Section 3 of the Fourteenth Amendment has been hobbled. Let's not sugar-coat it. Now, though, the Dem appointees' focus has to be on all of the other cases.
There was a piece is Slate about how we should not expect the courts to "save us."
I personally never thought they would do that here. I think that is a strawman argument in various respects. Liberals expected yesterday's result. It is okay to be angry as well.
It's a bad thing to be defeatist about these things. That is, "why fight back? what did you expect?" I saw that sentiment a few places. That's wrong.
So, I agree with the overall sentiment of this post, especially since there are so many battles which Chris Geidner is out there reporting on. As to the liberals, I respect them to figure they make strategically defensible (if not always correct) decisions.
I still wish someone dissented. I find the reasoning of the liberals on why the Colorado Supreme Court was wrong weak. If Sotomayor couldn't dissent alone since it would have negative effects, well, that just make me angrier at her colleagues.
FWIW: ’m not sure it ever would have been alone. She might have been the lead author and that’s why it showed up like that, with either or both of the others joining. I’m not sure we know that.
Yes. I'm also speaking of a possibility of a full dissent separate than the negotiation people theorize went on over the partial dissent. A dissent that firmly upheld Colorado.
It's not a question of the courts - or more specifically SCOTUS - "saving us", but to simply adhere to the very plain wording of the Constitution, and not mess about confecting "interpretations" or affixing "addenda" to Clauses that are facially obvious. How about NOT acting as a quasi legislative body, hmm?
Also, I have never seen “state-by-state” as a problem where a state might have to kick a 20 year old off the ballot for President or Arnold Schwartzrnegger off for trying for the Presidency despite not being born here, We need a test case or two, don’t we, to see whether enabling legislation is needed by Congress first before a state or Federal government is permitted to take that impermissible candidate off the ballot?
What are the implications from this decision for any other new 14th Amendment cases not involving candidates and ballots?
Do you see non-US born citizens and those under 35 now trying to run for president either in general or if they are insurrectionists or had previously taken an oath of office?
I still don't get why the Extremes didn't recognize 18 USC §2383. Rebellion or insurrection, as the functional equivalent of Congressional action to enforce Paragraph 3, and be done with it. They didn't have to go into dicta about needing new legislation. Action on this section hasn't yet been taken, but it could still be--the statute of limitations is 5 years. Certainly if trump loses in November, it could still be filed (obviously no one will file it if he wins, that's a given.)
The statute DOES exist, so the whole moaning bit about how this decision precludes any disqualification from office is a bit overwrought. And I do tend to agree that State by State raises problems.
I’m honestly not sure who exactly you’re talking about and who you’re annoyed with, since this seems to go in a couple directions. But, that said, the insurrection criminal statute *is* mentioned in the decision and was mentioned in my report on Monday.
Additionally, as to your last paragraph, I think you are discounting the additional questions — and restrictions — involved in criminal prosecutions that could easily prevent such criminal prosecutions even for an avowed insurrectionist. (And, finally, I’m not quite sure I get the reference to “moaning,” which seems quite dismissive.)
I did find afterwards the reference to 2383 in the statute. For some reason my PDF search didn't pick it up, but it did when I searched for the other statutes related to it. But the court just had to point out that Congress HAD done something, and could do more--without prescribing any detail about what it has to do.
The moaning refers to the first few analyses I read this morning which went on and on about how no one will ever be able to deal with an insurrectionist ever again. Seriously, the net is full of Chicken Littles. A lot of others focus more on the simple problem of overfilling an opinion with dicta, which is very true. I just happened to hit the Chicken Littles first, in what with my first cup of coffee felt like droves.
Of course criminal statutes have difficult considerations, some of which (the First Amendment and intention issues) are why Smith didn't charge under that statute. Are there others that you can see? It's the sort of statute Congress probably WOULD pass, however, was it not there already. Hard to see even a sane Congress giving a civil private right of action to such a challenge. Possibly some means of allowing states to sue in federal court, if there is no current means. What would happen if a bunch of states filed a declaratory judgement action in fed court based on paragraph 3 and it ended up before SCOTUS? Do you think they would say that even in federal court the states need special statutory permission to do so?
I DO think we need national agreement on what is or isn't an insurrection, but to have that honed via arguments in suits, rather than letting, say, Tuberville or Greene take a whack at it.
I'm not sure how well our country would survive 50 different definitions. What if a red state decided that Biden's criticism of a statute that for some reason had a veto proof majority (say, next term, if we get Biden but a dreadful Congress) was an insurrection because such criticism wasn't upholding the law of the land? At least that can't happen now.
I'll take a look at your Monday post again. I read it, but must have missed any analysis.
Susan, I see nothing in a close reading of the per curiam decision that bars Jack Smith from seeking a superseding indictment charging tRump under 18 USC § 2383, to add to his other four charges in the Jan6 case. As Chris noted, it is one of the laws on the books that the Court suggested might be invoked as a federal "enforcement" tool of §3/14th Amendment, and no doubt SC Smith has taken special note.
The only reason NOT to was really the length of a trial involving the First Amendment issues. So I hope if the trial has to start after the election, Smith (assuming he hasn't been assassinated by Trump 2.0 due to trump's "immunity") I trust smith will go for it.
The decision referenced that statute as "effectively provided an additional procedure for enforcing disqualification."
What that exactly means especially with the procedural safeguards cited by the opinion is unclear. For instance, the statute does not require proof that the person swore an oath to uphold the Constitution. Is that a problem? Is that a fact that has to be proven? How?
The provision is not a criminal provision (though they dubiously labeled it a "penalty"), so should not require a unanimous jury to find someone guilty beyond a reasonable doubt for it to be in place. Jack Smith also didn't use it for a reason. Again, I think he reasoned it would be harder to prove. OTOH, the indictment has language that overlaps with the constitutional definition of insurrection for purposes of this provision.
Is that enough? I doubt this Court will think so. I do personally.
I don't think the insurrection statute is limited to "oathswearers" so I don't think that would be a hindrance, since it itself provides no further offices can be held.
I'm not actually sure I find it disturbing that a unanimous guilty verdict be required. It is, of course, a pretty heavy penalty to be barred from office. And surely the drafters of the 14th had SOME idea of what they thought an insurrections was, but provided no means for deciding it; that has always bothered me about the self-executing part of the argument. Is a state by state definition better than a Federal one? Apparently no one on the court actually thought that, at least by the final vote. Hence the concurring decision, rather than the apparently first planned dissent.
I originally feared that the Court would go an originalist idea that the framers must have meant only something involving secession and war; I wonder if the Thomas Alito branch wanted that, but got talked out of it, allowing it to be punted. I don't think that punting on one state's definition, however, means that the court accepts that definition for all states.
We will have to wait for someone's memoirs to see what actually went on.
14A, sec. 3 is limited to those who swore an oath.
The statutory provision is not. So, it is not clearly enough on its own to meet the requirements of the amendment, especially under the terms of the opinion.
The 14A, sec. 3 provision is not a criminal provision. So, the constitutional provision shouldn't require the heavy proof of a criminal provision.
It didn't when it was applied originally. It would be a lot harder to enforce. Civil enforcement not requiring that high proof was used. It should be used as an option today. The opinion did allow state by state for state offices. And, if Congress gets around to enforcing it, it can still allow state discretion.
it's better than nothing. I still think that the statute, for whatever faults it has for being criminal, is broader on the oath bit, (by not requiring it) and does accomplish the same RESULT. So I don't think that for the statute failure to mention the oath is fatal to prosecution.
Do you have a cite for the use of civil enforcement back in the day? I'd be interested in reading it.
I'm talking about the 14th Amendment disqualification.
Not a prosecution for insurrection. What it takes to disqualify someone.
You have to show there was a previous oath. That's the issue of the case -- what exactly it takes to disqualify. And even that statute is unclearly useful for that purpose.
The briefing in the case and a lot of online discussion covered the history. Here's one link. But, more can be found other places too.
Thanks for cite. I can see that the Amendment didn't require criminal prosecution. Did any of those disqualified not join the Confederacy? Because if you look at the history too closely you can argue that the 14th was talking about secession and war when it was passed. History giveth and history taketh away.
I know you are talking about the 14th Amendment disqualification. I thought you were wondering if the fact that IT requires an oath broken means the statute requires one too. Clearly it doesn't. No question about the oathiness of the 14th.
I'm not happy with the decision; it would have been an easy solution and certainly justified on moral grounds to use the 14th. But I CAN see how state decisions would result in really conflicting definitions of insurrection, (forgettabout political conflicts--just DIFFERENT) and I guess I just feel that an Amendment which is primarily about limiting what states can do (no statutes violating paragraph 1) ought to be looking at a country-wide application of its third paragraph.
That said, I don't see why a state couldn't use it for a state office. Not clear whether the current opinion precludes that.
Why can't any state just enact a state law making a convicted felon (or someone who tried to overthrow any federal or state government) ineligible for that state's ballot?
First, there need to be distinctions between state and federal offices. Within federal offices, before Monday, I think many of us would have argued that they could have done so as to those oath-takers who had engaged in insurrection — as an implementation of Section 3. The broader restriction likely would run afoul of U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) as related to this discussion — aside from whether such a restriction would also violate other rights.
"there is effectively no way to enforce Section 3 against Trump before Jan. 6, 2025." seems a bit stretched. Congress could enact an enforcement statute, right? Making the decision to not do something is not the same as there being no way to do it.
We have a theory of constitutional order. We believe that it coheres seamlessly and that it is the job of the Court to smooth over any apparent discontinuities. The per curium opinion tried to do that with "but federalism means national, too, not just states!" That was refreshing but a desperate expedient for a faction interested in fostering rights that trump the national government.
What is happening is the same as Thomas Kuhn described in The Structure of Scientific Revolutions. Scientific theories begin as useful ways of accounting for observations and the "normal" work of science is to expand the scope of observations that conform to the theory turning into figuring out why some sets of observations refuse tamely to fall in line. At some point the contradictions between theory and observations become irreconcilable and some new paradigm is called forth to resolve the contradictions. Rinse repeat. Some topics go through the cycle a sufficient number of times to become Theories with a capital T that are worth no serious person's time, trouble and error to try to re-test.
There is nothing to guarantee that the Constitution, as amended, has to be internally consistent. Nor is there anything to guarantee that past harmonization of inconsistencies has to withstand new facts and circumstances. That's why the courts may avert there gaze from stare decisis for decisions that just no longer make sense in contemporary terms.
The five justices who said to Congress "don't go there, leave well enough alone" promulgated an attempted barrier to trying with dicta that will be rightly ignored by future Courts with more cohereent jurisprudence. The whole Federalist Society project attempting to put a principled argument in favor of the status quo ante was actually a radical, results-driven push to serve the power of the reactionary elements.
So, according to SCOTUS, if someone decides to run for the Presidency who doesn’t meet the minimum qualifications as spelled out in Article II—at least 35 years old, natural-born US citizen, having lived in the US for 14 years—s/he can’t be omitted from the ballot unless Congress votes that can happen?
I mean, wasn’t the 14th Amendment already voted on by Congress when it was ratified in 1868? Why does it have to be double super-secret ratified?
Certainly, SCOTUS has no respect for “the unwashed masses” of the public. This isn’t new. It’s by design in their training & the legal system as it exists today.
I mean, the House impeached. Twice. Senate didn’t confirm, so it doesn’t matter.
Courts have adjudicated, in plurality, that an insurrection did, in fact, occur. Ergo, “Oathbreaking insurrectionists” are holding office TODAY. That doesn’t matter, cuz SCOTUS & legislatures can ignore it. Let the voters decide, right? In a system skewed to give more power to less people.
It’s obscene & not the world I want to leave to my grandkids. F* that noise.
I expected SCOTUS to rule against Colorado’s Supreme Court’s ruling. But it was the way they actually worsened things that sticks in my craw.
I want this decision stuffed in the originalists’ faces in every future case in which they try to play that discredited card.
Good to know that our Constitution is absolutely useless😐
There was a piece is Slate about how we should not expect the courts to "save us."
I personally never thought they would do that here. I think that is a strawman argument in various respects. Liberals expected yesterday's result. It is okay to be angry as well.
It's a bad thing to be defeatist about these things. That is, "why fight back? what did you expect?" I saw that sentiment a few places. That's wrong.
So, I agree with the overall sentiment of this post, especially since there are so many battles which Chris Geidner is out there reporting on. As to the liberals, I respect them to figure they make strategically defensible (if not always correct) decisions.
I still wish someone dissented. I find the reasoning of the liberals on why the Colorado Supreme Court was wrong weak. If Sotomayor couldn't dissent alone since it would have negative effects, well, that just make me angrier at her colleagues.
FWIW: ’m not sure it ever would have been alone. She might have been the lead author and that’s why it showed up like that, with either or both of the others joining. I’m not sure we know that.
Yes. I'm also speaking of a possibility of a full dissent separate than the negotiation people theorize went on over the partial dissent. A dissent that firmly upheld Colorado.
It's not a question of the courts - or more specifically SCOTUS - "saving us", but to simply adhere to the very plain wording of the Constitution, and not mess about confecting "interpretations" or affixing "addenda" to Clauses that are facially obvious. How about NOT acting as a quasi legislative body, hmm?
Also, I have never seen “state-by-state” as a problem where a state might have to kick a 20 year old off the ballot for President or Arnold Schwartzrnegger off for trying for the Presidency despite not being born here, We need a test case or two, don’t we, to see whether enabling legislation is needed by Congress first before a state or Federal government is permitted to take that impermissible candidate off the ballot?
What are the implications from this decision for any other new 14th Amendment cases not involving candidates and ballots?
Do you see non-US born citizens and those under 35 now trying to run for president either in general or if they are insurrectionists or had previously taken an oath of office?
I still don't get why the Extremes didn't recognize 18 USC §2383. Rebellion or insurrection, as the functional equivalent of Congressional action to enforce Paragraph 3, and be done with it. They didn't have to go into dicta about needing new legislation. Action on this section hasn't yet been taken, but it could still be--the statute of limitations is 5 years. Certainly if trump loses in November, it could still be filed (obviously no one will file it if he wins, that's a given.)
The statute DOES exist, so the whole moaning bit about how this decision precludes any disqualification from office is a bit overwrought. And I do tend to agree that State by State raises problems.
I’m honestly not sure who exactly you’re talking about and who you’re annoyed with, since this seems to go in a couple directions. But, that said, the insurrection criminal statute *is* mentioned in the decision and was mentioned in my report on Monday.
Additionally, as to your last paragraph, I think you are discounting the additional questions — and restrictions — involved in criminal prosecutions that could easily prevent such criminal prosecutions even for an avowed insurrectionist. (And, finally, I’m not quite sure I get the reference to “moaning,” which seems quite dismissive.)
I did find afterwards the reference to 2383 in the statute. For some reason my PDF search didn't pick it up, but it did when I searched for the other statutes related to it. But the court just had to point out that Congress HAD done something, and could do more--without prescribing any detail about what it has to do.
The moaning refers to the first few analyses I read this morning which went on and on about how no one will ever be able to deal with an insurrectionist ever again. Seriously, the net is full of Chicken Littles. A lot of others focus more on the simple problem of overfilling an opinion with dicta, which is very true. I just happened to hit the Chicken Littles first, in what with my first cup of coffee felt like droves.
Of course criminal statutes have difficult considerations, some of which (the First Amendment and intention issues) are why Smith didn't charge under that statute. Are there others that you can see? It's the sort of statute Congress probably WOULD pass, however, was it not there already. Hard to see even a sane Congress giving a civil private right of action to such a challenge. Possibly some means of allowing states to sue in federal court, if there is no current means. What would happen if a bunch of states filed a declaratory judgement action in fed court based on paragraph 3 and it ended up before SCOTUS? Do you think they would say that even in federal court the states need special statutory permission to do so?
I DO think we need national agreement on what is or isn't an insurrection, but to have that honed via arguments in suits, rather than letting, say, Tuberville or Greene take a whack at it.
I'm not sure how well our country would survive 50 different definitions. What if a red state decided that Biden's criticism of a statute that for some reason had a veto proof majority (say, next term, if we get Biden but a dreadful Congress) was an insurrection because such criticism wasn't upholding the law of the land? At least that can't happen now.
I'll take a look at your Monday post again. I read it, but must have missed any analysis.
Susan, I see nothing in a close reading of the per curiam decision that bars Jack Smith from seeking a superseding indictment charging tRump under 18 USC § 2383, to add to his other four charges in the Jan6 case. As Chris noted, it is one of the laws on the books that the Court suggested might be invoked as a federal "enforcement" tool of §3/14th Amendment, and no doubt SC Smith has taken special note.
The only reason NOT to was really the length of a trial involving the First Amendment issues. So I hope if the trial has to start after the election, Smith (assuming he hasn't been assassinated by Trump 2.0 due to trump's "immunity") I trust smith will go for it.
The decision referenced that statute as "effectively provided an additional procedure for enforcing disqualification."
What that exactly means especially with the procedural safeguards cited by the opinion is unclear. For instance, the statute does not require proof that the person swore an oath to uphold the Constitution. Is that a problem? Is that a fact that has to be proven? How?
The provision is not a criminal provision (though they dubiously labeled it a "penalty"), so should not require a unanimous jury to find someone guilty beyond a reasonable doubt for it to be in place. Jack Smith also didn't use it for a reason. Again, I think he reasoned it would be harder to prove. OTOH, the indictment has language that overlaps with the constitutional definition of insurrection for purposes of this provision.
Is that enough? I doubt this Court will think so. I do personally.
I don't think the insurrection statute is limited to "oathswearers" so I don't think that would be a hindrance, since it itself provides no further offices can be held.
I'm not actually sure I find it disturbing that a unanimous guilty verdict be required. It is, of course, a pretty heavy penalty to be barred from office. And surely the drafters of the 14th had SOME idea of what they thought an insurrections was, but provided no means for deciding it; that has always bothered me about the self-executing part of the argument. Is a state by state definition better than a Federal one? Apparently no one on the court actually thought that, at least by the final vote. Hence the concurring decision, rather than the apparently first planned dissent.
I originally feared that the Court would go an originalist idea that the framers must have meant only something involving secession and war; I wonder if the Thomas Alito branch wanted that, but got talked out of it, allowing it to be punted. I don't think that punting on one state's definition, however, means that the court accepts that definition for all states.
We will have to wait for someone's memoirs to see what actually went on.
14A, sec. 3 is limited to those who swore an oath.
The statutory provision is not. So, it is not clearly enough on its own to meet the requirements of the amendment, especially under the terms of the opinion.
The 14A, sec. 3 provision is not a criminal provision. So, the constitutional provision shouldn't require the heavy proof of a criminal provision.
It didn't when it was applied originally. It would be a lot harder to enforce. Civil enforcement not requiring that high proof was used. It should be used as an option today. The opinion did allow state by state for state offices. And, if Congress gets around to enforcing it, it can still allow state discretion.
it's better than nothing. I still think that the statute, for whatever faults it has for being criminal, is broader on the oath bit, (by not requiring it) and does accomplish the same RESULT. So I don't think that for the statute failure to mention the oath is fatal to prosecution.
Do you have a cite for the use of civil enforcement back in the day? I'd be interested in reading it.
I'm talking about the 14th Amendment disqualification.
Not a prosecution for insurrection. What it takes to disqualify someone.
You have to show there was a previous oath. That's the issue of the case -- what exactly it takes to disqualify. And even that statute is unclearly useful for that purpose.
The briefing in the case and a lot of online discussion covered the history. Here's one link. But, more can be found other places too.
https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/ (citation of quo warranto action)
Thanks for cite. I can see that the Amendment didn't require criminal prosecution. Did any of those disqualified not join the Confederacy? Because if you look at the history too closely you can argue that the 14th was talking about secession and war when it was passed. History giveth and history taketh away.
I know you are talking about the 14th Amendment disqualification. I thought you were wondering if the fact that IT requires an oath broken means the statute requires one too. Clearly it doesn't. No question about the oathiness of the 14th.
I'm not happy with the decision; it would have been an easy solution and certainly justified on moral grounds to use the 14th. But I CAN see how state decisions would result in really conflicting definitions of insurrection, (forgettabout political conflicts--just DIFFERENT) and I guess I just feel that an Amendment which is primarily about limiting what states can do (no statutes violating paragraph 1) ought to be looking at a country-wide application of its third paragraph.
That said, I don't see why a state couldn't use it for a state office. Not clear whether the current opinion precludes that.
That "SUBJECT OF COURSE TO JUDICIAL REVIEW" seems rather ominous and more than a little snotty. But on brand.
6 March 24
I agree with James Carvelle.
SCOTUS is SCROTUS.
Their only interest is expanding corporate power.
https://youtu.be/V4TmHTibq-k
Mr. Geidner,
Why can't any state just enact a state law making a convicted felon (or someone who tried to overthrow any federal or state government) ineligible for that state's ballot?
First, there need to be distinctions between state and federal offices. Within federal offices, before Monday, I think many of us would have argued that they could have done so as to those oath-takers who had engaged in insurrection — as an implementation of Section 3. The broader restriction likely would run afoul of U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) as related to this discussion — aside from whether such a restriction would also violate other rights.
"there is effectively no way to enforce Section 3 against Trump before Jan. 6, 2025." seems a bit stretched. Congress could enact an enforcement statute, right? Making the decision to not do something is not the same as there being no way to do it.
We have a theory of constitutional order. We believe that it coheres seamlessly and that it is the job of the Court to smooth over any apparent discontinuities. The per curium opinion tried to do that with "but federalism means national, too, not just states!" That was refreshing but a desperate expedient for a faction interested in fostering rights that trump the national government.
What is happening is the same as Thomas Kuhn described in The Structure of Scientific Revolutions. Scientific theories begin as useful ways of accounting for observations and the "normal" work of science is to expand the scope of observations that conform to the theory turning into figuring out why some sets of observations refuse tamely to fall in line. At some point the contradictions between theory and observations become irreconcilable and some new paradigm is called forth to resolve the contradictions. Rinse repeat. Some topics go through the cycle a sufficient number of times to become Theories with a capital T that are worth no serious person's time, trouble and error to try to re-test.
There is nothing to guarantee that the Constitution, as amended, has to be internally consistent. Nor is there anything to guarantee that past harmonization of inconsistencies has to withstand new facts and circumstances. That's why the courts may avert there gaze from stare decisis for decisions that just no longer make sense in contemporary terms.
The five justices who said to Congress "don't go there, leave well enough alone" promulgated an attempted barrier to trying with dicta that will be rightly ignored by future Courts with more cohereent jurisprudence. The whole Federalist Society project attempting to put a principled argument in favor of the status quo ante was actually a radical, results-driven push to serve the power of the reactionary elements.
So, according to SCOTUS, if someone decides to run for the Presidency who doesn’t meet the minimum qualifications as spelled out in Article II—at least 35 years old, natural-born US citizen, having lived in the US for 14 years—s/he can’t be omitted from the ballot unless Congress votes that can happen?
I mean, wasn’t the 14th Amendment already voted on by Congress when it was ratified in 1868? Why does it have to be double super-secret ratified?
So instead of being the law of the land, the Constitution is merely a suggestion?
For context: some dude apparently leaked classified info on a dating app less than a month ago & he’s already set for trial.
It took years to even get an indictment for a tax evading, fraudulent, predatory, foreign money self dealing grifter, ffs.
And most of the illegality remains hidden or obfuscated, at least. Some isn’t even criminal. It’s bizarre.
Certainly, SCOTUS has no respect for “the unwashed masses” of the public. This isn’t new. It’s by design in their training & the legal system as it exists today.
I mean, the House impeached. Twice. Senate didn’t confirm, so it doesn’t matter.
Courts have adjudicated, in plurality, that an insurrection did, in fact, occur. Ergo, “Oathbreaking insurrectionists” are holding office TODAY. That doesn’t matter, cuz SCOTUS & legislatures can ignore it. Let the voters decide, right? In a system skewed to give more power to less people.
It’s obscene & not the world I want to leave to my grandkids. F* that noise.