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PaperclipPerfector  5mo ago (text post)   26703 thread views

Culture War Roundup for the week of December 11, 2023

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it would eventually have to also make a finding on the free speech issue

Baude's original law review article advocating disqualifying Trump points out the 14th amendment is also part of the Constitution, so the 1st amendment doesn't automatically apply the way it would to a normal criminal law. Under the normal rules for resolving conflicts between two laws of equal authority, the 14th overrules the 1st, both as the more specific provision and as the after-enacted provision.

So it is entirely possible that Trump is disqualified for inciting an insurrection, but is still protected by the 1st amendment from criminal prosecution for inciting a riot.

I’m sorry but this is just absolute horse shit.

First, it is true that generally speaking later in time or the specific controls BUT great pains are taken to read the rules as not conflicting where possible.

Second, constitutional law is a different matter from statutory law. The constitution is small. The USC is massive. It is likely that in the latter there will be truly irreconcilable differences. But the idea that in a relatively small legal document the latter in time drafters would silently abrogate literally the seminal amendment in American constitutional history is laughable.

So no, we need to read the 1st and the 14th in unison; not to create conflict. That is, if speech isn’t strong to be criminal it sure isn’t an insurrection (especially since the latter is graver compared to most speech crimes).

Baude beclowned himself. Funny enough he is also losing on the officer argument. Baude is now a laughing stock.

There is nothing in the Fourteenth Amendment that repeals or overrules the First Amendment. It's not in conflict with it; as Trump's lawyers point out, the provisions may be easily reconciled with the ruling that IF something is protected speech under the First Amendment, it does not constitute "insurrection or rebellion" nor "aid or comfort to the enemies [of the US]". Since that provision is not attempting to expand the definition of those things but rather to provide a disqualification as a result of them, this is the natural way to read it. That the Fourteenth Amendment is implicitly limiting the First is an extreme reach.

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