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January 6 Is Exactly What the Fourteenth Amendment Was Talking About | And ignoring its clear dictate is a dangerous choice to make.

As the Colorado Supreme Court wrote, January 6 meets the bar for insurrection “under any viable definition” of the term. The legal scholar Mark Graber, who has closely studied the Fourteenth Amendment’s history, argues that “insurrection” should be understood broadly—an act of organized resistance to government authority motivated by a “public purpose.” That certainly describes the Capitol riot, in which a violent mob attacked law enforcement and threatened members of Congress and the vice president in order to block the rightful counting of the electoral vote and illegally secure the victory of the losing candidate. The historical record also suggests that the amendment’s requirement that a prospective officeholder must have “engaged in insurrection” should also be understood broadly—meaning that Trump’s speech on the Ellipse that morning and his encouragement of the rioters while they smashed their way through the Capitol more than fit the bill.

57 comments

  • As much as I wish it weren't the case, I do think that as a matter of following the rule of law, Trump has a very strong case here.

    Did he engage in insurrection? Obviously, yes. But "obviously" isn't how courts work. Courts have a process to follow, including a decision of whether guilt is found or not by the triers of fact. That hasn't happened here.

    The Supreme Court is not a trier of fact—only the lower courts can do that. There are so many different cases against Trump currently I don't actually remember what they are about, but I presume there's at least one ongoing where, if he is actually found guilty, it would be very, very reasonable to, as a matter of law, conclude that the 14th applies. But until that happens, a trier of law would be very reasonable in finding that a decision by a member of the political executive to simply declare Trump is an insurrectionist is invalid.

    There is (or may be) a counter-argument to this. My understanding is that the 14th amendment was created specifically to keep Confederates out of office, after the Civil War. And as far as I'm aware (not having ever studied any American history—going purely on cultural osmosis), they were not tried and found guilty either. So there is precedent for declaring someone an insurrectionist as far as the 14th is concerned without triers of fact in a court making that decision.

    Disclaimer: I'm not a lawyer. I'm not even an American. I just have an amateur interest in common law legal systems.

    • As a matter of technicality, you are both legally and historically illiterate. Based on this argument a trial court would have to rule on whether every single presidential candidate was over the age of 35, and a natural born citizen in order to qualify for office. That is OBVIOUSLY not the case as those provisions are self-executing. It is also obvious that based on the plain language of the constitution that the 14th Ammendment is self-executing as well. It is another LEGALLY STIPULATED PRECONDITION OF ELIGIBILITY FOR OFFICE.

      However, many members of the current Supreme Court have made it clear that they consider both law and precedent to be entirely permeable, despite their strongly worded assertions to the contrary. So because of that, I also expect them to put forth some novel legal theory as to why they must go against their own publicly stated legal philosophies to allow Trump to stay on the ballot, history and precedent be damned.

      • It is also obvious that based on the plane language of the constitution that the 14th Ammendment is self-executing as well. It is another LEGALLY STIPULATED PRECONDITION OF ELIGIBILITY FOR OFFICE.

        This is an extremely critical part of the constitution. Venezuela disentegrated into shit precisely because they did not have this requirement. Hugo Chavez led a failed coup in 1992. And then was allowed to run for president in 1998 despite his clear disloyalty to democracy. After becoming president, he turned a long stable democracy into total shit and it remains so today.

      • It is also obvious that based on the plane language of the constitution that the 14th Ammendment is self-executing as well.

        How did you come with that? No part of the 14th Amendment has EVER been "self executing". There's been an almost uncountable number of court cases involving the 14th Amendment, including many of the most famous ones. I see no reason why Section 3 is somehow different than any of the others.

        In the most famous use of Section 3 there WAS a conviction on a charges of espionage before a sanction was applied.

        The argument you are making is currently popular, because fuck Trump, but there is no historical basis for it and at least one example against it.

      • I just want to add, sincerely, thank you for (mostly —your first sentence was entirely unnecessary) engaging with this in a serious and respectful manner. The other replies I received are the sort I might have expected on Reddit, but I've usually come to expect better on here (tankies defending Putin excluded). Just low effort, bad faith nonsense that either through deliberate malice or sheer stupidity, refuse to engage with the actual arguments I was making.

        Yours was much better than that, so thank you.

      • Based on this argument a trial court would have to rule on whether every single presidential candidate was over the age of 35

        Umm, no? It might have to rule if someone under 35 got themselves nominated and was about to be put on the ballots, but even that would probably not be necessary because someone's age—assuming there isn't a debate around what their birthday is—would be a notorious fact.

        It wouldn't need to go to a trial court because there are no facts under dispute.

        You don't need to get me started on the Supreme Court. America's court system has been fundamentally broken for decades. They have a long history of legislating from the bench and making rulings that—whether you agree with them morally or not—obviously do not follow from the text of the law they claim to interpret. All the 2nd amendment interpretations are probably the worst in terms of actual impact. This not helped by America's uniquely inept legislature, with both the worst election system in the democratic world, and the least-functional procedures for operating once people have been elected, which has made it so easy for the SCOTUS to get away with so much legislation. (And SCOTUS has, in turn, provided the legislature with excuses for not legislating things that should be legislated—like abortion rights.)

        It is also obvious that based on the plane language of the constitution that the 14th Ammendment is self-executing as well

        I don't think it's obvious at all. It's not an unreasonable argument to make, and if you go back to my original comment you'll see that I specifically made allowance for the historical precedent of it being used in this way. Indeed, as far as what outcome would have the best impact on your country, I think this would be great. Anything to keep Trump away from a second presidency.

        My point was that it's very much not obvious, and that coming down on the side of not having politicians decide—rather than a jury, or a bench trial—seems more in keeping with the principle of rule of law.

    • My understanding is that the 14th amendment was created specifically to keep Confederates out of office, after the Civil War.

      That is not true. It applies to people that swore an oath to protect the Constitution. Some dirt farmer from Georgia didn't swear shit.

    • You're incorrect. This isn't ancient history. We have contemporary accounts of the Congressional debates regarding the 14th Amendment:

      "This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

      It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

      "Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

      Maine's Lot Morrill jumped in to clarify.

      "Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

      https://abcnews.go.com/Politics/framers-14th-amendments-disqualification-clause-analysis/story?id=105996364

      EDIT: Looks like @syllogi is a fan of the trash trying to ruin our country.

      • It looks like you think I agree with the District Court's decision. I don't. In fact I've explicitly said I don't in another comment in this thread already.

        The notion that the president would not be an officer of the US is a complete farce. It also has nothing to do with the reason I think rule of law would involve not disqualifying Trump until after he is found guilty in his DoJ or Fulton County case, or possibly one of the other ones. Because that would be the finding that tells you, as a matter of law, he aided an insurrection.

      • Love the quality, cogent rebuttal. Excellent quality.

        Glad to see you also don't know what a gish gallop is. That's fun.

        Here's an answer for you. It's when someone presents a large number of bad arguments which take little effort to present but a relatively long time to rebut. I didn't do anything remotely like that. I presented precisely one argument, explained in great detail.

      • As for "aid and comfort", it's the same thing? He's obviously guilty as fuck. The problem is that under rule of law, it has to be a court that decides that officially, and not a politician.

    • Where in the 14th amendment does it require a separate trial? Nowhere. And, regarding Colorado since I'm more familiar with the situation here, in what way is the process of our legal system evaluating evidence and hearing arguments and rendering a ruling on whether the 14th applies and whether or not Trump took part in insurrection somehow insufficient to meet due process?

      Because the original court case did just that. Heard the expert testimony, consulted historical law, and decided two things: did Trump participate in insurrection as the term was intended by the 14th (ruling: Yes) and does the 14th apply in this situation of removing Trump from the ballot (ruling: No). The CO Supreme Court then agreed with the first ruling and overruled the second (e.g. Yes it applies).

      A criminal trial isn't necessary to determine this eligibility because this isn't about crime and punishment. It is about eligibility to be elected president.

      Also not a lawyer.

      • the original court case did just that. Heard the expert testimony, consulted historical law, and decided two things: did Trump participate in insurrection as the term was intended by the 14th

        Ok that is a very important detail of which I was not aware. I had heard that the District Court decided he could stay on the ballot because it thought the President was not an officer (which as a matter of law is just a ridiculous conclusion). I didn't hear that he actually had decided it was insurrection first.

    • So there is precedent for declaring someone an insurrectionist as far as the 14th is concerned without triers of fact in a court making that decision.

      Not only is there precedent, there's very recent, very relevant precedent. In 2022, a New Mexico county commissioner was removed from office because of his participation in the events of January 6th.

    • Article 3 of the 14th is arguably self-executing meaning that it doesn't require a trial, but only a simple finding of fact. This is because it was intended to bar all former Confederate officers from holding federal office, and it would have been impossible to hold trials and get convictions for all of them.

      That's the historical reading in any case, and it puts the SCOTUS's originalists --Alito, Thomas, Gorsuch-- in quite the bind since they're either going to have to find a way to argue that it wasn't intended to be self-executing, which is pretty absurd on its face, or that it doesn't apply to the presidency, which is also absurd.

      That said, they almost certainly will find a way out of it for Trump, but I'm no expert and don't have an educated opinion on how they'll do it.

    • The Colorado lower court ruled as a matter of fact he did engage in insurrection.

      The lower court punted the decison on if the 14th included the office of the president, which the Colorado Supreme Court ruled it did

      From what you're saying the SC would need to accept that fact, and they are only ruling on if the 14th includes the presidency

      • From what you’re saying the SC would need to accept that fact

        Indeed, pretty much, it would.

        Unfortunately, SCOTUS hasn't exactly got the best record when it comes to staying in its lane.

        Though, while I'm on the subject, Australia's High Court is much, much better than SCOTUS when it comes to the quality of jurisprudence, but it's still far from perfect. We had a highly notable case recently where they decided, in essence, "the jury was unreasonable" and overruled both the trial court and the appellate court not on a matter of law, but purely because they disagreed with the jury. So it's not an entirely uniquely American problem.

    • Your whole argument is based in the court of public opinion. Trials are not held in the court of public opinion. That's called politics.

57 comments