By Lambert Strether of Corrente.
“I accept this arena as my friend. The conditions here are my conditions but Prosecution has defiled the sacred traditions of this place. Does the court give me leave to slay her outright?” –Frank Herbert, The Dosadi Experiment
As readers who have been following along at home know, there is a concerted, bipartisan effort to use Section Three of the Fourteenth Amendment (the “Disqualification Clause”) as a justification for removing Trump from state Presidential ballots on the grounds that he is an insurrectionist. This effort started in January 2021, immediately after Biden’s inaugural, but caught fire when two members of the Federalist Society, William Baude and Michael Stokes Paulsen, published “The Sweep and Force of Section Three” (“Sweep and Force”), which argued not only that Trump was an insurrectionist, hence disqualified, but that Section Three is “self-executing,” in that any official with responsibility for the ballot has the power to remove his name for that reason, no conviction in a court of law required. Shortly after “Sweep and Force”‘s publication, it was enthusiastically endorsed by legal luminaries like Larry Tribe and J. Michael Luttig, and its validity is now taken to be part of what passes for conventional wisdom these days, at least among non-Trump supporters, both conservative and liberal.
“Sweep and Force” originally urged that state election officials could disqualify Trump all by themselves, much as they already do for ballot eligibility requirements like age and residence. However, these officials have so far taken the view that disqualifying a candidate for being too young or not living in the district is one thing, easily, indeed mechanically, ascertained, while determining that a candidate is or is not an insurrectionist is quite another, and not so ascertainable. So they requested backup, which the NGOs now leading the Section Three efforts sought to provide. Jurisdiction shopping followed, and we now have two decisions disqualifying Trump under Section Three, the first from the Colorado Supreme Court, the second from the Maine Secretary of State, the Maine decision citing to Colorado. (Both decisions are stayed, awaiting a decision by the Supreme Court.)
In this post, I will argue that the Colorado and Maine decisions, taken together, show that “Sweep and Force”‘s notion that Section Three is self-executing is both wrong and a very bad idea. In other words, In Re Griffin (1869), in which Chief Justice Samuel Chase, shortly after the passage of the Fourteenth Amendment, took the view that Section Three is not self-executing, was correctly decided, and Baude, Paulsen, Tribe, Luttig, and the various journamalists hot-taking their opinions retail, who urge that it was incorrectly decided, are themselves wrong. First, I’ll present key features of the Colorado and Maine decisions. Then, I will look how “Sweep and Force” treats Griffin, contrasting Baude and Paulsen’s approach to what Justice Chase actually wrote. I’ll conclude with some brief comments about potential effects of “Sweep and Force”‘s daft ill-advised theory on “self-execution” on our Constitutional order.
Oh, the Frank Herbert epigraph. First, The Dosadi Experiment is terrific, even if Dune and its various canonical and non-canonical sequels have crowded it off the shelves. More importantly, the stakes in the Section Three mishegoss are, as in Herbert’s court arena, very, very high: For the nation, for our Constitution, for the parties, for the court system, for the reputations of the participants and, of course, for the outcome of election 2024. Now let’s look at the decisions.
Section Three Decisions in Colorado and Maine
I will look for two key features for both cases: The decider, and the burden of proof. The Colorado case (Anderson v. Griswold) was decided by the judicial branch. The burden of proof was “clear and convincing evidence.” From the decision:
The court issued its written final order on November 17, finding, by clear and convincing evidence, that the events of January 6 constituted an insurrection and President Trump engaged in that insurrection.
Here is what “clear and convincing evidence” means:
“Clear and convincing evidence” is a medium level burden of proof which must be met for certain convictions/judgments. This standard is a more rigorous to meet than preponderance of the evidence standard, but less rigorous standard to meet than proving evidence beyond a reasonable doubt. The clear and convincing evidence standard is employed in both civil and criminal trials. According to the Supreme Court in Colorado v. New Mexico, 467 U.S. 310 (1984), “clear and convincing” means that the evidence is highly and substantially more likely to be true than untrue. In other words, the fact finder must be convinced that the contention is highly probable.”
The Federal statute against insurrection, 18 U.S. Code § 2383, is a criminal statute, hence “beyond a reasonable doubt” would apply (although the “clear and convincing” burden also applies in some criminal cases, the examples given don’t seem as weighty as insurrection).
Now let’s look at Maine. The Maine case (In re: Challenges of Kimberley Rosen, Thomas Saviello, and Ethan Strimling; Paul Gordon; and Mary Ann Royal to Primary Nomination Petition of Donald J. Trump, Republican Candidate for President of the United States) was decided in the executive branch, by the Secretary of State. From the decision:
Under Section 443 of Title 21-A, the Secretary of State is responsible for preparing ballots for a presidential primary election. The Secretary must “determine if a petition meets the requirements of,” as relevant here, Section 336 of Title 21-A, “subject to challenge and appeal under section 337.” 21-A M.R.S. § 443…. On Monday, December 11, 2023, I issued a Notice of Hearing to all parties, indicating that a consolidated hearing would be held at10:00 am on December 15, 2023, in Augusta. The Notice informed the parties that the hearing would be conducted in accordance with 21-A M.R.S. § 337 and the Maine Administrative Procedure Act (“APA”)…. Title 5, Section 9057 sets forth the governing standard for admissibility of evidence ni Section 337 proceedings. It is more permissive than the Maine Rules of Evidence, see 21-A M.R.S. §9057(1), and directs that “[e]vidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs,” id. § 9057(2). I “may,” though by no means must, “exclude irrelevant or unduly repetitious evidence.” Id. This “relaxed evidentiary standard,” State v. Renfro, 2017 ME 49, 1 10, 157 A.3d 775, affords me substantial latitude to decide what evidence to admit, though it generally favors admissibility.
This “relaxed” evidentiary standard is from administrative law, not civil or criminal law, so I’m not clear on how directly it relates to “clear and convincing,” but it’s clearly looser, and has an expansive notion of “the record,” including as it does “videos,” “staff reports,” “Tweets,” and “Multiple government reports,” many of which are not cited, even to Exhibits.
Now let’s turn to the legal doctrines that support — or do not support — the decisions in Maine and Colorado. The key cases, again, is In Re Griffin. If Griffin was correctly decided, then Section Three of the Fourteenth Amendment is not self-executing, and the efforts sparked by “Sweep and Force” fall to the ground. From Harvard-Professor-of-Constitutional-Law-But-Not-Larry-Tribe, Adrian Vermeule:
Chase held [in Griffin] that the disqualification embodied in Section 3 is not “self-executing,” legal parlance meaning that Congress must first implement the disqualification by appropriate legislation under Section 5 of the 14th Amendment. If Griffin’s Case is correct in this regard, then the case for disqualifying Trump immediately collapses, as no proceeding conducted under congressional legislation has found Trump to have participated in or aided “insurrrection.”
Hence the Maine and Colorado cases, and all similar, go away too (subject, of course, to whatever the Supreme Court does).
The Doctrine of In Re Griffin: “Convenience” or “Ascertainment”?
Cheekily, this is how Baude and Paulsen begin their discussion of Griffin in “Sweep and Force”:
A small problem with our view that Section Three is self-executing and immediately operative is that the Chief Justice of the United States said the opposite, almost immediately after the Fourteenth Amendment was adopted. This was the opinion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting as Circuit Justice in 1869, in one of the first cases to interpret any part of the Amendment. In Griffin’s Case, Chief Justice Chase concluded that Section Three is inoperative unless and un- til Congress passes implementing legislation to carry it into effect. This precedent continues to cast a shadow over Section Three today.
First, to make what amounts to debater’s point — and here is where I loudly announce that IANAL (I Am Not A Lawyer), so real lawyers please correct — Griffin was “a case of first impression.” After all, it was “one of the first cases to interpret any part of the Amendment” (though Baude and Paulsen cite no others). From Cornell’s Legal Information Institute:
A case of first impression is a case that presents a legal issue that has never been decided by the governing jurisdiction. An example is the 1978 Supreme Court case Monell v. Department of Soc. Svcs. which decided whether local governments were considered “persons” under the Civil Rights Act of 1871.
A case of first impression lacks controlling precedent. In other words, a court deciding a case of first impression cannot rely on prior decisions nor is the court bound by stare decisis. To adopt the most persuasive rule of law, courts will look to various sources for guidance. These sources include:
- legislative history and intent,
- policy,
- custom, [and]
….
- the law in other jurisdictions.
One might imagine, therefore, that Baude and Paulsen, as card-carrying originalists, would give great weight to Chase’s opinion, given that it was rendered contemporaneously with the Fourteenth Amendment, and he, as Chief Justice, was surely well-equipped to understand its history and intent, policy goals, the customs of the time, and the law in any other relevant jurisdictions. But apparently not.
Here, however, is “Sweep and Force”‘s central objection to Griffin:
The core of Chase’s argument was that if Section Three were an immediately operative, self-executing constitutional rule of disqualification, it would have inconvenient consequences in the Reconstruction South. “In the examination of questions of this sort,” Chase wrote, “great attention is properly paid to the argument from inconvenience.” And here “the argument from inconveniences” was “great” in Chase’s estimation— it was “of no light weight.”
And:
To give Section Three immediate effect would thus upset the apple cart in a fairly major way. “No sentence, no judgment, no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commissioner’s sale—in short no official act—is of the least validity.” Chase found this unthinkable: “It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these [Southern] states.”
But:
Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy- consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get [sez who and when?] to rewrite constitutional provisions they find objectionable on policy grounds.
That’s what originalists think today. But isn’t that just a wee bit presentist? Are we really to believe that a Chief Justice of the United States is unable to correctly construct a canon of interpretation? After all, “[t]here is danger that, if the [legal scholars] do not temper [their] doctrinaire logic with a little practical wisdom, [they] will convert the constitutional Bill of Rights into a suicide pact” (Terminiello v. Chicago, 337 U.S. 1, 37, 69 S.Ct. 894, 93 L.Ed., adapted). Or if not suicide, severe and persistent disability. Then again, perhaps Baude and Paulsen don’t find suicide “objectionable”?
However, I think “Sweep and Force” has the “core” of Griffen wrong. That core is not “convenience,” but “ascertainment.” Quoting Baude and Paulsen quoting Chase:
Having flailed to avoid the natural [whatever that means] reading of Section Three, Chase finally offered his alternative, “reasonable construction”:
For in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided by Congress. Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that ‘congress shall have power to enforce, by appropriate legislation, the provision[s] of this article.’ [sic] … The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.
Now the logic-chopping and table-pounding really begins:
Section Five “qualifies” Section Three. Of course, this proves too much. Taken seriously, it would suggest that Section Five likewise “qualifies” Section One and renders its commands—birthright citizenship, privileges or immunities, due process, and equal protection—inoperative until enforced by congressional legislation. It would imply that Section One had no self-executing legal effect, which has never been the law.
I disagree; Baude and Paulsen aren’t doing a serious reading. In Chase’s phrase, “it must be ascertained what particular individuals are embraced by the definition,” we recognize what in the programming and math worlds is called a set membership function: “A function that specifies the degree to which a given input [say, Alexander Stephens] belongs to a set [say, insurrectionists].” That is, we need to determine the set of all insurrectionists; how do we “ascertain” that potential “inputs” to that set belong to it? That method of ascertainment is unknown, which is why “effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable.” We do not need to do similar “ascertainment” for birthright citizenship, privileges or immunities, due process, and equal protection; all those are well understood, as the method to ascertain an insurrectionist was not (given that it had never been done before!). Chase conclude that these methods can “these can only be provided by Congress,” and here Baude and Paulsen disagree, arguing:
It also proves too little. It is true, perhaps, that carrying a legal prohibition into practical effect in actual situations frequently will involve, necessarily, actions by persons and institutions charged with applying that prohibition as law in the course of performing their assigned duties. But as noted above there is no reason why “proceedings” and “decisions” and “enforcement” with respect to Section Three’s commands may not be conducted and carried out by these various state and federal actors, exercising their usual authority with respect to such matters.
If so, that makes Section Five (“congress shall have power to enforce”) a hood ornament; it could be deleted entirely without changing the sweep or force of Section Three. How on earth is that the “natural” reading of which, mere paragraphs above, Baude and Paulsen were so fond?
Conclusion
What Chase in Griffin sought to avoid, and Baude and Paulsen incited by “Sweep and Force” has now come to pass, driven by an unholy alliance of Federalist Society members and liberal Democrat NGOs MR SUBLIMINAL Does the court give me leave to slay them outright?[1]. We have “various” “State” “actors” “exercising their usual authority with respect to such matters” as both Colorado and Maine have disqualifed Trump from the ballot.
And what do we have? Two different (“various”) branches of government, judicial and executive, in two states using two completely different evidentiary standards. Add one or two more states, another branch, and a few more evidentiary standards, and you’ve got a combinatorial explosion of “usual authority”! And what is the average voter to think? That the only outcome that matters is kicking Trump off the ballot, so that Maine’s “relaxed” and Colorado’s “clear and convincing” both amount to due process? And while we’re talking about evidentiary standards, whatever happened to “beyond a reasonable doubt”? With the Justice Department and entire political class bellowing for Trump to be convicted, why on earth has Biden’s Justice Department never charged him under 18 U.S. Code § 2383 – Rebellion or insurrection? One might be forgiven for concluding that they never charged him because they couldn’t convict him. So, by definition, Maine and Colorado, in their decisions, are disqualifying Trump even though there’s “reasonable doubt” that he is an insurrectionist. What if their decisions are upheld, and those missing electoral votes decide the race? Is that the optimal strategy for reinforcing the voters’ justly dwindling confidence in the electoral system? Chief Justice Chase writes in In Re Griffin:
[A] construction, which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion neither, or neither in so great degree, unless the terms of the instrument absolutely require such preference.
“Great public and private mischief” is exactly what is happening here. This is the Pandora’s box that “Sweep and Force” has gleefully opened. These already whacky results provide the clearest possible indication that Griffin was correctly decided, and that there should be national legislation to handle the ascertainment issues Chase described. Article II reads:
The executive Power shall be vested in a President of the United States of America.
Article II does not read:
The executive Power shall be vested in a President of the various state and federal actors, exercising their usual authority with respect to such matters.
Congressional legislation at the national level, at last implementing Section 3 under Section 5, is the only sensible solution (granted, providing the pleasant prospect of Democrats and Republicans defining, together, what insurrection is). Quoting Taibbi:
I’m no lawyer, but I doubt the 14th Amendment was designed to empower unelected state officials to unilaterally strike major party frontrunners from the presidential ballot. If it was, that’s a shock. I must have missed that in AP Insane Legal Loopholes class. Is there any way this ends well? It feels harder and harder to imagine.
(Taibbi is correct in that neither the Colorado Supreme Court nor the Maine Secretary of State are elected.) I guess it ends well if the Supreme Court makes it end well. Let me know how that works out!
NOTES
[1] Kidding!
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‘any official with responsibility for the ballot has the power to remove his name for that reason, no conviction in a court of law required.’
And that is where the whole thing fall down. There is no due process and under this doctrine, you can punish a person for crime that they have not been convicted of, much less been charged for. Of course they could charge the sob in a court of law but they know that they don’t have case which is why they have never tried.
A lot of stuff that the US does overseas has a habit of returning home. So for example the US has dark prisons overseas and one time Chicago had their own dark prison. So in broad strokes, this is the Rules Based Order coming home and being used to bypass centuries of codified law for short term political gain. In reality you end up with a Banana Republic.
Yeah. People talk about Iran’s guardian council disqualifying candidates, but I understand that they at least have some sort of due process. The description of “self executing” sounds like something drawn out of a Cultural Revolution caricature, not something that any stable polity, let alone a “democratic” one, can put up with.
Depending on iterations, does
“Self-Executing” = (become) “Self-Licking Ice Cream Cone”?
“There is no due process and under this doctrine, you can punish a person for crime that they have not been convicted of, much less been charged for.”
Sounds like a cogent description of the UK Labour Party internal grievance and discipline procedures where allegations are treated as an automatic guilty verdict with no need for evidence and where those subject to allegations are required to prove their innocence rather those making the allegations being required to prove their case.
Which does not bode well for what passes for the UK legal and ‘justice’ (sic) system and the citizenry dependent upon it if the electorate are dumb enough to give a clear mandate to corrupt WEF functionaries like Herr Starmer and his little clique rather than a hung (in the political sense) Parliament.
So Trump not on several state ballots, independent candidates RFK wins a few blue and purple states. Nobody gets 270. What happens next …?
Yes, CIA black ops prison – Homan Square facility – on west side of Chicago, old Sears warehouse building. Chicago mayor at the time was Rahm Emmanuel. Not just CPD stuff.
Nice to see that found some use for one of Sears’ warehouses after some moron shut down what at the time was the most successful mail order catalog operations in the United States during the 1990s. Everything the company needed to pivot to online sales was in place as people were already doing their orders by telephone anyways. I assume that a lot of money was made in selling all the acreage that those warehouses occupied, which would have goosed up the quarterly dividends and stock buybacks.
A building formerly used by a deliberately destroyed storied retail company being repurposed as a black site for the police state. I see a message here.
Ha! Sears died because it was taken over by a libertarian lunatic who forced the divisions to compete instead of working together to sell stuff. Because: working together was 𝖈𝖊𝖓𝖙𝖗𝖆𝖑 𝖕𝖑𝖆𝖓𝖓𝖎𝖓𝖌.
Failing to Plan: How Ayn Rand Destroyed Sears
Wasn’t Sears bought up by PE which saddled Sears with more debt, looted the company and left it ready to file Chapter 11?
Eddie Lampert. He couldn’t have done any worse had he been an actual plant by Bezo and the Waltons.
To paraphrase Al Capone, ‘you can do well in life with a kind word; you can do better in finance and insurance with the right accent.’
This piece……
https://www.harrowell.org.uk/blog/2018/01/31/in-the-eternal-inferno-fiends-torment-ronald-coase-with-the-fate-of-his-ideas/
…..along with others on the same theme….
https://www.harrowell.org.uk/blog/?s=Coasian+hell
….makes much the same point in more general terms – ie what Michal Rozworski,& Leigh Phillips describe in relation to Sears was and remains to this day the only acceptable operating paradigm for the entire Collective West.
The former UK public utility I retired from ten years ago – after 35 years – operated and continues to operate in a similar fashion. Reducing every activity into its own stand alone profit center with no effective co-ordination right down to the individual unit level. The culture being one of everyone competing against each other and at odds with any kind of effective co-operation.
Such a paradigm is bad enough in its own right whether applied to Sears, The UK rail network, health care, the F-35 white elephant, national and local government and everything else which used to be an organisation in the proper sense of the word.
However, the egotistical and individualist Randian contagion is not limited to this sphere alone. It has infected the body politic at every level across the Collective West – via the bullshit post-modern chimera of self-id and intersectionality to the point where it has undermined Class politics to an almost fatal degree.
The insistence of self-id and intersectionality on the primacy of subjective based individual/group narratives over testable evidence based objective social reality, because objective society does not exist, only the subjective feelings and narratives of the individual and the group, has familiar echoes.
It should do because this is the narrative of “no such thing as society, only the individual and the family” philosophy of Thatcherism.
An approach which should be anathema to any political or social based group, organisation or institution claiming to be progressive or of the left. It is divisive and represents an extremely effective divide and rule Class based attack using the disguise of left/progressive labels. Salami slicing groups in society which do and should have more in common with each other in a hierarchy of oppression sold as “progressive” by identity politics.
Driving a coach and horses through the principle of equality in terms of objective treatment and approach in favour of subjective — ie selective — judgement based on identity and where that subjectively manufactured identity is located within a hierarchy of oppression pecking order and rejecting outright any practical notion of a wider society.
Randism on steroids. The rallying cry was once ‘No Pasaran.’ Today it is ‘No Reciprocation.’ Thatchers no such thing as society coming home to roost in a cuckoo that pretends to be ‘left’ and ‘progressive.’
Which is why it is an integral part of The Official Narrative (TON).
Trump’s greatest sin: not starting any new wars. / my 2 cents.
The blob will never forgive him.
If no one gets 270 the House decides.
But not by the votes of individual US House members; rather, each state’s delegation of House members gets one vote — for one of the top three Electoral College finishers only (rather than the top five, as the original language said). See discussions of the 12th Amendment, such as this one:
https://constitutioncenter.org/the-constitution/amendments/amendment-xii/interpretations/171
Note that the 14th Amendment would control over the 12th in any areas of conflict, for the less-than-convoluted reason that it was adopted later. Though that might be more relevant when considering the “Mal-Apportionment Penalty” in Section 2 of the 14th Amendment — see this discussion. And BTW, FWIW, Section 2 has been implemented by Congressional legislation; see 2 USC §6.
completely aside and on a personal note: the more the lawfare Dems seek to badger and undermine the GOP primaries then the more I am determined to hoist said ye olde middle finger to said Dem estab by voting for the Dem estab’s current nemesis. Even if I don’t like the guy I despise these shenanigans. If the Dems want to win then let then put up a candidate that can win from the voters without these machinations. What’s that? No Dem primary? / oy
Ayatollawyers, disqualifying candidates that fail to meet “standards.” So we are trying to outdo Iran?
I’m not. You’re not. Maybe someone is.
adding: What’s that? you say? You’d really vote for orange-man-bad?
In these circumstances, yes I would.
I’m a strategic voter.
My strategy being at root grounding in Constitutional rules and principles. Go figure.
This is where I am, and I admit to being old, stupid, and crazy – I would vote for Orange Hitler before the current crop of buffoons driving the Titanic. Simply, Orange Hitler scares me less than these idiots.
Nine million Obama voters pulled the lever for Trump in 2016.
PMC and Demparty didn’t grok this, or tried hard to deny it, but either way, they badly misjudged the electorate.
Any reason to think things have really changed and the orange middle finger couldn’t prevail again?
I don’t see one.
Hell, the whole reason for voting for the Cheeto Doofus is that it is the one way to give the entire Establishment the Double Bird.
Everything else is just retcon.
Seriously, this is their argument? So I guess neither William Baude nor Michael Stokes Paulsen has ever argued that people should elect a certain candidate for president because they would appoint judges with an eye to which “constitutional provisions they find objectionable on policy grounds”? For example opinions on how interpretations affects abortion rights?
The supreme court has and uses the power to interpret law and consistitution to change policy. That is just a fact, of which these gentlemen can not be ignorant. Their demand therefore amounts to “judges must not acknowledge that they decide with an eye to the consequences, even though we all know it”. Why that is so important to pretend is something someone should write a boook about, but Chase not participating in their pretense does not invalidate Chase. If anything it makes Chase look more serious because he acknowledges the actual situation at hand and Baude and Paulsen look more like children arguing about if it counts if you don’t yell “tag!” a the appropriate time.
See for example then Chief S.C. Justice Roger B. Taney’s Dred Scott majority opinion in 1857.
That struck me as highly questionable as well. You don’t get to just ignore precedent and court decisions simply because you disagree with the interpretation and have an argument to back it up. You need to go through the proper process and get it changed. This would be true even if Chase was 100% wrong. If you don’t, then you’re in sovereign citizen territory, with a thin veneer of respectability to appeal to Trump haters.
We no longer read or watch that much news on the upcoming presidential election, because both political parties, most judges in the US have all been bought off by the very wealthy powers who donate their many millions of $$s to legislators who almost always pass legislation for the top wealthiest amongst us.
But having said that, we listened to the journalist Richard Solomon. We don’t want to put words in his mouths, so if we mischaracterize him, let us know. It seems he said that NONE of these State judges have the power to eliminate, or bar political candidates from seeking an elective office.
Solomon, intimated that it would be the US Supreme Court to have the final say on all this. But the question then is, is it incumbent upon The Supreme Court to even hear what these state judges handed down in Colorado? That’s our two cents worth, but even than it no longer matters; does it?
Point. Thank you.
Rubicon. This gives a good insight.
https://www.nakedcapitalism.com/2023/12/book-review-sally-denton-and-roger-morris-the-money-and-the-power.html
I don’t think that the Democrats are considering the long term implications of what they are doing. US trust in the electoral system is already on very unstable ground. They will lose legitimacy faster than most Democrats seem to understand.
If they do win because they were able to remove Trump from swing state ballots, then there will be a lot more backlash. Lawfare has become the preferred means of winning, rather than try to build up a strong base of supporters. This is going down the path of what is the norm in illiberal “democracies”.
Ultimately this is being done because Biden is in serious jeopardy of losing the 2024 elections. An Establishment politician has no appeal to a critical mass of swing voters. Rather than working to improve the standard of living for Americans, Biden operated as a typical Establishment politician that served the rich. His poll ratings are not good and currently declining. He’s seen as having managed the economy in a very poor manner.
The irony of this situation is that the Democrats always emphasized how “democracy” is on the ballot with Biden. Quite the opposite it seems. It could easily invite Republicans to retaliate, which some are already threatening to do.
If this becomes the norm, then the winner of this Lawfare may make the US become a one party state, only without the advantages that a nation like China has.
“I don’t think that the Democrats are considering the long term implications of what they are doing. US trust in the electoral system is already on very unstable ground. They will lose legitimacy faster than most Democrats seem to understand.”
Neither Team D nor the establishment wing of Team R care, as long as they win.
Anyway, most Americans are sheeplike and cowed. Trump is banned from elections and I don’t so much as see a protest sign. They do talk a good game, however.
What you point out about Americans letting this happen without protest is remarkable; the inaction in the face of lawfare like this is worthy of a book of its own. It may have to do with the isolating effect of the internet, and the news sources to which many have turned as refugees from the mainstream.
It is not a novel observation that this type of behavior by the political class is characteristic of a banana republic. We can only hope that the attempts to engage everyone else in the hysterical partisan mud-slinging fail, despite the election year attention which will be paid to the major party actors.
I believe that most Americans who are paying attention know nothing will come of these various “disqualifying” cases.
Even Team Blue knows there’s less than .001% chance that Trump won’t be on the ballot both in Repub primary and General election. Til then,
IF Trump is thrown off the ballot…then you’ll see the reaction you’re looking for.
“It could easily invite Republicans to retaliate, which some are already threatening to do.”
Quite. Whats source for the goose and all that.
I’m reminded of this short story printed in the publication ‘Omni’ 9 June 1979 edition:
http://www.williamflew.com/omni9a.html
2000 election coup front run thingy – ?????
Personally I think the reason Trump is a threat to both legacy parties is he threatens long held social networks used by elites – both political and wealth set. That and he can’t be managed. To the elites its akin to having the nations power grid taken out and with it a complete reordering of the network and the narrative it uses to control the population. This is seen as a direct threat to the – established order – and trotted out to the unwashed as a threat to Democracy [Corporate/Investor].
Yet at the same time this plays right into Trumps hands and that of his followers, he does like to be a spoiler. Then as everything gets more frisky and some vibrate harder than others, perceived notions about elitist domination, for the sake of it, might hit more than a few social trip wires.
All made more interesting by the bright differences between regions and states, how will all that play out in this mad game of GO …
Imo his biggest threat is he mostly doesn’t like wars, (granted imo he would probably do the same as Biden has in ME). And he wants to stop the one-sided support of nato. Ending warfare would break a lot of rice bowls.
The Deep State concern with Trump is that our various puppets, vassals, satraps and toadies might be less loyal to an America where Trump is in charge.
IIRC, in 2008, the CIA noted that the election of Obama was just the thing to keep our european puppets on-side with the Empire and its wars, since Obama made them swoon, unlike the swaggering evangelical Bush or hysterical warmonger McCain.
Yes that is a big chunk of the social network I was talking about, yet it pales in comparison to all the rest of the rice bowls that would be concerned about how their balance sheets might be impaired or have to renegotiate terms.
It does seem that congress has had enough time to provide definition even if thinking they should wait for sufficient time to pass that civil war participants would not be affected.
So congress has de facto decided to let the dog lie. Dems might try to pass such a law. Reps might want to help, but probably couldn’t without enraging too many trump loyalists. So without control of both houses nothing will happen.
Imo supremes won’t overturn Griffen, might even be unanimous.
In an oligarchy, laws are optional.
Hence the “international rules based order” in which the rules are “flexible.”
Of course, imprisoning the opposition candidate or removing him from the ballot on any pretext makes a mockery of democracy. It’s straight up banana republic stuff.
The elites don’t care, if that is the only way that they can win, then that is fine as long as they win. 94% voting for Biden with 27% turnout? Something, something “Muh Democracy(tm).is Saved!”
Anyway, RFK Jr isn’t going to win anything. Not only does he lack the organization, the powers that be will make damn sure of it.
Of course,imprisoning the opposition candidate or removing him from the ballot on any pretext makes a mockery of democracy. It’s straight up banana republic stuff.
The elites don’t care, if that is the only way that they can win, then that is fine as long as tbey win. 94% voting for Biden with 27% turnout?.Something, something “Muh Democracy(tm).is Saved!”
Anyway, RFK Jr isn’t going to win anything. Not only does he lack the organization, the powers that be will make damn sure he is not allowed to spoil their result. If 2016 taught them nothing else, it is that Muh Democracy(tm) is far too important to be left to the voters.
I’m no longer a lawyer, and I haven’t researched the issue other than to check Constitution Annotated (https://constitution.congress.gov/browse/essay/amdt14-S3-1/ALDE_00000848/). Interestingly, it says that “Congress enacted that ‘the disability imposed by section 3 . . . incurred heretofore, is hereby removed.'” Citing Act of June 6, 1898, ch. 389, 30 Stat. 432, which I haven’t bothered to read. Assuming that Act was passed by the requisite majority — whether the 2/3 of each house to remove individual disabilities or the simple majority for enforcement legislation — that would seem on its face to decide the issue. (Of course, facial simplicity can often be misleading.)
In my casual reading about this question, I haven’t seen that addressed. Has it been?
I’ve now located the 1898 Act in the Statutes at Large held by the Library of Congress. It’s at printed page 432 (page 471 of the PDF) from the volume for March, 1897, to March, 1899: https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c55/llsl-c55.pdf.
It’s very short and, at least to me, clear.
Here is the 1898 Act:
I read that as retroactive, from “heretofore incurred.” Future insurrections would incur the “disability,” supposing Section 3 to be implemented by Section 5.
(It’s fascinating to read the act above, on page 471, to see how simple and clear the language is, and how clear the thinking.)
Yes, “But Congress may by a vote of two-thirds of each House, remove such disability.” is the simple and obvious solution, but with zero chance of happening.
Thanks for these points.
In completely non-expert terms, I think the argument on this point is whether the 1872 and 1898 amnesty acts intended to remove the disability only retroactively, or also proactively. I haven’t read “The Sweep and Force of Section Three” but from commentary I’ve read they argue for the former interpretation.
https://www.cato.org/blog/does-section-3-fourteenth-amendment-disqualify-trump
(I’m not in favor of this 14th amendment initiative, just providing a little note on the valid question you raise)
IIRC, retroactively.
State and local officials have for years denied spots on the ballot to disfavored candidates, through a variety of regulatory requirements and selective enforcement, typically without an effective mechanism of appeal. Eligibility to vote is itself subject to the whims and interests of local officials, who have been known (as in Florida, with the voting rights of released felons denied) to buck the explicit wishes of the electorate itself — as expressed in ballots which, in turn, are subject to the eligibility and recording procedures specified by the state.
And the Supreme Court not only tells us it’s powerless to intervene, it engages in much the same. As in (Bush v Gore) prematurely ending a vote count, even forgetting that a crucial Florida county curtailed its own vote count thanks to what later became known as the Brooks Brothers riot, on the authority of one unelected and plainly incompetent official.
And now suddenly all this concern over abused state prerogatives? Where were the cries of execration, all these years?
I must also say, the sympathy expressed for Trump above suggests a disaffection so extreme, one would hope such people don’t vote at all.
Justice William J. Brennan Jr.’s dissenting opinion in Gore v. Bush has proven prophetic, imo.
“Where were the cries of execration, all these years?”
See Exxon Valdez or Bhopal disaster decisions favored investors and not citizens effected results of absentee investors. For those that have been around long enough Exxon Valdez SCOTUS was a critical moment in the fight against corporatism. Once that was lost it had little legal friction to stop it from taking over everything …
Some people are one issue voters. Having had the opportunity to serve in Iraq for a year and in Afghanistan for two and in various other locations for lesser periods I came to the conclusion that my one issue is war. I saw too many good men die. And 500,000 supposedly have been killed in the current US Biden/Russia Putin war. It just does not do any good. The minimum standard for a politician should be to avoid senseless deaths. I have to hope people will vote for the candidate who has a good shot at winning and who is most likely to decrease the number of senseless deaths.
I adopt this elegant “minimum standard for a politician” as my own. Thank you Felix_47.
This idea that Trump, because he didn’t start a war, is uniquely pacific in his views is mystifying. Even if he has actual convictions (and compassion?), which is doubtful, you would trust the world to this guy (and his impulses) and the people around him? Michael Flynn, for example? Or Jason Miller? Or Steven Cheung?
Biden’s horrors will at least be tempered by the usual Washington constraints: only bomb persons who can’t fight back. But Trump? Who could know? The man who wants to be “your” vengeance? What if he vents it abroad? And who’s already talking about the insurrection act?
Your comments seem to be suggesting that most of us (and Lambert?) are deluded about, or “excessively sympathetic” to Trump. That is not the case at all. I pretty much agree with your first paragraph here. And who knows what the impetuous Trump might do in any situation, especially if he has advisors as despicable as he did last time. But that said, Trump is a minor street thug compared to the mafioso forces arrayed against him. Russiagate, the impeachment circuses, and the current multiple lawfare efforts are absolutely – if I may use cliched language – dangers to the Republic. They are much greater dangers than Trump himself. And as far as Biden and the National Security Establishment goes, we don’t have to wonder what their foreign policy would be. They have shown us, over and over. It has been a direct extension of the neocon project initiated in the 1990s and continued through Democrat and Republican administrations ever since. And we don’t have to wonder where they stand on censorship and surveillance and “homeland security” either.
Trump as savoir? Ridiculous. Trump as lessor evil? Very likely to me – it’s a low bar. But as Lambert is saying here, what the Establishment is doing to prevent Trump from running is extremely dangerous.
If you see the impeachments efforts as “dangerous” to the Republic (and presumably the lawsuits as well) — what threshold of misconduct do you require? — it’s no surprise I can’t agree with you that Trump is the lesser evil.
The ballot question aside, I do find many of the comments here shockingly naive in their sympathy for Trump, as well as naive in their apparent expectations for a mass-market political system. People really look to American politics to reflect notions of their own probity and goodness?
For my humble part, I look at what Biden did domestically and in some of it was pleasantly surprised — about as “progressive” as it gets in the U.S. You may want to see the whole thing burn anyway, because the political system doesn’t satisfy your ideals. I’d suggest that’s an irresponsible position for anyone who intends to continuing living here. There are few people on earth with nothing to lose, and Donald J. Trump is an excellent vehicle by which to determine just how much worse life here could get.
– “You may want to see the whole thing burn anyway, because the political system doesn’t satisfy your ideals.”
Either you didn’t read my response or you are purposely ignoring it. This has nothing to do with my “ideals” – there is no chance of those informing policy anywhere on the horizon. Rather, it has to do with my empirical assessment of the hypothetical dangers posed by a second Trump administration vs. the *actual* threats that we have seen under Biden which, I assert, are extensions of a long-term, bipartisan, foreign and domestic agenda. Trump, as an unpredictable and rather clueless outsider, threatened this agenda and therefore triggered a massive Establishment response that ripped back the curtain that usually conceals the real mechanisms of power.
I have no illusions about Trump, and despite what you claim neither do most of the commenters here. He is, as we all know, a narcissistic demagogue. The only power he has is the support of a lot of common people. That’s what scares our bipartisan Establishment. Some of these Trump supporters are dangerous right-wingers, but most are just fed-up citizens giving the middle-finger to “the powers that be.” Trump has *no* supporters among the latter, which is why the idea of him “leading” an “insurrection” has always been ridiculous. If fascism comes, I’ll be looking toward the rapidly expanding and increasingly consolidated military-industrial-congressional-intelligence-media-academic-think tank complex instead.
simply put, the democrats have spent so much effort justifying their own sins by proclaiming the other side is the greater evil, but right now today the democrats are and have been the war party. It’s easy to sit on the top of the heap and state that other people should just put up with your banal evil because the other evil…full stop. The other evil justifies literally anything. Lets not forget that the well off in this country are mostly democrats and have been bailed out repeatedly by democrats. The economy is great for those who have been repeatedly bailed out. Rent is too high and military spending is through the roof! Congratulations. If you are so concerned about the other guy, maybe you could offer something other than scolding, but the greater hierarchy may be disturbed. Warmongering globalists may need to take a look in the mirror.
Remember Russiagate?
It was total BS.
So it’s true that trump is bad, the problem now is that the democrats are worse.
When there are two zeros to choose from, it’s mystifying that some people will pick one zero over another. The American voting public will always pick a loser no matter what.
Aside from the constitutional procedural issue, surely the legitimacy of the exclusion of the candidate boils down to whether hearsay evidence that he engaged in insurrection is admissible, especially where the outcome is penal in nature. In other words, each decision ought to be based on a finding of the fact of insurrection in the first instance by the forum that makes the decision, which finding was fully contestable, and not on such a finding by another forum.
Seems like a minimalist washing-of-the-hands for the Supreme Court to take – except the Colorado appeal covers all angles on the admission by the Colorado court of first instance of the Jan 6 report by Congress (paras.162 ff.). Can’t see Trump succeeding on that issue. Maybe argue that the stakes are so high that the statutory exception to the hearsay rule, which allows the admission of the report, doesn’t apply?
I am wondering if there’s any way for a Red state to kick Biden off the ballot? Trump has not been found guilty for insurrection, but the whole Hunter Biden thingy is so smelly, surely an argument can be made that a corrupt President should not be in the ballot?
Oh, I believe it’s already happening. Lol Congress critters Aaron Bernstine in Pennsylvania, Cory McGarr in Arizona, and Charlice Byrd in Georgia released a joint statement last month that they are taking steps to have Biden booted from the ballot in all three states.
I’m not following this closely, but I gather this is exactly what Lambert is talking about when he points out that this “self-executing” line is an incredibly bad idea.
Good ideas tend to spread quickly, he he.
https://www.houstonchronicle.com/politics/texas/article/dan-patrick-joe-biden-off-texas-ballot-18574947.php
What do you think will happen after the election?
Of the dozen or so I’ve asked the question, uniform complete uncertainty. As a problem tertiary to climate change and pandemonia, future discounting can lead to ‘impulsive’ behavior. Moar Empire of Chaos.
Trump drives too much money into the system to be removed from the ballot. Legalities aside. PACs have to have that money spent by election day.
More insidious are the state Democratic Party efforts to restrict the ballot to Biden. These are within-group efforts (regional), rather than between-group (national). The courts affirmed that the Party is a private organization and can put whoever they want on the ballot. Or Not.
> To create a regional crisis, war is not the only way. Since the goal is to squeeze out the capital, even without a fight one can create regional crisis.
Marianne Williamson is absolutely correct to panic about this. The threat itself is enough to restrict her fundraising and squeeze out the capital.
Adjacent to this, the Alabama v Michigan game was great, an overtime win with lots of subtleties. They were playing for who goes to the Championship Game. This in distinction to every other Bowl Game I looked at, where the pro prospects weren’t playing, freshman mistakes all over the field, and nobody really seemed to care.
But the games had to be played so the ads could be run. Like Politics in America.
According to the Sweep and Force article, “. . . Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.” They say the same about the Due Process Clause. Toe the war party line or be summarily removed from ballot?
In other words this is a fine mess we have gotten ourselves into. I have no intention of voting for Trump or Biden. I was partial the Kennedy, but he seems not to recognize a genocide when he sees one. For me that is disqualifying. That leaves me with no one … Yes. I realize there are others striving for the light. They are all lightweights in one way or another.
At the moment … and a moment is a long time in politics, as is a day or a week … Trump looks to be out front. There is fear and loathing among those who oppose him. There is a degree of fear and perhaps loathing among those who prefer Biden. Why so? Look around … and he is one who supports the ongoing genocide. Then there is Bidenomics whatever that is supposed to mean and of course there is his crack foreign policy team. In myopinion they cannot find their fundament with both hands and a flashlight.
We have trouble right here in River City.
Even if the purple party is able to get trump off the ballot, by hook or crook; what would stop millions of people from “writing him in”?
As dysfunctional and incompetent as the governing class of the US is, and considering their track record of screwing up everything they do in the public sphere( as opposed to their own wallet sphere where the scam is based on corruption; and they excel); I find it hard to believe that most people who want trump and want to give a finger to biden(let’s go brandon), wouldn’t write trumps name in the blank spot on the election form.
Even if some lawyers fix the ticket, who will stop them from being counted?
Write-in rules vary by state
https://ballotpedia.org/Write-in_candidate
As I understand the Sec. 3 commentators, It applies a disqualification to *serve*, not to be elected. That might put the burden of office posthaste on a newly elected vice president who is then promoted.
Awkward…
The problem with “write-in” theory, (and my state is one with no such concept) is that President election is about electors. I think you would have to write-in the names of electors, but since 2016, 2020 states have tried to “straight-jacket” electors so not sure how you actually implement a write-in.
Thank you for this excellent legal analysis. It should be widely distributed and, as befits a democratic polity, widely discussed and criticized. But just getting this out there in a succinct and coherent way is a great public benefit, and a great start.
[lambert blushes modestly]
First of all, I think that both the Colorado and Maine decisions are wrong.
That being said, there are a number of problems with relying on Chase’s opinion in In re Griffin.
First of all, Chase himself took the opposite position in Case of Davis.
That case was a criminal case brought against Jefferson Davis for treason. Davis argued that trying him for treason exposed him to double jeopardy because:
1. Section 3 of the 14th Amendment was a punishment; and
2. Section 3 of the 14th Amendment was self-executing.
Chase “instructed the reporter to record him as having been of opinion on the disagreement, that the indictment should be quashed, and all further proceedings barred by the effect of the fourteenth amendment to the constitution of the United States.
So, which of these two cases, neither of which has value as precedent, are we to follow?
Secondly, the idea that Section 3 imposes a punishment is also contested. There is an argument that it is a disqualification no more punitive than an age qualification or that only persons born in the United States can be President.
Lyman Trumbull, one of the drafters of the 14th Amendment, took this position.
“[W]ho ever heard of such a proposition . . . that a bill excluding men from office is a bill of pains and penalties and punishment?” CONG. GLOBE, 39th Cong., 1st Sess. 2901 (1866).
Thirdly, there are examples of state courts after the civil war disqualifying persons under Section 3 without first charging them criminally.
So, to me, the argument that one first has to be found criminally liable for insurrection as a prerequisite to be disqualified under Section 3 is a weak one.
However, that leaves the question of whether what happened on Jan. 6 was insurrection and whether Trump participated in it. To me, the answer is no.
This topic, IMO, is important, but just one of the many useless and dangerous ‘strategies‘ being employed to ‘Stop T**** at any cost’.
The cost, being immense in reality, and so far, ignored by the perpetrators.
People are busy talking about the details of this particular tactic, but no one seems to be pointing the massive, overall danger of provoking a violent chain reaction rooted in what is bound to be seen by T**** supporters as an effort to thwart the will of the people.
If and when that conflict comes to the fore, I, for one would be hard pressed to argue in favor of those who think stopping T**** legitimates these moves.
The people’s will was thwarted by the DNC’s stopping Bernie, whose supporters were way too polite.
IMHO, Bernie represented our last chance at “peaceful revolution”, and allowing the DIMS to thwart the people’s will made our current situation inevitable.
I do not believe for one minute that T****’s supporters will be so quiet.
In fact, I believe the BLM disturbances would look rather insignificant in comparison to what could be in store for the coming year.
Yes! The corrupt scum who run the Dem party would rather lose than win with Sanders. We should have had President Sanders but instead we got Trumpolini. And it’s the Dems’ fault – the same filthy scum enabling the genocide in Gaza. I hate them. Absolutely hate every single lying one of them.
Re “Chase held [in Griffin] that the disqualification embodied in Section 3 is not “self-executing,” legal parlance meaning that Congress must first implement the disqualification by appropriate legislation under Section 5 of the 14th Amendment.”
I think you are misrepresenting what Section 5 actually says. And a nit picker could take the phrase “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” that this amendment is not, of itself, an article. But trivialities aside. . . .
That the Congress shall have the power to enforce the amendment, it is clear it is against state actions. It does not state that “Solely Congress shall have the power.” And by implication it means that Congress would have to take action to prevent the states from exercising that power.
> It does not state that “Solely Congress shall have the power.”
Yes it does. The requirement is for a national legislative body. That means Congress.
What’s the difference between insurrection and treason?