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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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I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.

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.

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 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.

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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