[Cause]

At this point we have had books or interview statements by Trumps former attorney general, secretary of defense, his chiefs of staff, White House aides etc etc etc that he is dangerous and unfit for office. Yet they are quite during the primary that is now almost over. If they would t act to try steer the republican nomination to a more favorable candidate will they do it during the general election?

Why won’t they speak?

[Lady Bliss]

 Cause, on 29 January 2024 - 11:42 AM, said:

At this point we have had books or interview statements by Trumps former attorney general, secretary of defense, his chiefs of staff, White House aides etc etc etc that he is dangerous and unfit for office. Yet they are quite during the primary that is now almost over. If they would t act to try steer the republican nomination to a more favorable candidate will they do it during the general election?

Why won’t they speak?

I think Trump has dirt on all of them.

[Gorefest]

Also, they have already spoken. Nobody is listening, or they just don't care.

[Azath Vitr (D'ivers]

Biden seems to have backed down. He's letting Abbott and the other borderline-treasonous GOP governors get away with it:

Quote

Texas Lt. Gov. Dan Patrick said Monday the state will continue installing razor wire at the U.S.-Mexico border, despite the Supreme Court ruling allowing the Biden administration to remove it.

[...] "I was down there Friday with our troops to thank them, support them, and also to stand with them in the event the Biden administration did send Border Patrol there," Patrick said. "Wisely, they did not. We're thankful they did not. We don't want a confrontation, but we want this border secure."

Representatives for the Biden administration did not immediately respond to Axios' requests for comment.

Texas won't stop putting up razor wire at border, Lt. Gov. Dan Patrick says (axios.com)

On a happier note:

Quote

The Rise of Techno-Authoritarianism

[...] Technocracy first blossomed as a political ideology after World War I, among a small group of scientists and engineers in New York City who wanted a new social structure to replace representative democracy, putting the technological elite in charge.

So far, so good... yes, science. And technology.

Quote

[...] in his farewell address, President Dwight Eisenhower warned the nation about the dangers of a coming technocracy. "In holding scientific research and discovery in respect, as we should," he said, "we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite. It is the task of statesmanship to mold, to balance, and to integrate these and other forces, new and old, within the principles of our democratic system—ever aiming toward the supreme goals of our free society."

That's exactly the sort of technocracy that should take control of the world: a scientific-technological elite.

Quote

AI really could cure numerous diseases. It really could transform scholarship [...] Except that Silicon Valley, under the sway of its worst technocratic impulses, is following the playbook established in the mass scaling and monopolization of the social web. [...] corporations leading the way in AI development are not focusing on the areas of greatest public or epistemological need [...] Instead they are engaged in a race to build faster and maximize profit.

The Rise of Technoauthoritarianism - The Atlantic

Quote

A new, powerful, well-funded political movement is rising fast in America: the techno-optimists. Why it matters: This group [...] is building impressive, if unorganized, political muscle through social media, podcasts, new journalism projects, and political donations and activism.

[...] If the techno-optimists have a presidential candidate, it's RFK Jr.

Rise of techno-optimism: Silicon Valley backed new political force in America (axios.com)

Not like this!

So much for the 'scientific' part (though I guess a charitable interpretation would be that they're trying to take votes away from Trump by promoting RFK Jr.).

This post has been edited by Azath Vitr (D'ivers: 30 January 2024 - 03:45 PM

[Lady Bliss]

I don’t understand why people are saying that Biden is backing down from Biden. I suspect things are happening behind the scenes with the republicans acting like they are ready to start a civil war. No way he wants to sent national reserve troops down there unless it really is the last option.

[Azath Vitr (D'ivers]

Lady Bliss, on 31 January 2024 - 05:43 PM, said:

I don't understand why people are saying that Biden is backing down from Biden. I suspect things are happening behind the scenes with the republicans acting like they are ready to start a civil war. No way he wants to sent national reserve troops down there unless it really is the last option.

All he'd have to do is take federal control of the Texas National Guard. He's legally entitled to do so. They're part of the US mlitary.

The question then is whether they'd remain loyal to the United States or to MAGA. Maybe they think they'll go to Heaven and become martyrs, like that one rioter who got shot going after congress members?

In the meantime, the razor wire continues going up, Texas National Guard continues denying the Border Patrol access so they can provide medical aid for women and children mauled by the razor wire, and more people continue to get mauled. IDK why they haven't followed Trump's old suggestion of adding a moat full of hungry alligators---though perhaps cultivating a taste for human flesh among the alligator population wouldn't be in the best interests of Texas (if alligators can even survive well in that climate... even if they're getting fed a regular diet of humans).

Article by a sociologist in today's NYT (today's night?):

Quote

As for our continuing distress, the standard explanation is a uniquely American loneliness. The surgeon general, Vivek Murthy, declared it an epidemic in its own right.

The truth, however, is there’s no good evidence that Americans are lonelier than ever. [...] a major recent poll shows that older Americans are now significantly less lonely than they were three years ago; a recent peer-reviewed study reports that middle-aged Americans describe themselves as less lonely than they were 20 years ago. Loneliness is more pervasive among younger Americans, but there too, the rates have also plummeted since 2020. [...]

[...] loneliness was never the core problem. [...]

[...] while other countries built trust and solidarity, America — both during and after 2020 — left millions to fend for themselves. [...]

[...] We all remember the viral videos of people screaming at one another in supermarkets and on public transportation. Violent crime spiked. Even reckless driving surged — but it happened only in the United States.

[...] Voters are refusing to behave the way some are telling them would be rational. But the inequities that the pandemic laid bare have only deepened over time. For millions of Americans, distrust feels like the most rational state.

[...] the cold war [between MAGA and anti-MAGA ...] may soon come to a boil.

How Covid Changed America in 2020 - The New York Times (nytimes.com)

[Azath Vitr (D'ivers]

Quote

[Trump's lawyers are arguing that] disqualification [from running for office] does not apply to a former president who has violated his oath, because the president is not an "officer of the United States" and Section 3 applies only to someone who has "previously taken an oath, as a member of Congress, or as an officer of the United States, or [...] or as an executive or judicial officer of any State, to support the Constitution of the United States."

Just about everyone who wishes to run for president has served in an earlier office and taken an oath to support the Constitution. [...] Trump admits he is arguing for an exception that likely would apply only to Trump and to no one else: "Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment."

Donald Trump asks Supreme Court for Bush v. Gore treatment. (slate.com)

... so the Supreme Court could plausibly bar states from disqualifying Trump, but allow them to disqualify Biden for sedition (as well as Nikki Haley, among others)....

This post has been edited by Azath Vitr (D'ivers: 07 February 2024 - 01:32 PM

[Mentalist]

If you were commander-in-chief (literally the top link in the chain of command), how is that not officer rank?

[worry]

That's not even really what the word 'officer' means in this context. I mean, an 'officer of the court' isn't just the bailiff. Being president, in and of itself, is being an officer of the executive branch, and he made that oath on January 20, 2017.

[Azath Vitr (D'ivers]

Mentalist, on 07 February 2024 - 02:49 PM, said:

If you were commander-in-chief (literally the top link in the chain of command), how is that not officer rank?

Quote

when the same sentence in the Constitution uses two different phrases—here, referring to different categories of offices and officers—we should presume that the Framers intended to convey two different meanings. 16 This latter principle can be called the presumption of intrasentence non-uniformity: where different language is used in the same sentence, we presume that the language is not used uniformly. Given this presumption, the phrases "officer of the United States" and "office . . . under the United States" would
have different meanings.

[...]

The Framers of the Constitution of 1788 made many other changes to "office"- and "officer"-language in provisions of the draft constitution. [...] In the Impeachment Clause, the phrase "[President, Vice President,] and other Civil officers of the U.S." was changed to "President, Vice President, and Civil Officers of the U.S."24 And in its final form, the Impeachment Clause became: "President, Vice President, and all civil Officers of the United States."

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

But the president is traditionally not considered a military officer, despite being the Commander in Chief, though the Supreme Court has not ruled on that and similar ambiguities might apply (IDK):

The President as Commander of the Armed Forces :: Article II. Executive Department :: US Constitution Annotated :: Justia

Quote

[...] we can reasonably presume that these two elements were drawn from very similarlyworded provisions from the Constitution of 1788. And if the phrases "Officers of the United States" and "Office . . . under the United States" had different meanings in the Constitution of 1788, we can reasonably presume that the Framers of Section 3 also understood these phrases to have different meanings.

[...] the Appointments Clause spells out with clarity that
the president can nominate "Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."

[...] the commission clause provides that "all the officers of the United States" receive presidential commissions. All means all. [...] but there is no record of any elected
official, [not even!] a president, [...] ever receiving a [presidential] commission.

Our position is consistent with recent Supreme Court precedent. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" [...] It follows from these premises that the President, who is an elected official, is not an "officer of the United States.

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

TL;DR a lot of tortuous, weakly-supported horseshit that makes the 'plain language' aspect of Textualism seem comparatively appealing. But Roberts &co might go for it anyway.

Here's the abstract of an extensive rebuttal:

Quote

we (1) provide corpus linguistic evidence that the full phrase "officer of the United States" was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words "appoint" and "elect" were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an "officer of the United States" or otherwise indicate he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President's and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Parts III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including "officers of the United States." Part IV then discusses specific evidence that the President is not just an officer, but is an "officer of the United States" as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified—explicitly referring to himself as either the "chief executive officer of the United States" or "chief civil executive officer of the United States." Other evidence comes from numerous texts, including legislative history, Johnson's impeachment trial, and newspapers.

Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment

OTOH, a legal expert who cites the latter rebuttal also argues:

Quote

The court should write that states' disqualification of Trump is an unconstitutional burden on the associational rights of voters and the Republican Party that would soon select him as their candidate.

[...] A state's decision to disqualify the presumptive nominee of a major political party deprives a significant portion of citizens of their ability to cast a vote for their preferred candidate. Especially in a nationwide election, the determination of a few key states to disqualify a candidate could tip the outcome of an election. The burden reaches into states that did not disqualify Trump and could render meaningless the Republican Party's nationwide nomination. The Supreme Court should issue an opinion in favor of Trump that weighs the burden of disqualification on his would-be voters more heavily than Colorado's interest in keeping an insurrectionist off its ballot.

How the Supreme Court can keep Trump on ballot, maintain credibility. (slate.com)

But the 14th Amendment is an amendment to the Constitution. Shouldn't it take precedent over any previous aspects of the Constitution it might appear to conflict with? Evidently the author thinks that 'the burden of disqualification on his would-be voters' should take legal precedence over the 14th Amendment and effectively nullify it---at least for the presidency. So any part of the Constitution that's sufficiently 'important' can't be amended? Ridiculous.


[Edit: I was mistaken about the Slate article being by one of the authors of the rebuttal---they were only citing it.]

This post has been edited by Azath Vitr (D'ivers: 07 February 2024 - 04:15 PM

[HoosierDaddy]

Legislative interpretation and construction is one of the classes at law school. At mine it was a first year mandatory class. There's some very, very into the weeds processes for how to interpret a statute's (and constitution + amendments) language.

There are a lot of ways to make arguments that aren't completely invalid, if not necessarily common sense.

The court will find a way to reinstate him on ballots. I just don't see them removing Trump. Too political (and against their own instincts).


Honestly you could argue that it wasn't an insurrection as he certainly hasn't been found guilty of fomenting one... at least yet, so there's no way to bar him under the 14th's clause. They'd need a better illustration than the confederacy where they pretty blatantly outlined their purported secession from the union.

[Azath Vitr (D'ivers]

HoosierDaddy, on 07 February 2024 - 04:32 PM, said:

Legislative interpretation and construction is one of the classes at law school. At mine it was a first year mandatory class. There's some very, very into the weeds processes for how to interpret a statute's (and constitution + amendments) language.

There are a lot of ways to make arguments that aren't completely invalid, if not necessarily common sense.

The court will find a way to reinstate him on ballots. I just don't see them removing Trump. Too political (and against their own instincts).

Honestly you could argue that it wasn't an insurrection as he certainly hasn't been found guilty of fomenting one... at least yet, so there's no way to bar him under the 14th's clause. They'd need a better illustration than the confederacy where they pretty blatantly outlined their purported secession from the union.

So long as there's enough interpretive 'wiggle room' for the rich and powerful to get their way, we have 'our Freedom'....

Of course the 'conservatives' on the Supreme Court will sacrifice their commitment to Originalism (which in this case overwhelmingly favors allowing states to bar Trump from the ballot) for partisan power....

Quote

No matter what "officer of the United States" meant in the 1860s, he says, the Framers of the 14th Amendment must have been looking back to the original Constitution, referring to the meaning of the words used at that time.

But that's not how constitutional interpretation works. The theory that judges should resolve constitutional disputes by looking at what the Constitution's words meant at the time they were written doesn't mean that the oldest evidence is the best. Instead, as Justice Clarence Thomas wrote for the court two years ago, judges must give words in the Constitution the meaning "they were understood to have when the people adopted them." So in this case, the court should look to the 1860s[...]

And there is abundant evidence that Americans in the 1860s understood the president to be an "officer of the United States." [...] many examples in which members of Congress—including members of the 39th Congress, who wrote the 14th Amendment and sent it to the states for ratification—used the word "officer" to refer to the president. [...] lawyers and judges, including justices on the U.S. Supreme Court, did the same.

There's an originalist hole in Trump's Supreme Court ballot argument. (slate.com)

This post has been edited by Azath Vitr (D'ivers: 07 February 2024 - 05:34 PM

[HoosierDaddy]

Precedent and consistency used to be a staple of the court. This court has thrown that out the windows with Roe's death, and is now attempting to empty the entire house out of that window... when it is expedient to do so for their causes. That's the most galling part. If they were just consistently massive conservative assholes yearning for 1895, that'd be one thing.

Instead, they twist themselves about arriving to their sought conclusions. Thomas and Alito are of course the worst offenders, but the others allow it to happen. Those two should be forced to write dissenting or concurring opinions every time because they should never speak for the majority.

It's maddening.

[worry]

Yup. And with Roberts as #6 instead of #5, he can't even really do his "I sometimes have integrity" shtick cuz it means absolutely nothing.

[Mentalist]

Azath Vitr (D, on 07 February 2024 - 04:12 PM, said:

Mentalist, on 07 February 2024 - 02:49 PM, said:

If you were commander-in-chief (literally the top link in the chain of command), how is that not officer rank?

Quote

when the same sentence in the Constitution uses two different phrases—here, referring to different categories of offices and officers—we should presume that the Framers intended to convey two different meanings. 16 This latter principle can be called the presumption of intrasentence non-uniformity: where different language is used in the same sentence, we presume that the language is not used uniformly. Given this presumption, the phrases "officer of the United States" and "office . . . under the United States" would
have different meanings.

[...]

The Framers of the Constitution of 1788 made many other changes to "office"- and "officer"-language in provisions of the draft constitution. [...] In the Impeachment Clause, the phrase "[President, Vice President,] and other Civil officers of the U.S." was changed to "President, Vice President, and Civil Officers of the U.S."24 And in its final form, the Impeachment Clause became: "President, Vice President, and all civil Officers of the United States."

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

But the president is traditionally not considered a military officer, despite being the Commander in Chief, though the Supreme Court has not ruled on that and similar ambiguities might apply (IDK):

The President as Commander of the Armed Forces :: Article II. Executive Department :: US Constitution Annotated :: Justia

Quote

[...] we can reasonably presume that these two elements were drawn from very similarlyworded provisions from the Constitution of 1788. And if the phrases "Officers of the United States" and "Office . . . under the United States" had different meanings in the Constitution of 1788, we can reasonably presume that the Framers of Section 3 also understood these phrases to have different meanings.

[...] the Appointments Clause spells out with clarity that
the president can nominate "Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."

[...] the commission clause provides that "all the officers of the United States" receive presidential commissions. All means all. [...] but there is no record of any elected
official, [not even!] a president, [...] ever receiving a [presidential] commission.

Our position is consistent with recent Supreme Court precedent. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" [...] It follows from these premises that the President, who is an elected official, is not an "officer of the United States.

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

TL;DR a lot of tortuous, weakly-supported horseshit that makes the 'plain language' aspect of Textualism seem comparatively appealing. But Roberts &co might go for it anyway.

Here's the abstract of an extensive rebuttal:

Quote

we (1) provide corpus linguistic evidence that the full phrase "officer of the United States" was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words "appoint" and "elect" were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an "officer of the United States" or otherwise indicate he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President's and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Parts III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including "officers of the United States." Part IV then discusses specific evidence that the President is not just an officer, but is an "officer of the United States" as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified—explicitly referring to himself as either the "chief executive officer of the United States" or "chief civil executive officer of the United States." Other evidence comes from numerous texts, including legislative history, Johnson's impeachment trial, and newspapers.

Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment

OTOH, a legal expert who cites the latter rebuttal also argues:

Quote

The court should write that states' disqualification of Trump is an unconstitutional burden on the associational rights of voters and the Republican Party that would soon select him as their candidate.

[...] A state's decision to disqualify the presumptive nominee of a major political party deprives a significant portion of citizens of their ability to cast a vote for their preferred candidate. Especially in a nationwide election, the determination of a few key states to disqualify a candidate could tip the outcome of an election. The burden reaches into states that did not disqualify Trump and could render meaningless the Republican Party's nationwide nomination. The Supreme Court should issue an opinion in favor of Trump that weighs the burden of disqualification on his would-be voters more heavily than Colorado's interest in keeping an insurrectionist off its ballot.

How the Supreme Court can keep Trump on ballot, maintain credibility. (slate.com)

But the 14th Amendment is an amendment to the Constitution. Shouldn't it take precedent over any previous aspects of the Constitution it might appear to conflict with? Evidently the author thinks that 'the burden of disqualification on his would-be voters' should take legal precedence over the 14th Amendment and effectively nullify it---at least for the presidency. So any part of the Constitution that's sufficiently 'important' can't be amended? Ridiculous.


[Edit: I was mistaken about the Slate article being by one of the authors of the rebuttal---they were only citing it.]

If the Amendment took out the word "other", then my immediate instinct would be to say they specifically wanted to exclude the Pres and VP from the scope of the law.


But I didn't have to do much statutory interpretation, and I know nothing about the US constitution (Ours is a lot simpler), so I can't really weigh in much on the matter.

[Azath Vitr (D'ivers]

Mentalist, on 07 February 2024 - 10:14 PM, said:

Azath Vitr (D, on 07 February 2024 - 04:12 PM, said:

Mentalist, on 07 February 2024 - 02:49 PM, said:

If you were commander-in-chief (literally the top link in the chain of command), how is that not officer rank?

Quote

when the same sentence in the Constitution uses two different phrases—here, referring to different categories of offices and officers—we should presume that the Framers intended to convey two different meanings. 16 This latter principle can be called the presumption of intrasentence non-uniformity: where different language is used in the same sentence, we presume that the language is not used uniformly. Given this presumption, the phrases "officer of the United States" and "office . . . under the United States" would
have different meanings.

[...]

The Framers of the Constitution of 1788 made many other changes to "office"- and "officer"-language in provisions of the draft constitution. [...] In the Impeachment Clause, the phrase "[President, Vice President,] and other Civil officers of the U.S." was changed to "President, Vice President, and Civil Officers of the U.S."24 And in its final form, the Impeachment Clause became: "President, Vice President, and all civil Officers of the United States."

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

But the president is traditionally not considered a military officer, despite being the Commander in Chief, though the Supreme Court has not ruled on that and similar ambiguities might apply (IDK):

The President as Commander of the Armed Forces :: Article II. Executive Department :: US Constitution Annotated :: Justia

Quote

[...] we can reasonably presume that these two elements were drawn from very similarlyworded provisions from the Constitution of 1788. And if the phrases "Officers of the United States" and "Office . . . under the United States" had different meanings in the Constitution of 1788, we can reasonably presume that the Framers of Section 3 also understood these phrases to have different meanings.

[...] the Appointments Clause spells out with clarity that
the president can nominate "Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States."

[...] the commission clause provides that "all the officers of the United States" receive presidential commissions. All means all. [...] but there is no record of any elected
official, [not even!] a president, [...] ever receiving a [presidential] commission.

Our position is consistent with recent Supreme Court precedent. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" [...] It follows from these premises that the President, who is an elected official, is not an "officer of the United States.

IS THE PRESIDENT AN "OFFICER OF THE UNITED STATES" FOR PURPOSES OF SECTION 3 OF THE FOURTEENTH AMENDMENT? New York University Journal of Law & Liberty

TL;DR a lot of tortuous, weakly-supported horseshit that makes the 'plain language' aspect of Textualism seem comparatively appealing. But Roberts &co might go for it anyway.

Here's the abstract of an extensive rebuttal:

Quote

we (1) provide corpus linguistic evidence that the full phrase "officer of the United States" was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words "appoint" and "elect" were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an "officer of the United States" or otherwise indicate he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President's and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Parts III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including "officers of the United States." Part IV then discusses specific evidence that the President is not just an officer, but is an "officer of the United States" as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified—explicitly referring to himself as either the "chief executive officer of the United States" or "chief civil executive officer of the United States." Other evidence comes from numerous texts, including legislative history, Johnson's impeachment trial, and newspapers.

Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment

OTOH, a legal expert who cites the latter rebuttal also argues:

Quote

The court should write that states' disqualification of Trump is an unconstitutional burden on the associational rights of voters and the Republican Party that would soon select him as their candidate.

[...] A state's decision to disqualify the presumptive nominee of a major political party deprives a significant portion of citizens of their ability to cast a vote for their preferred candidate. Especially in a nationwide election, the determination of a few key states to disqualify a candidate could tip the outcome of an election. The burden reaches into states that did not disqualify Trump and could render meaningless the Republican Party's nationwide nomination. The Supreme Court should issue an opinion in favor of Trump that weighs the burden of disqualification on his would-be voters more heavily than Colorado's interest in keeping an insurrectionist off its ballot.

How the Supreme Court can keep Trump on ballot, maintain credibility. (slate.com)

But the 14th Amendment is an amendment to the Constitution. Shouldn't it take precedent over any previous aspects of the Constitution it might appear to conflict with? Evidently the author thinks that 'the burden of disqualification on his would-be voters' should take legal precedence over the 14th Amendment and effectively nullify it---at least for the presidency. So any part of the Constitution that's sufficiently 'important' can't be amended? Ridiculous.


[Edit: I was mistaken about the Slate article being by one of the authors of the rebuttal---they were only citing it.]

If the Amendment took out the word "other", then my immediate instinct would be to say they specifically wanted to exclude the Pres and VP from the scope of the law.

But I didn't have to do much statutory interpretation, and I know nothing about the US constitution (Ours is a lot simpler), so I can't really weigh in much on the matter.

That's not from the Amendment, it's from a series of drafts of the impeachment clause of the Constitution from the late 1700's.

They could have simply taken out 'other' because they considered it obviously unnecessary, but kept President and Vice President to emphasize that they were umambiguously eligible for impeachment. Or:

Quote

[...] may have listed the president and vice president separately because they were the most important officers subject to impeachment, not because presidents were categorically different from "officers of the United States." Consider the verbiage of a 1776 letter to George Washington sending love to "Mrs. Washington and all the Ladies,"or a 2024 American Legislative Exchange Council proposal for "protecting Taylor Swift and all Americans from illegal deepfakes." Was Martha Washington not a lady?

There's an originalist hole in Trump's Supreme Court ballot argument. (slate.com)

NO, SHE WAS A SUCCUBUS! SHE ATE HIS TEETH!

Quote

even if Trump were right about the impeachment clause, he doesn't present any evidence that the 14th Amendment's drafters and ratifiers incorporated the impeachment clause's meaning when they used the phrase "officer … of the United States." [...] If they wanted the term to have a technical meaning drawn from another part of the Constitution, wouldn't they have said so?

There's an originalist hole in Trump's Supreme Court ballot argument. (slate.com)

This post has been edited by Azath Vitr (D'ivers: 07 February 2024 - 10:40 PM

[worry]

Azath Vitr (D, on 07 February 2024 - 10:37 PM, said:

They could have simply taken out 'other' because they considered it obviously unnecessary, but kept President and Vice President to emphasize that they were umambiguously eligible for impeachment. Or:

Quote

[...] may have listed the president and vice president separately because they were the most important officers subject to impeachment, not because presidents were categorically different from "officers of the United States." Consider the verbiage of a 1776 letter to George Washington sending love to "Mrs. Washington and all the Ladies,"or a 2024 American Legislative Exchange Council proposal for "protecting Taylor Swift and all Americans from illegal deepfakes." Was Martha Washington not a lady?

There's an originalist hole in Trump's Supreme Court ballot argument. (slate.com)

That is 100% what it reads like to me. But of course, HD is also correct that any wiggle room will be exploited by this court that routinely starts with the outcomes it wants and works backwards from there.

[Azath Vitr (D'ivers]

HoosierDaddy, on 07 February 2024 - 04:32 PM, said:

Honestly you could argue that it wasn't an insurrection as he certainly hasn't been found guilty of fomenting one... at least yet, so there's no way to bar him under the 14th's clause. They'd need a better illustration than the confederacy where they pretty blatantly outlined their purported secession from the union.

The Denver District Court did hold a trial and find him guilty of insurrection for the purposes of the 14th Amendment:

Quote

The Denver District Court ruled that the case would proceed with a five-day trial.


After trial, the Denver District Court found by clear and convincing evidence that Trump had engaged in an insurrection.

Trump v. Anderson | LII / Legal Information Institute (cornell.edu)

A criminal conviction is not necessary:

Quote

"If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"

The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.

[...] Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.

[...] a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard [...] In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a "clear and convincing evidence" standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt).

[...] the original understanding [of the 14th Amendment] didn't require prior criminal conviction for insurrection—or any other offense—before an insurrectionist could be disqualified.

[...] There is a separate argument about how much civil due process is needed before someone can be disqualified under Section 3. In my view, the trial Colorado held is more than enough. But wherever you come down on this civil due process issue, it's distinct from the claim that a criminal conviction is needed.

Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection [Updated] (reason.com)

The Originalist case that Trump was guilty of what the authors of the 14th Amendment would have considered 'insurrection' seems very strong:

Quote

John Yoo, [...] who wrote the infamous "torture memos" during George W. Bush's presidency, has submitted an amicus brief on Trump's behalf claiming "the breadth of the term 'insurrection [against the Constitution]' … is, in the absence of legislative definition, uncertain and indeterminate." Trump's lawyers' brief insists that "nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as 'insurrection.'"

Both claims are [...] easily contradicted by an abundant historical record as well as by the evidence. From the ratification of the Constitution until the end of Reconstruction, the U.S. experienced many violent episodes that were contemporaneously identified as insurrections[...]

What these insurrections had in common was 1) an assemblage 2) resisting the law 3) by force or intimidation 4) for a public purpose. That understanding was articulated by the Supreme Court, [...] other federal judges, state court judges, and the leading legal treatise writers during the period between ratification of the Constitution and Reconstruction. [...] Congressman [...] a member of the Joint Committee on Reconstruction responsible for drafting the 14th Amendment, later set this out as the 19th-century consensus in The Constitution of the United States at the End of the First Century.

[...] "it is not necessary, that it should be a direct and positive intention entirely to subvert or overthrow the government." [...] "It will be equally treason if the intention is by force to prevent the execution of any one or more general and public laws of the government."

By the well-established law of the 19th century, Jan. 6 was an insurrection.

Trump's Supreme Court ballot argument says Jefferson Davis was no insurrectionist. (slate.com)

Though I wonder if the scope of the 14th Amendment might then also apply to protestors---either via 'intimidation', or if protestors are illegally blocking something-or-other (or chaining themselves to things etc.) perhaps categorizing that as 'force'. But of course Originalists aren't supposed to care about that (though I could imagine some of them salivating at the prospect...).

This post has been edited by Azath Vitr (D'ivers: 08 February 2024 - 02:42 PM

[HoosierDaddy]

Azath Vitr (D, on 08 February 2024 - 02:41 PM, said:

HoosierDaddy, on 07 February 2024 - 04:32 PM, said:

Honestly you could argue that it wasn't an insurrection as he certainly hasn't been found guilty of fomenting one... at least yet, so there's no way to bar him under the 14th's clause. They'd need a better illustration than the confederacy where they pretty blatantly outlined their purported secession from the union.

The Denver District Court did hold a trial and find him guilty of insurrection for the purposes of the 14th Amendment:

Quote

The Denver District Court ruled that the case would proceed with a five-day trial.


After trial, the Denver District Court found by clear and convincing evidence that Trump had engaged in an insurrection.

Trump v. Anderson | LII / Legal Information Institute (cornell.edu)

A criminal conviction is not necessary:

Quote

"If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"

The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.

[...] Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.

[...] a criminal conviction requires proof beyond a reasonable doubt, while a civil plaintiff can prevail merely based on a preponderance of evidence standard [...] In the Colorado Section 3 case, state courts found that the plaintiffs had sufficient proof to satisfy a "clear and convincing evidence" standard (a higher burden than preponderance, but less than proof beyond a reasonable doubt).

[...] the original understanding [of the 14th Amendment] didn't require prior criminal conviction for insurrection—or any other offense—before an insurrectionist could be disqualified.

[...] There is a separate argument about how much civil due process is needed before someone can be disqualified under Section 3. In my view, the trial Colorado held is more than enough. But wherever you come down on this civil due process issue, it's distinct from the claim that a criminal conviction is needed.

Why Section 3 Disqualification Doesn't Require a Prior Criminal Conviction on Charges of Insurrection [Updated] (reason.com)

The Originalist case that Trump was guilty of what the authors of the 14th Amendment would have considered 'insurrection' seems very strong:

Quote

John Yoo, [...] who wrote the infamous "torture memos" during George W. Bush's presidency, has submitted an amicus brief on Trump's behalf claiming "the breadth of the term 'insurrection [against the Constitution]' … is, in the absence of legislative definition, uncertain and indeterminate." Trump's lawyers' brief insists that "nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as 'insurrection.'"

Both claims are [...] easily contradicted by an abundant historical record as well as by the evidence. From the ratification of the Constitution until the end of Reconstruction, the U.S. experienced many violent episodes that were contemporaneously identified as insurrections[...]

What these insurrections had in common was 1) an assemblage 2) resisting the law 3) by force or intimidation 4) for a public purpose. That understanding was articulated by the Supreme Court, [...] other federal judges, state court judges, and the leading legal treatise writers during the period between ratification of the Constitution and Reconstruction. [...] Congressman [...] a member of the Joint Committee on Reconstruction responsible for drafting the 14th Amendment, later set this out as the 19th-century consensus in The Constitution of the United States at the End of the First Century.

[...] "it is not necessary, that it should be a direct and positive intention entirely to subvert or overthrow the government." [...] "It will be equally treason if the intention is by force to prevent the execution of any one or more general and public laws of the government."

By the well-established law of the 19th century, Jan. 6 was an insurrection.

Trump's Supreme Court ballot argument says Jefferson Davis was no insurrectionist. (slate.com)

Though I wonder if the scope of the 14th Amendment might then also apply to protestors---either via 'intimidation', or if protestors are illegally blocking something-or-other (or chaining themselves to things etc.) perhaps categorizing that as 'force'. But of course Originalists aren't supposed to care about that (though I could imagine some of them salivating at the prospect...).

It doesn't matter what Colorado's district court says. It doesn't matter what Colorado's Supreme Court says. SCOTUS can simply say that "insurrection" doesn't mean what they think it means and quote Inigo Montoya if they want. It doesn't even have to make sense. They can use a random dictionary they found on a Google search and cite it as what the 14th Amendment meant when it uses any specific word/s/ing.

The legal system relies on good faith in all of its actors. It's foundational to the trust and respect of rulings.

This court has shown that it does not need to use good faith in its rulings.

I therefore have zero faith that any of the amicus curae briefs from people who are both legal and historical scholars will hold any sway as well.

SCOTUS are the "experts" on everything when they want to be, especially a "misinterpretation" of constitutional language being used by Colorado/Maine/any other state that wants to remove Trump due to "insurrection" or any other 14th amendment language disqualifying people.

[Azath Vitr (D'ivers]

Quote

[...] Trump's claim that [...] Section 3 of the 14th Amendment [...] can only be enforced by congressional legislation, which does not exist.

[...] distinguished historians offer compelling evidence that Trump is wrong and Section 3 is "self-executing," automatically disqualifying those who violate it from holding office. [...]

[...] Trump relies on the 1869 judicial opinion in Griffin's Case—[...] the convicted Griffin argued that his sentence was invalid because Section 3 automatically and retroactively disqualified the Virginia trial judge, invalidating his official acts. [...]

[... Chase] concluded that Section 3 did not retroactively invalidate Griffin's sentence because the judge had taken office before adoption of the 14th Amendment. When a person had been appointed or elected to office before passage of the 14th Amendment, they were ineligible to hold office under Section 3, but "[l]egislation by Congress was necessary" for removal of the judge from office.

Even if Chase's opinion is correct, its holding seems relevant only to the removal of people holding public office before 1868. It does not appear to help insurrectionists who violated their public oaths 150 years later and then seek to regain public office.

Is There Any Chance Supreme Court Kicks Trump Off Colorado Ballot? (thedailybeast.com)

So the Supreme Court wouldn't choose such a stupid and obviously wrong and ahistorical misinterpretation as their out to glom onto and rally around, would they?... Of course they are (hold Brett Kavanaugh's beer, Amy Barrett's cross, Neil Gorsuch's gun bunker, Clarence Thomas's money, Samuel Alito's torture implements, and John Roberts's integrity):

Quote

a majority of the justices indicated that individual states may not disqualify candidates in a national election unless Congress first enacts legislation.


(2) Supreme Court Appears Skeptical of Arguments on Trump's Ballot Eligibility: Live Updates - The New York Times (nytimes.com)

This post has been edited by Azath Vitr (D'ivers: 08 February 2024 - 06:28 PM