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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?
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.
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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