I came across this bit of news in the New York Times this morning: Conservative Case Emerges to Disqualify Trump for Role on Jan. 6 - The New York Times (nytimes.com)
Since the NYT is behind a paywall if you don't have a subscription, I am also referencing this link: Does the Constitution Disqualify Donald Trump? (thebulwark.com)
This is the text of the paragraph of the constitution which is being discussed:
"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. — Section 3 of the 14th Amendment, U.S. Constitution."
From The Bulwark article:
"Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.on 3 of the 14th Amendment, U.S. Constitution."
Has this paragraph been hiding in plain sight all along?
"In a lengthy article that will be published in the University of Pennsylvania Law Review, the two legal scholars— William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — write that section 3 of the Fourteenth Amendment “forbids holding office by former office holders who then participate in insurrection or rebellion.”
Their conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”
“The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”
“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said."
"As the Times notes, this is not Resistance porn; it is the product of two well-known conservative legal scholars who “are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.”
So, eyebrows are raised."
I am not a constitutional scholar; I don't know what to make of this. My question is, why was this avenue not pursued early and often? It certainly seems to apply to Trump. My interpretation of why it was not is pusillanimity on the part of Republicans. No one wanted to be the object of Trump's firehose of invective and lies, and they were afraid that he could destroy their political prospects. I think they were hoping against hope that somehow Trump would withdraw himself from the race and go away. But we have seen how that turned out.
Trouble is, it is now late in the day. The case is going to be made that this is just something pulled out of the legal scholars' hat. Article 3 of the 14th Amendment needed to be brought up early, like January 7, 2020.
Its enforcement will depend on the willingness of various officials to honor their own oaths of office. This surely is one of the reasons that the Trump camp has made such a concerted effort over the last four years to stack state offices and legislatures with allies.
ReplyDeletePart of these officials' honoring their oaths of office includes their willingness and courage to stand up to the Trump mob and Trump thugs.
If this legal opinion is credible, then parties with appropriate standing (such as other candidates?) could sue to keep Trump's name off the ballot, or to strike it from the ballot.
Just spit-balling here: if one or two of the in-play states (e.g. Pennsylvania and Wisconsin) could keep him off the ballot and declare his candidacy null and void, that could be enough to prevent him from winning the presidency. But not enough to make him go away for good. I fear only God can do that.
As to why it hasn't been pursued earlier: a conviction in Trump's second impeachment would have supported it. So would a conviction of the charges that Jack Goldsmith has brought against Trump.
ReplyDeleteThis section of the amendment was obviously aimed at those who had sided with the confederacy in the civil war. I could see many people construing it narrowly and not applying it to today's circumstances.
ReplyDeleteIt could be seen as a remnant from the past. But an insurrection is an an attempt to overthrow the government, regardless of when it occurred. I'm sure the Trump supporters will say, "Nothing to see here, move along."
DeleteWhat interests me the most about this is that the authors are conservative, Federalist society types. Perhaps they realized that they helped create the movement that is now now poised to destroy American democracy as we have known it. - trump and MAGA - and are hoping that their interpretation will help keep him out of the WH this time.
DeleteThe Republican Party doesn't care about democracy or authoritarianism. They just want to control the show and Trump isn't a team player. Too unpredictable. I think the Republican Party is only afraid that whatever the USA might morph into under Trump might not be run by them. They wanted a Mitch McConnell anaconda stranglehold instead. The Democrats will allow a little more freedom but not too much. Nothing that might engender a new and truly progressive party.
DeleteThere is a difference - a big difference. DeSantis is giving us a preview of what might be done in MAGA America - not necessarily trump but following his playbook - suppressing freedom of speech, academic freedom, religious freedom. Civil rights for minorities, forcing private corporations HR depts to get rid of diversity programs and policies, banning bonds for clean technology and related environmental concerns, also making it hard for pension funds to invest in them. Not to mention abortion, book bans, and whitewashing - literally - African American history. Now there will no longer be AP Psychology classes available to high school seniors because they generally touch on sexual and gender matters. I’ve lost track of all the freedom suppressing actions he and his legislature have taken. The Democrats so far do not do those things.
Delete"What interests me the most about this is that the authors are conservative, Federalist society types. Perhaps they realized that they helped create the movement "
DeleteWhether the authors would cop to having helped create the movement, I don't know. But there have been Republicans who stood up to Trump's so-called "Stop The Steal" campaign in 2020. The Georgia Secretary of State, Raffensberger, was one. So was the speaker of the AZ house. And Republican appointees were among the legion of judges who laughed Rudy Giuliani et al out of courthouses across the land. Perhaps those are slender reeds - but that time, at least, they held.
I don't know whether DeSantis is Trump 2.0. So far, he hasn't shown nearly Trump's ability to attract voters, at least outside of Florida. He might be more like Scott Walker than Donald Trump.
The thing is: even among politicians, who probably are the most egotistical lot known to God and man (even outstripping professional athletes and actors), Trump is in a category by himself when it comes to narcissism. Trump would turn (and, horribly, largely has turned) the GOP into a cult of personality. I could be wrong, but I don't think that is precisely what makes DeSantis tick. I think DeSantis, like a lot of politicians, will say and do a lot of things in order to get elected; and for this cycle, the things he has chosen to say and do are culture-warrior things. If he thought that exuding conservative competence in governing would get him elected, he'd be running a competent-conservative campaign. If he thought a bellicosity-toward-China-and-Russia approach would work, that's what he'd be doing. Or if cutting taxes was the thing, he'd be all over cutting our taxes.
The lesser of two evils argument doesn't do much for me anymore. The two parties provide two different pathways and they both go downhill. They, the two parties, ARE the primary problem in this country. If West becomes the Green Party candidate and is still excluded from any debates like Nader was, that will definitely be the final straw. The only one with a realistic description of our situation is West. If he is not even allowed to speak truth, this whole electoral process is useless.
DeleteOh yes, Jim, there have been a few Republicans who didn’t totally succumb to trump. But none of them are running for president. They haven’t a chance in Hades so why waste time and money on a campaign. DeSantis seems to sink lower in the polls the longer he campaigns. I find trump to be totally obnoxious but clearly a whole lot of folk love that he is obnoxious to « the libs », to minorities, to women, and to any republicans who cross him, no matter how timidly. I don’t think DeSantis has a chance at this point. Nobody has a chance against trump, which is both a sad commentary on the state of the GOP as well as a frightening reality. DeSantis was trying to prove that he’s a competent trump. So he doubled down on the culture war issues, thinking that would be his ticket to the WH. He doesn’t seem to get that trump has created a personality cult. A true cult. DeSantis comes across as having no personality. He will point to all his legislative successes in Florida but it’s not a bit clear that going to war with Disney will get him many votes.
DeleteStanley, the lesser of two evils is not a happy place. I’ve been choosing the lesser of two evils in elections for a long time and will hold my nose and will do it again rather than throw away my vote and risk contributing to having the greater of two evils win. I try to be realistic about the danger we face in this country and if the Dems lose in 2024 because of a third party candidate with little to no chance of winning there may be no turning back - we will go right into the abyss, killing any future chances not just for the Democrats future, but for any future for your hopes of a viable Green Party candidate someday. Yes - our electoral system is broken, but we still have to try to save our country.
Anne, Democrats want the popular vote to have primacy over the electoral college. I can't argue with that. The electoral college is a fossil from a previous age. But they don't talk about Ranked Choice Voting. With RCV, there are no throwaway votes but they fear that would eliminate the winner-take-all grand prize.
DeleteI'm afraid depending on the voting system to save our democracy is hopeless. It is only strikes and mass demonstrations that will provide a course correction. They generated the New Deal in the 30's. They ended the Viet Nam war. The question is, are the American people up for it? Are the American liberals (people not politicians) up for it?
"It is only strikes and mass demonstrations that will provide a course correction." Be careful what you wish for. Those can easily turn violent, and there is zero tolerance for that. The candidate who promises "safety" and promises to shut down anything that rocks the boat would be elected. In other words, an authoritarian. Guess what, we'd have Trump again. I'm sure DeSantis would be pretty on board with authoritarianism too.
DeleteI say "zero tolerance" for violence, but the MAGA group tolerate it if it's them doing the rocking.
DeleteI am talking about non-violent demonstrations. They are constitutionally protected. If we can't do that, then it's all over. Occupy was non-violent. In one weekend, a nationally co-ordinated effort under a Democratic administation closed it down. Occupy knew where the real US capitol was. If Occupy had succeeded even partially, maybe there would not have been a Trump presidency and a Jan 6 insurrection. Don't release the steam in a pressure cooker and you have a bomb.
DeleteThe Viêt Nam war protests went on for ten years, and some were quite violent. You and I are about the same age so we know that the BIG motivator was the draft. Several high school classmates who didn’t go to college didn’t survive a year. After a while the college deferments disappeared to.
DeleteThere is only a year left to try to defeat MAGA. I don’t think that voting for a third party candidate who doesn’t have a chance will help prevent a MAGA takeover. There is no time to replace the current system with ranked choice voting in 50 states.
What I remember most about the Occupy movement is that their goals were very vague, and they had no specific policies outlined to try to achieve their goals. They drew attention to things like income inequality but had no policy roadmap ready to propose to achieve improvements in this.
That’s the way I see it anyway. There is simply no time to change the entire system so I will support the lesser of the evils.
DeleteFull disclosure - I really don’t know much about Cornell West. I looked him up once but have forgotten is.I will do so again since you are such a big fan. But if he is a Marxist I wouldn’t support him. I am still a capitalist- but a European style capitalist. Pure socialism - Marxism has repeatedly failed in the few countries that have tried it. I laughed last December at the photos my son sent from Ho Chi Minh city, formerly known as Saigon. It’s a communist government, but has followed China into adopting a capitalist economy - out of sheer necessity. The photo my son sent was of the square where the big statue of Ho Chi Minh presides over the square. In the background is a row of stores - all designers like Chanel, Prada, Hermès etc along with the local Rolls Royce dealership.
DeleteAs an economist who researched international economic development in the world’s poor countries for years, I know that capitalism pulled millions of people out of deep poverty, which Marxism was unable to do. In my personal view, our American version of capitalism has become too distorted, and results in a lot more inequality than one sees in other developed countries. The Scandinavian countries got the right mix before others, but now pretty much all the OECD countries have figured out a good balance - except for us. We are behind most other developed countries except in sheer size and GDP. Quality of life for the average person? We are way behind on most measures of this.
West describes himself as a non-Marxist socialist which is pretty much what I am. Although I accept Marxist analysis of capital to the extent I understand it. Marxist economist Richard Wolff doesn't see proper socialism as centralized state control and planning as in the Soviet Union. He sees it more like democratizing the workplace and worker owned enterprises like Mondragon. Neither the Soviet form of communism or the American form of capitalism are in the least democratic. I"m all for lifting people out of poverty. But what is poverty? If you don't own a car here, you are poor. But if our society were structured so you don't need a car, the carless wouldn't be poor. I guess I'm just looking to do things differently.
DeleteStanley, I’m not talking developed, wealthy country poverty, but the kind that prevailed in the poor countries 30 and more years ago. And still exists in some countries, but not in the numbers of forty years ago. An era of wealth in the developed world and starvation in too many countries. This was true of many Latin American, African and Asian countries, including China. Once those countries dropped their anti- capitalism stances and joined the global economy, that extreme poverty diminished dramatically. Cuba is still poor, but the people there have been propped up to at least a basically minimally acceptable standard of living by Russian money ever since Castro first took over. Russia had to adopt capitalism too in order to feed and clothe and house its population at a level above subsistence.
DeleteNow we have movies about the wealth of formerly impoverished countries - like Crazy Rich Asians ( I saw it on a plane). You have a once very poor country like Viêt Nam with designer stores, and luxury cars. And most of the people are no longer suffering from malnutrition. You no longer have half the newborns dying before the age of five, nor are very many of the women dying in childbirth any more. Rampant illiteracy is far less common than it was, with most now having access to schooling. When I went to the Dominican Republic about 25 years ago I witnessed extreme poverty first hand. I met women who had given birth to a dozen or more children, most of whom had not survived to age 5. One had given birth to nineteen children - only five made it to adulthood. I met lots of bone thin people with goiters - I had never seen goiters before - they are due to malnutrition, specifically not enough salt in the diet. We visited a village that had a dozen wooden huts, with one room, dirt floors, and, if they were lucky, a large blanket to spread on the floor at night for the entire family to sleep on. It was in the mountains, overlooking a beautiful lake. It had no trash - that’s because the people didn’t ever own things that create trash. They lived on a subsistence diet of onions, beans and rice, which they grew. The majority have borderline IQs because of their impoverished diets and prevalence of intestinal parasites that take what few nutrients they get in their diets. Most of the girls start having babies right after hitting puberty - when they are 13 or so. The babies and children often had stick arms and legs, but huge distended bellies - distended because they were full of worms, which robbed them of the few nutrients they got from their limited diets. The parasites came from their only source of water - a stream, which also served as their sewage receptacle. They were all - including adults - illiterate. These poverty stricken mountain villages were less than a two hour drive from luxury beach resorts costing $$ hundreds/ night.
As far as being car less in our own wealthy country ? No thanks. I would love a better rail system such as those that exist in Europe and Japan. But I would never have wanted to be without a car, especially during the years I was raising a family. Tough enough to do the family errands with three sons in tow using a car. I would have hated having to do them using public transportation and three boys in tow.
Many of our family’s best memories are the dozens of road trips we made - in the US, and in Europe, exploring the entire east coast, some of the south, and California in our trips. This would not have been possible without our own car. Automotive technology keeps advancing. I now see charging stations all over our suburbs and other places we travel. One son has an EV already. The other two plan to replace their current cars with EVs once it’s time for a new car. Cars provide a freedom that public transportation does not. They both have a place in the transportation system, but if I had to make a choice of getting rid of one of them, I would keep the car.
As far as I know, Anne, a great many impoverished countries ARE already based on the capitalist system. Why doesn't the automatic magic of capitalism work there? Cuba has economic problems but it is also the object of US economic warfare. China has lifted many out of poverty but I wonder about the people at the bottom of THAT totem pole. Also, China's economy is still government-controlled. Their capitalism isn't ours. I would say there are many capitalisms and many socialisms and possible hybrids thereof.
DeleteAs for cars, I just bought one last year and I don't see how most people are going to afford them anymore.
Thought experiment, if legal scholars want to make the point that article 3 of the 14th amendment is just a relic of the immediate post-civil war era, and has no relevance to the present day, what would they say to the idea that the 2nd amendment is just a relic of the post revolutionary war era, and has no relevance to today?
ReplyDeleteI think they'd say that there is a lot of current case law grounded in the 2nd amendment which seems to indicate that it's not just a relic of a bygone era.
DeleteOn the other hand, the Constitution vests Congress with the power to declare war. I don't think that has happened since WWII, yet we've fought a number of wars since then, and presumably we have US military personnel and assets active in conflicts around the world today.
That same article of the Constitution gives Congress the right to issue Letters of Marque, i.e. engage in legal piracy. Not sure that has any current application today. Although I did hear, within the last few days, that US military personnel will be on merchant ships to protect it from pirates.
With the “ originalists” now littering the judicial system from top to bottom, who knows
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