My Forthcoming Article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson"

The forthcoming Cato Supreme Court Review article is now available on SSRN. It critiques the Supreme Court's decision in the Trump Section 3 disqualification case.

My forthcoming Cato Supreme Court Review article, "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson," is now available on SSRN. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

Comments

[Dr. Ed 2]

Ilya, Section 3 was no more intended to apply to situations like this than it was to protect the country from an invasion of Martians.

It was intended to apply to the Confederacy -- the north initially didn't realize that the 14th Amendment would even apply to THEIR states...

[David Nieporent]

It was intended to apply to the Confederacy — the north initially didn’t realize that the 14th Amendment would even apply to THEIR states…

Mr. "I don't make things up" has spoken! Falsely! Again!

[Dr. Ed 2]

Really?!?

What do the 20th Maine and 51st Massachusetts have in common?

[David Nieporent]

Neither regiment has ever been in my kitchen. Oh, and also neither ever said that they did not realize that the 14th amendment would apply to their states.

[Dr. Ed 2]

You really are that stupid...

[JasonT20]

It was intended to apply to the Confederacy

Too bad that the 14th Amendment doesn't actually say that. That is why it applies to anyone that engages in insurrection or rebellion and not just ex-Confederates.

— the north initially didn’t realize that the 14th Amendment would even apply to THEIR states…

Same here. If legislators from the northern states didn't want the 14th Amendment to apply to their states, then they should have made sure it said so.

[JoeFromtheBronx]

"unusual unanimity"

Partially. Yes. And, the "concurrence" leaves a lot to be desired regarding overruling the lower court.

They split 5-1-3 otherwise.

A basic thing about this case is that the Supreme Court not only did not release a signed opinion, they didn't even show up to announce it. Act of cowardice.

[JoeFromtheBronx]

The worthwhile article covers the concurrences.

[questioner7]

...but why would it be good if each state's election officials -- often elected partisans -- be the ultimate arbiters of whether Section 3 applies to a given candidate? At the least, each state's Supreme Court should decide that. But then we might have many inconsistent decisions in different states. The right approach is for Congress to say only federal courts can make these determinations, with the Supreme Court handling final appeals.

[Michael Ejercito]

Even when Section 3 is applied to state and local officials, state highest courts often have the finsl say, not state election officials.

[Dr. Ed 2]

Didn't happen that way in Maine...

[Brett Bellmore]

This issue here, and I went over it when we were discussing this before the Court ruled, is that states have their own inherent power to determine qualifications for state and local office, independent of Section 3. So they are not limited to disqualifying people from their offices (Including the office of Elector!) by the specific process Congress lays out in it's Section 3 enabling legislation. They must at least disqualify those found disqualified consistent with that procedure, but they can go above and beyond that procedure.

Similarly, Congress has the power to confirm appointments at the federal level, and judge the qualifications of its own members, so they are not limited in disqualifying people from federal appointment, or being seated in Congress by the enabling legislation they have enacted. But once somebody is already in office, if they wanted to go beyond that process in removing them based on disqualification, they'd have to resort to impeachment.

For states, Section 3 enabling legislation is a floor. One could argue that for purposes of Congressional seating, though, it is not really binding, because Congress is the sole judge of its members qualifications, which implies they get to judge for themselves if Section 3 applies to their own membership. You'd get an interesting case if a member of Congress were convicted of insurrection, but Congress tried to treat them as qualified anyway...

The Presidency is kind of unusual in that the floor is also the ceiling, neither Congress nor the states having constitutional authority to add to the qualifications for office. Though Congress IS empowered to enact the enabling legislation for Section 3, once they've enacted it, they're bound by it.

[David Nieporent]

But then we might have many inconsistent decisions in different states

So? Cornel West is on the ballot in some states but not others. So is RFKJ. I think that's true of Jill Stein. It's definitely true of many lesser known candidates. Nobody thinks that this represents a constitutional crisis; we recognize that different states have different, and independent, ballot access rules. Why should A14S3 be implemented any differently?

[Krayt]

You had your partisan attack via impeachments 1 and 2, neither of which was sufficiently convincing for his supporters to turn on him. Why should another one-sided attack be able to dispose of the (ex) president a different way?

It shouldn’t, of course. The math was well understood. In a close election, getting him kicked from one or two purple states would have been sufficient. This was the partisan goal of partisan attack dogs.

[David Nieporent]

Non-responsive. And also, Trump was never in a million years going to win Colorado. (And if the electorate shifted so much that he did, then it would not be a "close election.")

[Brett Bellmore]

But once you'd established that it could be done in Colorado, it was to be expected that there would be a rash of election officials attempting it all over, including in actual swing states. They just didn't want to be the first to try it.

[Jason Cavanaugh]

"Expected" if you claim to be a mind-reading nutcase like Brett.

"They just didn’t want to be the first to try it."

Thank you for immediately making my point.

[JasonT20]

…but why would it be good if each state’s election officials — often elected partisans — be the ultimate arbiters of whether Section 3 applies to a given candidate?

Each state's election officers, that are already the arbiters of whether a candidate has met all other qualifications for the local, state, or federal office they seek, should be the arbiters of whether or not a candidate for President is disqualified by Sect. 3 of the 14th Amendment. If those partisan elected officials abuse their authority, the candidate has recourse with the courts the same as they would if they disputed being disqualified for a different reason. In addition to that, Congress can remove the disability by itself.

There is no perfect, completely non-partisan method to decide who gets to be on a ballot. Ultimately, the elected official that abuses their authority has to answer to voters themselves, and they will affect the voters' opinion of their political party.

At least, we can hope so. If the majority of the voters in a state want its election officials to corruptly limit the ability of the minority party to participate in the state's elections, then it would seem that there is an even bigger problem to address.

[dwshelf]

An unarmed insurrection is very analogous to speech being called violence.

[David Nieporent]

The J6ers were not unarmed. Who lied to you?

[Dr. Ed 2]

They had a guy with -- a spear.

Against a superpower with nukes....

[Magister]

Nuking the Capitol building to stop an insurrection is a very Dr. Ed 2 idea.

[Dr. Ed 2]

Like the Federal Government ONLY has nukes....

[Magister]

Superpower or nukes are both irrelevant to whether the US can put down such an insurrection. The problem is not with the military or law enforcement power of the US, but with the commander-in-chief not responding to the insurrection (because he wanted it to succeed) for a long period. Dr. Ed 2 is so close to getting it!

[VinniUSMC (Banana Republic Day 5/30/24)]

AOC, is that you?

[Kazinski]

As I foretold a month or so ago:

Law Professors never explain what they got wrong when the Supreme Court rules against their position, they explain, again, why they were right and then what the court got wrong.

But of course Jack Smith isn’t going to be citing Ilya’s position in any briefs even if he agrees 100% because it’s meaningless.

[Sarcastr0]

Law Professors never explain what they got wrong when the Supreme Court rules against their position

The scholarship of law is not ‘let me guess how the Supreme Court is gonna rule.’ The Supreme Court is not revealing some underlying thing that was there all along.

[loki13]

Yep.

"We are not final because we are infallible, but we are infallible only because we are final."
-Abraham Lincoln ... heh. Kidding. Despite what you read on the internet, he didn't say all the quotes.

-Justice Robert Jackson.

[Brett Bellmore]

The Supreme court did not "gut" Section 3. They clearly identified what is, per current statues, necessary to apply it: Convicting the person of the felony "Insurrection". Metaphorical or figurative "insurrection" doesn't cut it.

It's not the Court's fault Trump has never been charged with insurrection, let alone convicted. Prosecutors in the DOJ simply took one look at the case, and understood that they didn't have the evidence necessary to convict.

[F.D. Wolf]

The vast majority of people predicted the outcome of this unanimous Supreme Court decision. The only ones who didn't were the most virulent Trump haters, of which Somin is clearly one, exercising wish-casting more than common sense.

To understand how preposterous Somin's position is requires only the most basic understanding of why and how the 14th Amendment came to be, and what, in the broadest sense, it was meant to do. The Amendment, of course, came about because of the Civil War. It represented a radical, fundamental restructuring of the government in which much of the sovereignty previously possessed by the states was taken away and given to the federal government.

To accept Somin's position requires one to believe that the Radical Republicans who wrote and passed this Amendment stripping states of their sovereignty, also decided to insert within it a states' rights provision, whereby, for example, some local judge or state official in Alabama or Georgia, whose home had been destroyed and sons killed by federal troops, could disqualify Republican candidates and officeholders by declaring them "insurrectionists" without any direct statutory authorization, or even guidelines, from Congress.

[David Nieporent]

The vast majority of people predicted the outcome of this unanimous Supreme Court decision. The only ones who didn’t were the most virulent Trump haters, of which Somin is clearly one, exercising wish-casting more than common sense.

Where are examples of these supposed virulent Trump haters failing to predict the outcome of this decision, as opposed to merely disagreeing with it?

whereby, for example, some local judge or state official in Alabama or Georgia, whose home had been destroyed and sons killed by federal troops, could disqualify Republican candidates and officeholders by declaring them “insurrectionists” without any direct statutory authorization, or even guidelines, from Congress.

1) In fact, everyone seems to agree that the 14th amendment empowers states to do exactly that for state offices.
2) The 14th amendment safeguards against your hypothetical of a rogue local official disqualifying people for insurrection without a valid basis, by empowering Congress to remove the insurrection disqualification.
3) Even if you were right that this was an incongruity, you know what's a bigger incongruity? Thinking that said Radical Republican Congress crafted an amendment without using the word 'convicted' that secretly required a conviction.
4) You know what's a much much bigger incongruity than even that? Thinking that said Radical Republican Congress crafted an amendment to bar insurrectionists in order to deal with southern traitors that would never actually deal with any of them since none of them were being prosecuted, let alone convicted.

[F.D. Wolf]

Where are examples of these supposed virulent Trump haters failing to predict the outcome of this decision

Is this a serious question? Somin himself probably made dozens of posts to that effect.

The 14th amendment safeguards against your hypothetical of a rogue local official disqualifying people for insurrection without a valid basis, by empowering Congress to remove the insurrection disqualification.

So, if some county judge in Georgia or Wisconsin decided to throw Kamala Harris off the ballot, you would be satisfied that a 2/3 vote of both houses of Congress would be an adequate "safeguard" to place her back on the ballot?

Thinking that said Radical Republican Congress crafted an amendment without using the word ‘convicted’ that secretly required a conviction.

An excellent refutation of an argument I never made. I don't suggest a conviction is necessary, only a specific congressional enactment that provides the process and standards states should follow in enforcing Section 3 in given cases. Congress has done so in the past, which would have been a curious thing to do if such statutes were unnecessary.

[David Nieporent]

Is this a serious question? Somin himself probably made dozens of posts to that effect.

Prof. Somin (and other bloggers here) made many posts about how SCOTUS should rule. I don't recall him making a single prediction that they would rule that way. (It's possible; he made a bunch of posts. But I don't remember any.)

[JoeFromtheBronx]

(covered)

[The Margrave of Azilia]

If Am. 14(3) doesn't apply to Trump, just say so, don't say it's irrelevant whether he's disqualified or not.

So let's see…if you’re a major-party candidate, you’re entitled to ballot access regardless of whether you’re legally qualified for the office you’re running for.

If you’re a 3rd party candidate whose legal qualifications are indisputable, you nevertheless shouldn’t be on the ballot because that would be a threat to democracy.

[Social Justice is neither]

For the 3rd party candidate that depends on whether it helps or hurts Democrats.

[ReaderY]

I don’t often agree with you. But the claim that state legislatures can’t impose any qualifications other than those in the constitution is not merely nonsensical when the constitution gives state legislatures plenary control over elector appointment. It also flatly contradicts other cases where the court has upheld extra-constitutional requirements, like nomination by a major party or support by a minimum number of signatures. There’s non such eligibility requirement in the constitution.

I’m surprise Trump v. Anderson wasn’t used by minor-party candidates to challenge these qualification requirements.

[Michael Ejercito]

The Supreme Court was reviewing a judgment of the Colorado Supreme Court to disqualify Trump from the ballot, not a decision by the Colorado state legislature to appoint some FJB fanbois as electors.

[Brett Bellmore]

Are there any Justices on the Court nominated by Presidents who were third party candidates? No, I don't think there are. So, not shocked that the Supreme court is OK with third parties being treated like dirt.

If you're a major party candidate, you get treated seriously by the Court. If a third party candidate, you're just a pretend candidate, and the degree to which the Court will play along is very limited.

As I've observed before, prior to the arrival of the Australian ballot in America, and for some time thereafter, the right to vote, if you had it, was the right to vote for whoever you damned well pleased. Even after the 14th amendment, Confederates still could run for office, and even win elections; They just couldn't be seated. The 14th amendment had no bearing on who you could vote for, just who could assume office.

Limiting who the voters can conveniently vote for is dodgy, limiting who they can vote for at all is an outright, genuine voting rights violation. One the Court is OK with, though, as long as it's limited to third parties, which aren't regarded by the Court as real candidates, just play candidates.

[ReaderY]

I continue to think that the court, all 9 of themp, is off their rockers for not taking the text of the elector clause as stated.

Members of Congress are elected by the people. Federal judges and cabinet officers are nominated by the President and confirmed by the Senate. But Presidents are elected by a college of electors appointed in the manner directed by state legislatures.

It would every bit as legitimate for a future Court to interpret the First Amendment to say that giving mere citizens any actual say in who members of Congress should be as it was for this Court to interpret it as not giving state legislatures any say in elector appointment. A future court could with equal legitimacy say that when the Constitution calls the people comgressiomal “electors,” it means just a ministerial position with no implication of any actual choice, just like presidential electors. And it could with equal justification say that letting citizens have any say in determining the qualifications of candidates violates the candidates’ first amendment rights.

The Framers elected not to have a pure democracy, but instead to have many parts of government chosen by non-democratic means. They chose to let state legislatures decide how much democracy, if any to use in selecting Presidents.

This Supreme Court chose to just ride roughshot over the Framers plan and to interpret the framers’ choice to put state legislatures in the driver’s seat when it comes to determining how to select presidents as merely vestigial and nothing but a ceremonial formality.

Future Supreme Court could, with equal legitimacy, ride equally roughshod over the democratic elements of the constitution. They could, with equal legitimacy and equal justification, treat popular election as a mere ceremonial vestigial formality in which the people ceremonially ratify a choice already made for them. This would certainly serve the “strong federal interests” identified in Anderson – uniformity, standardization, predictability, etc. – much better than letting mere citizens have an actual say in the matter would.

There are no such federal interests. They don’t exist. The Supreme Court Justices pulled the whole idea out of their asses. The Framers specifically wanted a system where the legislatures of different states could decide how to appoint presidential electors in different ways. They specifically didn’t want a uniform or standard way of doing it. Moreover, the First Amendment no more gives would-be presidents a right to appear on the state’s electoral college ballot if state legislatures don’t want them to be than it gives would-be Supreme Court justices a right to be considered by the Senate if the President doesnmt want to nominate them.

Our present system of selecting presidents reflects a remarkable degree of consensus among state legislatures. But a current, potentially passing consensus over how to select presidents no more becomes part of the constitution than a current, potentially passing consensus about what alliances to have in foreign policy. There is no national system for electing presidents. None whatsoever. The entire consistent is simply a breaking of wind, judge-made law with no basis in the constitution. And for judges to pull how to select presidents out of their asses is extraordinarily dangerous. The same license one court feels to ignore non-democratic elements of the constitution, another can use to ignore democratic ones.

[CindyF]

We really need those violent gang members especially from Venezuela and Brazil. I understand there is a serious shortage of gangs in some of the rural areas of America.

Hopefully, Harris/Walz will win in November so there will not be a pause in the programs and pathways the Democrats have created to bring more violence to America.

If American citizens don't feel comfortable with an increased level of crime, they can always take some of the mind-altering drugs the cartels provide. After a few days, they will barely notice the robberies, assaults, murders, and rapes in their neighborhoods.

If you don't want to take the mind-altering route, then you can always be one of the hard-workers who toil everyday to pay those tax-dollars our government needs to support the invaders to our country.

Besides, it is not really fair that the U.S. has been a successful country over the past almost 250 years. Something really needs to be done!

Vote smart! Vote Harris/Walz to continue the destruction of our country.

[ReaderY]

If you want more violent gangs, Trump was a big supporter of them and worked hard to increase their acceptability and activity. He employed them to do work for him, like storming the capital on Jan 6. If you want more violent gangs in this country, as you say, Trump is your man and you should be touting his virtues. White supremacist and nationalist gangs far outweigh Venezuelan ones in both numbers and violence. You should be focusing your attention on them and praising Trump’s accomplishments in increasing them.

[Brett Bellmore]

If you've got evidence that Trump actually had anything to do with the Proud Boys' riot at the Capitol, share it with the DOJ; There's still time for a snap insurrection prosecution before inauguration day.

[Michael Ejercito]

Great point.

There is no evidence Trump caused the riot at the Capitol.

[ObviouslyNotSpam]

He just had some weird command and control relationship with them, exemplified by his public instruction to them: "Proud Boys, stand back and stand by".

[Brett Bellmore]

Again, there's no evidence he caused the riot.

It was pre-planned by the Proud Boys, who were under extensive surveillance for months prior to the riot, and never once were in communication with Trump. And it began while he was still talking, among people who weren't attending the speech.

It simply wasn't planned by him, or legally incited. And by the time you relax the standards of "incitement" enough to sweep in Trump, Democrats are guilty of incitement, too.

[Sarcastr0]

You're playing games with level of proof.

There was a whole plan to pressure Pence via 'grassroots' groups.

Trump's messaging was dire - that the election was stolen, and only concerted action on January 06 could address that. Who would think 'ah, a protest is just the thing!' I guess Brett would.

Stone and Flynn, close Trump allies, help the planning of the more violent groups that on J06.

Twitter employees thought he was organizing a mob.

He tweeted stuff that sure invited something 'wild.'

The rioters thought he asked them to, according to messages before and after January 06.

Congress, at least initially, thought he was the cause.

Upon seeing there was a riot, he acted like it was good for him and refused to stop it for a long time.

At some you cannot ignore the number of pieces pointing towards causality. You're just being willfully blind.

But then you think J06 was an FBI opp, and 2020 was stolen but like by the judiciary. So of course you make common cause with these nuts.

[Brett Bellmore]

"There was a whole plan to pressure Pence via ‘grassroots’ groups."

Oh, how nefarious! There was petitioning for redress of grievances going on, and since the groups didn't agree with you, they must have been astroturfed.

Again: The Proud Boys were under unrelenting surveillance for months before January 6th. Half their upper management were FBI informants! And yet not the slightest scrap of evidence has been presented that Trump directed them to do this. That alone is fatal to your theory of what went down!

And I've pointed out that the Capitol break in actually HURT his plan. Predictably so! It interrupted proceedings that might otherwise have actually gone his way!

[JasonT20]

Predictably so! It interrupted proceedings that might otherwise have actually gone his way!

How? Without Pence, they had no way of doing anything but delaying the inevitable. They didn't have nearly the votes in either chamber to actually reject any of the Electoral College votes.

Again: The Proud Boys were under unrelenting surveillance for months before January 6th. Half their upper management were FBI informants!

Huh? I have some memory of one guy, and I don't know that he was "upper management."

And yet not the slightest scrap of evidence has been presented that Trump directed them to do this.

As Sarcastr0 said, you're playing games here. I guess you think that by "Trump directed them to do this," you want to see Trump having explicitly said, "Break into the Capitol building and threaten Pence and other GOP RINOs until they reject the votes of the people without proper rules of evidence justifying that."

[Michael Ejercito]

There was a whole plan to pressure Pence via ‘grassroots’ groups.
Which is not insurrection, nor could have caused anyone to riot.

[David Nieporent]

Trump’s messaging was dire – that the election was stolen, and only concerted action on January 06 could address that. Who would think ‘ah, a protest is just the thing!’ I guess Brett would.

Don't forget: Trump himself explicitly described his vision for J6 as "wild."

[Michael Ejercito]

Essentially, all of the arguments that Trump incited tHe Insurrection®™ boil down to this.

Trump promoted Badthink®™, and because some people rioted on the basis of Badthink®™, that was an insurrection and Trump incited it.

Some may argue this applies to Patrice Cullors, Nikole Hannah-Jones, Charles M. Blow, and many others. After all, they chanted, “Hands Up, Don’t Shoot”. They claimed that the police habitually hunt down and gun down unarmed Black men. They claimed the criminal justice system is systemically racist. And some people rioted on this basis.

It would apply if this principle was enforced in an even-handed manner. But the same side that says that Trump was promoting Badthink®™ also believe that Cullors, Jones, and Blow were promoting Goodthink®™, and those who rioted based on this Goodthink®™ were not engaging in Insurrection®™, but fighting White Supremacy®™

[ReaderY]

The 9/11 people killed no-one. They merely removed an artificial life-sustaining gravity-resistant structure that was artificially and unnaturally keeping people alive, and then allowed nature, gravity, to take its course. Restoring the natural course of things by removing artificial interventions keeping people artificially alive doesn’t cause anyone’s death. Nature is the cause; such deaths are completely natural. The idea that the 9/11 people caused anyone’s death is absurd.

Right? That’s pretfy much the kind of logic you’re using.

Trump solicited a mob to attack the US capital and prevent Congress from certifying the election. If that’s merely “promoting BadThink,” then Eichman was merely running a railway.

[DaveM]

Sure. J6 was an "insurrection", and the flood of illegal border-jumpers the feds are allowing into the country is an "invasion".

The legal mind often seems to regularly forget that laws and rules are merely practical things, neither ideological nor philosophical. If you shoe-horn your favored "creative" interpretation of a law to the point where it becomes unwearable, the people just make more laws.

This interpretation of J6 as an "insurrection" just isn't practical. Sure, you can arrest an elderly woman for trespassing into the Capitol building and praying on a sidewalk, but you can't convince the public she's a domestic terrorist bent on overthrowing the federal government.

[Michael Ejercito]

None of those who rioted at the White House were charged with insurrection.

https://www.cnn.com/2020/05/31/politics/trump-underground-bunker-white-house-protests/index.html

The decision to physically move the President came as protesters confronted Secret Service officers outside the White House for hours on Friday – shouting, throwing water bottles and other objects at the line of officers, and attempting to break through the metal barriers.

[JoeFromtheBronx]

Elderly grandmothers?

People were armed, there was violence, and people were convicted of sedition. People died. There is video and it has been replayed repeatedly. It wasn't just little old ladies with tweety birds praying.

There was an attempt to stop the transfer of power. "Insurrection" -- as noted in the article -- historically had an open-ended meaning. But, even using it in a more limited sense, it applies.

If some similar effort was used to try to stop the certification of the election of Lincoln or Grant, I think the ratifiers of the 14A would have easily said "yeah, that counts."

[Brett Bellmore]

People were armed, sure: They weren't multiple amputees, after all. Oh, wait, one guy DID have a flagpole, and another guy had a gun in his pocket that he never pulled out, so we can just be sort of vague and pretend the whole mob was armed.

There was violence. Not a lot of it compared to events that inspired much less media hysteria, but some. It was a real shock to discover Republicans could be violent, too; Everybody thought that was the exclusive province of rioting Democrats.

People were convicted of sedition, once it occurred to them that you couldn't very well accuse Trump of seditious conspiracy if you didn't charge anybody with sedition. Amazing what you can get people to plead guilty to, if you lock them up and threaten to throw away the key if they don't plead guilty to something.

And people died, not being rendered temporarily immortal during political protests, but only one was killed, and not by the rioters.

You know what? I'll concede that at least a few people were guilty of sedition, genuinely guilty. And you could even call it an insurrection, if you want to lower the bar for that to the point that "insurrection" is absurdly common.

Again, your problem is that you can't connect this to Trump, in any legally meaningful sense.

[Magister]

Politically motivated violence is more from the right than the left, and that has been true for a long time. The January 6th insurrectionists brought a variety of weapons; there was more than one gun present, but I'm sure Brett Bellmore will do some reverse sorites paradox to exclude the substantial caches of weapons gathered nearby. Several police died as a result of the insurrection, in addition to the large number injured. That Trump was incompetent at the insurrection he incited doesn't excuse the actions he took to cause and advance it; it seems most likely that the more organized seditious conspiracy expected Trump to declare martial law (and pardon them), but Trump was too cowardly or was waiting for them to hang Mike Pence or something.

[Brett Bellmore]

The George Floyd riots were absolutely enormous, dozens dead, literally billions of dollars in property damage, they swamp the numbers for recent political violence, and are you going to really claim they weren't politically motivated violence on the left?

[Magister]

Since you don't know whether the violence originated from the right wing as cover or false flag operations to discredit the protests, or by would-be looters with no political leaning, you can't claim otherwise. For example: Umbrella Man, a white supremacist; 2020 boogaloo murders, far right extremists who "used recent demonstrations against racial injustice as a cover to attack law enforcement" .

If you were talking about the 1960s and 1970s, you would have a point. But in this century, most of the politically motivated violence is from the right wing. You could ask the Anti-Defamation League or the FBI or academic researchers; in the last decade, it's mostly right wing violence, and mostly white supremacists.

The George Floyd protests involved 15 to 26 million people; the deaths were as many as 25 people; damage estimated between 1 and 2 billion dollars. The January 6th insurrection involved several thousand people; more than 140 police were injured and the deaths resulting were as many as 9 people; costs were close to 3 million dollars.

[Brett Bellmore]

Riiight: Massive left-wing riots are actually astroturfed by the right to make the left look bad! Why, those autonomous zones? Set up by the Aryan Nation cosplaying left-wingers.

Of course, it's all so clear!

[Magister]

Brett Bellmore is a clown. I just pointed to some instances where right wingers used left wing protests as cover for their own actions, which may have inflated the costs and deaths he wants to lay against left wing protests. I'm not claiming that every act of violence at a left wing protest is actually caused by right wingers. But Brett's complaint is hilarious coming from a supporter of the side that's claimed January 6th was tourists, and antifa, and FBI agents, and probably other nonsensical excuses.

Clearly you didn't look up the actual statistics or even do the math. Is it because you are too stupid, or is it just the dishonesty? It would not be prudent to bet against a combination of both.

[David Nieporent]

There was violence. Not a lot of it compared to events that inspired much less media hysteria, but some.

Shorter Brett: "More people were killed during this bodega robbery last week than were killed at Fords Theater on April 14, 1865, so why is there so much media hysteria about the latter?"

[ObviouslyNotSpam]

Are you confusing the "insurrection" with the "riot"?

Yes, indeed you are...

[JoeFromtheBronx]

It’s late, I know, but three things.

I realize the whole thing was hopeless with the justices sounding bored & and wanting to get rid of the case, but listening to the oral argument, the main advocate for removal did not do a good job.

For instance, no reference to how state legislatures used to select senators, so would have to factor in the provision. The relevance was noted in some of the commentary, including referencing talk of Clement Vallandigham a possible senator. He was convicted for seditious speech during the Civil War.

Oral arguments rarely are determinative, except around the edges, but he didn’t really give the case much of a chance. Multiple possible arguments and pushbacks were not used.

Second, the “enforcement” argument is so lame. Multiple amendments, including 13-15A, have enforcement clauses. The 14A one covers the whole amendment.

There is no argument raised, to my knowledge, that slavery was not truly ended until Congress enforced the 13A.

The liberal concurrence noted this. But people put it out as so very obvious (“guess you didn’t read the amendment”) that the enforcement clause proves the case.

Third, especially since four of them (one on the Court) were involved in Bush v. Gore, it was the height of gaslighting for them to say that a state could not enforce the provision on its own since it might result in political difficulties.

So it goes. States have certain powers, including over electors. Anyway, Congress has the power to pre-empt them by passing legislation. The Supreme Court decided to save them the trouble.