David French expounds on legal interpretation in the NYT, in "The Case for Disqualifying Trump Is Strong."
January 4, 2024
"Enough. It’s time to apply the plain language of the Constitution... without fear of the consequences. Republics are not maintained by cowardice...."
"You don’t have to be a lawyer to comprehend those words. You simply need some basic familiarity with American civics, the English language and a couple of common-sense rules of thumb. First, when interpreting the Constitution, text is king. If the text is clear enough, there is no need for historical analysis. You don’t need to know a special 'legal' version of the English language. Just apply the words on the page.
Second, it’s crucial to understand that many of the Constitution’s provisions are intentionally antidemocratic.... Yes, it is undemocratic, exactly as it was intended to be...."
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132 comments:
Does he also want to "Just apply the words on the page." as it applies to abortion and same sex marriage also?
Disqualification clause of the 14th Amendment :
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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Comment:
The Supreme Court would be reasonable in holding that a competent tribunal subject to an appeals process would have to adjudicate and reach a finding that someone had "engaged in insurrection or rebellion against the same" for a secretary of state to apply the 14th Amendment. Where's the judicial process? This would be beyond the reach of an official acting in some sort of ministerial capacity. In the coming court case in Washington DC none of the charges include specifically insurrection or rebellion. So even if found guilty in that trial (obstructing an official proceeding), that verdict would have to be found to fit within a finding of insurrection or rebellion under the 14th amendment. Who determines that?
States do have a lot to do with federal elections so a properly constituted state tribunal could render a finding on insurrection or rebellion, but apparently none have been called to do so. Once again, where is the process?
In the face of conflicting arguments on how to apply the 14th Amendment, the courts might reasonably conclude that for an issue involving the election of someone in an election that best way forward is to let the voters decide in an open and free election. How much trouble does a democratic institution get into by opting for a democratic solution?
The Supreme Court is going to keep Trump on the ballot in elections subject to normal rules and laws.
By similar reason, the Supreme Court will probably let trials proceed and juries reach their findings on the facts. There may be less lawyering on all these appeals than people think.
The Democrat insurrection and riot, witch hunt, Capitol punishment, Whitmer conspiracy, persecution of a president and staff, and civil and human rights violations in progress. Democracy is aborted at the twilight fringe.
Now do Traitor Joe who opened the border to let 10 million illegals in whilst ignoring the homeless, veterans and poor in OUR country.
now do the 2nd amendment!
I wish Trump would go away…and take David French with him. Yeah, much of the Constitution is anti-democratic, but none of it is anti-republic. This new gig has fried his critical-thinking faculties.
David French skips over Section 5 of the 14th.
Intentional, TDS or just plain old stupid.
Why are supposed “liberals” arguing the 14th Amendment eliminated the “Due Process” clause of the 5th Amendment?
Seems like there are 2 issues here
Does the 14th ban a president who engages in insurrection?
And
Did president trump engage in insurrection. I suspect that if the was any evidence that he did he would have been charged with insurrection.
He hasn't been.
So all the evidence is from the fake news media. But this time we should believe them.
But they just keep saying he did it never sung what he did.
Can someone tell me HOW he engaged in insurrection? Perhaps legal schooler chuck could explain.
John Henry
Oh Yea said...
Does he also want to "Just apply the words on the page." as it applies to abortion and same sex marriage also?
Oh, what a wonderfully ignorant comment.
In the case of David French, as with just about all of the anti-Trump conservatives, the answer is "Yes, indeed; David French opposed the Constitutionalizing of a right to same-sex marriage."
Ditto abortion: French never liked Roe v Wade and was happy, legally, to see it overturned.
Now, since French is an educated, literate, moral, complex thinker, his general views on same sex marriage (now that it has become an accepted social institution) and the politics of abortion (now in the wake of the Dobbs decision) are nuanced, to say the least. He's a Constitutional conservative pretty far removed from the today's culture-warring.
But the real point is this; Franch has been consistent in his mostly-textualist interpretation of the Constitution. As have so many of us anti-Trump conservatives. It is you ignorant Trump fuckheads whose only consistency is your fealty to Trump.
Just apply the words on the page.
No, you're not applying "words on the page". You're applying your interpretation of the words on the page, and I'm applying mine.
The only thing I've heard is that he asked the vp to hold off on certification.
"asked" not "told" since the president has no authority to tell the vp to do anything.
That doesn't seem to insurrectiony.
So where's the beef?
More importantly, where's the insurrection?
Joe Biden has given financial aid to an enemy of the US, Iran. So, yes, let’s apply the plain language of the 14th….
The first "insurrection" of the 21st century was unarmed, over by sundown.
The entire affair was deemed an "insurrection" right out of the blocks, by every spokesperson on the dem payroll.
Ray Epps faces six months for directing.
what gilbar said
I love it when these guys get all stern and pompous when they're in the process of showing their *ss.
"Republics are not maintained by cowardice"
No, they're maintained by men with guns. Lots of men with guns. They are maintained with the implied threat of violence and if that fails they are maintained by actual violence. The law is a bunch of women cackling until provided with the teeth of enforcement. Anything less is a polite suggestion.
Republics are not maintained by people like David French.
King Cuck speaks!
Probably just coincidence that this week I am seeing a bunch of articles saying that Nikki Haley is not a natural born citizen by renowned legal scholar Paul Ingrassia. Sounds like imaginary bullshit to me.
I wondered who this "scholar" is. Cornell law school class of 22. "Law Clerk" at Mcbride law LLC.
Is a clerk above or below an associate in the law firm pecking order?
John Henry
I would appreciate Ann’s opinion as to the originalist meaning of insurrection in the 14th Amendment. I believe insurrection was used as a substitute for the term Civil War, a term which Lincoln could not use officially because it would have required a declaration of war against sovereign entities, which would have implicitly conceded the right of the Southern states to secede.
Beyond the 2nd Amendment, also look at how Democrats Woodrow Wilson, FDR, LBJ, and Jimmy Carter (and now puppet Biden) sought or executed systematic end-runs around the plain language of the Constitution.
Talk about how just a generation or two ago the left loudly trumpeted the "Constitution is a living document" subject to changing interpretations with the times. Focus on the 1970s with Roe v. Wade and the sudden "discovery" of the unconstitutionality of the death penalty.
French should apply for Gay's position at Harvard. His scholarship is on her level.
As a practicing lawyer, I can tell you that whenever someone cites "common sense," it's a signal that they've got nothing.
Dave Begley said...
David French skips over Section 5 of the 14th.
Intentional, TDS or just plain old stupid.
French was writing a brutally space-limited op-ed.
If you want a discussion of Section 5 to see how it is disposed of, turn to pp. 49, et seq., of the Colorado Supreme Court's slip opinion in Anderson v Griswold. Like the Nebraska Cornhuskers, nobody is ignoring them. They're just easily disposed of.
"...it’s crucial to understand that many of the Constitution’s provisions are intentionally antidemocratic.... Yes, it is undemocratic, exactly as it was intended to be...."
David French expounds on legal interpretation in the NYT, in "The Case for Disqualifying Trump Is Strong."
...and yet Mr. French engages in a glib eisegesis of the plain sense of the text.
Who again is shredding the Constitution?
If the Constitution can be made clear by "Just apply[ing] the words on the page," how is it that so many who have served in Congress, which has the "sole" law-making authority - keeping my gag reflex in line as I write that - have missed the 10th Amendment.
The only way they could ban Trump from the ballot is by charging him with treason and insurrection during the first quarter of 2021 and convicting him by the first quarter of 2022. Treat him like any south central drug dealing banger.
That ship has sailed away with the water under the bridge.
When the only evidence of Donald Trump's insurrection is the depth of animosity the Left has for him, they should not be surprised that we call bullshit.
If there is evidence of insurrection, then convict him.
Oh brother.
Paywalled, but I'd bet my bottom dollar that Mr. Textualist doesn't grapple with the meaning of "officer of the United States," the jurisdictional limit, as it pertains to Trump, of section 3 of the 14th Amendment.
John henry said…
“Is a clerk above or below an associate in the law firm pecking order?”
Their relative positions probably depend upon which identity groups they each belong to.
Kind of an odd take when the text explicitly excludes the office of President but does include Chief Executives of the States. Plain text? The text is plain. Several State courts have ruled on that text this way. The two that excluded Trump used convoluted “reasoning” to get to French’s position.
The Pelosi rush impeachment after Trump left office specifically was based on J6 and did accuse Trump of insurrection and he was acquitted, as in found not guilty, by the Senate. So there’s that.
Yes that silly but so is chuck
Dr. French's Snake Oil Elixer will take away all your nagging, Trump-related doubts and fears.
Buy it. Swallow it. Regurgitate it every day!
The suck in this one is as weak as his chin.
Rich and Chuck are still hangiung their hopes on "insurrection'.
There seems to have been woeful lack of violence on behalf of the insurrectionists. Which by definition does not make it an insurrection. So the 14th amendment does not apply in this case.
abortion
Elective abortion is premeditated murder from six weeks in all 50 states. The progressive sects exercise liberal license to carve exceptions with empathetic appeal for human rites, their wicked solution under the Pro-Choice [ethical] religion.
same-sex? Or is it same-gender with sci... senantic progress?
Equality, not political congruence ("="). Civil unions for all consenting adults. #NoJudgment #NoLabels
What exactly makes David French and constitutional expert above us all? Sorry Dave, but the average American voter is a constitutional expert. That's why the power is supposed to be in their hands. But with the 2020 election fraud we learned that power can be easily stripped away.
These assholes are talking about disqualifying a candidate that won in 2016 and 2020. 75 million plus voters will voter for Donald Trump again. This asshole is so arrogant and corrupt he doesn't want that choice given to the voters.
Joy Behar said the same on the view.
Beta Male David French = Joy Behar
This is David's attempt to convince us all that two plus two equals five.
"whenever any form of gov't becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new gov't." - Thomas Jefferson
Geeze. All America wants to do is elect Donald Trump again.
Chuck said...
Now, since French is an educated, literate, moral, complex thinker...
Give us all a break. Puke. Complex thinker my ass. The dude is a bought and paid for beta male idiot. Moral. What a joke.
Why not be brave and face Trump at the ballot box?
I think it would be great if we had a trial about J6, with each side having subpoena power, and with the FBI forced to testify fully, with the Capitol Police forced to testify fully. We could talk about how Trump offered 20K National Guard to protect the Capitol and how those who are charging him with insurrection turned him down. Things like that. We could talk about how Ray Epps is on video urging protesters to enter the Capitol building, and yet he is looking at a very short prison term, not anything like the years in prison that those who did far less have received. But without a trial, we can't say that there was an insurrection. And certainly there was nothing like the insurrection that happened that spawned the 14th amendment.
This reminds me of my sister's take on Bush v Gore. Every solution she came up with just happened to make Gore president. But the words of the Constitution, the method spelled out in the Constitution, the one that Trump was trying to make an appeal to, just happened to make Bush president, so that was out of the question.
If Trump was in the crowd with a can of pepper spray on Jan 6th - they would have a strong case.
Trump has been convicted of nothing... I can deem anyone a 'insurrectionist' or 'giving aid and comfort to our enemies'.. so does that mean I can keep Biden off the ballot? Keep all Democrats off the ballot? BLM? KKK? Antifa? Who are our 'enemies'?? What is considered 'aid and comfort'??
Is even being in talks with IRAN over weapons and oil (as Biden is doing) 'aid and comfort'?
Thus every state keep people off the ballots other states want on it??
How can you have a fair and free election if that happens?
was Trump indicted for insurrection?
Convicted of insurrection?
did Trump partake in insurrection?
Evidence that the FBI instigated the insurrection. Yes - dumb-shits in the crowd fell for it. but - many people entered the capitol peacefully - thru open doors, held open by capitol police.
I see Rich is starting to hedge his position. Chuck, of course, still has his head stuck up Nancy Pelosi's asshole.
The insurrection was provided for as part of the election process when there is a dispute. The courts until then refused to get involved and the last place fraud could be investigated was Jan 6, as provided by the constitution.
Trump's mistake was not understanding the American rule, that if you lose an election by fraud that's not quickly proved, you lost. The stake in finality is much higher than the stake in accuracy.
If fraud swung it, it was close enough not to matter how accurate it was, from the point of view of majority rule.
‘Plain language’ is code for ‘the constitution says whatever the mood of the time says it says’.
Let’s not fall for this.
What would the reaction from the left have been in 2008 if various state courts and AGs had taken Obama of the ballot based on their determination that he was not a citizen of the U.S. at birth?
This Constitutional dispute mechanism was covered in VEEP as part of its plot somewhere, if you want to get acquainted with it. I think the last resort after all sorts of tie votes in the House is that the VP chooses, as presiding officer in a tie-voted Senate, if I remember the plot correctly.
David French, what happened to him? I thought for a time that he was a good guy, but something happened.
Joy Behar is an old white leftist Nazi.
What happened on J6 was not an insurrection as that term was understood at the time the 14th Amendment was adopted, or now. The term basically means armed resistance of a combination of citizens or subjects to the authority of the state. J6 was an unarmed protest that turned into a riot.
If the 14th Amendment was intended to disqualify people for unarmed protests and riots, it needed to say so. It's very obvious that the term "insurrection" is being deliberately stretched and contorted to achieve the result of bringing Trump within its ambit. That's not how law, and certainly not TEXTUALISM, is intended to work. If terms are undefined, give them their natural meaning.
Just because someone can’t hold office doesn’t mean they can’t run for office. Seems to me removal from the ballot is putting the cart before the horse.
Hilarious to read the butthurt MAGA comments.
The opening line in Trump's petition to the SCOTUS: “It is a ‘fundamental principle of our representative democracy embodied in the Constitution, that the people should choose whom they please to govern them.’”
Trump, arguing the voters should be able to choose. Irony is dead.
It'll be interesting to see the mental gymnastic displayed by the "originalist", "State's Right" members of the court. This decision will be less about Trump and more about the SCOTUS.
I would appreciate Ann’s opinion as to the originalist meaning of insurrection in the 14th Amendment.
Click the tags, as she provided it awhile back. Well not on meaning of insurrection, but then she has plenty of video from when the capital in Madison was taken over by progressive teachers, and she knows nobody called it an insurrection despite it lasting days and doing more damage. But Althouse did provide commentary on whether section 4 of the 14th applied to the office of the President.
If you are going to disqualify someone on the basis of insurrection, then it would be nice if you would charge the person with insurrection. Or for that matter, charge somebody for insurrection. Congress did pass a law defining insurrection, based on their Constitutional authority to do so, and yet no one has been charged under that law, presumably because they have no case.
There are many problems with trying to apply section 3 to Trump:
1. It wasn't an insurrection.
2. Trump didn't aid or abet it. What material support did he supply? In fact, wasn't he the one arguing for additional security to prevent trouble?
3. It doesn't apply to presidents. They're not officers under the U.S. and (attention "textualist" David French) they DON'T take an oath to "support" the Constitution.
4. Trump was impeached for insurrection and acquitted. The judgment acquitting him is res judicata with respect to his qualifications to hold any office under the U.S. (It's not res judicata as to any criminal charges, but that's irrelevant here because it is only his qualification to serve as president that's at issue.)
5. Section 3 of the 14th Amendment can't be construed as superseding or abrogating Trump's (or anyone's) other constitutional rights, e.g., free speech, lawful assembly, Due Process. A state official can't simply declare that Trump is guilty of insurrection and thereby disqualify him from future election. Either Congress can impeach him for insurrection -- oh wait, they already did! -- or he can be charged and criminally convicted. Nothing in the 14th Amendment gives individual states the authority to determine whether a person is DQ'd under section 3 without Due Process.
A rally gone out of control (instigated by embedded FBI agents) is not an insurrection anyway.
that the left label it an Insurrection - is just the big shit show.
Doesn't an insurrection involve... guns and weapons? big plans? An army?
The only person shot and killed was a Trump supporter.
‘Plain language’ is code for ‘the constitution says whatever the mood of the time says it says’.
Let’s not fall for this.
Blogger Chuck said...
Oh Yea said...
Does he also want to "Just apply the words on the page." as it applies to abortion and same sex marriage also?
Oh, what a wonderfully ignorant comment.
This is all taking the WORD insurrection to mean basically Jan 6 and nothing else. But if you were truly textualist, in roe etc, judges who made that up and anyone who defended it would have been guilty of insurrection. So no, hes not being principled
Rich snarks: "Trump, arguing the voters should be able to choose. Irony is dead."
Explain why this is ironic. When has Trump ever opposed people's right to vote?
“It'll be interesting to see the mental gymnastic displayed by the "originalist", "State's Right" members of the court. This decision will be less about Trump and more about the SCOTUS.”
Already prepping for a 6-3 loss.
“And you can have the election stolen from you”
Who said that?
It is laughable. Insurrectionists do not come unarmed or leave when asked.
Jake said...
Just because someone can’t hold office doesn’t mean they can’t run for office. Seems to me removal from the ballot is putting the cart before the horse.
So you think that Barack Obama could run for a third term? If not, how exactly would that effort be stopped?
I think that if Obama were allowed to run and could be sworn in, he would win easily.* Is it anti-Democratic to deprive people of the opportunity to vote for him?
*I would vote for him, versus Trump. Even though I voted for McCain in 2008 and Romney in 2012.
Blogger I stand w Isreal. Leftists, Mullahs, Hamas-Palistinian terrorists can suck it said...
leftist Nazi.
Redundant and repetitive
John Henry
Wait a minute. Does this mean the FBI and Pelosi and DC Mayor are forever barred? They are the ones who staged an insurrection using MAGA citizens as extras in their Hollywood production to cover up the vote fraud.
Only esser wing nazis that were nationalizers like roehm were leftists but they were all corporatists nee public private partnership
@D&P show: If Trump hadn't interfered with the Georgia elections he wouldn't be in such a precarious position. One could give him a pass for Jan 6 as it's arguable the event was not an insurrection nor was it his intent. The fake electors scheme in Georgia, however, is pretty airtight. It will be interesting to see whether the court interprets those "alleged" actions as acts of rebellion or insurrection against the government.
Blogger Dogma and Pony Show said..."What happened on J6 was not an insurrection as that term was understood at the time the 14th Amendment was adopted, or now. The term basically means armed resistance of a combination of citizens or subjects to the authority of the state. J6 was an unarmed protest that turned into a riot.
If the 14th Amendment was intended to disqualify people for unarmed protests and riots, it needed to say so. It's very obvious that the term "insurrection" is being deliberately stretched and contorted to achieve the result of bringing Trump within its ambit."
That's my take. Does French address that?
For most conservatives it would be worth trading Trump's candidacy for courts ruled by strict constructionists. I doubt that French, the NYT and the pinkos to whom they pander would like it much.
Disqualification clause of the 14th Amendment :
“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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
1. As Ann noted earlier, when you have a statute that goes from the specific to the general, like this, other specifics (like the President and VP here) similar to the specifics named (Congress, Electors, etc) are not covered by the general. Why not list the most important offices first, if they were meant to be covered?
2. The President is not an officer under the US, but one of three branches of the government.
3. The President is not appointed, as Officers are, but elected. CJ Roberts made that point in a case recently. That’s why the drafters added Senators, Representatives, and Electors to the list of those otherwise covered - because they are NOT Officers under the US.
4. § 3 is not self executing. This is obvious from the fact that other sections of the 14th Amdt are, and there is a provision in § 3 for Congress eliminating the Insurrection disability - which they have twice done.
4. Trump has never taken the “Support” oath, but just the Presidential “Defend and Protect” oath.
5. It would require full criminal Due Process to use § 3 to prevent someone from running for or taking office. There wasn’t sufficient DP in CO (since they didn’t allow a full evidentiary hearing, where the accused was allowed to confront their accusers. Instead, the CO courts merely accepted the results of Pelosi’s highly political kangaroo court’s findings. And there was effectively no DP in ME.
6. “Insurrection” has a specific definition. This doesn’t rise to that.
7. This would be an additional requirement for office imposed by the states. They have been repeatedly struck down by the Supreme act, including cases from CA and CO (term limits on Senators and Representatives - which the CO Supreme Ct seems to have forgotten).
My prediction is a watered down 7-2 decision, so that Roberts can get Kagen aboard. Probably with strong 3-5 member concurrences, one authored by Thomas. Through his wife, he fully understands the LawFare going on here.
rhhardin (8:43): "Trump's mistake was not understanding the American rule, that if you lose an election by fraud that's not quickly proved, you lost. The stake in finality is much higher than the stake in accuracy."
Unfair, but exactly right.
No they wanted the cities destroyed
“Wait a minute. Does this mean the FBI and Pelosi and DC Mayor are forever barred? They are the ones who staged an insurrection using MAGA citizens as extras in their Hollywood production to cover up the vote fraud.”
Actually, they were using the Capital Police, FBI (etc), and AntiFA. At least two bus loads of the later were shown to have deposited them there, dressed as Trump supporters. They were video recorded as inciting violence, but were never arrested. Neither, of course, were the federal agents inciting violence either. Pelosi’s Capital Police we’re at the heart of it, first welcoming in the Trump supporters, and escorting them peaceably around the Capital, then starting the violence by shooting rubber bullets and flash bangs into the crowd, shooting the unarmed Ashli Babbitt, and throwing at least one Trump supporter off the balcony (civil suit filed yesterday). This is after turning down Trump’s offer of 20,000 National Guard troops. It was a set up from the beginning.
What is interesting here is that the AG couldn’t tell Congress how many of his (I.e. FBI) agents and others, were there that day undercover, despite his having been asked in advance to bring that information to the hearing. On the other hand, there were likely other agencies involved, including HLS. Some have theorized that the MAGA crowd were so well infiltrated by different federal agencies that they didn’t know who was on their side. The embedded FBI agents have probably been identified by their tendency to dress similarly. It is suspicious when a bunch of guys, dressed fairly uniformly, are caught on video inciting the crowd to violence, and none are ever charged with it.
I am enjoying the right wing MAGA constitutional fundamentalists suddenly decide that we need to take a nuanced approach to interpreting the constitution. Today the 14th amendment, tomorrow the 2nd…
Friendly reminder to all the MAGA partisans:
Section 3 of the 14th Amendment does not require that the person be convicted of a crime via any other court. Nor does it provide a specific definition of insurrection.
So your best bet to guess whether or not the courts will side with Trump is this definition of insurrection from the 1828 Websters dictionary:
“A rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. Insurrection is however used with such latitude as to comprehend either sedition or rebellion.”
Go compare this with the court documents and evidence presented by the prosecution in the Jan 6th case and the hearings, and decide for yourself. Just do the homework for once.
Off the top of my head, I see these legal issues:
1. Was Jan 6 an "insurrection?" The 14th amendment was written against the background of the civil war, which was a years-long armed uprising. How close to something like that does an activity have to be in order to be considered an "insurrection?"
2. If there was an insurrection, did Trump participate in it?
3. Does the language of the 14th amendment disqualify an insurrectionist from running for the presidency? Expressio unius est exclusio alterius - it specifies disqualification for Senate, House and electoral college, but not president. Is president an "office under the United States" as used in that sentence?
4. Who determines whether the candidate to be banned from office was an insurrectionist?
5. What facts must be determined in order to ban the candidate? By what standard of proof? Did the Colorado or Maine decisions meet that standard?
Questions 3 and 4 are pure legal issues that don't require any decisions about anything Trump did or didn't do. If the Supremes take the case, I expect they will decide it on one of those grounds - they are the least political. I also would expect that Roberts will do whatever is necessary in order to get a unanimous decision that shuts the door on future shenanigans like this. All of the justices are well aware that once this is done to one candidate it will be irresistible for both parties to try to do it to others (and some people in Republican states are already making noises about doing exactly that) -- they are all invested heavily in maintaining the integrity of the basic institutions of American democracy, especially voting for whoever you damn well please.
What does French think the common understanding of “Congress shall make no . . . Abridging the freedom of speech.” is?
How does it apply to a law about insurrection as applied to speech used at a political rally?
The comments here have had a vigorousness of late. I like that.
"You don’t have to be a lawyer to comprehend those words. You simply need some basic familiarity with American civics, the English language and a couple of common-sense rules of thumb. First, when interpreting the Constitution, text is king. If the text is clear enough, there is no need for historical analysis. You don’t need to know a special 'legal' version of the English language. Just apply the words on the page. Second, it’s crucial to understand that many of the Constitution’s provisions are intentionally antidemocratic.... Yes, it is undemocratic, exactly as it was intended to be...."
This is just plain silly. The historical analysis is required because the Constitution is a multigenerational contract of governance, and understanding of the terms of the contract requires understanding of what those terms meant at the time the contract was entered into, and not on how one side has redefined the terms over 150 years later. He is suggesting that we accept Pelosi and the Dems’ much broader definition of “Insurrection”. Nope. That isn’t in the contract.
And his claim that “text is king” is similarly ludicrous. Trump wasn’t an Officer of the US, nor did he take the “Support” oath. And there is no provision in § 3 for self execution. Instead, there is a provision for Congress to remove the § 3 disability. So much for plain meaning.
David French? What, was Bozo the Clown unavailable?
The text clearly means what I say it means regardless of what the people who wrote it thought it meant.
As far as I'm concerned, until and unless Trump is convicted for what he did on J6, whether by the courts or by impeachment proceedings, he cannot be removed from the ballot. Having an AG say that he can be removed because he "probably committed insurrection on J6" has as much legal bearing as an AH removing Biden from the ballot because he "gave aid and comfort to our enemies when the Family Business accepted money from other countries".
How many republican senators voted for garland mayorkas or austin thats a phony argument
Given that we are just now actually trying dominion based on helderman reports among other elements
It's worse than the Althouse quotes.
"Enough" follows this preceding paragraph:
"This is where we are, and have now been for years: The Trump movement commits threats, violence and lies. And then it tries to escape accountability for those acts through more threats, more violence and more lies. At the heart of the “but the consequences" argument against disqualification is a confession that if we hold Trump accountable for his fomenting violence on Jan. 6, he might foment additional violence now."
"Enough."
Mr. French sees himself as one man with the courage to stand athwart history, yelling Stop, at a time when no one is inclined to do so.
He has a history of presenting himself this way.
He has a Bronze Star, you know.
Franch (sic) has been consistent in his mostly-textualist interpretation of the Constitution. As have so many of us anti-Trump conservatives. It is you ignorant Trump fuckheads whose only consistency is your fealty to Trump.
Thank you for once again presenting your own crank before stomping on it. I have a different definition of ignorant Trump fuckheads that includes the oh so consistent David French. French was long a defender of the Second Amendment in the pages of the Atlantic. That was until, as non-fuckhead Rich Lowry points out until just last June. What happened to change Mr. Consistency's mind?
French cited a new threat: "gun idolatry, a form of gun fetish that’s fundamentally aggressive, grotesquely irresponsible, and potentially destabilizing to American democracy." Oh my! What is Mr. French's evidence of this new threat? "T-shirts and signs." Wait, what? He changed his mind about the second most important Amendment in the Bill of Rights because of "popular t-shirts and signs"?
Yes. Yes he did. What is on those signs that now constitute a "threat...to American democracy" you ask? But you already know, don't you Chuckles? You already know what caused this 180 degree turn against what French had forever called a "fundamental right," don't you? Because you are a "Trump fuckhead" like David, aren't you Chuckles?
Because yes. Yes it was Trump! Trump's very name on the same lips as others who support the 2A was enough to change this staunchly conservative and highly consistent mature thinker. Let's let Mr. French say it in his own words:
When a leading candidate for Senate runs on a platform that’s “pro-God, pro-Gun, and pro-Trump,” then guns (and Trump) are elevated far above their proper place in American life. The same goes for popular t-shirts ["Trump for President"] and signs that declare a person “pro-life, pro-God, and pro-gun.”
Therefore, David continues, he could not in good conscience "write the same piece for The Atlantic again" that he did four years earlier. Because Trump. Fuckhead indeed!
What strange company you keep Chuckie.
The case isn't strong and the plain meaning of the words of Article 3 doesn't get around the fact that Trump wasn't involved at all in the riot at the Capital which began while he was still speaking. He wasn't "engaged" in it unless you stretch the meaning of that word to include 100% constitutionally protected activity such as (1) giving speeches (even using charged political hyperbole such as "fight like hell" is 100% protected speech in this context and handwaving away his imploring the crowd to peacefully protest is bullshit) and (2) petitioning the government through the legal system, and then a riot occurs by other people elsewhere. Saying words that anger people is not the definition of incitement. Nor is a riot the definition of insurrection. He's trying to pin the riot on Trump even though he didn't participate in it at all and there's no evidence he did.
French is supposed to be a 1st Amendment lawyer and he should know better. Remember, he is the namesake for Frenchism, the notion that the from a conservative point of view all leftist actions are taken in good faith while all conservative actions have suspect motives.
"...shall not be infringed."
Is that language plain enough?
Moron.
This is just plain silly. The historical analysis is required because the Constitution is a multigenerational contract of governance, and understanding of the terms of the contract requires understanding of what those terms meant at the time the contract was entered into, and not on how one side has redefined the terms over 150 years later.
To support Bruce Hayden let me add this. The President was in the first draft and Congress specifically removed it from the final text. Does that historical fact matter? Real textualists say yes it does.
For all his whining about MAGA this and that, notice that Rich argues with emotion and the Right here mostly rely on facts and precedent and put forth propositions that do not need nor include the Big Orange in them to be true or not. In short, we wish the Law to be applied equally, whether it is for or against Trump. Just stop twisting the Law into "novel theories" and "new shapes" to go after the guy you can't beat at the ballot box fairly and squarely. Stop changing the rules, bending the rules or ignoring the rules.
I think David French has to be the most dishonest "True Conservative" I've ever read. He was shilling for Google, and then it came out he was getting money from them, and got bounced from NRO.
Now, he's supporting Biden's attempt to jail his political opponent and win another 4 years, Bannnana Republic style.
Trump caused a lot of masks to drop. How many years did I read about French saying we had to nominate this moderate candidate or support that liberal/moderate position because "we had to be pragmatic and beat the Democrats". Or write "The conservative case for liberal position X".
Now, he's come out of the closet and is just another Liberal/leftist who thinks Biden is OK, and Trump is the Devil. His "Conservatism" consists of liking Big Business and wars.
Every accusation is a confession with Democrats and Life Long Republicans like at the Bulwark.
It seems the GOP and Conservatives in general have accepted the Democrat/leftwing premise that its somehow legitimate for Biden and his Stalinist DOJ to use Lawfare to destroy Trump or any other Republican they don't like.
Now we're just arguing over the details. Its obvious that insurrection doesn't apply to Trump, but so what? The Democrats Judges and DOJ have the power and will use it. Trump will be convicted, lose on appeal, and it will be up to the 5 Republicans to save him. And the country. Will they? Who knows?
Tl;dr: "Ignore all of the arguments and large amounts of the evidence and just accept my interpretation as the only possible one, and do what I say."
So, the plain meaning of "insurrection" and "aid and comfort" is so clear that having 50 different states' election officials apply it to exclude leading candidates of either party for federal offices will pose no danger at all. With David French (as with Chuck), it is hard to decide whether he's playing stupid or is actually that simple-minded.
Note that Democrats are predictably now moving on to exclude Republican incumbent Congressmen from state ballots for giving "aid and comfort" to the (one day, unarmed) "insurrection." And, given the approach French is arguing for, the only response real Republicans can make is to exclude Biden and Democratic officeholders from ballots in States they control (citing the 3 year insurrection at the US border). But, it's all good, according to French and Chuck. Lincoln was not on the ballot in 1860 in 10 States, and we all know how that worked out.
Rich, how did Trump personally engage in insurrection on J6? What did he personally do that was not merely speech?
C'mon, do your homework . . . for once.
I see that Germany is talking about outlawing the most popular political party in the country. Democracy is like a bus, when the fascists get to their stop...
I think that if Obama were allowed to run and could be sworn in, he would win easily.* Is it anti-Democratic to deprive people of the opportunity to vote for him?
*I would vote for him, versus Trump. Even though I voted for McCain in 2008 and Romney in 2012.
1/4/24, 9:28 AM
THAT explains everything. Swamp creatures stick together.
MSNBC headlines that Trump's name "was mentioned" even though it was basically to ask about him, and the answer was "no, not him. Never."
https://www.youtube.com/watch?v=i1I8VMQGRTg
But if MSNBC says that there was an "insurrection," then it must be so.
If it is just a matter of reading the plain words in the Constitution, it would seem that a good case can be made that section 3 goes not apply to someone who took the oath of office for the Presidency but has not taken in other oath among those described in the language.
Note for the record that Rich, Chuck, and David French never identify the clause in the 14th amendment that confers the power to any political body for making this decision that Trump be removed. This idea that anyone, anywhere can make this determination is just the silliest belief you will ever come across. The only reasonable reading of the entirety of the 14th amendment and the rest of the fricking Constituion is that the power to remove Trump rests with Congress and Congress alone. Any other reading is just fucking nonsense and can only be spounted by idiots, the mad, or liars.
If the Democrats and the never-Trump Republicans really do believe Trump should be disqualified, then they need to re-impeach him in the House, try him in the Senate, convict him, and then declare him non-eligible for holding further federal office. Anything else is not only going to fail, but will actually make the officials involved in trying to do a short-cut around the Constitution guilty of exactly what they claim makes Trump an insurrectionist.
The 14A insurrection argument reminds me of Scott Adams’ idea of two movies on one screen.
A: I see an insurrection.
B: There's no insurrection that I can see.
Our justice system has devolved into which judge or jury we get.
So, the fact that the constitution says the bans apply to House, Senate, and all appointed offices, but does NOT say it applies to teh President, is something David French is too stupid to read?
I'm shocked, shocked.
The fact that Section 5 says "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." doesn't tell this pathetic nimrod that you have to follow Congress's enforcement mechanism?
The Dunning Kruger effect is strong in this one
Unknown said...
Off the top of my head, I see these legal issues:
1. Was Jan 6 an "insurrection?" The 14th amendment was written against the background of the civil war, which was a years-long armed uprising. How close to something like that does an activity have to be in order to be considered an "insurrection?"
Something like what the Colorado courts found, after a five day trial. The framers of the Fourteenth Amendment did not write it in terms of the War Between the States of 1861-65. They could have, but didn't do that. They wrote it in carefully generalized terms.
2. If there was an insurrection, did Trump participate in it?
He led it. Just like Jefferson Davis and his CSA administration didn't fight at Shiloh or Gettysburg; yet they led the insurrection.
3. Does the language of the 14th amendment disqualify an insurrectionist from running for the presidency? Expressio unius est exclusio alterius - it specifies disqualification for Senate, House and electoral college, but not president. Is president an "office under the United States" as used in that sentence?
Yes it is. Unless you are willing to argue that the framers of the Fourteenth Amendment intended to bar Jefferson Davis from ever being a Congressman or a Senator, but not a President.
"During the debate on Section Three, one Senator asked why ex-Confederates 'may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.' Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: 'Let me call the Senator’s attention to the words "or hold any office, civil or military, under the United States.” Practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.'" (pp. 93-94.)
4. Who determines whether the candidate to be banned from office was an insurrectionist?
It's your only interesting question. I would say, "The same mechanism by which a candidate would be banned from office (or a place on a ballot?) by virtue of being underage, foreign born, or having completed two previous terms as president."
5. What facts must be determined in order to ban the candidate? By what standard of proof? Did the Colorado or Maine decisions meet that standard?
Colorado answers affirmatively, following a five-day bench trial and appellate review. Maine's Secretary of State answers affirmatively following her written determination. (Now apparently headed for judicial review.) And likely SCOTUS review. Again, much the same way that Ted Cruz's eligibilty for office might have been determined if Trump had more seriously challenged it in 2016.
like Mua'dib, his name is a killing word,
this off broadway show, had keystone elements except for boyland and babbitt and the Capital police that may have gassed themselves, also four others who committed suicide over these kangaroo proceedings,
Chuck said...
1. Was Jan 6 an "insurrection?"
Something like what the Colorado courts found, after a five day trial. The framers of the Fourteenth Amendment did not write it in terms of the War Between the States of 1861-65. They could have, but didn't do that. They wrote it in carefully generalized terms.
So according to you [Chuck] state courts NOW have the power to determine Federal guilt without a trial and conviction? What is this Cuba?
"First, when interpreting the Constitution, text is king. If the text is clear enough, there is no need for historical analysis"
This is the key.
What French is means, in other words, is this: "We don't need to care what insurrectionist meant back in the 1860s, and stick to that meaning, we can make up our own definition".
The game is to always wrench the words in Constitution away from their historical meaning so they can used by current day judges to do anything they damn well please. The relevant section of the 14th A, should have been sun-setted from the Constitution years ago, since the whole point was to keep Confederates out of congress or from electing the President.
But now, Mr. French and Joe Biden want to use their new special word definition to destroy and jail Trump. If a republican DOJ was using it against a Democrat, French would arguing the opposite.
"...Colorado courts found, after a five day trial."
Isn't Chuck an attorney? How many classes do you have to skip to NOT see that this was not a trial?
The impeachment effort by the Senate was much closer (hint, Trump was not convicted.)
Why are Chuck and Rich scared to face Trump at the ballot box? Why are they afraid of democracy that they must prevent it from happening?
"... special 'legal' version of the English language."
One of the bigger banes of the language.
I once heard an old farmer in traffic court say "I believe I stopped before I turned." The prosecutor said "Believe indicates you're not sure." The farmer replied "I believe in God."
Silence.
Here's to the recent post on judges and empathy:
Do you want the judge to emphasize with someone who will strain word meanings in order to create a thread to rationalize convicting someone of insurrection out of court?
or
Do you want the judge to emphasize with those who want the law interpreted as written and standard court proceedings to prevail?
Anyone saying you can do both is fooling themselves.
Again, note that Chuck does not identify anywhere where the Colorado court obtained the authority to make this decision. Their authority is as ungrounded as that of a homeless man in Denver, or a drunk ex-lawyer in the Detroit area.
Meanwhile at the D.C. Court of Appeals — Trump filed an appeal saying, "I'm immune from prosecution over these charges because the acts that are at issue here were conducted within the outer perimeter of my responsibilities in office as president," and because he's asserting not just a right not to be convicted, but a right not to be tried.
The fact that Nixon was pardoned tends to undermine the argument that history shows that a president can't be prosecuted, because why did Ford have to pardon him if he couldn't be prosecuted for what he did while in office? So Jack Smith has responded the typical, "Yeah, everything Trump said is bullshit. There's no historical precedent for it. There's no legal precedent for it, makes the president above the law in a way that's very against American legal tradition."
Smith also points out that interestingly, Trump has made some inconsistent arguments over the years. Hardly surprising given the number of litigations he's been in. But in the past, when he was president and he was trying to shut down or delay some of the legal proceedings, he said, "This shouldn't go on now, and it's fine because these sorts of things can happen after the president leaves office." And now that he left office, he turns around and said, "These could never happen." So that's the hazard of being so frequently in litigation. It's easy to get tangled up in your own arguments.
Jack Smith's message isn't that this position binds Trump. His position is, "The reason that this argument is BS is that he's made the opposite argument before, and this is why not to take it seriously."
"Why are Chuck and Rich scared to face Trump at the ballot box? Why are they afraid of democracy that they must prevent it from happening?"
The only way to preserve "Our Democracy™" is to limit people to voting for Democrat approved candidates.
I am becoming convinced that Rich’s purpose in presenting these arguments is to reinforce loyalty to Trump, because if this is the best stuff that people who claim to be as tuned in to the anti Trump world as he is can come up with, then obviously there is no there there.
If it's just a matter of common sense whether Trump should be president or not, no courts required, I have a radical idea. Let's vote on it.
rhhardin,
"The stake in finality is much higher than the stake in accuracy"
Not just no, but hell no!
And not just hell no, but hell f'ing no.
Sure there has to be some statute of limitation here, but what do you think it is? An hour, a day, a week? Your statement here just enables the fraudsters as long as pull off a little temporary cover.
In the summer of 2020 protests were good, and the police were evil. Then in January of 2021 protests were evil, and the police good again. This is the basic conundrum, that protests from one side are judged with great sympathy, and from the other side with great prejudice. The Capitol protest resulted in five deaths -- that's awful. Sadly, protests often go too far. Still I had always thought people have a right to protest against the government, or even to disrupt the government (barring property damage and bodily harm), but I am not so sure they have that right any longer, at least if they are Trump supporters.
JAORE said...
"...Colorado courts found, after a five day trial."
Isn't Chuck an attorney? How many classes do you have to skip to NOT see that this was not a trial?
The impeachment effort by the Senate was much closer (hint, Trump was not convicted.)
So here is what I want you to do. I want you to do it tonight.
Go to THIS COLORADO SUPREME COURT LINK, where you will find the Court's full opinion in Anderson v. Griswold, Colorado Supreme Court Case No. 23SA300.
I want you to scroll to page 13, at the bottom of the page (in the section of the majority opinion summarizing the Procedural elements of the case) and begin to read:
"The trial began, as scheduled, on October 30. The evidentiary portion lasted five days, with closing arguments almost two weeks later, on November 15. During those two weeks, the Electors, the Secretary, President Trump, and CRSCC submitted proposed findings of fact and conclusions of law. The court issued its written final order on November 17, finding, by clear and convincing evidence, that the events of January 6 constituted an insurrection and President Trump engaged in that insurrection..."
After you read pages 13 and 14, I want you to print it on heavy stock paper. Then I want you to roll the printed pages into a tight cylinder, and I want you to drop your trousers and shove it up your ass.
After that, I want you to do something else. I want you to go to THIS COLORADO JUDICIAL BRANCH LINK, where you will find the Decision of the Denver County Distric Court, Judge Sarah B. Wallace. She was the trial court judge who conducted the five-day trial. Go to page 8, and Paragraph 18 of Judge Wallace's own Procedural summary. There, you'll see that Paragraph 18 reads:
"18. The matter proceeded to a five-day trial beginning on October 30, 2023 and concluding on November 3, 2023 (the “Hearing”). On November 15, 2023, the parties presented their closing arguments."
After you read that page, I ask again that you print it. With the printed page in hand, I ask the you crumple it up and drop it into a glass of lemon juice AND SUCK ON IT.
Where the fuck do you step off, trying to ridicule me with a claim that there wasn't a five day bench trial in the Denver County District Court in the case of Anderson v Griswold?
Rich.
Instead of deflecting-Smith has been soundly spanked by the Supreme Court.
Why don't you address what an "insurrection is,and why Jan. 6 constitutes one.
You know, the thought occurred to me, we had our Civil War, we had the 14th Amendment, so what happened to all those Confederates. Did they all get tried and found guilty of insurrection? There should be some ample evidence of how this process should work.
A quick internet search shows that some like Longstreet sought and presumably got pardons for something. Others seem to have been unrepentant and still served in Congress.
Alexander Hamilton Stephens, who was VP of the Confederacy served 5 months in prison, presumably found guilty of treason though it's not clear that's true. He eventually ended being elected to Congress in 1873 and re-elected a few times as a Democrat. Maybe the House cleared him of the stain but it's not clear to me. He ended becoming governor of Georgia for a short time.
Several other notables in the Confederacy went into politics after the war.
If we are going to talk about the "plain" meaning of the text, then maybe we should start with finding out who in the past was found guilty of insurrection (does that include treason) and seeing what the results of that process was.
Chuck said...
3. Does the language of the 14th amendment disqualify an insurrectionist from running for the presidency? Expressio unius est exclusio alterius - it specifies disqualification for Senate, House and electoral college, but not president. Is president an "office under the United States" as used in that sentence?
Yes it is. Unless you are willing to argue that the framers of the Fourteenth Amendment intended to bar Jefferson Davis from ever being a Congressman or a Senator, but not a President.
I'll use small words, so that even someone as stupid as Chuck can understand, if he wants to:
The people who wrote the 14th Amendment KNEW that, absent Section 3, Southern States would elected former Confederates to the House, and their State Legislatures would appoint them to the Senate. They also knew that a future Democrat President would be willing to appoint them to offices.
But the final thing they knew was that:
1: You couldn't be elected President just with votes from teh former Confederate States
2: No non-Confederate States would vote to make a former Confederate President
So yes, Chucklehead, the people who wrote teh 14th Amendment left it technically possibly for Jefferson Davis to run for President of the US, because they were 100% certain he would lose if he ran.
We know this, because an early draft had "President" in there, but it was removed.
in other news, 1 + 1 = 2
"During the debate on Section Three, one Senator asked why ex-Confederates 'may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.' Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: 'Let me call the Senator’s attention to the words "or hold any office, civil or military, under the United States.” Practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.'" (pp. 93-94.)
Called a colloquy. It’s Members of Congress who lost on the point in the drafting, and trying to cover themselves. CJ Roberts doesn’t like them, and gives them no weight.
Dealt with it with Senators who had been bought by the Pharma industry, with the badly named America Invents Act. They tried to get the new legislation to protect hidden inventions. Luckily the Fed Circuit wasn’t buying.
Bill Barrs is a far batter lawyer than David French:
https://www.thefp.com/p/bill-barr-banning-trump-from-the
"I am firmly opposed to Trump’s candidacy. While I think it is critical the Biden administration be beaten at the polls, Trump is not the answer. He is not capable of winning the decisive victory Republicans need to advance conservative principles. And his truculent, petty, and toxic persona—unconstrained by any need to face the voters again—will damage the country.
But I also believe that the efforts to knock him off the ballot are legally untenable, politically counterproductive, and, most ominously, destructive of our political order. The Supreme Court needs to act swiftly to strike down these foolish decisions."
. . . .
"The point is that in present-day America, under existing law, the only way to disqualify someone under Section Three is through criminal prosecution under Section 2383. The federal government, which has painstakingly examined the events of January 6, has not charged President Trump with insurrection or even incitement.
Even if, contrary to this analysis, Section Three is self-executing and states are free to adopt their own ad hoc enforcement procedures, Colorado’s and Maine’s actions do not pass legal muster. "
Thank you J. Scott, very illuminating.
Andrew McCarthy: There Is No Insurrection Case Against Trump
Andrew McCarthy: There Is No Insurrection Case Against Trump
Lots of bluster and anger from the about-to-lose-again side with all-caps links and that weird habit of urging people who disagree to engage in self-harm. This what happens when you saunter in White Knighting for David effing French and holding him up as the rational consistent Constitutionalist without realizing that your Trump hatred has blinded you to the fact French suffers the same disability and neither of you can calm down long enough to think clearly. Not when it comes to the yuge Orange figment of your imagination.
Will you persist knowing how much delight we take in watching you melt down? Can you hear the LOLs as we repeat the hilarious phrase “five day bench trial”? It’s comedy gold man!
SCOTUS could have prevented Jan 6 by not refusing to adjudicate Texas v. Pennsylvania
It's obvious that David French doesn't understand how our system is supposed to work.
Just because some parts are undemocratic doesn't mean that you can apply that to anything that you want.
Also, a lot of people have said that Trump doesn't need a trial for insurrection because none of the Confederate leaders had a trial for insurrection and were barred from Federal office. But did any of the Confederate leaders actually ask for a trial? They didn't because it was obvious that they would lose because they were verified officers and leaders of a group that was in open insurrection against the United States. The evidence against them was easily provable, so they didn't try and dispute it.
Just because they didn't ask for a trial is no reason to remove Trump from the ballot without a trial and conviction.
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