No, The New Mexico Supreme Court Did Not Uphold the Merits of a 14th Amendment Disqualification

There is a spirited debate growing among law professors over the claim that former president Donald Trump is disqualified under the 14th Amendment from holding office. Various law professors have argued that Trump is already barred, even without a charge or conviction for insurrection or even incitement. I have previously discussed my disagreement with this theory, including a column this week.  A number of critics have cited a New Mexico case where such a disqualification of a local politician named Couy Griffen was approved by a court and then upheld by the New Mexico Supreme Court. Such a ruling, even if true, would not negate the basis for these objections. It would be one state case to the contrary in what is likely to be an array of such challenges. Yet, it is untrue that “the New Mexico Supreme Court upheld the decision to disqualify” and established counter precedent on the issue.

We have seen previous opinions misrepresented, including by Washington Post columnist Jennifer Rubin, only to have the error replicated in the media. Since this is the start of what is likely to be a prolonged debate, I thought it worth clarifying the prior rulings out of New Mexico.

It is certainly true that state District Judge Francis Mathew found that Griffin’s participation in the Jan. 6 attack on the U.S. Capitol amounted to insurrection and disqualified him from holding public office under state law and the 14th Amendment.

However, Judge Mathew’s decision is, in my view, dead wrong. Indeed, the court starts with a long quotation of the charge given by Illinois Judge Peter Stenger Grosscup. The case citation is In re Charge to Grand Jury, 62 F. 828 (N.D. Ill. 1894). 

What is striking is that Judge Mathew considers the charge to be compelling precedent. What Mathew does not mention is that it was used to treat union organizers as insurrectionists. It is a vivid example of how dangerous this fluid interpretation of insurrection can be for our country. Grosscup not only declared union organizers to be insurgents but added (as Mathew approvingly quotes) that “every person who knowingly incites, aids, or abets them, no matter what his motives may be, is likewise an insurgent.” Yet, Mathew believes it is worthy as precedent for his own unprecedented decision.

As I discussed in an earlier law review article, Grosscup resigned under allegations of malfeasance in office and said he wanted to get more involved in politics. See Jonathan Turley, The    “Executive    Function”    Theory,    the    Hamilton    Affair    and    Other    Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999). Grosscup called for federal troops to put down union organizers and is associated with the abuses of the period. I discuss those anti-union cases in my forthcoming book in 2024, The Indispensable Right: Free Speech in an Age of Rage.

I am hopeful that this issue will find its way into the federal courts so we can fully test these claims through an appellate process. This case, however, is hardly ideal. The New Mexico Supreme Court did not uphold Mathew on the merits.  It might well have done so, but the decision was based entirely on procedural grounds. It was not a ruling on the merits.

None of this means that my opinion is stronger or weaker due to these rulings. There is a fundamental difference over the meaning of the disqualification clause and its implications for our country. However, the New Mexico decision failed on appeal for procedural reasons. Frankly, in my view, Mathew’s decision is weak and would have made for a strong challenge. Yet, I am assuming that the law professors supporting this theory will soon bring challenges to the balloting or related steps. That will allow for an expedited consideration and appeal of this issue.

83 thoughts on “No, The New Mexico Supreme Court Did Not Uphold the Merits of a 14th Amendment Disqualification”

  1. A claim that any person can be disqualified from becoming or being the President of the US by means of Section 3 of the 14th Amendment is utterly absurd and invalid.
    Just, please, read the text of it. It specifically mentions Senators, Representatives in Congress, and electors, but not the President or VP of the US. There is a good reason for that, and those who falsely imply that is was sloppiness or stupidity of those who drafted and ratified it have a burden of proving their claims.
    It must be clear for any unbiased, informed, and rational reader that it was NOT the intention of the drafters and ratifiers of 14th Amendment to remove of bar the elected official elected by the American electorate as a whole – as opposed to
    officials elected by voters in one state only, such as senators and representatives – from maintaining or assuming the position that he/she has been elected for.
    The idea that the framers and ratifiers of the 14th Amendment thought that the President and VP of the US were not important enough to be mentioned specifically in Section 3 is simply preposterous.
    Therefore, arguments that Section 3 of 14th Amendment applies to the US President and VP lacks a valid Constitutional basis and should be treated as such.

  2. The left has a bad habit of making stuff up to get their way.

    The Constitution silent on abortion? Not a problem. Just pretend that James Madison wrote in invisible ink that Americans have the right to kill their unborn children.

    Empirical evidence for the Big Bang theory of the origin of the universe, including the beginning of space and time, sound too much like the Book of Genesis? Not a problem. Atheist physicists have decided to pretend that the universe emerged out of nothing all by itself, without a cause. To create this fiction, they had to redefine “nothing” to mean a situation where some extremely small things called quantum particles continually pop in an out of existence due to something called the laws of quantum mechanics. Which sounds more like something than nothing. And which ignores those who want to know where the quantum particles and the laws of quantum mechanics came from.

    And now Trump. After seven years of trying, his enemies have been unsuccessful at throwing their main political rival in prison. Not to worry, though. They have decided to make up some laws that don’t exist, get a very smart, highly educated political hack or two to agree with them, put it all in front of a leftist grand jury, and get rolling. Time’s a wastin.

    1. I have an idea.

      Let’s let women vote.

      “[Babies]? We ain’t got no [babies]! We don’t need no [babies]! I don’t have to show you any stinking [babies]!”

      – Gold Hat, The Treasure of the Sierra Madre, 1948

      The American fertility rate has been in a “death spiral” since the 60s; more Americans die than are born.

      De facto president Obama is “fundamentally transforming” America.

      American fertility rate 1960 – 3.5

      American fertility rate 2023 – 1.6

    2. If all it takes for a person to be pre-convicted of “insurrection” is to be accused by anybody, then I accuse President Biden of insurrection by failing to enforce existing border laws. Mug shot to follow shortly…

  3. “All calculations based on our experience elsewhere fail in New Mexico.” Lew Wallace, Territorial Governor of New Mexico (1878 – 1881) and author of Ben Hur.

  4. I’m a retired attorney and spent most of my career practicing in NM. What no one outside the state would know is that Mr. Griffen, a non-attorney, represented himself, pro se, both at the trial court level and in front of the NM Supreme Court. Mr. Griffen was a vocal Republican elected official from the east side of the state who appeared before a Democrat District Court judge in Santa Fe and in front of the NM Supreme Court where all of the justices are Dems. All of the state District Court judges in Santa Fe are Dems, as well. The last time Republicans held a majority on the NM Supreme Court was in the 1920s. Mr. Griffen never had a chance.

    1. Charles: The Q is whether Griffin is totally crazy? As an elected official he took an oath to uphold the Constitution. Then he turns around, catches a plan, bus or train, and goes to DC on Jan. to participate and lead the insurrection. Then he comes back and expects nothing to happen? Doesn’t make any sense to me. In a NM judiciary dominated by Dems, who take their oath of office seriously, why would he go in pro se? Any person with their head screwed on straight would get counsel to navigate the process. That’s why he missed the filing deadline for his appeal and the SC found a convenient way to dismiss. it. What is going on in your state when voters elect someone like that?

        1. The American Revolution of 1776 was an insurrection.

          It is impossible to “revolt against civil authority or an established government” (i.e. Merriam-Webster) without bearing equivalent arms, as evinced by the inclusion of the 2nd Amendment in the Bill of Rights of the American Founders and Framers.

          George Washington was appointed Commander of the Continental Army in 1775.

          Who is the Commander of the Continental Army in 2023?

          Is it possible to compare General Washington and his loyalties?

          “General Washington in the American Revolution”

          “George Washington was appointed commander of the Continental Army in 1775. Despite having little experience in commanding large, conventional military forces, his leadership presence and fortitude held the American military together long enough to secure victory at Yorktown and independence for his new nation in 1781.”

          – George Washington’s – Mount Vernon


          in·​sur·​rec·​tion ˌin(t)-sə-ˈrek-shən

          : an act or instance of revolting against civil authority or an established government

      1. So now this guy led the “insurrection ” and not Trump. Good one Dennis.

        Lie #68 I have found since you challenged me to.

        Maybe the best counsel he could find reminded him of you. That kind of hopeles feeling could lead one to do strange things.

    2. Likewise with the courts notion of “res adjuticaya” who stands a chance…ah the”coirt” finds another “fact finder”all ready found. Foreclosed. Trump doesn’t stand a chance to get his evidence in….bc a court already decided that topic…wo evidence. We are at an impasse…bc of the Supreme courts doctrines…on res adjuticata…sure they punt political issues …until they don’t. And what about kickoff standing?we the ppl have had it. The court had a chance to rule…they punted so look for succession

      Constitutionally of course…of which Bragg and fanni have zilch jurisdiction. We the ppl of the American posterity..we say….and we say soon. Very damn soon.

      1. We are done with rinos like bacus who count cows in Russia. And give a little aid to prop something else up. Until we acknowledge the number of Russians who died in ww2…we didn’t win it…we need to eat some humble pie….or the whole planet goes to ashes. Sure the mic doing harm is soon eliminated….but the bigger picture is humanity….and there is nothing wrong with the Russian people…nothing wrong with the Chinese people.

        We are people…and the day the war lords get off our backs is closing in.

        1. They declared war…the time for pure patience has expired. With all due respect admiral. Be right and do better.

  5. I really wish that Trump would step down from is narcissistic run for president. We could then focus on real problems of the U.S. and our allies and actually do something about it beside running ourselves crazy about constitutional matter. Even when the Supreme Court speaks and I think they have to get in on these matter, only half of the people will be satisfied which will lead to further division and animosity. I guess the only way to get the U.S. together is when some foreign nation invades us again and GOD forbid they take over.

    1. My fellow old man. Please. Wake up.
      Trump is NOT the problem. Nor is he on an ego trip. He lost a lot of $$ as POTUS. Personal business money.
      The real problem is from those who are fomenting the REAL insurrection, the deep state, RINOs included. I take it you don’t do much research. Oh well…
      What are our real problems & can you HONESTLY say they were worse under Trump?
      Do you think it’s OK to let CHILDREN get mutilated with adult use hormone blockers & surgery before they are old enough to know what they are doing?
      Is it ok to teach ages 3-16 about sexual stuff? Is it wrong to ban porn books some want to give to children? Books that CANNOT be read out loud in public? Books that teach oral & anal sex to MINOR CHILDREN? Parents are called book burners for just wanting to keep the porn away from the kids! Is it good to call parents who go to school board meetings to protest in order to protect their children ‘domestic terrorists’? Why isn’t THAT A problem? That’s a biden thing.
      Do you like the new gas prices? Are they lower than when Trump was in? Food, grocery store prices, same Q.
      Is our open border a problem? How does the Trump border policy differ from biden’s?
      Do you think ‘climate change’ should be a reason to expand the reach & power of government? Does it do that? Do you know? If ‘climate change’ is such a huge threat, why are China, India & Russia not told they must reduce THEIR emissions? Why s the USA under such pressure but few other countries are?
      Is it a problem that Trump got US into zero new wars? Was that a good thing or not?
      No my friend, YOU need to rethink your position.
      if it were not for fringe stream media, you wouldn’t think Trump was the block to all our problems. He represents my beliefs in the Constitution, the 1st & 2nd amendments, life, liberty & the pursuit of happiness. Of a world dominated by peace, like the one we ere starting to have when he was in, till the china virus was unleashed.
      Please. Tell us, WHY & HOW is TRUMP keeping those problems from being solved? He isn’t under self attack. He & his supporters are being hounded & propagandized by fake stream media & the fascist deep state. THEY KEEP HIM IN YOUR FACE! THEY want you to blame him for THEIR constant attacking. It’s lying media that wants to Trump you to death to the extent you’ll blame him & ignore them. It’s an old ladie’s mind trick.


    2. The road of freedom is narrow and difficult. Staying on it requires new leaders in each generation who are unafraid of division from, and occasional animosity toward, those who oppose freedom. The road of tyranny is wide and easy. Free of division and animosity. All you need to do is nod and obey.

    3. And just have the Democrats have their way so they can do it to the next GOP Presidential nominee? They started this “literally” Hitler mantra with Bush, their deified McCain, and then did the same with their now best friend Romney. No thanks. Does anyone believe it Trump “goes away” the left will just stop there? When DeSantis was gaining ground he was their “next Hitler” target as they articles were starting to appear calling him “worse than Trump”. Those articles have gone by the wayside now that DeSantis’ poll numbers have gone down.

      The left creates laws and “precedents” to go after anyone that threatens their power. Meanwhile, the people’s rights are slowing being taken away from Americans. No thanks. This is the hill we stand on.

    4. I agree with Sam. You sir are just regurgitating democrat propaganda. As the meme goes, They’re not coming for Trump, They’re coming for the deplorables.

    5. So status quo works for you? Uniparty bi-partisan screwing of America? Because if you think that any of the candidates currently challenging him are anything more than controlled opposition then you haven’t paid attention to what is going on. The deep state is scared to death of DJT for a reason. They don’t own him, if they did, he would have already folded, and his secrets laid bare in front of the world for his insubordination. If they were scared of the other candidates, they would be facing the same scrutiny and ferocity of attacks and they aren’t. That means the deep state has nothing to fear from them. They would be nothing more than controlled opposition and the 4th branch would continue to run our country and continue the managed decline until we are supine to the Chinese. Wake up this is not a game anymore.

  6. If you cannot, and you cannot, cite the Constitution for a prohibition of secession, everything Lincoln and his successors did subsequent to his unconstitutional denial of secession, was and remains unconstitutional, including the “Reconstruction Amendments” of Karl Marx.

    “They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln…to lead his country through the…RECONSTRUCTION of a social world.”

    – Karl Marx to Abraham Lincoln, 1865

    If Lincoln could not deny secession, and he could not, Lincoln et al. could not forcibly impose the “Reconstruction Amendments” or any of their other unconstitutional edicts on America.

    1. I’ll do you one better. Even if secession were illegal, the national government STILL couldn’t (1) hold that the purported secession was null and void and (2) simultaneously require the states to be re-admitted to a union they had never left. That re-admission, of course, was conditioned on ratification of the Reconstruction Amendments. Those ratifications don’t count, because (1) they were made under duress and (2) the states didn’t need to be re-admitted anyway since the USG denied that they had ever left.

  7. While I believe this area of the law is clearly unsettled, I’d gladly trade barring Trump from the Oval Office in exchange for preventing every lefty who tweeted support of or donated to Occupy Wall St, BLM, etc. from ever holding any federal office.

  8. “When I use a law,” the Deep State member said, in a rather scornful tone, “it means just what I choose it to mean, neither more nor less.”–Through the Looking Glass (adapted).

  9. Then there is that anti-constitution Anonymous moron that essentially commented that since Donald Trump was accused by people that hate him then he’s disqualified.

    Don’t these ignorant fools understand that even though they really really hate Donald Trump, he still has constitutional rights.

    Yup the moronic trolling comment from Anonymous was appropriately deleted from the thread.

    1. I am not the same Anonymous. But I don’t think you understood his comment. (NOTE: If you have not read the law article, here it is: Professor Turley barely scratched the surface of it, so relying on his limited summary is not sufficient.

      The argument made by the two original Federalist Society conservatives was that the original understanding of Section 3 of Article 14 was that is its SELF-EXECUTING, which means that its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done – including TRIAL AND CONVICTION – in order for Section 3’s prohibitions to be legally effective.

      The comparison they make is Section 1 of the 14th Amendment, which uses parallel drafting (i.e., “No state shall” in Section 1 and “No person shall” in Section 3). Section 3 is also drafted differently from other constitutional provisions that deal with misbehavior. For example, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witness to the same overt act, or on confession in open court.”

      Note the contrast. The Treason Clause defines an offense but Section 3 enacts its own disqualification (“No person shall be…”). It acts on persons, not offenses. You draft similar parallels to the impeachment provisions of the Constitution.

      The framers had the treason clause and impeachment clauses at hand and chose a noticeably different path. Section 3 does NOT call for trials or the impeachment of secessionists. It directly imposes an across-the-board disqualification.

      The framers drafted this provision more similar to the 35-year-old requirement, which is self-executing. There is no requirement that a committee be called to confirm one’s age, for example.

      For conservatives, who hail Scalia’s conception of originalism – I am surprised by the lack of consistency when the normative answer is not the desired outcome. What would Scalia think? Why would Section 3 of the 14th Amendment be drafted in a self-executing fashion if there was a requirement of a trial to prove conviction?

      The best response to this argument is that it is hard to apply such a rule. This is the argument that Turley makes. How will we know whether aid and comfort to insurrection has occurred if not for a trial and conviction? But that sort of response is the typical lane for liberals on the Supreme Court (and presumably Turley) to raise, not conservative originalists. That is a FUNCTIONALIST response to a FORMALIST interpretation of the Constitution. If you are unfamiliar with these terms, they are worth a Googling. Every intro Con Law course discusses these two approaches to constitutional interpretation and they are important in this context.

      Perhaps before you start to criticize someone’s opinion, inform yourself on the basics of originalism as that is the topic of the law review article.

      If you do not subscribe to originalism and the conservative legal tradition, then Turley’s response is a fair one. But, too many on this blog do not understand they are actually siding with the progressive left in this particular situation.

      1. So, who decides if FJB’s botching of the withdrawal from Afghanistan constitutes aid or comfort to the Taliban?

        And if it is, who removes him from office? Could the military cite Section 3 as a justification to depose FJB?

        1. These are discussed in the article.

          I don’t subscribe to originalism. These are reasonable functionalist questions. Looks like you are turning into a liberal?

          An originalism doesn’t care about the practical application and would say .. if it is hard to interpret, then we should amend the Constitution, not write into the text tests (like whether there’s a conviction) when the language of the Constitution doesn’t include them. That would be….activist?

        2. By the way, if this is “new” to you, here is good background/intro reading on modes of constitutional interpretation. It is important to understand the lens through which justices purportedly arrive at their opinions. And these summary of each such lens.

          There is overlap with some (such as textualism and originalism) – I believe the textualist critique per the Congressional Research Service notes that practical problems with application are minimized in importance, for example.

      2. There are two aspects to this, in terms of originalism:

        1. Is it “self-enacting” like Section 1 of the 14th amendment? Here, I think it likely that it is. The burden is on those who would argue otherwise to explain how and why it differs from Section 1.

        2. What is “insurrection and rebellion?” It seems to me the term as originally understood was likely narrow, covering those who worked and fought for the confederacy in the past and perhaps those who might engage in a similar enterprise in the future. Especially when the clause is self-enacting, a clear definition is required. The burden is on those who would argue for an expansive definition to show that the original public meaning went beyond the type of insurrection and rebellion represented by the confederacy that was seared into the public memory.

          1. If you read the article, they address the Treason Clause at length. It is not written as a self-executing provision, like Section 3 of the Fourteenth Amendment.

            An originalist looks at the language used and compares it to other language used in the Constitution. The differences in drafting help explain why – according to an originalist – this should not be interpreted similarly to the Treason Clause.

            1. The concept of originalism has nothing to do with their article or any critique of it. If you read the article you would know that the main problem with it is that they have no clue what the facts are, or how they fit into the framework they think they have built.

          2. Oh boy! A new verbal shiney object to distract from what the dimms & RINOs are doing to take the USA down.
            Ever ask yourself—“Why is the deep state so afraid f Trump? ”
            I mean shucks homer, it’s been SIX YEARS!!! & they still can’t come up with anything criminally real &/or true to accuse Trump of.
            They are just making stuff up so THEY can interfere with the ’24 election.
            They never did prove the last two elections were clean, in spite of all their insipid spittle filled blatherng. It’s the RINOs & deep state that won’t allow investigations.
            Aren’t ya’ll TIRED of the deep state voting for you? Can’t you who, with no real evidence, oppose Trump think for yourselves?

        1. Your default assumption that insurrection must have a narrow definition is a functionalist/pragmatist argument, not an originalist one. To assume that narrow is correct is to read a rule into the Constitution that does not exist (If it does exist, please provide the Constitutional reference).

          As the authors of the article assert, an originalist would look at the meaning used at the time of enactment, which was not narrow. For example, that Ironclad Oath, adopted on July 2, 1862 is the oath one must be able to swear in order to hold federal office. It was required of most federal officeholders from 1862 to 1884. The text of the Oath sets forth the types of misconduct regarded as disqualifying an individual from eligibility for federal office because he had been engaged in supporting the rebellion.

          A few historically relevant examples of a broad understanding of the term:

          The Ironclad Oath required that prospective officeholders swear or affirm that they had not done any of the following:

          I . . . do solemnly swear (or affirm) that I have never [1] voluntarily
          borne arms against the United States since I have been a citizen
          thereof; that I have [2] voluntarily given no aid, countenance, counsel,
          or encouragement to persons engaged in armed hostility thereto; that
          I have [3] neither sought nor accepted nor attempted to exercise the
          functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have [4] not yielded a
          voluntary support to any pretended government, authority, power or
          constitution within the United States, hostile or inimical thereto.

          The content of this oath’s requirement establishes a useful, historically prominent marker for the scope of Section Three: What the Ironclad Oath understood to be disqualifying for federal office, Section Three likely embraced as constitutionally disqualifying conduct for the far broader sweep of offices to which it extended.

          Another historical marker was The Second Confiscation Act. The terms it used are especially evocative, visiting legal consequences on persons who “engaged in,” “incite[d],” “set on foot,” or “assist[ed]” “rebellion” or “insurrection” or who had “given aid or comfort” to rebellion or done acts “aiding and abetting” rebellion. The Act is practically a glossary of the terms used in
          Section Three of the Fourteenth Amendment proposed by Congress just four years later. Specifically: Section 2 made it a new crime, distinct from treason, to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof” or to “give aid or comfort thereto” or to “engage in, or give aid and comfort to,” any “existing rebellion or insurrection.” Importantly, these terms are described as acts “against the authority of the United States, or the laws thereof” – which is NOT specific to slavery.

          Finally, the Supreme Court’s decision in The Prize Cases (1863) is relevant. As used at the time, insurrection or rebellion were forms of active resistance to the lawful authority of the government. An insurrection might be something short of outright rebellion. But an insurrection against government authority sometimes grows into full-on “rebellion.” A rebellion, in turn, need not take the form of civil war in order to be a rebellion. But sometimes it does. At all events, rebellion seems its own distinct, more general legal concept of repudiation or attempted overthrow of the lawful constitutional regime by unlawful means.

          The article uses these examples to arrive at an originalist understanding, which is, in fact, broad and not narrow: Insurrection and rebellion involve varying degrees of concerted resistance to “the lawful authority of the Government,” with insurrection being the arguably somewhat lesser form and rebellion the somewhat greater. A rebellion or insurrection need not involve
          acts tantamount to levying war. (War is sometimes a feature of rebellion but does not define it.) The Civil War was an outgrowth of insurrection or rebellion. But the fundamental act of rebellion remains the attempt to displace the lawful authority of government by unlawful means. And those who give material assistance to the enemy may also suffer legal consequences

          You may disagree with the specific application of these contemporary examples of legal usage of these terms – but THIS is the ORIGINALIST interpretation of the term. Assuming that the definition must be narrow is NOT ORIGINALISM.

          1. None of these examples is particularly broad. They all involve organised armed efforts to replace or displace the government. That did not happen on Jan 6, Trump was not involved in any of the illegal actions in the Capitol on Jan 6 anyway, and none of the indictments say he was. And his challenges to the recorded results of the election which are covered by the indictments were non-violent efforts to persuade those in authority, not armed efforts to overthrow the government.

            So even taking your examples as being evidence of public meaning at the time, it would not put Trump’s conduct within the definition of insurrection and rebellion or giving aid and comfort thereto.

            1. This is blatantly false. Yet again, Daniel, you seem to live in a world where Trump’s actions and omissions on January 6 didn’t provide encouragement for the rioters/insurrectionists. Even if not the legal definition of insurrection, organizing the group, planning the illegal electors scheme, failing to stop their violent advance once it was clear they breached the Capitol grounds all fit the original meaning of insurrection.

              To say there was not armed organized effort to disrupt to replace the government is to live in denial of reality.

              Moreover, whether the term is broad or narrow is a pointless exercise. By broad, I meant broader than the legal definition. There is no contemporaneous text that suggests that insurrection must involve armed conflict. If you have that reference, please provide.

              Look, I’m not an originalist. Arguments attempting to project what 1860s jurists would think the meaning of the term means naturally lead to exactly this sort of discussion because there it is a fantasy to think we can put ourselves in a position to understand how they would feel about a president tells a group of armed protesters to advance toward the Capitol.

              But if you are going to live by originalism, you just also die by it. And here, the original meaning is clearly broader than the legal definition.

              1. I am not a lawyer (and do not play one on TV), but there is no definition of “insurrection” that fits Jan 6 – that does not similarly apply to BLM, Occupy Wall Street, or thousands of protests where individuals did bad things. It could be argued that failing to stop illegal immigration is an “insurrection” against faithfully executing the laws aw written. To preemptively declare that Jan 6 is uniquely bad is simply a partisan political opinion, not a legal argument. Personally, I would prefer that the choice in 2024 be other than the two leading candidates, but that should be for the voters to decide, not the lawyers. Regardless of the novel legal theories supporting the current lawfare against Trump, it is clearly political tactics, rather than justice.

                1. The main difference here is that J6 took place against the federal government to disrupt the certification of the election. That is not true of… bLM/Occupy movements.

                  1. January 6 is a date, not an action. On that date, there was no insurrection. No one violently attempted to disrupt the certification, much less Trump. Trump made an argument to the arbiter, who rejected it. How is that violent?

                  2. You don’t know what you are talking about. BLM and Antifa attacked a federal building and tried to burn it down with people inside.

              2. Yet again, Daniel, you seem to live in a world where Trump’s actions and omissions on January 6 didn’t provide encouragement for the rioters/insurrectionists

                Explain exactly how this is so?

                You have failed to establish causality.

          2. Anonymous wrote:

            “I . . . do solemnly swear (or affirm) that I have never [1] voluntarily
            borne arms against the United States since I have been a citizen
            thereof; that I have [2] voluntarily given no aid, countenance, counsel,
            or encouragement to persons engaged in armed hostility thereto; that
            I have [3] neither sought nor accepted nor attempted to exercise the
            functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have [4] not yielded a
            voluntary support to any pretended government, authority, power or
            constitution within the United States, hostile or inimical thereto.

            “The content of this oath’s requirement establishes a useful, historically prominent marker for the scope of Section Three”

            If that defines the scope of Section Three, it is not even close to applying to Trump.

            As for the automatic disqualification argument, that’s obviously correct (or, I should say, I agree with it), but of course like any other dispute a registrar’s disqualification of a candidate is subject to judicial review, and since it’s a federal question, the US Supreme Court will reverse either on the merits or on an incorrect view that disqualification is not automatic.

      3. “Two Federalist Society conservatives” — Ha! That’s a good one! There is nothing conservative about those clowns.

      4. The topis of the article isn’t “originalism”. It’s whether Section Three encompasses Trump’s actions and the consequences if it does. They’re right about the second part and ludicrously wrong the first.

      5. This is a theme with originalism. Once their philosophy presents them with an outcome that is not beneficial to their goals they choose to ignore it and apply the philosophy that supports their goals. This is what Turley is doing. The federalist society is using the originalist interpretation the libertarian one to point out that Trump is now disqualified from holding office.

        It would be interesting to see how the originalists and textualists would view that interpretation.

      6. “I am not the same Anonymous”

        Every Anonymous is Smeagol, if you are too lazy to pick a name that differentiates you from the other lunatics.

      7. Anonymous wrote, “Perhaps before you start to criticize someone’s opinion, inform yourself on the basics of originalism as that is the topic of the law review article.”

        With all due respect, I replied to the narrow minded statements that the other Anonymous wrote NOT your extrapolations of those statements or anything else.

        I’m going to be very blunt now. It is unconstitutional to deprive citizens of the United States of America of the rights that are specifically enumerated in the Constitution and its amendments without due process of law, period. What you and others are advocating for is literally stripping Donald Trump (who I do not support) of his Constitutional right to due process by extrapolating to absurdity the meaning of the 14th Amendment. This is a pure witch hunting b-a-s-t-a-r-d-i-z-a-t-i-o-n the 14th Amendment in a way that completely ignores other enumerated constitutional rights, all for the sole purpose of denying one single person (Donald Trump) the right to run for President. This is very intentional anti-Constitution election interference and a terribly slippery slope that slides directly to a constitutional crisis and maybe further into open civil unrest, it’s wrong and it’s not worth it.

        In my opinion, I know you hate Donald Trump and will likely justify anything that might stops him from running for President again, but what you are advocating for is unconstitutional.

        Let the voters speak at the polls.

          1. So were General Secretary Abraham “Crazy Abe” Lincoln’s denial of secession, his war, not of common defense but of northern aggression against a sovereign foreign nation, his Civil War, his seizure of power, his forcible imposition of unconstitutional martial law, his nullification of the Constitution and Bill of Rights, his suspension of habeas corpus, and his and his successors’ forcibly imposed “Reconstruction Amendments” created by Karl Marx.

            No one did anything to oppose that antithetical, anti-American, and unconstitutional raging communist, outdone only by the despotic, tyrannical, flesh-eating “dictators of the proletariat,” Lenin and Stalin; the only thing worse was Hitler, definitively.

            In a society of laws, the laws must be strictly adhered to.

            Reprehensible slavery must have been criminalized and made illegal by law; slavery was on its way out among Western nations. Washington released his slaves in his will.

            “Crazy Abe” believed only in the law of the jungle—brutality and the “dictatorship of the proletariat.”

            1. Abraham Lincoln was a committed capitalist. One of his arguments for eliminating slavery was that if you made bread, you had the right to eat it and not give it to someone else, Marx believed the government owns your bread and tells you who gets to eat it (like slavery). If Lincoln talked to Marx it didn’t mean he agreed with him and if you think otherwise, George, you are lying to yourself. And once again, the South seized Union forts, arsenals, and property, fired the first shots and was the first to cross over the lines of territory established by the South – that is an insurrection and not a Secession. And guess what? However you see the whole Secession issue – whether constitutional or not – it is over and won’t be relitigated of fought over – EVER! You are just making yourself sick with these thoughts. Try looking forward instead of backwards if you want to help your country. There is a lot going on right NOW. Because people do not usually respond to you does not mean they agree with you. Your anger is pitiful.

      8. Originalism and Textualism are tools for forming Constitutional arguments. Even liberals justices make originalist arguments all the time — when it can be used to support their desired outcome — just like you are doing here. It is true that Conservatives prefer the tool of Originalism (and/or Textualism) in forming their Constitutional arguments which results in more judicial restraint, whereas liberals are more YOLO — “let’s get to the result that I desire however I have to get there.” But they are just tools. The conservative tool to build a house is a Hammer, just because you use a hammer to build a house does not mean it is a good house with good engineering, a secure foundation and plumb lines. So, your effort to win this argument by throwing in the face of your conservative opponents that you are using a conservative tool to form your argument is not, in itself, persuasive.

        Okay. So, it is self executing. You are probably right. It still come down to what all those other pesky terms mean. I am sure some blue county election official will take Trump off the ballot on his or her own Constitutional authority.* That decision by that official will be challenged in Court and that case will rapidly go up to the the Supreme Court. Then the Supreme Court will determine if the riot at the Capitol was an insurrection or rebellion and whether Trump gave it aid or comfort. I don’t think you are going to be happy with the result, but the Supreme Court will use Originalist tools to explain why you are wrong, and that will be the end of this farce.

        * Would that official just be Constitutional wrong, or participating in, aiding or comforting an insurrection? What is good for the goose…

  10. More and more it seems that Samuel Johnson got it wrong when he said “Patriotism is the last refuge of the scoundrel,” because a compelling agument can be made that LAW PROFESSOR is the REAL last refuge of the scoundrel, as it appears to be a profession where POLITICAL scoundrels are allowed to assert their own untested legal hypotheses without the burden of arguing them in court against an opposing hypothesis — and I’m not just talking about Lawrence Tribe here because there appears to be a whole tribe of Tribes leading the charge to inflict their hired-gun opinions on what has become the Wild West territory stretching from Washington DC to Hawaii.

    1. Tsk. Law professors are a dime a dozen .. . and I’m not sure Tribe is worth that much.

      No. ‘national security’, wrapped in Patriotic fervor and a flag pin, is still the last refuge of these scurrilous scoundrels. And it’s all classified far above your level .. . or president Trumps for that matter.

      Personally, I believe that ‘every person who knowingly supported, aided, or abetted’ the 51 top intelligence officials who claimed The Laptop was ‘Russian Disinformation’ is guilty of insurrection, treason and sedition at the highest levels of gov.

      *and that’s a long list .. . including most of our vaunted ‘free press’

    2. The true refuge of the scoundrel is satan’s uni-party. Fake republicans & most dimms in Congress are poster children proving that point. Their real treason & the true insurrection has been decades in the making.
      It’s been a slow python choke hold on this nation. There are so many manifestations that a FULL list would be to long to post here. Plus it’s been a very long time in the making.
      Some examples: Many J6 innocents in jail, Ray Epps is free. Trump as freaking former POTUS is charged for documents. Two who HAD NO legal right to same kind of docs NOT charged.
      US border purposely LEFT OPEN! Among illegal entrants are known terrorists & MS13 gang members, to list only two groups who pose threats to citizens & national security.
      Pro life buildings ravaged & burned, no fed investigation. Man PRAYING near a baby slaughter house gets arrested at his home during a SWAT TEAM RAID! Mothers & fathers are arrested, intimidated, spied on for trying to protect their children. Get accused of book burning for trying to keep their children from PORNOGRAPHIC reading material that CAN”T be read in public!
      Why does the deep state say the last two elections were really clean & want to arrest anyone who disagrees?
      Yet when anyone calls for an investigation, the dimms & RINOs fight tooth & nail to keep election investigations off the table! Funny odd. If the elections WERE clean, you’d think the deep state would jump at the chance to PROVE their claim to clean & shut those they call ‘deniers’ totally up!
      Anyone here have any clue how we got the privately owned ‘Federal’ Reserve or what it’s for? Ever investigate if the income tax law was endorsed by the required number of states withing the Constitution’s tie frame? Even Mr. Turley is afraid of those last two, 🙂
      So. Along comes DJ Trump. He takes up the mantle that the IRS threw to the ground when they illegally targeted a new coalition, The Tea Party.
      WHY was the establishment deep state SOOOO AFRAID of the Tea Party? Same reason they are afraid of MAGA people. The establishment does NOT want a free people. If that is not obvious to you by now…you are a fool, a prime target to be sucked up by big bro’s Social Credit Score system, similar to what the CCP uses to dominate & control the Chinese citizen.
      Figure out the reason for all the wars yet? Why didn’t Trump have any new ones? Why was his border much safer than biden’s? WHY did the RINO & dimm deep stater’s refuse to fund the border wall? What made the Trump economy soar while biden flushes US economics down the toilet?
      Looks to me the deep state has it’s biggest distraction. Trump & the contrived indictments.
      Workin for the devil. A fools game. Maybe a grand ride NOW, but no one lives forever…then what?? The devil inc company’s retirement plan reaalllllllllly sucks!


  11. Trump just might be spending time in the “hoosegow.” But where would it be?

    You have Super Max, Camp Cupcake & Ft. Leavenworth to name a few.

  12. I am growing less and less amazed at the lengths to which the prog/left will go to in order to maintain their grasp of power. It is despicable how they would rather twist and ruin our constitution than admit that their ideology is a lethal threat to our nation. These religious (as in a belief in a system without the benefit of actual facts) faith in their warped ideologies are a danger to us as much as the Inquisition was to anyone not confessing to the radical faith of the Catholic Church.

  13. All you had to say was New Mexico. I was born there and it is pretty much an unbridled stronghold to leftism at this point (didn’t used to be). Much of what comes out of the politicians there are lies, and they pretty much defer and do whatever the DNC tells them to. I had friends that worked for a federal agency that told me it was the most corrupt state they’d ever seen, and my experience bears this out in a lifetime; and such a tiny sliver of the population even actually votes, it’s pretty much a given that dynasties and chicanery prevail (the current gov is part of one of those dynasties). It is safe to immediately reject anything that comes through official channels there, they are liars, and as a generational New Mexican who watched and participated for a very long time, I think it is probably going to collapse. Albuquerque will be the next Detroit or San Francisco. People in Santa Fe and Taos are rich and insulated enough to not care. You couldn’t run a state worse if you tried, do not believe the ‘internet polls’. Safe to dismiss their nonsense. The governor, Luan, there spent the majority of the lockdown in DC, and I’m sure the dems in NM are just hoping for favors, full stop. Tim Keller is an idiot and a liar. It’s the very definition of a disaster, and again, they outright lie like mofos. Invoking some kind of Constitutional privilege on their part is downright hilarious. Watch it burn, because it’s going to.

  14. Having lived in New Mexico throughout periods of my life I can attest that it is bastion of leftist ideology. All government controls are in the hands of the democrat party. Dare not to confront or you may forsake yourself!

  15. it time to flip the tables and start jailing these Fascist Democrat Judges for their wonton ILLEGAL actions

    1. I’m a dyed in wool liberal. I believe in the law if this nation. Anyone who violates one of those laws needs to be prosecuted.

        1. OK Millhouse, then provide a definition of “insurrection” as a “disqualification from office” that distinguishes Donald Trump’s actions from tens of thousands of leftist protestors.

          1. Oh, that’s easy. Nothing Trump did was in any way aimed at overthrowing the USA. Nor did most leftist protesters have that aim, but the ones in Portland, the CHAZ in Seattle, the ones who burned down the police station in Minneapolis, as well as all the “Occupiers” about 10 years ago, explicitly did have that aim. That was an insurrection. The failure to prosecute them doesn’t change that.

Leave a Reply