There’s nothing keeping the Biden camp from running ads stating that a vote for Trump would be unconstitutional. Democratic Secretary of States refusing to put him on the ballot though would be propagated as Democrats putting their thumb on the scale, and taking away the voters rights. It’s not accurate of course but Republican voters just simply are ignorant and will not understand the nuance. However I think making it well known and making it viral the message that casting a vote for Trump under the 14th amendment would be unconstitutional.. I think could have an impact and could help those independent voters who don’t want to vote for Trump but don’t want to be ostracized by their MAGA social circle… which that’s actually a common thing in this country. Giving voters a technicality that is irrefutable could help the case.
I agree with your analysis is and I think a lawsuit against Trump on Section 3 is likely to fail. That said there is precedence now regarding someone for lower office being disqualified because of their actions on Jan 6. It’s important to note Trump hasn’t been convicted for his actions on Jan. 6 and while some legal scholars note conviction isn’t necessary for disqualification I think the Justices would be hesitant without that. Since it an unlikely a verdict will be made before the election it’s unlikely the USSC would rule on that. I also think the Roberts Court would find some ways to avoid even hearing the case.
I understand your point of view. Kicking Trump off the ballot is a very serious issue. Let me restate my point, if I have not been clear. I want Trump v Section 3 of the 14th Amendment litigated. I want the USSC to decide. Constitutional amendments are the foundation upon which the US builds it legal house. Adding a Constitutional amendment is extremely hard. We need to understand and respect each amendment. We can not pick and chose the ones we like and uphold. What Section 3 of the 14th Amendment says is very clear. How it gets implemented currently is not. Prima facie, January 6th was an insurrection to overthrown our Constitutional process wrt Presidential elections and Trump was its leader. Trump organized the January 6th protest. Trump told the protesters to storm the Capitol. The USSC needs to decide if January 6th was an insurrection. In doing so, they will need to define what constitutes an insurrection, like how they define what is and is not free speech. The USSC then needs to determine whether or not Trump was complicit (if January 6th was found to be an insurrection). Your points wrt innocent until proven guilty and conviction of an insurrection offense are legally not relevant. I am very sure that Trump supporters will agree with your points. Thus, your points will be extremely politically relevant. FWIW I understand what a complete **** show litigating Trump v Section 3 of the 14th Amendment will be. 25% of the public will be enraged if Trump is kicked off the ballot. And another 25% of the public will be enraged if he is not. We have Trump to thank for this.
I agree with you, but from a legal standpoint has Trump been proven as the leader of an insurrection? The issue I have is we can say he was and we can point to facts that show he was, but others will try and show he wasn't. So without a conviction how does the Supreme Court make a decision?
Point of order: even a generous reading of this clause wouldn't conclude that it was unconstitutional for a voter to cast a ballot for a disqualified person. A voter can vote for anybody they want. The constitutionality question would impact whether a candidate could appear on a ballot and/or be sworn into office. I get you. It's a valid point that there is some work to be done on clarifying the application of the Constitution here. And maybe that will be helpful some day. But, I think it'd be decidedly unhelpful right now and only provides two bad options in terms of whether or not Trump will destroy the republic. But, if we survive this, maybe the precedent will help us avoid problems 50 years from now.
Section 3 of the 14th Amendment does not require a conviction, right or wrong. The USSC will need to sort this out.
After being reminded of stuff about China jailing insurrectionists, the vagueness of that clause can be chilling. I'm not even sure heavy lifting by scrotus can define insurrection that can't be potentially weaponized. Constitutional crisis now or later... Serenity now
Right I thought that was clear. Sorry. Yeah I'm not suggesting that Biden's camp should be running ads that you'll get arrested if you vote for Trump. That would be some fear mongering crap that would circulated on MAGA forums and freak people like my mom out. I'm suggesting they speak more towards principles you stand for as Americans. The right uses these symbolic principled statements all the time to spread their ideology & support. Back the Blue being one of the examples. Perhaps there's a symbolic campaign that can happen that actually comes from a less problematic basis. (Yes our democracy, and Constitution are under attack & supporting Democracy is a good thing IMO vs people supporting police generally already, and BTB is more or less mass gaslighting) Point being, I think there's good reason to not be dismissive of the 14th Amendment applying to Trump because even if it cannot and should not be litigated right this second, it could serve a principled function in the next year or so. If it's messaged correctly, and focused on the voters vs the courts.
not in favor of this let Trump run and get soundly beaten again in 2024…maybe then, the garbage that is the republican party will finally wake up and purge MAGA filth from their party and start becoming somewhat sane
Trump will be running for President until the day he dies. He has found an endless supply of money, which he can not walk away from. Who can blame him? Beats working for a living.
I'm cautiously optimistic that Trump will lose. Besides polls showing most independents and even a significant portion of Republicans are against him the latest elections show that running on the 2020 election was stolen is a losing issue. A reckoning within the GOP is long overdue and it's going to take losing more elections for them to do so.
Posted elsewhere but posting here for the "one stop shoppers" ... Palm Beach County lawyer files legal challenge to disqualify Trump from 2024 presidential race Palm Beach Post reports: “Boynton Beach tax attorney Lawrence Caplan filed the challenge in federal court in the Southern District of Florida citing the amendment’s “disqualification clause” for those who engage in insurrections and rebellion against the United States. … “But constitutional scholar Kevin Wagner said invoking the amendment to kick Trump off the ballot is an endeavor that faces significant legal, constitutional and political hurdles. “‘There’s a legitimate argument that one can make surrounding the plain wording of the 14th Amendment and the accusations of what the president did on Jan. 6,’ said Wagner, a professor of political science at Florida Atlantic University. ‘But I think it’s a harder lift than people think and at the end of the day you have to find someone that’s willing to enforce it. … “Caplan’s filing asserts that Trump’s actions on Jan. 6, 2021 violated the amendment and asks that he be barred from seeking the presidency and from appearing on the ballot in Florida’s 2024 presidential primary next March 19. … “Caplan’s challenge is among the first 14 Amendment-related objections lodged against Trump in a federal court. However, discussion of the 45th president’s disqualification has surged in the past week. … “FAU’s Wagner agrees that the 14th Amendment may not require Trump’s conviction on any charges for it to be invoked. “‘What makes it tricky is it doesn’t say you don’t have to be convicted. It just says you have to engage in it,’ he said. “Nonetheless, despite the cacophony of constitutional chatter, Wagner said he thinks applying the 14th Amendment to Trump will be a challenge because of the scarcity of legal precedents. “‘The problem here is that there is no real case law, there’s no dominant interpretation that we can all look at and agree that this is how it is done,’ he said.” Florida lawyer files challenge to disqualify Trump from 2024 race, citing 14th Amendment A Florida lawyer is challenging former President Trump’s ability to run for president in 2024 under the U.S. Constitution’s 14th Amendment, citing the Jan. 6, 2021, Capitol attack. Lawrence Caplan, a tax attorney in Palm Beach County, filed the challenge in federal court Thursday, pointing to a clause in the amendment that says those who “have engaged in insurrection or rebellion” against the government cannot hold office. The challenge was first reported by The Palm Beach Post. “The bottom line here is that President Trump both engaged in an insurrection and also gave aid and comfort to other individuals who were engaging in such actions, within the clear meaning of those terms as defined in Section Three of the 14th Amendment,” Caplan wrote in the filing. “Assuming that the public record to date is accurate, and we have no evidence to the contrary, Trump is no longer eligible to seek the office of the President of the United States, or of any other state of the Union.” Caplan’s challenge is one of the first questioning the legality of Trump’s 2024 bid, though Trump is also facing criminal charges at both the state and federal level over his actions to undo the results of the 2020 vote. The former president is currently the far-and-away front-runner in the GOP presidential primary. In an interview with The Hill, Caplan said that “someone had to take the lead” on challenging Trump’s candidacy. “This is a scary, scary guy, and if he’s president, I think we’re all on the way to fascism,” he said. “There’s no law that says we have to remain a democracy forever.” In the filing, Caplan wrote that the facts of his case “are undeniably simple.” In 2016, Trump won the presidential election, and in 2020, he lost it. The following Jan. 6, Trump encouraged a throng of supporters to march to the Capitol, saying he’d be “right there with them,” Caplan wrote. “As we are well aware, the throng marched on the Capitol, forced their way into the Capitol building, ransacked the rotunda area, and even made their way into several offices of representatives and senators,” he wrote. The 14th Amendment’s “disqualification clause” was written in the context of the Civil War, meant to bar those who had joined the Confederacy from serving in state or federal office. But it would “theoretically still apply” to those who engage in future rebellions or insurrections against the U.S., according to Cornell University’s Legal Information Institute. Caplan told The Hill that he did not originally believe Trump’s role in the Capitol attack could disqualify him from becoming president again. That changed when he read an analysis by former 4th Circuit Appeals Court Judge J. Michael Luttig and Harvard legal scholar Laurence Tribe. In an article published last week in The Atlantic, Luttig, a conservative, and Tribe, who is liberal, contended that Trump’s efforts to remain in power after losing in 2020 “place him squarely within the ambit of the disqualification clause.” Trump’s grand jury indictments in the Washington, D.C., federal case and the Georgia case probing those efforts make his disqualification automatic, Caplan said. Trump surrendered to authorities on the Georgia charges Thursday evening, becoming the first former U.S. president to have a mug shot taken. “The common sense of it is that the law says that someone who’s indicted for causing an insurrection is automatically ineligible to run for federal office,” Caplan told The Hill. Whether the Capitol attack rises to the level of an insurrection under the law is a question still hotly debated among both legal scholars and politicians. In his filing, Caplan wrote that “one can certainly argue” that the clause has not been “thoroughly tested.” But he countered that is only because the U.S. has not otherwise “faced an insurrection against our federal government such as the one while we faced on January 6, 2021.” Caplan told The Hill on Friday that he is not an “overtly political person.” He said his first job out of law school was working for the National Security Agency — “so nobody could say that I’m not a patriot” — and that he has voted for Republicans in the past. “The law is the law,” Caplan said. “We’ll see whether or not the judges have the guts to follow the law.”
If there is no conviction then taking it to the Supreme Court is pointless. The majority will say "No insurrection". The minority will say "Insurrection". Now the question which needs to be answered is "if there is a conviction for crimes in Section 3 is an individual barred from running?"
I teach the age requirement as being clear, then being dumb from a strict textualist perspective. It's actually kind of funny. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; = No Person except a natural born Citizen, or a Citizen of the United States (at the time of the Adoption of this Constitution) shall be eligible to the Office of President;
This becomes a chicken-egg thing. Section 3 of the 14th Amendment does not reference a specific Insurrection federal law. IIRC there have been several insurrection related laws since Section 3 was added to the Constitution. But should they be relevant wrt Section 3? Perhaps the writers of the 14th Amendment and those who voted for its addition to the Constitution took a more “know it when you see it” approach to interpreting Section 3? I just don’t see this getting resolved until the USSC weighs in with the final say.
Of course they did, they were talking about the Civil War. That was the insurrection/rebellion they were writing about. The Confederates like Robert E Lee would not be eligible to be President.
https://www.wsj.com/articles/the-14...-candidate-president-fb3d65?mod=hp_opin_pos_1 The 14th Amendment Trump Panic Banning Trump from the ballot under Section 3 of the post-Civil War constitutional amendment would harm U.S. law and democracy. By The Editorial Board Sept. 4, 2023 at 5:57 pm ET You’d think Donald Trump’s opponents would learn. When they fight the former President in the voting booth, they have won every time since they lost with Hillary Clinton in 2016. But when they use lawfare, impeachment or phony collusion claims, they make Mr. Trump stronger. Here we go again. Now that their indictments have boosted Mr. Trump in the GOP primary polls (see nearby), his opponents are resorting to their worst idea since the panicky agitation of 2017 to remove him via the 25th Amendment. Now they want to invoke Section 3 of the Constitution’s 14th Amendment to disqualify him from the 2024 ballot. *** The 14th Amendment is one of the great post-Civil War amendments that enshrined equality under the law. Section 3 was aimed at Confederates who had taken up arms against the Union. Some legal scholars argue that this clause can now be used to disqualify Mr. Trump. They point to the language that says “no person” who has taken an oath to support the U.S. Constitution shall serve in any public office who has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” We agree that the disqualification clause has continuing legal force. Its relevance didn’t expire when the last of the Confederates died. What matters today, and in the future, is whether the clause applies to the facts of a specific case. And this is where the never Trumpers go awry—legally and politically. For starters, they assert that Mr. Trump’s actions after the 2020 election amount to an insurrection and that this is self-evident. Mr. Trump’s behavior was reprehensible, as we noted at the time and have since. But that’s far from saying it was an insurrection or rebellion under the statutory or constitutional meaning of those terms. The Jan. 6 rally on the Mall turned into a riot at the Capitol. This was an obstruction of a federal proceeding—i.e., the counting of electoral votes. But there have been many riots in American history against U.S. policy that turned violent. The 1970s were rife with them, including bombings of government buildings. It is surely relevant that Mr. Trump hasn’t been charged with insurrection under 18 U.S.C. Section 2383. Does anyone think special prosecutor Jack Smith would have refrained from charging that crime if he believed he could prove it in court? Instead he has charged a conspiracy to overturn the election, but that is not a rebellion. An over-broad definition of insurrection and rebellion under Section 3 could easily be abused by political partisans. Already there have been attempts to disqualify from the ballot politicians who supported Mr. Trump’s claims that the 2020 election was stolen. If Section 3 is invoked against Mr. Trump, he won’t be the last target. All the more so because proponents argue that the disqualification clause is “self-executing,” meaning that it automatically applies to someone who meets the criteria. They say it doesn’t require a criminal conviction in court and can be invoked by state officials to keep Mr. Trump off the ballot. So the Michigan secretary of state, an elected Democrat, could bounce him from that state’s ballot. This would seem to violate the due-process protections that are explicit elsewhere in the Constitution. Removing Mr. Trump by fiat would also deny voters the constitutional right to vote for the candidate of their choice. See Reynolds v. Sims (1964), among other precedents. This is precisely the right that Mr. Smith, the special prosecutor, accuses Mr. Trump of violating. Democrats would arguably be committing the same offense. This is how tens of millions of voters would see it, and the fury in response might not be limited to verbal protests or marches. Knocking Mr. Trump off the ballot would validate, in the eyes of his supporters, his claims that the election system is rigged and corrupt. Advocates of disqualification say not to worry, the judiciary would settle all this after Mr. Trump challenged his disqualification. They say the Supreme Court would have to hear the case, however much the Justices would rather not. That’s probably right but hardly reassuring. This would throw the Court into the middle of the presidential race, jeopardizing the Court’s reputation as apolitical with partisans on one side or the other. *** For Mr. Trump’s opponents, these risks are justified because the former President poses a unique threat to U.S. democracy. They’re willing to put democracy at risk in order to save it. But U.S. institutions held up reasonably well despite the strains of the Trump Presidency—even the events of Jan. 6. The transfer of power took place on schedule. Republicans across the government broke with Mr. Trump and supported that transfer. The rioters and organizers are being punished, often severely. We have argued from the moment Mr. Trump entered the presidential contest in 2015 that the way to defeat him is through the ballot box. Voters will get their chance to do it again next year—first in the primaries and perhaps the general election. If Mr. Trump does somehow regain the Presidency, in part because Democrats insist on renominating a weak President Biden, the normal U.S. checks and balances will continue to exist. The consequences of a 14th Amendment panic are likely to be worse for democracy and its institutions than trusting voters and 234 years of sturdy constitutional example. Appeared in the September 5, 2023, print edition as 'The 14th Amendment Trump Panic'.
