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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.
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.
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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