Prof. Michael McConnell: "'Narrow' or 'Sweeping'—What Does Originalist Evidence Have to Say?"

I'm delighted to pass along this item from Prof. McConnell (Stanford), one of the leading American originalist scholars:

I most often agree with my good friends and casebook co-authors Will Baude and Michael Paulsen on matters of constitutional interpretation. But not about the attempted disqualification of Donald Trump for running for President. My friends published the opening salvo in the current debate with their 120-plus page article arguing for a "sweeping" interpretation of Section Three of the Fourteenth Amendment. The word "sweep" is in the title of their article, and "sweeping" was repeated over a dozen times. At every point when they faced an interpretive ambiguity, they opted for the most expansive interpretation.

I responded with a brief post on this site arguing against such a sweeping interpretation, on the basis of both democratic theory and originalist evidence. I later elaborated on those themes in an essay in Public Discourse, citing evidence that the Amendment was interpreted narrowly in the several years it was actually enforced.

A few days ago, Baude and Paulsen published a new post in which they suggest that my advocacy of a "narrow" interpretation violates the originalist norm that constitutional provisions "should not be interpreted with a thumb on the scales in favor of either a 'narrow' reading or an 'expansive' reading," but simply given the reading most plausible in light of its terms and original understanding.

Well enough, but what did I actually say? "Section Three must be enforced to the full extent of its text and historical meaning. But [it] … must not be interpreted any more broadly than its text and history compel." I submit that is exactly what originalist norms call for. Moreover, my Public Discourse essay relied for its narrow interpretive approach on the actual interpretation of Section Three by those who enforced it at the time—evidence not discussed by my friends in their original article or their recent post. Persons elected to Congress who, having previously taken the relevant oath, took arms against the Union were excluded from taking office, but others who had taken acts in support of secession but had not literally "engaged in" the insurrection were allowed to take their seats. (I put the word "engaged in" in quotation marks because that is the operative constitutional term.)

For example, a Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia's House of Delegates, and voting to appropriate funds to ready the State for armed hostilities with the Union. Similarly, John M. Rice of Kentucky was permitted to take his seat despite having voted for secession and even assisting in recruitment into the Southern armed forces. The distinction seems to have been that these men were not themselves combatants. While they certainly had supported the rebellion, they had not "engaged in" it—or so majorities of the House of Representatives concluded.

Commenting on enforcement proceedings at the time, one congressman noted in 1869 that the House of Representatives in its rulings on the meaning of Section Three, had "by a very decided expression of opinion, determined that it would strictly construe the rule that rendered any person ineligible for a seat in this House …. [N]obody should be disqualified unless he is clearly proven to have done some act" in violation of the Section. No one at the time described Section Three as "sweeping," and some supporters of disqualification complained it was too narrow and would not accomplish its purposes.

It turns out that the narrow reading is also the originalist reading.

Comments

[The Margrave of Azilia]

"For example, a Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia's House of Delegates, and voting to appropriate funds to ready the State for armed hostilities with the Union. Similarly, John M. Rice of Kentucky was permitted to take his seat despite having voted for secession and even assisting in recruitment into the Southern armed forces. The distinction seems to have been that these men were not themselves combatants. While they certainly had supported the rebellion, they had not "engaged in" it—or so a majorities [sic] of the House of Representatives concluded."

That's very interesting - especially the second example, which seems kind of counterintuitive.

But if the House of Representatives, in its judicial capacity of judging members' qualifications, issues a decision, such a decision should have *some* precedential value - and not necessarily because of originalism, either.

So it would seem that borderline cases weren't considered by the House at the time to trip the Section 3 alarm. This is valuable information for me.

[Randal]

The distinction seems to have been that these men were not themselves combatants.

That seems like a stretch to me. The distinction seems to have been that these men were just voting on stuff. Taking sides on an issue definitely doesn't count as "engaging."

But someone like Lee is certainly covered, even though he wasn't running around shooting Northerners himself. The case that Trump "engaged" is that he set the insurrection in motion intentionally, then actively used it in attempts to coerce Congress personally, himself. That's much more than just taking sides.

Maybe you don't agree that he actually did all that, but if he did, he engaged.

[Kazinski]

I hear that Trump purposely set the riot afoot, but the only evidence I've ever presented is the "coded language" speech.

And even that couldn't have incited the capitol hill riot. The first breach of the police barricades happened 17 minutes before Trump's speech was over. It fact by the time the people who listened to Trump tell them to go to the Capitol and "If you don't fight like hell, you're not going to have a country anymore" could not have gotten to the Capitol until at least 2pm. The last barrier to the Capitol had already been breached by the time they could have arrived.

[ObviouslyNotSpam]

Why do you keep mentioning the timing of the barricade removal and the "end" of Trump's speech? Was there a "ready, set, go" at the end?

No, Trump's speech was an hour and 10 minutes long. Many of his supporters left before the end:

"In a series of emails that followed, protective service officers messages offered a blow-by-blow account of the march to the Capitol from the rally where Trump spoke.

“Protesters moving towards the capitol down Pennsylvania, Constitution and Madison in numbers estimated 10-15,000,” read an email sent at 12:28 p.m.

The officers tracked them across the city and at 12:57 p.m. a message read, “Large group just breached the USCP barricade on the West Front,” referring to the Capitol Police barriers on west side of the Capitol Building."

Trump's speech finally ended at 1:10pm.

[Randal]

There were also the days and weeks leading up to the 6th. I knew what was gonna happen on the 6th based on Trump's public announcements. Didn't you?

[A nerdy Fred]

Thanks to Professor McConnell for the relevant historical research.

A contrary bit of history is the Section 3 disqualification of Victor Berger (https://en.wikipedia.org/wiki/Victor_L._Berger). He was a non-combatant, anti-war in fact.

[Kazinski]

Interesting case, but how is it contrary to McConnell’s opinion. It says that "The House of Representatives twice denied Berger his seat in the House due to his original conviction for espionage using Section 3 of the Fourteenth Amendment to the United States Constitution regarding denying office to those who supported “insurrection or rebellion”.[3] The Supreme Court overturned the verdict in 1921 in Berger v. U.S., and Berger won three successive terms in the House in the 1920s.”

It’s doesn’t say by what process the house denied him his seat, but I’m guessing it was a vote of the house “judging the qualifications” of its members.

But in any case the Supreme Court wiped out any possible precedent his expulsion based on the espionage act could have by voiding his expulsion and allowing him to take his seat.

If anything it supports McConnell's view.

[Kazinski]

Actually reading the case further:

Berger was an Austrian born socialist who had served on term in congress after being elected in 1910.

He was then convicted under the espionage act in the closing days of WWI, even though he was under indictment for espionage he ran for Congress and won in 1918, and was convicted before his term started in 1919.

Congress refused to seat a felon convicted of espionage based on Section 3.

Bergers conviction was overturned in 1921 and he ran for Congress again and served 3 more terms.

I hardly think it gives any support to the Self Executing theory that a felon convicted of espionage was denied a house seat by a vote of the house citing Section 3 of the 14th amendment.

Even more tellingly after his conviction was thrown out he was seated without a 2/3 vote of both houses removing his disability

Obviously the conclusion was any disqualification from office lapsed when his conviction was overturned.

So much for the self executing Section 3.

[Brett Bellmore]

Yeah. I’d have to say that the way Baude and company disposed of the Berger case in their paper, (Starting on page 59) was pretty disturbing:

“Berger was denounced by members of the House for having given “aid and comfort to the enemies of this country during this Great War,” and excluded in part on that basis.219 (Indeed, Berger had also been convicted and sentenced under the Espionage Act, though the charges were overturned by the Supreme Court on grounds of judicial bias.)220

220 Berger v. United States, 255 U.S. 22 (1921). Curiously, after this verdict the House then allowed him to sit in the sixty-eighth through seventieth Congresses. Lynch, supra note 5, at 213.”

There are a few other mentions, but this is the most detailed, despite how dismissive it is.

I’d been aware of the case already when I read their paper, and knew it did NOT help their thesis, so I went straight to seeing how they dealt with it.

Relegating the conviction to a parenthetical, as though it had nothing at all to do with their refusal to seat him, and treating their seating him once the conviction was overturned as merely “curious”?

They didn’t engage AT ALL with how it hurt their case. And I know for a fact they looked into it, and were aware of the details.

Note, that they didn't require a 2/3 to seat him after the factual predicate for applying Section 3 to him vanished doesn't mean Section 3 isn't self executing. It just means that they treated the original disqualification as a mistake.

The killer here is that they WERE treating the conviction as the genuine factual predicate for disqualification, NOT the speech that Baude treated as their reason for disqualifying him.

[Brett Bellmore]

Moreover, Berger's conviction hadn't been overturned on a basis that suggested he was innocent of the espionage, either. It was on a technicality. They treated the conviction itself as determinative.

[Kazinski]

Well the 1917 espionage act was one of those pieces of legislation like the Sedition acts that would never pass muster today.

As far as I can tell Berger's crime was being born in Austria and being both a socialist and anti-war. It was enough to get him convicted though.

[Brett Bellmore]

Pretty much. Though they called it "espionage", he wasn't a spy of any sort, it was actually a sedition case, his offense was publishing anti-war literature.

But the conviction was overturned on a technicality: Berger and his fellow defendants had filed a motion to have the judge assigned them replaced on the basis of supposed anti-German sentiment. The judge didn't recuse, and they got convicted.

It was overturned because the Court decided he should have recused.

[David Nieporent]

Congress refused to seat a felon convicted of espionage based on Section 3.

[...]

Obviously the conclusion was any disqualification from office lapsed when his conviction was overturned.

Well, no. The problem is that the above statements are incorrect. In fact, Berger's disqualification was explicitly not based on his having been convicted. Congress expressly said that it was doing its own assessment rather than relying on the conviction.

[Brett Bellmore]

What they said is that they weren't bound by a judicial determination.

And that's so, because they had the article 1 power to determine the qualifications of their own members, and so didn't need a judicial determination to exercise that power. If you were elected to Congress, they could disqualify you on any basis they wanted. That Article 1 power, of course, doesn't extend to the Presidency.

This is not to say that they didn't treat the conviction as establishing his guilt, and relent when the conviction was overturned, even though it was overturned on a technicality. They absolutely did.

[Kazinski]

So on what basis was Berger’s disqualification removed then?

I can think of only one valid process under a self executing Section 3: a vote of 2/3 of the members of both houses.

And I see nothing in the record about that happening, and Baude and Paulson would certainly have brought it up.

Second possibility is that when the espionage conviction was vacated then the disability was vacated. You claim that can’t be the case, but it seems the most likely. Especially since Berger was elected under the Socialist Party of America (SPA), he was hardly popular among either Democrats or Republicans.

The third possibility is that Berger was elected again in 1922, and thus an intervening election restored his eligibility. That doesn’t support the self executing Section 3 either and also bodes well for Trump: if he gets elected in ’24 it erases all sins?

What was the mechanism for Berger’s rehabilitation under Section 3? Do you want to just go with the 'curious' clause?

[Brett Bellmore]

"What was the mechanism for Berger’s rehabilitation under Section 3?"

Pretty straightforward: That the original application of Section 3 had been by mistake. It was on the basis of his conviction for espionage, which conviction got overturned. So, the factual predicate for applying it to him was gone.

The vote is required to remove the disability only if the person is properly subject to it. Not in a case of "Whoops, I guess we were wrong about you being guilty!"

[NOVA Lawyer]

You are both dismissing the other equally plausible explanation that, with the war over and consequent calming of hysteria against people of Germanic descent and against those expressing anti-war views, Congress decided they had been wrong to apply Section 3 to Berger regardless of what happened in criminal court. They had already said a criminal conviction wasn't determinative, so having it overturned on a technicality shouldn't have affected their independent assessment. Your position is, essentially, that they were lying about the effect of a criminal conviction.

In short, maybe the same forces which may have influenced the appeals courts to overturn the conviction on a technicality (and prosecutors apparently not to retry him) also pushed Congress, independently, to reevaluate their mistreatment of Berger.

As usual, neither of you ever seem to consider alternative hypotheses. You find one plausible hypothesis and, if it supports your position, go all in on it.

However, I agree the case likely warranted more discussion than Baude and Paulsen give it.

[Brett Bellmore]

"Your position is, essentially, that they were lying about the effect of a criminal conviction."

No, I don't think they were lying about it, so much as defending institutional prerogatives. They genuinely were NOT bound by what the courts might say, because the Constitution says in article 1 that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,"

In this case, the "the" isn't a transcription error by the National Archives, 😉 they really are "the" judge of this matter, nobody else really has a say. (You could argue Section 3 amends that, but I'd argue the presumption against implied repeal.)

Nonetheless... They relied on the judiciary's determination of Berger's actual guilt as dispositive. For all that they didn't have to, this was what they did in practice.

[Randal]

They relied on the judiciary’s determination of Berger’s actual guilt as dispositive.

No they didn't.

[Kazinski]

Then how did Berger eventually take his seat without Congress removing his disqualification by a 2/3 vote?

The only reasonably possible answer is after the Supreme Court vacated his conviction then Congress considered his disqualification lifted too.

About the only other explanation is that someone said "look a squirrel" and Congress plain forgot that just 2 years before they had voted to unseat Berger.

[Randal]

God you can be stupid sometimes. It’s the difference between a pardon and actual innocence.

Imagine Congress had rejected Obama’s electoral votes because Hawaii had misplaced his birth certificate. Disqualification activated! And there’s no way for Congress to override that. But if Hawaii found his birth certificate later, he’s not still disqualified. He could run again in four years.

In the same way, Congress could have thought Berger engaged in insurrection — disqualified — then later decided that actually he hadn’t — qualified.

The 2/3rds vote is for when someone really did engage in insurrection, and Congress wants them to remain qualified anyway.

[Kazinski]

What's the Section 3 remedy for saying "nevermind"?

2/3 vote by both houses of Congress.

Courts don't just ignore a conviction because it was erroneous they have to reverse it.

Is Congress really so unmindful of its prerogatives in making rulings on qualifications and unseating a member it would just ignore it and sweep it under the rug?

I don't think so. Nobody has presented any evidence from the 1923 session on either side, but I'd say the far more likely explanation is when the Supreme Court ruled that Berger was unjustly convicted and vacated the conviction Congress considered the disqualification vaatedd too.

[mydisplayname]

> "evidence not discussed by my friends in their original article or their recent post"
I'm delighted that I am not alone in noting crafty omissions by Baude.

> "The distinction seems to have been that these men were not themselves combatants. While they certainly had supported the rebellion, they had not 'engaged in' it"
Precisely.

Unlike the thirteenth amendment, the fourteen and fifteenth were most definitely retaliatory, needed to tapdance around the fact that the secession was never recognized, and were ratified by hand-picked legislatures. These two Amendments should hold little weight.

As a sidenote, both my father and still-living mother knew both CSA and USA soldiers (my great grandfather was one and, at the age of 91, saw the birth of his youngest son [!!]). I mention this only because Lincoln's Invasion of the CSA was not that long ago: the Government Printing Office printed circulars explaining the new Amendments and paper copies of these circulars still exist.

[David Nieporent]

The so-called "CSA" didn't exist and therefore could not have been invaded.

[Brett Bellmore]

Rolling my eyes here. That's China's stance regarding Taiwan, you know. It's as stupid in both cases.

[Michael P]

Well, I'm glad we didn't fight a war over that non-existent body, then. I would have hated for 600,000 Americans to have killed each other over an imaginary place.

[David Nieporent]

Oh, we absolutely fought a war against a bunch of treasonous losers. But at no time did they represent the legitimate government of anything; the southern states were in rebellion, but they remained part of the U.S. the whole time, and a country cannot invade itself.

[Brett Bellmore]

And, again, that's exactly what China will say when they get around to invading Taiwan.

[NOVA Lawyer]

Bad actors often use the same arguments as good actors. It’s why you so often see brutal totalitarians claiming they are fighting terrorism when they are actually committing terrorism or suppressing freedom of expression or peaceful political dissent. That doesn’t mean the bad actors are right or that good actors making the same argument are wrong.

So, yes, China does (or will) say the same thing. Only, the Taiwan government was the legitimate government prior to the communist revolution and the communists never managed to take Taiwan. Thus, regardless of how you feel about China or Taiwan or the United States, all are different from the CSA. The CSA is much more analogous to communist China in that they were an upstart with an evil ideology that rebelled against the current government only the CSA never gained legitimacy because they were losers in every sense of the word.

Communist China won the war which is why they are now recognized as an actual government.

[Brett Bellmore]

The Union was "a" bad actor in that war, they just weren't the worst bad actor in it.

[NOVA Lawyer]

The Union was “a” bad actor in that war, they just weren’t the worst bad actor in it.

That's some stupid apologetics. The Union ended slavery. That makes up for a whole lot of whatever bad stuff you think they did. The South is responsible for killing over 620,000 Americans (and horrifically injuring many more) in an effort to continue enslaving roughly 4,000,000 Americans. Fuck you for the sniveling whine that the Union was "a" bad actor.

[Brett Bellmore]

Look, just to make this clear: The South seceded between December 1860 and April 1861. The Confederate government was established in February of 1861.

They didn't surrender until April 9th, 1865.

That's four years as an independent country. Those four years didn't just magically not have happened just because they lost the war. Suppose they'd won the war, and the Union had to give up on dragging them back in; Would their status in those four years have retroactively changed?

No, that's silly. The CSA existed, lost a war, and were dissolved. Only idiots pretend that they never existed just because they were eventually defeated.

[NOVA Lawyer]

Being in rebellion and actually being an independent country are two different things, Brett. They never achieved independence, much less legitimacy. Consequently, they were never an independent country or a legitimate government.

Under your theory, idiots that claim their 2 acres is an independent country have actually established an independent country until, for whatever reason, representatives of the government come to the property and exercise power over them as a sovereign. Just saying you are an independent country isn't enough to make it so.

Are the Palestinians an independent country? Is it only because they don't claim to be, but if they did claim to be, they would be their own country? So the only impediment to a two-state solution is the Palestinians neglected to say they are an independent country?

[Brett Bellmore]

They achieved independence, and had it taken away from them after a protracted war.

[MaddogEngineer]

No, not independence. Only a fleeting period of autonomy. No other nation state ever recognized their independence.

If they had succeeded, they certainly would have dated their independence from secession. But they didn't succeed.

Lincoln (and Congress following his lead) were careful never to recognize the legitimacy of any independent government(s) after secession was declared. And in the aftermath of the rebellion, SCOTUS ruled secession isn't a thing. Because they lost.

No different than the American Revolution. The signers of the Declaration were fully prepared to be punished as traitors if they lost. They didn't lose. Winning or losing decides legitimacy. Just like King Charles II, once securely in charge, dated the start of his reign to the day his father was beheaded.

[Kazinski]

Well, as I pointed out a few days ago after reading the Historians brief, the Reconstruction Congress seemed to pivot on that question, and did not want it tested in court. That's one reason Jefferson Davis' trial collapsed, they did not want his claim that secession was legal tested in court.

If secession was unconstitutional and void, then Congress requiring the conquered states to reapply for readmission and meet certain conditions like ratifying the 14th amendment was also illegal.

They wanted their cake and to eat it too.

[Brett Bellmore]

That's why I keep saying it's a mistake to try to apply Civil war precedents in a country at peace. They were hardly even pretending to follow the Constitution at the time. We shouldn't look at the legal precedents from that era as though the people generating them really cared if what they were doing was legal.

Splitting up Virginia, for instance. Grossly unconstitutional. Could the US do that again today? Sure, why not, if Civil war precedents are actually valid?

The only real Civil war precedent is that the winners of wars get to do what they want, and the losers have to suck it up. And THAT precedent goes back a lot further than the Civil war.

[MaddogEngineer]

No, Virginia’s split wasn’t grossly unconstitutional. It was clever (self-serving) lawyering. The hinky thing there, something not explicitly addressed in the Constitution, is what authority at the federal level can “recognize” a state government. The Founders never anticipated such a lapse in a state’s governing legitimacy. The closest provision for recognition is each house of Congress being the judge of its elections with the authority to seat (or not) any member. Runner up is guaranteeing a republican form of government to each state. Essentially a political question, which the Union resolved by making up rules about that on the fly. Recognizing the rump (West) Virginia government as the true successor, and agreeing to its request to divide the state. Even though it did not control all its territory and was therefore not representative of the entire state’s population (which today would have failed under Baker v Carr, but oh well.)

[Brett Bellmore]

Yes, it was grossly unconstitutional, unless you're determined to engage in obvious sophistry to pretend otherwise.

Could you do the same today? Could a Republican Congress and President decide to recognize a fake legislature of eastern California as the legitimate legislature, accept their application to split the state, and break California into several states gerrymandered to be all but one Republican?

Why not, if Civil war precedent is legit, is just "clever lawyering"?

You don't, if you're honest, engage in this sort of constitutional sophistry.

[MaddogEngineer]

The legality of secession and the legal dissolution of state governments that voted it are two sides of the same coin. That was the Reconstruction Congress's view, on a spectrum. At the very least, those state governments ceased to exist, because they renounced the authority of being under the U.S. Constitution..even though some of the same elected officials remained in office. The harder/contested question was whether the sovereignty of the rebellious states had also been extinguished.

[Brett Bellmore]

"At the very least, those state governments ceased to exist, because they renounced the authority of being under the U.S. Constitution..even though some of the same elected officials remained in office."

Kind of a silly argument to make when at least four of those states had actually pre-dated the US Constitution itself.

[Stephen Lathrop]

Another guy who has lost his Cause.

As the 19th century humorist Petroleum Vesuvius Nasby used to intone from the stage, "We are all descended from grandfathers!"

I too have seen living ex-CSA soldiers. They were honored in a parade in Maryland, circa 1951, if memory serves. An invited Union veteran was ailing and unable to attend.

A much prouder memory is the time I showed my then-six-year-old son through Statuary Hall, in the Capitol. I directed his attention to the then-still-resident statue of Robert E. Lee. He looked up non-plussed, and asked, "What's he doing here?"

These days, that question would not come up. Lee is gone, and that is a very good thing.

[Dan Schiavetta]

It’s pretty obvious that Originalist McConnell would have expressed a different opinion if the events of and leading up to January 6 had been presented to him as a hypothetical (with fictitious names) 20 or even 10 years ago.

[The Margrave of Azilia]

Hypothetical outrages are the worst kind.

[Dan Schiavetta]

It's the obvious truth.

It had to be a "hypo" (as law students put it) because it would have been seen as ridiculous and almost other-worldly if presented 20 years ago. Such a thing had never happened, and it would have seemed too "out there" and improbable for the Prof. to accept it as a hypo on one of his exams.

[Brett Bellmore]

Well, the Antifa/BLM riots and 'autonomous zones' would have been regarded as ridiculous 20 years ago, too. Not that they'd have thought riots never happened, just for the way they were handled so gingerly, especially those 'zones'.

[Kazinski]

The fact that the riots were condoned by elected officials was the ridiculous part.

McConnell I'm sure was familiar with the Rodney King Riots of the early 90's, the Watts, Newark, and Detroit riots of the 60's. And various riots and revolutionary movements of the 70's.

I myself was smack dab in the middle of the Battle for Seattle in the late 90's.

[Brett Bellmore]

The Detroit riots got close enough to our home that you could hear the shouting, before the National Guard put a stop to it. They lined up at 9 mile, and made it clear that they WOULD fire if the rioters didn't turn around.

[NOVA Lawyer]

“The fact that the riots were condoned by elected officials was the ridiculous part.”

Citation please.

Although, presumably, you make this statement by dishonestly conflating "protests" with "riots". There were both, they were not the same thing or the same people. (To help you understand, everyone at the Ellipse on January 6 did not then go the Capitol and participate in the riot to breach the Capitol. Some were just protestors. Others were rioters. I know that's a complex idea, but I'm sure you can grasp it if you try.)

[Brett Bellmore]

Always it's this: We talk about the riots, and you insist we're actually talking about the protests.

[Stephen Lathrop]

Bellmore, that is because you keep referring to innocents. The protesters are the innocents. The others are guilty.

[NOVA Lawyer]

Brett, who condoned the riots (i.e., burning things, stealing things, assaulting people)?

I'm not aware of any elected officials condoning the riots. He made a claim. Back it up. And not some city dog catcher or his point is ridiculous. There is always some local official or school board member who does something ridiculous. Anyone with even a modicum of state or national standing condone the riots?

[ObviouslyNotSpam]

They're usually referring (disingenuously) to Harris's support of the protests as support for the rioting.

[NOVA Lawyer]

This is what I assumed. But thank you.

[MaddogEngineer]

How is that obvious? It’s only obvious to those who have decided Trump is guilty of anything and everything, so anybody believing differently is obviously an unprincipled hack.

I both agree with McConnell and wish Trump were disqualified, not letting my personal preferences cloud my view of the law.

[Stephen Lathrop]

I had thought McConnell would show us a glimpse or two of the originalist principles he mentions. He invokes them as sanctifications, but they remain mysterious. Baude/Paulsen discuss at length the nuances of originalist argument as they see it, so that any reader can at least understand why they think their conclusions are justified. McConnell says, "Originalism says you're wrong."

[Kazinski]

This seems a little more substantive than "originalism says you are wrong":

"I submit that is exactly what originalist norms call for. Moreover, my Public Discourse essay relied for its narrow interpretive approach on the actual interpretation of Section Three by those who enforced it at the time—evidence not discussed by my friends in their original article or their recent post. Persons elected to Congress who, having previously taken the relevant oath, took arms against the Union were excluded from taking office, but others who had taken acts in support of secession but had not literally "engaged in" the insurrection were allowed to take their seats."

It certainly seems to tie in the text "engaged in" with what Congress thought it meant at the time. I'd call that originalism.

[Stephen Lathrop]

"I'd call that originalism," is the full extent of the explanatory effort, although I concede that, "persons," were mentioned.

[Michael P]

Why are you so bad at reading? Or are you "merely" bad at defending your position? Maybe you're bad at recognizing when you're wrong?

Prior evidence suggests the third is the most likely.

[ObviouslyNotSpam]

He's not wrong.

[Roger S]

Trump should have a clear win at the Supreme Court on this issue. Only hard-core Trump-haters want him kicked off the ballot.

[Randal]

Well, Trump haters and constitutional originalists.

[ObviouslyNotSpam]

What I want is for him to stand trial and--if convicted--go to prison.

Kicking him off the ballot is very much second-best.

[Kazinski]

After Baude and Paulson spent so much time Lashing others for incomplete quotes, you'd think they would fully quote McConnell in rebutting him.

Quite the frenzy everyone getting their last licks in before oral arguments tomorrow.

[Brett Bellmore]

Yes, tomorrow night there will likely be much wailing and gnashing of teeth. Yet to be established whose teeth, though...

We're likely to know pretty quickly which arguments are and aren't gaining traction.

[Brett Bellmore]

Here’s an essay demonstrating just how Trump opponents pretend that Trump’s guilt is just drop dead obvious:

If SCOTUS Won’t Enforce the 14th Amendment, We Should Worry How They’ll Handle the 22nd

Because it’s just as obvious that Trump is guilty of insurrection, as it is that Obama has already served two terms… The Court can’t leave Trump on the ballot without just throwing their hands up and declaring they’re not going to enforce the Constitution!

[Nige]

What Trump tried to do and what he did do, and what his supporters did for him, are all obvious. What’s less obvious is how you rationalise condoning it by squabbling over what to call it, as if it not meeting a defintion of ‘insurrection’ means it’s within acceptable behaviour and voting for him isn’t voting for an anti-democratic authoritarian, and that opposing even the suggestion of consequences for his actions is part and parcel of that.

[PaulS]

"and voting for him isn’t voting for an anti-democratic authoritarian"
Aren't you making the point - it's about the choice of "Voting for him" or (hopefully) not. There are many issues - this being only one - where we have given up on trying to convince people to do what we think is right and instead just want to tell them what they can't. (of course that's not "anti-democratic authoritarian")
However, that is not what the ins and outs of this court case are focused on - its the law that is the issue (at least in theory). But the public response to any decision is really based on voting for him or not.

[Nige]

I have no control over whether in the end people will be able to vote for him or not, I expect they will, but I want to know why I can't conclude that anyone who does vote for him is showing themselves to be anti-democratic and authoritarian, and whether they embrace it or have some means of justifying themselves while at the same time invoking 'democracy!' in this particular argument.

[NvEric]

"What Trump tried to do and what he did do, and what his supporters did for him, are all obvious. "

Tried to do ?
Obvious to whom ?

Investigating the many irregularities of the 2020 election were about to be discussed in Congress, but NO. A preplanned "attack" occurred instead, and one in which many people were ushered in by Capitol Police themselves. The many other, unknown numbers, of federal personnel in the crowds had a duty to prevent any "incursion" but did they do a damn thing ?

Inside the Capitol no attempt to continue was made, as should have been done, but rather a very quick evacuation was made to further hide any truth of being discovered. Lt. Byrd and others were the only ones armed, and as we know could have continued shooting to kill, without warning, any attempting to disrupt proceedings, thus allowing the proceedings to continue so that an examination of the many concerns could be addressed.

[Nige]

This is certainly one way of justifying it: an almost illegible concatenation of revised histories, inaccuracies, decontextualised actions and irrelevancies.

[Brett Bellmore]

I suppose I should tank you for demonstrating my point: That Trump's foes aren't willing to admit there's anything to prove.

But it somehow seems like thanking the Sun for rising, it was so certain at this point.

[Nige]

And Trump's defenders act like he can only be judged to have done something anti-democratic and authoritarian if there's some sort of legal finding to that effect, even though they won't believe any legal finding against Trump ever.

What's to prove about the things he actually did? They're not in dispute. You're just invested in shielding him from consequences.

[ObviouslyNotSpam]

I suspect the matter will be heard by the Supreme Court itself.

Is that good enough for you?

[NvEric]

A bottom line in this continuing saga is one of ARMED VIOLENCE in any claim of "insurrection," either now or in the past. Without such ARMED VIOLENCE, their is no insurrection.

Reading the insurrection statute(s) one would have to arrest and try everyone along the way who "assisted" those being politically persecuted, hundreds and hundreds. First off would be TSA agents who allowed, assisted, all who flew to DC for the peaceful rally on 1/6/21. Then the many others who piloted planes, served meals, boarded for sleep, etc., etc., etc.

A nonsense legal reading would know no bound, in fact it has not had much boundary for the past 8 years when one considers the continual onslaught against Trump and also, something not discussed much - the very same attack against this Republic and each Citizen too. The concerted efforts of those inside our federal government doing the attacking against Trump, the People, and themselves too, is a sickness to be rooted out.

[Nige]

Y'know black kids have been shot under the justification that having fists meant that they were ARMED.

[Kazinski]

There was a case about two blocks from where I worked about a decade ago where a woman shot an unarmed teenager she had an altercation on the bus with. He swore at her, and threatened her, followed her off the bus. When he lunged at her she shot him in the chest.

Next day the police returned her gun to her, and no charges were filed.

The DA said she didn't have any obligation to see how badly he was going to beat her before she used deadly force.

Seems about right to me.

[Randal]

Maybe the woman started the altercation and kept intentionally escalating it, hoping to provoke a strong enough reaction to be "justified" in shooting a kid she didn't like. Would you still be fine with that scenario?

[Randal]

By "armed" I assume you mean with firearms. I don't see where that requirement comes from, or what sense it makes.