"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
Excellent point: disqualification from political candidacy is a civil matter.
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.