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PaperclipPerfector  1yr ago (text post)   29929 thread views

Culture War Roundup for the week of August 7, 2023

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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."

In practice the Constitution is what the Robed 9 say it is. Three of them were appointed by Trump, and three more aren't going to buy this one either. Not even John Roberts. That a person can be disqualified from the office of President because their political opponents can get one judge, with no trial, to say that person committed rebellion is not going to fly. Hey, I know -- instead of impeaching Joe Biden over Hunter, the Republicans can find a judge to declare the Iran deal to be giving aid and comfort to the enemies of the United States, and bam he's out of office. Of course Democrats know Republicans are unwilling to try brazenly corrupt maneuvers like that, which is why the Democrats don't worry about the shoe is being on the other foot, but it's at least as supportable as any case against Trump.

Without a conviction, and one that’s specifically mentioned in the constitution as disqualification for office, they’d have a very strong case.

This is another basis for disqualification from office.

It is not. The Supreme Court has ruled in past cases that states may not add qualifications for the offices of President and Vice President. And the Constitution does not state that those convicted of crimes (state or Federal) may not stand for those offices.

Fair point about the first half, although I'm somewhat less confident on what the supreme court's takes would be—I think several, at least, like to consider themselves impartial, so won't do things merely out of a sense of personal loyalty.

As to the second, I don't see how that's the case? Isn't this clearly a case of the constitution disqualifying people? You can argue that it doesn't apply to the current case, or that it requires more than what the authors say, but you can't just say that the Constitution doesn't impose ineligibility for committing those acts after swearing an oath.

This would be a clear case of a person convicted of aiding an enemy or being involved in insurrection. Two problems being that: no legal ruling has declared 1/6 an insurrection, and Trump has not been tried or convicted of insurrection. Which are both clearly required. Our legal system is based on the presumption of innocence, meaning that the government must first prove a crime took place, and secondly that the accused actually did said crime. I cannot accuse someone of murder unless I can show pretty conclusively that the person I’m accusing you of killing is actually dead, and that the best explanation of the evidence is that you did it. Even then, I’d have to get a jury conviction. I can’t just blanket claim that the crime you committed requires 5 years in jail, that the law is “self-executed” and haul you away.

I don't see that they're clearly required. When determining eligibility, the government doesn't have to consider due process - it doesn't have to prove anything beyond a reasonable doubt. And due process is to do with rights. There's no right to run for president.

Assertion without evidence. Why isn’t there a right to run for president? Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.

Why isn’t there a right to run for president?

If there is one, it's a right that is routinely denied to those 34 and below. I don't see any reason why it couldn't be similarly denied to insurrectionists.

Moreover, it seems like doing constitutionally protected “things” (eg advancing legal theories or speech) cannot count as something that is disqualifying.

A relevant part of the paper (pages 93-94) addresses this point with historical evidence:

The House addressed the John Y. Brown case first. “This election case,” Hinds’ reports, was “the first of its kind since the formation of the Constitution, and recognized by the House as of the highest importance.”338 It also involved an incident of pure speech as disqualifying a member-elect from office: John Y. Brown had explicitly embraced and advocated violent resistance to the Union in Kentucky. Indeed, he had gone so far as to urge the shooting of any man who volunteered for service in Union forces. Brown’s disqualifying conduct consisted solely of such acts of speech.

In this particular case Brown was rejected by the House Committee on Elections, but not under section 3 (as it would not come into force until the following year). Nonetheless, it clearly shows that those who wrote and adopted the 14th amendment understood it to be possible and acceptable to disqualify a person from elected office purely on the basis of speech.

It has since been decided (in Powell v McCormack) that the House may not refuse to seat a member who meets the constitutional eligibility requirements, so the Brown precedent is no longer valid.

The point is not whether the specific legal pathway taken in the Brown case is valid. As I said, it occurred before the passage of the 14th Amendment. We are discussing a new Constitutional requirement that was created shortly after that case.

The point is that the Brown case helps elucidate how the people who created section 3 wanted it to be used. Brown was the type of person they wanted to keep out of Congress, and the fact that he only engaged in speech did not change the fact that they wanted him barred. So it seems a stretch to argue that section 3 cannot bar people from office solely on the basis of speech. The first amendment does not stand above the fourteenth.

The first amendment does not stand above the fourteenth.

As others have noted, the courts are generally dubious of implied repeal, and more so with constitutional law. "Insurrection", "rebellion", and "giving aid and comfort to the enemy" are all phrases with meaning pre-dating the Fourteenth Amendment, and which did not include speech (with some narrow exceptions, such as taking an oath to an enemy). There is therefore no reason to believe their inclusion in the Fourteenth Amendment made speech acts subject to penalty. The two Amendments may be taken together without contradiction.

Brown was about the House's ability to choose it's own members, which would not be subject to the First Amendment. The later Powell case said they could not refuse to seat for arbitrary reasons, but was pointedly silent on whether the House could expel for them. None of which has any bearing on eligibility for the Presidency.

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