247 Comments

You nailed it yet again, Professor Snyder. As someone who watched the events of January 6 unfold before me on live TV and who also watched the House hearings from start to finish, it is crystal clear to me that the events of the 6th did constitute an insurrection, having as their declared purpose the prevention of the counting of electoral votes, and that, by calling for the riot and - most importantly - not doing anything to call off his supporters until it was apparent to all that the insurrection would fail, Trump was a willing and active participant. Though a mere physicist and not therefore a constitutional expert, I have also read and reread the Constitution and find, like Professor Snyder, that the 14th Amendment is clear.

We can all have opinions as to whether or not the current situation is the ideal one, but we should beware of ignoring the Constitution. History is full of examples of countries with wonderful constitutions that were in reality just so much toilet paper, their contents utterly ignored by the rulers. Let us not go down that path.

Expand full comment

Stephen, you need not be a lawyer, con law prof to read and understand the plain language of what Amendment 14 sec 3 says. Anybody who twists this issue for their own political purpose is also supporting insurrection by giving aid and comfort. The problem is we have a large minority who do not want to read the founding documents or the history surrounding their drafting be use it is too inconvenient.

Expand full comment

The Constitution is clear. The intent of Amendment 14 Sec 3 is indisputable. Historical Precedent in its application to Confederate Officers is clearly, clearly established

When the SCOTUS Gang of 6 rules otherwise, our Constitution, the rule of Law, respect for the Court as honest arbitrators, and our Democracy crumbles

I predict John Roberts knows this and that SCOTUS will not rule one way or the other

Every Secretary of State throughout the Union should be called upon to answer one simple question, “Did Donald Trump participate (in any capacity) in the Insurrection?” When any of them respond “No”, they should then be asked to define “Insurrection” in such a way as to absolve Trump

The Pretzel Twisting would at least be entertaining

Expand full comment

I am in violent agreement! However, given GOP control of so many states, asking each SOS to define insurrection or to say Trump did not participate will not be humorous, but will be even more divisive and polarizing. If SCOTUS cannot step in on something so clear and simple, democracy and rule of law will be on life support.

Expand full comment

We KNOW how Trump State Sec State will answer. The entertaining part will be their justification

Expand full comment
Dec 30, 2023·edited Dec 30, 2023

Constitution is clear?? To the magas and alleged repubs, only the 2nd amendment ‘is clear’ thanks to Antonin Scalia’s phony originalist interpretation of the founding fathers words. (Heller decision)

Separation of church and state is shredded daily! Checks and balances? Gerrymandering runs rampant in the red states! Court says ….. wait for it….its up to the legislatures to decide! No check….very imbalanced!

Expand full comment

Louis, I very clearly put my opening statement in context referencing A14 Sec3. Its a simple sentence

Conflating that into the complexities foisted upon the entire document certainly would beg your incredulity, however this discussion should remain focused on the Insurrection clause, not the wild machinations of MAGA and “making $hit up as I go” SCOTUS radicals balanced on the precipice of insanity and legal gobbledeegook

We are in the moment where the Checks and Balances teetertodder is near the point of bottoming out. Ebb and Flow. Its a pattern, just like an economy or that of Habitat Carrying Capacity

If Democracy is to survive, The People will vote to make it happen. Gilead is a fictional place. Most real Americans don’t want to live there

Vote. Encourage others to vote

Expand full comment

And, check your voter registration status. Go to vote411.org, a web site run by the League of Women Voters (who do indeed admit men -- I am a member), and make sure you are registered.

In some states (NY is one), you can only vote in the primary of the party in which you are registered. You might check that as well.

Expand full comment

Or, sadly, never learned much of anything about the Constitution in either their public, private or home schooling experience. This absence of civic education in the last several decades IMO has significantly led to masses of folks enjoying their lives without understanding their ESSENTIAL roles as citizens. It seems obvious that broadly spreading opinions unsupported by the founding principles of citizenship are de rigueur in this age of media mayhem.

Expand full comment
founding

The homeschooling community people are very aware of civics. However, they are VERY indoctrinated with a belief that liberals are authoritarian and extremely manipulative at taking away their religion, turning their children gay, and allowing abortion (equated with genocide). I sometimes wonder if the abortion and genocide relationship has to also do with poverty. Is their experience that often times that the importance of poverty babies birth's has been undermined?

However, no matter what is argued against their opinions they ALWAYS fall back on liberal educators are destroying their Christian way of life. Which in my opinion crosses over very strongly with Russian propaganda. No matter how well my family fits in with their families (we are Christian and go to church, we are small town/rural/farmers we enjoy pot lucks and bonfires with them, our children grew up playing together, my children are schooled at home via an online public charter school accredited by the state, their children are hard core taught entirely at home) they will sum up their disagreements as stemming from my husband and I having college degrees. According to them we were naively manipulated by our liberal "Christian" college we attended. Just like all the kids who attend "Christian" colleges and return "gay". They believe my husband and I returned from a Christian college which isn't "THAT" Christian, supporting the LGBTQ community and abortion. Because we were the dumb ones of the small town community easily swayed by liberals. They don't consider that we may have held liberal beliefs before attending college and just never spoke up during high school. If that were the case then it must have been our parent's fault. There is no end to justifying themselves. And without proof, but having lived a bit in historical St.Petersburg, Russia off of Nevsky Prospekt near the Lavra as Putin came to power, I can't help but see correlations between Russian (Russian Orthodox) propaganda and small town evangelical propaganda. Ever since I've encountered home schoolers after my return from Russia 20-ish years ago.

Expand full comment

Thank you for sharing those insights. My gut reaction is to think that the Russian Orthodox Church and Christo-nationalists here and in Victor Organ’s Hungary are sharing and/or adopting the same POV in that they all feel that their “traditional way of life” is being threatened by more modern understandings of the universe, our planet and why we humans live on this planet. In all three cases, as well as in other countries using fundamentalist religious texts, the leaders appeal to the people’s feelings of being threatened in order to maintain their control over their followers. It’s now part of a very disturbing trend to convince people in many areas of the world to rely on the “truths” they’ve grown up with versus realistically examining the evidence to support the arguments they are listening to.

Expand full comment

Somewhere I saw listed as one reason wars have been fought was traditionalism in conflict with modernism. The autocrats of the world seem to want such conflict to make the world safe for autocracy. But then what? Won’t autocrats then fight it out with each other for dominance?

Expand full comment

My guess is that we don’t have a firm grasp on even the possibilities of what would happen if the “axis of autocracies/illiberals” were to prevail. With each of those countries being led by malignant narcissists there could be struggles for domination of their alliance....or that alliance could break apart over which vaunted traditions are to be upheld given that China and North Korea are nominally atheistic, Iran and Saudi Arabia are Muslim countries (though different sects of Islam); and, if Trump were to win, the US, Hungary and Russia would be claiming to have traditional Christian values though when examined carefully they too would have differences in dogma as well as religious cultures.

Expand full comment
founding

And that is what led to WWI between the Kaisers and Czar. Also, a near showdown between Hitler and Stalin. Mussolini too had he lived long enough.

Expand full comment

I would suggest that the world as we know it is changing on front of our eyes. All of the world’s religions were founded millennia ago when people couldn’t communicate with others beyond their line of sight. Now we have the James Webb Space Telescope showing us what the rest of the universe looks like and it’s radically different from what mankind has seen when looking at the heavens until now. The “traditional way of life” needs to be left behind along with the notion that the earth is flat and that there is nothing beyond what we can see with our eyes unaided. Just as science has guided the advance of medicine so too is our understanding of the world we live in being advanced, this is a blessing and not a curse. You can have your head in the sand and not know whether it’s day or night, but that had no bearing on reality. While the wisdom of the world’s religions can inform our lives, our ability to understand how they can improve our lives, is definitely colored by the world we live in today and our expanding vision.

Expand full comment

Dobbs decision written on that toilet paper! Citizens United still clogs the septic tank it was flushed into!

Expand full comment

I completely agree with your assessment. I would add that for those arguing it's "undemocratic" to disqualify Trump, the 14th Amendment Section 3 serves as the Constitution's defense against the inherently undemocratic act of insurrection.

Expand full comment

Then there is the argument "the people should be able to decide with their vote." In my mind, that's saying, we should give supporters of the insurrection the opportunity to vote in the insurrectionist.

Expand full comment

Taking this to its logical conclusion, Linda, it says the basic governing principle is coup d’etat anytime it suits their desire. This is called a failed state and devolves into rule of chaos.

Expand full comment

Mob rule 😀

Expand full comment

Someone suggested this is the perfect argument to dump the Electoral College, the people decide.

Expand full comment

In their essay from The Atlantic, J. Michael Luttig and Laurence Tribe also discuss the merits of the opinion of legal scholars William Baude and Michael Stokes on interpretation of the 14th Amendment.

J. Michael Luttig was on MSNBC the other night and very clearly explained why Trump cannot run for office. https://www.msnbc.com/ali-velshi/watch/judge-luttig-trump-eligibility-case-tests-america-s-commitment-to-its-own-democracy-200877637760

Expand full comment
Dec 31, 2023·edited Dec 31, 2023

It’s Michael Stokes Paulsen, fyi. And the Baude/Paulsen law review article was almost the entire basis for the Colorado Supreme Court decision in Anderson v Griswold. Also, to a minor extent, a decision written by Gorsuch when he was on the 10th Circuit Court of Appeals. Having read all 213 pages of Anderson v Griswold, it’s my very humble opinion as an attorney and former federal law clerk that the Colorado Supreme Court did a masterful job in crafting their opinion and aiming it straight at Gorsuch, Kavanaugh and Barrett. Those three are totally boxed in with no wiggle room. Contrary to a lot of Democrats, it’s my opinion that the Trump justices will rule against Trump and vote to affirm Anderson v Griswold, along with the three Democrat women justices, and they will render a 6-3 decision with Alito, Roberts and Thomas dissenting. Baude and Paulsen are both conservative members of the Federalist Society, as well as originalists, just like the three Trump justices. I don’t believe that Gorsuch, Kavanaugh and Barrett will stray from the Federalist Society POV. Trump filed over 60 lawsuits trying to overturn the 2020 election and lost all of them. In the few that wound up in the USSC, the Trump justices ruled against him. I see no reason why Anderson v Griswold should be an different.

Expand full comment

My bad for missing Paulsen’s last name. Thanks for the correction.

At first I thought the USSC would rule against the decision by the Colorado SC.

But then I read the essay by Luttig and Tribe in The Atlantic and I’ve been following Luttig as he comments on this case. I now feel there is a good chance a majority on the USSC will uphold the Colorado SC decision. I certainly don’t have your background.

I have the Baude/Paulsen article and have just read the summary at this point. I haven’t read the Colorado SC opinion.

Expand full comment
Dec 31, 2023·edited Jan 2

Ian Bassin was with the Obama administration, which soils him for some people, but overall Protect Democracy is pretty bipartisan.

Expand full comment

I read the article by Ian Bassin and shared it with others. It is very well-written! Thank you for pointing me to Protect Democracy, too.

I appreciate your comments as they are positive and substantive and look forward to seeing your comments in the future. I’m so glad that you follow Timothy Snyder’s “Thinking About”. I’ve been following him since he wrote On Tyranny and I’ve read several of his books. I used to follow him on Twitter, but I dropped Twitter when Musk bought it.

Expand full comment
Jan 1·edited Jan 1

Thanks, Jan. I discovered Timothy Snyder in March 2022, right after the invasion of Ukraine. We were getting ready to leave on a cruise and I went to Books and Books in Coral Gables where they had a table with nothing but books about Ukraine, Putin, and Russia under Putin. I bought Snyder’s book, “The Road to Unfreedom”, and read it on the cruise. It blew my mind. At that point I only vaguely remembered the 2014 invasion of Crimea, and I knew nothing about the history of the breakup of the USSR and the rise of Putin. I mean I knew a little about Putin, and I knew he thought the breakup of the USSR was “the greatest geopolitical catastrophe in history”, but I hadn’t paid close attention to the gritty details over time.

Later, in Fall 2022, I “took” Professor Snyder’s Yale course on “The Making of Modern Ukraine”. It was my therapy for months, and I eagerly awaited each new class posted to the Yale Open Courses YouTube channel. I also read as much as I could find from the course syllabus in addition to watching the lectures. Later I found this substack and signed up. Serghii Plokhy is also an excellent source of information on Ukraine and Russia, and I’ve followed them both in their writings, books, and public lectures on YouTube.

It pains me greatly that our politicians and those in Europe seem to be succumbing to “Ukraine fatigue”, and while I greatly appreciate the Biden administration’s support of Ukraine, the “too little too late” approach bred from fear of Putin going nuclear seems to have condemned Ukraine to the potential loss of 20% of their territory, instead of the total victory that they, and we, need to put Putin into a box he can never again get out of. It’s depressing as hell.

Expand full comment
Dec 31, 2023·edited Jan 2

Read my independent post here on the article written by Ian Bassin for Project Democracy. It's stunningly brilliant. And Professor Snyder is either on the board or the advisory board for Protect Democracy, as are several members of the Reagan, and Bush 1/Bush 2 administrations.

Expand full comment

I wish all Americans would read this article as it clearly states what the Constitution says. It will be interesting to see if Thomas, Alito, et al twist themselves into pretzels in their effort to keep DJT on the ballot.

Expand full comment

“Yes, he’s old but look at what he’s gotten done. And if that’s not enough, then look at the alternative.” - Hillary Clinton

#BidenHarris2024 🌊

https://www.youtube.com/shorts/5hsum8PpnFs

Expand full comment

Three cheers for the unscreened world-wide southern flood!! What diseases might be carried in this army of human hosts? Disease conditions that have not been seen in the local ER or Urgent Care?

Expand full comment

Thank you, Prof! I like the way you put your ideas, moreover the way you make us think. I encourage all of us to read deeply, question, discuss, argue, and think again. Long live The Humanities and the freedom to read what we choose, to think, to write, and converse. Open Minds!

Expand full comment

It's my understanding that Section 3 of the 14th Amendment, does not require conviction, though, the Denver District Court did find that, he had " engaged in insurrection." (I have been following Judge J. Michael Luttigs' and recommend listening to his discussions with Professor Laurence Tribe.) Also, Section 3 also says a person who has held office, Yes, the President does hold Office, CO Supreme Court, who has, "engaged..or given aid or comfort" the former president has offered pardons to those convicted who who participated in the insurrection, which in my mind certainly counts as comfort, are disqualified from running for office.

This amicus brief should be reviewed:

MOTION BY FORMER OFFICIALS IN FIVE REPUBLICAN

ADMINISTRATIONS, ET AL., https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208578840.0_6.pdf

This decision, certainly should be ruled on, quickly.

We all need to stand together needle and thread and pull our nation together. Remember that the former president and his minions said their intention was,"To Dismantle Our Government." We thought that it would start at the local level, but when we blinked the greatest majority of Republican Representatives in Congress went MAGA. To Professor Snyders point, the former president should be removed from the ballots. Sadly I think a decision will be made/ruled that this should be the case, that he the former president is disqualified but that the new word/term we keep hearing about -STAYED, That somehow this will happen and he will be on the ballot and we of course will have to VOTE. This is just my opinion.

Expand full comment
founding

100%!

Expand full comment

Excellent thank you

Expand full comment
Dec 29, 2023·edited Dec 29, 2023

Another timely piece, thank you.

In keeping with the arguments here, I heard a fascinating perspective on Preet Bhara’s podcast with Prof Jill Lepore. She argued that this disqualification clause was inserted into the 14th amendment in large part because of the threat of Jefferson Davis running for President. His prosecution was thought to be problematic and was avoided and it was thought he had a shot at winning a Presidential election.

So, it seems this was the exact purpose of this part of our Constitution- to protect against a rebelling political leader trying to destroy our system of government by winning an election.

https://cafe.com/stay-tuned/amending-history-with-jill-lepore/

Expand full comment
Dec 31, 2023·edited Dec 31, 2023

That stuff about Section 3 being designed to keep Jefferson Davis from becoming President is not only true, it was discussed at length in the majority opinion of Anderson v Griswold. Trump raised the argument that Section 3 didn’t apply to the President and the court ruled that it did and used that very legislative history to prove it. People don’t realize how complete Anderson v Griswold is. It covers every single pro-Trump argument that’s being made and destroys all of them. The USSC is going to have to be blind not to affirm it. And as for those in the media circus who want a unanimous USSC decision to “unify” the country and “restore faith in the court”, well, there’s no way in hell those three liberal women are going to to vote to allow Trump on the ballot. Not when they have the perfect legal and constitutional arguments handed to them on a silver platter by the Colorado Supreme Court. The three Trump justices, Federalist Society members all, will join the women and they’ll issue a 6-3 decision affirming Anderson v Griswold.

Expand full comment

Ann, you’re certainly more hopeful than I am about how SCOTUS will rule. It’s in their own self-interest to bar Trump—he would be hellacious for the Court to deal with if he returns to power. And the three justices he appointed all have an interest in demonstrating their independence from him, I would think. So this is a case where their own interests line up with the right legal ruling. My fear is that Roberts might steer them to a narrow ruling, perhaps affirming Colorado but confining its decision to that state alone, thereby letting each state make its own decision about eligibility. I don’t know how they could honestly make that argument—if Trump is ineligible under the federal Constitution, then he’s ineligible everywhere the Constitution has authority. But then again this Court has repeatedly ruled in ways that have crossed the bounds of real conservative jurisprudence.

Expand full comment

Professor Snyder raises some interesting points about whether Trump can not run for the presidency because of the ‘insurrection’ clause in the 14th Amendment.

This has be broadly discussed and is currently affirmed in Colorado and Maine, while it was rejected in several other states.

It seems likely that this issue will come before the Supreme Court. This would be the most vexing Court political issue since Bush vs Gore in the 2000 presidential election. I would welcome Linda Greenhouse’s assessment of this constitutional issue.

Expand full comment
founding

These are not “points of interest” nor opinions. These are facts of the law. The 14th is clear. Trumps own statements of his words, actions, admission of perpetrating conspiracy are crystal clear.

We can be a nation based on the rule of law, our Constitution, or we can be a country based on will, passion, and exception for the wealthy few. Can’t run = Constitutional Democracy/Republic. Can run = Fascism.

To claim otherwise is to stretch and bend our most fundamental legal base so naively is recklessly irresponsible. It is to unlearn the lessons of the 30’s and 40’s.

Expand full comment

I invite you to watch Yale historian David Blight discuss this question on MSNBC last night. I learned a lot about the big picture of what was going on when the 14th Amendment was passed. https://www.youtube.com/watch?v=U5FwX5Vf7_0

Expand full comment

It’s incorrect to say that other states have rejected the claims found to have merit in Colorado and Maine. In those two states the Secretary of State has a state law duty to determine if the candidates on the ballot are qualified to hold the office they are running for. In other states like Michigan, for example, the Secretary of State has no such duty. In fact, the Colorado Supreme Court noted in a footnote that Michigan election law was different and you would not get the same result in Michigan (which you didn’t, their SOS put Trump on the ballot for the very reason Colorado said they would). Indeed, while the Michigan result was upheld on appeal, the dissenting judge said that it needed to be pointed out that Michigan law was different and that keeping Trump on the ballot only extended to the primary, in the general election he would probably have to be removed due to Section 3.

Expand full comment
founding

What if Germany had our 14th Amendment in 1930’s? Could it have prevented Hitler from running and/or holding any office after the Beer Hall Putsch? Are we now particularly vulnerable to a terrorist attack that could fuel TFG’s re election? Similar to the 1930’s Communist hysteria, an instruction manual would see a terror attack opening more space for a fascist strongman candidate like TFG. Not if we follow our laws, our Constitution. “With law our land shall rise. But it will perish with lawlessness.” Tump running for the “highest magistrate” is lawlessness. How can we allow such a crime from our original/ fundamental legal foundation to be the lead enforcement officer of all downstream laws? Conviction or not, the Orangeman is ineligible. A SCOTUS claiming/saying he is eligible means our democrat has perished from the Earth.

Expand full comment

Thank you for taking up this critical issue. Supporting the Constitution over supporting any one political party is what makes America America. Our military swears to protect the Constitution (not whichever political party the current POTUS belongs to). I would only add that - just today - I learned from Harvard historian David Blight (who was interviewed on MSNBC last night) about the larger context in which Section 3 of the 14th Amendment exists. He talked about how it was part of a larger package of laws that were passed with the explicit intention of preventing the Confederacy from every rising again. I urge people to watch this interview (at the beginning of this video recap of last night's show). When you see the big picture of what was on people's minds (after months of debate, apparently) back then, it becomes even clearer that they would NOT have wanted Trump to be able to run again. https://www.youtube.com/watch?v=U5FwX5Vf7_0

Expand full comment

but but but but... why can't we just pick which provisions of the Constitution we like and not so much enforce the tough ones? It would be so much more expedient! And cause so much less stress to the body politic, wouldn't it?

Expand full comment

Thank you! Brilliant and incisive. From your mouth to the SC ears.

Expand full comment

I'm trying to think this through with you, and very much appreciate your pushing back. I don't know if you've listen to Josh Marshall's podcast with Heather Cox Richardson, but her explanation of the enormous, long-term damage that was done to the nation by not holding the Confederates to account under the law, and more recently not holding Nixon to account, is pretty compelling. When malefactors are not held to the law in the hope that it will help move us forward with less stress, the result is inevitably more and worse bad acting by them and others. It only gets worse. I guess I would argue that the ineligibility clause of 14A is pretty clear, as explicated by the CO Supreme Court, and to avoid applying it to Trump when the facts are as clear as they appear to be will not in fact avoid the outcomes that you seem to be most concerned about, but will only make our prospects even worse. Perhaps there is no smooth glide path here (undoubtedly that's true), but one path leads to a truly nightmarish situation (Trump as Orban/Putin), and the other seems ugly but necessary and possible to be gotten through. We are in a true inflection point in our history, and I guess it seems to me best to follow the law rather than to try to find an ad hoc way to prevent stress and strife. Our laws are our guideposts in the fog.

Expand full comment