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In practice the Constitution is what the Robed 9 say it is. Three of them were appointed by Trump, and three more aren't going to buy this one either. Not even John Roberts. That a person can be disqualified from the office of President because their political opponents can get one judge, with no trial, to say that person committed rebellion is not going to fly. Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.
It is not. The Supreme Court has ruled in past cases that states may not add qualifications for the offices of President and Vice President. And the Constitution does not state that those convicted of crimes (state or Federal) may not stand for those offices.
Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.
As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.
This would be a clear case of a person convicted of aiding an enemy or being involved in insurrection. Two problems being that: no legal ruling has declared 1/6 an insurrection, and Trump has not been tried or convicted of insurrection. Which are both clearly required. Our legal system is based on the presumption of innocence, meaning that the government must first prove a crime took place, and secondly that the accused actually did said crime. I cannot accuse someone of murder unless I can show pretty conclusively that the person I’m accusing you of killing is actually dead, and that the best explanation of the evidence is that you did it. Even then, I’d have to get a jury conviction. I can’t just blanket claim that the crime you committed requires 5 years in jail, that the law is “self-executed” and haul you away.
I don't see that they're clearly required. When determining eligibility, the government doesn't have to consider due process - it doesn't have to prove anything beyond a reasonable doubt. And due process is to do with rights. There's no right to run for president.
If there's a liberty interest in running for office, then there's a due process consideration.
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Assertion without evidence. Why isn’t there a right to run for president? Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.
Directly inciting rebellion (which is more or less what his opponents accuse him of) is illegal and not protected by the Constitution. I don't believe Trump incited rebellion, but I think he did act through others to obstruct the lawful operation of the Senate, which is probably illegal, but not disqualifying.
Who is saying he incited a rebellion? Jack Smith who is pursuing novel legal arguments didn’t go that far. The First Amendment jurisprudence is quite clear here. There is no way you get incitement.
How did Trump obstruct the lawful operation of the Senate?
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If there is one, it's a right that is routinely denied to those 34 and below. I don't see any reason why it couldn't be similarly denied to insurrectionists.
A relevant part of the paper (pages 93-94) addresses this point with historical evidence:
In this particular case Brown was rejected by the House Committee on Elections, but not under section 3 (as it would not come into force until the following year). Nonetheless, it clearly shows that those who wrote and adopted the 14th amendment understood it to be possible and acceptable to disqualify a person from elected office purely on the basis of speech.
It has since been decided (in Powell v McCormack) that the House may not refuse to seat a member who meets the constitutional eligibility requirements, so the Brown precedent is no longer valid.
The point is not whether the specific legal pathway taken in the Brown case is valid. As I said, it occurred before the passage of the 14th Amendment. We are discussing a new Constitutional requirement that was created shortly after that case.
The point is that the Brown case helps elucidate how the people who created section 3 wanted it to be used. Brown was the type of person they wanted to keep out of Congress, and the fact that he only engaged in speech did not change the fact that they wanted him barred. So it seems a stretch to argue that section 3 cannot bar people from office solely on the basis of speech. The first amendment does not stand above the fourteenth.
As others have noted, the courts are generally dubious of implied repeal, and more so with constitutional law. "Insurrection", "rebellion", and "giving aid and comfort to the enemy" are all phrases with meaning pre-dating the Fourteenth Amendment, and which did not include speech (with some narrow exceptions, such as taking an oath to an enemy). There is therefore no reason to believe their inclusion in the Fourteenth Amendment made speech acts subject to penalty. The two Amendments may be taken together without contradiction.
Brown was about the House's ability to choose it's own members, which would not be subject to the First Amendment. The later Powell case said they could not refuse to seat for arbitrary reasons, but was pointedly silent on whether the House could expel for them. None of which has any bearing on eligibility for the Presidency.
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You do realize this is lunacy right?
There is a right to vote that is age restricted. The age restriction doesn’t mean there isn’t a right to vote.
Baude’s argument proves too much. If any political speech that can be even after the speech be tied to a riot aimed at the government means one is disqualified from office we can disqualify most democrats serving based on their comments re the BLM riots.
It would mean that any speech by a politician that is in the core province of the first amendment could easily cause that politician to be disqualified under the 14th. That would have such a chilling effect that it would effectively render the 1st amendment null and void.
And the response is “well this one guy vocally supported the CSA in the 19th century and was prevented from being seated in the House.” That isn’t a response because it is so different in kind as to be laughable.
But to ask you — should any democrat who gave speeches supporting the BLM protests (even seemingly the violent protests) be disqualified since BLM violently attacked the White House and other government buildings? What about those who voiced support for CHAZ or CHOP? What about those who encouraged the Resistance? What about those who called Trump illegitimate and to aggressively get in the face of people in his administration? What about Bernie Sanders whose supporter (presumably motivated by statements made by Sanders) opened fire on Republican congressmen?
One possible difference could be how central they are. They point out in the paper that some types of speech (e.g. incitement or conspiring—see p. 58) are not considered to be protected by the first amendment under the standard doctrine. If expressing support didn't rise to that level, I could see that not applying.
To be clear, if any BLM supporters do rise to that level, them also being disqualified would be good, if it turns out this legal theory is correct.
But that’s the thing — it is a pretty strong consensus that what Trump said was not incitement. So if you lower the standard for Trump don’t you need to lower it for democrats? As mentioned Kamala raised bail funds for the BLM folks.
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Very well. In that case there is a right to run for President that is participation-in-insurrection-restricted. The restriction doesn't mean there is no right to run for President.
Baude argues the original meaning of "insurrection" was as follows:
Insurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insurrection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government
So I don't think BLM rises to that level. There was disobedience to the government but no attempt to supplant or throw off the authority of the government.
CHAZ/CHOP on the other hand I think is at least debatable. You can certainly argue that they set up an area in which they refused to allow the authority of the United States to operate, and they used violence to attempt to protect their "borders". The fact that they changed their name from "Autonomous Zone' to "Organized Protest" maybe mitigates against the argument that they claimed to be outside of US authority, but I'm not sure that's enough. So yes, I'm inclined to think that CHAZ/CHOP would qualify as an insurrection or possibly even a rebellion. And yes, it is possible that some Democrats may have violated section 3 with their statements about it, but you'd have to point me at a specific person/statement for me to express a clear opinion here.
"The Resistance" to Trump did not feature any acts of group violence actively resisting his authority, so I'm going to say no to that one.
"People who called Trump illegitimate" arguably could have been considered to give aid or comfort to the rebellion against him if there had been one.
The guy who shot up the GOP baseball game I think was certainly an attempted assassin, but you can't tie Sanders to his actions. If there had been a group of gunmen, and their intent in attacking the game had been to either throw off the authority of the Congress or to install their own Congressmen, it would have been an insurrection. But even then, I don't believe Sanders did anything that would have qualified as giving aid or comfort to their efforts.
There of course is a big difference between age and insurrection restrictions. The first is an objective fact. You compare birthdate and the calendar. The second requires numerous legal determinations (eg what counts as an insurrection, did the person do enough to participate in the insurrection). They are clearly of a different kind and thus would almost certainly be treated differently from a legal perspective (ie the latter restriction would almost certainly be a due process issue if self executed).
This illustrates the whole problem. You say the BLM movement didn’t meet this standard. However their goal was systematic change. And there were little weeks of rioting including attacking government buildings (eg the White House, the courthouse in Portland). In some cases, the attacks went on for a long time (eg the attempts in Portland) and were clearly organized.
What is in your opinion the factual difference between those riots and the Jan 6 riot? Again, the former were longer, had more institutional and political support, were more damaging / deadly, and had a political aim. Jan 6 was disorganized, did involve some violence but as Carlson’s videos showed was in many instances by participants not violent (indeed they left Congress after their message was made and were asked to leave). No one brought weapons or even things to tie people up. No police was even killed! Indeed, it was such a bad “insurrection” that the military refused to deploy national guard to help the Capitol police because of “optics” until after everyone had left (National Guard of course was brought out for the ongoing BLM riots). If Jan 6 was an insurrection, then it is hard to argue BLM wasn’t one as well.
Then even if you somehow can distinguish Jan 6 with BLM, you still need to make the argument Trump participated or gave aid and comfort. Again, his statements to go and protest peacefully is core first amendment protected political speech. Saying that because a protest got out of hand (but in a significantly less deadly way then most protests that get out of hand) means the person who urged the protest is responsible for the actions of the protestors cuts deeply against the 1st amendment.
It is also funny. You are struggling with CHAZ / CHOP. Here, war lords were set up to roam with guns because they expressly stated the US government was not in power but you are claiming a protest that (1) was rowdy, (2) whose participants were subsequently let into the Capitol by the police (3) and who then went on a tour and left when finally asked was clearly an insurrection?
Also re resistance. How convenient. You can have bureaucrats systematically contravene the president’s authority in complete contradiction to the constitutional order (ie there was an organized, concentrated attempt to contest properly constituted government authority that stretched for years doing numerous illegal activities) but claim that isn’t rebellion or insurrection because it wasn’t “violent” yet a single one-off protest that wasn’t all that violent (eg didn’t even bring guns, no police were killed) was an insurrection? The former sure seems like rebellion more than the latter. Under your theory, if for example the executive officers just decided to ignore every action Trump ordered and instead decided Clinton was the president it wouldn’t be a rebellion provided violence wasn’t involved? Clearly that is a rebellion (ie violence cannot be a precondition). And therefore it seems fair to describe the resistance as an insurrection — at least relative to Jan 6.
Attempting to kill congressmen was an attempt to change political power. Sanders said the republicans are bad. Therefore the assassin was motivated to act by Sanders’ words. Therefore Sanders is disqualified.
Of course I don’t believe this. But it illustrates the need to separate political speech from giving aid or comfort. Can you find a single utterance by Trump supporting storming the Capitol? He famously said protest peacefully. So why the different standard?
Again, I wish Trump went away. He was a cuck in office the first time and will be one again in his second term assuming he wins. But this is a BS argument.
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It's not a matter them doing things out of personal loyalty. It's a matter of the only way a competent jurist would buy this theory is partisanship or personal antipathy. This is crazy sauce legal theorizing.
You said a conviction would be "another" basis for disqualification from office; I assumed you meant other than Amendment XIV section 3. It would not. A conviction for treason, insurrection, or rebellion would be support for that basis of removal from office. Without that, there's nothing, particularly since the text says Congress can remove the disability but does not say it can impose it -- that rules out Congressional attainder, which is forbidden by Article I Section 9.
I assumed you were talking about conviction in the case of impeachments, so I actually meant Article I section 3 right there.
What do you mean by the last section, about imposition, attainder, etc?
He could be disqualified for impeachment and conviction, but only if he was actually convicted (which unlike a criminal conviction, definitely isn't going to happen), so that one's not relevant. As for the stuff about attainder, if we discard the notion that the law is somehow self-executing, there has to be some way of determining who committed the disqualifying acts and who did not. Traditionally there have been two ways of doing that -- an actual trial, or the legislature declaring the person so disqualified. This second method is called a "bill of attainder", and the US Congress and US States are forbidden from passing them. If the amendment had said Congress could impose the disqualification, it would have made a carveout, but it did not.
I'm not legally knowledgeable to make an informed evaluation of whether they're right here, but here's what they say:
On page 51, in a footnote, they list in support of their view, that both those at the time of its passage, both those in favor and those opposed considered that it was, in effect, a bill of attainder and an ex post facto law.
On pages 53-54, they argue that it's not a bill (since it's not congressional but constitutional), and it's not attainder, (since ineligibility from office shouldn't be considered a legal punishment).
All this was in the context of a section in which they argue that to the extent that it disagrees with earlier provisions, it supersedes them.
Again, repeals by implication are disfavored. The best thing is trying to reconcile instead of asking what supersedes — all the moreso when dealing with the constitution.
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And of course there is a process for Congress to do so — impeachment and conviction. So it wouldn’t be necessary.
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I don't know, actually removing Trump from the ballot seems like the sort of thing with entirely unpredictable backlash, especially in Florida and Texas(which has a captured federal judiciary).
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