let me clarify then - as I can certainly see your point.
They would declare it ‘un-enforceable’ as currently written since there is no legislation behind it.
Hey, it worked in the Slaughterhouse Cases.
You’re right—“Unconstitutional” is not the right word. Unenforceable, maybe. SCOTUS could advise congress to write clarifying legislation, or repeal it.
Congress should do just this. Establish a procedure for a determination of eligibility under Section 3 that complies with due process. Like, create an “Insurrection Board” comprised of 3 senators, 3 House members, and 3 special jurists to determine the eligibility of people who may fall under the clause. Have hearings, hear evidence, and reach a conclusion. That conclusion would, of course, be reviewable by SCOTUS.
Yes, there will be a thousand ways to cheat the system, just like any system. But at least we’d be done with the pathetic hand-wringing of this SCOTUS.
Ah, good point. I forgot about that part. So all traitors are eligible to hold office, unless they committed treason when they previously held office. Good to know!
He was old enough either way.
On a case by case basis? Every decision they make, even if they say it’s narrowly directed it establishes a precedent. Unfortunately that’s a good reason for them to decide the this article is unenforceable.
Why do you suppose that the drafters of the 14th Amendment wrote Section 3, if they didn’t intend it to be enforceable?
My guess is that they assumed it would be self-evident who had participated in an insurrection, and that common sense and decency would ensure former insurrectionists were barred from office.
It worked for 150 years or so.
You could estimate age in +/-5 years. Pathologist do this alll the time. But there is no need to be dead. So make sure they are 40.
Googling: “… a combination of a physical examination, an X-ray examination of the hand, a dental examination providing an orthopantomogram, as well as an additional radiological examination of the [clavicles]”(https://www.sciencedirect.com/topics/medicine-and-dentistry/clavicle)
Or after holding office. Remember many officers resigned before before joining the CSA
They have. Impeachment.
Umm, Impeachment preceded Section 3 by quite a few years, you’d think they’d have mentioned it. Why’d they write Section 3 then? If the solution to the problem of insurrectionists holding office already existed, why bother? And, as far as I remember from my very brief research, I didn’t find any discussion in the legislative history that supports the idea that the writers/voters/representatives believed impeachment was how to go about implementing Section 3. Do you have any?
Good question. 1860’s Republicans would have voted to impeach and convict the likes of Donald Trump. But they had a special aversion to the sort of insurrectionist who would break an oath in doing it. So they put a provision in the constitution to make double sure that a guy like Trump could not possibly be re-elected.
Three things to consider:
Impeachment is a solution that serves a few different functions. A strict reading of the Constitution says judges serve during good behavior but does not expressly say judicial officers can be impeached. Impeachment was adapted (I would say through tortured reading) so that someone could remove a judge when their behavior was no longer good.
Before the 14th Amendment, Senators felt that someone who had resigned was out of their jurisdiction. That changed only in 1876. This would have told Senators that in the case of insurrection, it was ok to put former officials on trial for insurrection.
Being banned from future office is an extremely rare penalty and in all cases is optional. This would say that in case of insurrection that banned from future office is a mandatory penalty.
I’m not claiming Bingham was thinking “impeachment” when he wrote Section 3; in fact I’m convinced no real plan was thought of as it was a case of “you know who you are” when it came to who were insurrectionists at the time. I’m just claiming that it is a system already in place, works well most of the time, and seems a natural fit for carrying out Section 3.
The Court seems to be deliberately missing the entire point of the exclusion clause.
Kavanaugh said the court “should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide.”
Yes, that was exactly the point of the 14th Amendment when it was written. To take away the choice, which many southern states would have gladly made, to elect former insurrectionists. The people of the southern states would have happily decided that former Confederates were just their cup of tea, which was why the federal government had to make a rule against it.
I mean, i didn’t seriously think the Supreme Court would rule in Colorado’s favor, but the arguments they put forth based on the questions they asked were seriously twisted logic. We gave them far too much credit in the thread where we tried to guess what argument they’d use to rule against Colorado. I don’t think anyone picked “it’s a dumb old rule that we don’t like” as their go-to rationale.
Roberts said that looking to Section 3 as a basis for giving states the power to oversee the presidential election “seems to be a position that’s at war with the whole thrust of the 14th Amendment, and very ahistorical.”
The states are solely authorized to oversee presidential elections, are they not? Section 3 doesn’t give states the power to oversee presidential elections. They already had that power. As long as they follow the laws of their state and federal laws and the constitution, of course.
Even Kagan was asking dumb questions. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?”
Colorado made a decision for the Colorado ballot and made no attempt to foist it upon the whole nation.
The simple fact is the the justices don’t like what would happen if they simply followed the letter of what’s written in the constitution. They’d have to flat out say whether or not trump falls under the umbrella of ‘a person who engaged in insurrection or gave aid and comfort to those who did’. If he did (and he did) then he is disqualified and Colorado is free to remove him from the ballot. If he didn’t then Colorado can’t apply that restriction to him and must put him on the ballot. But they won’t make that black and white decision because they don’t want to. So we’re left with tortured logic and doublespeak.
If the laws as written are not good, it’s up to Congress to change the law. It’s not up to the Supreme Court to invalidate a law based on their opinion of it.
This smells like judicial malpractice.
They also completely deny Colorado the right to run elections. There are no hanging chaffs or count errors happening here. Just the rules for running an election. Same as collecting signatures for a third party candidate.
I agree. Kavanaugh’s question in particular was absurd. “Are you trying to tell me that this law that indicates certain people may not hold office was actually intended to keep certain people’s preferred candidate from holding office?”
Um, yes. That’s exactly what Section 3 says, details aside. Someone’s preferred candidate may well not be eligible to hold office. The idea that that means we can vote for ‘em, but that they might be ineligible to be inaugurated is beyond ridiculous.
Never mind the fact that an insurrectionist by definition intended to disenfranchise millions of voters.
I think they refuse to accept the fact that states absolutely have the power to decide this, and if so, they’d have to determine if Colorado’s ruling was sound and within constitutional boundaries. Because if they conclude that Colorado got it right, the only logical next step (IMO) is that said candidate, who was reasonably deemed to be an insurrectionist, isn’t qualified in any state.
Their opinion would have to include reasonable guidelines as to what defines insurrection, etc., and why Colorado got it right. That leads to the second most ridiculous question. “Wait a minute [clutching pearls], are you saying that you want SCOTUS to resolve this legal question that seems to be ambiguous across state lines, in a manner that is consistent with the text of the Constitution?”
Uh, yeah. Isn’t that what we pay you for?
By that logic, the Constitutional requirement for the President to be an NBC should not prevent Arnold Schwarzenegger on the ballot. But can he be elected? That does not make sense.
If Beerhall Brett’s argument is that states are required to put ineligible candidates on the ballot, besides that making no sense in terms of enfranchisement it clearly violates the state’s right to run elections.
The Republicans on the SC don’t need to make sense. In fact, it will be very hard for them, as their basic goal boils down to “Keep Trump on the Ballot”