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Notes -
Trump case out on him being an insurrectionists.
https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
Compared to the Reddit debates and how the SC would prevent this as a non-lawyer I thought the opinion was fairly basic and simple. It seems to me that they just declared it a Feds power in Federal elections and the States don’t get a say. Personally, I did come to a belief that it was self-executing.
I think they avoided really touching on all the novel legal theories both ways going around on Reddit or twitter.
It came down to what I believe was one of my original views that letting States have any say in declaring someone an insurrectionists would be a complete clusterfuck and basically turn into state legislatures electing Presidents. Therefore they declared it a federal power.
I would call this pragmatic versus legally correct in my opinion. They avoided 100 page treatise on whether the President is an office holder.
I predicted something between 7-2 and 9-0. 9-0 seems better for the nation.
What's not legally-correct about it?
Honestly reading thru comments it sort of feels to me that the 14th was never a valid law.
It reads to me like it’s self executing. But self-executing doesn’t work for anything we view as a valid law.
If a poll worker saw a Trump ballot and it’s self executing I don’t have a valid argument for why they can’t just throw the ballots out.
But a different poll worker would view those as valid votes. Both can’t be true at the same time.
With everyone and no one having authority it see like an unlaw to me.
I think the issue is that at the time, basically everyone knew who rebelled. They really weren't thinking about future insurrections.
Basically agree.
In 1870 what counted as insurrection was much more like are you 35 years old with a very defined meaning. In 1870 it meant were you a member of the confederate army.
Which I would tend to think the SC basically just deleted this part of the 14th amendment as no longer existing as we no longer have any confederate soldiers still alive.
Consider that a lot of former confederates actually served in the American government. Lots of them were elected to the Senate. Look to this example, for Republicans objecting over the appointment of a Democrat to a leadership position, not for his prior Confederate status, but over procedural irregularities:
https://www.senate.gov/about/officers-staff/secretary-of-the-senate/confederate-general-becomes-secretary-of-the-senate.htm
To be disqualified by the Fourteenth Amendment, you had to be holding office, or to have resigned from an office with the term still unexpired, at the time you committed insurrection.
It just says "having previously taken an oath" - shouldn't that apply to former office-holders as well, even if their term(s) ended before the insurrection?
(still doesn't seem like it should have applied to Cox, who was neither a present nor former office-holder before the Civil War)
It appears there was some discussion of that, and an amendment to make it explicit that it did not was defeated, but it's not clear how it was actually enforced.
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That's more because 1881 and 1893 were both after 1872, and Cox had neither been elected (though he came close!) nor was a sworn officer to the United States before the Civil War began.
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Yes. As a practical matter we can't just accept "self executing". That means a state attorney general could strike Trump or Biden from the ballot, announce that they gave aid or comfort to our enemies and say the 14th Ammendment self executes their removal.
There'd be spiteful retaliation with red and purple-red states kicking Biden off of ballots. Not to be too dramatic, but this 9-0 ruling was to hold the Repulic together and avoid the obviously disastrous alternative.
The thing about this argument that gets me is... states absolutely can do this without going through the charade of invoking the 14th amendment. Elections are not constitutionally required, a state could choose to give it's electoral votes to whoever the Governor chooses, or whatever other method they want.
It seems weird to me that a state has the power to block their electors from going to a candidate because they don't like his face, but not because he's an insurrectionist.
Emphasis mine.
State LEGISLATURES can choose to give their electoral votes to whoever the Governor chooses. That does not mean that state COURTS get to strike candidates from the ballot for arbitrary reasons.
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States have the power to decide how their electors are allocated, but they don't have the powee to determine who is elligible for federal office. It's not that haphazard. It hardly ranks among other contradictions caused by court rulings on the Constitution, or even on just the 14th amendment.
Besides, the idea that the states are independent sovereigns convening their federal government by an electoral college is by now a polite fiction, especially as the 14th amendment has made the states subordinate to that federal government.
The 14th has made the states subordinate to the Bill of Rights, but I wouldn't say that's the biggest step in state subordination. It was several decades earlier when the Supremacy Clause made states subordinate to the federal government in matters covered by the Constitution's short allowlist, and it wasn't until several decades later that cases like Wickard v. Filburn expanded federal powers from "short allowlist" to "do anything you feel like".
I would argue that the Supremacy Clause made state laws subordinate, but it didn't make the state governments themselves subordinate. At some level they were still treated at sovereign entities, bound together as a Constitutional Union. The laws of the Union necessarily superceded the laws of its member states, but the Union was created by those member states. After the Civil War the federal government really became an entity unto itself, with legitimacy explicitly beyond and above that of the states (deriving ultimately from "the people"). The 14th then re-codified this understanding (through, among other principles, incorporation) such that the state governments effectively exist in forms dictated by the federal government.
I think it's a minor irony of the Civil War: The North declared that the Southern States could not secede from the Union, and then, immediately after the war, amended the constitution such that secession becomes conceptually impossible. I suppose my argument here is non-obvious and not widespread, but I would suggest: the 14th amendment, by altering the relationship of the federal government to the states, contains an implicit recognition that the states had hitherto not been bound by the Constitution, and thus probably had the right to secede.
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Well I am taking it farther as self-executing seems bonkers to me but the Amendment feels as though that’s how it’s written.
I don’t even think it would be limited to States Attorney Generals getting the power to decide the matter. If it’s self-executing the Mayor of Houston or even a poll worker could just throw out a politician they don’t likes ballot.
I think you're misunderstanding the terms here. Self-executing, in this context, means merely that congressional action isn't required. For example, the 16th Amendment gives the Federal government the power to levy an income tax, but requires a tax code to actually implement it. By contrast, the amendment limiting the president to two terms isn't reliant on a congressional determination. No one is arguing that the 14th Amendment's Equal Protection Clause requires Congress to delineate what equal protection specifically means to be valid. There's certainly civil rights legislation, but none of it is enabling legislation for rights already held. Since this is a 14th Amendment case, it's illogical to assume that a congressional determination would be needed for disqualification. The concurrence doesn't argue for a specific mechanism (as that would directly undercut their criticism of the majority), but one could presumably rely on a judicial determination.
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I think it's a bad idea to set the precedent for "Huh, looks like your guy is pretty popular. Might even win if we let him run here. So we're not going to let him run. Because, uh, he's evil. Yeah, that's why" no matter what party Your Guy or Our Guy is from. Once you start going 'we can decide not to let people run in an election because we don't want them to win' then that applies to Our Guy when the other lot get back into power, and the other lot will get back into power eventually.
Democracy means giving everybody, even Adolphus J. Hischler III, the right to run a campaign to be elected. Maybe Adolphus can't even get three votes, but you do not get to say he can't run because you don't like his face.
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