Aug 16, 2023·edited Aug 16, 2023Liked by David Lat
The idea that this provision is self-executing is so impractical as to be foolish. So every single county elections board in the nation makes its own decision as to who is ineligible for president? That is a recipe for chaos.
That is basically the authors' claim. From the article (p. 23)
"These actors [charged with enforcing Section 3] might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and federal judges deciding cases where such legal rules apply; even electors for the offices of president and vice president.
We will discuss in detail some of these examples presently. But two points are important to keep clear at the outset: First, all of these bodies or entities may possess, within their sphere, the power and duty to apply Section Three as governing law. Second, their authority to do so exists as a function of the powers they otherwise possess. No action is necessary to 'activate' Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules exist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts."
Many of the comments so far seem focused on practical application—and understandably so. Here's some discussion from the article that might be relevant (pp. 23-24):
"Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot. Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties. Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.
For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representative Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021. The judge proceeded under the theory that if January 6 was a constitutional 'insurrection,' and if Representative Greene had been part of it, she would be barred from office. But it concluded that the challengers had failed to meet their burden of proof under state law: 'In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.' Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s proposed findings that day.
Such determinations about ballot eligibility may also be subject to further judicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, mootness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pending state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits. While Greene’s appeal to the Eleventh Circuit was pending, she prevailed in the state proceedings, so the case was dismissed as moot. The details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land."
Aug 16, 2023·edited Aug 16, 2023Liked by David Lat
Firstly, I have to say, I am providing commentary as a non-American who has lived in the US before, and who has stayed in Georgia, in Fulton County.
Having gone thru the indictments both Federal and State, I am of the opinion that disqualifying a candidate under such charges is rather a low bar for the US, a nation that has preached democracy around the world. My reasoning is simplistic.
First, insurrection is a criminal act, the legal requirements for someone to be charged with insurrection must be met before one is found guilty of such. From my observation, some of the charges tend to overstretch the charging provision to the point of being too broad, which goes against my legal conscious which strictly follows the ius praevium and ius certum principles of legality. The novel nature of these charges, in my view, makes a mockery of justice and opens up the law to be used as a weapon against opposition candidates.
Secondly, maybe as some argue that Trump is guilty of insurrection, did he want to overthrow the US government? Was Jan 6, an insurrection? For those who are only exposed to the US, it might seem that it was an insurrection, but for some people, probably like me, who was in a nation when a coup occurred, and which has experienced post-election protests before, I just saw Jan 6 as a post-election protest, that turned into a riot. They happen all over the world, not only in the US. It's just unfortunate that the US went thru such when it is a beacon of democracy to many nations.
Lastly, maybe, it sets a bad precedence to use courts to sanitize removing someone from the ballot. Especially on charges that involve stretching penal provisions. What difference does the US have with a nation like Zimbabwe, which recently used the court system to bar a presidential candidate from running recently? All dictatorships around the world are looking, and will always say, 'Even the US does the same' when they target opposition parties.
So for me, the 14th Amendment doesn't bar him, since there is no proof that there was an insurrection. The sad case is a lawyer like John Eastman. Lawyers all over the world are free to think of different legal theories, and they argue these in courts every day, and courts either accept or reject them. Punishing him for doing what lawyers do is the lowest point in US election history.
Like many of your commenters, I think there are two fundamental questions:
1. Was there an "insurrection or rebellion" in connection to the 2020 election, vote counting, or recording and reporting of results? I'd say "No", and we should be very hesitant to make such a claim. There was no attempt to overturn the Constitutional order, and no attempt to change the structure of government. I offer no justification for Trump's claims, his legal maneuvers, his attempts to bully state officials, or his boorish behavior. I'm certainly willing to allow that his remarks leading up to January 6, and his speech on January 6, may have constituted "incitement". But claiming election results are invalid has a long and unfortunate history this century, and has not yet approached anything that could be called "insurrection".
2. If there was an "insurrection or rebellion", did Trump "engage" in it? What, specifically, did he do that would constitute "engaging" in it? If there had been a riot in 2001 or 2017, would Al Gore or Hillary Clinton have been "engaging" in "insurrection or rebellion"?
For context, there were protests of the 1960s whose organizers and participants claimed they were launching an "insurrection". I'd call this language exuberant overstatement, but they chose the word. If participants in these protests later ran for public office, should they have been disqualified by their confessed participation?
Posting (anonymously) on behalf of a reader who emailed me (as always, my posting of these comments reflects neither agreement nor disagreement on my part):
"No need to address the law professors argument because at no point was President Trump involved in an 'insurrection.' January 6 was a riot. President Trump literally said 'peacefully protest' that day. Now there can be a lot of discussion and criticism of how Trump acted that day but he was not involved in an insurrection.
Going a bit further if one believes his lawyers’ legal theories were so specious and somehow were calling for an insurrection, then in the interest of equal treatment Marc Elias should be similarly charged and ineligible for office. Just one example, https://x.com/pnjaban/status/1691611474450653565?s=46&t=hyuS90XM4NKnqzuCbcbfyQ
(I think Alan Dershowitz has a similar argument.)"
Assuming its enforceable, the biggest issue will be who gets to decide what the disqualifying actions are, and who has to prove them. Unlike the Civil War, where whether someone sided with the Confederacy was pretty clear, the triggering actions in this case are more murky. For arguments sake, lets say that publicly exhorting a group of people Trump knew to be armed (Cassidy Hustchinson's testimony about the magnetometers) to go to the Capitol and "Fight like hell", when he knew that Congress was tabulating the Electoral College votes and that he would lose, qualifies as insurrection. Where does that have to be proved/recorded and by what burden of proof? Congressional action to that end sounds a lot like a Bill of Attainder to me, but I'm not an expert. Philosophically I agree, I just don't know what the mechanics would be, and how you would prevent future retaliatory abuse of the same process.
This is not exactly responsive to your question, but here's the closing of the Steve Calabresi post linked above, urging Chris Christie to sue (but Calabresi doesn't speak to the relief requested, whether a declaratory judgment or injunctive relief of some sort):
"Chris Christie is legally injured by Donald Trump's name being on the ballot. They draw from some similar voters. Christie should sue, if necessary, to get Trump's name off the ballot. Then the Supreme Court can open the dictionary and tell us what we all already know—that Trump incited an insurrection and is disqualified from being on any primary or general election ballots next year."
<i>So, readers: does this provision render Donald Trump ineligible to serve as president?</i>
If it did, we'd have had to watch GW Bush and Al Gore suffer through prosecutions, perhaps incarcerations and exclusion from the White House, for very much the same behavior following the 2000 election.
The officer / office under the United States question is the first thing that jumped to my mind. I do find it bizarre that the POTUS wouldn’t be an officer of the US or an office under the US and I haven’t had the energy to dig into it and form my own opinion...but I do know that this is a question that serious constitutional lawyers ask & debate.
My common sense gut is that the real world answer is that the framers and second framers (i.e., civil war era drafters and legislative bodies - because this also pops up in statutory law) may not have been disciplined in application of a uniform approach here and the answer to the question may be intent of the words “depends” on the specific provisions in question. But I am sure that realist approach is not how the courts would.
I try to read primary sources when I can, but I won’t have time this week to read the article so my thoughts may be misinformed.
I see three issues that will have to be addressed.
First, who decides if there has been an insurrection. Is it a determination made by the executive the judiciary. The amendment doesn’t prevent some one running for the office. If elected, is there some kind of legal proceeding to determine the question. Or is this solely a matter for Congress to decide.
If there was an insurrection, who decides whether the candidate participated. A jury. Under what burden off poof.
I haven’t checked, does title 18 have an offense for insurrection. If no, someone would have to find a close analogy.
On your last point, here's Professor Michael McConnell (thanks to MA Anderson for flagging his post):
"Congress has enacted a statute, 18 U.S.C § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty 'shall be incapable of holding any office under the United States.' This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute. It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so."
Because it wasn't an insurrection. Even this discussion is a joke but because we still are a free country, I have no problem with it. It shows however the level of ignorance or intellectual laziness of anyone who actually believes it was an insurrection. Prof. McConnell makes sense but it is scary that supposedly conservative legal minds even consider this idiotic interpretation of 14th amendment.
We can start with a significant part of the population being confirmed in their perception that the federal government is illegitimate (in the social science sense). Think underground economy. Plus a significant part of the source of manpower for the armed forces will dry up, as already seems to be happening.
The plain language of Article XIV, Section 3, would appear to disqualify Trump, although it provides no mechanism for determining who is disqualified. Until he is convicted in the federal and/or Georgia prosecutions, we have no adjudicated determination that he has engaged in conduct falling within the bounds of Section 3. But I find persuasive the argument that every federal or state official whose duties include determining qualifications to be on the ballot and run for president can interpret that for themselves. I don't think this would apply to primaries, which are party activities, not government activities, but I'm not sure. I do think it would apply to anybody who is responsible for putting together the general election ballot in their state for November 2024. The way to test this is for somebody - perhaps in many jurisdictions the state's Secretary of State - can determine that Trump may not be listed on the ballot. Then Trump could challenge that in court, and if the Supreme Court decides it is a non-justiciable political question, the state official's decision not to list him on the ballot would stand. Otherwise, on appeal the Supreme Court would have to determine whether he is disqualified by Section 3. This is, of course, guess-work premised on the language of Section 3, since we have no precedent for any native-born citizen of the U.S. who otherwise meets the constitutional qualifications being denied a place on the ballot by a decision of a state official, do we?
Aug 16, 2023·edited Aug 16, 2023Liked by David Lat
I haven't had time to read the entire article, so maybe the authors address the following points that immediately occurred to me:
(1) They assert that section three is "self executing," but no law can execute itself. Their approach is that almost everyone can execute section three. In their view, "every official, state or federal, who judges qualifications" has jurisdiction to enforce section three. But this would create chaos for the presidential election, at least for some time until the issue reached the Supreme Court for definitive resolution. (It would also be a recipe for chaos in a host of other current and future elections if any election clerk anywhere could invoke jurisdiction under section based on the assertion that a candidate is some sort of insurrectionist.)
(2) They say that no action by Congress is required. But how to they respond to the fact that Congress has already acted by acquitting Trump of the specific charge of "incitement of insurrection" in his impeachment trial?
(3) What weight do they give the fact that the federal special counsel declined to charge Trump with
any insurrection-related crimes?
Trump should have been impeached and convicted on any number of other charges, and disqualified from future office on that basis. He also deserves to be convicted on many of the criminal charges that have been brought. However, section three of the Fourteenth Amendment seems like a very dubious way to go.
The term insurrection is a convenient label with no merit. First off, all of Trump's allegations were dismissed without hearing any of the facts. Next FBI and DOJ interference is documented. And finally without conviction Trump cannot be punished for alleged behavior.
I’m a Republican, and even so I’m amazed that there is somebody who is smart enough to pay for David Lat’s Substack and nonetheless still takes Trump’s election fraud allegations seriously at this point.
When you have election officials in Pennsylvania on a video admitting that what they were about to do was a felony, being suspicious of the results is the minimum that you should be feeling.
(1) what states if any were swung by illegal activity, and are they enough to change the electoral college result?
(2) Did Trump actually win the popular vote, as he claimed?
(3) Did Trump actually win the popular vote in 2016, as he claimed?
(4) Did Trump actually win the 2016 Iowa caucus over Ted Cruz, as he claimed?
(5) If the answers to (2), (3), and (4) are “no” - which any sane person has to believe - why do you not think he just makes stuff up that is in his own interests about elections constantly because it is in his nature, and why would you think the answer to (1) wouldn’t fall in that category?
Trump was not alone in his frustration Kerry Lake in Arizona brought a focus on how deeply asleep we've all been in allowing the system to so overwhelmingly conflicted. I don't know how real Trumps allegations are, but to be summarily dismissed without giving them the earnest appeal given to accusations of impropriety of Trump's election elicited... makes me wonder how much else is being hidden from the public.
In the interests complicating this issue irretrievably, we should, perhaps, look at what the Constitution holds for the selection of a president...
A candidate, like Trump or Biden, may be "running" for president but it is the ELECTORs that are actually being voted on.
Trivial? Absolutely not. Donald Trump or Joe Biden are bucket-holders for electors who "pledge" to vote for person to assume the office. They are not on the ballot.
Also, a little reminder...Individuals "running" for president didn't begin in earnest until the early part of the 20th century. Parties' selection of candidate was a smoke-filled, back-room affair. The candidate sat at home in the rocking chair on the proverbial porch waiting for anointment.
What this says to me is that, perhaps ironically given the nature of what seems to have been Trump’s legal theory concerning the vice president’s role in the Congressional count of the votes, it is the House of Representatives which would decide whether someone the Electors vote for is ineligible under Section 3. Meaning that no one else would have the legal authority to determine anything about Trump’s alleged participation in an “insurrection”.
People have to remember that our Constitution requires the certification of the Electoral College vote, and in requiring that Congress certify the vote, there is the presumption that there could come a time when Congress withholds it's certification.
Let's step back from specific partisanship matters for a moment and consider what would have to happen within the halls of Congress to get to the point where Congress does not wish to certify. There certainly would be a lot of discussions, both pro and con, with the eventual consensus to reject. All of this is not only legal, but essential.
Congressional certification, included by the authors of the Constitution, is NOT a rubber stamp.
Sure, there is the presumption that a certification vote would favor the electors, but the legal process as outlined by the Constitution also presumes that it might go the other way.
Given the wording of the Constitution, your implication that only the House of Representatives can determine an insurrection and participation, your interpretation has a great deal of legitimacy.
Were the understanding that this provision is self-executing, with neither due process nor any adjudication, the opportunity for political interference with our election process by politically inclined secretaries of state leaves an impossible morass.
Just to be clear, even though the authors claim Section 3 is self-executing, they acknowledge that judges can review the calls made by government officials applying Section 3—so there’s judicial review on the back end, at least (under their theory). And they address the argument that these would be non-justiciable “political questions” too.
The idea that this provision is self-executing is so impractical as to be foolish. So every single county elections board in the nation makes its own decision as to who is ineligible for president? That is a recipe for chaos.
That is basically the authors' claim. From the article (p. 23)
"These actors [charged with enforcing Section 3] might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and federal judges deciding cases where such legal rules apply; even electors for the offices of president and vice president.
We will discuss in detail some of these examples presently. But two points are important to keep clear at the outset: First, all of these bodies or entities may possess, within their sphere, the power and duty to apply Section Three as governing law. Second, their authority to do so exists as a function of the powers they otherwise possess. No action is necessary to 'activate' Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules exist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts."
Many of the comments so far seem focused on practical application—and understandably so. Here's some discussion from the article that might be relevant (pp. 23-24):
"Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for instance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot. Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties. Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the authority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.
For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representative Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021. The judge proceeded under the theory that if January 6 was a constitutional 'insurrection,' and if Representative Greene had been part of it, she would be barred from office. But it concluded that the challengers had failed to meet their burden of proof under state law: 'In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any action—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.' Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s proposed findings that day.
Such determinations about ballot eligibility may also be subject to further judicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, mootness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pending state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits. While Greene’s appeal to the Eleventh Circuit was pending, she prevailed in the state proceedings, so the case was dismissed as moot. The details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land."
Firstly, I have to say, I am providing commentary as a non-American who has lived in the US before, and who has stayed in Georgia, in Fulton County.
Having gone thru the indictments both Federal and State, I am of the opinion that disqualifying a candidate under such charges is rather a low bar for the US, a nation that has preached democracy around the world. My reasoning is simplistic.
First, insurrection is a criminal act, the legal requirements for someone to be charged with insurrection must be met before one is found guilty of such. From my observation, some of the charges tend to overstretch the charging provision to the point of being too broad, which goes against my legal conscious which strictly follows the ius praevium and ius certum principles of legality. The novel nature of these charges, in my view, makes a mockery of justice and opens up the law to be used as a weapon against opposition candidates.
Secondly, maybe as some argue that Trump is guilty of insurrection, did he want to overthrow the US government? Was Jan 6, an insurrection? For those who are only exposed to the US, it might seem that it was an insurrection, but for some people, probably like me, who was in a nation when a coup occurred, and which has experienced post-election protests before, I just saw Jan 6 as a post-election protest, that turned into a riot. They happen all over the world, not only in the US. It's just unfortunate that the US went thru such when it is a beacon of democracy to many nations.
Lastly, maybe, it sets a bad precedence to use courts to sanitize removing someone from the ballot. Especially on charges that involve stretching penal provisions. What difference does the US have with a nation like Zimbabwe, which recently used the court system to bar a presidential candidate from running recently? All dictatorships around the world are looking, and will always say, 'Even the US does the same' when they target opposition parties.
So for me, the 14th Amendment doesn't bar him, since there is no proof that there was an insurrection. The sad case is a lawyer like John Eastman. Lawyers all over the world are free to think of different legal theories, and they argue these in courts every day, and courts either accept or reject them. Punishing him for doing what lawyers do is the lowest point in US election history.
Like many of your commenters, I think there are two fundamental questions:
1. Was there an "insurrection or rebellion" in connection to the 2020 election, vote counting, or recording and reporting of results? I'd say "No", and we should be very hesitant to make such a claim. There was no attempt to overturn the Constitutional order, and no attempt to change the structure of government. I offer no justification for Trump's claims, his legal maneuvers, his attempts to bully state officials, or his boorish behavior. I'm certainly willing to allow that his remarks leading up to January 6, and his speech on January 6, may have constituted "incitement". But claiming election results are invalid has a long and unfortunate history this century, and has not yet approached anything that could be called "insurrection".
2. If there was an "insurrection or rebellion", did Trump "engage" in it? What, specifically, did he do that would constitute "engaging" in it? If there had been a riot in 2001 or 2017, would Al Gore or Hillary Clinton have been "engaging" in "insurrection or rebellion"?
For context, there were protests of the 1960s whose organizers and participants claimed they were launching an "insurrection". I'd call this language exuberant overstatement, but they chose the word. If participants in these protests later ran for public office, should they have been disqualified by their confessed participation?
Posting (anonymously) on behalf of a reader who emailed me (as always, my posting of these comments reflects neither agreement nor disagreement on my part):
"No need to address the law professors argument because at no point was President Trump involved in an 'insurrection.' January 6 was a riot. President Trump literally said 'peacefully protest' that day. Now there can be a lot of discussion and criticism of how Trump acted that day but he was not involved in an insurrection.
Going a bit further if one believes his lawyers’ legal theories were so specious and somehow were calling for an insurrection, then in the interest of equal treatment Marc Elias should be similarly charged and ineligible for office. Just one example, https://x.com/pnjaban/status/1691611474450653565?s=46&t=hyuS90XM4NKnqzuCbcbfyQ
(I think Alan Dershowitz has a similar argument.)"
Assuming its enforceable, the biggest issue will be who gets to decide what the disqualifying actions are, and who has to prove them. Unlike the Civil War, where whether someone sided with the Confederacy was pretty clear, the triggering actions in this case are more murky. For arguments sake, lets say that publicly exhorting a group of people Trump knew to be armed (Cassidy Hustchinson's testimony about the magnetometers) to go to the Capitol and "Fight like hell", when he knew that Congress was tabulating the Electoral College votes and that he would lose, qualifies as insurrection. Where does that have to be proved/recorded and by what burden of proof? Congressional action to that end sounds a lot like a Bill of Attainder to me, but I'm not an expert. Philosophically I agree, I just don't know what the mechanics would be, and how you would prevent future retaliatory abuse of the same process.
How would this work procedurally? A complaint seeking a declaratory judgment that he is not eligible to be president?
This is not exactly responsive to your question, but here's the closing of the Steve Calabresi post linked above, urging Chris Christie to sue (but Calabresi doesn't speak to the relief requested, whether a declaratory judgment or injunctive relief of some sort):
"Chris Christie is legally injured by Donald Trump's name being on the ballot. They draw from some similar voters. Christie should sue, if necessary, to get Trump's name off the ballot. Then the Supreme Court can open the dictionary and tell us what we all already know—that Trump incited an insurrection and is disqualified from being on any primary or general election ballots next year."
<i>So, readers: does this provision render Donald Trump ineligible to serve as president?</i>
If it did, we'd have had to watch GW Bush and Al Gore suffer through prosecutions, perhaps incarcerations and exclusion from the White House, for very much the same behavior following the 2000 election.
For me, the first 2 basic obstacles are definitional: 1) is the president an 'officer' - see https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment. If not, not disqualified. 2) was Trump 'engaged' in an 'insurrection' or 'rebellion.' I have my doubts - enough doubt to make this a contestable issue - and who would resolve it? And that's before you get to questions about its interaction with other Constitutional provisions. And, of course, there are the more practical implications. See https://reason.com/volokh/2023/08/12/prof-michael-mcconnell-responding-about-the-fourteenth-amendment-insurrection-and-trump/#more-8245192 BTW - any article that asserts certainty on these issues - this is not a well trod area of law - is inherently suspect.
The officer / office under the United States question is the first thing that jumped to my mind. I do find it bizarre that the POTUS wouldn’t be an officer of the US or an office under the US and I haven’t had the energy to dig into it and form my own opinion...but I do know that this is a question that serious constitutional lawyers ask & debate.
My common sense gut is that the real world answer is that the framers and second framers (i.e., civil war era drafters and legislative bodies - because this also pops up in statutory law) may not have been disciplined in application of a uniform approach here and the answer to the question may be intent of the words “depends” on the specific provisions in question. But I am sure that realist approach is not how the courts would.
I try to read primary sources when I can, but I won’t have time this week to read the article so my thoughts may be misinformed.
I see three issues that will have to be addressed.
First, who decides if there has been an insurrection. Is it a determination made by the executive the judiciary. The amendment doesn’t prevent some one running for the office. If elected, is there some kind of legal proceeding to determine the question. Or is this solely a matter for Congress to decide.
If there was an insurrection, who decides whether the candidate participated. A jury. Under what burden off poof.
I haven’t checked, does title 18 have an offense for insurrection. If no, someone would have to find a close analogy.
On your last point, here's Professor Michael McConnell (thanks to MA Anderson for flagging his post):
"Congress has enacted a statute, 18 U.S.C § 2383, which covers participation in rebellion or insurrection, and which provides that those found guilty 'shall be incapable of holding any office under the United States.' This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step. It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute. It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so."
https://reason.com/volokh/2023/08/12/prof-michael-mcconnell-responding-about-the-fourteenth-amendment-insurrection-and-trump/
Because it wasn't an insurrection. Even this discussion is a joke but because we still are a free country, I have no problem with it. It shows however the level of ignorance or intellectual laziness of anyone who actually believes it was an insurrection. Prof. McConnell makes sense but it is scary that supposedly conservative legal minds even consider this idiotic interpretation of 14th amendment.
Actually, I think this answers all the questions I raised.
But what would the practical consequences be of disqualifying Trump? Will we have armed MAGA folks in the streets?
Fiat justitia ruat caelum: "Let justice be done though the heavens fall."
We can start with a significant part of the population being confirmed in their perception that the federal government is illegitimate (in the social science sense). Think underground economy. Plus a significant part of the source of manpower for the armed forces will dry up, as already seems to be happening.
The plain language of Article XIV, Section 3, would appear to disqualify Trump, although it provides no mechanism for determining who is disqualified. Until he is convicted in the federal and/or Georgia prosecutions, we have no adjudicated determination that he has engaged in conduct falling within the bounds of Section 3. But I find persuasive the argument that every federal or state official whose duties include determining qualifications to be on the ballot and run for president can interpret that for themselves. I don't think this would apply to primaries, which are party activities, not government activities, but I'm not sure. I do think it would apply to anybody who is responsible for putting together the general election ballot in their state for November 2024. The way to test this is for somebody - perhaps in many jurisdictions the state's Secretary of State - can determine that Trump may not be listed on the ballot. Then Trump could challenge that in court, and if the Supreme Court decides it is a non-justiciable political question, the state official's decision not to list him on the ballot would stand. Otherwise, on appeal the Supreme Court would have to determine whether he is disqualified by Section 3. This is, of course, guess-work premised on the language of Section 3, since we have no precedent for any native-born citizen of the U.S. who otherwise meets the constitutional qualifications being denied a place on the ballot by a decision of a state official, do we?
I haven't had time to read the entire article, so maybe the authors address the following points that immediately occurred to me:
(1) They assert that section three is "self executing," but no law can execute itself. Their approach is that almost everyone can execute section three. In their view, "every official, state or federal, who judges qualifications" has jurisdiction to enforce section three. But this would create chaos for the presidential election, at least for some time until the issue reached the Supreme Court for definitive resolution. (It would also be a recipe for chaos in a host of other current and future elections if any election clerk anywhere could invoke jurisdiction under section based on the assertion that a candidate is some sort of insurrectionist.)
(2) They say that no action by Congress is required. But how to they respond to the fact that Congress has already acted by acquitting Trump of the specific charge of "incitement of insurrection" in his impeachment trial?
(3) What weight do they give the fact that the federal special counsel declined to charge Trump with
any insurrection-related crimes?
Trump should have been impeached and convicted on any number of other charges, and disqualified from future office on that basis. He also deserves to be convicted on many of the criminal charges that have been brought. However, section three of the Fourteenth Amendment seems like a very dubious way to go.
The term insurrection is a convenient label with no merit. First off, all of Trump's allegations were dismissed without hearing any of the facts. Next FBI and DOJ interference is documented. And finally without conviction Trump cannot be punished for alleged behavior.
I’m a Republican, and even so I’m amazed that there is somebody who is smart enough to pay for David Lat’s Substack and nonetheless still takes Trump’s election fraud allegations seriously at this point.
When you have election officials in Pennsylvania on a video admitting that what they were about to do was a felony, being suspicious of the results is the minimum that you should be feeling.
Serious questions:
(1) what states if any were swung by illegal activity, and are they enough to change the electoral college result?
(2) Did Trump actually win the popular vote, as he claimed?
(3) Did Trump actually win the popular vote in 2016, as he claimed?
(4) Did Trump actually win the 2016 Iowa caucus over Ted Cruz, as he claimed?
(5) If the answers to (2), (3), and (4) are “no” - which any sane person has to believe - why do you not think he just makes stuff up that is in his own interests about elections constantly because it is in his nature, and why would you think the answer to (1) wouldn’t fall in that category?
Trump was not alone in his frustration Kerry Lake in Arizona brought a focus on how deeply asleep we've all been in allowing the system to so overwhelmingly conflicted. I don't know how real Trumps allegations are, but to be summarily dismissed without giving them the earnest appeal given to accusations of impropriety of Trump's election elicited... makes me wonder how much else is being hidden from the public.
In the interests complicating this issue irretrievably, we should, perhaps, look at what the Constitution holds for the selection of a president...
A candidate, like Trump or Biden, may be "running" for president but it is the ELECTORs that are actually being voted on.
Trivial? Absolutely not. Donald Trump or Joe Biden are bucket-holders for electors who "pledge" to vote for person to assume the office. They are not on the ballot.
Also, a little reminder...Individuals "running" for president didn't begin in earnest until the early part of the 20th century. Parties' selection of candidate was a smoke-filled, back-room affair. The candidate sat at home in the rocking chair on the proverbial porch waiting for anointment.
What this says to me is that, perhaps ironically given the nature of what seems to have been Trump’s legal theory concerning the vice president’s role in the Congressional count of the votes, it is the House of Representatives which would decide whether someone the Electors vote for is ineligible under Section 3. Meaning that no one else would have the legal authority to determine anything about Trump’s alleged participation in an “insurrection”.
That certainly gets to the heart of the matter.
People have to remember that our Constitution requires the certification of the Electoral College vote, and in requiring that Congress certify the vote, there is the presumption that there could come a time when Congress withholds it's certification.
Let's step back from specific partisanship matters for a moment and consider what would have to happen within the halls of Congress to get to the point where Congress does not wish to certify. There certainly would be a lot of discussions, both pro and con, with the eventual consensus to reject. All of this is not only legal, but essential.
Congressional certification, included by the authors of the Constitution, is NOT a rubber stamp.
Sure, there is the presumption that a certification vote would favor the electors, but the legal process as outlined by the Constitution also presumes that it might go the other way.
Given the wording of the Constitution, your implication that only the House of Representatives can determine an insurrection and participation, your interpretation has a great deal of legitimacy.
>"Individuals "running" for president didn't begin in earnest until the early part of the 20th
century."
Take a look at the Democratic convention of 1896. You might want to adjust your timeframe a bit.
Were the understanding that this provision is self-executing, with neither due process nor any adjudication, the opportunity for political interference with our election process by politically inclined secretaries of state leaves an impossible morass.
Just to be clear, even though the authors claim Section 3 is self-executing, they acknowledge that judges can review the calls made by government officials applying Section 3—so there’s judicial review on the back end, at least (under their theory). And they address the argument that these would be non-justiciable “political questions” too.