Yeah, I’m still listening through it now, but it’s pretty disheartening. One thing that bothers me was this notion that section 3 bars an insurrectionist from holding office, not from running for office, and I think that’s insane. I mean, sure, if someone who turns 35 on January 2, 2025 runs for President, they shouldn’t be barred from running because they would be eligible by the time they take office, but that’s an objectively knowable fact that can be determined at the time they file the paperwork to run for office. What if an 18 year old tries to run? Are they really saying the states can’t prevent that? Asinine.
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Yeah, that shit seems fucking WILD… and they keep clutching their pearls over his base being “disenfranchised” because they would not be able to vote for him!!!
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They seem to be trying to split hairs by saying the age requirement is different since it can be determined objectively whereas the “insurrection” question needs to be decided through some kind of legal or political process at the Federal level.
To which I would respond “why do you think we’re HERE??”
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The one thing I will agree with, and I’ve said this before, is that Congress could have prevented all of this had they just enacted some enabling/enforcing legislation after the 14th Amendment was ratified. Section 5 explicitly gives them the authority to do that. They could have passed a law stipulating what constitutes insurrection or rebellion, who gets to make that determination and how…all of the questions being asked in this lawsuit could have been preempted by just passing a law. And for some fucking reason, right after the 14th Amendment was passed, apparently Congress couldn’t imagine the thing that had literally just happened happening again, so they just did nothing.
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I think it was because by the time the reconstruction amendments had passed, the Radical Republicans were starting to run out of steam, to leave office, etc. This was the period where you started to see a really volatile economy, the rise of the labor movement, spike in immigration from eastern and southern Europe, a rise in violence out west as the US government incentivized white people to move west in larger numbers, the rise of the robber barons… so much going on by the early 1870s, that it’s not a huge surprise that it got left off the table…
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Yeah, it’s just a shame, because that kind of legislation could have dealt with all of the 14th Amendment, not just section 3. In short, it could have prevented segregation. Granted, that’s really unlikely, but still…it could have been done.
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That certainly would have created clarity, but no matter how clearly a law is written there is usually some legal process or authority in charge of determining whether a given individual broke said law.
So no matter what we’d still be in a position where either Congress, the courts or some other Federal authority had to make a determination regarding a candidate’s eligibility. And the ones we have at this particular moment in history seem intent on passing the buck.
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Oh yeah…
You know, I don’t know if he ever wrote it or got it anywhere near off the ground, but a while ago, when the guys who were the show runners for Game of Thrones announced that they were going to do an alternate history where the south won the civil war (which… 
who fucking needs that shit), Aaron McGruder proposed instead a series that was an alternate history where reconstruction did what it should have done - which was build a multi-racial democracy… I guess that never got off the ground, but that would have been an amazing series… what would America look like now had we managed to prevent segregation… 
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But it would be a defined process. And we’d have a definition of what constitutes insurrection. Right now, we have none of that. It’s all just up to what anyone wants to say it is.
So, for example, maybe Congress would have said that the individual has to have been convicted of one of several crimes, including a list of them, in a state or federal criminal court. If that’s what they’d done, we would know that Trump couldn’t yet be declared ineligible. Or, maybe they would say it’s up to each state’s chief election official to make the determination. In which case, we would know that Maine had properly removed Trump from their ballot. And that wouldn’t really be challengeable. Or, maybe they say that only the US Congress can declare a candidate ineligible under section 3. However they did it, we would have an objective standard against which to make the determination. Sure, people would probably still disagree, and they might challenge the constitutionality of that law itself, but we would have definitions and standards. Right now, it’s all just up in the air, and my analysis, frankly, is as valid as Clarence Thomas’s, until they issue a decision.
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It’s true that Congress could have cleared a lot of those questions up by including clearer provisions for such when they wrote the 14th Amendement in 1866.
It’s also true that the Supreme Court is grossly negligent in its responsiblity to provide a timely and definitive ruling on Trump’s eligibility in 2024.
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Yeah, one of the justices DID make that point yesterday (I forget who?), but it was something when they were discussing possible tit-for-tat retaliation that they felt this could open up, because there is no definition around what constitutes an “insurrection”, so it could be anything (something happening down the street, I think one justice said - Kavannaugh perhaps). I guess that’s not a awful point… but they certainly had no interest in engaging on the point of whether what happened on Jan. 6th WAS an insurrection…
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Well…they can’t really answer that. Or…they shouldn’t. That’s a mixed question of law and fact, and they can only address questions of law. That’s true of all appeals courts, not just SCOTUS. Questions of fact are determined by trial courts. Appeals courts address questions of law. So…they can talk about what constitutes insurrection and rebellion, but they can’t answer definitely whether Trump engaged in insurrection or rebellion. They could say the Colorado court incorrectly defined it, and kick it back for them to reconsider, but they can’t say definitively “Trump engaged in insurrection.”
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Yeah… So does that mean that they should find that colorado should keep him on the ballot, then? Given that reality?
Maybe the immunity thing will go better…
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As Mindy stated, we know the reasons. I mean, after the Civil War, the US government was largely in thrall to the racists for a century.
I’m intensely curious about your opinion on this: what is the difference between the 14th Amendment that requires legislation to define things vs the Bill of Rights? Why does it require congressional action for the court to uphold Section 3 when they constantly shut down legislation to provide detailed conditions of the 2A?
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I have mixed opinions. I’ve expressed before the same concern expressed by some Justices yesterday: what’s to stop other states from declaring a candidate ineligible for some stupid frivolous reason? That being said, I’m also firmly in an antifa-ish frame of mind when it comes to Trump: I think almost anything short of assassination to keep Trump from becoming President again I’m ok with. Even if there are unpleasant consequences that we later have to deal with.
I hope SCOTUS denies cert on that. They should. There’s no real legal question there.
I never said the 14th Amendment requires it. I said it allows it, and it would have cleared up a lot of problems. As far as the 2nd Amendment goes, again, there is legislation, even now, that is allowed that places limits on that. In Heller vs. DC, the case that struck down handgun bans, Scalia said “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Also, initially, none of the Bill of Rights applied to the states. It was actually the 14th that largely incorporated those rights to also apply to the individual states.
Look, Constitutional Law is complicated and infuriating. And the truth is, the Justices on the Supreme Court, regardless of their ideology, are all doing the same thing: using the Constitution and various other sources of law and philosophy to justify their opinions. Even the so-called originalists like Thomas do this. There really is no such thing as an originalist. It sucks, and it’s always sucked. Sometimes, the Supreme Court gets things really, really wrong. Sometimes they get things really, really right. And most of the time, it’s somewhere in between. But it’s always been this way, and it’s always been infuriating. This is why Presidential elections are so important right now. We have to shift the balance back to the left, and keeping the White House in control of the Democratic Party is the only way to do that.
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I guess what I’m trying to say, is that I don’t understand why SCOTUS seems to be applying this standard (No one can enforce 14Asec3 because Congress didn’t make a law to define it) when that standard is not applied to any other Constitutional Amendment that I can think of. It seems like a desperate reach to both avoid ruling on it while also avoiding the controversy of allowing Colorado to proceed. It seems like they are shirking their duty to make a determination.
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Well we don’t know for sure yet what they’re going to say, but their questioning seems to be leaning towards them saying that the states can’t enforce it, not that no one can. The states don’t enforce the 2nd Amendment, either. Or any amendment. Enforcement of those is up to the federal government. Now, with the Bill of Rights especially, a lot of state constitutions duplicate some or all of those rights, so they may enforce them sometimes, but they’re actually enforcing their state constitutions.
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Thank you.
One quibble: state and local courts directly enforce several amendments when they rule on due process, 1A protections, etc. There aren’t federal laws that define those; they are enforced directly. And Colorado’s state court system reviewed and upheld this action.
