As an onlooker, I am deeply disturbed to observe the scant regard in which the constitution of the United States is apparently now held. That there are seemingly millions of American citizens who just hurtle towards the complete disintegration of their civic institutions without any consideration of what comes next. When the fabric of society is torn to shreds and discarded, what sort of future do people think they will have?
Amen. Very well stated. The unintended consequences are what will blow up in our faces. People voted for Trump because they wanted to shake up a status quo. I even heard people arguing that they wanted a bull in a china shop well that's what they got. Jan 6 is a direct consequence of that as well as corruption to the nth degree and horrible policies regarding Paris climate agreement and the Iranian nuclear agreement. You can agree or disagree with these however simply retracting our position completely diminishes our credibility on the world stage. The world cannot depend on any agreement we make at this point. Nobody thought of these consequences even if you disagreed with those policies. Was it worth losing the good faith in the word of the United states. It was perilous to begin with! Now it's completely useless. More unintended consequences!
This sounds like a broad accusation. On the contrary.. some parts of the Constitution are very well known and regarded. As Prof Snyder says or intimates, it's less not scant regard than ignorance, or not knowing for many about this part of it especially. We learned this in grade school. Then there are the cultists and liars who deny the insurrection was an insurrection. But the words are insurrection or rebellion. In any case this is for serious pubic intellectuals and scholars to bring up and inform- even the media. The NYTimes is often wrong, no exception.
It will be interesting for other "originalists" to weigh in as well as others of us breathing some relief that these words are there. We must prevent Trump from ever holding that or any office again. They could make arguments, as they have, that it was not an insurrection etc.etc.
But this report from Baude and Paulson will start the ball rolling.
Trump or the Constitution... make t shirts and hats.
It’s a fair point - I think even outsiders are familiar with Article I and Article V but we have no reason, apart from intellectual curiosity, to go much beyond. I grew up believing in the ideals expressed in a constitutional democracy and cannot fathom why so many people appear to be so intent in their pursuit of chaos and anarchy and why others appear so willing to let it happen. If slogans win elections then Trump or the Constitution is a good place to start.
I think these people are emphasized in the news. They seem to have been conned and even mesmerized…unhappy resentful and wanting retribution against perceived enemies … the Biden crime family. Their votes were stolen they believe. Trump is dangerous. How many lemmings does he command? We shal see. But we can’t be silent or throw our hand up.
I see these Trump mesmerized wearing flags and red white & blue… they think they are patriotic. But those we don’t see demonstrate that love of Trump or are unmovable Republicans willfully ignorant resistant to the truth about the election of 2020. They must think rebelling is their right. The GOP is very complicit in this.
This draft legal essay is interesting. You mention one aspect of it that is worth some considerable effort to understand. That is its 'originalist' contribution to a conversational, informed reading of the section and amendment which contains it.
Because of the large number of contributors to this draft essay, the 'originalist' content of interpretation and use of evidence is minimal but necessary to 'see' and 'think about" the purpose and wording of the amendment and its Section 3 as the authors of the Amendment did. The Amendment addresses a crucial historical fact which these Americans regarded as crucial for the effective exercise of federal governance within the jurisdiction of the Constitution. Just as Prof Snyder makes clear here in "We can have the constitution", chosen betrayal of the Constitution and the oath to uphold it that is the oath of office of public officials must be regarded as, at least, disqualifying the person from public office.
Isn't it curious that that there is a ball to start rolling that has not already been rolling since the evidence became so persuasive? We individual Americans are the government; have we dispossessed ourselves of the need and or capacities to make informed and definitive decisions about such matters? We have an important legal tool in the draft essay; Prof Snyder provides us with a succinct and useful public dialoguing tool. Together they may be sufficient. Absolutely necessary are the public understanding and resulting loud, continuous disapprobation, along with equally strong and resolute calling on public officials to adhere to Section 3.
I have been meaning, but forgetting to share the Baude and Paulson section:
"Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs.
So, for in-stance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties.66
Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the au-thority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.67
For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representa-tive Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021.68 The judge proceeded under the theory that if January 6 was a constitutional “insurrection,” and if Representative Greene had been part of it, she would be barred from office.69 But it concluded that the challengers had failed to meet their burden of proof under state law: “In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any ac-tion—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s pro-posed findings that day.71
Such determinations about ballot eligibility may also be subject to further ju-dicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, moot-ness, and abstention), to decide cases of candidate eligibility." pp. 23 -24
Very useful. This assumes that all involved respect the Constitution and this interpretation. It does seem correct that a case has to be made for involvement (as per above) in the insurrection. In the first place we have to have it definitive the consensus that this was an insurrection:1. if it was an insurrection 2. If Greene ( now Trump) took part in it.
Then the challengers had the burden of proof upon them in a court.
This time the challengers will have more proof about taking part in what most of us are calling an insurrection already.. but I am not clear whether legally (or how) this gets resolved. .. by the SCOTUS? By the preponderance of the evidence presented ( including the voluminous January 6th House Committee report) insurrection becomes EVIDENT?
The Trump side will claim partisan witch hunt.. the SCOTUS , if it does not consider Jan 6 can insurrection/rebellion will also be (obviously) partisan. Back to looks like a duck...quacks like a duck..smells like a duck. (Zoologists weigh in!)
The SCOTUS brought us Bush in Bush v. Gore. What a difference this made to the country!! Instead of going to war in Iraq.. we would have been well on our way dealing with climate change problems.
The ball that must start rolling is very serious discussion about section 3 interpretation which seems very clear to us. The insurrectionist/rebels have been fighting this wording, claiming stolen election etc. Having these Federalist originalist opinions may make all the difference in discussion. We need a tipping point. Republicans have been relying on or have respect for the Federalist Society.. for instance by pushing their approved judges. We may strongly disagree with this philosophy of interpretation of the Constitution ( I do) but it's something we have to contend with. The Constitution can be manipulated as well. The meaning of words challenged and they have been. But here in section 3 it's pretty plain. Are they going to argue about what rebellion means-- or even what is an insurrection since it's been used to describe this event as such not by a few knowledgeable and respected, in the media and,I think, in the courts.
We cannot get away from the issue that we ( the majority of us) need desperately to get Trump off the ballot and not wait for the vote itself as we are dealing with a risky situation and a flawed system, one that has been gamed for the minority.
This should be a plain matter as Prof Snyder says: Trump is not qualified to run. But I wonder if somehow the court system will enter. Firstly Trump needs to be convicted of what he is accused of... thus the need for no delays.
how 'eligibility' may unquestionably be publicly determined (e.g., conviction in federal or state court);
and, at the state [any US state] level, is it the Attorney General office that would take the responsibility for either initiating an ineligibility determination or responding to a citizen legal action to enforce Section 3 [in order to disqualify a candidate from being voted on?
I have, this day, begun a brief introduction into US Code and FEC guidelines, etc,... in this matter from this hunch.
Of interest may be:
1) Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment,
30 Wm. & Mary Bill Rts. J. 153 (2021) , 68 Pages Posted: 11 Jan 2021 Last revised:
Depending on what I think I have found, my intention is to perform case law study on cases of disqualification to understand how eligibility was made firm and what judicial and statutory mechanisms were used to disqualify. My efforts may take some days, as I work full time.
<i>Is disqualification different than impeachment?
Yes. Someone who is impeached could be disqualified from holding public office in the future if they are convicted, and Congress applies such a punishment. But this is separate from disqualification under the 14th Amendment. Under Sections 3 and 5 of the Fourteenth Amendment, Congress could bar someone from holding office. But unlike an impeachment conviction, that decision could be overturned by the courts. Most importantly, under the 14th Amendment, disqualification requires only a simple majority vote, not the two-thirds vote needed to convict during an impeachment trial.</i>
*********
In other words, the court could overturn this vote.. just as if it were a law, or it would be a law.. that the court/s determine whether this is unconstitutional. Uncharted territory.....
to read number 1, "Disloyalty & Disqualification...", you must first select which cookies you allow; following that, you can download a PDF version, which you can then open and read with Acrobat Reader;
the Constitution's Disqualification Clause Can Be Enforced TodayBy Liz Hempowicz & David Janovsky & Norman Eisen
I hope that I am not getting mixed up on what you needed me to clarify and what you had found and read. I might be mixed up. Let me know. Glad to share.
Bob- I have not read your links above yet but first thoughts: Prof Snyder leaves us with the plain point that what Trump did disqualifies him from running for office (holding office) again according to sec 3 Amendment 14. He seems to be saying that is clear..end of discussion. But this leaves us wanting to know 1. how is this determined? Do we just point to the Constitution or does this have to be adjudicated?I think Snyder hints that no such thing is necessary (as I read this above). But what remains, it seems to me, is that these cases against Trump have to be tried, the result determining the validity of using the term insurrection.There could be argument over that! Certainly it relieved me to read "rebellion" a looser term. But that does not solve it either. I think for this determination of ineligibility to sit with the American people, there has to be a firm connection of Trump to the violence of January 6th and the planning, or provoking overweighing the mitigating excuses being offered by Trump. I think we are on our way to that determination. The sum total of all these indictment counts may, hopefully, weigh so heavily, that no other sane conclusion is possible. Then Trump or the Constitution is what is at stake.
I see the logic and the evidence of Prof Snyder's essay, and the essay is informed by the draft evaluation of Paulsen and Baude, an evaluation which is comprehensive, coherent, responsible in its use of the wording and historical context of Section 3. I share your sense of being clear on the evidence to disqualify and on the merit of applying Section 3 to legally disqualify.
As you wonder, what about a judicial decision, being fairly tried and convicted?
If convicted, then another, plainly legal position can be asserted (and needs to be) to effect Section 3. What official (s) in what government department and office will uphold and effect the Section 3 disqualification?
"8. Some may question whether the historical purpose of section 3 applies to the events on January 6 and the President’s alleged actions. How much should be read into the fact the article of impeachment cited and quoted from section 3 in reference to President Trump’s actions?" Near the end of this section, it is stated, "The inclusion of Section 3 in the impeachment indictment and the subsequent vote in the Senate indicate that a majority of representatives and senators believe President Trump is subject to disqualification under Section 3, but such disqualification requires a legislative proceeding separate from impeachment."
It continues,
"Putting aside Mr. Trump’s behavior, Reconstruction Republicans would have had no problem applying Section 3 to some other participants in the mob that invaded Congress on January 6. According to press reports, some members of the mob were former officers in the military forces of the United States. If, like Robert E. Lee, those former officers took an oath to support the Constitution of the United States, Congress by law may declare them ineligible for future state and federal office."
Graber describes one path.
Is Graber's path the one which has received formal, legal agreement by substantial members of the legal community? Or, is there an agreed upon legal path that depends on the judicial system for fair and impartial trial and with the opportunity for appeal and so forth and which has merit and proponents?
Quite frankly, I don't know. My search is for the path that has overwhelming legal supports.
One additional perspective by none other than the US Congressional Research Service, "The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment", updated Sept 07, 2022, at https://crsreports.congress.gov › product › pdf › lsb › lsb10569
For example:
"Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary."
and,
"Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification."
finally,
"Implementation
It is unclear whether Section 3 is self-executing, which, if it is not, would leave federal and state courts or election authorities without power to determine the eligibility of candidates unless Congress enacts legislation to permit it. Courts have produced mixed results on this question. Section 3 does not expressly provide a procedure for its implementation other than Section 5’s general authority of Congress “to enforce [the Fourteenth Amendment] by appropriate legislation.” There might be multiple ways Congress could enforce the Disqualification Clause, including relying on federal criminal prosecution for insurrection and treason, allowing private civil enforcement through writs of quo warranto or other procedures, enacting new legislation establishing general procedures for adjudicating disqualification under Section 3 or for identifying specific disqualified individuals, or unicameral measures by the House or Senate to exclude or expel individuals from their respective houses. What follows is a discussion of a sampling of these alternatives and the novel legal questions they would pose."
Some of the questions for which I am pursuing answers may be answered. Some of the disagreement today among legal scholars may be due to the unique circumstances faced by the authors of Section 3 of the Fourteenth Amendment; formal secession precipitated the American Civil War, which was fought and which defeated the Confederacy. The events of Jan 06 2021 present set of events that did not involve formal secession and full scale war by the secessionists.
To me it makes sense to be looking for clear legal eligibility and what legally determines any persons demonstrated eligibility, along with legal paths that conclude, with certainty and force of law, disqualification.
Once again, I am grateful for Prof Snyder's observations. And, I share his respect for the Paulsen and Baude draft research findings and interpretations. Using the latter side by side with others mentioned above can, perhaps, for most Americans, adequately strengthen the merits of applying Section 3, while also clarifying the due process and equal protection and application of laws mechanisms. By satisfying these, the Constitution will have been 'worked' to bring justice under the law (in contrast to the violence of Jan 06 2021).
An effective and beautifully written description of the national conundrum. Thank you for this essay, Prof Snyder. I am a fan. However, the inevitable response, (and that already rendered by the NYT) will bear witness to the futility of fact-based logic in the American political circus. I personally have passed beyond outrage into deep sadness for the nation of my youth. Part of my rationale for a recent trip to DC was to walk the mall and discover whether the symbolism of the nation's most sacred monuments would still be inspirational for me. As I gazed across the quiet and empty Ellipse toward the Washington Monument and the Jefferson Memorial at the very moments when Mr Trump was being arraigned at a courthouse a few blocks away, I realized sadly that most of the inspiration I had felt in my youth was gone. Only two places moved me a little. At the Lincoln Memorial a felt deep rumblings that the assassinated President who led the country to its once darkest hours would be horrified. At the Wall, I found the name of my best HS friend among those of 50K+ American men, considered all that had been lost and all the pain and misery that accompanied those losses, and asked myself WHY? The nation now has just too many why questions that will not be answered convincingly against the backdrop of current times. Is it all a sham of selfishness, greed and power?
Your comment saddens me. Democracy and the Constitution and all that this means and has meant is not a present you were given. It means active participation in keeping it right- righting the wrongs, building better from what we learn. We do not have laws that cover every human misbehavior, every eventuality. We have lived with norms and trust that filled in the gaps. We now know that bad actors can take us over, that we have vulnerable citizens that can be conned, and a media and social media that spreads lies and misinformation. This is a new challenge. If we lose faith and we let this happen it will also be our fault for giving up. I have been heartened by so many who are in the majority that are moved to action, doing something positive- even staying informed tirelessly- even though many are tired of this. And voting...at the very least- as well a supporting the work of good people.
Thanks for your comments Mr. Potter, and thanks to Prof Snyder for alerting us to this legal draft.
Your point, Mr Potter, seems essential for the persistence of our democratic system:
"...active participation in keeping it right..." is the entire and most basic assumption of the American Constitution's authors and primary proponents. The extent to which Americans take the personal responsibility to learn about and practice using the Constitution's tools and inform themselves of the living contexts of Americans who chose it, amended and interpreted it, is the extent to which our democracy is universal among us and a strong evidence of our confidence in ourselves as the 'government' and the Constitution as an accessible format of useful tools and relationships for us to practice government.
You also mention "norms and trust" that sustain our choices of relationship. It is also each of us who informs and contributes to this positive mutuality (as opposed to destructive competition or some sort of nihilism).
The Constitution is meant to be used, not worshipped as many also believe. Using it makes it a living document. People live it, need it to live. There are parts of it, like the 14th sec 3 that we did not need or use. Now we know it because we need it.
The Constitution like our bodies, if parts of it are not used then it gets sclerotic or arthritic, even vestigial. We need to exercise this document, make it alive. And we need to alter it or add to it...so hard to do now as we are. The norms and trust have broken down because of the extreme partisanship and Trumpism, rising hate.
Yes, but at what cost? And how long before the national conundrum smooths out its crazy behaviour? Will there be a time to ask WHY? Or will there be an embarrassed cold shoulder insisting that we must look to the future and, by the way, there is nothing to see here?
I’ve been reading and listening a lot to word out of Ukraine and Russia. The “small people” of Russia say they don’t pay attention to politics. That’s for other bigger (important) people to do and they just go along. If they don’t they can go to jail...they think. But they listen to Russian (state-run) TV because that’s all there is and they think they understand what is shaping Russkiy mir. But their rule of law is skewed as is their constitution. Decades of control have robbed the Russian people of logical thought.
The small people of Ukraine, who are not at all small, are fighting to regain all of their country that was illegally taken from them. Politics are not top of mind while there is martial law, but every Ukrainian knows that there will be work for everyone to bring about the country they love and fight for. And still, people from the US, UK, and France, say that Ukraine is the most corrupt country in Europe implying that helping them is a waste of time and money. Are they ok with Russia taking Ukraine? Are they secure in the idea that it could not happen to them?
So what is it about Americans and their reluctance to simply do what has to be done? Why do so many love the idea of having a hateful lying stand-up grifter back in the White House saying rude and stupid things while fundraising with his terrible trading cards and other reoccurring payments? They are like the Russians but without generations of Soviet/Putin rule to mould them as an excuse. I wonder what they will do when Trump is found guilty of everything (though there is plenty more where that came from) and he is tucked away out of the limelight and unavailable to make horrid pronouncements on a daily basis?
That this will pass is for sure but there are others out there who will want to pick up that baton and start swinging it. We are not out of the woods yet.
I don’t think you should call Russian’s small people. They are not small but they are used to being brutally repressed and have learned to survive in that environment. An environment where the walls have ears.
I love your questions though. How indeed did the USA get to being in this situation where a narcissistic psychopath who plays the system like a game show reached the most senior position in the land. How is it that politicians get away with equating white supremacy with patriotism and calling democracy Marxism.
These questions must be answered. In what way is USA failing its people.
I didn't take "small" in that way, Fiona. I took it to mean, regular stiffs, those not in the upper echelons of decision making. I thought the point underscored yours. If regular people focused pretty much on their own lives don't stand up and push back now they may, go the way of Russian society, and have no chance to push back in the future. It's a good reason not to say, "Not interested. It's just all politics."
I agree 100% with that John. I worked, as a consultant, for a short while in Russia prior to the invasion of Crimea. I was amazed by the lengths people went to to talk privately with one about stuff that we would just consider normal discussion or even just conversation. They would go 10 floors up to a roof garden, put on loud music and talk to you in whispers, so as not to be overheard. My contract came to an abrupt end when Putin annexed Crimea. Sanctions were imposed and the company I was contracted to was collateral damage.
Nobody would speak of Putin or talk politics out loud. Walls have ears and people disappear.
I do not live in the USA but I have watched the whole Trump debacle with horror. UK also, first with Brexit and then UK government that is shifting further and further to the right and reducing people’s human rights.
In USA the whole gun lobby debacle seems to me to have gripped a section of the population who have been convinced that if anyone tries to take away their individual right to bear weapons of war and for white men to pose threateningly with these weapons then whoever opposes them must be Marxist or Communist or some other desperately destructive political force.
This bizarrely has morphed with women’s rights…or lack of them and the right to life , which right you loose as soon as you are born.
USA is a fear based politics. That is not so very far from the Russian system. All that is needed is to create the system to keep it fear based, Trump would do that, after all that is how he has lived his whole life.
Yep, I see it pretty much the same way, Fiona, and what you have written parallels exactly my experience in Russia. People were most reluctant to talk except on walks and then when others were not in earshot. They were afraid. I noticed aspects of this even before Putin but after my last visit in 2004, I decided never to return (even after the offer of appointment at a Russian university as supplement to my fulltime position here in Canada). It feels sad because, like you it seems, I have known many wonderful warm-hearted Russians. Like the Chinese, who I’ve come to know even better 2000-2017, the regular people have all the same aspirations for life that we recognize as “good” in our own lives. The transition in the USA has been horrible to watch. I was born there and a small town in W PA was a most wonderful place to grow up. I came to Canada in 1975 because UBC was one of the best places in the world to study ecology and I was able to land in a wonderful situation to complete my post-graduate education. By the by I landed a good job here and had a great career. Because I lived here and wanted tp participate, I took out Cdn citizenship in 1990. Gradually I became aware that I liked it here a whole lot better than I did there, especially after 2000 and in particular after 2016. I am now strictly Cdn. I feel deeply for friends and family still in the USA, but sadly must admit that some of them do not understand their peril as I see it.
I wrote small because that is the word many ordinary Russians referred to themselves as. They are small, they don’t understand politics and they also have this confused thing about individuality. People can make up their own minds, they say. They don’t think they could persuade anyone about anything. They can only speak for themselves and they don’t pay attention to politics. If a group got together to state that something is wrong in their world, they think they will be brutally and quickly discouraged from saying anything at all. But conversely, if they are at a huge rally, gov sanctioned, of course, they will wave the flag and cheer and cry at the anthem not recognizing that they are a short step away from freedom of the state if they only took advantage of the numbers.
From serfs under Tzars to generations of Soviet think to Putin, former Soviet KGB, the man who knows the answers to every topic large and small and now he’s president for life and few will say out loud why that is a bad thing.
I think no one trusts anyone beyond friends and family. Even Putin demands loyalty from his minions. Of course, he has to pay them the big bucks too.
I’m Canadian but my husband was American, out of NYC. He could not understand how so much of the country fell for the rude, comic, stand-up routine of Trump. NY KNOWS the man is a grifter. And he’s so much worse than he was in ’16. NY wouldn’t have him so why else would he leave his golden tower for a club in Florida? We know he can get more adoration in Florida and he can charge a cover too. Trump can behave badly because everyone else tries to follow the rules. That’s why it’s taking so damned long to put him down.
The GOP has lost its way. The Dems are really not much better. I think term limits across the board may help. 8 or 12 years max then go get a real job. And this constant state of electioneering is unbelievably aggravating. And get rid of the Electoral College and Citizens United dark money and super PACs.
White supremacy, marxism, socialism, communism, this ism, that ism, liberal, progressive, green, and traditional, creepy family values, misogyny run rampant, assorted flavours of religion, guns guns guns, more people dead from Covid than should be but everyone thinks it’s over so it's no big deal (I don’t think it’s over). Science is debatable (they did their own research) and too many Americans are all over Jordan Peterson like a bad rash, which is what I wish on them. I am ashamed that Peterson is a Canadian which is silly but The US has plenty of crazy and doesn’t need ours. The people with the most bent ideas are the ones being lauded as the 2nd coming or close enough. Did they hate Obama with so much venom that they went with the most opposite extreme?
I’m sorry this is so long. I’m melting in the heat and I can’t sleep. 😉
Thank goodness for extended threads and the fact that people revisit them. Otherwise I might not have discovered this useful comment with which I agree. Politics is a despicable enterprise -- something that I discovered at age 19 when I was active as a "teen-age republican" in PA. Many, if not most involved (there are admirable exceptions, I am sure), believe that lies and deceit are required to win, and few can pass by the temptation to misuse and/or abuse the power that they stumble into. Term limits are indeed needed, even though it might cut off the terms of a few decent people who might be babies in the bathwater. There are other ways to SERVE for those driven mainly by that. The EC is an anachronym and clearly an undemocratic way to select at president -- just count the votes! In a society claiming to run as "one person, one vote" there can be no place for dark money -- Jane Mayer lays out the argument as clearly as I have seen. It all needs to be changed, but conservatives will not allow it while at the same time claiming that section 3 of the 14th amendment is no longer needed. More and more I think that Yates anticipated this all in "The Second Coming".
It just may not unless trump is stopped. I cannot imagine the disasters that will befall is he is not stopped. He never should have been allowed to go on any ballot in this country. Believe what he says because he will do all those things and then some.
AGREE 100% If you can, read Tim Alberta's essay, the last piece in the January 2024 issue of The Atlantic. For me, this provided almost all the remaining pieces that I need to understand the catastrophe that is The Donald.
I am bothered by the argument that we should let the voters decide. The voters decided in 2020, but look where we are today. Once TFG is the nominee, we’ve just come full circle to where he will claim the same nonsense that got us here
Yes and they currently are an indigestible lump in our body politic and I like the two track approach to dissolving this lump. Attacking Trump through the legal system will wear down part of the lump and defeating him massively in the next election will wear down some more of the lump. It’s like cancer—chemo
and radiation. With both we might shrink this tumor to an operable state.
So, I was thinking, since the Secretaries of State can decide who is on their ballots, could we as citizens petition them to keep him off the ballot in 2024?
This is the first thing I have seen, from a scholar or otherwise, that tries to come to grips with the mechanics of effectuating XIV/3. We will need a top state election official, either sua sponte or by court order, to rule Trump ineligible, in a state where it matters.
Your proposed "top state election official" can initially come from a deep blue state, along with a well reasoned explanation of 14/Sec3.
I would offer that citizens in several states begin group discussions with their Sec of State. I will do this in Maine, thru my local Dem group. I suggest others in PA,MI, NY, CO, WI, MN, WA, OR, and CA do the same. THIS effort could go thru local Dem Party chapters, up to the state level and the Party Chairperson in each state.
First, the article referenced by Timothy Snyder is well-written and at a layperson's level. It would be interesting to download a PDF copy and attach it to a letter to your Secretary of State (126 pages, 1.25MB), wondering if Trump is ineligible to be on their 2024 election ballots.
Even if you think Trump is lowest form of life on the planet, you must admit this would interfere with the fairness of the DOJ's insurrection trial. I believe Secretaries of State would be tempted to wait until the after the verdict. If he is found guilty, striking him from state ballots on Constitutional grounds is practically REQUIRED (appeals notwithstanding). Then the court challenges begin, followed by appeal, another appeal, and the Supreme Court weighs in on this one. Months of intense legal debate and hysterical screaming will follow, but we need it.
Maybe copies of this article should also go to his Republican rivals for the Presidency. I wonder how many of them would take up this approach ...
you make a reasoned argument from the perspective of the sec of states. HOWEVER. this approach from the dems re art 14/3 is to DRIVE the conversation about the mere legality of this man being on the ballot.
We must begin a narrative that pushes our agenda forward. to date, we are simply docile and at the mercy of conservatives.
Unfortunately the DOJ did not charge Trump with insurrection, but with other charges that would be easy to convict. I agree this man should never hold office again, but how does Trump become an actual "insurrectionist" (even though, it's obvious) without the legal backbone behind it.
I agrre with your viewpoint that the Dems narrative has to change. Seems to me, the Republicans talk the populist talk but do nothing on their behalf. Dems have to start talking about how they intend to get Trump supporters back on their side, instead of all the high-tech green jobs that they won't be applying for.
I’m curious about the percentage of voters in presidental elections. I know I have read the numbers at some point but it’s too late to look them up again. In the low 60%, I’m guessing. When DT loses all of his court cases and cannot run again (how is that for all sorts of assumptions?) how many MAGAs simply don’t go to the polls out of spite? How many GOP will decide to sit on their hands? I don’t think DTs supporters will be willing to be wooed by anyone for a long while yet unless it’s Kennedy and that opens up an entire discussion again about what is wrong with these people.
I completely agree with your premise, Dr. Snyder, but when I read the indictment from Jack Smith he did not charge Mr. Trump with insurrection or sedition. And I understand why; it would be a tough thing to prove in a court of law. But I worry that without that conviction, the way our courts are so skewed to the right, would we have a chance to prevail?
This is my concern also. The indictment lays out various acts that fall under the definition of sedition, and Trump was certainly inciting insurrection, but without the specific charges, I don't know if this deems him to be ineligible.
That's the real question under article 3-- proof. Do you need a conviction? Indictment? If not, what level of proof-- and of what. The article demands close reading on these precise issues. And, on the remedies and who can assert them-- against who or what. Fascinating potential, but the details are the issue.
Having now read the parts of the article pertinent to my above post, all questions I raised-- and more-- remain. I suppose someone could file suit in federal court to enforce this provision against Trump and run it all the way up to the guys at the top of the court heap. (Thomas and Alito would probably have to cancel their free private jet trips to do it, but....they might.) Then see what happens. Talk about promoting an "insurrection"....I'd hate to be outside the Supreme Court the day they announce their decision. Either way it would confirm just how factionalized our country is in 2023. But, this could be a noble project. (I see Steve Cohen, the rep from Memphis, "raised" this clause in 2021. Not sure anyone did anything further. Worth a try....even if it goes nowhere. It's the only way this provision possibly could have any teeth. There are none in the clause itself.
Linda, that's my concern as well. But a week or so ago Ryan Goodman, who tweets @rgoodlaw, was interviewed by Bill Kristol. Ryan Goodman was a special prosecutor for the Department of Defense under Obama, and is now Anne and Joel Ehrenkranz Professor of Law at NYU. While he doesn't discuss 14/3, he does say this: "The DC District Court and court of appeals has heard and decided upon a number of the constitutional questions that would otherwise potentially pop up as threshold matters and they are clearly in favor of the prosecution." He said it was as if Jack Smith chose charges that already had precedents, to make it less likely that the defense would be able to object (We all know Trump uses delay as a tactic). There are also some other really interesting tidbits that helped calm me (a bit!). I highly recommend everyone watch this. He speaks clearly, that is, without legal jargon. https://www.youtube.com/watch?v=StbwLc5eeDA
I'd like to add this from his bio at NYU: "Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as special counsel to the general counsel of the Department of Defense (2015-16). In addition to his posts at NYU School of Law, Goodman is an associated member of the Department of Sociology, an affiliated member of the Department of Politics at NYU, and a Distinguished Fellow at the National Institute of Military Justice. Before joining the Law School, he was the Rita E. Hauser Professor of Human Rights and Humanitarian Law and director of the Human Rights Program at Harvard Law School."
Thanks Rose. I'm not worried about Trump being convicted. I think with the charges Jack Smith brought it is highly likely. The unknown is the timing and I'm pretty sure that will work out. He shouldn't be able to be on the ballot if he loses the lawsuits which was Dr. Snyder's point. I agree with him but the final decision on that, should a lawsuit be brought to stop him, could rest with the Supreme Court I think, and there's the question.
That was also one of my concerns. But Professor Goodman responds to that very question in the interview. He said he doubts that even this SCOTUS would decide for Trump because if they did, it would end up crippling the Justice Department's ability to prosecute future cases. While it is true that this is a precedent-busting court, I'm inclined to agree that at least the majority wouldn't go that far.
There seems to be a fear among government officials and reputable commentators with prestigious platforms of using the law to stop trump. I've seen all kinds of arguments, mostly political, against indicting him, trying him in court, and jailing him despite the overwhelming evidence of his crimes. Somehow doing these these things is supposed to be more dangerous to the republic than enforcing the laws he has broken. The arguments always come down to the ballot box as the only locus of a reckoning. Trump forces the question: Are we a nation of laws? That should not be a voting matter.
The New York Times, and in particular MAGA Haberman, is deeply invested in keeping Trump relevant. It is unclear why other than the fact that they would rather cover a horse race than think, but it seems to be their reality. And they are not alone.
One of the biggest problems is the relativistic media as shown by the New York Times. Even PBS seems unable to take a stand on a principle and, instead, seemingly equalize all input. If societal forces can’t sift the wheat from the chaff, then it’s up to each individual to proceed without any guide or standard. We are each of us, then, at the mercy of our temperaments and circumstances. Primed to look for a strongman to make sense of it all, find the ‘right’ direction, and lead all of us. As societal forces then determine who qualifies as a strongman according to the prevailing profit winds, the citizenry is led to slaughter. Of course, there will be no one left from whom to churn profits as the strongman tears down the societal structures supporting the citizenry. This destruction is already seen in the dismantling of the education system and the labor unions and the production sector (manufacturing, farming, etc) while raising the economic and financial sector to become the country’s religion. The golden calf redux.
However, the failure with this religion is already visible. People are actually becoming aware that there is a con going on because they can smell it as they see the difference that is hallowed by this religion in the decreased jobs and goods as well as the concurrent increased prices and profits. At least half of the citizenry are aware. The other half is seeing a discrepancy in what their leaders say from day to day. Independents, for sure. And now conservatives from the Federalist Society. They may finally be seeing that chaos will destroy everything, leaving no one the winner.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
There are no positives with Trump. And unless you were sleeping thru his failed term in the WH, you would know how much damage he did to the country both domestically and in the world.
There are abundant postives with Trump, with people of healthy minds. Unhealthy minds,… we saw what happened with all the rioting for months in 2020 which are on the Democrat Party Platform side of leaning. Biden has done vastly more damage to the USA and the World, with the immigration chaos, the Nordstream terrorism, AND THE ONGOING DEVASTATION IN UKRAINE,…. thanks to the Democrat/Biden/MilitaryIndustrial-Complex.
There are no positives with Trump. He is the greatest threat to our democracy since the rise of the Confederacy. As for Ukraine, that is all on Putin, not Biden. And it will ultimately result in Putin's downfall.
Ukraine is NOT all on Putin. USA meddled in the Ukraine election which ousted Yanukovich. If you don't respect the different neighborhood polarities of the world, shit happens.
The USA is responsible for most of the devastation of the Ukraine/Russia conflict, due to the prolonging of the war and resulting devastation and the blow up of the Nordstream pipeline.
Russia is going to maintain their core regional neighborhood without the USA meddling. (not all Russians agree with that, but enough do). The Donbas region and Crimea are core Russian lands since the late 1700's; valuable real estate.
Compromise is the prudent course of action. Russia gets the eastern oblasts, Ukraine gets the rest,… and both go their own way, in productive peace.
Put down the remote control. Step away from the TV and the computer. Fox, Newsmax, OANN, Breitbart and all the rest of your favorite media sources are lying to you.
Putin is not your friend. Russia deserves no Ukrainian territory, their aggression is a crime against world peace. And, Putin's defeat in Ukraine is inevitable. He will be given a choice of falling out a window or facing a firing squad. And the world will rejoice.
The Kool-Aid is strong with this one. The French axiom, rocked as a baby too close to the wall! Seems to apply. I can't resist the ad hominem attack to someone who's just the unwitting recipient of some major propaganda. If a bunch of Biden supporters ransacked the Capitol had fake electors and tried to get the vice president to singularly decide the election, I would suppose you'd be singing a different tune
Jan. 6 was wrong. But, it's as though the Democrat forces wanted Jan. 6 to happen,.. even though it was know it would be easily squelched and very short lived,… it was let to happen.
Whereas, rioting for months on the Democrat leaning platform during 2020,…. billions in damage, over 20 deaths…... …… smh
Indeed, the Baude/Paulsen article is welcomed! After reading it this morning, methinks it gives plenty of heft to Secretaries of State to keep tfg off the ballots. As for the Governator being POTUS, 🥴
I read the law review article the other day after seeing that Judge Luttig had praised it's scholarship. Judge Luttig is a scholar himself and a thoughtful man. He has written and testified that "Jan.6 was a war for America's democracy." There is no doubt about that but the war goes on. Your reflective essay frames the conflict as a choice between the Constitution and Donald Trump. A choice that is a no brainer for your subscribers and I believe a majority of Americans. However, the cult that follows the former president was 70 million strong in 2020 and remains formidable.
The late Isaac Asimov was a shrewd observer of our culture. Long before Donald Trump entered the political scene, Dr. Asimov observed another cult, one he described as a cult of ignorance. His precise words succinctly describe our dilemma: "There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge." That false notion, aided by social media, has infected the nation. The only remedy is for freedom loving people to stick together and soundly defeat Trump and others like him over and over again until they finally get it.
This characteristically thoughtful narrative, nicely citing conservative scholars in support of Prof. Snyder's view, does not address one critical factor bearing on the theme of his narrative, which is that Trump, under Section 3 of the 14th amendment, is ineligible to serve as , and, per force, be slated on a ballot for (on a major party ticket no less), the office of president. This critical factor is how that provision is to be enforced, Mr. Snyder saying only, and correctly, that the voters surely should not decide it, as part of the primary or general election process. The latter being the case, the only enforcement mechanism that comes to mind is a civil action against the G.O.P, Trump, and the instrumentalities of his campaign (there might be other defendants, but we need not get into the weeds here). seeking an injunction, grounded in Section 3 of the 14th amendment, against Trump seeking or the G.O.P, nomination, or the G.O.P slating him for the presidency. For reasons having little or nothing to do with whether Trump in fact engaged in an insurrection against the United States (he rather clearly did, as Mr. Snyder says), the outcome of such a suit is uncertain; Trump could well carry the day. That fact, of itself, would not militate against the suit's filing. What does militiate against such a suit is that, if the electablility of the G. O. P. candidate is the metric for proceeding, respecters of the Constitution, whether progressive or conservative, should want the weakest G.O.P, candidate, who is surely Trump. Informing this consideration is that the other potential G.O.P. candidates for president, while not insurrectionists, present and would seek to carry out political agendas essentially indisinguishable from Trump's; they are all Trumpers. just without the corruption, and venality.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
I rarely, if ever, acknowledge, much less reply to comments, on this site or any other, that come from right wing trollers such as yourself (or left wing trollers for that matter). But I make an exception as to your post, which fits the classic definition of a troll post: one that is inflammatory, insincere, digressive, extraneous, or off-topic (as to the lattr the post is not remotely responsive to mine ), with the intent, among other things, of drawing attention to onself and acting as a bully or a provocateur. I make an exception in part because notwitstanding your pained attempt to distinguish yourself from the Oath Keeper/Proud Boy types (by referring to Trump's flaws and mishaps), your true Trumper views (racist and zenophobic, among other things) shine through, and you should know that.
Thank you Ms. Lane for your comment, which. I am sure, accurately identifies the post in question as a bot; your identification for the benefit of the Thinking About cohort generally is appreciated. I note only that the post being a bot makes it more of a troll post, and its creator and purveyer more of a troll or a more dangerous troll, than would be so if the post were a singularly directed post against a single obscurement in a single thread in the Thinking About comment section. If I can figure out a way to bring the bot here to the attention of Substack I will do so, but anyone else reading Ms. Lane+'s comment is encouraged to do so as well..
Robert, I'm not a bot. Accept that there are contrasting sincere perspectives, which are caring perspectives for the goodness of the USA and the entire World.
It's not a bot. The posting multiple times is to address people individually on the particular range of subject matter related to their comment and Tim Snyder's post.
Robert, I like to engage with people on matters I feel strongly about with which there are contrasting perspectives on national and global matters, which relate to this Tim Snyder post. I'm sincere, and I sincerely care for the integrity and goodness of the USA and the World,… the whole environment.
So, your comment is false: it's not insincere, it's not digressive, it's not extraneous, it's not off-topic (it covers aspects of your statement), it's not to draw attention to myself (I'm sharing pertinent perspectives, it's not about me), I'm not being a bully. As for inflammatory and provoking,….. call it that if you like. My purpose is sincere counter perspectives due to my care of the subject-matter, which relates to Tim Snyder's post.
In spite of the importance of Ukraine, I'm glad that we are also focusing on the major issues that the U.S. is facing. If the U.S. descends into tyranny, Ukraine will almost certainly fall (as well as global democracy).
Ukraine gives us much to aspire to, with regard to defending democracy. They have been a good role model for many years, although I think our national ego kept us from noticing. What you say makes a very good argument for why Ukraine needs full, and quick, support to win this war. If Ukraine falls, autocracy will gain huge power, and that doesn't bode well for the US or any other state espousing democratic values.
Who rioted for several months, with over 20 deaths, and billions in damage…?,…. who spends massive billions on the Ukraine/Russia conflict?
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
Ukraine should compromise, and let Russia reclaim the eastern oblasts,… and get on with productive peace, rather than the USA funded ongoing devastation.
Who rioted for several months, with over 20 deaths, and billions in damage…?,…. who spends massive billions on the Ukraine/Russia conflict?
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
Im a longtime time union lawyer, since before Reagan fired the air traffic controllers, after which I almost moved to Paris in despair. How could it get worse than Reagan,I stupidlythought.I’ve worked on many corruption/human rights/election/antiwar matters here and in Central America.I represented the teamster dissidents who won the first rank and file election thx to Giulianis RICO settlement. So I’ve had decades to obsess and be depressed about white union members voting for racist demagogues who always screw them on economic issues. On Prof Snyder’s timely and insightful (as always) email, I’ve thought for many years that to run for office or even vote,one has to pass the citizenship test immigrants take. Hey, if “those people” (please note intended sarcasm) care enough to study and pass, why not the rest of us? Seems like a minimum obligation of citizenship.Read the Constitution for the first time, study the materials and take the test. Like the driving test. Short of ending the filibuster,adding to the SCOTUS,impeaching Thomas and Alito,ending gerrymandering,changing the Senate makeup,getting rid of the electoral college,making sure states get no more from the federal govt then they put in (that means you, Mitch and Manchin), and until we decide the ultimate question of whether there is a different and more perfect union out there(meaning not the current 50 states), it seems like at least a small step toward genuine representative and participatory democracy.
"We talk a good deal about the Constitution, and almost everyone in political life claims to venerate it — but who reads it?" Well, we know that the orange sadist never read it. (Nor has he apparently ever opened a Bible.) I recall Khizr Kahn taking his copy of the Constitution out of his breast pocket, and offering it to trump. As I recall, Khan's offer was not received. I think it's time to cancel my subscription to the NYT.
Thank you for your persistent and scholarly work!! I like that you and other historical scholars are increasingly getting more airtime on national T.V. But your voices need to be heard much more.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
As an onlooker, I am deeply disturbed to observe the scant regard in which the constitution of the United States is apparently now held. That there are seemingly millions of American citizens who just hurtle towards the complete disintegration of their civic institutions without any consideration of what comes next. When the fabric of society is torn to shreds and discarded, what sort of future do people think they will have?
Amen. Very well stated. The unintended consequences are what will blow up in our faces. People voted for Trump because they wanted to shake up a status quo. I even heard people arguing that they wanted a bull in a china shop well that's what they got. Jan 6 is a direct consequence of that as well as corruption to the nth degree and horrible policies regarding Paris climate agreement and the Iranian nuclear agreement. You can agree or disagree with these however simply retracting our position completely diminishes our credibility on the world stage. The world cannot depend on any agreement we make at this point. Nobody thought of these consequences even if you disagreed with those policies. Was it worth losing the good faith in the word of the United states. It was perilous to begin with! Now it's completely useless. More unintended consequences!
This sounds like a broad accusation. On the contrary.. some parts of the Constitution are very well known and regarded. As Prof Snyder says or intimates, it's less not scant regard than ignorance, or not knowing for many about this part of it especially. We learned this in grade school. Then there are the cultists and liars who deny the insurrection was an insurrection. But the words are insurrection or rebellion. In any case this is for serious pubic intellectuals and scholars to bring up and inform- even the media. The NYTimes is often wrong, no exception.
It will be interesting for other "originalists" to weigh in as well as others of us breathing some relief that these words are there. We must prevent Trump from ever holding that or any office again. They could make arguments, as they have, that it was not an insurrection etc.etc.
But this report from Baude and Paulson will start the ball rolling.
Trump or the Constitution... make t shirts and hats.
It’s a fair point - I think even outsiders are familiar with Article I and Article V but we have no reason, apart from intellectual curiosity, to go much beyond. I grew up believing in the ideals expressed in a constitutional democracy and cannot fathom why so many people appear to be so intent in their pursuit of chaos and anarchy and why others appear so willing to let it happen. If slogans win elections then Trump or the Constitution is a good place to start.
I think these people are emphasized in the news. They seem to have been conned and even mesmerized…unhappy resentful and wanting retribution against perceived enemies … the Biden crime family. Their votes were stolen they believe. Trump is dangerous. How many lemmings does he command? We shal see. But we can’t be silent or throw our hand up.
I see these Trump mesmerized wearing flags and red white & blue… they think they are patriotic. But those we don’t see demonstrate that love of Trump or are unmovable Republicans willfully ignorant resistant to the truth about the election of 2020. They must think rebelling is their right. The GOP is very complicit in this.
Thanks for this comment.
This draft legal essay is interesting. You mention one aspect of it that is worth some considerable effort to understand. That is its 'originalist' contribution to a conversational, informed reading of the section and amendment which contains it.
Because of the large number of contributors to this draft essay, the 'originalist' content of interpretation and use of evidence is minimal but necessary to 'see' and 'think about" the purpose and wording of the amendment and its Section 3 as the authors of the Amendment did. The Amendment addresses a crucial historical fact which these Americans regarded as crucial for the effective exercise of federal governance within the jurisdiction of the Constitution. Just as Prof Snyder makes clear here in "We can have the constitution", chosen betrayal of the Constitution and the oath to uphold it that is the oath of office of public officials must be regarded as, at least, disqualifying the person from public office.
Isn't it curious that that there is a ball to start rolling that has not already been rolling since the evidence became so persuasive? We individual Americans are the government; have we dispossessed ourselves of the need and or capacities to make informed and definitive decisions about such matters? We have an important legal tool in the draft essay; Prof Snyder provides us with a succinct and useful public dialoguing tool. Together they may be sufficient. Absolutely necessary are the public understanding and resulting loud, continuous disapprobation, along with equally strong and resolute calling on public officials to adhere to Section 3.
There is also the issue of whether the states can act individually to keep Trump off the ballot.
Hello Mr. Potter.
I have been meaning, but forgetting to share the Baude and Paulson section:
"Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs.
So, for in-stance, state or local election boards, and state Secretaries of State, may possess state-law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—to act consistently with the requirements of the Constitution in the discharge of their duties.66
Accordingly, such state actors can and must apply Section Three’s disqualification in carrying out their state-law responsibilities—just as they possess the au-thority and duty to comply with and enforce the Constitution’s other qualification-for-office requirements.67
For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representa-tive Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021.68 The judge proceeded under the theory that if January 6 was a constitutional “insurrection,” and if Representative Greene had been part of it, she would be barred from office.69 But it concluded that the challengers had failed to meet their burden of proof under state law: “In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any ac-tion—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s pro-posed findings that day.71
Such determinations about ballot eligibility may also be subject to further ju-dicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, moot-ness, and abstention), to decide cases of candidate eligibility." pp. 23 -24
Very useful. This assumes that all involved respect the Constitution and this interpretation. It does seem correct that a case has to be made for involvement (as per above) in the insurrection. In the first place we have to have it definitive the consensus that this was an insurrection:1. if it was an insurrection 2. If Greene ( now Trump) took part in it.
Then the challengers had the burden of proof upon them in a court.
This time the challengers will have more proof about taking part in what most of us are calling an insurrection already.. but I am not clear whether legally (or how) this gets resolved. .. by the SCOTUS? By the preponderance of the evidence presented ( including the voluminous January 6th House Committee report) insurrection becomes EVIDENT?
The Trump side will claim partisan witch hunt.. the SCOTUS , if it does not consider Jan 6 can insurrection/rebellion will also be (obviously) partisan. Back to looks like a duck...quacks like a duck..smells like a duck. (Zoologists weigh in!)
The SCOTUS brought us Bush in Bush v. Gore. What a difference this made to the country!! Instead of going to war in Iraq.. we would have been well on our way dealing with climate change problems.
The ball that must start rolling is very serious discussion about section 3 interpretation which seems very clear to us. The insurrectionist/rebels have been fighting this wording, claiming stolen election etc. Having these Federalist originalist opinions may make all the difference in discussion. We need a tipping point. Republicans have been relying on or have respect for the Federalist Society.. for instance by pushing their approved judges. We may strongly disagree with this philosophy of interpretation of the Constitution ( I do) but it's something we have to contend with. The Constitution can be manipulated as well. The meaning of words challenged and they have been. But here in section 3 it's pretty plain. Are they going to argue about what rebellion means-- or even what is an insurrection since it's been used to describe this event as such not by a few knowledgeable and respected, in the media and,I think, in the courts.
We cannot get away from the issue that we ( the majority of us) need desperately to get Trump off the ballot and not wait for the vote itself as we are dealing with a risky situation and a flawed system, one that has been gamed for the minority.
This should be a plain matter as Prof Snyder says: Trump is not qualified to run. But I wonder if somehow the court system will enter. Firstly Trump needs to be convicted of what he is accused of... thus the need for no delays.
Thanks Mr. Potter.
Cool.
I suggest that we ask both:
how 'eligibility' may unquestionably be publicly determined (e.g., conviction in federal or state court);
and, at the state [any US state] level, is it the Attorney General office that would take the responsibility for either initiating an ineligibility determination or responding to a citizen legal action to enforce Section 3 [in order to disqualify a candidate from being voted on?
I have, this day, begun a brief introduction into US Code and FEC guidelines, etc,... in this matter from this hunch.
Of interest may be:
1) Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment,
30 Wm. & Mary Bill Rts. J. 153 (2021) , 68 Pages Posted: 11 Jan 2021 Last revised:
7 Feb 2022 [ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3749407 ];
2) https://www.pogo.org/report/2022/11/the-constitutions-disqualification-clause-can
be-enforced-today .
Depending on what I think I have found, my intention is to perform case law study on cases of disqualification to understand how eligibility was made firm and what judicial and statutory mechanisms were used to disqualify. My efforts may take some days, as I work full time.
from https://constitution.findlaw.com/amendment14/annotation15.html#:~:text=Section%203%20of%20the%20Fourteenth%20Amendment%20prohibits%20anyone%20who%20has,rebellion%22%20against%20the%20United%20States.
<i>Is disqualification different than impeachment?
Yes. Someone who is impeached could be disqualified from holding public office in the future if they are convicted, and Congress applies such a punishment. But this is separate from disqualification under the 14th Amendment. Under Sections 3 and 5 of the Fourteenth Amendment, Congress could bar someone from holding office. But unlike an impeachment conviction, that decision could be overturned by the courts. Most importantly, under the 14th Amendment, disqualification requires only a simple majority vote, not the two-thirds vote needed to convict during an impeachment trial.</i>
*********
In other words, the court could overturn this vote.. just as if it were a law, or it would be a law.. that the court/s determine whether this is unconstitutional. Uncharted territory.....
Bob, your links above... one does not work, the other is an abstract from 2020 difficult to get anything from.
Okay, thanks.
The link works for me, but that is unimportant.
For the FindLaw "Is disqualification different than impeachment?", try https://constitution.findlaw.com/amendment14/annotation15.html .
For the earlier two,
to read number 1, "Disloyalty & Disqualification...", you must first select which cookies you allow; following that, you can download a PDF version, which you can then open and read with Acrobat Reader;
to read the pogo.org paper, try either https://www.pogo.org/report/2022/11/the-constitutions-disqualification-clause- OR try searching with
the Constitution's Disqualification Clause Can Be Enforced TodayBy Liz Hempowicz & David Janovsky & Norman Eisen
I hope that I am not getting mixed up on what you needed me to clarify and what you had found and read. I might be mixed up. Let me know. Glad to share.
Bob- I have not read your links above yet but first thoughts: Prof Snyder leaves us with the plain point that what Trump did disqualifies him from running for office (holding office) again according to sec 3 Amendment 14. He seems to be saying that is clear..end of discussion. But this leaves us wanting to know 1. how is this determined? Do we just point to the Constitution or does this have to be adjudicated?I think Snyder hints that no such thing is necessary (as I read this above). But what remains, it seems to me, is that these cases against Trump have to be tried, the result determining the validity of using the term insurrection.There could be argument over that! Certainly it relieved me to read "rebellion" a looser term. But that does not solve it either. I think for this determination of ineligibility to sit with the American people, there has to be a firm connection of Trump to the violence of January 6th and the planning, or provoking overweighing the mitigating excuses being offered by Trump. I think we are on our way to that determination. The sum total of all these indictment counts may, hopefully, weigh so heavily, that no other sane conclusion is possible. Then Trump or the Constitution is what is at stake.
Thanks Mr. Potter.
I see the logic and the evidence of Prof Snyder's essay, and the essay is informed by the draft evaluation of Paulsen and Baude, an evaluation which is comprehensive, coherent, responsible in its use of the wording and historical context of Section 3. I share your sense of being clear on the evidence to disqualify and on the merit of applying Section 3 to legally disqualify.
As you wonder, what about a judicial decision, being fairly tried and convicted?
If convicted, then another, plainly legal position can be asserted (and needs to be) to effect Section 3. What official (s) in what government department and office will uphold and effect the Section 3 disqualification?
In Prof Snyder's essay, he points to the article by by Mark A. Graber, February 16, 2021, "Their Fourteenth Amendment, Section 3 and ours" https://www.justsecurity.org/74739/their-fourteenth-amendment-section-3-and-ours/ .
In this article, there is section 8:
"8. Some may question whether the historical purpose of section 3 applies to the events on January 6 and the President’s alleged actions. How much should be read into the fact the article of impeachment cited and quoted from section 3 in reference to President Trump’s actions?" Near the end of this section, it is stated, "The inclusion of Section 3 in the impeachment indictment and the subsequent vote in the Senate indicate that a majority of representatives and senators believe President Trump is subject to disqualification under Section 3, but such disqualification requires a legislative proceeding separate from impeachment."
It continues,
"Putting aside Mr. Trump’s behavior, Reconstruction Republicans would have had no problem applying Section 3 to some other participants in the mob that invaded Congress on January 6. According to press reports, some members of the mob were former officers in the military forces of the United States. If, like Robert E. Lee, those former officers took an oath to support the Constitution of the United States, Congress by law may declare them ineligible for future state and federal office."
Graber describes one path.
Is Graber's path the one which has received formal, legal agreement by substantial members of the legal community? Or, is there an agreed upon legal path that depends on the judicial system for fair and impartial trial and with the opportunity for appeal and so forth and which has merit and proponents?
Quite frankly, I don't know. My search is for the path that has overwhelming legal supports.
One additional perspective by none other than the US Congressional Research Service, "The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment", updated Sept 07, 2022, at https://crsreports.congress.gov › product › pdf › lsb › lsb10569
For example:
"Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, and historically, one was not necessary."
and,
"Recently, various groups and organizations have challenged the eligibility of certain candidates running for Congress, arguing that the candidates’ alleged involvement in the events surrounding the January 6, 2021, breach of the Capitol render them ineligible for office. No challenges have to date resulted in the disqualification of any congressional candidate. A New Mexico state court, however, has removed Otero County Commissioner Couy Griffin from office and prohibited him from seeking or holding any future office based on his participation in, and preparation for, the January 6 interruption of the election certification."
finally,
"Implementation
It is unclear whether Section 3 is self-executing, which, if it is not, would leave federal and state courts or election authorities without power to determine the eligibility of candidates unless Congress enacts legislation to permit it. Courts have produced mixed results on this question. Section 3 does not expressly provide a procedure for its implementation other than Section 5’s general authority of Congress “to enforce [the Fourteenth Amendment] by appropriate legislation.” There might be multiple ways Congress could enforce the Disqualification Clause, including relying on federal criminal prosecution for insurrection and treason, allowing private civil enforcement through writs of quo warranto or other procedures, enacting new legislation establishing general procedures for adjudicating disqualification under Section 3 or for identifying specific disqualified individuals, or unicameral measures by the House or Senate to exclude or expel individuals from their respective houses. What follows is a discussion of a sampling of these alternatives and the novel legal questions they would pose."
Some of the questions for which I am pursuing answers may be answered. Some of the disagreement today among legal scholars may be due to the unique circumstances faced by the authors of Section 3 of the Fourteenth Amendment; formal secession precipitated the American Civil War, which was fought and which defeated the Confederacy. The events of Jan 06 2021 present set of events that did not involve formal secession and full scale war by the secessionists.
To me it makes sense to be looking for clear legal eligibility and what legally determines any persons demonstrated eligibility, along with legal paths that conclude, with certainty and force of law, disqualification.
Once again, I am grateful for Prof Snyder's observations. And, I share his respect for the Paulsen and Baude draft research findings and interpretations. Using the latter side by side with others mentioned above can, perhaps, for most Americans, adequately strengthen the merits of applying Section 3, while also clarifying the due process and equal protection and application of laws mechanisms. By satisfying these, the Constitution will have been 'worked' to bring justice under the law (in contrast to the violence of Jan 06 2021).
None, is what they will have.
An effective and beautifully written description of the national conundrum. Thank you for this essay, Prof Snyder. I am a fan. However, the inevitable response, (and that already rendered by the NYT) will bear witness to the futility of fact-based logic in the American political circus. I personally have passed beyond outrage into deep sadness for the nation of my youth. Part of my rationale for a recent trip to DC was to walk the mall and discover whether the symbolism of the nation's most sacred monuments would still be inspirational for me. As I gazed across the quiet and empty Ellipse toward the Washington Monument and the Jefferson Memorial at the very moments when Mr Trump was being arraigned at a courthouse a few blocks away, I realized sadly that most of the inspiration I had felt in my youth was gone. Only two places moved me a little. At the Lincoln Memorial a felt deep rumblings that the assassinated President who led the country to its once darkest hours would be horrified. At the Wall, I found the name of my best HS friend among those of 50K+ American men, considered all that had been lost and all the pain and misery that accompanied those losses, and asked myself WHY? The nation now has just too many why questions that will not be answered convincingly against the backdrop of current times. Is it all a sham of selfishness, greed and power?
Your comment saddens me. Democracy and the Constitution and all that this means and has meant is not a present you were given. It means active participation in keeping it right- righting the wrongs, building better from what we learn. We do not have laws that cover every human misbehavior, every eventuality. We have lived with norms and trust that filled in the gaps. We now know that bad actors can take us over, that we have vulnerable citizens that can be conned, and a media and social media that spreads lies and misinformation. This is a new challenge. If we lose faith and we let this happen it will also be our fault for giving up. I have been heartened by so many who are in the majority that are moved to action, doing something positive- even staying informed tirelessly- even though many are tired of this. And voting...at the very least- as well a supporting the work of good people.
Thanks for your comments Mr. Potter, and thanks to Prof Snyder for alerting us to this legal draft.
Your point, Mr Potter, seems essential for the persistence of our democratic system:
"...active participation in keeping it right..." is the entire and most basic assumption of the American Constitution's authors and primary proponents. The extent to which Americans take the personal responsibility to learn about and practice using the Constitution's tools and inform themselves of the living contexts of Americans who chose it, amended and interpreted it, is the extent to which our democracy is universal among us and a strong evidence of our confidence in ourselves as the 'government' and the Constitution as an accessible format of useful tools and relationships for us to practice government.
You also mention "norms and trust" that sustain our choices of relationship. It is also each of us who informs and contributes to this positive mutuality (as opposed to destructive competition or some sort of nihilism).
Yes thanks Bob.
The Constitution is meant to be used, not worshipped as many also believe. Using it makes it a living document. People live it, need it to live. There are parts of it, like the 14th sec 3 that we did not need or use. Now we know it because we need it.
The Constitution like our bodies, if parts of it are not used then it gets sclerotic or arthritic, even vestigial. We need to exercise this document, make it alive. And we need to alter it or add to it...so hard to do now as we are. The norms and trust have broken down because of the extreme partisanship and Trumpism, rising hate.
Thanks Bob.
This to will pass.
Yes, but at what cost? And how long before the national conundrum smooths out its crazy behaviour? Will there be a time to ask WHY? Or will there be an embarrassed cold shoulder insisting that we must look to the future and, by the way, there is nothing to see here?
I’ve been reading and listening a lot to word out of Ukraine and Russia. The “small people” of Russia say they don’t pay attention to politics. That’s for other bigger (important) people to do and they just go along. If they don’t they can go to jail...they think. But they listen to Russian (state-run) TV because that’s all there is and they think they understand what is shaping Russkiy mir. But their rule of law is skewed as is their constitution. Decades of control have robbed the Russian people of logical thought.
The small people of Ukraine, who are not at all small, are fighting to regain all of their country that was illegally taken from them. Politics are not top of mind while there is martial law, but every Ukrainian knows that there will be work for everyone to bring about the country they love and fight for. And still, people from the US, UK, and France, say that Ukraine is the most corrupt country in Europe implying that helping them is a waste of time and money. Are they ok with Russia taking Ukraine? Are they secure in the idea that it could not happen to them?
So what is it about Americans and their reluctance to simply do what has to be done? Why do so many love the idea of having a hateful lying stand-up grifter back in the White House saying rude and stupid things while fundraising with his terrible trading cards and other reoccurring payments? They are like the Russians but without generations of Soviet/Putin rule to mould them as an excuse. I wonder what they will do when Trump is found guilty of everything (though there is plenty more where that came from) and he is tucked away out of the limelight and unavailable to make horrid pronouncements on a daily basis?
That this will pass is for sure but there are others out there who will want to pick up that baton and start swinging it. We are not out of the woods yet.
We are far, far from being out of the woods.
exactly! This is our peril.
I don’t think you should call Russian’s small people. They are not small but they are used to being brutally repressed and have learned to survive in that environment. An environment where the walls have ears.
I love your questions though. How indeed did the USA get to being in this situation where a narcissistic psychopath who plays the system like a game show reached the most senior position in the land. How is it that politicians get away with equating white supremacy with patriotism and calling democracy Marxism.
These questions must be answered. In what way is USA failing its people.
I didn't take "small" in that way, Fiona. I took it to mean, regular stiffs, those not in the upper echelons of decision making. I thought the point underscored yours. If regular people focused pretty much on their own lives don't stand up and push back now they may, go the way of Russian society, and have no chance to push back in the future. It's a good reason not to say, "Not interested. It's just all politics."
I agree 100% with that John. I worked, as a consultant, for a short while in Russia prior to the invasion of Crimea. I was amazed by the lengths people went to to talk privately with one about stuff that we would just consider normal discussion or even just conversation. They would go 10 floors up to a roof garden, put on loud music and talk to you in whispers, so as not to be overheard. My contract came to an abrupt end when Putin annexed Crimea. Sanctions were imposed and the company I was contracted to was collateral damage.
Nobody would speak of Putin or talk politics out loud. Walls have ears and people disappear.
I do not live in the USA but I have watched the whole Trump debacle with horror. UK also, first with Brexit and then UK government that is shifting further and further to the right and reducing people’s human rights.
In USA the whole gun lobby debacle seems to me to have gripped a section of the population who have been convinced that if anyone tries to take away their individual right to bear weapons of war and for white men to pose threateningly with these weapons then whoever opposes them must be Marxist or Communist or some other desperately destructive political force.
This bizarrely has morphed with women’s rights…or lack of them and the right to life , which right you loose as soon as you are born.
USA is a fear based politics. That is not so very far from the Russian system. All that is needed is to create the system to keep it fear based, Trump would do that, after all that is how he has lived his whole life.
Yep, I see it pretty much the same way, Fiona, and what you have written parallels exactly my experience in Russia. People were most reluctant to talk except on walks and then when others were not in earshot. They were afraid. I noticed aspects of this even before Putin but after my last visit in 2004, I decided never to return (even after the offer of appointment at a Russian university as supplement to my fulltime position here in Canada). It feels sad because, like you it seems, I have known many wonderful warm-hearted Russians. Like the Chinese, who I’ve come to know even better 2000-2017, the regular people have all the same aspirations for life that we recognize as “good” in our own lives. The transition in the USA has been horrible to watch. I was born there and a small town in W PA was a most wonderful place to grow up. I came to Canada in 1975 because UBC was one of the best places in the world to study ecology and I was able to land in a wonderful situation to complete my post-graduate education. By the by I landed a good job here and had a great career. Because I lived here and wanted tp participate, I took out Cdn citizenship in 1990. Gradually I became aware that I liked it here a whole lot better than I did there, especially after 2000 and in particular after 2016. I am now strictly Cdn. I feel deeply for friends and family still in the USA, but sadly must admit that some of them do not understand their peril as I see it.
I wrote small because that is the word many ordinary Russians referred to themselves as. They are small, they don’t understand politics and they also have this confused thing about individuality. People can make up their own minds, they say. They don’t think they could persuade anyone about anything. They can only speak for themselves and they don’t pay attention to politics. If a group got together to state that something is wrong in their world, they think they will be brutally and quickly discouraged from saying anything at all. But conversely, if they are at a huge rally, gov sanctioned, of course, they will wave the flag and cheer and cry at the anthem not recognizing that they are a short step away from freedom of the state if they only took advantage of the numbers.
From serfs under Tzars to generations of Soviet think to Putin, former Soviet KGB, the man who knows the answers to every topic large and small and now he’s president for life and few will say out loud why that is a bad thing.
I think no one trusts anyone beyond friends and family. Even Putin demands loyalty from his minions. Of course, he has to pay them the big bucks too.
I’m Canadian but my husband was American, out of NYC. He could not understand how so much of the country fell for the rude, comic, stand-up routine of Trump. NY KNOWS the man is a grifter. And he’s so much worse than he was in ’16. NY wouldn’t have him so why else would he leave his golden tower for a club in Florida? We know he can get more adoration in Florida and he can charge a cover too. Trump can behave badly because everyone else tries to follow the rules. That’s why it’s taking so damned long to put him down.
The GOP has lost its way. The Dems are really not much better. I think term limits across the board may help. 8 or 12 years max then go get a real job. And this constant state of electioneering is unbelievably aggravating. And get rid of the Electoral College and Citizens United dark money and super PACs.
White supremacy, marxism, socialism, communism, this ism, that ism, liberal, progressive, green, and traditional, creepy family values, misogyny run rampant, assorted flavours of religion, guns guns guns, more people dead from Covid than should be but everyone thinks it’s over so it's no big deal (I don’t think it’s over). Science is debatable (they did their own research) and too many Americans are all over Jordan Peterson like a bad rash, which is what I wish on them. I am ashamed that Peterson is a Canadian which is silly but The US has plenty of crazy and doesn’t need ours. The people with the most bent ideas are the ones being lauded as the 2nd coming or close enough. Did they hate Obama with so much venom that they went with the most opposite extreme?
I’m sorry this is so long. I’m melting in the heat and I can’t sleep. 😉
Thank goodness for extended threads and the fact that people revisit them. Otherwise I might not have discovered this useful comment with which I agree. Politics is a despicable enterprise -- something that I discovered at age 19 when I was active as a "teen-age republican" in PA. Many, if not most involved (there are admirable exceptions, I am sure), believe that lies and deceit are required to win, and few can pass by the temptation to misuse and/or abuse the power that they stumble into. Term limits are indeed needed, even though it might cut off the terms of a few decent people who might be babies in the bathwater. There are other ways to SERVE for those driven mainly by that. The EC is an anachronym and clearly an undemocratic way to select at president -- just count the votes! In a society claiming to run as "one person, one vote" there can be no place for dark money -- Jane Mayer lays out the argument as clearly as I have seen. It all needs to be changed, but conservatives will not allow it while at the same time claiming that section 3 of the 14th amendment is no longer needed. More and more I think that Yates anticipated this all in "The Second Coming".
It just may not unless trump is stopped. I cannot imagine the disasters that will befall is he is not stopped. He never should have been allowed to go on any ballot in this country. Believe what he says because he will do all those things and then some.
AGREE 100% If you can, read Tim Alberta's essay, the last piece in the January 2024 issue of The Atlantic. For me, this provided almost all the remaining pieces that I need to understand the catastrophe that is The Donald.
I have the Jan/Feb issue of The Atlantic, I will surely read it. Thanks.
I am bothered by the argument that we should let the voters decide. The voters decided in 2020, but look where we are today. Once TFG is the nominee, we’ve just come full circle to where he will claim the same nonsense that got us here
The question remains: Is the GOP primary electorate even interested in a normal, sane and decent candidate? - Jennifer Rubin WAPO
No. They are interested in power.
Never interrupt your enemy when they’re making a mistake 🧘
No
Only crackpots vote for crockpots 😁
Yes and they currently are an indigestible lump in our body politic and I like the two track approach to dissolving this lump. Attacking Trump through the legal system will wear down part of the lump and defeating him massively in the next election will wear down some more of the lump. It’s like cancer—chemo
and radiation. With both we might shrink this tumor to an operable state.
We always beat the fascists ✌🏻
👍
Does the GOP even have any decent candidates?
Not yet 😁
“Normal, sane, and decent” GOP candidate? Possibly Will Hurd. Good luck with that.
The Times Article was misleading.
The voters can make no decision without the candidate!
Clarification: Voters can make no decision to vote for a candidate who is not on the ballot!
So, I was thinking, since the Secretaries of State can decide who is on their ballots, could we as citizens petition them to keep him off the ballot in 2024?
This is the first thing I have seen, from a scholar or otherwise, that tries to come to grips with the mechanics of effectuating XIV/3. We will need a top state election official, either sua sponte or by court order, to rule Trump ineligible, in a state where it matters.
Your proposed "top state election official" can initially come from a deep blue state, along with a well reasoned explanation of 14/Sec3.
I would offer that citizens in several states begin group discussions with their Sec of State. I will do this in Maine, thru my local Dem group. I suggest others in PA,MI, NY, CO, WI, MN, WA, OR, and CA do the same. THIS effort could go thru local Dem Party chapters, up to the state level and the Party Chairperson in each state.
I'd love thoughts and feedback ...
Yes. The people must speak. Grass roots needs to drive this.
First, the article referenced by Timothy Snyder is well-written and at a layperson's level. It would be interesting to download a PDF copy and attach it to a letter to your Secretary of State (126 pages, 1.25MB), wondering if Trump is ineligible to be on their 2024 election ballots.
Even if you think Trump is lowest form of life on the planet, you must admit this would interfere with the fairness of the DOJ's insurrection trial. I believe Secretaries of State would be tempted to wait until the after the verdict. If he is found guilty, striking him from state ballots on Constitutional grounds is practically REQUIRED (appeals notwithstanding). Then the court challenges begin, followed by appeal, another appeal, and the Supreme Court weighs in on this one. Months of intense legal debate and hysterical screaming will follow, but we need it.
Maybe copies of this article should also go to his Republican rivals for the Presidency. I wonder how many of them would take up this approach ...
you make a reasoned argument from the perspective of the sec of states. HOWEVER. this approach from the dems re art 14/3 is to DRIVE the conversation about the mere legality of this man being on the ballot.
We must begin a narrative that pushes our agenda forward. to date, we are simply docile and at the mercy of conservatives.
Unfortunately the DOJ did not charge Trump with insurrection, but with other charges that would be easy to convict. I agree this man should never hold office again, but how does Trump become an actual "insurrectionist" (even though, it's obvious) without the legal backbone behind it.
I agrre with your viewpoint that the Dems narrative has to change. Seems to me, the Republicans talk the populist talk but do nothing on their behalf. Dems have to start talking about how they intend to get Trump supporters back on their side, instead of all the high-tech green jobs that they won't be applying for.
I’m curious about the percentage of voters in presidental elections. I know I have read the numbers at some point but it’s too late to look them up again. In the low 60%, I’m guessing. When DT loses all of his court cases and cannot run again (how is that for all sorts of assumptions?) how many MAGAs simply don’t go to the polls out of spite? How many GOP will decide to sit on their hands? I don’t think DTs supporters will be willing to be wooed by anyone for a long while yet unless it’s Kennedy and that opens up an entire discussion again about what is wrong with these people.
Interesting thought, but I think I know the answer.
YES YOU CAN.
Believe you’ve got it!
I completely agree with your premise, Dr. Snyder, but when I read the indictment from Jack Smith he did not charge Mr. Trump with insurrection or sedition. And I understand why; it would be a tough thing to prove in a court of law. But I worry that without that conviction, the way our courts are so skewed to the right, would we have a chance to prevail?
This is my concern also. The indictment lays out various acts that fall under the definition of sedition, and Trump was certainly inciting insurrection, but without the specific charges, I don't know if this deems him to be ineligible.
That's the real question under article 3-- proof. Do you need a conviction? Indictment? If not, what level of proof-- and of what. The article demands close reading on these precise issues. And, on the remedies and who can assert them-- against who or what. Fascinating potential, but the details are the issue.
Having now read the parts of the article pertinent to my above post, all questions I raised-- and more-- remain. I suppose someone could file suit in federal court to enforce this provision against Trump and run it all the way up to the guys at the top of the court heap. (Thomas and Alito would probably have to cancel their free private jet trips to do it, but....they might.) Then see what happens. Talk about promoting an "insurrection"....I'd hate to be outside the Supreme Court the day they announce their decision. Either way it would confirm just how factionalized our country is in 2023. But, this could be a noble project. (I see Steve Cohen, the rep from Memphis, "raised" this clause in 2021. Not sure anyone did anything further. Worth a try....even if it goes nowhere. It's the only way this provision possibly could have any teeth. There are none in the clause itself.
Linda, that's my concern as well. But a week or so ago Ryan Goodman, who tweets @rgoodlaw, was interviewed by Bill Kristol. Ryan Goodman was a special prosecutor for the Department of Defense under Obama, and is now Anne and Joel Ehrenkranz Professor of Law at NYU. While he doesn't discuss 14/3, he does say this: "The DC District Court and court of appeals has heard and decided upon a number of the constitutional questions that would otherwise potentially pop up as threshold matters and they are clearly in favor of the prosecution." He said it was as if Jack Smith chose charges that already had precedents, to make it less likely that the defense would be able to object (We all know Trump uses delay as a tactic). There are also some other really interesting tidbits that helped calm me (a bit!). I highly recommend everyone watch this. He speaks clearly, that is, without legal jargon. https://www.youtube.com/watch?v=StbwLc5eeDA
I'd like to add this from his bio at NYU: "Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as special counsel to the general counsel of the Department of Defense (2015-16). In addition to his posts at NYU School of Law, Goodman is an associated member of the Department of Sociology, an affiliated member of the Department of Politics at NYU, and a Distinguished Fellow at the National Institute of Military Justice. Before joining the Law School, he was the Rita E. Hauser Professor of Human Rights and Humanitarian Law and director of the Human Rights Program at Harvard Law School."
Thanks Rose. I'm not worried about Trump being convicted. I think with the charges Jack Smith brought it is highly likely. The unknown is the timing and I'm pretty sure that will work out. He shouldn't be able to be on the ballot if he loses the lawsuits which was Dr. Snyder's point. I agree with him but the final decision on that, should a lawsuit be brought to stop him, could rest with the Supreme Court I think, and there's the question.
That was also one of my concerns. But Professor Goodman responds to that very question in the interview. He said he doubts that even this SCOTUS would decide for Trump because if they did, it would end up crippling the Justice Department's ability to prosecute future cases. While it is true that this is a precedent-busting court, I'm inclined to agree that at least the majority wouldn't go that far.
I did watch it. I just hope he's right.
Good! He is an unusually careful thinker, which is why I provided his twitter handle. He is a good follow.
competely agree. Well written
Such clarity deserves attention by “we the people” and members of governance. Thank you, Professor!
There seems to be a fear among government officials and reputable commentators with prestigious platforms of using the law to stop trump. I've seen all kinds of arguments, mostly political, against indicting him, trying him in court, and jailing him despite the overwhelming evidence of his crimes. Somehow doing these these things is supposed to be more dangerous to the republic than enforcing the laws he has broken. The arguments always come down to the ballot box as the only locus of a reckoning. Trump forces the question: Are we a nation of laws? That should not be a voting matter.
The New York Times, and in particular MAGA Haberman, is deeply invested in keeping Trump relevant. It is unclear why other than the fact that they would rather cover a horse race than think, but it seems to be their reality. And they are not alone.
One of the biggest problems is the relativistic media as shown by the New York Times. Even PBS seems unable to take a stand on a principle and, instead, seemingly equalize all input. If societal forces can’t sift the wheat from the chaff, then it’s up to each individual to proceed without any guide or standard. We are each of us, then, at the mercy of our temperaments and circumstances. Primed to look for a strongman to make sense of it all, find the ‘right’ direction, and lead all of us. As societal forces then determine who qualifies as a strongman according to the prevailing profit winds, the citizenry is led to slaughter. Of course, there will be no one left from whom to churn profits as the strongman tears down the societal structures supporting the citizenry. This destruction is already seen in the dismantling of the education system and the labor unions and the production sector (manufacturing, farming, etc) while raising the economic and financial sector to become the country’s religion. The golden calf redux.
However, the failure with this religion is already visible. People are actually becoming aware that there is a con going on because they can smell it as they see the difference that is hallowed by this religion in the decreased jobs and goods as well as the concurrent increased prices and profits. At least half of the citizenry are aware. The other half is seeing a discrepancy in what their leaders say from day to day. Independents, for sure. And now conservatives from the Federalist Society. They may finally be seeing that chaos will destroy everything, leaving no one the winner.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
There are no positives with Trump. And unless you were sleeping thru his failed term in the WH, you would know how much damage he did to the country both domestically and in the world.
There are abundant postives with Trump, with people of healthy minds. Unhealthy minds,… we saw what happened with all the rioting for months in 2020 which are on the Democrat Party Platform side of leaning. Biden has done vastly more damage to the USA and the World, with the immigration chaos, the Nordstream terrorism, AND THE ONGOING DEVASTATION IN UKRAINE,…. thanks to the Democrat/Biden/MilitaryIndustrial-Complex.
There are no positives with Trump. He is the greatest threat to our democracy since the rise of the Confederacy. As for Ukraine, that is all on Putin, not Biden. And it will ultimately result in Putin's downfall.
Ukraine is NOT all on Putin. USA meddled in the Ukraine election which ousted Yanukovich. If you don't respect the different neighborhood polarities of the world, shit happens.
The USA is responsible for most of the devastation of the Ukraine/Russia conflict, due to the prolonging of the war and resulting devastation and the blow up of the Nordstream pipeline.
Russia is going to maintain their core regional neighborhood without the USA meddling. (not all Russians agree with that, but enough do). The Donbas region and Crimea are core Russian lands since the late 1700's; valuable real estate.
Compromise is the prudent course of action. Russia gets the eastern oblasts, Ukraine gets the rest,… and both go their own way, in productive peace.
Put down the remote control. Step away from the TV and the computer. Fox, Newsmax, OANN, Breitbart and all the rest of your favorite media sources are lying to you.
Putin is not your friend. Russia deserves no Ukrainian territory, their aggression is a crime against world peace. And, Putin's defeat in Ukraine is inevitable. He will be given a choice of falling out a window or facing a firing squad. And the world will rejoice.
The Kool-Aid is strong with this one. The French axiom, rocked as a baby too close to the wall! Seems to apply. I can't resist the ad hominem attack to someone who's just the unwitting recipient of some major propaganda. If a bunch of Biden supporters ransacked the Capitol had fake electors and tried to get the vice president to singularly decide the election, I would suppose you'd be singing a different tune
I don't support all of what Trump does.
Jan. 6 was wrong. But, it's as though the Democrat forces wanted Jan. 6 to happen,.. even though it was know it would be easily squelched and very short lived,… it was let to happen.
Whereas, rioting for months on the Democrat leaning platform during 2020,…. billions in damage, over 20 deaths…... …… smh
Michael, I don't do Kool-Aid, or the like.
I'm watching you folks go into your Kool-Aid echo chamber.
Sincere valid contrasting perspectives are due on this forum.
And so I engage.
I'm all for contrasting opinions but if you think Trump has any integrity something's wrong with your brain
Indeed, the Baude/Paulsen article is welcomed! After reading it this morning, methinks it gives plenty of heft to Secretaries of State to keep tfg off the ballots. As for the Governator being POTUS, 🥴
Hasta la vista, baby sure sounds like music to my ears when it comes to #TraitorTrump 😊 #TrueLies
I read the law review article the other day after seeing that Judge Luttig had praised it's scholarship. Judge Luttig is a scholar himself and a thoughtful man. He has written and testified that "Jan.6 was a war for America's democracy." There is no doubt about that but the war goes on. Your reflective essay frames the conflict as a choice between the Constitution and Donald Trump. A choice that is a no brainer for your subscribers and I believe a majority of Americans. However, the cult that follows the former president was 70 million strong in 2020 and remains formidable.
The late Isaac Asimov was a shrewd observer of our culture. Long before Donald Trump entered the political scene, Dr. Asimov observed another cult, one he described as a cult of ignorance. His precise words succinctly describe our dilemma: "There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge." That false notion, aided by social media, has infected the nation. The only remedy is for freedom loving people to stick together and soundly defeat Trump and others like him over and over again until they finally get it.
This characteristically thoughtful narrative, nicely citing conservative scholars in support of Prof. Snyder's view, does not address one critical factor bearing on the theme of his narrative, which is that Trump, under Section 3 of the 14th amendment, is ineligible to serve as , and, per force, be slated on a ballot for (on a major party ticket no less), the office of president. This critical factor is how that provision is to be enforced, Mr. Snyder saying only, and correctly, that the voters surely should not decide it, as part of the primary or general election process. The latter being the case, the only enforcement mechanism that comes to mind is a civil action against the G.O.P, Trump, and the instrumentalities of his campaign (there might be other defendants, but we need not get into the weeds here). seeking an injunction, grounded in Section 3 of the 14th amendment, against Trump seeking or the G.O.P, nomination, or the G.O.P slating him for the presidency. For reasons having little or nothing to do with whether Trump in fact engaged in an insurrection against the United States (he rather clearly did, as Mr. Snyder says), the outcome of such a suit is uncertain; Trump could well carry the day. That fact, of itself, would not militate against the suit's filing. What does militiate against such a suit is that, if the electablility of the G. O. P. candidate is the metric for proceeding, respecters of the Constitution, whether progressive or conservative, should want the weakest G.O.P, candidate, who is surely Trump. Informing this consideration is that the other potential G.O.P. candidates for president, while not insurrectionists, present and would seek to carry out political agendas essentially indisinguishable from Trump's; they are all Trumpers. just without the corruption, and venality.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
I rarely, if ever, acknowledge, much less reply to comments, on this site or any other, that come from right wing trollers such as yourself (or left wing trollers for that matter). But I make an exception as to your post, which fits the classic definition of a troll post: one that is inflammatory, insincere, digressive, extraneous, or off-topic (as to the lattr the post is not remotely responsive to mine ), with the intent, among other things, of drawing attention to onself and acting as a bully or a provocateur. I make an exception in part because notwitstanding your pained attempt to distinguish yourself from the Oath Keeper/Proud Boy types (by referring to Trump's flaws and mishaps), your true Trumper views (racist and zenophobic, among other things) shine through, and you should know that.
It's just a bot. Posted the same comment multiple times. Some flaw in the algorithm....
Thank you Ms. Lane for your comment, which. I am sure, accurately identifies the post in question as a bot; your identification for the benefit of the Thinking About cohort generally is appreciated. I note only that the post being a bot makes it more of a troll post, and its creator and purveyer more of a troll or a more dangerous troll, than would be so if the post were a singularly directed post against a single obscurement in a single thread in the Thinking About comment section. If I can figure out a way to bring the bot here to the attention of Substack I will do so, but anyone else reading Ms. Lane+'s comment is encouraged to do so as well..
Robert, I'm not a bot. Accept that there are contrasting sincere perspectives, which are caring perspectives for the goodness of the USA and the entire World.
It's not a bot. The posting multiple times is to address people individually on the particular range of subject matter related to their comment and Tim Snyder's post.
Robert, I like to engage with people on matters I feel strongly about with which there are contrasting perspectives on national and global matters, which relate to this Tim Snyder post. I'm sincere, and I sincerely care for the integrity and goodness of the USA and the World,… the whole environment.
So, your comment is false: it's not insincere, it's not digressive, it's not extraneous, it's not off-topic (it covers aspects of your statement), it's not to draw attention to myself (I'm sharing pertinent perspectives, it's not about me), I'm not being a bully. As for inflammatory and provoking,….. call it that if you like. My purpose is sincere counter perspectives due to my care of the subject-matter, which relates to Tim Snyder's post.
In spite of the importance of Ukraine, I'm glad that we are also focusing on the major issues that the U.S. is facing. If the U.S. descends into tyranny, Ukraine will almost certainly fall (as well as global democracy).
Ukraine gives us much to aspire to, with regard to defending democracy. They have been a good role model for many years, although I think our national ego kept us from noticing. What you say makes a very good argument for why Ukraine needs full, and quick, support to win this war. If Ukraine falls, autocracy will gain huge power, and that doesn't bode well for the US or any other state espousing democratic values.
Ukraine is not democratic itself.
Who rioted for several months, with over 20 deaths, and billions in damage…?,…. who spends massive billions on the Ukraine/Russia conflict?
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
Ukraine should compromise, and let Russia reclaim the eastern oblasts,… and get on with productive peace, rather than the USA funded ongoing devastation.
Integrity and Trump are like Hatfield and McCoy one should never be mentioned in the presence of the other
Who rioted for several months, with over 20 deaths, and billions in damage…?,…. who spends massive billions on the Ukraine/Russia conflict?
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.
Im a longtime time union lawyer, since before Reagan fired the air traffic controllers, after which I almost moved to Paris in despair. How could it get worse than Reagan,I stupidlythought.I’ve worked on many corruption/human rights/election/antiwar matters here and in Central America.I represented the teamster dissidents who won the first rank and file election thx to Giulianis RICO settlement. So I’ve had decades to obsess and be depressed about white union members voting for racist demagogues who always screw them on economic issues. On Prof Snyder’s timely and insightful (as always) email, I’ve thought for many years that to run for office or even vote,one has to pass the citizenship test immigrants take. Hey, if “those people” (please note intended sarcasm) care enough to study and pass, why not the rest of us? Seems like a minimum obligation of citizenship.Read the Constitution for the first time, study the materials and take the test. Like the driving test. Short of ending the filibuster,adding to the SCOTUS,impeaching Thomas and Alito,ending gerrymandering,changing the Senate makeup,getting rid of the electoral college,making sure states get no more from the federal govt then they put in (that means you, Mitch and Manchin), and until we decide the ultimate question of whether there is a different and more perfect union out there(meaning not the current 50 states), it seems like at least a small step toward genuine representative and participatory democracy.
"We talk a good deal about the Constitution, and almost everyone in political life claims to venerate it — but who reads it?" Well, we know that the orange sadist never read it. (Nor has he apparently ever opened a Bible.) I recall Khizr Kahn taking his copy of the Constitution out of his breast pocket, and offering it to trump. As I recall, Khan's offer was not received. I think it's time to cancel my subscription to the NYT.
Thank you for your persistent and scholarly work!! I like that you and other historical scholars are increasingly getting more airtime on national T.V. But your voices need to be heard much more.
Despite Trump's flaws and mishaps, which I don't support, Trump is certainly a better president for the integrity of the USA as a nation, and engaging in the world, than Biden and Obama.
Take Trump for the positives, don't accept the negatives.
The 'insurrection' (i.e. 'one day riot', with soft security practices being applied) was nonsense, and would be, is, and was,... easily rebuked.
Biden's positives aren't sufficient, compared to Trump's positives.