Colorado Supreme Court removes Trump from the ballot

1. I would say I'm either an originalist or textualist. I think the meaning of the words at the time of ratification is the most important priority in legal interpretation, but you can look to historical context to understand the meaning of Constitutional provisions as well as their scope. So I would say I'm more textualist than originalist, but I think some elements of both lead to the correct interpretation. I see textualism as "plain meaning" and originalism as "original intent of framers," and both are necessary to lead to proper conclusions, but "plain meaning" is more important than "intent."
2. I don't think Donald Trump is comparable to Confederates who rebelled against the United States in the Civil War, which speaks to the established scope of the 14th Amendment. Removing Donald Trump would imply a broader interpretation of Section 3 of the 14th Amendment than has been established to date.

What specific portion of the Amnesty Act of 1872 do you think specifically links Trump to Section 3 of the 14th Amendment?

 

None. It speaks to how people are disqualified, which is automatically. It doesn't require a conviction or act of Congress. That supports William Baude and Michael Paulsen's article. The issue here is that a trial court heard evidence and made factual findings that Trump engaged in insurrection. You can't overrule those findings merely because you disagree with them. They have to be clearly erroneous, which is a very deferential standard of review to the lower court.

While I personally disagree with the Colorado decision, I don't dispute Baude and Paulsen's analysis. Simply put, I am neither an originalist nor a textualist. I think both are valid tools to use when interpreting the Constitution, but they are merely two considerations among many.

 

I asked whether the insurrection finding was a factual one as opposed to a legal one earlier in the thread. Thank you for answering that.

I still think it can be overturned, but it would be a real slap in the face to both the Colorado trial court and the Colorado Supreme Court which I believe analyzed the issue of insurrection as well and came to the same conclusion.

I do tend to find the argument that the provision is "automatic" to be compelling, but I also think that the lack of criminal prosecution (while not absolutely necessary) on the issue of insurrection to be a compelling point against Trump being an insurrectionist, especially with respect to someone facing more legal scrutiny than anyone in the country.

If we're going to go by pragmatic interpretations (which is not something I think judges should prioritize highly), then I don't think the Supreme Court should want rogue trial courts throughout the country being granted high deference on the issue of keeping someone off of a ballot on the basis of fact-findings of insurrection.

But this is something I admit should not be a heavy factor in the legal analysis. The text and the intent are what they are, and SCOTUS is tasked with interpreting them as they are, not in a manner which is most convenient.

Whether that has ever been what they actually do is another conversation entirely.

 

Sorry if you already said it, but on what bas[e]s do you disagree with the Colorado decision? Also curious if you disagree with the decision made in Maine? I read the Maine decision more closely than Colorado's. There were arguments that seem very persuasive, but I admittedly haven't read the opposing briefs.

 

I am uncomfortable with the idea that state courts and politicians can remove candidates from the ballot based on their own personal views of whether the candidate has engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies of it. This feels like something that is easy to abuse. I'd prefer a conviction or act of Congress.

 

My expectation is that it's a mixed question of law and fact, but factual findings are necessary to prove the elements, so you'd have to unwind at least one or more of the factual findings.

 

I absolutely share your sentiments and concerns- regardless of which side I might find more persuasive if I were willing to wade through all the legal briefing.

 

I tend to agree with @Gator715. My guess is that the SCOTUS citing the history of Section 3 of the 14th Amendment will define "insurrection" in very narrow terms to mean an armed organized rebellion against the government of the United States and will further define the phrase "shall have engaged in insurrection or rebellion" to mean active participation. The only individuals actually disqualified under Sec. 3 of the 14th Amendment were former members of Congress who were officers in the Confederate Army. I suspect that the Court will find that the attempted coup of January 6, 2021 failed to meet the definition of insurrection as intended by the framers of Sec. 3 of the 14th Amendment and additionally even if it did Trump's role wasn't sufficient to meet the test of "having engaged in insurrection".

 

We just need to somehow reserve this circular debate:

• Many members of Congress wouldn't consider removing Trump for Jan 6th because they thought it should be decided in court
• In court, Trump's attorneys are arguing that he's immune from criminal liability and that it should be up to Congress
• In this instance, people are arguing that it should be up to either Congress or criminal court

 

It seems to me like there are multiple methods of disqualifying someone from the Presidency. One is impeachment, which is through Congress. Another is apparently through the 14th Amendment, which is through the courts.

Does Trump technically need a criminal conviction to be an "insurrectionist" under the 14th Amendment? Apparently not. I don't think so, but I believe the issue of whether this is "self-executing" is still debated among lawyers. But I would also add that the lack of a conviction and prosecution on the grounds of insurrection paired with the context of Trump facing indictments throughout the country, provides compelling evidence that Trump is not an insurrectionist. Certainly enough for a court not to make a bold move like this. And it is a bold move to broadly define "insurrection" under the 14th Amendment in unprecedented fashion specifically to exclude the arguable frontrunner to the 2024 Presidential election.

My complaint isn't that Congress didn't have the authority to impeach him. It's that it would violate Congressional norms and shift the status quo moving forward (which it still likely will when the Republicans in the House finally get their shit together 100 years from now). And my complaint isn't that the courts decide the issue of "insurrection." It's that they interpreted "insurrection" far too broadly.

 

Link

 

Section 3 of the 14th Amendment was designed to prevent southern states from sending former high-ranking Confederate officers as senators and representatives to Congress. Note that the enforcement body was the U.S. Congress and not a random state Supreme Court. Note that anyone elected in the South at that time was going to have strong sympathies for the Confederacy, whether they had previously held an office or role as a military officer or not. That was inevitable.

But in any event, there is being a high-ranking Confederate military officer waging war against the U.S. for years and then there is giving a speech to a crowd that lasted for one hour which included a call to "peacefully and patriotically make your voices heard.”

Most sane people understand the difference.

 

If Trump's Jan 6 speech was the only evidence against him, I'd agree that it wouldn't be anywhere near close enough to call him an insurrectionist. But it's not. Jan 6 was chosen as the date for the speech because it was the day Congress was meeting to formalize Biden as POTUS. And the speech was just part of a larger plan for Trump to try and illegally overturn the election. This article outlines how Trump and team flew the phony elector ballots to ensure they'd be in D. C. by the 6th.

And Trump knew they were phony and illegal. The firm Trump hired to prove election fraud had already told him there wasn't anywhere near enough fraud to overturn the election.

Webster's defines an insurrection as an act of revolt against an established government. Taken as a whole, Trump's actions to overturn a free and fair election and illegally retain power fits this definition, does it not?

Webster isn't legally binding, but Trump did a lot more than just give a speech on Jan 6. He was a central figure in an autogolpe attempt against the US Government.

 

Trump did not instruct anyone to protest peacefully. The instruction part was to "go fight like hell."

What happened on 1/6 was part of a larger plot enacted by Eastman, Chesebro, Stone, Bannon and Trump.

 

Trump Attorney: "I think it should be a slam dunk in the supreme court. I have faith in them. You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place. He'll step up."

Nice "you owe me" intimidation tactic. What does it mean that Trump "went through hell" to get him on the Supreme Court? He had a majority in the Senate - all he had to do was pick a name out of a hat and his sycophants would have confirmed it.

Also notice that his attorney's statements and court filings raraely speak to winning on merit - it's always that he's immune from prosecution or technically he wasn't an officer under the Constitution. Now it's "I appointed you so you owe me."

 

Nothing says "saving democracy" than denying voters of their right to choose.

 

Go ahead and vote for a foreign born citizen who us 33 years old. Oh that's right. Only people born in the US and over 35 are eligible for POTUS under three Constitution. Same Constitution that denies persons who engaged in an insurrection against the country. Nothing undemocratic about following the law and rules of the land. If Trump did engage in an insurrection, then the Constitution says he can't be President.

 

He's counting on his homies.

 

OH!!!!!!! Wait a minute. Please see the highlight. I thought from everything you and others have said this is a proven fact!!!