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It was clear, and I am still awaiting a standard that distinguishes January 6 as a rebellion but which does not also catch many more non-contested politicians to the point that it's not an arbitrary special pleading.
Then the comparisons are not validating the necessary claims that the events of January 6 are a rebellion from an Originalist perspective. If January 6 is not a rebellion from an Originalist perspective, then banning Trump from running would not be an argument based on Originalism, but something else trying to claim the mantle of originalism to disguise smuggled assumptions. It's still assuming the conclusion that Trump conducted rebellion, and then arguing that the assumption warrants ignorring the sort of due process that is set out for actually establishing the conclusion.
But there's nothing here indicating it's any sort of mainstream. Again, no claim has been made this reflects a common or shared viewpoint of the Originalist legal establishment, let alone the non-Federalist legal schools of thought, let alone the opposition party that has been deriding the Federalists for years.
For something to be mainstream, it needs to be, well, not novel and actually be authoritative.
What, besides political cover of preferred justifications, makes you think Democratic states would de-list Trump based on this, and but would not de-list Trump on grounds that Trump has been indited and impeached multiple times?
I can't respond to the first half until I'm able to access the pdf again, since that's still not working, last I checked.
But to the ending, they might be persuaded that this could present at least the possibility that it might be the correct and legal thing to do—there's no way the indictments would disqualify, and the impeachments weren't agreed to by the margin required in the Senate.
Given that the nature of political violence in the last half decade has been quite considerable with more than a few cases with far more violence and damage than conducted on January 6, you absolutely can respond as to what sort of standard might meaningfully identifies January 6 as a rebellion and other acts of violence in and around the capital and country in the years prior as not.
It certainly wasn't the timing that would make it a rebellion, as there is no requirement nor does proximity automatically qualify. It wasn't the death count. It wasn't the property damage. It wasn't the degree of organization. It wasn't the amount of backing from political elites. It wasn't the proximity to Congress persons.
Neither would trying to delist the opposition candidate on charges he has never been convicted of, and yet here you are taking it seriously.
So I ask- why on earth should anyone believe a Democratic politician was sincerely persuaded of the correct and legal nature of an unprecedented attempt at political attack against an opposition party candidate... by an opinion piece of non-authoritative lawyers associated with an organization the Democratic party has regularly identified itself in ideological opposition to?
Does this hypothetical Democrat find all of the Federalist Society writings convincing, or just this pair of writers? Or just this article? Do they plan to apply this standard consistently even if it means coming to odds with their own party, or is this new novel legal theory they sincerely believe in only going to be used to the broad approval of their caucus before being put away?
I'm not making any assertion that other acts of violence wouldn't qualify (again, assuming the authors are right on all this).
Nor am I claiming that it wouldn't be politically motivated, or inconsistently applied.
The difference is that now they can claim to be doing it because of law, and it will have to go through courts instead of being shot down right away.
Then we have already identified the issue, which is that no one in contemporary American politics who would be responsible for de-listing Trump has held that standard. Thus, a lack of sincere belief in the standard, and instead nakedly partisan motivation.
Then this wouldn't be based in Originalist principles or Conservative legal thinking, which emphasize consistency and continuity, and we're back to skinsuit theory of argument by smuggled insinuation.
Things that get shot down 'right away' have already had to go through the courts, where they take varying degrees of time depending on how sympathetic the initial judge filed with. This is not a change- this is how lawfare works, and has been working vis-a-vis Trump for some time. There is no shortage of politically reliable judges who have signed off on things that 'inevitably' get shot down on sufficient higher appeal, but whose initial support is claimed as legal validation.
As no one has established why this claimed theory would credibly pass constitutional muster at higher legal levels, beyond the appeal to Federalist credentialism, this is no different than any of the other anti-Trump lawfare theories that could reliably get lowest-level support and use that for political maneuvering efforts.
It is similar to Jack Smith. He invented a novel legal theory that will only be used against Trump (even though it could be used against many prominent DC politicians) which proves the theory is bullshit.
How does selective use of a theory prove that the theory is bad rather than merely that the people using the theory are bad?
Novel theory that will only be used once against hated political figure smells of contouring to try to get a particular person. Once you are trying to get a person it means your arguments likely aren’t as strong.
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