As the Colorado Supreme Court wrote, January 6 meets the bar for insurrection “under any viable definition” of the term. The legal scholar Mark Graber, who has closely studied the Fourteenth Amendment’s history, argues that “insurrection” should be understood broadly—an act of organized resistance to government authority motivated by a “public purpose.” That certainly describes the Capitol riot, in which a violent mob attacked law enforcement and threatened members of Congress and the vice president in order to block the rightful counting of the electoral vote and illegally secure the victory of the losing candidate. The historical record also suggests that the amendment’s requirement that a prospective officeholder must have “engaged in insurrection” should also be understood broadly—meaning that Trump’s speech on the Ellipse that morning and his encouragement of the rioters while they smashed their way through the Capitol more than fit the bill.
As a matter of technicality, you are both legally and historically illiterate. Based on this argument a trial court would have to rule on whether every single presidential candidate was over the age of 35, and a natural born citizen in order to qualify for office. That is OBVIOUSLY not the case as those provisions are self-executing. It is also obvious that based on the plain language of the constitution that the 14th Ammendment is self-executing as well. It is another LEGALLY STIPULATED PRECONDITION OF ELIGIBILITY FOR OFFICE.
However, many members of the current Supreme Court have made it clear that they consider both law and precedent to be entirely permeable, despite their strongly worded assertions to the contrary. So because of that, I also expect them to put forth some novel legal theory as to why they must go against their own publicly stated legal philosophies to allow Trump to stay on the ballot, history and precedent be damned.
This is an extremely critical part of the constitution. Venezuela disentegrated into shit precisely because they did not have this requirement. Hugo Chavez led a failed coup in 1992. And then was allowed to run for president in 1998 despite his clear disloyalty to democracy. After becoming president, he turned a long stable democracy into total shit and it remains so today.
How did you come with that? No part of the 14th Amendment has EVER been “self executing”. There’s been an almost uncountable number of court cases involving the 14th Amendment, including many of the most famous ones. I see no reason why Section 3 is somehow different than any of the others.
In the most famous use of Section 3 there WAS a conviction on a charges of espionage before a sanction was applied.
The argument you are making is currently popular, because fuck Trump, but there is no historical basis for it and at least one example against it.
First, this example was an adjudication of the facts regarding FITNESS, and not based on his CONVICTION under the Espionage Act. He was disqualified in almost entirely the same way that Donald Trump was disqualified in Colorado. His appointment was challenged by average citizens.
Second, by self-executing the meaning of this is not necessarily that by magic or preturnatural means that Donald Trump’s name will no longer appear on the ballot. There may still be other legal process in each state to remove him, which is what we have seen. That does not, however, require CONVICTION for insurrection or espionage (as in your example), which is what the legal argument means by self-executing.
In the link below you can read the background regarding the very first case that was decided under the Section 3 of the 14th Ammendment, and how that decision was at best from a judge with an ulterior motive or compromised judgement where he knew he was not acting in the spirit or intention of the law. Every single piece of contemporaneous discussions about this Ammendment shows that it was well understood to be self-executing in the sense that it did not require prior conviction. No amount of revisionist history, or attempts to smuggle in doubt will change that.
https://www.dorfonlaw.org/2023/08/what-it-means-to-say-that-section-3-of.html?m=1
I suggest that you read up on it a little more. That article 3 is self-executing is not a controversial or extreme opinion and is well within the mainstream of legal scholarship. The SCOTUS may rule that it isn’t, but that’s going to be a tough nut to crack for its three conservative originalists since at its inception article 3 was clearly used to bar all former Confederate officers from holding federal office without the necessity of a trial and conviction.
I just want to add, sincerely, thank you for (mostly —your first sentence was entirely unnecessary) engaging with this in a serious and respectful manner. The other replies I received are the sort I might have expected on Reddit, but I’ve usually come to expect better on here (tankies defending Putin excluded). Just low effort, bad faith nonsense that either through deliberate malice or sheer stupidity, refuse to engage with the actual arguments I was making.
Yours was much better than that, so thank you.
Umm, no? It might have to rule if someone under 35 got themselves nominated and was about to be put on the ballots, but even that would probably not be necessary because someone’s age—assuming there isn’t a debate around what their birthday is—would be a notorious fact.
It wouldn’t need to go to a trial court because there are no facts under dispute.
You don’t need to get me started on the Supreme Court. America’s court system has been fundamentally broken for decades. They have a long history of legislating from the bench and making rulings that—whether you agree with them morally or not—obviously do not follow from the text of the law they claim to interpret. All the 2nd amendment interpretations are probably the worst in terms of actual impact. This not helped by America’s uniquely inept legislature, with both the worst election system in the democratic world, and the least-functional procedures for operating once people have been elected, which has made it so easy for the SCOTUS to get away with so much legislation. (And SCOTUS has, in turn, provided the legislature with excuses for not legislating things that should be legislated—like abortion rights.)
I don’t think it’s obvious at all. It’s not an unreasonable argument to make, and if you go back to my original comment you’ll see that I specifically made allowance for the historical precedent of it being used in this way. Indeed, as far as what outcome would have the best impact on your country, I think this would be great. Anything to keep Trump away from a second presidency.
My point was that it’s very much not obvious, and that coming down on the side of not having politicians decide—rather than a jury, or a bench trial—seems more in keeping with the principle of rule of law.
This is clearly not the case. Donald Trump himself has disputed the natural born citizenship of Barack Obama, and he has done it for almost a decade. You are making an assumption, and taking for granted that someone’s natural born citizenship or age is plainly obvious. The rule of law is only as valid as the system of jurisprudence that backs it up, and only remains broadly applicable as long as it is backed by the consent of the governed.
Therefore, the delegitimization of the judicial system and erosion of the law through slippery interpretations of the constitution that are in no way ambiguous either in language or spirit is the HALLMARK of conservative legal strategy. Conservatism is based on the fundamental principal that there are groups that the law protects but does not bind, and binds but does not protect. You are feeding into this dangerous ideology by suggesting these legal definitions are ambiguous, or that we do not have contemporaneous interpretation from the people who wrote & debated them.
I don’t hate you for it, but I don’t respect it either. You may not like my assertion that you are legally & historically illiterate. I can understand that, and I don’t blame you for that either. Sometimes the truth hurts, but that doesn’t mean you should insulate yourself from it. The honest, mature thing to do is to approach criticism from an objective, dispassionate position.
My criticism is that you are not willing to follow your arguments to their logical conclusions, and are engaging in reinforcing the dangerous practice of smuggling in ambiguity via “whataboutism” arguments that really only serve to strengthen the psychopathic modern crypto-fascist movement that is being lead by ivy league educated authoritarians who are abusing the cognitive dissonance of the uneducated working class that falls victim to their social control mechanisms.