Fact check: the case was originally brought by Republicans.
So even though Democrats (and independents) might want Mr. Trump off the ballot it was Republicans who brought the case.
And removing a candidate from a ballot does not disenfranchise voters. They still have the right to vote. It could be argued that it disenfranchises the candidate, but hopefully only due to Constitutional requirements.
Kavanaugh and Roberts thought too little of the people and the federal and state Constitutions, methinks. Our democracy is quite generous, but it should be not so generous to allow insurrectionists on the ballot. Yes, I think the language of the 14th should be expanded to include all insurrectionists and not just oath takers.
Although I get your point on pragmatism. It has to be questioned how pragmatic it is to allow someone to run who will create chaos if they lose. It's one thing that you once allowed an adult to enter your house who made a mess. It's another thing to allow that adult to enter your house again when you have legal means to keep him out of your house. FWIW, the house is our Republic.
A candidate not getting on the ballot or not allowed on the ballot is NOT disenfranchising voters- they still get to vote- just not for that person. Candidates are kept off ballots all the time such as when they don't gather enough valid signatures on petitions or if they lose in a primary election they don't get on the ballot in November.
But to the issue of "originalism" - it's a b.s made up doctrine just like the "independent state legislature theory" or "textualism" or the newest one, "historicism" - all doctrines INVENTED by conservative think tanks as legal cover for politically deciding cases.
That said, even as I abhor Trump, I too am skeptical of states doing this. Aside from playing word games as to who is an "officer" on trump's side of the argument, the insurrection clause was not well written.
Section 3 Disqualification from Holding Office
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.
It says no person who engaged in insurrection can run, but has no mechanism as to how to prevent that but has mechanism to lift the ban with the 2/3 vote. It seems to be written for that specific time. It would seem that if the writers expected future insurrections they would have included enforcement or activation text in the amendment.
“It’s good to hear conservatives on the court arguing in favor of democracy. They should try it more often. And if progressives would stick to defending democracy, that would be even better.” Amen and Hallelujah! I was fascinated by the arguments yesterday. I guess the thing that bothers me the most here about it all is that Mr. Trump has not been convicted of anything. Do I think him guilty of the charge of insurrection? Absolutely! Do I think that the 14th Amendment should disqualify him from office? Absolutely. But that’s not how justice works.
When explaining judicial process I always use Jack Ruby as an example. Did Ruby kill Oswald? Yep. On film in front of a camera surrounded by cops and reporters. There was no ambiguity about the fact that Ruby shot and killed Oswald. There still had to be either a confession of guilt and/or a trial before Ruby could be punished. Just because someone is obviously guilty of a crime that does not mean that they can be sentenced without due process. In Section 1 of the 14th Amendment we see “nor shall any State deprive any person of life, liberty, or property, without due process of law.” For section 3 to work you have to answer for section 1.
There is no requirement in the amendment that a person be convicted in court for the amendment to be effective- the vast majority of confederates barred from holding office were not convicted either. Insurrection isn't a run of the mill crime- it is essentially political.
The real problem with the amendment is there is no wording for enacting it in the modern era- when written- everyone knew who were the insurrectionists - they could easily identify them.
I don't think the writers of the amendment imagined a future in which someone would try it again
I would argue that section one informs, section 3. After all, who gets to determine if a person actually took part in an insurrection? Can the secretary of state in each state make that determination? Simply assign a crime to a person and deprive them of a liberty?
At the time the 14th amendment was written anyone in the South had to take the Ironclad Oath in order to be eligible to vote. So anyone who had served in the Confederate or State governments or the Confederate Army were disqualified. I think they did conceive that insurrection could happen again. That’s why the language didn’t mention Confederates.
Nobody is being deprived of liberty- this isn't a criminal issue - not being allowed to run for office doesn't send someone to jail. You are mixing issues as well as playing into Trump's false argument
Trump’s argument seems to be that he didn’t do it and even if he did this doesn’t apply because the President isn’t an officer and even if the President is an officer he has immunity. All of which is fallacious nonsense!
He is being disqualified based on a constitutional provision. This isn’t an easy one like age or citizenship. Those are pretty black and white. This disqualification argues that he is disqualified based on a committing a criminal act. Who determines that? How is it determined? I could see Texas or Louisiana saying that people who engaged in protests/riots that disrupted government proceedings were insurrectionists and the people who supported them and encouraged them are just as guilty so they can’t hold office. I sure don’t want to give that power to the Secretary of State here in Louisiana. The number of ways this could be and would be abused by the Trumpists in power in state governments is scary. Before someone can be disqualified for an act I’d like it to be very clear who gets to determine that disqualification and how the process works. I think that I fall in with the concerns that Justice Jackson seemed to approach and those raised by Chief Justice Roberts. What’s to keep the states from abusing this precedent in the worst ways. Though I am somewhat partial to the argument that each state should be able to choose who is on the ballot. I just wonder how long after that they find ways to pull Biden from the ballots in Texas, Louisiana, Arkansas, and Mississippi. Not that it really matters in the end because Biden ain’t gonna win those States any more than Trump would win in California or Massachusetts.
Fact check: the case was originally brought by Republicans.
So even though Democrats (and independents) might want Mr. Trump off the ballot it was Republicans who brought the case.
And removing a candidate from a ballot does not disenfranchise voters. They still have the right to vote. It could be argued that it disenfranchises the candidate, but hopefully only due to Constitutional requirements.
Kavanaugh and Roberts thought too little of the people and the federal and state Constitutions, methinks. Our democracy is quite generous, but it should be not so generous to allow insurrectionists on the ballot. Yes, I think the language of the 14th should be expanded to include all insurrectionists and not just oath takers.
Although I get your point on pragmatism. It has to be questioned how pragmatic it is to allow someone to run who will create chaos if they lose. It's one thing that you once allowed an adult to enter your house who made a mess. It's another thing to allow that adult to enter your house again when you have legal means to keep him out of your house. FWIW, the house is our Republic.
Thank you Mr Greene! I came to the comments to say something similar, but you have said it better than I would have.
A candidate not getting on the ballot or not allowed on the ballot is NOT disenfranchising voters- they still get to vote- just not for that person. Candidates are kept off ballots all the time such as when they don't gather enough valid signatures on petitions or if they lose in a primary election they don't get on the ballot in November.
But to the issue of "originalism" - it's a b.s made up doctrine just like the "independent state legislature theory" or "textualism" or the newest one, "historicism" - all doctrines INVENTED by conservative think tanks as legal cover for politically deciding cases.
That said, even as I abhor Trump, I too am skeptical of states doing this. Aside from playing word games as to who is an "officer" on trump's side of the argument, the insurrection clause was not well written.
Section 3 Disqualification from Holding Office
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.
It says no person who engaged in insurrection can run, but has no mechanism as to how to prevent that but has mechanism to lift the ban with the 2/3 vote. It seems to be written for that specific time. It would seem that if the writers expected future insurrections they would have included enforcement or activation text in the amendment.
“It’s good to hear conservatives on the court arguing in favor of democracy. They should try it more often. And if progressives would stick to defending democracy, that would be even better.” Amen and Hallelujah! I was fascinated by the arguments yesterday. I guess the thing that bothers me the most here about it all is that Mr. Trump has not been convicted of anything. Do I think him guilty of the charge of insurrection? Absolutely! Do I think that the 14th Amendment should disqualify him from office? Absolutely. But that’s not how justice works.
When explaining judicial process I always use Jack Ruby as an example. Did Ruby kill Oswald? Yep. On film in front of a camera surrounded by cops and reporters. There was no ambiguity about the fact that Ruby shot and killed Oswald. There still had to be either a confession of guilt and/or a trial before Ruby could be punished. Just because someone is obviously guilty of a crime that does not mean that they can be sentenced without due process. In Section 1 of the 14th Amendment we see “nor shall any State deprive any person of life, liberty, or property, without due process of law.” For section 3 to work you have to answer for section 1.
There is no requirement in the amendment that a person be convicted in court for the amendment to be effective- the vast majority of confederates barred from holding office were not convicted either. Insurrection isn't a run of the mill crime- it is essentially political.
The real problem with the amendment is there is no wording for enacting it in the modern era- when written- everyone knew who were the insurrectionists - they could easily identify them.
I don't think the writers of the amendment imagined a future in which someone would try it again
Well, we could compare ourselves to Brazil.
Brazil has had little if no trouble defining the events of January 8, 2023 as an insurrection and treating the participants appropriately.
The former President's approval is around 5%. His passport was revoked yesterday.
I would argue that section one informs, section 3. After all, who gets to determine if a person actually took part in an insurrection? Can the secretary of state in each state make that determination? Simply assign a crime to a person and deprive them of a liberty?
At the time the 14th amendment was written anyone in the South had to take the Ironclad Oath in order to be eligible to vote. So anyone who had served in the Confederate or State governments or the Confederate Army were disqualified. I think they did conceive that insurrection could happen again. That’s why the language didn’t mention Confederates.
Nobody is being deprived of liberty- this isn't a criminal issue - not being allowed to run for office doesn't send someone to jail. You are mixing issues as well as playing into Trump's false argument
Trump’s argument seems to be that he didn’t do it and even if he did this doesn’t apply because the President isn’t an officer and even if the President is an officer he has immunity. All of which is fallacious nonsense!
He is being disqualified based on a constitutional provision. This isn’t an easy one like age or citizenship. Those are pretty black and white. This disqualification argues that he is disqualified based on a committing a criminal act. Who determines that? How is it determined? I could see Texas or Louisiana saying that people who engaged in protests/riots that disrupted government proceedings were insurrectionists and the people who supported them and encouraged them are just as guilty so they can’t hold office. I sure don’t want to give that power to the Secretary of State here in Louisiana. The number of ways this could be and would be abused by the Trumpists in power in state governments is scary. Before someone can be disqualified for an act I’d like it to be very clear who gets to determine that disqualification and how the process works. I think that I fall in with the concerns that Justice Jackson seemed to approach and those raised by Chief Justice Roberts. What’s to keep the states from abusing this precedent in the worst ways. Though I am somewhat partial to the argument that each state should be able to choose who is on the ballot. I just wonder how long after that they find ways to pull Biden from the ballots in Texas, Louisiana, Arkansas, and Mississippi. Not that it really matters in the end because Biden ain’t gonna win those States any more than Trump would win in California or Massachusetts.