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zataomm  5mo ago (text post)   5407 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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By saying that Salmon Chase sucked. Griffin's case was not only wrongly decided, I don't even think it was a sincere attempt to apply the law correctly.

In Griffin's case, Chase said that section 3 was not self-executing. But the year before, in Jefferson Davis' treason trial, he said that section 3 prohibited further punishment of confederates beyond disqualification. I think both of these positions are wrong, but more importantly, they flatly contradict each other.

It's also very clear why Chase would have been motivated to make logically inconsistent rulings that both happened to decide issues in favour of former confederates. He was a politician, he wanted to be President, and he wanted the Democratic nomination. Admittedly he had already missed out on the 1868 nomination by the time Griffin's case rolled around, but I don't see any reason to think he had given up on his ambitions.

Sure, you can just throw out precedent as insincere but well once you go down that road a lot of things start looking insincere.

First, there is ambiguity whether in the Davis case Chase ruled in the manner you describe. There is at best hearsay that Chase thought the amendment self executing in the context of Davis and that was never settled (eg there was never an opinion).

Second, it again ignores the distinction (that we see often in US law) between laws that restrict government action (ie providing more freedom to the citizens) and laws that restrict citizen action (ie laws that restrict freedom). We generally give more latitude to the first and less to the former because we generally think government inaction shouldn’t deny properly bestowed rights while at the same time believing that unclear rules shouldn’t prohibit someone from exercising rights they may have. That is, in Davis the 14th amendment could arguably be viewed as a right protecting people whereas in Griffin it is stripping people of the right and therefore it could be self executing in one and not the other.

This provides a legal harmonization of the potential conflict between the two different cases. That is the better approach compared to just saying “Chase is full of shit.” Now it doesn’t mean Chase is right. But given that it is the to my knowledge only relevant near in time case on topic it seems like we should give it a lot of weight.

That seems about the same tack that Bellows took, if a bit better thought out. The analysis in the decision is just:

On this point, I find Griffin's Case 11 F. Cas. 7 (CCCD Va 1869) to be unpersuasive. It is not binding in Maine, does not assess whether states can enforce Section Three without Congressional authorization, and has been discredited. See, eg Anderson, 2023 CO 63, 103; Amicus Br. of Constituional Law Professor Mark A Graber 7-8 (Dec 14, 2023).

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