I say this as an attorney: the fact that supposedly serious people can read Section 3 and say with a straight face that it doesn't include the President shows why we're so hated as a profession.
The desperation of those lobbying against barring Trump from elected office is increasingly clear. While the legal aspects of the issue can be argued until the cows come home (or the Supreme Court weighs in, which will not, in any case, resolve the issue in the minds of the 'losing' side), to me most of their objections have nothing to do with the law. They are instead the despairing gasps of those whose whole political being has become bound up in Trumpism. They simply cannot admit that they were wrong in thinking him fit for the Presidency, and they will go to the wall (or, as some of them have already done) through it as they did on January 6th to prove themselves justified in so thinking. They remind me in some ways of the slaveholders of the south in 1861 who preferred to fight to the destruction of their way of life rather than admit that perhaps slavery was an affront to humanity; that slaves were in fact as human as those who claimed to own them, and entitled to be treated as such. The irony of Trumpers' support is that Trump himself doesn't care a whit for any of them except as hands to pull voting levers, mindless adorers at his rallies, and a bottomless well of cash donations to put him back in office, or at least keep him out of jail. But only when they come to understand that, if they ever do, will they begin to detach themselves from his toxic cause.
We will learn whether the court majority (and maybe Leonard Leo and the Federalist society) actually believe the "originalist" approach they have been pushing for years but were in fact using to bamboozle Americans, lawyers, law students, themselves, never believung there would be such a clear cut case and situation in which the history does indeed matter. I feel grateful to all the historians who have reminded SCOTUS of the history actually spoken by those most directly affected after the rebellion and civil war.
It's amazing how some folks tie themselves in knots arguing that one person, that being the President, is above the law. Make that outside the law. And while I'm at it.. how about a constitutional amendment that would abolish the President's power to pardon.? What's with this divine right of kings nonsense?
The history speaks truth to power! Our future and our country rest on understanding the past and the context in which such laws and decisions are made! We are at an inflection point...we will have revealed one way or another whether we will survive as a democracy or we will fall into authoritarianism and oligarchy like that of Putin’s Russia.
And there's this from the late Justice Antonin Scalia in 2014:
"Perhaps the most noteworthy among them was Justice Antonin Scalia in 2014. That year, the Supreme Court decided the case of National Labor Relations Board v. Noel Canning. There, the Court unanimously affirmed a challenge to the recess appointments of three NLRB commissioners. Scalia wrote a concurrence, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. In it, Scalia wrote: 'Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’
"Soon after Canning was decided, Tillman and Blackman noticed that Scalia’s sentence appeared to conflict with their own reading of the Appointments Clause. Tillman then actually wrote to Scalia to ask him to explain what he meant by that particular sentence. To both his and Blackman’s amazement, they acknowledge in their article, Scalia wrote back."
"Dear Mr. Tillman:
I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.
There is good reason to assume that many on the Court will behave like politicians, as the history of Alito's and Thomas' judgments so clearly demonstrate. Will the majority of the Court risk the physical danger of going against the MAGA crowd? I have my doubts. And their conclusions would be laughable if they weren't so dangerous.
It is very disappointing to see how our rule of law is challenged by nonsense such as whether the presidency is an office. We have always referred to it as the “highest office in the land.” The fact that this whole trial could be jeopardized by this argument alone is extremely discouraging. What a farce!
If the SC rules for TFG, then they are in fact granting him unlimited power, unlimited over theirs, and that precedent means one man will be granted power over all of the rule of law. A Trump 2nd term means presidential supremacy without equal checks and balances of the other branches. Once they rule in opposition to the clearest language and meaning of the Constitution, we cease to be a Constitutional Republic. But they will be “loved” (accepted) by the radicalized 37% of Americans. Did Madison explain this danger specific to the Supreme Court somewhere in the Federalist Papers? Party affiliation/Aligence to the party before the Constitution/ party before the rule of law?
Part of me is racing ahead to November election. We know TFG will lose the popular vote. He will contest the validity of the ballot. He will, with the help of some cheap lawyers, find and pull a legal lever and with the help of the court, ( with rhetoric for violence and actual violence) bully his way to claim the presidency through the “legal” approach. The truth will be diluted and twisted by Fox and echoed by the radical channels once again. This is how most coups succeed. How could we better convince the justices to see this? Maybe they will never understand the psychology of group affiliation. Are they true believers to a conservative ideology or are they scholars of the law and the Constitution? History will be their judge.
In the issue of group affiliation I though of this by Bukowski…
‘Should the Court yield in advance to the threat of violence, it is no longer a court and this is no longer a rule-of-law state. The whole point of Section 3 is to allow the Constitution to defend itself against those who would use violence to overturn our constitutional order.’
America is still a country of law and order where traitors and criminals should be banned from holding government office. 🦅
Thank you, Prof Snyder, for this clear thinking and comprehensive referencing. Your observations and legal along with historical documentation of your conclusions seems to me precisely what Americans as members of civil society, with our responsibilities and rule of law protections in carrying out our democratic political choice-making and decision-making, need to have as reasoned appraisal at this time, for this set of circumstances.
One of the accomplishments of these observations and the others previously offered is to be as explicit and apolitical as one can be in forming one's own understanding of the Fourteenth Amendment as a socially vital amendment to the US Constitution and its governance system. That the Constitution abide as time goes on, it requires the sustained participation and support of the people of the US. The almost fatal challenge experienced from the totality of cultural, political and violent events of the Civil War meant that very novel political approaches were needed for a post Civil War reconstruction that would endure and that would be publicly grounded. Voluntary participation and voluntary political affirmations were recognized as essential. As Prof Snyder points out herein,
" To be sure, the historical context was that of a recent rebellion which shook the republic to its foundations and led to the bloodiest war the United States has ever fought. Thus the particular concern with leading insurrectionists such as Davis. But it was precisely because legislators had experienced the consequence of one insurrection that they were concerned to prevent others from succeeding.
Legislators could have framed Section 3 to apply only to the 1860s, but they did not. Indeed, they discussed including language specific to "the late insurrection" and rejected such a framing as too limiting (25:18, 5:3). They had in mind preventing civil war from becoming a recurring "curse" or a "pastime" (5:3,14). ..."
Again from Prof Snyder, "The purpose of constitutional order, of course, is to provide a framework above politics, one which allows a decent sort of politics to prevail. If no one takes the meaning of the Constitution seriously, then such an order cannot long be sustained." This is a message that the Justices of the Supreme Court must clearly hear and take to heart. They need also understand and affirm the importance of the integrity of the Constitution and the governance system it supports, and they must in this context affirm the responsibilities of each Justice and the Court to explicitly and with clear reasoning and factual supports affirm the role of the Court in sustaining that integrity.
I think there's a 4th reason why people would argue that Trump is eligible to run: They'd argue that January 6th was not an insurrection but merely a political rally where he was exercising his right to free speech.... Unfortunately, I think this is what the Roberts Court will decide.
Thank you, Prof. Snyder, for linking to the amicus brief you and your colleagues submitted. If the Roberts Six ignore such a learned, powerful, elegantly written brief, they forfeit whatever claim on the people's respect they still retain. I have also read the brief of the 25 Civil War and Reconstruction historians, which appears ironclad for disqualification on textualist and originalist grounds. Again, a ruling for trump would strip the Six of any defense of their purported judicial "philosophy." In the disqualification case, the Constitution is putting the Court itself on trial.
I say this as an attorney: the fact that supposedly serious people can read Section 3 and say with a straight face that it doesn't include the President shows why we're so hated as a profession.
The desperation of those lobbying against barring Trump from elected office is increasingly clear. While the legal aspects of the issue can be argued until the cows come home (or the Supreme Court weighs in, which will not, in any case, resolve the issue in the minds of the 'losing' side), to me most of their objections have nothing to do with the law. They are instead the despairing gasps of those whose whole political being has become bound up in Trumpism. They simply cannot admit that they were wrong in thinking him fit for the Presidency, and they will go to the wall (or, as some of them have already done) through it as they did on January 6th to prove themselves justified in so thinking. They remind me in some ways of the slaveholders of the south in 1861 who preferred to fight to the destruction of their way of life rather than admit that perhaps slavery was an affront to humanity; that slaves were in fact as human as those who claimed to own them, and entitled to be treated as such. The irony of Trumpers' support is that Trump himself doesn't care a whit for any of them except as hands to pull voting levers, mindless adorers at his rallies, and a bottomless well of cash donations to put him back in office, or at least keep him out of jail. But only when they come to understand that, if they ever do, will they begin to detach themselves from his toxic cause.
We will learn whether the court majority (and maybe Leonard Leo and the Federalist society) actually believe the "originalist" approach they have been pushing for years but were in fact using to bamboozle Americans, lawyers, law students, themselves, never believung there would be such a clear cut case and situation in which the history does indeed matter. I feel grateful to all the historians who have reminded SCOTUS of the history actually spoken by those most directly affected after the rebellion and civil war.
It's amazing how some folks tie themselves in knots arguing that one person, that being the President, is above the law. Make that outside the law. And while I'm at it.. how about a constitutional amendment that would abolish the President's power to pardon.? What's with this divine right of kings nonsense?
The history speaks truth to power! Our future and our country rest on understanding the past and the context in which such laws and decisions are made! We are at an inflection point...we will have revealed one way or another whether we will survive as a democracy or we will fall into authoritarianism and oligarchy like that of Putin’s Russia.
And there's this from the late Justice Antonin Scalia in 2014:
"Perhaps the most noteworthy among them was Justice Antonin Scalia in 2014. That year, the Supreme Court decided the case of National Labor Relations Board v. Noel Canning. There, the Court unanimously affirmed a challenge to the recess appointments of three NLRB commissioners. Scalia wrote a concurrence, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. In it, Scalia wrote: 'Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’
"Soon after Canning was decided, Tillman and Blackman noticed that Scalia’s sentence appeared to conflict with their own reading of the Appointments Clause. Tillman then actually wrote to Scalia to ask him to explain what he meant by that particular sentence. To both his and Blackman’s amazement, they acknowledge in their article, Scalia wrote back."
"Dear Mr. Tillman:
I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.
Sincerely,
/s/ Antonin Scalia"
https://www.lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states
Note that "Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined."
The President is the Commander-in-Chief of the United States armed forrces. That makes him the senior military officer.
There is good reason to assume that many on the Court will behave like politicians, as the history of Alito's and Thomas' judgments so clearly demonstrate. Will the majority of the Court risk the physical danger of going against the MAGA crowd? I have my doubts. And their conclusions would be laughable if they weren't so dangerous.
Thank you for participating in the Amicus brief and for all that you have done -- for Ukraine and for those of us here who see and listen.
Thank you Professor Snyder.
We will wait to see how this
SCOTUS rules and stands; for
the Constitution or against.
It is very disappointing to see how our rule of law is challenged by nonsense such as whether the presidency is an office. We have always referred to it as the “highest office in the land.” The fact that this whole trial could be jeopardized by this argument alone is extremely discouraging. What a farce!
If the SC rules for TFG, then they are in fact granting him unlimited power, unlimited over theirs, and that precedent means one man will be granted power over all of the rule of law. A Trump 2nd term means presidential supremacy without equal checks and balances of the other branches. Once they rule in opposition to the clearest language and meaning of the Constitution, we cease to be a Constitutional Republic. But they will be “loved” (accepted) by the radicalized 37% of Americans. Did Madison explain this danger specific to the Supreme Court somewhere in the Federalist Papers? Party affiliation/Aligence to the party before the Constitution/ party before the rule of law?
Part of me is racing ahead to November election. We know TFG will lose the popular vote. He will contest the validity of the ballot. He will, with the help of some cheap lawyers, find and pull a legal lever and with the help of the court, ( with rhetoric for violence and actual violence) bully his way to claim the presidency through the “legal” approach. The truth will be diluted and twisted by Fox and echoed by the radical channels once again. This is how most coups succeed. How could we better convince the justices to see this? Maybe they will never understand the psychology of group affiliation. Are they true believers to a conservative ideology or are they scholars of the law and the Constitution? History will be their judge.
In the issue of group affiliation I though of this by Bukowski…
“The area dividing the brain and the soul
Is affected in many ways by experience --
Some lose all mind and become soul:
insane.
Some lose all soul and become mind:
intellectual.
Some lose both and become:
accepted.
And what horrible lives they must lead.”
-Charles Bukowski
‘Should the Court yield in advance to the threat of violence, it is no longer a court and this is no longer a rule-of-law state. The whole point of Section 3 is to allow the Constitution to defend itself against those who would use violence to overturn our constitutional order.’
America is still a country of law and order where traitors and criminals should be banned from holding government office. 🦅
Thank you, Prof Snyder, for this clear thinking and comprehensive referencing. Your observations and legal along with historical documentation of your conclusions seems to me precisely what Americans as members of civil society, with our responsibilities and rule of law protections in carrying out our democratic political choice-making and decision-making, need to have as reasoned appraisal at this time, for this set of circumstances.
One of the accomplishments of these observations and the others previously offered is to be as explicit and apolitical as one can be in forming one's own understanding of the Fourteenth Amendment as a socially vital amendment to the US Constitution and its governance system. That the Constitution abide as time goes on, it requires the sustained participation and support of the people of the US. The almost fatal challenge experienced from the totality of cultural, political and violent events of the Civil War meant that very novel political approaches were needed for a post Civil War reconstruction that would endure and that would be publicly grounded. Voluntary participation and voluntary political affirmations were recognized as essential. As Prof Snyder points out herein,
" To be sure, the historical context was that of a recent rebellion which shook the republic to its foundations and led to the bloodiest war the United States has ever fought. Thus the particular concern with leading insurrectionists such as Davis. But it was precisely because legislators had experienced the consequence of one insurrection that they were concerned to prevent others from succeeding.
Legislators could have framed Section 3 to apply only to the 1860s, but they did not. Indeed, they discussed including language specific to "the late insurrection" and rejected such a framing as too limiting (25:18, 5:3). They had in mind preventing civil war from becoming a recurring "curse" or a "pastime" (5:3,14). ..."
Again from Prof Snyder, "The purpose of constitutional order, of course, is to provide a framework above politics, one which allows a decent sort of politics to prevail. If no one takes the meaning of the Constitution seriously, then such an order cannot long be sustained." This is a message that the Justices of the Supreme Court must clearly hear and take to heart. They need also understand and affirm the importance of the integrity of the Constitution and the governance system it supports, and they must in this context affirm the responsibilities of each Justice and the Court to explicitly and with clear reasoning and factual supports affirm the role of the Court in sustaining that integrity.
Again, thank you, Prof Snyder.
I think there's a 4th reason why people would argue that Trump is eligible to run: They'd argue that January 6th was not an insurrection but merely a political rally where he was exercising his right to free speech.... Unfortunately, I think this is what the Roberts Court will decide.
Thank you, Prof. Snyder, for linking to the amicus brief you and your colleagues submitted. If the Roberts Six ignore such a learned, powerful, elegantly written brief, they forfeit whatever claim on the people's respect they still retain. I have also read the brief of the 25 Civil War and Reconstruction historians, which appears ironclad for disqualification on textualist and originalist grounds. Again, a ruling for trump would strip the Six of any defense of their purported judicial "philosophy." In the disqualification case, the Constitution is putting the Court itself on trial.