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Notes -
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?
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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