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A 126 page legal analysis of section 3 of amendment 14 of the constitution was released yesterday, arguing that Donald Trump, among others, is ineligible for public office, including the presidency. The authors are conservative, active in the Federalist society.
For reference, the relevant part of the constitution is
Among the arguments made were that it is legally self-executing—that is, it applies, like the 35 year old minimum age, without an explicit system to handle it to be set up by congress. Further, they think that people at almost every step along the process, from state officials deciding who goes on the ballots, to those capable of bringing an Amendment 25 complaint have a duty to ensure that this provision is fulfilled.
In reference to Trump, they argued that the events on and surrounding January 6th intending to overturn the election would constitute "insurrection or rebellion" as understood at the time of the passing of the amendment.
I can't see this not being important, but I'm not sure how exactly it'll play out—we could get court cases, possibly going up to the supreme court (no idea how that would play out). We may see state officials refuse to put Trump on the ballot. I expect this to lead to a substantial increase in support for Trump if this is seen as illegitimate, as it undoubtedly will be. At the same time, if this happens during the primary elections, and Trump is not even on the ballot in some states, it might make it significantly easier for another candidate to become the Republican nominee, unless the national Republican party interferes with it.
Note on the link: the pdf isn't opening for me right now and the wayback machine isn't helping. It was fine earlier, not sure what the issue is.
Why?
The 14th amendment was, after all, passed after the Civil War, a conventional war in which field armies were marshalled to fight against the uncontestedly lawfully elected government. (The Confederates did not deny that Lincoln won the election, which is why they cited other casus belli.) The contemporary acts of insurrection included federal garrisons being overrun, cities sacked, massive civil destruction the likes had never been seen in North America since maybe the fall of the Aztecs, and millions dead directly or indirectly. In the drafters' own lifetime, non-insurrectionary violence in the capital included beating Congressional representatives with canes and honor-duels.
January 6, by contrast, wasn't even in the top 5 violent acts of political violence within a year of it happening.
Why not?
Trying to frame January 6 as an insurrection or rebellion has been an attempted narrative line since January 6, 2021, with generally only partisan effectiveness. It has been approximately 945 days and American public polling has consistently held viewing this along partisan lines. What, besides the appeal to Federalist society credentialism, is supposed to make it more significantly more persuasive after day 950?
It doesn't need to persuade you, and it doesn't need to persuade the voting public. It needs to persuade John Roberts, Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas.
The Federalist Society credentialism is probably pretty significant in that regard.
Again, why?
I hate to consensus build, but this seems a pretty transparent 'the definition means what I want it to mean at the time, not consistently applied,' and the argument that the conclusion is self-enacting is just assuming the conclusion in a way that would drastically expand the power of the executive branch vis-a-vis the other branches by creating a precedent that the people who would make the determination can invoke magic words to make the appropriate un-appealable conclusion.
I see no reason why the members you cite would suddenly be onboard with a very expansive and novel interpretation of the executive branch's authority to arbitarily ban opposition politicians for conduct less severe than members of the ruling party that remain in good standing.
To be clear, they do think most of the actions done on account of their theory should be able to be appealed.
How is the argument that it's self-executing assuming the conclusion? They argue that the text supports that, especially in comparison with other texts, like the age requirements, I believe. Do you have a problem with any part of the constitution being self-enacting?
Because the self-executing argument assumes that Trump meets the criteria for the sanctions to be leveraged against him without Trump having been charged through the processes that would bestow that criteria.
Moreover, the opening argument claimed legal validity and influence by appealing to claimed influence of originalist principles, without actually validating that the claims mast originalist muster or that that the events of Jan 6 would be considered a rebellion by the standards of the original authors of the amendment.
You have consistently retreated from these points when challenged, and you will continue to do so, and they will remain points that undermine the thesis. The claim that this interpretation is based on actual as opposed to self-claimed originalist principles has not been supported, and the amendment does not negate the need for the government to establish guilt before moving against people on the basis of guilt.
Then you believe wrong. The text of the Constitution does not support that Donald Trump is guilty of insurrection or rebellion without trial by appropriate institutions. This is trivially verifiable via any CTRL-F search of the text, as there is no mention of Donald Trump and thus no Donald Trump exception.
Have you stopped beating your wife yet? Probably not, if you never started, but it would remain as invalid a question when the premise itself has been challenged.
The Constitution not being self-enacting in this legal argument, the claimed justification is being executed by the Executive branch because the Judiciary has not taken the case and the argument is that the Legislative branch does not need to.
The American Constitution sets out rules by which the branches of government act through their various powers. The advocates are ignoring the Constitution's own outlined procedures for establishing guilt on the pretext of self-enacting, and ignorring Constitutional principles on presumption of innocence and separation of powers to argue that the agencies of government controlled by the ruling party can ban political opponents from running on their say-so without going through said processes on the basis of implied repeal.
As such, there's no reason to believe the argument that the de-listing / banning / whatever measure is presumed to occur would be self-enacting, as opposed to being enacting by partisans with no sincere belief in the theory and no intention to uphold it as a standard, at which point it's non-enaction outside of the context of Donald Trump (not having been done before, or against contemporarier,s or with any credibility of consistency in the future) would demonstrate that it is not, in fact, self-enacting Constitutional action, but the actions of a branch of government.
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Because they are heavily involved in the conservative legal movement, so ideas that gain traction within the conservative legal movement are likely to have traction with them. If this argument was coming from a fringe Marxist or something, I would expect it to carry much less weight among the Republican lawyers that make up the majority of the court. But it's coming from Republican lawyers, written from an explicitly Originalist perspective.
This has nothing to do with executive branch authority. Their argument is that the disqualification is automatic, with no executive act to make it happen.
They are in academia. This is within that community very useful for them because then they can be seen (at least in their minds) as the “good ones.” That doesn’t imply most conservatives will give this the light of day.
And? It's not "most conservatives" who will decide this issue. It's elite Republican lawyers.
Your evidence is a couple of law professors prove that “elite Republican lawyers” support this position? It is a crack pot theory because it proves too much. We could disqualify most people in two of the branches. You should do what most people do with legal academics — disregard what they have to say.
I am not claiming that this one article proves that the Republican justices on the Supreme Court will see the issue the same way. We will have to wait and see. My point is that the specific people that need to be convinced by this argument for it to apply are people very much like the authors and very unlike the average Republican voter.
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But we don't have evidence that the ideas have gained traction within the conservative legal movement.
This is assuming the conclusion by backwards reasoning that because the two members are Federalist Society affiliated, both the reasoning is conservative in nature and shared broadly amongst conservatives.
That is what is what is being challenged!
The Originalist perspective would be, of course, the viewpoints on what rebellion meant to the people whose framework of rebellion was the civil war. Hence asking for by what standard the January 6 is being held as rebellion, but which other actions in that year did not. If the original framers wouldn't recognize something of the scale of January 6 as a rebellion, then the originalist interpretation works against the claim that it's an originalist interpreation of the amendment. If the legal argument is that they were all insurrection, but this legal standard has not, is not, and will not, be enforced consistently, it's not an Originalist perspective, it's an argument for arbitrary political interference on grounds of special pleading, which is not an Originalist principle, as one of the points of the original writers of the Constitution was to prevent arbitrary use of government power against citizens.
Moreover, the amendment isn't the only Originalist perspective relevant to the subject, since the implications to division of powers of course broach on the other parts of the Constitution, and those originalist perspectives, for what self-executing would imply when functionally meaning giving the ruling party to ban opposition party members doing what potentially election-winning pluralities of the American public view as legitimate democratic processes.
And this argument is nonsensical, because nothing in the government happens automatically, but is executed and enforced through the Executive branch.
As the saying goes, organizations don't make decisions, people in organizations make decisions, and the people who would decide to execute- and then enforce- this policy proposal are the executive branch.
We have Bayesian evidence. Two Fed Society authors have published a paper arguing for the position, and a Republican-appointed judge has already removed a low-ranking official from office under section 3 for his involvement in Jan 6.
These things do not prove that this is a mainstream position among conservative legal thinkers. But they are much more likely to happen in a world where it is.
Correct. The paper spends a considerable amount of time talking about what the original meaning of "insurrection" and "rebellion" was, to the people of that time. You don't have to agree with the authors' conclusions, but they explicitly deal with that question as the central one.
I really want to delve into the detail of these arguments more and see if I agree with them but unfortunately I can't get the paper to open at the moment, and I didn't get through the whole thing on first read.
I believe their argument is that later amendments to the Constitution override earlier versions (otherwise amendments would not be possible). So to whatever extent Section 3 is in conflict with earlier Constitution provisions, Section 3 prevails.
Nope. You can look at the New Mexico case for example - state law allowed private citizens to sue to remove disqualified officials from office, a group did so, and a judge decided to remove him. No executive action involved.
Which is to say you do not have evidence, hence why you are inferring to assume there is rather than demonstrating there is.
And as has been noted elsewhere, that case did not rise, and came with very different political contexts.
They are also very easy to happen in a world where Trump Derangement Syndrome driving novel legal theories is a thing, and we actually are in that world.
Then you should be able to answer the question regarding the standard, and its consistency as a standard.
But this isn't an argument that Section 3 is in conflict with other provisions of the Constitution. This is an argument that execution of section 3 by the executive over the conduct of elections prevails over other elements of the constitution, which obviously does not hold to any limit because otherwise any executive could claim that any action in support of a later constitutional amendment is inherently constitutional if it conflicts with others.
There is not, in fact, an unlimited blank check to the American executive drawn just by claiming a more recent ammendment. Where Section 3 does not require overruling other parts of the Constitution, it doesn't. The arguments to date do not indicate that Section 3 requires doing so, on that Section 3 would have to do so to permit the interpretation, which is the sort of backwards reasoning previously noted.
And yet, yup. This isn't state law- this is Federal-level. Moreover, this isn't something the judiciary has made a conclusion on (i.e. that Trump has engaged in Rebellion), and the legal theory is to explicitly leave the Legislature out of it, and thus the only branch of government to make the conclusion and enact and enforce it is the Executive.
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They go into the cotemporary legal definitions, and note that there were smaller scale insurrections that were considered insurrections.
Their main argument was that the January 6 mob was an attempt to use at least the show and threat of force in opposition to the constitutional order, and maybe, but more dubiously, that the assorted plans, second sets of electors, etc. could be considered rebellion even without force.
But yeah, it's no civil war.
What makes this newsworthy to me isn't so much that people are arguing that January 6th was an insurrection, for the reasons you say, but the fact that actions could be taken because of that that could have a substantial effect on the upcoming election.
Insurrections smaller than January 6, but which other events in contemporary American politics haven't surpassed? Which?
But the argument made was that this is an interpretation should qualify as a rebellion to the perspectives of the people who drafted the amendment- but the amendment was drafted by people whose concept of Rebellion was intrinsically one of mass, organized force on the scale of war.
So again- why should anyone believe the Amendment drafter's views of Rebellion were such that Jan 6 qualified?
Which actions can be taken because of this that couldn't have been taken already?
This is not a position claiming a consensus of Federal Society legalists, or concurrence by government lawyers, or a position made by anyone else in the last several years of lawfare. It's novel, not authoritative.
Sorry, by contemporary I meant to the time, not to today, if that wasn't clear.
I can't go into details because I can't get the pdf to open, but I believe they referenced assorted earlier cases that were smaller than the civil war (the one I remember was the Whiskey rebellion, but they referenced a bunch more). I don't know the details, but I wouldn't be surprised to learn that even those were larger than the Trump events.
Sure, it's novel and not authoritative, but it being more mainstream could make an impact, since all that it needs to do so is convince a few officials. If no one else, I could see state officials in democratic states not listing Trump, and that could make a big difference in the primaries if it doesn't get to the supreme court before then.
It was clear, and I am still awaiting a standard that distinguishes January 6 as a rebellion but which does not also catch many more non-contested politicians to the point that it's not an arbitrary special pleading.
Then the comparisons are not validating the necessary claims that the events of January 6 are a rebellion from an Originalist perspective. If January 6 is not a rebellion from an Originalist perspective, then banning Trump from running would not be an argument based on Originalism, but something else trying to claim the mantle of originalism to disguise smuggled assumptions. It's still assuming the conclusion that Trump conducted rebellion, and then arguing that the assumption warrants ignorring the sort of due process that is set out for actually establishing the conclusion.
But there's nothing here indicating it's any sort of mainstream. Again, no claim has been made this reflects a common or shared viewpoint of the Originalist legal establishment, let alone the non-Federalist legal schools of thought, let alone the opposition party that has been deriding the Federalists for years.
For something to be mainstream, it needs to be, well, not novel and actually be authoritative.
What, besides political cover of preferred justifications, makes you think Democratic states would de-list Trump based on this, and but would not de-list Trump on grounds that Trump has been indited and impeached multiple times?
I can't respond to the first half until I'm able to access the pdf again, since that's still not working, last I checked.
But to the ending, they might be persuaded that this could present at least the possibility that it might be the correct and legal thing to do—there's no way the indictments would disqualify, and the impeachments weren't agreed to by the margin required in the Senate.
Given that the nature of political violence in the last half decade has been quite considerable with more than a few cases with far more violence and damage than conducted on January 6, you absolutely can respond as to what sort of standard might meaningfully identifies January 6 as a rebellion and other acts of violence in and around the capital and country in the years prior as not.
It certainly wasn't the timing that would make it a rebellion, as there is no requirement nor does proximity automatically qualify. It wasn't the death count. It wasn't the property damage. It wasn't the degree of organization. It wasn't the amount of backing from political elites. It wasn't the proximity to Congress persons.
Neither would trying to delist the opposition candidate on charges he has never been convicted of, and yet here you are taking it seriously.
So I ask- why on earth should anyone believe a Democratic politician was sincerely persuaded of the correct and legal nature of an unprecedented attempt at political attack against an opposition party candidate... by an opinion piece of non-authoritative lawyers associated with an organization the Democratic party has regularly identified itself in ideological opposition to?
Does this hypothetical Democrat find all of the Federalist Society writings convincing, or just this pair of writers? Or just this article? Do they plan to apply this standard consistently even if it means coming to odds with their own party, or is this new novel legal theory they sincerely believe in only going to be used to the broad approval of their caucus before being put away?
I'm not making any assertion that other acts of violence wouldn't qualify (again, assuming the authors are right on all this).
Nor am I claiming that it wouldn't be politically motivated, or inconsistently applied.
The difference is that now they can claim to be doing it because of law, and it will have to go through courts instead of being shot down right away.
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