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PaperclipPerfector  1yr ago (text post)   29463 thread views

Culture War Roundup for the week of August 7, 2023

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Because they are heavily involved in the conservative legal movement, so ideas that gain traction within the conservative legal movement are likely to have traction with them. If this argument was coming from a fringe Marxist or something, I would expect it to carry much less weight among the Republican lawyers that make up the majority of the court. But it's coming from Republican lawyers, written from an explicitly Originalist perspective.

I see no reason why the members you cite would suddenly be onboard with a very expansive and novel interpretation of the executive branch's authority vis-a-vis opposition politicians.

This has nothing to do with executive branch authority. Their argument is that the disqualification is automatic, with no executive act to make it happen.

They are in academia. This is within that community very useful for them because then they can be seen (at least in their minds) as the “good ones.” That doesn’t imply most conservatives will give this the light of day.

And? It's not "most conservatives" who will decide this issue. It's elite Republican lawyers.

Your evidence is a couple of law professors prove that “elite Republican lawyers” support this position? It is a crack pot theory because it proves too much. We could disqualify most people in two of the branches. You should do what most people do with legal academics — disregard what they have to say.

I am not claiming that this one article proves that the Republican justices on the Supreme Court will see the issue the same way. We will have to wait and see. My point is that the specific people that need to be convinced by this argument for it to apply are people very much like the authors and very unlike the average Republican voter.

I don’t think so. They are members of academia. They are in a different sea compared to RNC related lawyers etc.

Barrett at the least was a legal academic prior to her appointment as a judge.

Norte Dame is itself somewhat unique in being a more friendly place for republicans among academia. It is hard to understate how much academia hates Trump and how beneficial it is for right leaning academics to denounce Trump.

Because they are heavily involved in the conservative legal movement, so ideas that gain traction within the conservative legal movement are likely to have traction with them.

But we don't have evidence that the ideas have gained traction within the conservative legal movement.

This is assuming the conclusion by backwards reasoning that because the two members are Federalist Society affiliated, both the reasoning is conservative in nature and shared broadly amongst conservatives.

If this argument was coming from a fringe Marxist or something, I would expect it to carry much less weight among the Republican lawyers that make up the majority of the court. But it's coming from Republican lawyers, written from an explicitly Originalist perspective.

That is what is what is being challenged!

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war. Hence asking for by what standard the January 6 is being held as rebellion, but which other actions in that year did not. If the original framers wouldn't recognize something of the scale of January 6 as a rebellion, then the originalist interpretation works against the claim that it's an originalist interpreation of the amendment. If the legal argument is that they were all insurrection, but this legal standard has not, is not, and will not, be enforced consistently, it's not an Originalist perspective, it's an argument for arbitrary political interference on grounds of special pleading, which is not an Originalist principle, as one of the points of the original writers of the Constitution was to prevent arbitrary use of government power against citizens.

Moreover, the amendment isn't the only Originalist perspective relevant to the subject, since the implications to division of powers of course broach on the other parts of the Constitution, and those originalist perspectives, for what self-executing would imply when functionally meaning giving the ruling party to ban opposition party members doing what potentially election-winning pluralities of the American public view as legitimate democratic processes.

This has nothing to do with executive branch authority. Their argument is that the disqualification is automatic, with no executive act to make it happen.

And this argument is nonsensical, because nothing in the government happens automatically, but is executed and enforced through the Executive branch.

As the saying goes, organizations don't make decisions, people in organizations make decisions, and the people who would decide to execute- and then enforce- this policy proposal are the executive branch.

But we don't have evidence that the ideas have gained traction within the conservative legal movement.

We have Bayesian evidence. Two Fed Society authors have published a paper arguing for the position, and a Republican-appointed judge has already removed a low-ranking official from office under section 3 for his involvement in Jan 6.

These things do not prove that this is a mainstream position among conservative legal thinkers. But they are much more likely to happen in a world where it is.

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war.

Correct. The paper spends a considerable amount of time talking about what the original meaning of "insurrection" and "rebellion" was, to the people of that time. You don't have to agree with the authors' conclusions, but they explicitly deal with that question as the central one.

I really want to delve into the detail of these arguments more and see if I agree with them but unfortunately I can't get the paper to open at the moment, and I didn't get through the whole thing on first read.

Moreover, the amendment isn't the only Originalist perspective relevant to the subject, since the implications to division of powers of course broach on the other parts of the Constitution

I believe their argument is that later amendments to the Constitution override earlier versions (otherwise amendments would not be possible). So to whatever extent Section 3 is in conflict with earlier Constitution provisions, Section 3 prevails.

And this argument is nonsensical, because nothing in the government happens automatically, but is executed and enforced through the Executive branch. As the saying goes, organizations don't make decisions, people in organizations make decisions, and the people who would decide to execute- and then enforce- this policy proposal are the executive branch.

Nope. You can look at the New Mexico case for example - state law allowed private citizens to sue to remove disqualified officials from office, a group did so, and a judge decided to remove him. No executive action involved.

We have Bayesian evidence.

Which is to say you do not have evidence, hence why you are inferring to assume there is rather than demonstrating there is.

Two Fed Society authors have published a paper arguing for the position, and a Republican-appointed judge has already removed a low-ranking official from office under section 3 for his involvement in Jan 6.

And as has been noted elsewhere, that case did not rise, and came with very different political contexts.

These things do not prove that this is a mainstream position among conservative legal thinkers. But they are much more likely to happen in a world where it is.

They are also very easy to happen in a world where Trump Derangement Syndrome driving novel legal theories is a thing, and we actually are in that world.

The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war.

Correct. The paper spends a considerable amount of time talking about what the original meaning of "insurrection" and "rebellion" was, to the people of that time. You don't have to agree with the authors' conclusions, but they explicitly deal with that question as the central one.

Then you should be able to answer the question regarding the standard, and its consistency as a standard.

I believe their argument is that later amendments to the Constitution override earlier versions (otherwise amendments would not be possible). So to whatever extent Section 3 is in conflict with earlier Constitution provisions, Section 3 prevails.

But this isn't an argument that Section 3 is in conflict with other provisions of the Constitution. This is an argument that execution of section 3 by the executive over the conduct of elections prevails over other elements of the constitution, which obviously does not hold to any limit because otherwise any executive could claim that any action in support of a later constitutional amendment is inherently constitutional if it conflicts with others.

There is not, in fact, an unlimited blank check to the American executive drawn just by claiming a more recent ammendment. Where Section 3 does not require overruling other parts of the Constitution, it doesn't. The arguments to date do not indicate that Section 3 requires doing so, on that Section 3 would have to do so to permit the interpretation, which is the sort of backwards reasoning previously noted.

Nope. You can look at the New Mexico case for example - state law allowed private citizens to sue to remove disqualified officials from office, a group did so, and a judge decided to remove him. No executive action involved.

And yet, yup. This isn't state law- this is Federal-level. Moreover, this isn't something the judiciary has made a conclusion on (i.e. that Trump has engaged in Rebellion), and the legal theory is to explicitly leave the Legislature out of it, and thus the only branch of government to make the conclusion and enact and enforce it is the Executive.

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