laborious process of drafting and enacting a Constitutional amendment, the only purpose of which was to simply “enable” future Congresses to enforce it (or not), is frankly breathtaking.
That would be breathtaking, wouldn’t it.
But, of course, the 14th amendment wasn’t drafted by the whole country, just a few members of Congress. And half the country had no choice about ratifying it.
They lost their Cause.
But they were bigoted, antisocial, un-American losers, so Brett Bellmore can’t resist embracing them.
Does 18 USC 2382 cover the president. If it does cover the president then doesn’t A14 S3 also?
The context is that having just experienced the devastation of a civil war the framers of A14 Section 3 undertood that prohibiting an insurrectionist the presidency is a logical way to prevent another civil war. I believe that there is discussion in the senate record to that effect. A14 S3 is the insurance policy they gave us.
Lincoln shutting down the newspapers wasn’t written into the Constitution. Section 3 was.
“If you don’t let Trump stand, there’ll be violence”
“From whom?”
“From the people who want Trump to stand”
“And do they care whether not letting him stand is per the Constitution?”
“No.”
“Do you think that threatening violence to get the courts to arrive at a decision is a legitimate reason to arrive at that decision?”
“Only if those who threaten violence are Trump supporters”
All beside the point. Any SCOTUS decision will be based on one of two legal principles. A) that Chuckles Koch, Leonard Leo, et al have decided Nikki Haley will likely become the nominee in Trump’s absence and she has a good chance of defeating Biden while Trump does not. Or B), the far more likely basis, that the Federalist Justices can never go home again if they hold against Trump.
All you’re arguing about, endlessly, here is what originalist BS they’ll come up with to cover their decision.
gVOR08, problem is, actual, real, practicing originalists have lined up with amicus briefs to warn the Court that the originalist case goes overwhelmingly against Trump. If the Court does as you suggest—and as I cannot call unlikely—then it is going to have to knock the stuffing out of any notion that this Court is capable to practice originalism, or even wants to.
The Court is already struggling big-time with legitimacy problems. It cannot decide for Trump without triggering a year-long constitutional crisis with unforeseeable consequences. At the worst, those consequences include the Court going down in history as the perpetrator of the most consequential judicial blunder ever made in U.S. history—maybe even in world history.
As an alternative, with a decision against Trump, and a ruling that it applies in every state, the Court could at a stroke end the constitutional crisis—perhaps at the risk of converting it into a domestic security crisis which would fall to a beleaguered Biden administration to manage. But there would be the further advantage of sweeping all the political significance from all the Trump cases off the national stage. Plus which, that would get done far enough in advance of the election to let a GOP rival take over the campaign, and likely beat Biden. It is hard to imagine a post-Trump campaign in which the GOP would not control the political center, if only because centrists are cautious, and would be highly motivated to placate the MAGAs. Getting Trump out of the campaign now is probably the best chance the GOP has to win.
From the point of view of the prestige and viability of originalism, which looks better to you? From the point of view of Supreme Court legitimacy, which looks better to you? From the point of view of practical politics, which looks better to you? From the point of view of a GOP partisan which looks better to you? From the point of view of the judgment of history, which looks better?
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The bright side if this further diminishes Court legitimacy: Every small step toward enlargement of the Supreme Court by better Americans is another giant leap for mankind.
Hoist on their own petard, as the saying goes.
Of course, I don’t see it that way. The Court would be signing its own expansion plans if it tried to pervert originalism to protect Trump (not to mention destroying any claim to credibility). But I don’t think they will do that. I do think they will manage to punt somehow.
A punt likely would constitute another step toward Court enlargement.
Fine by me.
That’s nonsense.
CU, Bruen, Dobbs. Court packing is already predetermined the first time the Democrats have a Democratic President and a solid majority in both chambers. (They’ll need a good one, there would be defections.)
You think they can buy protection by handing over Trump? It’s not enough. Court packing isn’t about winning on one thing, or occasionally. It’s about having a rubber stamp.
They’d have to become that rubber stamp, to make the Democrats give up on the idea of Court packing.
And then the camps.
The Democrats are not as captured by their left as the GOP is by its MAGA right.
You see the reverse somehow. Despite all the evidence put in front of you over and over again.
Oh, it’s “predetermined”…
Nothing quite like basing an argument on an unfalsifiable premise, is there?
“Haley will likely become the nominee in Trump’s absence and she has a good chance of defeating Biden while Trump does not”
Not if maga stays home and doesn’t vote. The RNC could select anyone they want and they may just as likely select Desantis who many of the same political policy and personality defects as trump.
Well a typical pattern is emerging in comments.
MAGA types reacting with their political brain, completely ignoring much of the content in the various briefs supporting the idea that section 3 clearly disqualifies trump. I can’t tell you how many times I hear these arguments shaking my head- this person hasn’t even read the briefs!
They need to respond instantly and then drown out the fact that they either haven’t read or selectively ignored the parts that don’t lead to their desired conclusion. This is obviously an understandable human quality but you’d like to expect more from actual lawyers who are not being paid to represent a client. Remaining in a perpetual state of ignorance w/regard to trump’s continuing lawlessness seems to be a key feature of remaining a trump supporter.
It’s for this reason I don’t expect much from a supreme court where at least two of the participants can be credibly said have corrupt intents (one for multiple reasons). That said that they were willing to overturn dobbs against popular will and this gives me a small bit of hope that the law will win out. The more of these things I read, the harder it is to see how SC can reason anything but a straightforward disqualification based on the text.
“MAGA types reacting with their political brain, completely ignoring much of the content in the various briefs”
And the anti-MAGA types completely ignoring all the insane political implications of what they’re trying to do, acting like putting a legal gloss over it will fix anything.
We are indeed talking past each other.
Oh no, the political implications! Save us from the political implications!
Look, Brett, the political implication is the same no matter what happens to Trump: there are a bunch of bored MAGA assholes running around the country treating politics as though it were a reality show or a football rivalry. They’ve decided that partisan politics is more entertaining than good governance, and they want more than anything to be entertained because their lives are so dull otherwise. It’s a problem we’re stuck with.
Really, it shouldn’t matter that one of the lamer candidates gets disqualified. It’s not a big deal, there’s no shortage of qualified candidates. But MAGA’s going to impudently choose to take it personally because it’s more fun that way.
That is a bingo.
When someone tells you to consider how much he will misbehave if you don’t excuse previous misbehavior and give him what he wants, it’s time to impose adult supervision with no quarter.
Remember when you were in favor of disqualifying Obama based on lies about his birth certificate? Remember the dozens of suits attempting to disqualify him, both before and after he took office? Pepperidge Farms remembers.
Birther Brett Bellmore no longer wishes to discuss his birther period, but there was a time when it was all he wanted to talk about.
No, actually I remember when I thought the idiots who thought Obama was lying about his birth certificate were entitled to a court hearing on the merits, where they would promptly lose.
You figure Trump should be required to prove his misconduct did not constitute insurrection?
Why on earth would or should the Supreme Court care about the political implications? After all,
“MAGA types reacting with their political brain”
Unlike the libs here who are just thinking of the law!
I think you are thinking from another part of your body.
Just remember that nothing written here will affect what SCOTUS rules.
Well, nothing in the comments, anyway. Baude and Paulsen are not people the Court will typically ignore, though neither will they feel bound to agree with them.
Unwise Latina and Jackson will quote Baude and Paulsen a lot.
Why no racial slur with respect to Justice Jackson, Bob from Ohio? Are you losing a step?
Don’t worry. Prof. Volokh will pick up any slack for you.
I thought that about Randy Barnette back in the day. Legal academia is not as academi as it might appear.
One or two politically motivated purple states knocking him off the ballot is all that is needed to decide for the nation. This is the absurd result that could not have been intended.
All else is weaselry.
Maine allocates half its votes by district. So Trump got 1 vote in 2016 and 2020.
That could be decisive right there.
Could be. But winner takes all or not, he’s at least on the ballot and rises or falls from the same rules as everyone else.
The Maine SOS has disqualified him already.
Contingent on the resolution of the CO case.
The POTUS candidate field being curated by the various states would result in utter chaos; the results would be far from “democracy”.
For this reason alone, the SC cannot let it happen.
The echo chamber has a meme for that!
That’s the judicial branch implementing policy, which it should not do!
In this case.
Ummm…unlike almost all other hot button political issues.
So there’s another rule of thumb, this one courts do use. This would be an absurd result, and so could not possibly be the intent, that a state could decide on its own, with no national concensus, indeed, in the face of lack of such in spite of years of debate, to decide for the nation who cannot be president, nay, even run for president.
The SC has a role to just insist that things make sense in an ongoing basis.
“The constitution is not a suicide pact”.
What Colorado is trying to do is deeply flawed by lack of understanding the consequences, which could well be national suicide as chaos ripped.
dwshelf, the, “national suicide,” contingencies apply variously, but similarly for both sides, no matter how the Court decides. There is zero reason for the Court to decide the case on a conjectural basis, favoring one side’s supposed contingencies vs. the other side’s.
What does make sense is to end the crisis now. And the Court has power to do that at a stroke, with a decision based on originalist analysis of the Constitution. Whatever might happen, deciding now will be far better than deciding later . . . or still later.
For folks like you, it ought to come as consolation that a decision to disqualify Trump alike in every state would almost surely provide the best possible chance for any GOP candidate except Trump—especially an alternative pro-MAGA candidate—to win the election.
An added benefit in the way of chaos reduction would be that all the other Trump criminal prosecutions would revert to the status of ordinary criminal trials, instead of goads to constitutional crisis. If the Supreme Court intends, “to make sense on an ongoing basis,” to disqualify Trump now is the best way to do it. The nation can only hope that right wing partisans on the Court are wise enough to understand that. If they are not, nothing else they decide will spare the nation from protracted crisis and instability.
Be careful what you wish for…
I’d welcome Trump’s disability from holding office, not because I want Biden to be President, but because I’d (probably) prefer any sane Republican to be President. If one can still be found, that is.
But, I can also imagine that the person who races like a Blitzkrieg through the Republican ranks in the aftermath of Trump’s fiery martyrdom might just be a younger, smarter, less mentally impaired version of Donald Trump. (Whew, that means no Don Jr., at least!)
There are significant risks whether the Court saves him or skewers him. I know this; you know this; they know this. We can only hope they do the right thing. I’d like to believe that is how it will go, but I’m not counting on it. My best guess is they will take one look at the gathering lynchmob and find a way to plausibly avoid deciding anything, leaving Trump on the ballot.
There are significant risks whether the Court saves him or skewers him. I know this; you know this; they know this. We can only hope they do the right thing. I’d like to believe that is how it will go, but I’m not counting on it. My best guess is they will take one look at the gathering lynchmob and find a way to plausibly avoid deciding anything, leaving Trump on the ballot.
obviouslynotspam, in your view, what action constitutes, “plausible,” action for the Court, to leave Trump on the ballot? When you reflect, what risks do you suppose your answer might entail?
Imagine the horror if the Constitution permitted States to not even hold a “Presidential” general election, or to legislate the appointment of Electors using any method they desire!?
It’s like you’ve never read Article II at all. Shocking.
“The POTUS candidate field being curated by the various states would result in utter chaos; the results would be far from “democracy”.
For this reason alone, the SC cannot let it happen.”
That is EXACTLY the process envisioned by the Constitution. If you don’t like it, amend it.
If Congress, using its enforcement power, doesn’t specify a means for adjudicating Sec. 3 cases, then I’d say these cases should be dealt with as they come up in the course of ordinary litigation.
Trump had a hearing on the facts, and hopefully the Supremes will apply the facts to the law. This being a borderline case (because of 1st Amendment concerns, for example), then I’ll wait for the Supremes to help me out in figuring out what to believe.
I know other posters have pointed out that Congress has the final say in deciding which electoral votes (or purported votes) should count. But the ideology of judicial supremacy makes it likely that Congress will defer to whichever decision the Supremes come to. Congress, for example, made no independent determination in 2001, but passed the buck to the Court.
My recollection of 2001 is that a challenge to Florida’s electoral votes was put forward by a House member, but no Senator joined it. It wouldn’t have gone anywhere, because Republicans controlled the House, and with the Senate 50-50, Democrats were not interested in pointlessly aggravating Republicans, who (with the Vice Presidency) could make Senate rules harsher. The Court had already ruled by then, and Gore had accepted it (an honorable man, but also lacking followers willing to get violent on his behalf).
Over at Balkanization, Marty Lederman is in the middle of series of posts on this topic. In one of his posts he notes that there is no Colorado statute which authorizes leaving Trump’s name of the general election ballot (the statute referenced in this case applies only to the primary ballot). It could be the case, there is no way to keep Trump off Colorado’s general election ballot even if SCOTUS affirms the decision below.
So while Trump supporters have argued leaving the decision to each state will result in chaos whereby a candidate could be kept off the ballot as an abuse of 14.3, it also may be the case many states will not be able to keep candidates off the ballot who clearly have violated 14.3. While 14.3 can easily be a state-by-state decision for state/local officials and for the House and Senate since those elections are entirely contained within the state, it’s a problem for the presidency.
I don’t expect it, but it would be nice to see SCOTUS come down on the side of needing a consistent process for disqualification of a presidential candidate from the ballot that applies to all states.
My understanding is that most of the states have no statutory basis for removing Trump from the ballot, that this fight is restricted to a small handful of states unless the Court itself declares him disqualified.
But the Court isn’t going to declare Trump disqualified. At most, it will hold that Trump is subject to the section 3, that no enabling statute is required and that there was some evidence from which a court could determine that Trump committed insurrection (assuming that they get past the process infirmities). None of that prevents other courts from deciding the factual question differently. Collateral estoppel just won’t stretch that far. It certainly won’t in any state where Trump has a chance of winning.
Thus, allowing the Colorado decision to stand would kick off a bizarre situation where Trump is eligible in some states but not others (i.e., eligible in swing states and red states but ineligible in blue states). What happens if Trump wins enough electoral votes to prevail? Is he disqualified or not? Some courts said yes; others said no. That is the real potential for mischief here.
Section 3 cannot allow individual states to make this decision. Look at the problem that Congress was actually trying to solve — preventing locals in the former Confederate states from electing Confederates. It cannot be, as the Colorado court suggested, that local officials would make the decision as to who committed insurrection. What would happen if a state court in Virginia decided that RE Lee wasn’t an insurrectionist and, thus, that he could be elected to Congress. Would that make Lee qualified for office? Of course not. Does anyone actually believe that Congress would do that. Yet, the Colorado precedent would require this result as it makes the decision a local not a national one.
Your mistake is in thinking that it’s either/or, that if states can disqualify people then the federal government can’t.
Seems like we’ve all simply forgotten that the presidential election isn’t a national election, it’s a loose collection of 50 state elections. It’s already the case that different states have different candidates for president on the ballot. That’s never been a problem before.
There’s a forest and there’s some trees.
The usual story is reversed here. We can’t miss the forest by inspecting the bark of each tree.
The SC understands this fully.
Are you OK with some states permitting 25-year old candidates on the ballot? That strikes me as somewhere between extremely weird and outright wrong. And if 14.3 is to be treated as a qualification akin to age, then the same characterization ought to apply to state-by-state ballot access on that basis.
Are you OK with some states permitting 25-year old candidates on the ballot?
Sure, if they want to do that for some reason, I don’t see how the feds could prevent it.
Any electoral votes for an unqualified candidate could be considered as not regularly given by Congress.
I sure hope that is not the way it works. Particularly for 14.3, for which it is not clear whether someone is unqualified, we should not have the chaos of Congress concluding votes were not regularly given.
Two questions about that:
1. Why would it be “chaos” to have a single, centralized determination of eligibility by Congress under 14.3, rather than a hodgepodge of individual calls by the states? Rather seems like the opposite to me.
2. In the de facto two-party general election process we currently enjoy whether we like it or not, what’s the scenario where a state could plausibly claim harm from having its votes nullified, when they’re being nullified because candidate A wasn’t qualified at all and thus all candidate A votes are nullified and the entire race by definition goes to candidate B? What reasonable story does that state have about what it would have done differently that would have altered the outcome?
It might be less chaotic for Congress to make a centralized decision. But, it’s still chaos if that decision comes after the election. I’m rooting for a centralized 14.3 determination to be made before the election.
My preference as well. With ASAP as the time frame. A day or two after hearing the case seems about right, if it is to be a disqualification. A decision that Section 3 does not apply to Trump will create big and lasting trouble no matter when it comes, but less trouble ASAP than otherwise.
If the voters were determined to vote for an unseatable candidate, the consequences would be on the voters.
Just because the SC can be expected to preserve the rights of voters to choose who they want, they will not give up the authority themselves to rule a candidate unqualified.
But then whatever they rule had better be easy to understand and widely supported, or the SC would lose its authority.
So, it’s up to the voters, and just ignore the Constitution?
You are correct. The only “election” that is technichally a federal election is the only one run by the Congress according to federal laws. That’s when the Electors vote. The Electors are elected in elections run by the States according to election laws in each State. Those laws generally have qualification standards enforceable by the States. That includes a State’s right to enforce provisions of the US Constitution provided by A10 unless othewise prohibited.
If individual states were granted constitutional authority to curate their candidate lists for POTUS, you can bet that somewhere north of 40 states would do just that, and do it overnight.
Why wouldn’t they? A state legislature can have a profound effect on the POTUS election by simply passing a law? What an opportunity…to kill the government we know.
There are two reasons for states not to be too cavalier.
First, voters like voting and limiting their options wouldn’t be popular.
Second, there are still other constitutional challenges available, like equal protection and due process.
Red states would focus on picking blue candidates, while blue states would do the opposite.
Their voters would enthusiastically support this, if it actually worked.
Until the chaos of what we had lost became clear.
If the state’s electoral votes are going to the candidate that the voters “enthusiastically support,” then I don’t see what the problem is.
I mean, there are unintended consequences, like state legislative elections turning into proxy presidential elections, which after all is why we have the Seventeenth Amendment, but that’s a self-inflicted problem for the state legislature, not for the federal government.
Imagine that Colorado could say that Colorado R’s could only vote for Liz Cheney for POTUS.
Colorado D’s would like that.
And in the event that some potential red wave rolled through Colorado, the D’s would have achieved their goal, one chaotic way or another.
And Colorado D’s would be happy with the results.
Still not seeing the problem. Who cares if Colorado misses out on the red wave? There are other ways that could happen, like too many people voting early for the October Surprise to change the outcome.
If the will of the people of Colorado is thwarted by a judge in Colorado, and in a few like states, and that changes the winner of the election, we’ve move into Soviet territory. The sitting government decides the candidates.
Judge? We’re talking about legislatures, not judges.
Let’s see now.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress[.]” Article II, § 1, ¶ 2.
Another reason to increase the size of the House (by at least 45) and to admit a few states (Puerto Rico, Douglass Commonwealth, Pacific Islands . . . maybe Israel).
After America increases the House, admits a few states, and enlarges the Court, I expect the Volokh Conspirators to kick their ball over the fence and go home.
The Constitution should be amended to eliminate the 100 votes. 2 per state, represented by the senators. That would make the general election 90% more democratic without doing away with the Electoral College or the system that it represents. Gore would have been elected and so would have trump.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number Representatives to which the State may be entitled in the Congress[.]” Article II, § 1, ¶ 2.
Fixed it
In 2020, Wisconsin curated its presidential ballot, keeping Kanye off it because he filed his papers 14 seconds (!) too late.
The state is allowed, and expected, to have election rules. Rules which focus on the mechanics of the election, and not the qualifications of candidates for POTUS.
Indeed, the SC occasionally rules on such rules, making sure that they don’t give undue advantage.
The Court has no legitimate power to balance, or to unbalance, partisan advantage. The sworn oaths of the justices are to support the Constitution. American constitutionalism makes election results a gift of the jointly sovereign People, acting at pleasure and without constraint. The duty of the states is to provide ministerial management of elections, to guard and facilitate the People’s power and pleasure. The duty of the Court is to make sure the states stay merely ministerial while they manage elections, and let the People themselves sort out the partisan advantages.
That is incorrect. I can tell you that in North Carolina, the state board of elections is not allowing two Democratic candidates for president to appear on the ballot, and both have all the constitutional qualifications for the office. The reason stated is that they haven’t been campaigning in the state, and they have insufficient donors to their campaigns in the state. It had nothing to do with “mechanics of the election.” States have taken these actions in every presidential election. The state board has literally added extra-constitutional qualifications for appearing on the ballot.
“Some ideas are so stupid, only an intellectual can believe them.” Orwell or Sowell paraphrased, probably.
The idea that the J6 protest was an “insurrection” is one of those ideas.
While it may or may not be an insurrection, the belief J6 was a protest is stupid. It was a riot with the intent of stealing the election. And that’s enough to conclude it is not irrational (and therefore not stupid) to conclude it was insurrection.
An insurrection is something like the Civil War.
The vast majority were peacefully and lawfully protesting, but I agree that it was also a riot. Also involving unlawful trespassing and other violations. (Although, I recently learned of an posted about very interesting evidence and video footage that suggests the entire rioting portion was preceded by unprovoked firing of tear gas cannisters and rubber bullets (!!) against persons who were doing nothing wrong including elderly women.)
I don’t agree that it was with the intent of stealing an election. Attributing a singular intent to hundreds of thousands of people is a funny business, but as I recall the protest was called “Stop the Steal” and probably 99.9% of them saw it that way.
I do think it is stupid to allege that this was an attempt to overthrow the most powerful government in the history of the world without even using guns, just camera phones and funny hats.
To an observer the whole thing looked like a terrible punctuation mark following a long and deadly year of violent political protests involving looting, arson, tons of murders, countless severe beatings and assaults, etc. To then witness the same people who downplayed and dismissed and justified all of that to turn on a dime and stage a freakout over this event, which didn’t hold a candle to what preceded it, was something.
Getting more to the topic of Baude’s article here, if I recall correctly, when he first put it out there I just read the section on what counts as an “insurrection” and his recounting of the facts and so on, which was somewhere between totally absurd and merely unconvincing. If I recall the definition of insurrection was very broad and would include numerous other political happenings over the last 10-20 years that were curiously never ever called insurrections before because . . . reasons.
.
It’s not stupid to believe your statement is too narrow a definition of insurrection (nor is it stupid to believe your statement is correct).
To me, the problem remains the Senate didn’t convict and disqualify Trump. Even if J6 wasn’t an insurrection, the attempt to steal the election (from election night through J6) was a High Crime.
I can see your last point. As I recall, Trump asked Pence to do something that was not constitutional. That was the key thing for me, most of the other stuff is too vague or subjective, I have no doubt Trump genuinely thinks there is widespread Dem voter fraud/arguable cheating. On the legal issue Trump would probably say that he was just making every possible legal argument and found some lawyer to back it up, but it’s a stretch.
When you haven’t read the DC indictment, but want to look like you know what you’re talking about.
Doing nothing for hours after the riot began makes the stretch even more implausible.
(Although, I recently learned of an posted about very interesting evidence and video footage that suggests the entire rioting portion was preceded by unprovoked firing of tear gas cannisters and rubber bullets (!!) against persons who were doing nothing wrong including elderly women.)
This is almost always the case with “mostly peaceful protests.” Welcome to Earth! Maybe the guide entry should’ve been “mostly peaceful.”
I don’t agree that it was with the intent of stealing an election… as I recall the protest was called “Stop the Steal”
When your method of stopping the steal involves breaking into Congress to “hang Mike Pence” you might want to stop and consider whether you’re the baddie.
It doesn’t matter if not everyone there was violent. That’s like saying not everyone in the confederacy took up arms and so therefore it was a mostly peaceful protest and not a civil war at all.
Shades of Obama’s “composite girlfriend,” it’s really sad how the only way you can posture that there some sort of grand master plan is to attribute every single inflammatory word and action from any given rando(s) to the entire crowd.
A mob chants ‘hang Mike Pence’ and then breaks into the place where Mike Pence is…I think you can make some connections.
Yawn. If you have anything beyond the same lazy few-second spliced video of a few people the J6 committee ran into the ground, please do share it. Otherwise you’re just reinforcing my point.
I’m not posturing a grand master plan, and I’m explicitly not attributing every single inflammatory word and action to the entire crowd. Neither of those is needed for Jan 6 to be an insurrection, just like, as I said, it’s not needed for every citizen of a southern state to have been an integral part of the war effort for that to have been an insurrection.
Hey, if you think you can make your point without that sort of outrageous rhetoric, that might help your actual message shine through. Just a thought.
My comments are directed to people who can read.
ML pulls a, ‘I’m no fancy pants big city lawyer, but my horse sense…’
“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.”
Websters Dictionary 1828
If you can find an authoritive definition of “insurrection” that supports your point please post it here.
Perhaps this order from SCOTUS shows the justices read the Volokh Conspiracy:
Putting aside the substantive merits of the Section 3 debate for a moment, Baude and Paulsen will never succeed in changing a single mind because they are not credible messengers. They are both standard never-Trumpers who have been engaging in anti-Trump histrionics since before he was even elected. No one seriously thinks they embarked on their research without a predetermined conclusion on Trump’s disqualification.
Even here, they are dismissive of the concerns about denying some 70 million or so voters the right to vote for their chosen candidates. They either don’t realize or don’t care how such a step is really playing with fire. But this is just typical ivory-tower obtuseness about the real world, the world beyond the faculty lounge.
The Constitution has consequences–who knew?
Your observation is meaningless and not particularly relevant to anything I wrote, but at least it is brief.
Section 3 was meant to prevent another civil war, not start one. But, frankly, the men who drafted it were much smarter and less emotional than today’s ruling class of “intellectuals”, which explains the country’s current, probably irreversible, decline.
Emotional! Who’s so irrationally infatuated with their charismatic ideologue that they’re willing to vote for a constitution-hating likely insurrectionist out of pure butthurt? This situation is obviously not one that the drafters of the Fourteenth Amendment anticipated. But who could ever expect them to have imagined such a huge segment of the American population having such unfathomable emotional immaturity?
F.D. Wolf, your argument is that the Court should ignore the Constitution, and decide instead on the basis of conjecture about unforeseeable future political consequences. Problem is, untoward political consequences have been conjectured on both sides of the question.
On what basis do you advise the Court to choose one side of that threatening dynamic vs. the other? Why do you suppose doing it that way will turn out better for the Court and the nation than would deciding on the basis of the case before the Court, and on the basis of an originalist interpretation of the 14th Amendment?
Please be certain to consider judiciously in your reply what context each side’s conjectured baleful effects will supply—and also what advantageous effects, both for the Court and for the nation.
Since when, in a Constitutional Republic are matters this important left to the voters and not to our electeds and their appointed officers? What you are saying is that the Constitution should be ignored and that the mob shall decide.
Remind me why we should be “putting aside the substantive debate.” Regardless of who they are and whether or not they support Trump, they make arguments that should be engaged with. And I think they have changed a LOT of minds, that is why the pro Trump crowd has been so vociferous in attacking them, and making specious (and occasionally better) arguments against their position.
Does 18 USC §2383 violate the Constitution?
“18 USC §2383. Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Only the Constitution has the power to set the qualification standards for president and vice president. Since 18 USC §2383. disqualifies ANYONE who is convicted of insurrection from holding the office of the presidency including individules who have NOT previously held office and taken an oath to suppot the constitution is this statute constitutional?
“As time has passed and new election cycles have begun, some have tried to rewrite the history and significance of the insurrection on January 6. But any reasonable, good faith consideration of the events surrounding January 6 necessitates the conclusion that Trump encouraged an armed, violent mob to prevent Congress from taking an essential step in the transition of presidential power.”