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Michael Rappaport on "the Originalist Disaster" of the Supreme Court's Ruling in Trump v. Colorado
A leading originalist legal scholar explains what the Court got wrong.
Michael Rappaport is one of the nation's most prominent originalist legal scholars, and author of such important works as Originalism and the Good Constitution (coauthored with John McGinnis). For those who care, he's also considerably to the right of me politically. In a recent post at the Originalism Blog, he skewers the Supreme Court's recent ruling in Trump v. Anderson, the Section 3 disqualification case:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster…. While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it.
The opinion relies upon spurious, non-textual reasoning. It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause…..
The Supreme Court opinion says that nothing in the Constitution delegates to the states the power to disqualify federal candidates. But this is obviously mistaken under the original meaning. The Constitution says that "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." This provision allocates to the states the power how to run their presidential elections. State legislatures could decide not to hold elections at all but could assign their electoral votes to the candidate of their choosing. States have broad authority to structure their presidential elections. While this authority might be subject to other constitutional limitations, the Court does not point to any such limitation here.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications. Even without such federal legislation, the Supreme Court has the authority to hear challenges to the state determinations, as it did in this case (although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions….).
It is true that presidential elections have come to be viewed as national elections. This view has led many people to view the electoral college as inconsistent with such national elections and to argue for a national popular vote method instead. But that is not the system that the Constitution establishes. Instead, the Constitution grants significant authority to states over presidential elections. That is the original meaning.
I think Mike is right here on virtually all counts. I offered some similar criticisms of the Court's ruling here.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an "insurrection," but merely some other kind of violence.
In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump's lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.
Mitchell did make the much stronger argument that Trump's involvement in the attack wasn't great enough to qualify as "engaging" in insurrection. I think that was the best argument on Trump's side of the case, though I also think the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rappaport is right about the federal Supreme Court's reliance on the claim that Section 3 isn't self-executing with respect to candidates for federal office. It is, as he puts it, "an unprincipled, pragmatic resolution" of the case, one that cannot be justified on originalist grounds.
I am less convinced he is right to suggest this outcome occurred because the Court's "self-interest was severely implicated." Perhaps the justices were driven by genuine, even if overblown, fears that letting states adjudicate Section 3 issues with respect to candidates for federal offices would lead to a chaotic "patchwork" of conflicting rulings. But if so, that's still a triumph of consequentialist "living constitution" reasoning over originalism.
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So Somin would have us with 12 states removing Trump and 8 removing Biden from the presidential election, and feeling just fine about he chaos to follow.
I agree with Somin. Blue states remove everybody from the ballot but who they want and red states can do the same both sides get their own President and everybody is happy right?
That seems right to me… we already know who like 48 of the states are gonna vote for anyway. What exact form is this alleged “chaos” going to take?
It’ll have the effect of turning the state politicians into Presidential electors but for realsie rather than the virtual rubberstamp we have currently. Wouldn’t have pegged the Ilya and progressives as such strong supporters of an even more powerful and indirect Electoral college than what we currently have.
They aren’t “supporters” of that. Nor can you say that “progressives” are, given that the post is by Ilya Somin, making the argument of Michael Rappaport, which contradicts the “progressives” (among others) on the Supreme Court.
Instead, it’s the argument that you normally hear from so-called originalists. That you follow the “original meaning” (or expected application, or whatever …) of the Constitution, regardless of the consequences. And if you don’t like it, amend the Constitution.
Of course, this originalism only seems to apply to policy decisions that the originalists are in favor of, and seems to disappear otherwise, in which case we get some kind of, “Won’t SOMEONE THINK OF THE CHILDR…. um, consequences!!!!!”
Which might make people that are doctrinally-minded question the project a little more, but that seems beyond the scope this comment section.
^^^this^^^
Though the end may justify the means in politics, it shouldn’t in the interpretation of law. I am reminded that endlessly malleable interpretation of the constitution, in the end, gives us no constitution at all.
I’m not talking about the particular argument here. I’m pointing out holding Section 3 the way the left wants it to would in effect turn state politicians and judges into super electors. Which is strange given how much they bash the electoral college.
Again, this isn’t about “the left.”
There are many people on “the left” and “the right” that don’t care about what the law is, but simply want their policy positions of the moment advanced.
The primary intellectual approach to this argument was advanced, as far as I am concerned, by “the right” (as in, originalist scholars who happed to be considered very conservative). People have argued against it and for it for policy or consequentialist grounds on the left and the right.
Heck, as a pure matter of law, I think that the original analysis by Baude et al. was entirely correct. But as a prudential matter, I didn’t want the court cases brought, nor did I want the courts to make that originalist interpretation.
In the end, you really have to stop just talking about “the left” and “your side” as if life was some type of Manichean play that always aligns with your own preferences.
A year before each respective election, did you expect Wisconsin to flip red in 2016 or Georgia to flip blue in 2020?
“What exact form is this alleged “chaos” going to take?”
Are you really that stupid? Every single member of Congress who’s voted for Biden’s immigration actions, or to confirm any appointee who carried them out, is obviously a traitor and an insurrectionist. So they should all be removed from the ballot. So I guess Jon Tester can’t run for re-election in Montana.
Heck, GA could rule that both Democrat Senators are insurrectionists who give aid and comfort to America’s enemies in time of war (Iran killing US Service members is an act of war).
The 14th says Insurrectionists can not HOLD office. So clearly that means both must be booted, and Kemp gets to appoint replacements who get voted on in November.
That’s just the start.
The key fundamental stupidity of you leftists is that all of you are sociopaths for whom no one to your right is “real”, and therefore you can’t even imagine that we might retaliate for what you do
You sound like a small angry man.
You do realize the original post is written by Ilya Somin, not a leftist by any stretch, who is summarizing and excerpting from Michael Rappaport, who is very conservative.
And why is it the angry unhinged voices always respond to any policy development or argument they don’t like with: Do you not understand that we will, at the slightest provocation, abandon all principles and engage in a scorched-earth campaign of vengeance?
But no one is afraid of small, angry people like yourself.
These guys don’t become Volokh Conspiracy fans by being smart, educated, decent, modern people. They’re a cultivated collection of disaffected bigots, on-the-spectrum misfits, half-educated contrarians, and downscale culture war losers who hate modern America.
Retaliate all you want. Who gives a shit about Jon Tester? You’ve got to be kidding. Your bizarre fixation with Trump’s wellbeing is what’s bizarre. Do you love him? Are you going to have his babies?
It is really amazing how MAGA thinks that, “We will act in bad faith” is actually a good argument for their position.
It’s really amazsing for you morons to actually try to pretend that you’re acting in good faith here.
You aren’t, and we know it.
It’s however just par for the course stupidity for you imbeciles to thing “oh, we can do whatever we want, but the GOP will never return the favor!”
Because yes, we will.
If you get to label a mostly peaceful (cops inviting people to go in is in the video that’s been release, a$$holes) minor “riot” an “insurrection”, then every single Democrat “protest” over the last 8 years has been an “insurrection”, and every Democrat politician ignoring immigration law is an “insurrection.”
The 3 hard core lefties on SCOTUS were smart enough to figure this out. it’s amazing how stupid you have to be to miss it
“Who gives a shit about Jon Tester?”
Um, anyone who wants the Democrats to have a Senate majority in 2025 cares about Jon Tester, you pathetic ignoramus.
Since Manchin’s WVa seat is a guaranteed flip to the GOP. Flip Tester, and where do you morons think you’re going to get a GOP -> Dem flip in the Senate in November?
NO, as Lincoln said about slavery and the states. YOUR THINKING means islands of anti-slavers are persecuted in pro-slavery states,and pro-slavers are persecuted in anti-slavery states.
You can’t block from the ballot because that is a pre-vote that prevents a real vote. Normal folks get this.
In 1860 Lincoln wasn’t even on the ballot in much of the South.
In the context of 1860’s election, what does “on the ballot” mean to you?
True, but you don’t appear to know that that is WHY he won 🙂
Does the natural born citizen requirement constitute a “pre-vote that prevents a real vote”?
A small and finite number of people get to be on the ballot. It’s already different in every state. There’s no national presidential ballot. There already is a pre-vote by elites that prevents a real vote called the national conventions. I don’t get it.
No shit
No, because there is a single US Supreme Court to adjudicate the eligibility of Presidential candidates in the final instance. (As the OP explains.)
It’s not what “Somin would have”, it is what the Constitution would have.
You fail to see the distinction.
it is what the Constitution would have.
You have trouble reading? You are wrong. Somin is wrong.
I may be wrong, and Somin, too. And so may the Supreme Court be wrong. But the Constitution is never wrong.
You don’t get it, do you?
The Constitution isn’t wrong. But you still are.
No. Somin pointing out that on an originalist view of the situation, that is what the Constitution permits/requires
It’s worth pointing out that Abraham Lincoln appeared on no southern ballot before he got elected. It seems like they would have specifically addressed that with a Constitutional Amendment if they viewed that as a problem.
It’s worth pointing out that, as that election was before the Australian ballot came to America, there were no official “Southern ballots” for him to appear on. Each voter provided their own “ballot”, a slip of paper with the names of whoever they were voting for; Pre-printed by parties or candidates, or simply hand written by the voter.
He didn’t appear on ballots in several states because he was the candidate of a party that didn’t exist in those states. It’s still quite possible he got a few votes, since any voter who wanted could still have voted for him simply by writing his name on a piece of paper.
Except in South Carolina, which was the only state still appointing electors rather than electing them…
well no, that is why he won. On fair ballots he’d have lost — oh, the irony. and he did get more votes than Douglas in al previous race and lost
“When you look at that total, not only is it entirely different from what the almanacs and histories report, but the way the voting took place, Lincoln candidates for the legislature came off with about 54 percent of the vote. Douglas candidates came off with only about 45 percent.”
The correct result would be that states can remove Donald Trump or Barack Obama or Cenk Uygur from the ballot because they are not constitutionally eligible candidates, but can’t remove Joe Biden or Nikki Haley or Vermin Supreme because they are constitutionally eligible candidates.
Maybe Rappaport should have read the decision before commenting:
“Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications.”
That’s exactly what the majority ruled, and one of the major criticisms of the dissenting concurrence.
The Court did not hold that Congress had the optional power to preempt state disqualification. It instead held Congress had the optional power to permit state disqualification. Additionally, the concurrence did not criticize that part of the ruling.
Permitting states to disqualify candidates on their own initiative and interpretation of “insurrectionist” was always doomed to be a disaster. It was impractical in the 1860s, and it’s impractical now.
Applied to the presidency, I agree. But that argument is not originalist or textualist. It’s consequentialist.
It is based on what the court says is the meaning of section 5 as it bears on Section 3. It also relies on the opinion of the chief justice at the time the amendment was ratified.
Relying on a court opinion handed down the year the amendment was ratified, and then implemented by Congress seems like pretty decent originalist underpinnings to me.
If a court made ruling on the second amendment and Congress passed legislation implementing the ruling within a year of ratification then nobody would question that it conformed to originalism.
The Griffin decision did not distinguish between federal and other offices. That distinction is consequentialist.
The Fourteenth was adopted in 1868 and they realized (and litigated and fixed!) this issue by 1870. You can’t get much more originalist than that.
Now do the Alien & Sedition Acts!
Except The Alien and Sedition acts.were hugely controversial at time and repealed within 2 years.
Hardly the same as 150 year old court case ruling on a recent enacted amendment which was accepted at the time.
The same Congress that gave itself power to enforce Section 3 hardly thought they shouldn’t be expected to.use that power. It almost seems they knew it might need legislation to enforce it.
I would argue absolutely that it is at least originalist. Originalism refers to the how the law was understood or was intended to be understood at the time it was written.
I cannot believe that at the time the 14th Amendment was written (the aftermath of the Civil War), that Congress intended for the 14th amendment to be used by an individual state to disqualify candidates for President, based just on what the state would consider to be “insurrection.”
And the reason why you can’t believe that, other than motivated reasoning, is the consequences of that that approach, not any kind of historical evidence of anything.
There’s more than a fair amount of historical evidence about how the writers of the 14th amendment felt about states rights at the time…
Nor does it make sense that they would have left it to the former confederate states to decide who had engaged in insurrection.
It is practicable but only transfers the vote to a different issue.,
That is, if you hold the vote tommorow and that80 million again votes for him that means 2 things
1)That don’t think it was insurrection, and
2) They don’t think whatever it was that it constitutionally bars him
All this is obvious if you think about it
The court ruled that Congress could do what they wanted, for the most part.
Closing paragraph of the majority:
“…Section 5 vests in Congress the power to enforce [Section 3].
First rule of paraphrasing is don’t completely lose the meaning of the original meaning you are trying to convey, I can’t even find the word optional in the decision, or a plausible synonym.
The closest I can find to the meaning you are trying to convey is this:
“We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
But that’s off on a tangent.
You claimed the majority held “Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications.” And on second thought, that’s true for state and local officials. But, it is besides the point.
Rappaport’s comment was meant to apply for all offices; federal, state and local. That is, he believes absent Congressional legislation, the states can disqualify any official. But, to the contrary, the Court held the states are precluded from doing so for federal officials unless Congress authorizes it (and again, the concurrence agrees).
I claimed: ““Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications.”?
I think that’s a accurate paraphrase, but those are Rappaport’s words not mine. But I think its clear from the context Rappaport is referring to ” state disqualification [of federal offices]”.
And yes, Rappaport does believe section 3 is self executing absent federal legislation, but 18 USC 2383 does exist.
The majority doesn’t explicitly say section 3 isn’t self executing, but what they do say is this:
“Any state enforcement of Section 3 against federal office holders and candidates, though, would not derive from Sec tion 5, which confers power only on “[t]he Congress.” As a result, such state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible.”
The concurrence confusingly asserts Section 3 is self executing, but just not for federal candidates.
I don’t think you know what “preempt” means.
Maybe, but when I’m quoting a law professor and he uses the word preempt, then I’m not going to change his words, even if I know he’s wrong, but I definitely think he’s using it correctly.
Why don’t you click on the link to Rappaport’s blog above and tell him he doesn’t know what preempt means.
He knows what it means. You’re the one who accused him of being confused in your op. He’s not confused, you are.
For state disqualifications to be preempted, they must first be permitted. Which is definitely not
exactly what the majority ruled
.The Court did not use the phrase “self-executing.” But, it clearly held that Congressional legislation is required for states to enforce 14.3 (equivalent to not self-executing). The concurrence agrees.
Yes, the concurrence concluded 14.3 is self-executing as applied to state and local candidates. So does the Court: “We conclude that States may disqualify persons holding or attempting to hold state office.”
If Section 3 were self executing, it wouldn’t be a matter of states “may”. They’d have had no discretion in the matter.
States could disqualify state level candidates on the basis of their own opinion about whether they were insurrectionists, with or without Section 3, because who qualified for office was a state matter. So they could disqualify candidates on any basis they pleased.
“Yes, the concurrence concluded 14.3 is self-executing as applied to state and local candidates. So does the Court: “We conclude that States may disqualify persons holding or attempting to hold state office.””
Not necessarily. Rather, the states can disqualify individuals holding state office for whatever reason they want. They don’t need Constitutional authorization to do so. For example, look at term limits for legislators. The states can’t pass term limits for “federal” legislators. But they can do so for state legislators.
“[W]hatever reason they want” includes 14.3, and hence 14.3 is self-executing as applied to state and local officials.
Well, he’s right that there was no “insurrection,” although the gratuitous snipe on aiding a riot was just absurd. Textually I don’t necessarily agree with him.
This is the non-thinking that makes this forum so frustrating.
I don’t necessariy agree — well, when will you know what you do think ???? Next year ???
Yes, what Kazinski said. Rappaport is wrong from his very first sentence, and doesn’t get any better from there. He simply ignores history and the Supreme Court’s explanation for why originalism compelled its result.
Reading more Rappaport I get the idea that he is an academic originalist, in that its his only concern. But I think the court was correct to adopt Griffin, 150 year old decisions which were well known at the time and given full credit are part of the originalist record, even though they may be consequentialist.
Perhaps if the majority rejected Griffin it would have been a 9-0 decision written by Sotomayor, since obviously she did reject Griffin and still reversed the Colorado decision.
But she’s not an originalist.
Sure, that’s the only route to her result. Thus far but no further is driven by policy not text.
I already posted in another thread that her concurrence was based on hand waving about federalism.
So the nation’s leading originalist scholar ignores the lack of any mention of the president in Section 3 and essentially neuters the force of Section 5. Just words. They don’t make originalists like they used to.
1) There is a mention of the president in Section 3. Right there, it says “any office, civil or military, under the United States.”
2) Section 5 says Congress can enforce the 14th amendment. It does not say “only Congress can enforce the 14th amendment.” The only way to “neuter” Section 5 would be to say that Congress can’t enforce the 14th amendment, which of course Rappaport did not say.
1) so, in other words, it specifically leaves out the president, although specially naming other covered entities.
2) uh, yeah, the text quite clearly doesn’t grant the states any enforcement power, only Congress. It says nothing about any state authority.
1) Those are indeed other words, because that’s not what I said. I said it specifically includes the president. Right there: “any office, civil or military, under the United States.”
2) We agree that Section 5 “says nothing about” state authority. Nothing. Which means, therefore, that Section 5 neither empowers states to enforce Section 3 nor forbids it.
1)I’m going to rely on the text and not your comments for interpretation, if you don’t mind. The text doesn’t include the president. If the authors didn’t include the president, strong evidence they didn’t intend him to be subject to the amendment.
2) No. Again the text doesn’t grant them any authority, only Congress. Strong indication the authors of the amendment didn’t intend to grant the state’s any authority. Now if you want to abandon the text and just speculate endlessly, that’s your prerogative, but you would be wrong.
1. If the authors didn’t include the president. As pointed out, they did. The phrase “any office, civil or military, under the United States” quite clearly refers to the President in that the presidency is an office and it is under the United States.
2. Strong indication the authors of the amendment didn’t intend to grant the state’s any authority. Or, as Rappaport points out, strong indication that the authors knew the states already had the power and that the 14th, as it has been interpreted in literally every other context including in the Trump v. Anderson decision, is self-executing such that no explicit grant of power to states would be required. Congress, on the other hand, is wholly a creation of the Constitution with powers limited to those conferred by the Constitution, so needed to be explicitly granted the power to pass such legislation. It’s not that hard.
The decision did not rely on the text as, obviously, your point 2 would mean states couldn’t pass legislation guaranteeing equal protection or any other part of the 14th either, but no one disputes they can. It would also mean states couldn’t disqualify candidates for state office under Section 3, but the Court unanimously held they can.
The result is not textualist. On that, we should be able agree. (The Court interpreted exactly the same text to mean different things with respect to state and federal offices whereas the text makes no distinction between state and federal offices.
I think it’s also clear it isn’t originalist, but you can hang your hat on Griffin and original understanding if that’s convincing to you.
“Or, as Rappaport points out, strong indication that the authors knew the states already had the power”
Look, states, absent some constitutional prohibition, have the power to disqualify candidates for state office on any basis they please. Not because the 14th amendment gave it to them. Because nothing in the Constitution took that power away.
Determining the qualifications to hold state office is a classic 10th amendment reserve power.
So, sure, they could disqualify candidates ‘on the basis of Section 3’. They could disqualify them on the basis of their Zodiac sign, for that matter.
But even asking what Southern states “could” do during Reconstruction is wildly ahistorical. The Southern states were under military occupation, they were not given any choice in the matter; They weren’t exercising state power, they were submitting to federal power.
The Southern states were under military occupation, they were not given any choice in the matter; They weren’t exercising state power, they were submitting to federal power.
I know this is a hobby horse of yours, the poor Southern states, but the Constitution, including the 14th Amendment, still didn’t prevent the Reconstruction governments from excluding former insurrectionists from either state or federal office. In fact, keeping them out was the point. Your concern that they would have been acting at the point of a gun is irrelevant to this particular point.
It does some odd that the one office that embodies the Executive branch would be omitted yet senators, representatives, and even electors of the president/vice-president would be specifically listed, in capital letters no less. Strange that the drafters would be so shy about mentioning the president. As for your second point, I guess I have to concede that the opinion is not a model of clarity, although one couldn’t say they didn’t rely on the text. They noted that “Congress’s Section 5 power is critical when it comes to Section 3.” Although they did read the provision as allowing states to disqualify state officers they may mean the provision is more of a standing prohibition rather than any broader enforcement authority as Congress possesses. You couldn’t say states would have authority to remove any disability for state offices.
Not all that satisfying an explanation on my part, upon reflection. What can I say? I can try to explain the 14th amendment or the Court opinion, but doing both may not be possible.
This is my point.
I am fine with the result. In fact, it’s my preferred result.
But the Court can’t get there from the text of Section 5 alone. In fact, given how the text of Section 5 is interpreted with respect to every other part of the 14th Amendment, including states disqualifying state officeholders, the pure textual argument would appear, at best, to be ambiguous on the point (which is why they resorted to a number of non-textual reasons to distinguish the effect of Section 5 on states’ authority vis a vis federal officeholders versus state officeholders.
But, given it isn’t clear from the text, etc., this is why I think the 5 Justice majority went too far on opining on matters not necessary to decide this case. It’s bad judicial judgment and it resulted in deciding matters that hadn’t been fully briefed, argued, and considered by parties or courts below).
Well it’s fine for me that the Colorado decision was reversed but the more I think about this opinion the worse it seems.
Well it’s fine for me that the Colorado decision was reversed but the more I think about this opinion the worse it seems.
On these points, we are agreed.
There is no “clearly”. One of the arguments made by petitioners was that the President is not an “officer” because elsewhere (e.g. Impeachment Clause) he is listed specifically as included, followed by “officers”. Him being an Officer and being listed separately (first), would be suplusage.
That’s not what the word “specifically” means, and I’m pretty sure you know that.
“Senators” are specifically mentioned. “Representatives” are specifically mentioned. “Electors” are specifically mentioned. The President is not, as a simple matter of English language.
In other words, the text clearly shows an intent to grant only Congress enforcement power. It’s not complicated. The same with section 3. The president is clearly not included.
Specifically
quite clearly
clearly
It’s not complicated.
clearly
Damn what an argument!
Actually, when you grow up, if you study hard, you might learn that the plain meaning of the text is a pretty good indicator of the drafter’s intent, and the language here pretty plainly excludes the president and provides authority only to Congress.
My point is you keep doing ipse dixit with meaningless intensifiers like ‘clearly.’
That’s not really making a point, it’s just talking.
Your comment below to DMN is much more substantive, and largely insult-free.
No, I’m pointing to the text. You’re just being obnoxious and insulting.
Sounds like Sarcasstr0 still hasn’t changed.
Yes, you point to the text, and then present a postulate about intent as ‘clear.’
That’s not actually an argument.
It’s a basic interpretive argument. If don’t know that, stop commenting.
You back up nothing you say with logic or facts or law. It’s ipse dixit: “The fallacy of defending a proposition by baldly asserting that it is “just how it is”
If you don’t understand how to make an argument…well, you’ll fit right in.
I and DMN and Noscitur and a few others may be annoying for you though.
It wouldn’t bother me that much if you just never responded to one of my comments again.
the plain meaning of the text is a pretty good indicator of the drafter’s intent
And, yet, the text of Section 5 is no different when read in reference to Section 3 versus Section 1, but the Court (and presumably you) interpret it differently. Whatever that is, it’s not a textualist argument. The text does not betray any different intent with respect to how Section 5 should operate vis a vis Section 3 versus Section 1.
The fact that you think the simple answer is based on the text shows you either haven’t read the text or you don’t understand the arguments at all. The Court itself relied on a lot of things, but not that the text explicitly limited enforcement to Congress (again, the Court explicitly noted that Section 5 did not limit enforcement of every other part of the 14th to Congress, suggesting quite strongly it is not the text of Section 5 which mandates the result they reached.)
Section 1 can operate to restrain states under Court precedent and can be invoked as a shield. That doesn’t mean states have carte blanche to enforce it to the same extent as Congress. I would say you have a miscomprehension of the scope of the 14th amendment. Frankly, the language isn’t that difficult and this over analysis to achieve a result contrary to the text would amuse (or maybe shock) the drafters.
this over analysis to achieve a result contrary to the text
What over analysis? What result do you think I am advocating?
I am merely pointing out, Section 5 only authorizes Congress to enforce the 14th Amendment with appropriate legislation, it doesn’t restrict the states and doesn’t prevent other legal actions absent Congressional action. Section 1 is enforceable whether Congress acts or not, for example, and everyone agrees on that. But Section 5 authorizes Congress to pass legislation that provides specific protections to enforce Section 1, which everyone also agrees and absent specific language in the statute or other unusual circumstances, doesn’t stop other means of invoking and enforcing the 14th Amendment (including, as you point out, as a shield, but not only as a shield).
The meme pushed around here that Section 5 was a limiting clause rather than a grant of non-exclusive power to Congress is against the text, against history, and against long-standing precedent. Even Trump v. Anderson agreed Section 5 didn’t operate the way your supposed obvious interpretation would suggest, which itself pretty severely undercuts that yours is an obvious reading of Section 5.
You know how one would “clearly show an intent” to grant “only” Congress enforcement power? One would use the word “only.” Know what word isn’t in the Section 5? The word “only.”
And we know that in fact there was no such “intent,” because states have the power to enforce the 13th amendment — which has the same language about enforcement power. States have the power to enforce the 15th amendment — which has the same language about enforcement power. And states have the power to enforce Section 1 of the 14th amendment — to which Section 5 also applies.
I think a better way to show the authors of the amendment intended to include the states WOULD BE TO INCLUDE THE STATES, which the text plainly does not. And this meaning of the text is further reinforced as proper given underlying federalism concerns.
I don’t think the question of state’s authority under the 13th and 15th amendments has been definitively addressed by the S.Ct, but feel free to send the citations if you know of any.
The text doesn’t need to include it. Congress derives its powers from the constitution; Congress can’t act unless the Constitution says (in some fashion) “Congress can do this.” So without Section 5, Congress wouldn’t have had any ability to enforce any portion of the 13th, 14th, or 15th amendments.
But states already had the power to administer elections. They either had that power inherently (if you accept Clarence Thomas’s view) or they had it by dint of Article 2, Section 1 (if you accept the view of other justices).
I would say the states had no inherent power to enforce the civil rights amendments which were part of the rearrangement of power after the civil war. So what the text needed to include was a specific grant of authority to the states, which it did not.
And as for section 1, it’s not that states are empowered to enforce it so much as its provisions, under S.Ct precedent, simply operate as bar to certain state conduct and allow potential parties to assert the provision as a defense.
“You know how one would “clearly show an intent” to grant “only” Congress enforcement power? One would use the word “only.” Know what word isn’t in the Section 5? The word “only.””
You know what word isn’t in Article 1, section 8? The word “only”.
By your reasoning that means states can exercise all the powers of Congress…
I hope these guys don’t negotiate contracts for a living.
Except where the constitution or federal law prohibits it, they can! What point did you think you were making here?
Plenary power used to be a thing
The Supreme Court didn’t even try to explain why originalism compelled its result.
I doubt it was even meant to be an originalist decision. The majority opinion doesn’t lead with a text-based analysis, but says that the text reinforces its reasoning. I would think the originalist framing would put the text first and federalism principles (?) afterwards. The final paragraph also says that other reasons support its decision.
The concurrence doesn’t even attempt to reconcile the text with its preferred outcome.
It’s not even a case of “that wasn’t true originalism,” the opinion isn’t even trying to be originalist.
My thoughts exactly. (And Rappaport’s, I gather.)
. . . the opinion isn’t even trying to be originalist.
Not wrong, but it falls short. The opinion is anti-originalist. It not only ignores what the Constitution requires. It requires what the Constitution forbids.
Who’s taking Constitution interpretation classes from a Dutch Nazi?
Oh, Stephen Lathrop apparently.
Is that a regular feature of Supreme Court opinions?
I while sometimes you see dissents, concurrences get down in methodological weeds about why someone else’s opinion doesn’t conform to original meaning, i just don’t remember that being a standard, or even occasional feature of Supreme Court opinions.
For one thing its just going to split the Textualists from the Original Public meaning, from the hybrid Text plus original public meaning plus contemporary judgements and legislation forks and they’re varying opinions on how to weight precedence.
Is that a regular feature of Supreme Court opinions?
It is when the author purports to be an originalist, except when the result they want isn’t supported by originalism. This being a good example of the exceptions.
Rappaport is illogical.
He agrees states cannot disqualify Trump, because Trump was not guilty of insurrection, but doesn’t anticipate that states could individually decide what is an insurrection, leading to exactly the result he disparages.
It’s not textual, that is correct.
It’s in the “not a suicide pact” zone.
Why would Congress define an insurrection statute, and make the penalty for insurrectionists disqualification for office if it wasn’t what the intended?
Charge and convict Trump of Insurrection if you can, or give it up.
If the insurrection statute is Congress’s means of enforcing Section 3, why does it apply to people who aren’t covered by Section 3, and fail to disqualify those convicted from most of the offices that are?
As for why it 2383 covers people that are not covered by Section 3, I see 3 possibilities: a) they updated 2383 from the 1862 statute, and that’s what it said.
b) Term limits v Thornton was decided in 1995, before that it wasn’t clear Congress didn’t have inherent authority to do that
c) its Congress, and its hardly the first time they screwed up
And perhaps when they wrote 2383 they just weren’t concerned about state office holders, or see C again.
In any case the Supreme Court now says:
“A successor to those provisions remains on the books today. See 18 U. S. C. §2383.” And note the term successor, they don’t seem to buy the argument its just the 1862 act, with whatever doubts may attach to pre-section 3 enactment.
And there is an implicit invitation to Congress to change it if they don’t like it.
“If the insurrection statute is Congress’s means of enforcing Section 3, why does it apply to people who aren’t covered by Section 3”
Because it’s regrettably routine for Congress, when executing some constitutional power, to go way beyond the power the Constitution actually gave them.
“and fail to disqualify those convicted from most of the offices that are?”
Because, when given a power, Congress is not obligated to exercise it to it’s utmost extent.
It’s one thing for congress to overreach with an amorphous an expansive concept like interstate commerce. But section 3 is pretty explicit and direct about who it’s disqualifying. Did congress just forget?
So even though a supermajority is required to remove a disqualification by the plain text of section 3, a mere majority can remove it categorically through legislation?
Yes. So what?
Nobody has ever claimed that any group of people drafting a system of government is totally infallible. Your presumption that there HAS to be congressional implementation of fallacious.
If the drafters had really intended that, they could have included an initial standard/procedure within the amendment text but allowed a future Congress to modify it (like the 25th amendment providing an alternative may be provided by law to the president’s principle officers of the executive departments).
I think you also have it wrong. Were Congress to repeal the general category (repeal the law), it’s doubtful it would remove a disqualification already declared. Though it might make it difficult to enforce a removal, depending on the remaining state of the law. Say Trump were convicted under 18USC2383, I don’t think his disqualification would be lifted, because his conviction would still stand. Having a conviction lets his qualification for office be adjudicated just like other objective requirements (age/citizenship/residency) by any level of government.
Of course. Section 5 clearly establishes that Congress may modify Section 3 in any way they wish–including ignoring the 2/3 majority requirement.
Isn’t that how the Constitution works?
Let’s not be obtuse here.
Section 5 says “The Congress shall have power to enforce by appropriate legislation the provisions of this article.”
They have to enforce the provisions, not make up their own rules, but they have to do it appropriately meaning due process, and individual determination of disqualification.
But they can’t rewrite section 3.
States deciding would be ex post facto law.
It would not be, for many reasons, including that “ex post facto” only applies to criminal laws.
So Insurrection is not a crime…
No, the word “insurrection” is not a crime; however, 18 U. S. C. §2383 is a federal crime. Does that help?
The word “rape” isn’t a crime, either. The act, however…
The desperation of Trump’s foes to NOT have to actually prove he’s guilty of the crime they regularly accuse him of, is palpable.
What makes you think anyone has accused Trump of violating 18 U. S. C. §2383? He has not been charged with that particular crime. I have never accused him of committing it. Can you name anyone who has done so?
Does your attempted deflection count as “desperation”?
leading to exactly the result he disparages
What result is that? He explicitly notes (anticipates) that some states might not agree with him about insurrection and says he’s fine with that because the Constitution did not contemplate national unity.
Rappaport: although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions
His stance isn’t illogical. You may still disagree if you think it’s in the “suicide pact” zone, but it’s not illogical.
Somin’s previously stated (linked) views, along with the Colorado court’s, about what counts as an ‘insurrection’ fall flat in the face of Rappaport’s point: ‘It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot’.
The Colorado supreme court had stated: ‘… any definition of “insurrection” for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country’.
Except that Trump obviously didn’t do that, whether by speaking to the people there, or via communications with the VP and and others. And neither did the rioters, who entered basically one government building, largely by invitation. Certainly no ‘concerted’ effort, let alone by public use of force.
Somin in turn wrote (in his linked previous article): ‘January 6 qualifies as an “insurrection” even under a fairly narrow definition of the term that is limited to the use of force to take over the powers of government’. He adds: ‘… this goes beyond encouraging violence (as Trump did before the attack) or failing to try to stop it. It amounts to using the attack as leverage to try to force Congress to keep him in power’.
But in NO real sense did Trump, or the rioters, try to take over the powers of government, let alone by the use of force; and they did not mount an ‘attack’ in any sensible use of the word. This includes Trump’s calls to the VPor others. Further, rioters who are largely invited to enter the Congressional building (one portion of one single branch of government) couldn’t possibly accomplish the aim of thwarting a peaceful transfer of power.
Why Somin persists in the need to lie about this is curious. He is an academic, one should be committed to the pursuit of the truth and of genuine knowledge production.
On the other hand, Somin also regularly supports mass illegal immigration. Perhaps his fidelity to the law, and not just the truth, should therefore be scrutinised.
Rappaport and Somin disagree on whether Trump engaged in an insurrection. But that wasn’t what this article was about.
Again and again, Trump fans assert, and the Supreme Court, asserted mistakenly, that Colorado acted to disqualify Trump. The originalist meaning of Section 3 is otherwise, crystal clear, and Rappaport understood it: Trump was already either disqualified or not under Section 3 by his own conduct.
The task which fell to Colorado was to determine by due process which had happened. Colorado provided due process, and ruled it did happen.
Under any coherent originalist interpretation, Trump v. Anderson arrived at the Supreme Court with Trump already disqualified. Under any coherent originalist interpretation, SCOTUS has done nothing yet to remove that disqualification, because it has done nothing to review the factual basis for the disqualification which Colorado applied.
What the Court has done, for purely consequentialist reasons, is demand that Trump’s existing disqualification be ignored, unless further Congressional action not demanded by the Constitution re-disqualifies Trump. To do that, of course, would de facto rewrite Section 3—a task Congress has no power to perform.
So yes, an originalist disaster. Welcome to the brave new world of consequentialist anti-originalism. An enlarged Supreme Court under Democratic control will enjoy applying Trump v. Anderson style reasoning to gun control.
For my part, I have never thought history was a tool supple enough to match the needs demanded of it by would-be originalist lawyers and judges. Perhaps the moment has arrived to start systematizing a new standard, to distinguish legitimate consequentialism from so-called living constitutionalism.
Or maybe not. But it could not be plainer that the SCOTUS the nation has now cannot be trusted to decide anything on an originalist basis. History boggles them, they cherry-pick tradition, and they bristle at constraint. And they are easily panicked. Originalism is a tool altogether too stern to be wielded by cowards.
‘The task which fell to Colorado was to determine by due process which had happened. Colorado provided due process, and ruled it did happen’.
The Colorado court, instead, made up its own definition of ‘insurrection’, and then completely lied in claiming that Trump’s actions were subsumable under it. (Read it. Somin also quotes the Colorado Court’s definition in one of the links provided above to his earlier posts.)
The dissent in Colorado said the decision deprives Trump of due process. Somin, in turn, argues that that’s not so because a disqualification from governmental office cannot be a liberty deprivation. That, of course, just begs the question. (It’s also barbaric: it says that you can be deemed a traitor or insurrectionist without due process for determining whether you were in fact one.)
I couldn’t give a toss about originalism. But if you think that Jan 6 falls under some original public meaning understanding of an insurrection, then you’re not fooling anyone. There was no disqualification because there was no rebellion or insurrection, and certainly not one that Trump himself aided or participated in. It was, at best, a riot-–though usually rioters are not invited in to places to engage in their activities.
As other commenters have noted here, as there is a rebellion and insurrection statute, 18 USC 2383, it should be fairly simple to run it against Trump for the CRIME of insurrection, yeah? Yet they won’t. No one is surprised by this inaction either…
History will furthermore look upon your Blue team constitutional theory, just as we your allies in more civilized Western countries already do, as even bigger hokum. ‘Living constitutionalism’ is fraudulent nonsense, used solely to advance partisan hacks’ politics of the moment. It is lesson in what not to do if you want the rule of law and constitutionalism.
What you have done with these Trump trials, let alone the last eight years of gaslighting the world, is unforgivable. America will never recover from the reputational damage.
Many efforts, most started long before Jan. 6, to violate the spirit of the Constitution, to direct the investigative and prosecutorial power of government against a political opponent, feigning disinterested concern for rule of law as cover story for “git ‘im!”
The first impeachment, where a cover story was not needed, and itself far from the first initiative, I was assured by constitutional scholars around here that politicians had the honor of using impeachment against a political opponent, openly and deliberately. Glee!
They attack at the federal level. They attack at the state level. They share info down to the states just in case. They start seizing the estates of recalcitrant noblemen who irritate the king, something also not supposed to be done, to the tune of half a billion dollars.
All this they pretend it’s about concern for rule of law, and not about getting an opponent.
I’ve mentioned similarly that historians, in cooler headed times of the future, will not judge this kindly, just because you self-declare as the Good Guys. Hell, you could actually be the Good Guys. Just not in this effort.
Like a kid who keeps eating cookies from the cookie jar, maintaining each time it’s to keep himself from starving to death, the massive number of times belies the boldfaced statement to momma.
A statement to you, for the ears of the future historians. J’accuse.
If you win, historians will write whatever you decide they shall write.
So, they’re obviously not going to write your spam.
If only you had an ounce of self awareness…you would be someone else.
Still better than your spam.
Historians will wrestle with the sheer number of people who decided, for no obvious reason, that Trump was above the law.
Replace ‘Trump’ with ‘the Colorado Supreme Court and the Blue Team in general’. Doing so will generate a true proposition, rather than a false one.
Replace every second word you wrote with ‘wombles.’ Doing so will at least make what you write have the virtue of being mildly amusing, and no one jot less false.
Stop pretending you have even the slightest understanding of what the courts did.
What will you do when no one believes your ideology anymore? Will you see your life’s work (superficial political theory) to have been not just a waste of time, but counterproductive?
“I couldn’t give a toss about originalism.”
Clearly. You’re more of a “might makes right” kinda guy. Something you have in common with the “Blue team”, at least in relation to the Constitution, whether you realize it or not.
Spam.
‘What you have done with these Trump trials, let alone the last eight years of gaslighting the world, is unforgivable.’
How dare you even attempt to hold a populist demagogue accountable as if he were just an ordinary citizen! The world hates that!
It is important to hold people accountable, legally, for what they have done.
It is, however, the stuff of a banana republic to try to hold people accountable for things they have not in fact done—particularly when they are undertaken solely to attack a political rival. No Western democracy would have show trials like these. If you knew anything about law, which you most certainly do not, you would know why these count as such.
There is an federal insurrection statute: 2383. DEMAND that it be the basis for a criminal prosecution of Trump if you think you have a real case. Stand up for the rule of law, and for democracy, and demand that a real trial be run.
At any rate, now that the Koch Brothers ceased to fund NH’s campaign, and given the impending collapse of their ideology, do you think they’ll also cut off funding for your sinecure?
‘It is, however, the stuff of a banana republic to try to hold people accountable for things they have not in fact done’
Good thing that’s not what’s happening. Even if you think Trump’s attempts to illegally overturn an election he lost was perfectly ok and normal and good for democracy, he literally just got a pat on the head from SCOTUS, so I’m not sure what you’re whining about.
‘Good thing that’s not what’s happening’.
Your say so means nothing, and you obviously have no understanding of the laws in question. Go back to writing superficial political theory till the Koch brothers turn off the tap.
It’s a bannana republic but also the highest court in the land ruled in his favour, but my saying so means nothing.
Your spin on what was written above cannot help you, Ingsoc.
“The task which fell to Colorado was to determine by due process which had happened. Colorado provided due process, and ruled it did happen’.”
Yes, CO provided some Due Process. But did they provide sufficient Due Process? And, I very much suspect that the Republican majority on the Supreme Court very much felt that it was grossly insufficient. The CO SC minimized the amount of DP that they believed was required, by only looking at the interests of yet-to-be-named Electors. CJ Roberts has said that you need to look at the underlying interests too, in this case, the interests of the 1+ million Trump voters in 2020, and likely 2024, as well as those of the 73 million Trump voters nationally in 2020 and likely many more in 2024.
There was a fundamental unfairness in introducing the J6 Report into evidence, as an exception to the Hearsay Rule through a conveniently redefined CRE (that the CO SC controls), given that the J6 Committee had zero Republican members appointed by the Republican House leadership, but instead every member of the committee was named by Dem Speaker Pelosi. The Republicans had no ability during that hearing to introduce their own witnesses, nor cross examine the ones called by the Democrats. Nor to introduce their own evidence, including video from the 14k hours of video that day that the Dems Cherry picked from. That only became available after House control was taken over by the Republicans in early 2023. And then the actual witness transcripts were encrypted and deleted, just prior to the Dems turning over control of the House to them. That was the bulk of the evidence that the CO courts accepted into evidence in this case – the highly curated results from the hyper-partisan J6 committee.
But what must be remembered is that 5 or 6 of the 6 Republicans on the US SC were not going to endorse such a visibly biased and political decision. But they very likely really didn’t want to engage in the very messy job of setting bright line rules as to the amount of Due Process required for such a disqualification under 14A § 3. If they said 10 day hearing would be a minimum, then it is likely that CO or VT would do just that, again allowing into evidence such highly unreliable evidence as the J6 report. Etc. And that is why, I believe, that another theory was utilized to reverse. I suspect that they would have used the President-Not-An-Officer theory, if the one they utilized hadn’t worked out.
You sure have a lot to say about what the Supreme Court didn’t say.
Trump expressly told SCOTUS at oral argument (I mean, his lawyer did) that he was not raising a due process argument. That’s why SCOTUS did not address it.
But it could not be plainer that the SCOTUS the nation has now cannot be trusted to decide anything on an originalist basis.
I’m no fan of originalism, but originalism isn’t “whatever weird views Stephen Lathrop has about history”.
Esper, explain which views are weird, and why. Show your work and I will give you a bonus tour of preeminent scholars you will undoubtedly contradict.
Fair warning, I am not smart enough to have invented anything worthwhile to advance historical scholarship. All I have been doing with history-related comments on this blog has been cribbed from people far, far smarter than you are.
“In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump’s lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.”
Setting aside your efforts to prove that you’re not qualified to be a juror if Trump does get charged with insurrection…
The Court is typically profoundly disinterested in questions of actual guilt and innocence. They care about questions of law and procedure. Their only interest in actual innocence would be in determining whether the procedure Trump was subjected to was appropriate for determining it. If the appropriate procedure arrived at the wrong answer? They have a history of not lifting a finger to fix that sort of thing. If the procedure was inappropriate for determining it? They don’t decide the guilt, they order up the right procedure, and direct somebody else to carry it out.
If Mitchell had started arguing actual innocence, the Court would have shut him down. And you know this!
It’s laughable that people like Somin can defend an actual violemt assault on the Capitol (May 2020) and every other major city over that summer but turn around and piss their pants at an unscheduled guided tour calling that an insurrection.
My instinct (as well as my initials) are with you. It is absurd to think of something that looks a good deal like a “mostly peaceful” black lives matter demonstration as an “insurrection”. Yet Ross Douthat’s working definition of insurrection cited by Ilya in these arguments: “denying the authority of the existing political order” could apply to both contexts at their emotional zenith.
Ilya, for once, summons a really useful argument in comparing the Civil War to January 6th, Shays and Whiskey Rebellions with this definition as context: “Far from rejecting the Constitution and ‘denying the authority of the existing political order,’ the [confederacy] argued the Constitution gave their states a legal right to secede, and that Abraham Lincoln and the federal government were the ones acting illegally.” And it was surely the conviction . . .poor choice of words . . . of the January 6th assemblage that they were vindicating rather than violating the constitutional order.
One must extend Douthat’s definition to “acting outside legitimately established process to vindicate ones belief in their rights” in order to encompass mobs and riots of the January 6th sort (albeit it is difficult to see how one does that without also encompassing various riots of the racial reckoning).
But just when I think Ilya has made a good argument, I find another stupid one, counting people killed in Shay’s Rebellion compared to the capitol as some kind of scale determinant of insurrection. To be fair, Steven also notes this as a measure of scale and both peg this at 5 people killed on January 6th. This is like counting people who died with covid. One person, Ashley Babbit was killed in the January 6th riot.
More importantly, that kind of scale is less relevant in my mind than whether events were organized to change governmental outcomes by force of words or by force of arms. By those metrics January 6th pales in comparison to Shays and the Whiskey rebellion and arguably was junior league in substantive depradation by comparison to the summer of 2002. In the end, those who believe January 6th was technically an insurrection are at least consistent if they accept the same characterization of certain outgrowths of demonstrations associated with the racial reckoning.
These obvious comparators are so conspicuously absent from arguments of the “january 6th was an insurrection crowd” as to make me cynical of even bothering to listen to their arguments. It is like those who believe that Israel is an apartheid state without saying the same of Iran. I can see the argument, but I can’t accept it from someone who would take a rhetorical victory in the moment while carefully refusing to follow the argument to its logical conclusion.
Even Emerson who decried “a foolish consistency is the hobgoblin of little minds” was not actually the first commentator to call out whataboutism. His theory was you could argue tomorrow against what you argued today, not that you could hold contradictory opinions at the same moment.
The fact that noone called CHAZ–or Portland, or Minneapolis, or Kenosha–Rebellions or Insurrections at the time does not preclude their applying those labels to January 6th. But they can surely be called to account if they do not accept in hindsight the implication that the labels should apply to other such riots or at least the comparisons be seriously addressed if we are to take seriously the arguments that january 6th was more than disorganized emotional mayhem.
The most immediate cost of such admissions to those who won’t make or consider them would be in semantics, as there doesn’t seem to be anyone who had taken an oath under the united states who participated in or urged on those rallies running for President. Albeit, it is assured that participants or cheerleaders of those riots included oath takers (if the oathkeepers were at the trump rally) who are again running for office and I’d be the first to suggest the same justice be applied.
Trump is fairly getting much criticism for his actions on January 6th, properly in my opinion, more for his failure to put out the fire than for the notion that he lit it. The same criticism can be heaped on elected officials who aided and abetted the abrogation of civil order in the summer of 2020, and their ability or disability to seek office should be the same as trump’s.
Brian Bishop, WIC (Whataboutist in Chief)
Yup, Bellmore pegged it. For this SCOTUS, nothing matters but law, procedure, and consequences. And if the decision from below comes up with the wrong consequences, then the big brains on SCOTUS send it back down with instructions to rewrite the laws, and use different procedures. Or did I get that wrong, about Bellmore?
There is one consolation. So long as Professor Graber is around, Somin doesn’t have to worry about being the most unhinged guy in the room. I mean, sheesh.
Ilya the Lesser: I know I was wrong, but SCOTUS is wronger!!! I know things!
It is one thing to be arrogant, and back it up. This is not Ilya the Lesser.
It is quite another to be arrogant and flat out wrong. This is Ilya the Lesser.
Why is Ilya the Bigot the superior Ilya?
Is it just your shared bigotry, or is there more to it?
Rev is… Somin?
It’s not originalist, it’s at least somewhat consequentialist, and that’s alright.
I agree, in the sense that I was always against these lawsuits, and agree with the decision (the concurrences) from a consequentialist point of view.
That said, I truly wish that people would take note of this and similar decisions and realize that originalism and textualism are just tools in the jurisprudential toolbox, and they are used (more often than not) inconsistently in order to apply the veneer of legitimacy to those who are simply trying to reach predetermined conclusions that align with their own policy preferences.
Originalism has a strain left over from when it was a political project that brooks no opposition, and it’s just corrosive to legal analysis from the Internet to academia to Court opinions themselves.
Luckily, not this opinion.
Yet one year after passage you would never claim such a thing.
At one point does the Constitution pass its ‘sell by” ??
If Congress can undo something, it’s odd to take that to mean that only Congress can do it.
But that is stopping at a Congress that represents the people and if those people vote for Trump then they don’t think he is running illegally or unconstitutionally. OBVIOUSLY
“Might makes right.”
Only those who people vote for need to be disqualified from elected office under A14S3. If people don’t vote for the candidate, then disqualification is moot.
Odd but not impossible. It could presuppose the existence of enforcing legislation and Congress could overrule individual results. The fact that it requires a two-thirds majority but the legislation itself could be repealed with less than that isn’t that strange if you realize that there were a hell of a lot of ex-confederates back then and it wouldn’t make sense to repeal and re-enact it for every single potential exception.
I thought that at first too, particularly because the “undo” requires a 2/3 majority and the “do” requires a simple majority (the concurrence makes the same point).
However, the counter argument is the absence of the “do” is a categorical denial, while the “undo” is on a case-by-case basis. That is, Congress could logically believe it is a good idea (by simple majority) to permit all cases to proceed while at the same time reserving the power to override specific disqualifications by a 2/3 vote.
I don’t think we should be bound to the originalist school. Of course, we shouldn’t ignore the Article V amendment process and make amendments by usurpation – paraphrasing Washington’s warning. But I don’t think we’re bound to this one school in order to avoid such a result.
If a state high court invokes Sec. 3 to disqualify someone from the ballot, the U. S. Supremes can review that decision and say if Section 3 actually applies. But that’s because the state court undertook to interpret the federal constitution and make the state-law outcome depend on the interpretation of the federal constitution.
But apart from exceptions like that, I don’t see how there are *national* standards for Presidential elections under a Constitution which delegates to state legislatures the power to prescribe how electors shall be chosen. Taking this literally, states could simply refuse to consider certain candidates, e. g., non-major-party candidates who don’t jump through prescribed ballot-access hoops. Or ex-Presidents whom they don’t like. As for the latte category, they can simply pass a law saying that electors pledged to Donald Trump cannot be chosen. No need to interpret the federal constitution a certain way, and hence (in my view) no basis for federal second-guessing.
But if we’re going to have national standards, and if we’re going to fret about how Presidential ballots shouldn’t be different from state to state, then how can we justify the diversity of ballot-access laws by which certain third-party candidates are on the ballot in some states but not in others?
“A leading originalist legal scholar explains what the Court got wrong.”
Um, what part of ‘SUPREME court’ don’t you understand?
Until the supreme court says it is was wrong, it is and will remain correct.
That’s not very originalist of you.
Hey Nazi Martin, no one cares what you think. Go be useful and find yourself a dike to plug or something.
What the fuck is wrong with you?
What’s wrong with YOU? You regularly support the undermining of the United States through open borders!
A wild grayboxtr0 appears! And nobody cared.
This would make the Emperor the only one who is authorized to notice that the Emperor had no clothes.
At least the Supreme Court confesses its nakedness frequently:
Table of Supreme Court Decisions Overruled by Subsequent Decisions
https://constitution.congress.gov/resources/decisions-overruled/
You’re confusing originalism with literalism…
The Biblical view of this , makes great legal sense against you
“Don’t ask a woman for advice about a rival of hers, a coward about war, a merchant about a bargain, a buyer about selling, a stingy person about gratitude, a cruel person about kindness, a lazy person about work, a casual worker about finishing a job, a lazy slave about a difficult task. Pay no attention to any advice they may give.”
There’s a reason these religious texts are considered apocryphal. Further down in the same passage, we get to this gem:
“[Don’t rely on … etc.] Instead, rely on someone who is religious and known to keep the Lord’s commands, someone who is sympathetic with you, who will be sorry to see you fail. And trust your own judgment; no one’s advice is more reliable.”
Perhaps well-meaning, but hardly in keeping with the rest of the Bible.
.
Not always. Some people — including, believe it or not, some ostensible adults — are gullible enough to fall for that stuff.
The influence of superstition is fading in modern America, but in some desolate, uneducated communities it remains a powerful and negative force.
‘The influence of superstition is fading in modern America…’
You are importing millions of religious illiterates and jihadis, whilst your domestics don’t breed. Indeed, the key reason for importing them is because you don’t meet replacement rate; this isn’t for biological reasons, but rather because of an existential cultural failing. Your superstitious multicult, based on the lie of cultural equality, is not waning one iota in terms of belief amongst adherents. Instead, those adherents are simply being, and shall continue to be, outbred and replaced. If they were actually rational, instead of merely insisting that they are, your domestic ‘liberals’ and ‘progressives’ would abandon their foolish beliefs now and cease to pretend that they’re progress or superior in the face of the overwhelming evidence that they’re in fact inferior and suicidal.
You’re going full retard, AIDS.
Choose reason and science, AIDS. Abandon your superstition-based political ideology.
I have not studied the issue but I sense that religion tends to be more popular in lesser communities (poorly educated, economically shambling, bigoted, etc.) than in strong, modern, properly educated, successful communities.
You really should.
You import the religious poor in the millions and don’t give their children good educations. Indeed, a lot of their kids don’t even finish school. By contrast, your modern, properly educated, successful communities are NOT strong at all: they don’t meet replacement rate by a long shot.
I appreciate your use of ‘lesser communities’, even so. It betrays the lie of your claimed ‘inclusivity’ and multiculturalism, and to your incessant pestering about ‘bigotry’ on this blog, when such views aren’t, and needn’t be, based upon ignorance at all…
What will you do when the world no longer pays any heed to your values, AIDS?
Why do you keep saying, “AIDS”?
That’s his name.
Oh, like John Bigbooté?
I can see now why you might say that.
Totally in keeping, if you drop your Sola Scriptura and Private INterpretation
RABANUS MAURUS
Having first discussed the differences between counselors here he adds how human wisdom is surpassed by the knowledge of the holy person.infused in him by the gift of the Holy Spirit. …In the other in babbling onabout abstruse questions erroneous opinions emerge or even falsehoods
I’d like to elevate this discussion up a level. I believe everyone has had a sufficient chance to repeat themselves on the specifics of this particular case. It’s time to talk about why we even had all these conversations in the first place: the 14th Amendment itself.
The entire Amendment, with the possible exception of Section 1, is superfluous and anachronistic. It was passed in a moment of national passion to solve a problem that did not really exist (or, at the very least, could have been resolved much less drastically). It has lain entirely dormant for more than a century, only to be resurrected in service of a highly dubious and extremely partisan attempt at lawfare.
It is dangerous to leave bad laws like this dangling on the vine, lying like ancient, rusty traps ready to be sprung by the partisans among us who crave only power.
This Amendment should be repealed. Change my mind.
All of it, or just sections 2-5? I think you’d kinda havta replace A14S1 with something similar, or all federal Hell would break loose (and your repeal the 14th Amendment idea would not pass).
The extent of Trump’s attempted coup is not limited to the attack on J6. It also includes the fake electors, efforts to get state officials to disregard the vote tally and declare Trump the winner, and pressuring Pence to throw out Biden votes.
To ignore everything but J6 is a MAGA trap.
It’s a trap!
Oh nope, it’s just Molly’s TDS.
Hey, USMC, shouldn’t you be off continuing your contributions to a military effort that hasn’t won a war during your lifetime?
You did post a few vague draws, though.
Congratulations?
We need to find a way to attract a better class of people to military service while we still can. At some point, we may need to rely on the performance and character of our military personnel beyond what a substandard group can accomplish with overwhelming taxpayer-provided resource advantages.
You’re now stuffing the military with non-citizens because you’re desperate. That worked out well for the Romans, and it will for you too.
Shouldn’t you be rah rah for Ukraine as well, AIDS? Aren’t you ‘defending democracy’ there, or something to that effect?
Maybe you can stuff the US military with gays, trans, feminists, illegals, jihadis, the neurodivergent, and other miscreants to show how your rainbow coalition isn’t just equal but superior to a male-dominated nation-state military? (They would make for good cannon fodder in your next major war…)
Be careful about criticizing the neurodivergent at this blog. Are you trying to get banned?
You would never have defended Pence except to attack Trump, pellucidly obvious 🙂
The Constitution assigns appointment of presidential electors to states, and assigns state legislatures complete and control over their appointment.
To say that states have no right to “interfere” with their own appointment of presidential electors by expressing their own opinion on who is qualified to be president is just as much pull-it-out-of-your-ass extra-constitutional judge-made nonsense as saying a President has no right to interfere with the appointment of federal officers by having his own opinion about who is qualified to be appointed.
Or for that matter, saying that order, stability, uniformity, and preventing chaos require that only federal officials can be involved in determining who federal officials shall be. It’s a federal matter! If they can strip states of any actual decision-making power over apponting electors and turn textual power into an empty ritual farce, they could with equal legitimacy decide that constitutional provisions for popular elections where the citizens are textually the electors by constitutional right don’t actually give citizens any power to “interfere” with the actual decision-making about who gets selected. They merely give citizen Congressional electors an empty nominal power, same as Presidential electors, to cast their vote to ratify a decision made by whomever the Supreme Court, rolling up the Constitution and smoking it, decides that the “federal interest” requires assigning the power to.
A genuinely originalist decision would never have reached the meaning of Section 3. It would have found that Colorado’s plenary power to appoint whatever Presidential electors it wishes as its legislature directs gives it and all the other states a power to make their own decisions. The Article II Elector Clause makes the appointment of presidential electors an exclusively state matter in which their is no general federal interest AT ALL. The federal goverment can have no generalized interest in a matter the constitution’s text explicitly assigns exclusively to the states. The only potential federal interest arises in applying the Due Process and Equal Protection Clauses in the same manner as for any other state decision or law. Since Trump didn’t even raise a Due Process or Equal Protection argument, the Colorado Supreme Court’s decision was based exclusively entirely on an adequate and independent state-law ground, and there was no legitimate originalist basis for any federal jurisdiction to review it.
That is, because Article II explicitly assigns each State the power to make its own decisions on who is qualified to be President. The power to appoint electors and determine the manner of their appointment, confered on each State by Article II, necessarily includes the power to consider whatever qualification question each State sees fit to consider. Article II makes the whole thing entirely the States’ business.
That’s the legitimate originalist approach. Not this “federal interest in federal elections” nonsense the Supreme Court pulled out of its ass.
You keep saying this, but the Court was not about to overturn US Term Limits v Thornton to get Trump.
Personally I’m not a fan of Thornton (as well as a couple other related state autonomy restriction cases), but I accept it as precedent, and it’s more widely applicable principle here (not adding additional qualifications to offices defined under the Constitution) is rational. As much as you want to say the electors are creatures of the states, they are federal offices under the Constitution. I don’t think the Independent Legislature Theory is that powerful to vitiate equal protection and due process principles to prevent candidacies for reasons not explicitly authorized by the Constitution.
“While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.”
Shoots his argument in the foot in the very first paragraph.
How can Section 3 be self-executing if the contours of the disqualifying acts are not precisely drawn? The fact that we are having any sort of national debate over whether January 6 was a riot or an insurrection is proof positive that those contours are lacking in precise definition, and until they are (through clarifying acts of Congress or conviction for an insurrectionary crime), Section 3 cannot self-execute.
The term “engaged in insurrection” has an original meaning, which under originalism ultimately would be expected to be determined by the Supreme Court. Any “self-execution” of the 14th Amendment at any level below that would always be subject to the Supreme Court’s view of what the language means.
That people today are not in agreement about what the words of the 14th Amendment mean does not in any way change what they do mean, or how that meaning would be determined under an originalist approach to the Constitution.
The people who argue that Section 3 is not self-executing seem to think that § 2383 is Congress’s means of implementing Section 3. Do you know how § 2383 defines insurrection?
Spoiler alert: it doesn’t!
That’s the whole of the law. No “contours.” No “precise definition.” No “clarifying acts.”
Your missing the point. You don’t just get the textual definition of 2383 going down that path. You get all the criminal law benefits of whether someone is “guilty” when no overt act is in evidence, and the primary “proof” is speech protected by judicial precedent (Brandenburg v Ohio), making it unlinkable to the criminal acts of others. No preponderance of the evidence standard. No inferences that the defendant needs to rebut.
Almost certainly, given the public evidence to date, such a conviction would not be sustained on appeal, even given the near certainty a DC jury would convict. That is why DOJ has not pursued such a charge. They know it would not stand up to judicial scrutiny.
When DOJ/FBI has evidence of Trump’s direct/personal communications with the Oath Keepers/Proud Boys planning/ordering the Code Red (breaching of the Capitol), I will be the first to demand a prosecution and disqualification.
*You’re
Even if Trump’s speech were protected by the 1A, there is no legal issue with using protected speech as proof of a crime.
And, no, I’m not missing the point. “Insurrection isn’t defined” is true under both a civil and criminal standard.
Here, let me help you by repeating what I wrote above, since you couldn’t be bothered to read it. Otherwise you wouldn’t have written “civil and criminal standard”.
You don’t just get the textual definition of 2383 going down that path. You get all the criminal law benefits of whether someone is “guilty” when no overt act is in evidence, and the primary “proof” is speech protected by judicial precedent (Brandenburg v Ohio), making it unlinkable to the criminal acts of others. No preponderance of the evidence standard. No inferences that the defendant needs to rebut.
Got that? Proof beyond a reasonable doubt is a bitch. So is mens rea probably, with “fight like hell”, because a prosecution would have to show that it didn’t run afoul of Brandenburg protection, because he knew what would happen and specifically intended it. Good luck with that. Maybe it will be eventually, but it hasn’t been established that he didn’t believe his stolen election BS. I think it’s possible he did, because he’s an idiot and thinks everything is negotiable.
But I get it. For someone who has already decided he’s guilty (without an evidentiary showing in a court of law), this is just annoying details. Everybody also thought there is no question that Trump could/would be disqualified by Colorado and it would stick.
You have overstated your case. Not even here did everybody think there was “no question” that the Colorado Supreme Court decision was a slam-dunk. There were always questions, and severe scepticism that the US Supreme Court would allow it to stand.
I was using “everybody” sarcastically, because of those dismisses of anyone who thought otherwise.
But even the people who didn’t before are now behaving as if Trump disqualification is obvious and should have been the result. Coping is therapeutic I guess. Some are now fine tuning their narrative that the Court is doing Trump’s bidding, of course this outcome was preordained because they’re partisan hacks. Others just don’t like the result and are lashing out at the reality.
No, you’re still not getting it. The comment I was responding to was not making procedural arguments about the level of due process required; it was making substantive arguments that insurrection wasn’t defined by A14S3. Therefore, the argument above went, couldn’t be self-executing; rather, Congress must “clarify” the definition or Trump must be criminally convicted. But convicting Trump criminally would involve the same lack of formal definition of insurrection.
And again, obviously, you don’t get it, since there was an evidentiary showing in a court of law.
Literally zero people thought that. Are you sure you’re on planet Earth?
“In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump’s lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.”
This is so blindingly stupid–first of all, appellate advocacy involves advancing the argument that is most likely to result in a win, right? So you’re not going to bog SCOTUS down on a fact-driven issue.
The dirty little secret of course, is that the 2020 election was not fair. Whatever one thinks of the vote totals, the fact is that the Hunter laptop suppression operation by government officials rendered the election unfair–what rights do the people retain in the face of that?
“The 36 Hours that Changed the World.”
Drama suits you.
1) What are you, six years old? “Not fair”?
2) There was no “Hunter laptop suppression operation by government officials.”
3) The Hunter laptop was not “suppressed” at all.
4) There’s nothing about “suppressing” a nothingburger like the Hunter laptop that would render the election “unfair” even if it happened.
3) The Hunter laptop was not “suppressed” at all.
So it’s just our imagination that Facebook, Twitter, and other social media banned articles about the laptop, and in some cases even suspended accounts that mentioned it? After collaboration with and prompting from govt officials?
Seems weird you don’t know that since it was the subject of several articles here on Reason.
He shills for a guy who took showers with his teen daughter. Let that sink in. The guy is a cheerleader who will say anything.
It was, entirely, your imagination.
Indeed it is. Never happened. Twitter banned sharing one NY Post article — and did so for one day. It never banned any other articles about the laptop. Never banned or punished discussion of the laptop. Never banned or punished discussion of the NY Post article.
Facebook briefly limited how much its algorithm automatically shared (again) that one NY Post article, but it never “banned” the article, let alone banning or punishing discussion of the article, let alone banning or punishing discussion of the laptop.
And there was no such “collaboration with government officials.” The FBI had issued general notices to FB/Twitter to be on the lookout for possible Russian dirty tricks, but never mentioned the laptop itself, never told them to ban it, or the NYPost story, or anything of the kind.
Indeed it is. Never happened. Twitter banned sharing one NY Post article — and did so for one day. It never banned any other articles about the laptop. Never banned or punished discussion of the laptop. Never banned or punished discussion of the NY Post article.
You lying sack of sh!t.
I tried to share the article more than a day after it was published, and was blocked.
Go f*ck yourself
And the next day? Or even later that same day?
The NY Post story was published on October 14.
Here’s what the NY Post itself says:
Lets assume you remember correctly, and are being honest.
How in the world does that make DMN a liar?
Do you think he knew what happened to you somehow?
Or didn’t have the honesty to read the hunterlaptopnonstop.com’s take, but went with what everyone else said?
It is a well-established fact. The exact duration of Xitter’s actions were revealed in detail by Matt Taibbi, not to mention the various investigations which clearly established what had happened (as well as why).
But in competition with your personal feelz, nothing else matters…
And I just want to reiterate that even during that brief window, the only thing that was banned was the URL of the article. Users could discuss the article. Just couldn’t link to it. And everyone was! It was Streisand-effected!
So you are now admitting it happened, you are just quibbling that “it didn’t happen that much”.
BTW, the story was suppressed on more than just FB and Twitter, and Mark Zuckerberg even admitted they censored it.
https://www.thehindu.com/news/international/mark-zuckerberg-admits-facebook-censored-hunter-biden-laptop-story-during-2020-u-s-elections/article65815040.ece
No, I am not admitting that it happened. I am saying that something happened which is not what MAGAs are claiming happened.
BTW, no. Zuckerberg used a colloquial term on a podcast. The “censorship” on FB consisted solely of limiting the algorithmic propagation of the article; there’s no dispute about that. Nobody was banned from sharing it or discussing it on FB.
It’s so funny when people who suppose themselves oh-so-enlightened unintentionally show themselves to be shills or just idiots.
First, if the laptop was a “nothingburger,” then why did Joe Biden feel the need to call it Russian disinformation in a nationally televised debate? And that debate would have gone far far differently . . . .
Second, we can quibble about what “suppress” means in this context, but the fact is that government officials, under the guise of combating disinformation, contacted various social media platforms to block the dissemination of the NY Post’s story. Additionally, moron, the CIA had to approve the letter signed by the 51 d-bags–it rushed the request. These actions rendered the election unfair, not in the “it’s not fair” playground sense, but in the sense that elections are supposed to be “free and fair.” This, of course, is on top of the bogus Russia collusion nonsense ginned up by Strzok, Comey and others (with the consent of Obama and Biden). I mean, come on, a Logan Act investigation?
Dude, you want to shill for a guy that, according to his own daughter, took showers with her when she was a teen, and then prosecuted people who found the diary with that information, be my guest. Man, I hope the giddy feeling of moral superiority is worth your self-respect.
You really ranted about a lot of things, but not about anything on the ‘laptop.’ Hence nothingburger.
“There are 50 former national intelligence folks who said that what he’s accusing me of is a Russian plant,” Biden said.
Biden overstated what the 51 former intelligence officials had put in their letter, which was not that conclusive and had simply cautioned the public that the laptop release fit the pattern of Russian interference.
There is no evidence whatsoever that “government officials” contacted social media platforms to block the NY Post story. (And even if they had, you do realise whose “government officials” those would have been, in October 2020, right?)
Oh yeah, because Trump could control every single government official.
Like I said, go cheerlead for the dude who took showers with his adolescent daughter.
When Biden’s in charge, he’s responsible for everything. When Trump’s in charge he’s responsible for nothing.
I like how rloquitur takes something that even Project Veritas thought was of too dubious authenticity to rely on, and then lies about what it said.
He’s got form.
Nothing wrong with “suppressing” a nothingburger?
That’s not what Hillary’s supporters think in retrospect about 2016 when FBI director James Comey made a public statement in late October about reopening the email probe investigation. Sure, in the moment he was probably doing that to protect himself so that when she won, it wouldn’t look like he had covered something up sitting on “new” evidence. Some think it affected the election outcome.
So no, I don’t think that such investigations so close to an election are “nothingburgers”. The problem with the laptop was that it actually belong to Hunter, and the self-described intelligence officials misrepresented their knowledge of its ownership, in favor of a Russian disinformation narrative which was untrue and unsupported by any evidence at the time.
Yeah, you wanted the FBI to announce a massive new investigation into the BIDEN LAPTOP just before the election, Comey redux. But there was nothing there. It really didn’t take experienced intelligence officers to tell everyone that it was an obvious, blatant, clumsy ratfuck
No, shit for brains, we wanted the FBI to investigate this obvious government corruption in 2019, when they got the laptop.
And Joe Biden was NOT the leading Democrat candidate when they got the laptop.
So, we have massive numbers of butthurt Democrats telling us:
1: It’s perfectly fine for the Biden DoJ to run BS charges against the GOP Presidential nominee lock in Mark of the election year
2: It would have been totally wrong for the FBI to investigate a losing Dem Presidential candidate the YEAR before the election
Obviously you don’t actually have any principles. But I’m curious: do you even know what a principle IS?
What obvious government corruption? Investigate for what?
One of my principles is that people should be investigated for things they’ve done, not things you’ve made up.
This reads like someone drunk wrote it, but just to be clear, Trump was indicted in 2023, not in an election year.
Nobody can be a “losing candidate” before any votes have been cast, but Biden in fact was leading in the polls from the moment he announced in April 2019, except for a brief dip behind Sanders in early 2020.
https://www.realclearpolling.com/polls/president/democratic-primary/2020/national
And nobody said that it was wrong for the FBI to investigate, though it would seem like one should have some idea of a crime someone might have committed before one starts investigating. Did Biden pull the tags off mattresses?
No, we wanted the FBI to not actively work with social media companies to suppress a true press report about corruption by a political candidate.
Do try to explain why it’s the job of the FBI to protect candidates from having true reports about their corruption released to the public by the press a month before the election. This should be entertaining
There was no suppression of the laptop story, except for one tweet, which twitter did themselves, and they said they were sorry. There was also no evidence of corruption in anything that was supposed to have been on the laptop, either.
It wasn’t “one tweet”, it was any tweet about one NYPost story, but that block was only for approximately 36 hours, which had ended by 10pm on October 15, 2020.
The idea that this limited private action had any measurable effect on the 2020 election is absurd. But for Trump, it justifies a “do over”…
You’re right, it was one story. For just over a day. And the laptop story vanished, never to be heard of again.
No, I want the news media not to report uncritically partisan former intelligence agents unanimously concluding (without any supporting evidence) that the laptop was Russian disinformation, that it couldn’t possibly be Hunter’s laptop. Don’t report the story that way, if it’s nothing but the intelligence people’s own opinions, if you care about credibility and truthiness.
I want social media companies not to collude to actively suppress a legitimate news story, that if it was such a “nothingburger”, would not need to have been suppressed.
I can’t remember whether Twitter colluded with FBI or other law enforcement to suppress this story or not. It all runs together. But if they did, I don’t want my tax dollars working against the principle of free speech.
I’m old enough to remember Dan Rather’s fake but accurate National Guard memo. The market place of ideas punishment for pushing fake news should be a loss of credibility and banishment. Those rules seem to be out the window now. I guess it went with the pee tape.
There was no such “conclusion” in the letter. Did you miss this part?
“We want to emphasize that we do not know if the emails, provided to the New York Post by President Trump’s personal attorney Rudy Giuliani, are genuine or not and that we do not have evidence of Russian involvement — just that our experience makes us deeply suspicious that the Russian government played a significant role in this case.”
To quote GOP Congressman Joe Wilson responding to Barack Obama: “You lie!”
They did no such thing.
Ridiculous. Of course they lied. Misrepresented. Whatever you want to call it. Because they did not hedge with maybe at the time. Certainly not the way it was reported. And why Twitter (and others) actively blocked anyone from sharing the New York Post story.
You know what might help? Finding the language in the letter that you believe is the lie.
Frankly, it’s been a while and I do not recall the specifics.
Or, you could just read the letter.
“We want to emphasize that we do not know if the emails, provided to the New York Post by President Trump’s personal attorney Rudy Giuliani, are genuine or not and that we do not have evidence of Russian involvement — just that our experience makes us deeply suspicious that the Russian government played a significant role in this case.”
Yet that detail is not what was reported, widely reported.
That detail makes it worse, because they got social media to suppress it on “suspicion”. Having the cake and eating it too.
The whole episode is dishonest, then and now. Just like Adam Schiff claiming he saw “intelligence” of Trump’s complicity with the Russians. It’s a pattern of behavior. Both by Trump’s enemies and a sympathetic media.
Well, yes, the whole episode was a scam so obvious you still can’t comprehend the fact that everyone saw right through it.
MaddogE: “They’re liars; they said X.”
Obviously: “No, here’s what they actually said, which is the opposite of X.”
MaddogE: “Okay, so they didn’t say X, but I didn’t see it reported that way, so they’re liars.”
The FBI had the lap for nearly a year, they surely knew it was real.
I don’t know where you read about it, but Google ably reveals that it was reported in Politico, which linked directly to a .pdf of the letter.
If you relied on some Alt-rightwing “news” site which suppressed the parts of the letter they didn’t want you to see, sorry, but that’s on you. You could have sought less biased information sources (or at least ones which linked to the actual letter), but you declined to do that.
2) There was no “Hunter laptop suppression operation by government officials.”
Are you a lying sack of sh!t, or just a pathetic ignoramus.
A Obama FBI agent spent the year of 2020, after seeing the Hunter Biden laptop given to the FBI and knowing that it detailed Joe Biden’s corruption, warning social media companies about “Russian disinformation” that would hit in during the campaign. Then when teh Hunter Biden laptop came out, and social media companies asked him if this was the kind of thing he’d been warnign about, he led them to believe that it was, and that the laptop was a fake.
This despite the fact that he knew it wasn’t a fake, and everything the Post was reporting about it was true.
So, thank you for re-establishing that you are a garbage human being
What are you on about? What evidence of corruption?
1) I have no idea what “A[n] Obama FBI agent” is.
2) There is, of course, no “corruption” “detailed” on the laptop.
3) Yes, the FBI did warn social media companies about Russian disinformation. And? I know MAGA are disloyal Putin lovers, but most Americans don’t want Russian disinformation in U.S. elections.
4) Also: whatever the FBI had in its possession was not what the NYPost story was about, by definition. The NYP was reporting on something that Rudy Giuliani gave to the NYP, not on a machine in the FBI’s possession that the NYP had never seen. So there is no way any FBI agent could have known about the NYP story.
3) The Hunter laptop was not “suppressed” at all.
The New York Post Twitter account was shut down until they took down their post about their article on the Hunter Biden laptop
Social media companies repeatedly took down any and all posts / attempts to share the NY Post story.
So, since we know you know this, we are now left with “lying sack of sh!t” as only possible explanation
One story, one tweet, they otherwise completely failed to suppress it, and it wasn’t at the behest of the FBI.
4) There’s nothing about “suppressing” a nothingburger like the Hunter laptop that would render the election “unfair” even if it happened.
Gosh, let’s see, detailed descriptions of corrupt deals made trading on Vice President Joe Biden’s political power, and Joe Biden actively participating in the corruption.
No, no voter would ever care about that.
That’s sarcasm, BTW, you scum sucking pile of sh!t
‘detailed descriptions of corrupt deals’
There’s a version of the laptop out there that you long for in your dreams.
Hunter Biden finally admits that Joe is indeed the “big guy”
03/06/2024 /
You heard it here first.
There were no descriptions of any deals of any sort — corrupt or otherwise — made trading on Vice President Joe Biden’s political power, or showing any participation by Joe Biden in anything.
(There is a reason why the MAGA loons in the House haven’t impeached Joe Biden. They’ve got less than nothing.)
‘If Trump isn’t innocent, and Biden isn’t a crime lord, why do I keep writing they are those things over and over again?”
Well, Greg, you’re a zealot who has chosen not to seek out facts, but stick with unverified stories that are childlike in their ‘my side good their side bad’-ness.
And it’s ended up making you very angry and also stupid.
‘It’s not an insurrection because I am delusional.’
Well, OK then.
“the fact is that the Hunter laptop suppression operation by government officials rendered the election unfair”
What suppression? I remember reading about it in the pages of the NY Post.
Asserting that the “suppression operation” affected the outcome of the election seems like speculation, rather than a fact, but that must be your superior “BigLaw training”.
Think about what you are saying for 2 seconds. “Trump would have won if only Russian disinformation was more widely spread.” Get a grip!
As I said upthread, we can quibble about the definition of “suppress” (a term which liberals use to describe voter ID requirements) when it comes to the Hunter laptop, which is genuine (so I don’t get where your disinfo comment is coming from). The fact is that government officials jawboned media companies to bar the dissemination of the Post article on their platforms.
“the laptop”
So there’s only one?
If you’re still taking things from “the laptop” at face value in 6 months after Abbe Lowell gets done with it I’ll be impressed at your commitment to the bit
‘a term which liberals use to describe voter ID requirements’
Also, courts.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an “insurrection,” but merely some other kind of violence.
So Trump would have to go to court 50 times, one for each state, in order to argue that his (non) involvement in Jan 6 was not an insurrection? (Then possibly Biden would have to do the same thing over accusations of invasion at the southern border?) That really is the definition of lawfare, and it wouldn’t just be a mess, but a complete embarrassment to our country on the world stage.
It would be appropriate for the court to exercise original jurisdiction in regards to Trump being disqualified.
That’s strange. “Embarrassing the country on the world stage” has never bothered any Trump supporter before…
You just made that up,. I see Biden mocked routinely , regularly.
Take Australia…
Here just 1/2 day ago
Joe Biden believes he is leading the polls in newly surfaced video
https://www.skynews.com.au/opinion/rita-panahi/joe-biden-believes-he-is-leading-the-polls-in-newly-surfaced-video/video/8cf22e46f74aaaff425ec639de7c1bdb
The world at large thinks Biden is a stupid and lazy President
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text.
Only if you’re a moron who can’t read. “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
NOTHING in Section 3 grants States the power to decide that someone is “an insurrectionist”. That power is clearly and solely reserved for Congress
As the 5 men on SCOTUS correctly ruled
It doesn’t matter what the states say; what matters is what the Constitution says. The argument that the 14th Amendment (and, presumably, each of the others which contain the same “enabling” clause) is meaningless without Congressional action is not supportable by any serious originalist analysis.
It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause
The inane stupidity of this is truly impressive.
States can pass all sorts of laws, meaningless and otherwise. But what States can NOT do is impose restrictions on candidates for Federal Office that are outside of the US Constitution.
The “Colorado definition of who is an insurrectionist” is a “restriction on candidates for Federal Office that is outside of the US Constitution.” Because Section 5 of the 14th Amendment, which this moron apparently hasn’t read, says “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
So since Congress passed an Insurrection Act, there is one, and only one, Constitutionally valid definition of “who’s an insurrectionist?”
And it’s not Colorado’s
“The inane stupidity of this is truly impressive.”
You should introduce all of your comments that way. Though, to be fair, putting “Greg J” at the top also informs us of that.
Nothing in the Constitution or Insurrection Act provides any such definition.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications.
No, you sh!t for brains loser, Congress has the SOLE power to create a procedure. That’s what “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article” means!
Sole isn’t in the language you claim grants sole power.
Your take here is neither textual nor originalist.
I also think your take is the correct one, for the reasons the Court laid out. Which were neither textualist nor originalist.
“I think Mike is right here on virtually all counts”
Of course you do. But that’s because you’re a TDS addled moron and loser
If Greg J didn’t have insults, he wouldn’t have anything. Certainly not literacy, since he keeps seeing the words “sole” or “only” in a constitutional provision that contains neither word.
Regarding self-enforcing nature of sec3, Rappaport misses some key points which are not spelled out in the Constitution. Who determines if an insurrection has occurred? Who determines if a particular person has engaged in the insurrection? Does it make sense that such determination would be left to the individual states? Could the former confederate states have simply refused to characterize their candidates as insurrectionists while disqualifying candidates from the Union? If the last hypothetical were so, the situation then would be much the same as today.
I agree with Rappaport that the best outcome would have been the court defining “insurrection” and holding that Jan6 riot at the Capitol did not come close to what the framers of the 14th amendment had in mind (note that there had been hotly contested elections before the civil war, but Sec 3 of the 14th amendment was a response to that particular evil, not to contested results of an election). But I do not agree that the court erred in holding that the individual states do not get to decide if a presidential candidate has engaged in insurrection, or that the outcome was non-originalist.
Why would the Court have to do the job of those who are prosecuting Trump.Do we have arguments over what murder is, or stealing, or adultery???? No, because it you had widespread confusion about things so serious you could hardly say they had any gravity at all.
Because it is the job of the Supreme Court to interpret the Constitution, to say what it means, that includes the meaning of “insurrection” in section 3 of the 14th amendment.
Somin thinks it would be fine if there were 50 different interpretations. But would he accept a patchwork approach for every part of the Constitution, or just this one?
Are you assuming Somin “wants” a particular outcome, regardless of what the Constitution requires?
Why do you ask? Somin has said the patchwork approach is fine in this instance, but I wonder if he would approve of such for all of the constitution.
You mean, like, for abortion?
Prof Rappaport shows us exactly why originalism is a pile of steaming pile of turd: even the most strident (see what I did there 😉 ) supporters of originalism discard it when they don’t like the outcome. As Prof Rappaport says: “The section simply cannot be read as saying that only Congress or the federal government can enforce it.”
Yet the majority simply assumes that the feds/Congress must have exclusive power to enforce Section 5. Not only does the majority ignore the plain text of the Constitution but they jettisoned every precept of originalism in doing so.
What I find so damn infuriating about originalists (Scalia, I am looking at you; see Raich) is they think everyone must be dumb as rocks for not seeing the brilliance of originalism. But the instant it produces a result not to their liking, the analytical framework of originalism is ignored.
Originalism is simply a fancy way of cloaking regressive, conservative policies with something that passes for enlightened legal thinking, thereby giving originalists a way of convincing rubes that they have the moral high grounds.
Prof Rappaport shows us exactly why originalism is a pile of steaming pile of turd
No, he shows us that TDS turns your brains into a steaming pile of turd
As Prof Rappaport says: “The section simply cannot be read as saying that only Congress or the federal government can enforce it.”
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Unless you’re a complete f*cking moron, the ONLY way to read that is Congress has the SOLE power “to enforce, by appropriate legislation, the provisions of this article”
Sp, nice try, but keep digging, a$$hole