I'm surprised this clause has not been invoked
since the Civil War.
To my eye this reads like an extremely powerful and dangerous clause
In recent weeks there has been an apparently growing theory among
some legal scholars that Trump is already disqualified from
running for president due to the wording in section three of the
14th Amendment which prohibits any government official who took an
oath to defend the Constitution and then engaged in "insurrection
or rebellion" against the United States from ever holding office
again. Specifically, the Amendment states:
“No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may, by a vote
of two-thirds of each House, remove such disability.”
What I find interesting is that the wording does not say anything
about having been convicted or even charged with any crime. It
also doesn't define terms like insurrection, rebellion of "Comfort
to the enemies".
To my eye this reads like an extremely powerful and dangerous
clause, as it effectively gives the Secretary of State of any
state the power to exclude someone from the ballot for virtually
any reason, as long as the Secretary claims the person committed
an insurrection or gave "comfort" to the enemy. Even ignoring the
Trump situation, just imagine a candidate from either party who
holds or has held a position in the US government and who has said
some positive things about Russia or China or Cuba (as some have
done in the past) or has criticized the current US government as
either being socialistic or leaning toward Fascism (as some have
also done in the past), and then some hotshot Secretary of State
from the opposing party comes along and unilaterally decides that
the candidate's views are a form of "rebellion" or giving "Comfort
to the enemies" and excludes them from the ballot in their state
on that basis.
Obviously any such action would go to the courts and eventually
the Supreme Court, but the mere fact that this clause exists and
is so seemingly open-ended is pretty scary. I'm surprised this
clause has not been invoked since the Civil War.
On Sat, 02 Sep 2023 13:55:58 -0700, Rick wrote:
To my eye this reads like an extremely powerful and dangerous clause
(Not sure what happened to my post on this question ?)
To me, the distinct - conscious - lack of requirement for a "conviction" >suggests the framers foresaw a future where the legislature had been
captured by malign influence and had the chance to try to run around the >constitution by weirdly redefining "insurrection".
This way, it's left to each generation to define the concept according to >it's values.
"Rick" <rick@nospam.com> wrote:
In recent weeks there has been an apparently growing theory among
some legal scholars that Trump is already disqualified from
running for president due to the wording in section three of the
14th Amendment which prohibits any government official who took an
oath to defend the Constitution and then engaged in "insurrection
or rebellion" against the United States from ever holding office
again. Specifically, the Amendment states:
“No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may, by a vote
of two-thirds of each House, remove such disability.?
What I find interesting is that the wording does not say anything
about having been convicted or even charged with any crime. It
also doesn't define terms like insurrection, rebellion of "Comfort
to the enemies".
To my eye this reads like an extremely powerful and dangerous
clause, as it effectively gives the Secretary of State of any
state the power to exclude someone from the ballot for virtually
any reason, as long as the Secretary claims the person committed
an insurrection or gave "comfort" to the enemy. Even ignoring the
Trump situation, just imagine a candidate from either party who
holds or has held a position in the US government and who has said
some positive things about Russia or China or Cuba (as some have
done in the past) or has criticized the current US government as
either being socialistic or leaning toward Fascism (as some have
also done in the past), and then some hotshot Secretary of State
from the opposing party comes along and unilaterally decides that
the candidate's views are a form of "rebellion" or giving "Comfort
to the enemies" and excludes them from the ballot in their state
on that basis.
When originally enacted, those involved knew who they were and mostly
stayed out of government.
Ideally it would be up to the courts to decide. But the standard is
likely to be the same as for civil cases - by a preponderance of the
evidence (more likely than not) as opposed to the more strict beyond
a reasonable doubt.
Obviously any such action would go to the courts and eventually
the Supreme Court, but the mere fact that this clause exists and
is so seemingly open-ended is pretty scary. I'm surprised this
clause has not been invoked since the Civil War.
There hasn't been any concerted effort to illegally and improperly
take over the government until now. But now the Republicans are
trying to make impeachment routine and based on nothing - I wouldn't
be surprised if this were next.
"Jethro_uk" wrote in message news:ud1l1v$g7da$20@dont-email.me...
On Sat, 02 Sep 2023 13:55:58 -0700, Rick wrote:
To my eye this reads like an extremely powerful and dangerous
clause
(Not sure what happened to my post on this question ?)
To me, the distinct - conscious - lack of requirement for a
"conviction" suggests the framers foresaw a future where the
legislature had been captured by malign influence and had the
chance to try to run around the constitution by weirdly redefining >>"insurrection".
This way, it's left to each generation to define the concept
according to it's values.
I always assumed it was written that way to make it easier to
exclude Officers and Officials from the Confederacy, who probably
were never formally charged or convicted of anything, from serving
in the government after the Civil war.
And what's really undemocratic is the winner-talk-all electoral votes of
each state rule. I think one state has stopped that, Nebraska or some
place nearby, but I saw some plan that doesn't require a con amendment
where several states, maybe a mixture of red and blue, and maybe
eventually all of them, would agree to proportion electoral votes, it
would be far more democratic. Of course that would hinder Republicans
who have elected their last 3? presidents with a minority of the vote.
And what's really undemocratic is the winner-talk-all electoral
votes of each state rule. I think one state has stopped that,
Nebraska or some place nearby, but I saw some plan that doesn't
require a con amendment where several states, maybe a mixture of
red and blue, and maybe eventually all of them, would agree to
proportion electoral votes, it would be far more democratic. Of
course that would hinder Republicans who have elected their last
3? presidents with a minority of the vote.
In misc.legal.moderated, on Sun, 3 Sep 2023 10:51:53 -0700 (PDT),
"Stuart O. Bronstein" <spamtrap@lexregia.com> wrote:
"Rick" <rick@nospam.com> wrote:
In recent weeks there has been an apparently growing theory among
some legal scholars that Trump is already disqualified from
running for president due to the wording in section three of the
14th Amendment which prohibits any government official who took an
oath to defend the Constitution and then engaged in "insurrection
or rebellion" against the United States from ever holding office
again. Specifically, the Amendment states:
“No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil
or military, under the United States, or under any State, who,
having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may, by a vote
of two-thirds of each House, remove such disability.�
What I find interesting is that the wording does not say anything
about having been convicted or even charged with any crime. It
also doesn't define terms like insurrection, rebellion of "Comfort
to the enemies".
To my eye this reads like an extremely powerful and dangerous
clause, as it effectively gives the Secretary of State of any
state the power to exclude someone from the ballot for virtually
any reason, as long as the Secretary claims the person committed
an insurrection or gave "comfort" to the enemy. Even ignoring the
Trump situation, just imagine a candidate from either party who
holds or has held a position in the US government and who has said
some positive things about Russia or China or Cuba (as some have
done in the past) or has criticized the current US government as
either being socialistic or leaning toward Fascism (as some have
also done in the past), and then some hotshot Secretary of State
from the opposing party comes along and unilaterally decides that
the candidate's views are a form of "rebellion" or giving "Comfort
to the enemies" and excludes them from the ballot in their state
on that basis.
When originally enacted, those involved knew who they were and mostly >>stayed out of government.
Ideally it would be up to the courts to decide. But the standard is
likely to be the same as for civil cases - by a preponderance of the >>evidence (more likely than not) as opposed to the more strict beyond
a reasonable doubt.
Obviously any such action would go to the courts and eventually
the Supreme Court, but the mere fact that this clause exists and
is so seemingly open-ended is pretty scary. I'm surprised this
clause has not been invoked since the Civil War.
There hasn't been any concerted effort to illegally and improperly
take over the government until now. But now the Republicans are
trying to make impeachment routine and based on nothing - I wouldn't
be surprised if this were next.
Yes, I can imagine fairly easily some Republicans trying to keep Joe
Biden off the ballot because, according to them, he has left the border
with Mexico open and that's equivalent to insurrection. Subliminal >insurrection, or out-sourced Central American based insurrection. A word >means whatever I want it to mean, they will think.
I can see trump kept off the ballot but for the most part, only in
states he has no chance of winning anyhow. Maybe a waste of money that >could be better spend campaigning in blue, purple and even red states.
And what's really undemocratic is the winner-talk-all electoral votes of
each state rule. I think one state has stopped that, Nebraska or some
place nearby, but I saw some plan that doesn't require a con amendment
where several states, maybe a mixture of red and blue, and maybe
eventually all of them, would agree to proportion electoral votes, it
would be far more democratic. Of course that would hinder Republicans
who have elected their last 3? presidents with a minority of the vote.
Obviously any such action would go to the courts and eventually the Supreme Court, but the mere fact that this clause exists and is so seemingly open-ended is pretty scary. I'm surprised this clause has not been invoked since the Civil War.
On Saturday, September 2, 2023 at 3:56:02 PM UTC-5, Rick wrote:
[snip much of a good, pithy post]
Obviously any such action would go to the courts and eventually the
Supreme
Court, but the mere fact that this clause exists and is so seemingly
open-ended is pretty scary. I'm surprised this clause has not been
invoked
since the Civil War.
But isn't the absence of such a clause, or just ignoring the clause, also >scary?
micky wrote:
And what's really undemocratic is the winner-talk-all electoral
votes of each state rule. I think one state has stopped that,
Nebraska or some place nearby, but I saw some plan that doesn't
require a con amendment where several states, maybe a mixture of
red and blue, and maybe eventually all of them, would agree to
proportion electoral votes, it would be far more democratic. Of
course that would hinder Republicans who have elected their last
3? presidents with a minority of the vote.
That's the National Popular Vote Interstate Compact https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Comp
act
As noted in the above article, there are two Constitutional
problems with the NPVIC:
1. Article I, Section 10: No State shall enter into any Treaty,
Alliance, or Confederation...
2. Article 2, Section 1: Each State shall appoint, in such Manner
as the Legislature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives to which the
State may be entitled in the Congress...
So the NPVIC would (probably) have no legal effect, except to the
extent that a given state's legislature decides to allocate
electors according to the Compact.
And that is the big hole in the NPVIC: consider a close election.
The (say) Democratic candidate has a clear lead in the popular
vote, but the popular vote in that state favored the Republican
candidate. So the legislature gets together and decides to
allocate its electors by winner-take-all, and there is nothing the
other states can do except, perhaps, do the same. And that would
lead right back to the current situation.
Or vice versa: the Republican candidate wins the national popular
vote, and one or more states with a Democratic majority in the
legislature decides to award the electoral votes to the Democratic
candidate.
I agree the clause is needed and useful. I just wish it
had been written a bit more precisely and with more of a tie to an actual formal charge, if not a conviction. On its face, as it's written, George McGovern could have been kept off the ballot in some states in 1972 because some of his comments about Vietnam could have been interpreted by a rogue Secretary of State as giving "comfort to the enemy". I would love to see Trump kept off the ballot due to his actions (and also his lack of action on Jan 6), but I would not have supported any effort to keep McGovern off the ballot.
The states can certain pass laws that would allocate their electoral
votes in proportion to the popular vote. Once it's a law, the
legislature would have trouble doing something contrary to it.
Just chatting here. I see that the Constitution and its Amendments
use the word "convicted," in the context of a criminal,
court-overseen trial, exactly twice. Both of these instances
occurred prior to the passage of the 14th amendment. To me the
omission of a conviction requirement in the 14th amendment,
Section 3 was purposeful. The authors and all who ratified the
14th amendment did not want the standard for disallowing a person
to hold a United States office to include a criminal conviction.
Back in 2000 with Bush v. Gore, and back in 2016 when the Senate refused to give SCOTUS nominee Merrick Garland a hearing, I did not complain. All of these outcomes, while sad for me, were lawful. The Right played hard ball. They won, fair and square.
But these people who refuse to accept that Biden won the election, and who acted on this belief in violent, fraudulent and criminal ways, are the worst kind of sore losers.
Look for my (puny little) name listed as one of the plaintiffs in the upcoming lawsuits to keep Trump's name off the ballot.
References:
The recently distributed article, by two, Federalist Society, law professors, that has given strength to the 14th amendment, section 3 argument appears here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
The New York Times's report on the law professors' research: https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html
Obviously any such action would go to the courts and eventually the Supreme >Court, but the mere fact that this clause exists and is so seemingly >open-ended is pretty scary. I'm surprised this clause has not been invoked >since the Civil War.
Here's an interesting paragraph from wikipedia:
"Between Reconstruction and 2021, Section 3 was invoked only once: it
was used to block Socialist Party of America member Victor L. Berger of >Wisconsinconvicted of violating the Espionage Act for opposing US
entry into World War Ifrom assuming his seat in the House of
Representatives in 1919 and 1920. Berger's conviction was overturned by
the Supreme Court in Berger v. United States (1921), after which he was >elected to three successive terms in the 1920s; he was seated for all
three terms."
I predict a number of nonprofits will file suit and invoke this clause from the 14th amendment to keep Trump off the ballot.
On 9/3/2023 10:00 PM, micky wrote:
And what's really undemocratic is the winner-talk-all electoral votes of
each state rule. I think one state has stopped that, Nebraska or some
place nearby, but I saw some plan that doesn't require a con amendment
where several states, maybe a mixture of red and blue, and maybe
eventually all of them, would agree to proportion electoral votes, it
would be far more democratic. Of course that would hinder Republicans
who have elected their last 3? presidents with a minority of the vote.
That's the National Popular Vote Interstate Compact >https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
As noted in the above article, there are two Constitutional problems with
the NPVIC:
1. Article I, Section 10: No State shall enter into any Treaty, Alliance,
or Confederation...
2. Article 2, Section 1: Each State shall appoint, in such Manner as the >Legislature thereof may direct, a Number of Electors, equal to the whole >Number of Senators and Representatives to which the State may be entitled
in the Congress...
So the NPVIC would (probably) have no legal effect, except to the extent
that a given state's legislature decides to allocate electors according to >the Compact.
And that is the big hole in the NPVIC: consider a close election. The (say) >Democratic candidate has a clear lead in the popular vote, but the popular >vote in that state favored the Republican candidate. So the legislature
gets together and decides to allocate its electors by winner-take-all, and >there is nothing the other states can do except, perhaps, do the same. And >that would lead right back to the current situation.
Or vice versa: the Republican candidate wins the national popular vote, and >one or more states with a Democratic majority in the legislature decides to >award the electoral votes to the Democratic candidate.
In misc.legal.moderated, on Mon, 4 Sep 2023 14:23:00 -0700 (PDT), Elle N ><honda.lioness@gmail.com> wrote:
Back in 2000 with Bush v. Gore, and back in 2016 when the Senate refused
to give SCOTUS nominee Merrick Garland a hearing, I did not complain. All >>of these outcomes, while sad for me, were lawful. The Right played hard >>ball. They won, fair and square.
But these people who refuse to accept that Biden won the election, and who >>acted on this belief in violent, fraudulent and criminal ways, are the >>worst kind of sore losers.
Look for my (puny little) name listed as one of the plaintiffs in the >>upcoming lawsuits to keep Trump's name off the ballot.
References:
The recently distributed article, by two, Federalist Society, law >>professors, that has given strength to the 14th amendment, section 3 >>argument appears here: >>https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751
"No person shall be a Senator or Representative in Congress, or elector
of President and Vice President, or hold any office, civil or military,
under the United States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an officer of the United >States, or as a member of any State legislature, or as an executive or >judicial officer of any State, to support the Constitution of the United >States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may,
by a vote of two-thirds of each House, remove such disability.
"He summarized the article’s conclusion: “Donald Trump cannot be >president — cannot run for president, cannot become president, cannot
hold office — unless two-thirds of Congress decides to grant him amnesty >for his conduct on Jan. 6.”"
Someone on the tv ppointed out that the 14th Amend. only says such a
person can't hold such an office, not that he cannot run for it or be
elected to it. :-)
According to the referenced Wikipedia article:
"The compact mandates a July 20 deadline in presidential election years,
six months before Inauguration Day, to determine whether the agreement
is in effect for that particular election. Any withdrawal by a
participating state after that deadline will not become effective until
the next President is confirmed."
https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
Obviously a state could try to renege on this agreement and change its
rules based on the results of the election, but it's hard to see a court agreeing to this when the wording in the agreement clearly prohibits it
On 9/5/2023 8:08 AM, Rick wrote:
According to the referenced Wikipedia article:
"The compact mandates a July 20 deadline in presidential election years,
six months before Inauguration Day, to determine whether the agreement is
in effect for that particular election. Any withdrawal by a participating
state after that deadline will not become effective until the next
President is confirmed."
https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
Obviously a state could try to renege on this agreement and change its
rules based on the results of the election, but it's hard to see a court
agreeing to this when the wording in the agreement clearly prohibits it
Unless the court finds that it violates Article I, Section 10, in which
case it would be completely invalid and of no legal effect.
On Monday, September 4, 2023 at 10:42:58 AM UTC-5, Elle N wrote:
I predict a number of nonprofits will file suit and invoke this clause
from
the 14th amendment to keep Trump off the ballot.
Two nonprofits began this process around April of this year. From the April >18, 2023 Washington Post:
"Two nonprofit groups who do not disclose all their donors, Citizens for >Responsibility and Ethics in Washington (CREW) and Free Speech for People, >have prepared multipronged legal strategies to challenge Trump across the >country under Section 3 of the 14th Amendment. They have written letters to >state election officials calling on them to block Trump from the ballot, >while separately preparing voter lawsuits and state election board >complaints."
Today's Washington Post elaborates on the nuts and bolts of this for
certain states:
===== Start Excerpts ====
"Take Pennsylvania. Under state law, when a candidate applies to appear on >the ballot, any person eligible to vote in that contest has seven days to >challenge that candidate’s constitutional qualifications in state court, >according to a new CREW analysis of laws governing such challenges.
Whichever way that ruling goes, it can be appealed to the state supreme >court. And that court’s ruling would likely be appealed to the U.S.
Supreme Court.
...
In another example, eligible voters in Illinois and New Jersey can try to >take action via an administrative agency process to prove a candidate is >disqualified, according to CREW’s analysis. That agency’s ruling is >subject to appeal in state court, likely heading to the state supreme court >— and, possibly, the U.S. Supreme Court.
CREW and FSFP have not revealed which states they intend to target with >lawsuits. But one source familiar with planning efforts said they will be >filed sometime this fall."
==== End Excerpts ====
https://www.washingtonpost.com/opinions/2023/09/05/trump-disqualified-14th-amendment-presidency/
has a lot more about how state courts might rule.
"Barry Gold" wrote in message >news:2993dc97-4341-6326-7b08-acdf48a41d2f@labcats.org...
On 9/3/2023 10:00 PM, micky wrote:
And what's really undemocratic is the winner-talk-all electoral votes of >>> each state rule. I think one state has stopped that, Nebraska or some
place nearby, but I saw some plan that doesn't require a con amendment
where several states, maybe a mixture of red and blue, and maybe
eventually all of them, would agree to proportion electoral votes, it
would be far more democratic. Of course that would hinder Republicans
who have elected their last 3? presidents with a minority of the vote.
That's the National Popular Vote Interstate Compact >>https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
As noted in the above article, there are two Constitutional problems with >>the NPVIC:
1. Article I, Section 10: No State shall enter into any Treaty, Alliance, >>or Confederation...
2. Article 2, Section 1: Each State shall appoint, in such Manner as the >>Legislature thereof may direct, a Number of Electors, equal to the whole >>Number of Senators and Representatives to which the State may be entitled >>in the Congress...
So the NPVIC would (probably) have no legal effect, except to the extent >>that a given state's legislature decides to allocate electors according to >>the Compact.
And that is the big hole in the NPVIC: consider a close election. The (say) >>Democratic candidate has a clear lead in the popular vote, but the popular >>vote in that state favored the Republican candidate. So the legislature >>gets together and decides to allocate its electors by winner-take-all, and >>there is nothing the other states can do except, perhaps, do the same. And >>that would lead right back to the current situation.
Or vice versa: the Republican candidate wins the national popular vote, and >>one or more states with a Democratic majority in the legislature decides to >>award the electoral votes to the Democratic candidate.
According to the referenced Wikipedia article:
"The compact mandates a July 20 deadline in presidential election years, six >months before Inauguration Day, to determine whether the agreement is in >effect for that particular election. Any withdrawal by a participating state >after that deadline will not become effective until the next President is >confirmed."
https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
Obviously a state could try to renege on this agreement and change its rules >based on the results of the election, but it's hard to see a court agreeing >to this when the wording in the agreement clearly prohibits it
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