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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House may not refuse to seat a member who meets the constitutional eligibility requirements, so the Brown precedent is no longer valid.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.
It really is funny. The OP acknowledged the refusal to seat Brown wasn’t a 14th amendment case, but is claiming “this proves the 14th amendment prohibition repeals the 1st amendment.”
Hell, Eugene Debbs was convicted of sedition for his speech but no one thought that even that sedition charge precluded him for running for president. And that happened relatively near in time to the 14th amendment.
Right, perhaps because back in the early 20th century, people realized that "sedition" and "insurrection" and "rebellion" were different things. Whereas nowadays, some judges insist that "trespassing" and "insurrection" are the same thing and other judges do their best to look the other way. Or perhaps it's just because Debs was on the left, and even back then, it was only enemies to the right.
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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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