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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.
I don’t see how this could be “self executed” as in not requiring a process to apply it, simply because the earlier amendments require things like trials and forbid self incrimination. In short you’d have to convict Trump of these particular crimes before he’s actually disqualified. I can say Biden is giving aid and comfort to China, but my say so doesn’t mean anything unless I can show that he helped China in some way that actually harmed the USA. Anything else violates the spirit of the laws requiring trials, and runs dangerously close to giving the majority party cart Blanche to simply refuse to put opponents on the ballot on the pretext of some supposed high crime or misdemeanor or aid and comfort.
I can’t imagine that Trump or his supporters aren’t going to fight pretty hard against anyone refusing to put Trump on the ballot. It’s definitely against the spirit of free elections to refuse to put a declared candidate who meets the qualifications in state law on the ballot. In most states, having signatures of a fairly small percentage of the voters by law qualifies a candidate for the official ballot. Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.
They argue that if it conflicts with other portions of the constitution, it satisfies or supersedes them. I think they still think there are processes for dealing with these things and challenging actions of this sort, it just doesn't have to start with a conviction.
Certainly, as they should.
Sure. But it might be what the constitution requires, if they authors are right on this. Keep in mind also that the constitution is "the supreme law of the land."
This is another basis for disqualification from office.
While there is certainly the idea that the later in time controls, there is also the idea that repeals by implication are frowned upon (and certainly that is more true in the constitutional space compared to statutory). There needs to be a very heavy hurdle to claiming here that later in time controls over repeal by implication. The authors aren’t serious.
They, generally speaking, don't think it repeals them, because it's not imposing any criminal penalties, just a qualification for office, and isn't a law, but a constitutional provision.
That said, if we ignored that, we can all agree that it applied ex post facto, that is, to the members of the Confederate cause, so at least in that respect it can conflict with the spirit of other parts of the constitution. The enacters at the time also thought it would be equivalent to a bill of attainder.
But unless you establish that the person isn’t qualified, then it all becomes a game of simply declaring it and daring the other person to in essence prove you wrong. I can claim (as some on the right have) that Joe Biden has dementia and is thus unqualified. Except that without a medical diagnosis— in other words proof that the man has dementia — he’s still perfectly qualified. And absent two facts: that January 6 met the legal definition of insurrection (not what the media says, not what you and I believe, but the legal definition of insurrection), and secondly a conviction of one Donald J. Trump of instigating and materially aiding the insurrection in the first part. In other words, establish as per the rule of law and the American court system that there was an insurrection and that Trump actively and knowingly participated in it.
In the case of the civil war, they weren’t disqualifying random people on the basis of vague accusations. They either fought in a legitimate confederate army unit, or served in the confederate government, both of which were easily proven by the records of the CSA and the CSA army.
I don’t have a problem with that law as written. It’s a fine law, and I don’t want people who try to overthrow the government to later serve in that government. However, it is not and cannot be a simple matter of “somebody’s making a claim that this candidate is unqualified, therefore he can be summarily deprived of his rights to stand for election.” If that’s the standard, then nobody can say for certain they’re qualified until their political opponents weigh in on the issue in the form of deciding that this person is okay.
To be clear, the authors are not stating that state officials can just summarily decide. They're rather saying they can make initial determinations, which can be followed by judicial review as needed. (Although it looks like that's muddied a bit, since they think the proper procedure might vary state by state??)
Laws on who can be on the ballot do vary by state, especially for third parties. They have to have a given amount of support, and I think in some cases you can’t be a felon.
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