If the 1872 and 1898 statutes are construed to cover all past, present, and future insurrectionists, that interpretation effectively annuls Section Three. Can a mere statue annul a constitutional provision? If not, that confirms those statutes were intended to apply only to past insurrectionists.
It seems clear to me that the 1898 statute is retroactive and does not apply to future disabilities because of the words “...the disability imposed by section three...HERETOFORE INCURRED (emphasis mine) is hereby removed.” The 1872 statute seems clear to me in that it removes disabilities imposed previous to the legislation, but may be open to interpretation. To me, the stumbling block is that Trump has never been charged with insurrection in any of the lawsuits, and so finding it in a section 3 suit may be difficult.
I think that Mr Unikowsky assumes a degree of good faith to the Supreme Court not necessarily present in practice. I do not believe that either Thomas or Alito would reach a decision on any DQ case involving Trump on the true meritsm but rather, on their conviction that Trump be allowed to run.
FWIW I think that the "it wasn't an insurrection" argument is, basically, that incompetent execution of an act is a defence, not merely a mitigation.
I agree with Robert Port; Congress cannot by legislation amend the constitution, i.e., render section 3 of the 14th amendment inapplicable prospectively to every future insurrectionist .
On the question of whether then-President DT “engaged” in insurrection, we have a lot of evidence already in the public sphere that he did: calling the crowd on the specific date congress was to convene; the focus of the conspirators on this date; endorsing and reciting the “stop the steal” slogan; the non-refuted testimony of Cassidy Hutchinson that he wanted his supporters allowed in despite being armed because “they’re not here to hurt me”; the urging his supporters to “fight like hell”; and plenty more. Evidence of which we have hints which might emerge in one of the trials that then-President DT communicated through surrogates (like M. Meadows) with leaders of a planned tack on the defenses of the Capitol to stage and coordinate their actions could be sufficient grounds for deeming him as having “engaged.” Also, his silence and inaction for 3 hours as the attack proceeded was evidence that he neglected taking measures he had a positive constitutional duty to perform, and was providing “aid and comfort” to enemies of the constitution, not to mention his praising them as very special when he finally asked them to stand down. Unless the SCOTUS sought one of the procedural/precedential offramps, they would have to actually address the merits of the “engaged” question, and refer to or generate themselves the factual record of the-Pres DT’s actions described above and determine how they answered the “engaged” question.
Speaking strictly as “Joe Sixpack,” a layman, one “of the people,” I do not want a person who speaks falsehoods to inflame other people to perpetrate damage and violence and, coincidentally or intentionally, interrupt the legitimately established proper function of the currently constructed government for his own personal aggrandizement to ever hold any position of public trust including emptying the trash baskets. This is further aggravated in the instance of such individuals that had the power and capacity to prevent it from propagating.
Despite arguments of past participles without trying to demean finely honed analyses, I reject the notion that the people who framed and advocated the 14th Amendment were devoid of intent to ever permit the catastrophe that was the Civil War from ever recurring.
The evidentiary record amassed by the J6 committee provides a strong prima facie basis for finding DT engaged in disqualifying conduct. Summary judgment principles would require T to controvert it. A fact finder could decide on that record that T was DQd. This would happen at state level and SCOTUS review would be pretty circumscribed.
Tiny nit, but having taught stats before law school I can't seem to let it go by: these events are not independent, so you can't add up their probabilities and subtract from 100% to get the probability you're looking for.
This is a great explanation. I'm wondering - is it reasonably possible that the SC could rule "Section 3 disqualification is only valid if someone has already been convicted of a specific crime" or is that unlikely to happen? Is that part of the 30% where the case is dismissed without considering the merits?
Baude and Paulsen make a pretty good argument for why the text of Section 3 doesn't require a conviction, and how there is historical support as several Confederate soldiers were barred without ever being convicted. But I don't know if that makes it impossible for the court to come to that conclusion. It wouldn't be the most egregious case ever of the court inferring requirements out of nowhere, and the fact that the law has been applied in a certain way over a century ago isn't that much of a barrier to how it must be applied now, as various other 14th amendment cases show.
Please reduce the minimum pledge for yoyr work here on Substack from $8/mo to $5/mo (you supposedly have that option). I like what you write and can go for the latter.
I don't see how the 1898 amnesty resolution, applying by its terms only to Section 3 disabilities "heretofore incurred," could reasonably be construed to cover subsequent violations. If the bad acts hadn't occurred by 1898, no resulting Section 3 disability was "heretofore incurred" by then, either, so the 1898 resolution by its terms would not apply.
The 1872 resolution, which lacked that qualifying language, strikes me as far more problematic. All that offers is a "past" participle, which as of you noted is often used to connote things other than the past.
Well first of all, Section 3 has been totally ineffective in history. The Senate historical website states that after the Civil War more than 60 Confederate war veterans served in the Senate (aided in large part by legislation described in the Post.) And think about our old friend, Alexander Stephens, the esteemed VP of the Confederacy, the Spiro Agnew of his day. After the War Stephens was elected to the Senate, which refused to seat him, but was then elected to the house where he served a number of terms.
[Stephens was a great man, here is what he said about race.
“With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system.”
Who wouldn’t want a man like that in the national legislature? ]
And say what you will about Donald Trump, we are pretty certain that he did not lead the charge up Cemetery Ridge at Gettysburg.
The Constitution is part statute (the six year term for Senators for example), part principles of government (no cruel or unusual punishment). As for Section 3 itself, it is neither statute nor principle. Insurrection is undefined, and there is no enforcement mechanism. The answer to who has standing in a Section 3 judicial case, maybe nobody.
In fact the conclusion one must reach is that if a Section 3 case were to reach the Supreme Court, the only logical ruling/decision would be for the Court to unanimously declare, on the basis that the language is vague and largely meaningless and the Section unenforceable, that Section 3 is Unconstitutional.
Note: Please no snide comments people about the Constitution be Unconstitutional. I am just trying to make a point here with the good old reductio ad absurdum and some cynicism, sarcasm and a general lack of respect, not for Mr. Unikowsky who has all of our admiration, respect and appreciation for this Forum but for the people who did not give us a workable Section 3.
I don't understand how you find the claim that Trump engaged in an insurrection so plausible. As an English word (not a legal term of art) we understand an insurrection to be something like an attempt to supplant the authority of the government for an extended period by means of violent or threatened violent resistance (don't want the Portland no police zone to count). Merely attempting to do something illegal doesn't count.
Even if the purpose of the Jan 6th riots was to use violence to prevent the congress from approving the count and thereby undermine the constitution/vote, it still feels like a violent crime occuring as part of a conspiracy to steal the election. No one thinks the plan was ever to hold the capital by force against the US military or to literally force congress to vote at gunpoint.
I mean, if the Jan 6th riots count I don't see how you can draw the line that doesn't disqualify a civil rights protestor clashing with police to stop some unfair but technically legal election related activity.
I may be naive saying this, but doesn’t innocent until proven guilty apply here. To date President Trump has not been convicted of insurrection, therefore he is still eligible to run for office.
Thanks for the analysis. To me, the main problem seems to be what insurrection actually IS. That wasn't a real question when the 14th was passed. It is easy to argue that it must be something different from destroying property in the capitol, since that is a DIFFERENT grounds for applying the seditious conspiracy statute from insurrection. To that extent, congress has "thought about" the words. One could also argue that it is what the total picture of the whole 1/6 riot and the fake electors scheme adds up to. But what happened in this second scenario wouldn't strike most people as insurrection at all, if it had proceeded without the actual riot. And it was that scheme that trump seems clearly to have been what we think of as "engaged in."
Much as I would like to see trump barred, my fear is of the potential for HOW the Extremes will come up with a "multi-factor test" that will not clarify the idea but simply narrow it to something not useful in the future. Perhaps they will require a formal declaration; perhaps they will require that the person charged actually have carted a weapon to use at the site of the disturbance. (An originalist might conclude that bayonets need to be involved). They could define this term, for 14th Amendment use, to be useless when some future trump clone actually engages in or abets personally in some uprising to leaving a him free of the 14th Amendment strictures.
They could narrow the definition themselves or simply affirm a circuit court like the 5th Circuit who comes up with the narrow definition itself.
If the 1872 and 1898 statutes are construed to cover all past, present, and future insurrectionists, that interpretation effectively annuls Section Three. Can a mere statue annul a constitutional provision? If not, that confirms those statutes were intended to apply only to past insurrectionists.
It seems clear to me that the 1898 statute is retroactive and does not apply to future disabilities because of the words “...the disability imposed by section three...HERETOFORE INCURRED (emphasis mine) is hereby removed.” The 1872 statute seems clear to me in that it removes disabilities imposed previous to the legislation, but may be open to interpretation. To me, the stumbling block is that Trump has never been charged with insurrection in any of the lawsuits, and so finding it in a section 3 suit may be difficult.
I think that Mr Unikowsky assumes a degree of good faith to the Supreme Court not necessarily present in practice. I do not believe that either Thomas or Alito would reach a decision on any DQ case involving Trump on the true meritsm but rather, on their conviction that Trump be allowed to run.
FWIW I think that the "it wasn't an insurrection" argument is, basically, that incompetent execution of an act is a defence, not merely a mitigation.
I agree with Robert Port; Congress cannot by legislation amend the constitution, i.e., render section 3 of the 14th amendment inapplicable prospectively to every future insurrectionist .
On the question of whether then-President DT “engaged” in insurrection, we have a lot of evidence already in the public sphere that he did: calling the crowd on the specific date congress was to convene; the focus of the conspirators on this date; endorsing and reciting the “stop the steal” slogan; the non-refuted testimony of Cassidy Hutchinson that he wanted his supporters allowed in despite being armed because “they’re not here to hurt me”; the urging his supporters to “fight like hell”; and plenty more. Evidence of which we have hints which might emerge in one of the trials that then-President DT communicated through surrogates (like M. Meadows) with leaders of a planned tack on the defenses of the Capitol to stage and coordinate their actions could be sufficient grounds for deeming him as having “engaged.” Also, his silence and inaction for 3 hours as the attack proceeded was evidence that he neglected taking measures he had a positive constitutional duty to perform, and was providing “aid and comfort” to enemies of the constitution, not to mention his praising them as very special when he finally asked them to stand down. Unless the SCOTUS sought one of the procedural/precedential offramps, they would have to actually address the merits of the “engaged” question, and refer to or generate themselves the factual record of the-Pres DT’s actions described above and determine how they answered the “engaged” question.
Speaking strictly as “Joe Sixpack,” a layman, one “of the people,” I do not want a person who speaks falsehoods to inflame other people to perpetrate damage and violence and, coincidentally or intentionally, interrupt the legitimately established proper function of the currently constructed government for his own personal aggrandizement to ever hold any position of public trust including emptying the trash baskets. This is further aggravated in the instance of such individuals that had the power and capacity to prevent it from propagating.
Despite arguments of past participles without trying to demean finely honed analyses, I reject the notion that the people who framed and advocated the 14th Amendment were devoid of intent to ever permit the catastrophe that was the Civil War from ever recurring.
The evidentiary record amassed by the J6 committee provides a strong prima facie basis for finding DT engaged in disqualifying conduct. Summary judgment principles would require T to controvert it. A fact finder could decide on that record that T was DQd. This would happen at state level and SCOTUS review would be pretty circumscribed.
Tiny nit, but having taught stats before law school I can't seem to let it go by: these events are not independent, so you can't add up their probabilities and subtract from 100% to get the probability you're looking for.
This is a great explanation. I'm wondering - is it reasonably possible that the SC could rule "Section 3 disqualification is only valid if someone has already been convicted of a specific crime" or is that unlikely to happen? Is that part of the 30% where the case is dismissed without considering the merits?
Baude and Paulsen make a pretty good argument for why the text of Section 3 doesn't require a conviction, and how there is historical support as several Confederate soldiers were barred without ever being convicted. But I don't know if that makes it impossible for the court to come to that conclusion. It wouldn't be the most egregious case ever of the court inferring requirements out of nowhere, and the fact that the law has been applied in a certain way over a century ago isn't that much of a barrier to how it must be applied now, as various other 14th amendment cases show.
Thank you for making a very detailed analysis digestible by average folks.
Please reduce the minimum pledge for yoyr work here on Substack from $8/mo to $5/mo (you supposedly have that option). I like what you write and can go for the latter.
I don't see how the 1898 amnesty resolution, applying by its terms only to Section 3 disabilities "heretofore incurred," could reasonably be construed to cover subsequent violations. If the bad acts hadn't occurred by 1898, no resulting Section 3 disability was "heretofore incurred" by then, either, so the 1898 resolution by its terms would not apply.
The 1872 resolution, which lacked that qualifying language, strikes me as far more problematic. All that offers is a "past" participle, which as of you noted is often used to connote things other than the past.
Well first of all, Section 3 has been totally ineffective in history. The Senate historical website states that after the Civil War more than 60 Confederate war veterans served in the Senate (aided in large part by legislation described in the Post.) And think about our old friend, Alexander Stephens, the esteemed VP of the Confederacy, the Spiro Agnew of his day. After the War Stephens was elected to the Senate, which refused to seat him, but was then elected to the house where he served a number of terms.
[Stephens was a great man, here is what he said about race.
“With us, all of the white race, however high or low, rich or poor, are equal in the eye of the law. Not so with the negro. Subordination is his place. He, by nature, or by the curse against Canaan, is fitted for that condition which he occupies in our system.”
Who wouldn’t want a man like that in the national legislature? ]
And say what you will about Donald Trump, we are pretty certain that he did not lead the charge up Cemetery Ridge at Gettysburg.
The Constitution is part statute (the six year term for Senators for example), part principles of government (no cruel or unusual punishment). As for Section 3 itself, it is neither statute nor principle. Insurrection is undefined, and there is no enforcement mechanism. The answer to who has standing in a Section 3 judicial case, maybe nobody.
In fact the conclusion one must reach is that if a Section 3 case were to reach the Supreme Court, the only logical ruling/decision would be for the Court to unanimously declare, on the basis that the language is vague and largely meaningless and the Section unenforceable, that Section 3 is Unconstitutional.
Note: Please no snide comments people about the Constitution be Unconstitutional. I am just trying to make a point here with the good old reductio ad absurdum and some cynicism, sarcasm and a general lack of respect, not for Mr. Unikowsky who has all of our admiration, respect and appreciation for this Forum but for the people who did not give us a workable Section 3.
I don't understand how you find the claim that Trump engaged in an insurrection so plausible. As an English word (not a legal term of art) we understand an insurrection to be something like an attempt to supplant the authority of the government for an extended period by means of violent or threatened violent resistance (don't want the Portland no police zone to count). Merely attempting to do something illegal doesn't count.
Even if the purpose of the Jan 6th riots was to use violence to prevent the congress from approving the count and thereby undermine the constitution/vote, it still feels like a violent crime occuring as part of a conspiracy to steal the election. No one thinks the plan was ever to hold the capital by force against the US military or to literally force congress to vote at gunpoint.
I mean, if the Jan 6th riots count I don't see how you can draw the line that doesn't disqualify a civil rights protestor clashing with police to stop some unfair but technically legal election related activity.
I may be naive saying this, but doesn’t innocent until proven guilty apply here. To date President Trump has not been convicted of insurrection, therefore he is still eligible to run for office.
Thanks for the analysis. To me, the main problem seems to be what insurrection actually IS. That wasn't a real question when the 14th was passed. It is easy to argue that it must be something different from destroying property in the capitol, since that is a DIFFERENT grounds for applying the seditious conspiracy statute from insurrection. To that extent, congress has "thought about" the words. One could also argue that it is what the total picture of the whole 1/6 riot and the fake electors scheme adds up to. But what happened in this second scenario wouldn't strike most people as insurrection at all, if it had proceeded without the actual riot. And it was that scheme that trump seems clearly to have been what we think of as "engaged in."
Much as I would like to see trump barred, my fear is of the potential for HOW the Extremes will come up with a "multi-factor test" that will not clarify the idea but simply narrow it to something not useful in the future. Perhaps they will require a formal declaration; perhaps they will require that the person charged actually have carted a weapon to use at the site of the disturbance. (An originalist might conclude that bayonets need to be involved). They could define this term, for 14th Amendment use, to be useless when some future trump clone actually engages in or abets personally in some uprising to leaving a him free of the 14th Amendment strictures.
They could narrow the definition themselves or simply affirm a circuit court like the 5th Circuit who comes up with the narrow definition itself.