The US crlminal code contemplates the crime of insurrection. Should not therefore an insurrectionist be defined as a person who has been convicted in court for the crime of insurrection? If it is left to political bodies at state or federal level to decide who qualifies as insurrectionist, are not we sliding in the crude majoritarianism that is deplored in the discussion?
If Section 3 was construed to hinge on a federal criminal conviction for a particular statutory offense, then its original targets such as Jefferson Davis and Robert E. Lee were never actually disqualified, and that would be absurd. It would also mean vesting the sole power to enforce Section 3 in the incumbent president and his administration, meaning both that incumbent presidents could abuse it with bogus prosecutions, and an incumbent president could effectively make it a nullity by declining to bring charges. That's simply not how Section 3 works, by deliberate design.
The only time Section 3 was truly abused was in the case of Victor Berger, which was also the one time it was claimed Section 3 was triggered by criminal conviction. Far from a check on abuse, entangling Section 3 in the criminal process is an invitation to abuse both for over-enforcement and under-enforcement.
However within the historical context in which the Amendment was written the evidence for insurrection was pretty much self evident and a matter of public record no criminal convictions required. Had person A taken an oath to support the US? Had person A also joined in the secession and war against the USA? Then person A was disqualified. Unless Congress waived the disqualification. And that Congressional power is key.
As it stands (today) Section 3 is essentially unenforceable.
There’s nothing about what Trump did that isn’t similarly self-evident. There is no serious dispute over the facts of what happened. And Congress certainly hasn’t granted him any amnesty.
“With malice toward none, with charity for all"?
Long before Jan 6, it was clear that Trump's adversaries (and the entire [self-interested] administrative caste) would do anything legally that they could to keep this guy out of office (while they lecture us on "hate"). Those adversaries have merely become part of the toxic political climate created (arguably) by Trump himself.
Keep Trump off the ballot? Are you afraid that he could actually win the '24 election, fair and square (possibly even including the popular vote)?
And what if he does? What will the "resistance" do then? Will he take office as smoothly as Biden did in 2021? Or will we see something more like the Summer of Floyd (when I witnessed the sacking of Oakland Chinatown, among many such episodes) -- retribution for 1619, "by any means necessary"?
Was Jan 6 an "insurrection" like the Confederacy? Was there an attempt to institute a hostile government that, in turn, sought to overthrow the United States? Or was this a "protest that turned violent," and that played itself out within the American system -- and that saw Biden take the Oath of Office, on-schedule, when all was said and done?
I voted twice for Obama, yet I'm raising these questions. There are many other voters like me. Consider that (and the power of Lincoln's words, quoted above) before deploying all your legalese.
If Trump wins fair and square then you are right there will be a lot of crazy happening.
If Biden wins fair and square then there will be a lot of crazy, too.
One thing I can promise you IF BIDEN LOSES he will phone Trump and congratulate his on his victory. HE WILL STAND ASIDE AND LET THE NEW TRUMP ADMINISTRATION TAKE ITS PLACE AND BEGIN GOVERNING. Biden will stand next to Trump as he takes the oath of office and be the first to shake his hand in congratulations.
We know none of that would happen if Trump loses. And we know that Trump supporters will make the George Floyd disturbances look like child's play.
If Biden loses, he will undoubtedly concede. I wouldn't be so quick to assume (gracious as he may be) that he'd stand beside Trump on Jan 20, 2025 and shake his hand in congratulations -- after (along with his supporters) having declared Trump (and his very election) a threat to "our" democracy.
It would be fascinating, indeed, to see how Biden might handle such a situation -- if we make it that far.
Probably more likely Trump will ban the Bidens from attending. And since he has promised to have them arrested and prosecuted it would be wise for them to go into hiding.
The Constitution only guarantees that we are a Republic, the degree of democracy we enjoy has always been negotiable. So the fact that the voters may "democratically" choose to install a dictator as President isn't unthinkable. The Constitution provides for checks and balances, and if the House and Senate and courts don't have an interest in checking the Dictator then he can pretty much do as he pleases.
The whole reason for the Electoral College to exist (according to Hamilton) was to prevent corrupt demagogues like Trump from ever crossing the threshold of the White House. Today the Electoral College is essentially an Election Nullification Machine that cancels out the will of the people.
I don't think you understand what it means to be a dictator.
Removing a candidate that looks to be the post popular candidate in the history of the States is election tampering.
It is becoming crystal clear that the Democrats won the election unfairly, tampering with public information, censoring free speech and spreading misinformation and disinformation en masse across the entire country. And it is 100% provable.
The wrongful suppression of the Hunter Biden Laptop story was a Democratic campaign. The lies about the severity of the pandemic were a Democratic campaign. The suppression of in person ballots were a Democratic campaign.
All of these things were responsible for Biden's win, and these are much more serious than the protests outside the Capitol. What happened outside Jan 6 was a reaction to the election meddling that was instigated by the Democrats. The lies have been exposed and now the Democrats are stooping to new lows to stop a political candidate they can't stop any other way.
Time to step outside of the Dialectic Wizard's Circle and break free of the spell everyone is under. The only reason Democrats are stooping so low to stop Trump now is because they are like a drowning victim ready to take down anyone within their reach. Their necks are on the chopping block if he wins. No other reason.
The "Dialectical Wizards Circle" is a "leftist" thing.
I am a Radical Traditional Conservative. If the Electoral College worked the way the Founders (see Federalist Papers #68 et al) intended then someone as provably criminally corrupt as Trump would never have come within a mile of the White House in 2016. No matter how popular they are. Probity, not popularity should be the measure of the person being made President. Probably Hillary Clinton wouldn't have been elected either.
Today the only thing the Electoral College does is act as a big election nullification machine. If we are going to let the people vote then the majority of ALL the people should win the election and not less than 100,00 people spread across 6 states that can "swing" the electoral college outcome to the actual loser of the election.
In my opinion the Presidency of the United States is too awesome a responsibility to let the ignorant masses decide who will hold the office. The fact that political dilettantes like you or me are allowed to have a vote in the matter is simply incomprehensible.
The 50 state legislatures should choose their two Senators as originally intended by the framers. The only federal offices which "The People" elect should the House of Representatives. I can know and can actually judge my Representative because he or she is closest to me.
The "problem" as I see it isn't a problem of the left or right, conservatives or liberals, Republicans or Democrats. It is problem of reason, law, order, truth, honesty, humility and all the civic virtues that have been stamped out of the heart of the American people by political parties and self interest and the corrupting hunger for power.
I can't disagree with anything you wrote. The root solution is in the home. Raising better children, through better families and stronger communities will instill the virtues that will cause future generations to make better choices morally. The destruction of the family unit is one of the fundamental root cause of all of our troubles.
The Jan 6 protest is STILL under investigation. The Democrat led house swept many things under the rug that the Republican led house can now further investigate.
This was NOT an insurrection by any stretch of the imagination. It was a protest turned violent, very likely by bad actors and instigators, and it is being used as a narrative to continue to divide the people.
The pendulum is swinging the other way, and hard, in a way that the Democrats never expected. They now deserve everything they get...and maybe we can get the old Liberals of 50 years ago back into office that were anti-war, anti big government and anti the very corporate corruption they have fallen into.
RFK's voice is being suppressed by the Democratic party. That alone should tell you everything.
Musk's purchase of Twitter broke the stranglehold that the neo-con Left had on public information and now the world can see what is actually happening.
As I said, the Left deserves everything they get now.
RD, please note that I said, "Those adversaries have merely become part of the toxic political climate created (arguably) by Trump himself." I also noted that I voted twice for Obama -- and, I might add, I cast a (California) write-in for Bernie in 2016.
Griff, check out Joel Kotkin -- or perhaps (though not on economics) Andrew Sullivan. As we pick each other to pieces over "pronouns" and "privilege," the oligarchs keep laughing all the way to the bank.
Schumpeter saw this coming: It's like the Soviet "Era of Stagnation," with its ossified managerial caste (i.e., nomenklatura) -- and I take no comfort in knowing that Brezhnev (notwithstanding Gorbachev) was soon followed by Putin.
What ever happened to live-and-let live? As I lament to my cat, "Lucy, I don't think we're in Woodstock anymore."
Meanwhile, we're faced with a choice between an authoritarian tinpot dictator and a totalitarian Brave New World.
RFK Jr? Puh-leez -- too unhinged! We've reached a point where the only way out of this pickle might be if Willie Nelson were to throw his red-white-and-blue hat in the ring. ;-)
For me the whole problem of whether and how Section 3 is executed is what the Supreme Court must decide. It seems that the remedy for overcoming disqualification is in the hands of Congress. So it seems to me that it is Congress that needs to pass enabling legislation which will define the meaning of insurrection within the text, the standard of evidence required, clarify who the decider is (state election officials seem to be ones who should decide) for those seeking a federal office. Obviously a conviction for insurrection would be helpful as evidence justifying removal but not necessary. All that is needed is that there is sufficient evidence upon which to make the disqualification. This evidence can be challenged in courts and either upheld or dismissed.
The Supreme Court should order Trump back on the ballots, and no future candidates disqualified, until Congress clarifies how Section 3 is to be (fairly) enforced and outlining the mechanism by which Congress is given the opportunity to override the disqualification.
It seems that the Congressional delegation of Colorado and Maine (for example) should present the disqualification in the form of a bill to Congress as a privileged motion (?) that would be debated and voted on as soon as brought to the floor. The Constitution requires a 2/3 majority of both houses. In our hyperpartisan and closely divided Congress that is hardly likely to happen.
So because it is highly unlikely that Congress will do what is required to make Section 3 viable and fair in the 21st century it will remain essentially meaningless except as an historical artifact of the Reconstruction era.
That’s not how Section 3 works. Congress can grant somebody an amnesty from disqualification. They can’t act to declare somebody disqualified. The Constitution itself does that.
The US crlminal code contemplates the crime of insurrection. Should not therefore an insurrectionist be defined as a person who has been convicted in court for the crime of insurrection? If it is left to political bodies at state or federal level to decide who qualifies as insurrectionist, are not we sliding in the crude majoritarianism that is deplored in the discussion?
If Section 3 was construed to hinge on a federal criminal conviction for a particular statutory offense, then its original targets such as Jefferson Davis and Robert E. Lee were never actually disqualified, and that would be absurd. It would also mean vesting the sole power to enforce Section 3 in the incumbent president and his administration, meaning both that incumbent presidents could abuse it with bogus prosecutions, and an incumbent president could effectively make it a nullity by declining to bring charges. That's simply not how Section 3 works, by deliberate design.
The only time Section 3 was truly abused was in the case of Victor Berger, which was also the one time it was claimed Section 3 was triggered by criminal conviction. Far from a check on abuse, entangling Section 3 in the criminal process is an invitation to abuse both for over-enforcement and under-enforcement.
However within the historical context in which the Amendment was written the evidence for insurrection was pretty much self evident and a matter of public record no criminal convictions required. Had person A taken an oath to support the US? Had person A also joined in the secession and war against the USA? Then person A was disqualified. Unless Congress waived the disqualification. And that Congressional power is key.
As it stands (today) Section 3 is essentially unenforceable.
There’s nothing about what Trump did that isn’t similarly self-evident. There is no serious dispute over the facts of what happened. And Congress certainly hasn’t granted him any amnesty.
Thanks, Andy. I also failed to take into account the prospective or future looking nature of Section 3.
I still wonder about how really enforceable, not to mention prudent, it is to try and use this. Then again it isn't prudent not to!
“With malice toward none, with charity for all"?
Long before Jan 6, it was clear that Trump's adversaries (and the entire [self-interested] administrative caste) would do anything legally that they could to keep this guy out of office (while they lecture us on "hate"). Those adversaries have merely become part of the toxic political climate created (arguably) by Trump himself.
Keep Trump off the ballot? Are you afraid that he could actually win the '24 election, fair and square (possibly even including the popular vote)?
And what if he does? What will the "resistance" do then? Will he take office as smoothly as Biden did in 2021? Or will we see something more like the Summer of Floyd (when I witnessed the sacking of Oakland Chinatown, among many such episodes) -- retribution for 1619, "by any means necessary"?
Was Jan 6 an "insurrection" like the Confederacy? Was there an attempt to institute a hostile government that, in turn, sought to overthrow the United States? Or was this a "protest that turned violent," and that played itself out within the American system -- and that saw Biden take the Oath of Office, on-schedule, when all was said and done?
I voted twice for Obama, yet I'm raising these questions. There are many other voters like me. Consider that (and the power of Lincoln's words, quoted above) before deploying all your legalese.
If Trump wins fair and square then you are right there will be a lot of crazy happening.
If Biden wins fair and square then there will be a lot of crazy, too.
One thing I can promise you IF BIDEN LOSES he will phone Trump and congratulate his on his victory. HE WILL STAND ASIDE AND LET THE NEW TRUMP ADMINISTRATION TAKE ITS PLACE AND BEGIN GOVERNING. Biden will stand next to Trump as he takes the oath of office and be the first to shake his hand in congratulations.
We know none of that would happen if Trump loses. And we know that Trump supporters will make the George Floyd disturbances look like child's play.
If Biden loses, he will undoubtedly concede. I wouldn't be so quick to assume (gracious as he may be) that he'd stand beside Trump on Jan 20, 2025 and shake his hand in congratulations -- after (along with his supporters) having declared Trump (and his very election) a threat to "our" democracy.
It would be fascinating, indeed, to see how Biden might handle such a situation -- if we make it that far.
Probably more likely Trump will ban the Bidens from attending. And since he has promised to have them arrested and prosecuted it would be wise for them to go into hiding.
The Constitution only guarantees that we are a Republic, the degree of democracy we enjoy has always been negotiable. So the fact that the voters may "democratically" choose to install a dictator as President isn't unthinkable. The Constitution provides for checks and balances, and if the House and Senate and courts don't have an interest in checking the Dictator then he can pretty much do as he pleases.
The whole reason for the Electoral College to exist (according to Hamilton) was to prevent corrupt demagogues like Trump from ever crossing the threshold of the White House. Today the Electoral College is essentially an Election Nullification Machine that cancels out the will of the people.
I don't think you understand what it means to be a dictator.
Removing a candidate that looks to be the post popular candidate in the history of the States is election tampering.
It is becoming crystal clear that the Democrats won the election unfairly, tampering with public information, censoring free speech and spreading misinformation and disinformation en masse across the entire country. And it is 100% provable.
The wrongful suppression of the Hunter Biden Laptop story was a Democratic campaign. The lies about the severity of the pandemic were a Democratic campaign. The suppression of in person ballots were a Democratic campaign.
All of these things were responsible for Biden's win, and these are much more serious than the protests outside the Capitol. What happened outside Jan 6 was a reaction to the election meddling that was instigated by the Democrats. The lies have been exposed and now the Democrats are stooping to new lows to stop a political candidate they can't stop any other way.
Time to step outside of the Dialectic Wizard's Circle and break free of the spell everyone is under. The only reason Democrats are stooping so low to stop Trump now is because they are like a drowning victim ready to take down anyone within their reach. Their necks are on the chopping block if he wins. No other reason.
The "Dialectical Wizards Circle" is a "leftist" thing.
I am a Radical Traditional Conservative. If the Electoral College worked the way the Founders (see Federalist Papers #68 et al) intended then someone as provably criminally corrupt as Trump would never have come within a mile of the White House in 2016. No matter how popular they are. Probity, not popularity should be the measure of the person being made President. Probably Hillary Clinton wouldn't have been elected either.
Today the only thing the Electoral College does is act as a big election nullification machine. If we are going to let the people vote then the majority of ALL the people should win the election and not less than 100,00 people spread across 6 states that can "swing" the electoral college outcome to the actual loser of the election.
In my opinion the Presidency of the United States is too awesome a responsibility to let the ignorant masses decide who will hold the office. The fact that political dilettantes like you or me are allowed to have a vote in the matter is simply incomprehensible.
The 50 state legislatures should choose their two Senators as originally intended by the framers. The only federal offices which "The People" elect should the House of Representatives. I can know and can actually judge my Representative because he or she is closest to me.
The "problem" as I see it isn't a problem of the left or right, conservatives or liberals, Republicans or Democrats. It is problem of reason, law, order, truth, honesty, humility and all the civic virtues that have been stamped out of the heart of the American people by political parties and self interest and the corrupting hunger for power.
I can't disagree with anything you wrote. The root solution is in the home. Raising better children, through better families and stronger communities will instill the virtues that will cause future generations to make better choices morally. The destruction of the family unit is one of the fundamental root cause of all of our troubles.
Read my reply below. I agree with you.
The Jan 6 protest is STILL under investigation. The Democrat led house swept many things under the rug that the Republican led house can now further investigate.
This was NOT an insurrection by any stretch of the imagination. It was a protest turned violent, very likely by bad actors and instigators, and it is being used as a narrative to continue to divide the people.
The pendulum is swinging the other way, and hard, in a way that the Democrats never expected. They now deserve everything they get...and maybe we can get the old Liberals of 50 years ago back into office that were anti-war, anti big government and anti the very corporate corruption they have fallen into.
RFK's voice is being suppressed by the Democratic party. That alone should tell you everything.
Musk's purchase of Twitter broke the stranglehold that the neo-con Left had on public information and now the world can see what is actually happening.
As I said, the Left deserves everything they get now.
Oy, with friends like these!
RD, please note that I said, "Those adversaries have merely become part of the toxic political climate created (arguably) by Trump himself." I also noted that I voted twice for Obama -- and, I might add, I cast a (California) write-in for Bernie in 2016.
Griff, check out Joel Kotkin -- or perhaps (though not on economics) Andrew Sullivan. As we pick each other to pieces over "pronouns" and "privilege," the oligarchs keep laughing all the way to the bank.
Schumpeter saw this coming: It's like the Soviet "Era of Stagnation," with its ossified managerial caste (i.e., nomenklatura) -- and I take no comfort in knowing that Brezhnev (notwithstanding Gorbachev) was soon followed by Putin.
What ever happened to live-and-let live? As I lament to my cat, "Lucy, I don't think we're in Woodstock anymore."
Meanwhile, we're faced with a choice between an authoritarian tinpot dictator and a totalitarian Brave New World.
RFK Jr? Puh-leez -- too unhinged! We've reached a point where the only way out of this pickle might be if Willie Nelson were to throw his red-white-and-blue hat in the ring. ;-)
For me the whole problem of whether and how Section 3 is executed is what the Supreme Court must decide. It seems that the remedy for overcoming disqualification is in the hands of Congress. So it seems to me that it is Congress that needs to pass enabling legislation which will define the meaning of insurrection within the text, the standard of evidence required, clarify who the decider is (state election officials seem to be ones who should decide) for those seeking a federal office. Obviously a conviction for insurrection would be helpful as evidence justifying removal but not necessary. All that is needed is that there is sufficient evidence upon which to make the disqualification. This evidence can be challenged in courts and either upheld or dismissed.
The Supreme Court should order Trump back on the ballots, and no future candidates disqualified, until Congress clarifies how Section 3 is to be (fairly) enforced and outlining the mechanism by which Congress is given the opportunity to override the disqualification.
It seems that the Congressional delegation of Colorado and Maine (for example) should present the disqualification in the form of a bill to Congress as a privileged motion (?) that would be debated and voted on as soon as brought to the floor. The Constitution requires a 2/3 majority of both houses. In our hyperpartisan and closely divided Congress that is hardly likely to happen.
So because it is highly unlikely that Congress will do what is required to make Section 3 viable and fair in the 21st century it will remain essentially meaningless except as an historical artifact of the Reconstruction era.
That’s not how Section 3 works. Congress can grant somebody an amnesty from disqualification. They can’t act to declare somebody disqualified. The Constitution itself does that.
Thanks, Andy. I have relistened and reread your arguments and I think I understand it better.