"The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish.
Article II, Section One, for example, prevents the people from electing anyone who is under age 35 or who is a foreign-born candidate. Those qualifications are expressly declared in the text, and they received robust vetting and debate in the ratifying conventions. In the case of Section 3 [of the Fourteenth Amendment], the Supreme Court is being asked to impose new constraints on the democratic process by way of textual implication and in the absence of any public debate whatsoever.... At best, the text of Section 3 is ambiguous regarding the office of president. The Supreme Court should limit the clause to its historically verifiable meaning and scope. Let the people make their own decisions about Donald Trump."
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64 comments:
"Ambiguity must be resolved in that direction."
LOL, as they say.
The federal government violates the constitution every day.
Besides, liberals have the need to control every aspect of everyone's lives.
I don't know where this comes from, but they just have to tell everyone else how to live.
It's a sickness.
Does he mention where it says that a person can be removed for something he hasn't been proven to have done, just some people are very sure, deep down in their hearts, that he has done it? If it says that, why haven't we used that before? So many icky people have run for president.
First, let's be clear that here we have the NYT editorial pages (Op-Ed section) defending a Trump position. The NYT that Althouse loves to ridicule; that Althouse commenters find so loathsome because, they say, it is so partisan and so relentlessly anti-Trump. I just wanted to lay down that 'fuck you' marker.
As for "the President isn't an oficer under Section 3 of the Fourteenth Amendment" argument, here's a nicely succinct, plain-english summary of that issue.
Please quote more of the article on these questions: What is claimed to be ambiguous? What is claimed to be the historically verifiable meaning and scope? Just saying that there is ambiguity doesn’t make it so.
I’ll grant that there is a factual question to be decided as to J6 and Trump’s participation, but that is also true of whether someone is a natural born citizen, has attained the age of 35, or has resided in the U.S. for the requisite 10 years. As to a couple other ambiguities that have been suggested, here is the answer:
‘But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.
‘This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.
It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?
"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.
Vermont's Justin Morrill jumped in to clarify.
"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.‘
Mary Beth said...
Does he mention where it says that a person can be removed for something he hasn't been proven to have done, just some people are very sure, deep down in their hearts, that he has done it? If it says that, why haven't we used that before? So many icky people have run for president.
"Removal" would be done via impeachment. Trial would be in the Senate. We aren't talking about removal. We are talking about qualification. Like if, say, Barack Obama decided to run for a third term.
There was a five-day bench trial on the issue of Section 3 of the Fourteenth Amendment in Colorado.
I heard a rumor that an anonymous letter was sent to TPTB in Colorado and Maine:
“Just because I’m forced to vote for Vivek or DeSantis at the polling place doesn’t negate the fact that I’ll really be voting for Trump in my heart.”
“something he hasn't been proven to have done”
Do you understand that it has now been proven? Read the Colorado decision.
I just want to make clear that it is members of the Democratic Party telling Republicans who they can and cannot vote for in the GOP primary. The same Democrat party that appointed a Maryland resident as a Senator for California. If this was about the Constitution, then we would be discussing how the 14th Amendment voided Due Process, as Democrats seem to suggest, and how that applies to party primaries.
I love the Schadenfreude derived from all the premature meltdowns from Trumpsters and Wokesters alike. Everything is going to be fine. Why give yourself agita induced cardiomyopathy cancer and or dumbensia? Stress is a killer, just ask Nietzsche.
THe question is quite simple: Who chooses our President, the voters/electors, or the Judges?
I love the idea that its ok for Judges to disqualify anyone they wish, because "Hey, the constitution, disqualifies people too". The problem is its not even clear from reading the 14th admendment, whether the POTUS is even covered by it. And how can a POTUS wishing to seat an alternate slate of electors be in insurrection against HIS OWN GOVERNMENT!
And of course, its original intent was to disqualify Confederate politicans and army officers, who in Nothern eyes had started an armed rebellion against the Federal Government by seizing property and forts, and killing USA army soldiers sent to restore the Union.
In Trumps case, they've just taken the word "insurrection" and decided (based on nothing) that J6 was an "insurrection", and that somehow Trump was responsible (based on nothing), and therefore Trump is ineligible to hold office. Its the greatest, most brazen example of bold-faced dishonesty I've ever seen.
People should be outraged. But they aren't. And that doesn't bode well for the USA.
And of course, the conservatives, as usual, are completely useless. Engaging in their dumb "I'll accept the premise, and attack the details" premise. Look, this isn't a good faith argument by the Democrats and Joe Biden. They want to destroy Trump.
Period. And they'll say black is white and up is down, if they have to.
So, providing some 14 page memo on all the constitutional ins and outs, may be an "intellecutal feast", but its worthless.
"The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish. "
Oh, Brother. Well......if that's the premise, then please explain to us which part of the Constitution specifically endows a single, appointed bureaucrat to make that decision unilaterally, on behalf of an entire state, with no oversight or public input.
That argument doesn't even rise to the level of a 'nice try', but I could see where it might merit a bitch slap from a certain class of people, and that would probably draw a round of applause.
“Do you understand that it has now been proven? Read the Colorado decision.”
You’re kidding, right?
The Constitution, after all, contains a number of provisions that deny the people the right to elect whomever they wish.
But I thought love is love, and that constraints on whom a person can marry are civil rights violations. And that constraints on granting mortgages based on such little details as income and credit history are civil rights violations. And that constraints on how one refers to another person who may not even be present, whether by name, by pronoun, or by language understood or inferred by some or all of society to be insulting, are civil rights violations.
Don't be throwing "hypocrisy" at the right unless you're prepared to face your own contradictions, candidate deniers.
LET'S FACE FACTS
Anyone.. that EVER voted republican.. BY DEFINITION, is guilty of insurrection
The living US Constitution gives ALL people, the right to vote..
The right to vote for THE DEMOCRAT THEY ARE TOLD TO VOTE FOR
ANYONE that thinks that THEY "have a right" to pick their own candidate is guilty of insurrection too
You have a Constitutional Right (and DUTY) to support the Democrat.. THIS, is WHAT the civil was about
Seriously, when a Florida court rules that Biden should be removed from the ballot..
will the Left Bank Understand that it has now been proven? Will HE read the decision?
Left Bank of the Charles said...
[“something he hasn't been proven to have done”]
"Do you understand that it has now been proven? Read the Colorado decision."
It's not proven merely because they say so, or because you say so. It's not proven beyond reasonable doubt in a court of law, and even if it were so in a lower court, it would be subject to review on appeal, all the way to SCOTUS. That hasn't taken place.
I never understand why liberals do not understand that precedent applies to them!
Do they really want liberal candidates disqualified because of what they said in the past? Or because of participating in protests against the US gov't?
Because that is how conservative judges will react. Isn't it obvious?
We do not need the judicial branch pre-approving candidates. It's not their function. It's the voters'.
Every time I head an Adam Schiff or a Nancy Pelosi bloviate about "a threat to our democracy" I am tempted to engage in projectile vomiting. And I would do so if only they were in range.
That said there was a particularly apt comment in one of the letters to the editor printed in today's WSJ. A gentleman from Rhode Island wrote: "As informed and astute political observers have long known, the greatest threats to our democracy have come not from the rise of Donald Trump, but rather the response to it."
Spot on--the Democrats and other swamp critters have responded to the rise of Trump like a cornered jackal fighting for its life. Many of the Deplorables/Tea Partiers and such were not exactly thrilled with the election of Obama in 2008. But we managed to live under the rule of the New Light Worker without trying to kneecap his administration at every turn. That sort of unhinged opposition seems to be a Democrat thing. So spare me the "protecting our democracy" hoo hah.
I posted my own comment about this late yesterday in a related thread, you might want to go back and read it. I doubt many of you saw it. But my take is similar to that which Ann posted above at 12:07 PM.
I have always thought the big issue associated with this section was the expansion of House membership for the former slave-holding states since with the 13th Amendment the 3/5 rule to apportioning Representatives no longer applied.
It also would seem that none of the provisions of Section 3 would be adjudicated in the courts. My reasoning would be:
1. Under the Constitution in Article I, both House and Senate determine the validity of the elections of their members and can expel a member by 2/3 vote. As an example, in 1868 former Confederate VP Alexander Stephens was sent by GA to take a Senate seat. The Senate refused to seat him.
2. I think that enforcing Section 3 on the Electors is meant to secure POTUS and VP to acceptable persons as the Electors are the real voters and the ones that vet the suitability of a candidate meeting the requirements of the office, not the courts.
3. Since all "officers" are subject to Senate confirmation the Senate thus controls enforcement of Section 3.
Thus the courts are not needed. And I believe Ann has always emphasized the need of the courts to a avoid political
questions and leave the resolution of those to the legislature or the people.
Personally. I have always considered the 14th Amendment to be somewhat problematic, especially this section. It was certainly not clearly written, but I believe my take on this would be adequate.
I believe I have read somewhere that President Grant was opposed to this section . For one reason, President Johnson had extended a blanket pardon to a large proportion of former Confederates in 1868. Also, Grant thought it backtracked on his surrender terms with Lee, that if his men laid down theirs arms and returned to their homes in peace and behaved as good citizens no further action would be taken against them.
The provisions of Section 3 would gradually erode during the 1870s as Congress used the 2/3 rule to exclude more and more classes of former Confederates from its restrictions. By the 1880s I think it was almost null and void. As an example, Stephens was returned to his old seat in the House in 1872 and was seated and continued to serve there until he resigned to be GA governor in 1882. Many other former Confederates would return as well. James Longstreet would serve as Minister to Turkey and US Commissioner of Railroads. In 1898 former CSA Maj. General Joseph Wheeler would resign his seat in Congress to accept a commission as Maj. Gen. of US Volunteers and lead soldiers in combat in Cuba. One of is subordinates was Theodore Roosevelt. There are many other such examples.
"Do you understand that it has now been proven? Read the Colorado decision."
And when SCOTUS overrules this decision, will you have the intellectual honesty, Left Bank, to return to these threads and admit that SCOTUS just un-"proved" it? Or will you just claim SCOTUS got it wrong?
I guess we’ll all be reading Joseph Story’s Commentaries on the Constitution of the United States, I’d like to read what he actually wrote. Blount’s case is a dubious precedent here. Yes, the Senate found that the Senator in question couldn’t be impeached as not being a civil officer, and the same logic would apply to a Representative, but I don’t see how that applies to the President, who very definitely can be impeached. The 14th amendment uses the much broader phrasing “any office, civil or military, under the United States, or under any State.” I don’t see the Supreme Court finding that “any office” does not include the Office of the President of the United States. Any claimed ambiguity should be resolved in favor of protecting the United States from being presided over by an insurrectionist.
I think the real reason the office of the Presidency was deliberately omitted in both parts of section three is that is nonsensical to suppose a President can lead an insurrection since he is the sole authority under the executive branch- if the President does it as the embodiment of the executive branch, then it is by definition not an insurrection- it is a decision. Now, it isn't true that a President can do anything he wishes- Congress always holds the power to remove him if Congress feels he has overstepped his constitutional authority.
What you would really need to declare Trump an actual insurrectionist rather than an imaginary one would be him either refusing to vacate the White House on January 20th 2021, or him leading an armed rebellion post-January 20th 2021. And the body to declare that insurrection is Congress and Congress alone. This is simple- you think Trump is an invalid candidate, your remedies are this- vote against him next November, convince your congressmen and senators to impeach, convict, and bar him from the ballot, or have the same men refuse to accept his electoral votes on January 6th 2025. Those are the only ways to legally and constitutionally prevent him from becoming President again. So get on it- I won't criticize people who take these actions since they would be perfectly legal.
No one is yet in the running for the presidency. All of the people involved are running for Party nominations to run for the presidency.
Should Trump win the Party nomination for presidential candidate, only then he should be vetted for that position. Should he fail the win the nomination process, all current cases should be dismissed as it wouldn't matter anymore.
The current events in the US presidential election and the Russian Federation election are very similar and smack of totalitarianism. But that's the whole point of power, isn't it?
Not every Judicial hearing is a trial (dumbazz).
Has anyone noticed the Democrats are also trying to get third parties, like the green Party, off of ballots.
Almost like the insurrection tag is political bullshit..... almost.
By the way, the 14th Amendment doesn’t bar everyone who participated in an insurrection from holding office — only those who had previously taken an oath to preserve, protect, and defend the Constitution, and then violated that oath.
The fundamental princicle is "Government derived from the consent of the governed."
Republicans are stupid and this is the reason they lose.
Any red state AG could declare that (pick any issue...open border is easy) Biden has committed treason and has not upheld his oath of office, and remove him from the state ballot.
But they don't do that, because (repeat with me) republicans are stupid...
Has anyone addressed this seemingly simple textual discrepancy?:
The provision in the Fourteenth Amendment applies to anyone who has previously taken an oath to "SUPPORT" the Constitution.
The presidential oath of office (prescribed in Const., Art. II) doesn't include "support." It says "preserve, protect and defend" the Constitution.
Trump never took an oath to support the Constitution. He might have, if he had held previous office in a jurisdiction that used "support" in its oaths. But the presidency was his first rodeo.
"Support" doesn't have the same meaning as any of the terms "preserve, protect, and defend." For example, a person can promise to preserve, protect, and defend (from those who would destroy it) an offensive piece of art, without also "supporting" it.
ISTM that those arguing that excluding Trump from the ballot under section 3 is simply following the plain text of the 14A need to deal with this discrepancy.
Left Back on the Charles said...
“something he hasn't been proven to have done”
Do you understand that it has now been proven? Read the Colorado decision.
**************
Trump wasn't there to defend himself. Trying people for alleged crimes in absentia isn't Constitutional.
"Has anyone noticed the Democrats are also trying to get third parties, like the green Party, off of ballots."
But of course. In "Our Democracy™", you will only be allowed to vote for the candidate(s) who are chosen for you by the Democrats. You don't really think you'll be able to choose your preferred candidate, do you?
Conspiracy
https://twitter.com/CollinRugg/status/1740831478869872975
Ambiguities abound in this nonsense. Was it an insurrection? Are the Pres and VP included in section 3? Does section 3 violate other constitutional rights, i.e. due process? Is section 3 already effectively moot given the Civil War ended 160 years ago? Do the States have jurisdiction to remove people from the ballot under section 3? Do the courts have jurisdiction over who can earn a place on a ballot?
Etc etc
Given all the heady questions, section 3 needs to be put back on the shelf, and we need to return to our normal candidate vetting process — leave it up to the voters. Nothing better than fair, crowd-sourced decision-making in this area. If the voters don’t choose, we’ll have absolutely lost our democratic process. Are the Democrats really okay with that?
[T]he law set forth in the U.S. Constitution that anyone who once took an oath to support the Constitution but then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to enemies of the same” cannot again serve our country."
Disqualification is not a punishment or sanction and doesn’t need the kind of process protection in criminal law that is meant to protect defendants from unjust punishment. . . .
Professor William Baude — one of two conservative law professors who have written a law review article concluding Trump should be disqualified — put it this way: “The question of should Donald Trump go to jail is entrusted to the criminal process,. . . [but] the question of should he be allowed to take the constitutional oath again and be given constitutional power again is not a question given to any jury.”
So SCOTUS can simply "pass" on any review. And the GOP can stay out of 50 court filings because the 14th Amendment to the Constitution as written has already been tested a long time ago. Excluding TFG's name from the Presidential election is lawful.
Republican Plan B needs to be addressed by the Party.
Left Bank,
Even the factual questions may not be easy. Was John McCain, born of 2 citizen parents on a military base "born or naturalized in the United States" in the meaning of the 14th Amendment?
He was clearly a citizen by virtue of his parents. He was probably a citizen at birth under the law at the time. Is a military base "The United States" under 14A? Is the Panama Canal Zone? Not under the USC which defines "The United States"
What about Ted Cruz? Born in Canada, definitely not the US. Born to a citizen mother, non citizen father. US citizen through his mother, Canadian citizen by place of birth. Is he a "natural Born citizen?
Does being a natural born citizen require birth in the US or is it the same as a citizen by birth?
Does the 10 years residency have to be current? Does it have to be 10 years together? Does a child born in the US who lives their first 15 years in the US, the next 35 in Japan and returning to the US lives here for a year meet the residency requirement? How about a child who lives in the US for 5 years, Japan for 35 then comes back. Do they need 5 years or 10 years of current residency to qualify?
The 35 years of age seems to be the only qualification that is clear cut and not potentially subject to interpretation.
John Henry
Do you understand that it has now been proven? Read the Colorado decision.
Do you understand how "people are very sure, deep down in their hearts, that he has done it" is different from it being proven?
Democrats will definitely destroy this country. I want a divorce.
Does this lawprof even discussion Section 5 of the 14th Amendment?
I guess what is significant is that the NYT ran this story.
Thinking about "those favoring the disqualification of Mr. Trump"; why now? The article notes that Michigan realized that disqualifying Trump now doesn't make sense. First, Trump has yet to have any due process that established anything in regards to insurrection. Even half of Congress saying so doesn't work to establish it. Second, a primary is about nominating a candidate for a party, not putting that candidate into office. If you disqualify a person from holding an office, then it is silly for a party to nominate that person, but that's on Republicans. Why are Democrats trying to stop Republicans from nominating someone that will be disqualified? It certainly isn't because they want a worthy candidate to go up against Biden.
So let's explore this limb the Democrats are going on. Others have noticed the obvious, Democrats want to drag SCOTUS into the discussion and as soon as next week. Why? Why drag them in and why do it soon? I think most of us recognize the reason to drag in SCOTUS is to start a debate that SCOTUS is partisan regardless of outcome, and that outcome is likely to go against Democrats especially if it is soon. In the long term, lowering the status of SCOTUS as a partisan agency may serve some purpose to Democrats, but they want to do it now. What do Democrats gain in the short term if SCOTUS is seen as partisan by the electorate before the election?
I think the answer is that Democrats are planning some other activities that will be Constitutionally questionable later in the campaign, and they either 1) want to get a gauge of how SCOTUS might rule (which in the past has been conservative to retain status quo) or 2) want to discredit SCOTUS to minimize any future ruling. What is the end game that Democrats are planning for SCOTUS that they need them to move next month?
Whatever it is, I don't think they are noticing the polls that suggest Americans aren't buying it. Either that or they think whatever they will do will be so shocking it will cause a reversal of those polls. Maybe they think the polls won't matter, but that seems foolish even if you contemplate use of force to do whatever they are planning. A lack of majority in election is a temporary loss of power. Lack of a majority in conflict can be a permanent loss of power. I don't think they are that foolish.
I wasn't in DC on Jan. 6, 2021 (thank goodness!), and I didn't attend Trump's speech that day, but it was recorded and I listened to to the whole damn thing (I listened to it over several days -- G*d that man talks FOREVER!). He never called on his supporters to overthrow the government by violence or force of arms. He called on them to encourage public officials to exercise what he said were their powers to correct what he claimed was a miscarriage of procedures in the election process. I also heard his message to his supporters calling them off after things had gotten out of hand. People who claim to believe in democracy shouldn't mischaracterize a political demonstration as an "insurrection".
Contra to Joe Smith (2:43pm), I don't think Republicans are "stupid" not to disqualify Joe Biden for treason. But I think American voters need to wake up and smell the coffee -- it is the Democrats who are violating long-standing political norms by using federal courts and law enforcement agencies against a political opponent. It isn't Trump who is threatening democracy.
Do you understand that it has now been proven? Read the Colorado decision.
Is this parody?
I like the new conservative legal argument that old parts of the constitution don’t count and can be ignored, the precise opposite of what they’ve been arguing for a nearly a century. Alito’s opinion in Dobbs relies on a Henry de Bracton treatise from the 13th century and in a footnote Alito points to even earlier authority “even before Bracton’s time”.
The Red Queen’s rules in play. Verdict first trial later.
Of course they would say eliminating candidates would enhance democracy. Crap.
"It isn't Trump who is threatening democracy."
No. He's threatening "Our Democracy™".
'Contra to Joe Smith (2:43pm), I don't think Republicans are "stupid" not to disqualify Joe Biden for treason. But I think American voters need to wake up and smell the coffee -- it is the Democrats who are violating long-standing political norms by using federal courts and law enforcement agencies against a political opponent. It isn't Trump who is threatening democracy.'
We all just sit around and type shit on the internet, but the people we elect to do something do nothing.
Barring Trump is absurd, so I am asking that our conservative (ha!) representatives make it even more absurd.
I don’t see the Supreme Court finding that “any office” does not include the Office of the President of the United States. Any claimed ambiguity should be resolved in favor of protecting the United States from being presided over by an insurrectionist.
From our host
" Here are the key opening words of Section 3: “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States or under any state"
The bolded text specifically excludes the President and VP. Our host goes on the explain the 14th was designed to keep the States from Sending mischief makers to DC. Thats the electors. The electors could just decide to send a confederate cohort to DC. But the PEOPLE were free to vote for who ever the wanted.
Ambiguity should favor the Federal Government???? Where the hell do you think that is a Constitutional Standard??? The Constitution has a specific purpose to limit the power of the federal govt. To Protect the power of States. And when in Doubt It is the STATES and THE PEOPLE that have the power . . . unless the constitution has enumerated a specific power to the Federal government.
IF the 14th is going to be activated, it has to be ELECTED legislators. EXACTLY like impeachment. If you are going to deny the elected President, It has to be done by those that will stand in judgement of the People in two short years. Not a single judge at any level should consider even hearing a challenge.
Do you understand that it has now been proven? Read the Colorado decision.
The idiocy of this as a "proof" is that a different state court (e.g., Wisconsin or Minnesota) could decide just the opposite. Both cannot be "proof".
I thought Democrats could do logic.
Yes, Rich.
If you say it's insurrection, it IS insurrection.
Simple, right?
“Do you understand that it has now been proven? Read the Colorado decision.”
Did you read the decision? The Court used Pelosi’s J6 report to “prove”insurrection. Nothing more was apparently needed. The J6 committee was handpicked by Pelosi? Doesn’t matter. The Republican House leadership didn’t get to select a single member. Was that fair? Pelosi put 2 (then) Republicans on the committee. The committee had 9 Democrats and two turncoat Republicans, all selected by Pelosi. It was grossly unfair. The Republicans were prevented from cross examining the Dems’ witnesses, or calling their own. The video that was released to the public was heavily cherry picked. We know that now, because the Republicans took control of the House early this year, and have been releasing the 99% of the video that Pelosi didn’t want the American public to see - which effectively shows just the opposite of the J6 committee determination- showing that the protesters were 99% nonviolent, that most of them entered the Capital with the permission of the Capital Police, that the violence was initiated by the Capital Police, along with several bus loads of AntiFA and probably better than 100 undercover federal agents, etc. Moreover, in an adversarial hearing, the J6 results would be inadmissible because all of the witness testimony was deleted by the Dems before turning over control of the House to the Republicans in January this year.
You wouldn’t know any of this from the CO Supreme Court decision. They make using the J6 committee report sound so reasonable. A 5 day hearing was reasonable because CO has a law that provides for expedited streamlined hearings for contested election matters (in order to provide for quick finality AFTER elections). Never mind that Trump, et all never got a chance to cross examine Dem witnesses, nor have their own testify. After all, the House had done all of the work for them already, and the J6 report was admissible as an exception to the rule against hearsay, because it was the record of a formal government hearing. If you read their analysis carefully, you are left constantly going “Huh?” That exception to the ban on hearsay evidence is based on the inherent reliability of government proceedings, and not a highly political one, where the committee was biased 11-0 against Trump. It’s when you compare their Blythe statements on evidence, Due Process, etc, and compare the to reality, that you realize that their opinion was pure political partisan LawFare, pushed by Ivy League Justices.
The problem I see here for the US Supreme Court is that the LawFare decision was made by the highest court in CO. The 5 day hearing by the trial court was highly unfair to Trump, and violated his Due Process rights (which the CO SC blithely skipped over). But that court, for example, is most often the final arbiter of CRE (CO Rules of Evidence - which they promulgate) as well as interpretation of CO law (e.g. limiting Trump to the expedited streamlined 5 day hearing). The US Supreme Court is on shaky grounds reversing the CO Supreme Ct on CO statutory or CRE basis. They could do it, on Due Process grounds, but it would be hard. But the majority also know by now how unfair the process was - at a minimum from J. Thomas from his wife, who is well connected on te Republican side. I don’t think that they can afford to let the decision stand, which is why I expect reversal on the basis of interpretation of § 3 of the 14th Amdt. SCOTUS has the final say there, and their easiest route to reversal is to reject the CO LawFare interpretation of who that section applies to. They can do it on historical grounds. Ann explains it very well. I expect a 6-3 decision, because I don’t think that CJ Roberts wants J Thomas writing either the majority opinion or the dissent. The Republican majority cannot afford to let this aggressive LawFare derived decision stand, because it would deprive (likely) over half the electorate of their first choice in Presidential candidates, on grounds so contrived that only Ivy League educated attorneys would understand and approve. Probably no faster way to dynamite the reputation and moral authority of Roberts’ Court.
“I like the new conservative legal argument that old parts of the constitution don’t count and can be ignored, the precise opposite of what they’ve been arguing for a nearly a century. Alito’s opinion in Dobbs relies on a Henry de Bracton treatise from the 13th century and in a footnote Alito points to even earlier authority “even before Bracton’s time”.”
Nope. Repeatedly, the Dem/LawFare interpretation is based on the assumption that terms in § 3 of the 14th Amdt were utilized loosely. Thus, for example, with the oaths, that “supporting” the Constitution includes the President’s oath to Protect and Defend the Constitution. That argument falls apart, if you assume that the drafters of the 14th Amdt were aware of the difference in the two oaths of office, and spoke precisely - which is a primary canon of statutory interpretation. § 3 is only unclear if you assume that its drafters weren’t speaking precisely. Advocates of such LawFare interpretations invariably insert ambiguity where none really exists.
“Do you understand that it has now been proven? Read the Colorado decision.”
“Is this parody?”
No, it is propaganda or spin. Pure and simple. We now know why the Dems spent so much time and energy on their highly political J6 committee and its report - so that left leaning courts would have a basis for finding that an Insurgency occurred that day, when in truth, the violence was pushed by Antifa and undercover federal agents, and was initiated by the Capital Police without provocation.
Of course, we knew that the fix was in almost from the start, when an unarmed Ashli Babbitt was shown on video being shot to death by a veteran Capital Police officer, twice her size, and he was quickly, and secretly, exonerated. And, of course, the recently released video show AntiFA and undercover Federal agents inciting the MAGA crowd to violence, and then the Capital Police initiating it, without visible provocation, shooting the nonviolent crowd with rubber bullets and flash bangs.
Continuing my last point: The Continuing Plot To Silence Trump's 2024 Comeback .
Looking at the evidence today, it is reasonable to hypotheisize that, among all the other consipracies Trump’s enemies have proven to devise, they also conspired in advance to set up his January 6, 2021 rally as an “insurrection” that could serve as their insurance policy to provide grounds to keep him from ever running for president again.
…
The theory that Trump’s enemies set the stage for January 6 to be called “an insurrection” as a spoiler for his 2024 run could help explain why all of the law enforcement agents and informants planted in advance and among Trump supporters on January 6 didn’t serve their usual purpose of preventing crimes and de-escalating events. Instead, by many accounts, they observed and even took part, let crimes happen, and declined to separate the instigators and organizers as they would ordinarily do to defuse tensions and control the crowd. The agents and informants served the odd role of standing down during the event, and identifying alleged perpetrators after-the-fact.
Yet, in the end, there was no insurrection - at least according to prosecutors, who would be the ones to charge such crimes and haven’t.
And Trump helped destroy the chance to officially charge him with insurrection by specifically directing his followers that day to “peacefully and patriotically make your voices heard.”
It seems strange that having gone to the trouble of devising a constitution Americans would decide to set aside provisions that seem essential to the protection both of democracy and the rule of law.
If the constitution were not invoked in this case, what other provisions could be set aside, on what grounds, and by whom?
Let’s see how originalist-minded the republican Justices, especially the 3 Trump appointees, are when it comes to interpreting this particular section of the constitution. I’m especially keen to see whether any of them will recuse themselves for conflict of interest, especially Clarence Thomas, given how his wife was also engaged in the insurrection.
Joe Smith said...
"Republicans are stupid and this is the reason they lose.
Any red state AG could declare that (pick any issue...open border is easy) Biden has committed treason and has not upheld his oath of office, and remove him from the state ballot.
But they don't do that, because (repeat with me) republicans are stupid..."
Republicans kinda like the rule of law. Just sayin'
"An obscure constitutional amendment enacted after the Civil War" ?
Who decided it was "obscure" and therefore, implicitly, lacks real authority? And because it was enacted after the Civil War, does that mean it's old and therefore we aren't legally bound by it?
What other constitutional amendments are obscure and old? The First Amendment? That was enacted after the Revolutionary War, so it's even older than the 14th Amendment. How about the Fifth? Can we now disregard it because of its age and obscurity? Could we dare to hope that the 2nd Amendment can now also be disregarded?
The 14th Amendment is obscure, only in the sense that we haven't had a lot of insurrectionists try to get elected President lately. Letting it go unenforced will only lead to more of them coming forward to try their luck.
I think you’ll like this one.
"The notion of keeping a major candidate that you want to vote for off of the ballot feels patently un-American, *regardless of what the Constitution might say*."
Stop Trying to Eject Trump From the Ballot. It Won’t Work.
https://www.thedailybeast.com/stop-trying-to-eject-trump-from-the-ballot-it-wont-work
Convict him first, Rich. Then you can apply your revenge fantasy.
Biden has committed insurrection by allowing 10 million illegals, including terrorist, cartel members, murderers, insane, etc... all without any documentation, to just move into the USA. And the Democrat party has sanctioned it. Thus all Democrats are guilty of insurrection and cannot hold any office in the United States.
So there folks... what goes around, comes around.
I’m especially keen to see whether any of them will recuse themselves for conflict of interest, especially Clarence Thomas, given how his wife was also engaged in the insurrection.
That comment was stupid when Jamie Raskin said it. It's more stupid when you repeat it.
Jim.
Our little fascisti, like Rich, just adore our constitution if they can distort it to their will. But god forbid you, as a conservative, ask for equal protection. They will muster evrry left wing activist lawyer to fuck you out of your rights.
And by that logic, there is nothing undemocratic about the desire to refuse to certify the electors from any state that does this. Just remove Maine and Colorado from the equation. There electors are not certified, and we proceed to the count without them. The new number required to win will become 263 I believe. Easy solution as far as I can tell.
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