This morning I will be joining the live coverage of the Supreme Court of the arguments over the disqualification of former President Donald Trump from the Colorado ballot under the 14th Amendment. When I am not on air, I will be doing my usual running analysis on Twitter/X. I have been a vocal critic of the theory under Section 3 as textually and historically flawed. It is also, in my view, a dangerously anti-democratic theory that would introduce an instability in our system, which has been the most stable and successful constitutional system in the world.
We can expect the justices to focus on the three main questions before the Court:
1. Is the president “an officer of the United States” for purposes of section 3?
2. Is section 3 self-executing?
3. Was January 6th an “insurrection” under Section 3.
You will likely hear references to Griffin’s Case in the arguments. Not long after ratification in 1869, Chief Justice Salmon P. Chase ruled in a circuit opinion that the clause was not self-executing. He suggested that allowing Congress to simply bar political opponents from office would be a form of punishment without due process and would likely violate the prohibition on bills of attainder.
You will also likely hear comparisons to other sections and how this case could impact the meaning of terms like “officers” and “offices.” For example, the Appointments Clause gives a president the power to “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” That creates a tension with defining, as do those pushing this theory, that a president is also an officer of the United States. Most of the advocates simply argue that the meaning is different.
You may also hear references to the Incompatibility Clause which provides, “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” U.S. Const. Art. I, § 6. Critics have noted that the proponents of this theory argue that the Speaker and Senate President Pro Tempore are “Officers of the United States.” Indeed, they reject any difference between an “Officer of the United States” and an “Office under the United States.” However, this creates tension with members serving as Speakers and Senate Presidents Pro Tempore since those positions are also “Offices under the United States.”
Some of the argument will clearly focus on the history and context for this amendment.
These members and activists have latched upon the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause” — which was written after the 39th Congress convened in December 1865 and many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.
Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.” So, members drafted a provision that declared that “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.”
Jan. 6 was a national tragedy. I publicly condemned President Trump’s speech that day while it was being given — and I denounced the riot as a “constitutional desecration.” However, it has not been treated legally as an insurrection. Those charged for their role in the attack that day are largely facing trespass and other less serious charges — rather than insurrection or sedition. While the FBI launched a massive national investigation, it did not find evidence of an insurrection. While a few were charged with seditious conspiracy, no one was charged with insurrection. Trump has never been charged with either incitement or insurrection.
The clause was created in reference to a real Civil War in which over 750,000 people died in combat. The confederacy formed a government, an army, a currency, and carried out diplomatic missions.
Conversely, in my view, Jan. 6 was a protest that became a riot.
You will be hearing arguments from:
- Jonathan Mitchell, who is representing Trump. He is a Texas lawyer who has previously argued before the Court.
- Jason Murray, who is representing Republican voters who want to disqualify Trump. Murray clerked for Justice Elena Kagan and also then judge Neil Gorsuch on the Tenth Circuit.
- Shannon Stevenson, who is the Colorado Solicitor General. Stevenson only recently became solicitor general and was previously in private practice.
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.”
“And we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.”
– President Donald J. Trump, January 6, 2021
“Trump took such an oath and played a key role in the insurrection”
Dennis, Trump said to do your given right of protest “peacefully. On the other hand, Democrats like our VP Harris encouraged insurrectionists, even working to have the insurrectionist’s bail money paid. Based on the insurrections that summer, even taking over portions of cities and trying to burn down a federal building with almost complete support from Democrat leaders, we should see most Democrat politicians jailed.
Thank you Dennis for agreeying why most Democrat leaders belong in jail.
What ever happened to innocent until PROVEN guilty?
That’s for a court of law.
It’s never been the case for the court of public opinion.
Whatever happened to the first amendment ?
Whatever happened to the rule of law ?
We have a plethora of Trump cases – none of which shoul dhave ever seen the inside of a courtroom.
Most of which do not have the required evidence to even open an investigation.
You are free as a member of the public to beleive whatever nonsense you want.
You are NOT free to use government to violate constitutional rights, to weaponize the courts and legal system.
I find it interesting that you jump to the lower standards of public oppinion as your own allegations become increasingly obviously without any support.
Yet you seem to demand that before anyone can investigate anything you hold dear – that proof beyond a reasonable doubt must exist solely to open an investigation.
There is 10,000 times more basis for the house to investigate The Biden syndicate, than there is to allow any of this Trump nonsense, or the vast majority of J6 cases to see the inside of a courtroom.
You are free to lie and spin naratives as you please to pretend the first amendment away, to ignorre the rule of law or the constitutional requirements of due process in the court of public opinions. You are NOT free to do so with law enforcement or the courts.
It is the absolute right of the people to protest – especially politically. To petition government, and to assemble.
They can not be precluded from doing so for any reason in a government created public forum, and the US Capitol is the most important public forum in the entire world.
People are free to do all of the above – even if they are completely wrong.
They are free to do so even if they are lying.
The excercise of ones rights are not conditioned on the beleif of those in power that those protesting are right.
In FACT the right to protest, to petition government is most important when those in government beleive those protesting are wrong.
The most important aspect of the first amendment is NOT free expression – as important as that is, it is the absolute prohibition against government silencing its critics.
You may not as an example bomb the capitol – even though the left actually did that. But you may protest in favor of those who did bomb the capitol.
You may make claims that Kavanaugh is a rapist – even though you have no proof.
You may march to support actual terrorists who have murdered hundreds of people.
You may protest the alleged murder of a drug addict who ate his own stash while high out of his gord after being arrested for passing counterfeit 20’s.
You may protest whatever you want. ANYTHING AT ALL.
Should a small part of that protest turn violent – it is irrelevant whether that violence was initiated by a protestor or the govenrment,
Only those actually engaged in violence are subject to criminal sanctions , and then only after evidence overcoming the prsumption of innocense is presidented to a jury not taineted by false narratives, and judges who are biased off their gourds.
Anything less that the above is fascist.
When playing with Democrat rules “innocent until PROVEN guilty” doesn’t exist. The Democrats of today are criminals.
After reading through some of the comments, I am simply sorry and sad for our great country.
Any visit to this blog will have that effect.