Prominent conservative legal scholars are increasingly raising a constitutional argument that 2024 Republican candidate Donald Trump should be barred from the presidency because of his actions to overturn the previous presidential election result.
Legal scholars increasingly raise constitutional argument that Trump should be barred from presidency
3 years ago by MicroWave to c/politics
grizzledgrizzly 51 points 3 years ago
everyone knows scholars lead to education and education leads to a “woke” populace that doesn’t put up with this bullshit. gotta keep everyone dumb as bricks …
reverendsteveii 39 points 3 years ago
If only conservatives listened to scholars
Then they wouldn't be conservatives. Academia and reality are famous for having left wing bias.
HeyThisIsntTheYMCA 4 points 3 years ago
But but originalism
SlopppyEngineer 11 points 3 years ago
"If you're ignoring the constitution, it also means others see the second amendment as null and void."
Maybe that gets their attention.
agressivelyPassive 10 points 3 years ago
No, you see, for conservatives, laws are only valid insofar they support them. Laws are for the outgroup.
ikapoz 10 points 3 years ago
Lol. They absolutely do listen to scholars, and just like any other political group, they act on what they say when it’s convenient.
Federalist society is covering its bets here - putting up sone legal footholds for old establishment conservatism to use if they become handy - while doing so in such a way they don’t put themselves on the outs too unforgivably if Trump and his ilk weasel this way through this mess like they have so many times before.
Adderbox76 104 points 3 years ago
It's absolutely insane that it's even up for fucking debate.
rog -35 points 3 years ago
Is it though? Im not from the US so dont really have a dog in the fight, but hear me out.
On what basis should he not be allowed? Because he's been indicted? Or because he was impeached? Both? Whatever the reason he would be barred would set a precedent.
Are there proper checks in place to ensure that the precedent set in place cant be met by simply stacking certain departments by a sitting president? The last thing you want is a pathway for a sitting president to effectively disqualify their opponent.
Clearly Trump is a monumental dickhead, but the problem is the people who vote for him more than anything
p1mrx 58 points 3 years ago
On what basis should he not be allowed?
Well, this is what the US constitution says:
Amendment XIV, Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The question is whether those words apply to his actions, and who exactly has the responsibility to interpret them.
p1mrx 11 points 3 years ago
So your interpretation of the 14th amendment is that "shall have engaged in insurrection or rebellion" is the exclusive responsibility of the judicial system to determine? Maybe that's a valid interpretation, but it's not actually written in the text.
pinkdrunkenelephants 4 points 3 years ago path: 0 2590645 2591152 2591867 2592999, hotness: undefined, score: 4, children: 3
afraid_of_zombies 43 points 3 years ago
The US constitution bans anyone who leads an insurrection against the government from holding public office.
zik 0 points 3 years ago
He doesn't have to be found guilty of insurrection at trial for the clause to take effect - the bar is lower than that. All that's necessary is that he be accepted by the court as having been somewhat involved either directly or indirectly.
Adderbox76 12 points 3 years ago
Well both, of course.
What I think is insane is that the question of whether an impeached president can run again hadn't been settled years ago. It's just obvious. It shouldn't be precedent setting. it's something that should have been settled a long time ago.
lagomorphlecture 9 points 3 years ago
On what basis? Because he committed a coup isn't good enough?
bric 9 points 3 years ago
Innocent until proven guilty still matters though, even when it seems like the justice system moves at a snail's pace. His actions are coming down on him, and I think he'll be behind bars before the election, but until then there's no legal basis to block him from anything
agressivelyPassive 7 points 3 years ago
It's (legally) not decided whether he actually did.
He's unfortunately smart enough to not simply say "let's storm congress by force". His messaging was vague enough that a trump-leaning judge could make an argument that he never intended this to happen. And letting things spiral out of control is not enough for an insurrection.
pinkdrunkenelephants 4 points 3 years ago path: 0 2590645 2591152 2592851 2593015, hotness: undefined, score: 4, children: 0
totallynotarobot 2 points 3 years ago
*attempted
Cryophilia 5 points 3 years ago
Simmer down dude, he's just not ignorant, not evil.
Intralexical 3 points 3 years ago
Ah, but you're missing an important distinction. He committed treasonous acts with plausible deniability! And he'll always be able to come up with new lies and new ways to abuse you faster than you'll be able to disprove his lies or protect yourself, so you may as well restore the monarchy already and put him on top.
EDIT: On a serious note, the comment you replied to is absolutely correct in the point they were making. If Trump is barred from the Oval Office, and the evidence and the way the evidence are presented are anything less than rock solid, then future presidents will absolutely weaponize it as precedent to lock out their political opponents (as happens in every other broken democracy).
Bigmodirty 79 points 3 years ago
“No shit” - the rest of the sane world.
macrocephalic 0 points 3 years ago
Where is the sane world at the moment?
Odd_so_Star_so_Odd 1 point 3 years ago
They moved on from experimental democracy with FPTP to better forms of representation that isn't so easily manipulated by the rich.
Intralexical 1 point 3 years ago
"The sane world" is, to be fair, a pretty exclusive club.
Maps with pretty colours and lists:
https://en.wikipedia.org/... ²
https://en.wikipedia.org/...
https://en.wikipedia.org/wiki/Gini_coefficient
Cross-reference with the maps and lists for proportional representation:
https://en.wikipedia.org/...
Many of the European states, which tend to use proportional representation, are doing quite well.
According to an aside on Wikipedia, technically most countries never used FPTP in the first place, rather than having "moved on" from it. "Its use extended to British colonies […] mostly in the English-speaking world". Of those, however, some have indeed "abandoned it in favour of other electoral systems".
Proportional representation has been tried and tested since at least "its first national use in Denmark in 1855".¹
A major black mark on its history might arguably be the fact that it contributed to the instability of the Weimar Republic by creating too many parties competing for power— Though, that was only a problem because of the generally disastrous state of inter-war Germany (reparations, debts, loss of industrial zones, restrictions on their military, Treaty of Versailles, fall of the Empire, etc.).
In general, proportional representation has worked out pretty well for the countries that use it, though. It doesn't magically fix everything, but the US's two parties currently clearly aren't working.
¹ (Side note: Danish civil history is really cool! Used to be Vikings, lost their imperial ambitions and mellowed out, democratized willingly, saved nearly all their Jewish people and even sorted preserved their democracy through WWII, then went fully Nordic model, and now have neat randomly sampled citizen's assemblies that are probably how democracy really should be done.)
² (The US had been hovering barely above the threshold between "Full Democracy" and "Flawed Democracy" for years, based on the EIU's ranking criteria. It finally crossed the threshold in 2016, and has been falling alarmingly quickly ever since.)
PetDinosaurs 50 points 3 years ago
Sure, but we shouldn't need a legal argument.
We only need a reasonable electorate.
flossdaily 32 points 3 years ago
We shouldn't need a legal argument, but we do.
And we certainly do not have a reasonable electorate.
morphballganon 10 points 3 years ago
We have a reasonable electorate
Let's not get ahead of ourselves here. Trump got something like 74,000,000 votes.
morphballganon 0 points 3 years ago
There are millions of people too lazy/apathetic/inept to vote
Eufalconimorph -2 points 3 years ago
Those who don't vote are essentially choosing to vote for whoever wins. Those ≈120,000,000 people also effectively voted for Trump.
eran_morad 1 point 3 years ago path: 0 2586194 2607776, hotness: undefined, score: 1, children: 0
TwoGems 39 points 3 years ago
So should all of these. We can't just punish Trump but let the rest go.
the_post_of_tom_joad 36 points 3 years ago path: 0 2611125, hotness: undefined, score: 36, children: 0
oohgodyeah 34 points 3 years ago
I found the original Atlantic article better written: https://www.theatlantic.com/...
Fourteenth Amendment, Section 3 Disqualification from Holding Office:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Skyhighatrist 8 points 3 years ago
If you want that block quote to format correctly, don't indent the >. That way it will turn out like this, instead of a single line that can't fit on the screen without scrolling (some mobile clients like Sync, probably show it alright, but the web client certainly doesn't.):
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
oohgodyeah 2 points 3 years ago
Whoops, the indentation was copied over from the source. Corrected, thanks.
FarceMultiplier 9 points 3 years ago
The amendment doesn't require conviction, just engagement.
mwguy 1 point 3 years ago
A conviction is the only way to prove engagement legally. Like you can pass a law that says sex offender can't do X. But you can't enforce it upon someone whose not on the sex offender list.
UristMcHolland 6 points 3 years ago
And since we have had 4 years of COVID festering in the south, I would imagine in 2024 he'll get maybe 20%
Cryophilia 11 points 3 years ago
Covid also did a number on Black and Hispanic service workers who were called essential and forced to go to work but not paid hazard pay.
Still a bit salty about that. To put it mildly.
rbhfd 3 points 3 years ago
Covid has been devastating and has likely affected more R voters, but I don't think it will be enough to cause an electoral shift.
Red states have had a lower life is expectancy for years. Covid just added to that effect, but I don't think it's that much worse than any of the other confounding effects (like lower access to affordable health care or healthy food). On the contrary, it's probably much less than that.
scottywh 2 points 3 years ago
Exactly... Saying.that it's 49‰ vastly overestimates their position.
Comments like that help them solidify their beliefs that they could even have a majority... "Silent majority" my ass.... They need to shut their loud fuckin mouths for a change actually
Cobrachickenwing 1 point 3 years ago
They had two chances and didn't do it. Those same scholars still voted for the same candidates in the primary.
afraid_of_zombies 2 points 3 years ago
Would they? No really I am asking. Couldn't they just say this doesn't count and not define what would.
pinkdrunkenelephants -1 points 3 years ago path: 0 2586820 2589154 2593159, hotness: undefined, score: -1, children: 0
jordanlund 13 points 3 years ago
I think the trick is going to be, based on the other guy who got disqualified for 1/6, is that someone actually has to challenge the nomination. It's not something that happens automatically.
"The decision came in a lawsuit brought by a group of New Mexico residents represented by the government accountability group Citizens for Responsibility and Ethics in Washington (CREW) and other lawyers."
nucleative 12 points 3 years ago
It's a good thing that it is very difficult to stop somebody from running for office.
The act of running for office, or more accurately the act of the people to chose whom represents them, should not be easy to take away.
In banana republics the new guy or the guy with the most power at the moment regularly uses tactics to stop their opponents in the courts. Sometimes the charges are legitimate, but sometimes they are totally fabricated.
Take for example the case of Pita, 42 years old, the leader of the move forward party in Thailand. His party swept the recent election and by many accounts average Thai people see his ideas as the most welcome path forward. Yet the old guys and their friends, who were part of the coup 6-7 years ago, are still in power. They have been able to completely shut Pita's party down in the courts, and despite the people having made a choice by voting, they, will not get the government they wanted.
If there was another political party in the USA that was more successful than Trump's at breaking the laws, and the American courts were to set a precedent that some opponents can't run for office given legal charges, I'm afraid the risk of politicians looking to defeat their opponents in court would become much more common than trying to defeat them in the polls.
EnderWi99in 12 points 3 years ago
I agree with this, but can we stop referring to every rigged democratic system and autocratic government as a Banana Republic?
It just makes people posting look less knowledgeable about government and politics because it's meaning is tied to something very specific that doesn't apply to your overall well thought out comment.
Thailand is not an example of a Banana Republic and neither is the US, nor could it ever be, as it's not a country tied to very limited export of natural resources.
dual_sport_dork 10 points 3 years ago
Well, I mean. There was that one time we overthrew the incumbent monarchy of Hawaii and annexed it so we could grow sugar cane on it.
EnderWi99in 2 points 3 years ago
I'll give you that one.
nucleative 1 point 3 years ago
Is there another, more relevant term to describe governments that use sham strategies to subvert the people to obtain their goals? If so I'll changw my vocabulary. I just didn't know of another better term at the moment of writing my post.
Perhaps junta governments?
EnderWi99in 3 points 3 years ago
No that's totally fair, but that term is just misused as it applies to something very specific which deserves to be remembered and recognized as it's own unique threat. I think the closest thing to what you might be referring is aligned to a faux democracy of Russia, which is just a form of an autocracy.
reverendsteveii 8 points 3 years ago
Okay but repeatedly and blatantly trying to subvert democracy should mean that you don't get to participate in democracy anymore for the same reason that you should be banned from a chess tournament if you kick the board over and pull out a gun the first time someone puts you into check.
nucleative 0 points 3 years ago
What if that is legitimately what the people "want" and see voting that way to cast their belief in such a major change?
It's a government of the people, by the people, for the people. The people get to make the rules at the chess tournament. The courts... work for the people.
I know that would be a particularly bad change, but if the majority of people truly want a pathway for it, what other way is available?
reverendsteveii 1 point 3 years ago
it's also a government where "we hold these truths to be self-evident, that all men are created equal and endowed by their creator with certain inalienable rights". when the will of the people conflicts with human rights, humans rights are supposed to win.
FooBarrington 1 point 3 years ago
If ¾ of the population wishes to enslave the remaining ¼, should they be able to?
nucleative 1 point 3 years ago
It's obviously not something we'd consider to be morally justifiable now, although if such a horrendous situation were to emerge, how to stop the 3/4?
In this thought experiment, I'm trying to think about how we could we bake into a democracy the idea that for some issues, a submajority can tell the majority who they can vote for.
Isn't that kind of the very opposite of the concept?
To be clear, I'd personally never vote for any candidate who was the subject of criminal legal troubles, much was multiple indictments.
pinkdrunkenelephants 2 points 3 years ago path: 0 2587561 2593087, hotness: undefined, score: 2, children: 1
nucleative 2 points 3 years ago
Yes, I agree. Unfortunately the old guys are pro at playing that game and Pita just wasn't there yet.
I think the old guys do care if their domestic authority appears plausible on the international scene. Otherwise they run into problems .
But the Thai people have definitely spoken. How serious they feel about it will come out over time, I suppose.
afraid_of_zombies 0 points 3 years ago
The act of running for office, or more accurately the act of the people to chose whom represents them, should not be easy to take away.
You don't vote for president. You vote for electors. It isn't "the people".
AngryCommieKender 11 points 3 years ago
That mission is pretty well accomplished. DeSatan is being pummeled by a Mouse, and Trump will run as an independent and split the vote if he doesn't get the GOP nomination
sheilzy 4 points 3 years ago
Trump may be in the lead now, but he cannot campaign effectively with so many legal problems looming. He's already planning on skipping the first debate this month and instead doing an interview with Tucker Carlson. Although I am unsure how that will be done. Fox News told Tucker to stop doing his Twitter show because he's violating contract by doing such. Also, why would Trump still want to appear on any Tucker Carlson appearance now? While Tucker flirts with him in public, his texts to colleagues said he hated him and was sick of talking to or about him in the Dominion lawsuit evidence. I hope as part of sentencing for his indictments, the judge or jury really throws the book at Trump and tells him he must forfeit the presidential race. I'm not even sure if that's a punishment they can issue, but I hope they can.
cmhe 1 point 3 years ago
Republicans (and many polititians in gerneral) all hate each other, that is normal.
They are narcisitic power hungry psychopaths. They only cooperate, if they think it is advantagous to them and only them personally, in their quest to ammas as much power and influence as possible.
So it doesn't matter what they think about each other in private, they will cooperate if it is helpful to them. That is why they are politically more successful against the liberals than leftist/progressives, because leftist take personal offences more seriously and deny collaboration based on that.
ReluctantMuskrat 1 point 3 years ago
I'm not sure we're that lucky.
Cryophilia 1 point 3 years ago
Looks like he'll win the nomination pretty handily as of now.
agressivelyPassive 3 points 3 years ago
It used to be 5 legalons, now it's at 7.6!
Dagwood222 8 points 3 years ago
His people will still vote for him, even if he's legally barred from the job.
autotldr 7 points 3 years ago
This is the best summary I could come up with:
Prominent conservative legal scholars are increasingly raising a constitutional argument that 2024 Republican candidate Donald Trump should be barred from the presidency because of his actions to overturn the previous presidential election result.
The latest salvo came Saturday in The Atlantic magazine, from liberal law professor Laurence Tribe and J. Michael Luttig, the former federal appellate judge and a prominent conservative who’s become a strong critic of Trump’s actions after the election.
They and others base their arguments on a reading of part of the 14th Amendment, a post-Civil War provision that excludes from future office anyone who, previously, as a sworn-in public official, “engaged in insurrection or rebellion … or [had] given aid or comfort to the enemies” of the government.
The law professors argued current and former officeholders who took part in supporting or planning the efforts to overturn the election for Trump should also be “stringently scrutinized” under the Constitution should they seek bids for future public office.
The pair also looked at the historical intentions of this section of the 14th Amendment, which barred Confederates after the Civil War from holding office again, because if they were to be allowed, the US would never be able to engage in “effective ‘reconstruction’ of the political order” and newly freed formerly enslaved people wouldn’t be properly protected.
Previously, advocacy groups contested the ability of Republican members of Congress Marjorie Taylor Green and Madison Cawthorn to be ballot candidates in 2022 because of the 14th Amendment and their vocal support of the Capitol rioters.
The original article contains 882 words, the summary contains 255 words. Saved 71%. I'm a bot and I'm open source!
RobertOwnageJunior 6 points 3 years ago
You don't say, you geniuses?!
NABDad 5 points 3 years ago
Unfortunately, the Constitution doesn't specify, which means it would have to be decided by the courts.
I suppose Congress could create a process. Well, maybe not this Congress. A Congress.
trafficnab 1 point 3 years ago
They argue that it doesn't remove anyone's rights, it's a constitutionally mandated eligibility requirement, no different from needing to be over 35 or US born
totallynotarobot 1 point 3 years ago
Fools have served a vital societal function for centuries. The job requires incisive thinking and wit; he's not qualified. Plz don't be besmirchin'
PumpkinSkink -1 points 3 years ago
Ok, I get the sentiment but let's bear in mind that whatever rules apply to Trump will be applied to others. It should be very hard to bar someone from running. Trump doesn't have the support to win the general. It's not happening. He lost the Republican party multiple elections now, and they know it (well, enough of them know it). Let's not forget that Eugene Debs ran for office in 1920 from prison. He was put there under the Sedition Act for speaking out against WW1 and the draft, if I recall correctly. This type of thing is a sword that cuts both ways.
pinkdrunkenelephants 16 points 3 years ago path: 0 2595836 2596269, hotness: undefined, score: 16, children: 0
IGameShit -3 points 3 years ago
I don't think the people that voted for a demented husk should be speaking on a matter as hot as this. We are in the worst state we've been in in decades and everyone chooses to ignore that fact and continue to target what I see as a scapegoat. To pull the attention off the matters currently being conducted right in front of us. But no one bats an eye. It's always "orange man bad" when it's most convenient for the people in charge of everything, especially with the primarys coming up. Extremely convenient to be doing all of this right before.
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If only conservatives listened to scholars. Then they might consider a) the intent of the constitution and b) the practical implications of nominating someone so unfit. Alas.
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