Volokh conspiracy lawyer scrgruppen
My initial view that Trump is covered by Section 3 of the Fourteenth Amendment was formed because I believed then, and still believe now, that the events of January 6, 2021 amounted to an “insurrection.” Daniel Webster’s first edition of the Dictionary of the American English, published in 1828, which would have been authoritative to the framers of the Fourteenth Amendment, defines “rebellion” as follows:
“insurgency, name [Latin insurgo; in and surgo, to rise.]
- An uprising against civil or political authority; The open and active opposition of a number of persons to the implementation of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less widespread uprising of citizens. It differs from rebellion, because the latter expresses rebellion, or an attempt to overthrow the government, establish another government, or place the country under another jurisdiction. It differs from rebellion because it respects civil or political government; While mutiny is open opposition to the law in the army or navy.insurgency Yet it is used with such scope to understand strife or rebellion.
It turns out that this ancient city was made insurgency Against kings, rebellion and strife occurred there. Ezra 4:19.
- Rise in mass to confront the enemy. [Little Used.]”
I take this to mean that an “uprising” is more than a “riot,” “sedition,” or “rebellion,” but less than a “rebellion.” Specifically, I believe that an “insurrection” is a “riot” for the purpose of changing the outcome of an “important political decision or event.” So I tend to think that what happened on January 6, 2001 was technically an “insurrection.”
I also believe that Donald Trump offered “aid or comfort” to enemies of the Constitution that day because he watched the whole thing unfold, along with cries of “Hang Mike Pence,” on national television and it never happened, despite his duty to take action. . Eager to faithfully enforce the laws, he sent out a tweet calling on the rioters to stop the violence and did not call in the National Guard, which he should have done.
I changed my mind and concluded that Trump had a right to be on the ballot once former Attorney General Michael Mukasey pointed out in an excellent op-ed in Wall Street Journal That Section 3 merely disqualifies those who break the oath from being a “Senator or Representative in Congress or.” [an] Elector of President and Vice President or [a holder of] any office, civil or military, under the United States” or “a member of any legislature of any State [or] executive or judicial officer of any State.” Those who break the oath are not barred from running for the office of President or even serving as President, so long as the presidential electors who elect the President do not break the oath. Nor do I believe that the President is a person who is an “employee of the United States” because the Committees Clause It states that “[ThePresidentshall”iemust”commissionalltheOfficersoftheUnitedStates”andthereisnopracticeeitherbeforeoraftertheadoptionoftheFourteenthAmendmentofPresidentscommissioning]Indeedthewholeideaofthatisabsurd[يجبعلىالرئيس”أييجبأن”يكلفجميعضباطالولاياتالمتحدة”،ولاتوجدممارسة،سواءقبلأوبعداعتمادالتعديلالرابععشرمنإنالرؤساءيقومونبتكليفأنفسهموالواقعأنفكرةذلكبرمتهاسخيفة[ThePresidentshall”iemust”commissionalltheOfficersoftheUnitedStates”andthereisnopracticeeitherbeforeoraftertheadoptionoftheFourteenthAmendmentofPresidentscommissioningthemselves Indeedthewholeideaofthatisabsurd
For all these reasons, I conclude that Section 3 of the Fourteenth Amendment does not require or permit Trump’s removal from any presidential primary or general election.
Two days ago, my friend Curt Lash sent me a wonderful draft of a law review article, which proves beyond a reasonable doubt that the framers of Section 3 originally broke the presidential oath in enumerating persons ineligible to hold office, But this language was intentionally omitted from the final draft of Section 3 to appease conservatives and on the assumption that excluding those who break the presidential oath from being “electors for president and vice president” was sufficient protection against “recalcitrant presidents.” The link to Kurt Lasch’s excellent draft law review article is here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591838
Donald Trump would do well to be very careful in choosing which presidential electors will vote for him if he wins the state in 2024. Trump presidential electors who participated in the January 6, 2001 insurrection are barred from being on the ballot, and their votes should not be taken away. It will not be counted.
Throughout this discussion I have tried to be law-abiding and strict about the text. I will add that, out of caution, keeping Trump off the ballot, and enraging his fanatical supporters, would be much worse for American democracy, anyway, than another term would be for Joe Biden as Michael McConnell pointed out in a post on this blog. In response to my initial post.
