Section 3 of the 14th Amendment

good catch. I believe the rest of the argument still holds though.

 

Same coin, two sides

 

I guess the difference is, if Trump loses the election and gun-toting magas are pissed off, I'll tell them to suck it, they were outvoted. But, if Trump is administratively denied a candidacy and gun-toting magas are pissed off, I'd have to agree they're right to be pissed off.

Trump doesn't particularly deserve to be on the ballot. But maybe in a future American anocracy, there comes a democratic reformer to challenge the ruling party and his previous work is administratively cast as an insurrection to justify his exclusion from political participation. Happens in other countries plenty. That is, of course, what Magas think or say is happening right now with Trump, but the reform he's actually proposing is to reduce the rule of law and to reduce the power of the legislative branch, which are both anti-democratic impulses. I would be much more comfortable employing this Section if we at least required proof beyond a reasonable doubt be established in a court of law. Then, when this hypothetical reformer comes along, they can't just administratively exile him but would have to corrupt the judicial system too.

 

Since the Supreme Court is all about States right we should have anything to worry about Right.

 

It can be a dangerous precedent.

 

Well that is my point. If what you're telling me is that the Constitution allows us to administratively disqualify Trump from the ballot, that section of the Constitution is a ridiculous and anti-democratic piece of garbage that should never have been added. It could be salvageable if its execution relied on a criminal conviction. As it stands, it's about as smart as the 3/5ths compromise, the individual right to bear arms, the lifetime appointment of supreme court justices, and the electoral college.

 

Since the Supreme Court is all about States right we should have anything to worry about Right.

There over reach has come back to bite them.

 

https://www.nytimes.com/2023/09/18/us/politics/trump-calabresi-14th-amendment.html

An About-Face on Whether the 14th Amendment Bars Trump From Office
Steven Calabresi, a founder of the Federalist Society, recently — and forcefully — said the former president was disqualified. He has had a change of heart.
By Adam Liptak
Reporting from Washington
Sept. 18, 2023

A little more than a month ago, a law professor who helped found the Federalist Society, the conservative legal group, enthusiastically endorsed a new law review article arguing that Donald J. Trump was ineligible to be president.

The article was “a tour de force,” the professor, Steven G. Calabresi, told me. It demonstrated, he said, that Mr. Trump was subject to a provision of the Constitution that bars some officials who have engaged in insurrection from holding government office.

“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” said Professor Calabresi, who teaches at Northwestern University.

He appeared to be offering considered views, and he elaborated on them in a blog post titled “Trump Is Disqualified From Being on Any Election Ballots.”

Last week, in an extraordinary about-face, the professor changed his mind.

In a letter to The Wall Street Journal, he said he had been persuaded by an opinion article in that newspaper that the provision — Section 3 of the 14th Amendment — did not apply to Mr. Trump.

In that article, Michael B. Mukasey, who served as attorney general under President George W. Bush, focused on a part of the provision that limits its scope to people who had taken an oath to support the Constitution “as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state.”

The only category that even arguably applies to Mr. Trump is “an officer of the United States,” Mr. Mukasey wrote. But that phrase, he asserted, “refers only to appointed officials, not to elected ones.”

That proposition is not self-evident, and the 126-page law review article that had set off the discussion, by William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, considered the meaning of “officer of the United States” at length.

It concluded that “the ordinary sense of the text” of the Constitution, “the structure and logic of its provisions,” “the evident design to be comprehensive,” “the seeming absurdity of the prospect of exclusion of the offices of president and vice president from triggering the disqualification” and other factors “all convince us that the natural conclusion is the correct one: Section 3 includes in its coverage, or ‘triggering’ language, insurrectionists who once served as president and vice president.”

They added a plea for a little common sense: “A reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”

In his letter to The Journal, Professor Calabresi said he now agreed with Mr. Mukasey’s take on the relevant part of Section 3, which he called the “disqualification clause.”

“Former President Donald Trump isn’t covered by the disqualification clause, and he is eligible to be on the ballot in the 2024 presidential election,” Professor Calabresi wrote. “I am correcting the public record on this important issue by sending you this letter.”

Mr. Mukasey’s article was not met with universal approval.

“Let me be clear,” Akhil Reed Amar, a law professor at Yale, said last week on his podcast. “This is a genuinely stupid argument.”

On Saturday, Professor Calabresi issued another blog post, this one called “Donald Trump Should Be on the Ballot and Should Lose.”

“Trump is loathsome, but because of a technicality in the drafting of the disqualification clause of Section 3 of the 14th Amendment, the clause does not apply to Trump,” he wrote, adding: “So, Trump’s name should appear on election ballots in the 2024 presidential election, but I strongly urge my fellow Americans to vote against Trump, almost no matter what else is the alternative.”

Professor Calabresi wrote that his thinking had been influenced by a new article posted on Tuesday by two other professors, Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, who have long pressed arguments that some provisions of the Constitution do not cover the president.

Their article, also 126 pages long, collected and considered what it said was “substantial evidence that the president is not an ‘officer of the United States’ for purposes of Section 3.”

It added: “Numerous sources that we cited discussed this issue; no one spoke in a ‘secret code,’ as Baude and Paulsen charge. If we are correct, Trump is not subject to Section 3 at all. If we are right, then states cannot unilaterally remove Trump from the ballot under the authority of Section 3.”

Professor Calabresi is, of course, entitled to change his mind. As Justice Felix Frankfurter put it in a 1949 dissent, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

In an interview on Saturday, Professor Calabresi said his revised position was the product of study and reflection.

“I carefully reread the materials on whether Section 3 of the 14th Amendment applies to Trump,” he said, “and concluded that it most likely does not.”

He added that politics had not figured in his thinking. “I will support,” he said, “any Republican or Joe Biden over Trump in the 2024 election.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
A version of this article appears in print on Sept. 19, 2023, Section A, Page 18 of the New York edition with the headline: In Reversal, Law Professor Says Former President Can Run After All.
​

 

Except that the Constitution invest the President as both Commander and Chief of the Military and also the top law enforcement officer. By definition the office of the President is a Constitutional office.

 

that's rather missing the point of what's being debated. That is precisely the interpretive issue at stake

 

If that is true he issue of what’s being debated how is it missing the point?

That would be the point of whether the President is a constitutional office and therefore subject to Section 3

 

If trump is off the ballot in a few swing states, the dem nominee should be able win in a landslide.

 

It's very likely there were firebrand Civil Rights leaders/groups considered "militant" at the time that called for bringing down the establishment and used non-peaceful measures to broadcast their message. To what extent would that be considered a "rebellion or insurrection"?

P.S. first time I heard about anocracy was from this TED Talk.

 

it was a comment more directed at the "by definition" part of what you were saying. One can't just fall back on "by definition" and think the argument is over.

 

Lol. I think there is some merit to the argument that the Section enumerates several offices and conspicuously doesn't mention the presidency. But, to take the argument a step further and try to differentiate between oaths arrives at the absurd and makes the whole objection look unserious.