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 much as I wish it weren’t the case, I do think that as a matter of following the rule of law, Trump has a very strong case here.
Did he engage in insurrection? Obviously, yes. But “obviously” isn’t how courts work. Courts have a process to follow, including a decision of whether guilt is found or not by the triers of fact. That hasn’t happened here.
The Supreme Court is not a trier of fact—only the lower courts can do that. There are so many different cases against Trump currently I don’t actually remember what they are about, but I presume there’s at least one ongoing where, if he is actually found guilty, it would be very, very reasonable to, as a matter of law, conclude that the 14th applies. But until that happens, a trier of law would be very reasonable in finding that a decision by a member of the political executive to simply declare Trump is an insurrectionist is invalid.
There is (or may be) a counter-argument to this. My understanding is that the 14th amendment was created specifically to keep Confederates out of office, after the Civil War. And as far as I’m aware (not having ever studied any American history—going purely on cultural osmosis), they were not tried and found guilty either. So there is precedent for declaring someone an insurrectionist as far as the 14th is concerned without triers of fact in a court making that decision.
Disclaimer: I’m not a lawyer. I’m not even an American. I just have an amateur interest in common law legal systems.
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.
That is not true. It applies to people that swore an oath to protect the Constitution. Some dirt farmer from Georgia didn’t swear shit.
It was originally intended to bar former Confederate officers from holding federal office, but as you suggest, it is not confined to them and also bars anyone who has engaged in insurrection.
I’m not really sure I see your point. We’re not talking about dirt farmers.
The point is that the 14th amendment applies to government officials that swore an oath. Like what Trump did when he was inaugurated.
It does not apply to dirt farmers, just like it was not specifically made to only be carried out against ex-confederate members. I hope I managed to dumb it down for you!
I still don’t see the relevance, because at no point was I talking about farmers. I was talking about the leaders of the Confederacy, whom they didn’t want back in.
We are all trying to show that it was not some amendment made for the confederacy specifically.
You brought up the dirt farmers (“leaders”) of the confederacy
To be fair, I don’t think he’s the one that originally brought up dirt farming.
Wikipedia can be wrong, but I’d love to see some evidence presented to explain why it is, in this case.
You’re the only one trying to say that doesn’t apply to trump.
It’s the case Trump’s legal team will probably be making, and it’s one that a sizeable minority of Colorado’s entirely Democrat-appointed Supreme Court seemed to agree with.
To be clear, there’s only one angle from which I think Trump gets out of this, if we assume a properly functioning legal system (which is itself, unfortunately, not a guarantee in America). For example, the District Court that originally heard this case said that the president was not an “officer” and thus the insurrection clause does not apply to it. This is patently ridiculous, and contradicts other sections of the US constitution. Obviously a president is an officer of the country over which he presides. A president who is found to have engaged in insurrection should therefore not be allowed to run again.
But until Trump is found guilty in one of the many trials he is currently facing (Fulton County or the DoJ ones would be best), as a matter of law, it wouldn’t seem to follow rule of law to take a legal action that depends on that guilt.
Right, you were talking about farm industry owners.
You’re incorrect. This isn’t ancient history. We have contemporary accounts of the Congressional debates regarding the 14th Amendment:
https://abcnews.go.com/Politics/framers-14th-amendments-disqualification-clause-analysis/story?id=105996364
EDIT: Looks like @syllogi is a fan of the trash trying to ruin our country.
It looks like you think I agree with the District Court’s decision. I don’t. In fact I’ve explicitly said I don’t in another comment in this thread already.
The notion that the president would not be an officer of the US is a complete farce. It also has nothing to do with the reason I think rule of law would involve not disqualifying Trump until after he is found guilty in his DoJ or Fulton County case, or possibly one of the other ones. Because that would be the finding that tells you, as a matter of law, he aided an insurrection.
That didn’t have to happen to disqualify Confederates. The Fulton Co., case wouldn’t disqualify Trump, regardless.
Never mind that there has already been separate findings of fact that Jan 6th was an insurrection & that Trump aided & abetted it.
Rule of law would be following the Constitution.
The actual language of the 14th Amendment is self-executing & some of the plainest language in the entire document.
Congress must vote to remove the disability, not Congress must vote to remove the officer.
Where in the 14th amendment does it require a separate trial? Nowhere. And, regarding Colorado since I’m more familiar with the situation here, in what way is the process of our legal system evaluating evidence and hearing arguments and rendering a ruling on whether the 14th applies and whether or not Trump took part in insurrection somehow insufficient to meet due process?
Because the original court case did just that. Heard the expert testimony, consulted historical law, and decided two things: did Trump participate in insurrection as the term was intended by the 14th (ruling: Yes) and does the 14th apply in this situation of removing Trump from the ballot (ruling: No). The CO Supreme Court then agreed with the first ruling and overruled the second (e.g. Yes it applies).
A criminal trial isn’t necessary to determine this eligibility because this isn’t about crime and punishment. It is about eligibility to be elected president.
Also not a lawyer.
Ok that is a very important detail of which I was not aware. I had heard that the District Court decided he could stay on the ballot because it thought the President was not an officer (which as a matter of law is just a ridiculous conclusion). I didn’t hear that he actually had decided it was insurrection first.
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Love the quality, cogent rebuttal. Excellent quality.
Glad to see you also don’t know what a gish gallop is. That’s fun.
Here’s an answer for you. It’s when someone presents a large number of bad arguments which take little effort to present but a relatively long time to rebut. I didn’t do anything remotely like that. I presented precisely one argument, explained in great detail.
This is what I hate about lemmy. I don’t know whether you’re right or not. Everyone else obviously thinks you are wrong, but instead of merely correcting what you got wrong, they’re treating you like you’re arguing in bad faith. Being wrong and arguing in bad faith are two different things, and I see no evidence you’re doing the latter. Lemmings complain that this site is full of memes instead of discussion, but they need look no further than this thread to see why discussion is not happening here.
They’re wrong, but I don’t think they’re arguing in bad faith. What they’re wrong about is that article 3 of the 14th is self-executing and doesn’t require a trial or conviction. This is because it was intended to bar former Confederate officers from holding federal office and trying and convicting all of them would have been a logistical impossibility.
As for “aid and comfort”, it’s the same thing? He’s obviously guilty as fuck. The problem is that under rule of law, it has to be a court that decides that officially, and not a politician.
A court in Colorado has decided that.
That was the State Supreme Court, which is, like the US Supreme Court, not a trial court.
From another non-American non-lawyer to you, here’s my understanding:
https://www.npr.org/2023/11/18/1213961050/colorado-judge-finds-trump-engaged-in-insurrection-but-keeps-him-on-ballot
A district judge in Colorado was the one who ruled that Trump engaged in insurrection, the unclear part to this judge was whether the 14th amendment section 3 applies to the Presidency.
The Colorado supreme court decision does not materially change the facts of the case on whether Trump engaged in insurrection.
For your convenience, I copied the important parts from Colorado Supreme Court’s ruling:
Ruling
¶5 The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.
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So there is precedent for declaring someone an insurrectionist as far as the 14th is concerned without triers of fact in a court making that decision.
Not only is there precedent, there’s very recent, very relevant precedent. In 2022, a New Mexico county commissioner was removed from office because of his participation in the events of January 6th.
The Colorado lower court ruled as a matter of fact he did engage in insurrection.
The lower court punted the decison on if the 14th included the office of the president, which the Colorado Supreme Court ruled it did
From what you’re saying the SC would need to accept that fact, and they are only ruling on if the 14th includes the presidency
Indeed, pretty much, it would.
Unfortunately, SCOTUS hasn’t exactly got the best record when it comes to staying in its lane.
Though, while I’m on the subject, Australia’s High Court is much, much better than SCOTUS when it comes to the quality of jurisprudence, but it’s still far from perfect. We had a highly notable case recently where they decided, in essence, “the jury was unreasonable” and overruled both the trial court and the appellate court not on a matter of law, but purely because they disagreed with the jury. So it’s not an entirely uniquely American problem.
Damn, that would be infuriating
For reference, the case I was referencing was against Cardinal George Pell, the (at the time—now deceased) highest-ranking Catholic priest in Australia, and arguably third-highest-ranking member of the entire Roman Catholic Church. He was initially convicted of child sexual abuse.
Article 3 of the 14th is arguably self-executing meaning that it doesn’t require a trial, but only a simple finding of fact. This is because it was intended to bar all former Confederate officers from holding federal office, and it would have been impossible to hold trials and get convictions for all of them.
That’s the historical reading in any case, and it puts the SCOTUS’s originalists --Alito, Thomas, Gorsuch-- in quite the bind since they’re either going to have to find a way to argue that it wasn’t intended to be self-executing, which is pretty absurd on its face, or that it doesn’t apply to the presidency, which is also absurd.
That said, they almost certainly will find a way out of it for Trump, but I’m no expert and don’t have an educated opinion on how they’ll do it.
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Your whole argument is based in the court of public opinion. Trials are not held in the court of public opinion. That’s called politics.
That’s…umm…literally completely wrong.
Opinion
Opinion
Opinion
But you really said it best