Democratic Sen. Tim Kaine of Virginia on Sunday said that he believes a strong legal argument can be made to use the 14th Amendment to remove former President Donald Trump from the ballot in 2024, citing Trump’s actions related to the Jan. 6 attack on the U.S. Capitol.
Shortly after Jan. 6, Trump was impeached by the House of Representatives for inciting an insurrection amid his push to overturn his election loss, with 10 Republicans and all Democrats voting to impeach him.
He denied any wrongdoing, and while seven members of his own party joined Democrats to support his conviction, he was ultimately acquitted by the Senate.
the rub is that the 14S2 provides for due process. until he’s convicted in court there will always be a question if that really was an insurrection, in the minds of his supporters.
Flying Squid is absolutely right in that the republicans will retaliate with nonesense charges. (in fact, they already are.)
14S2? Do you mean Section Three?
And I am unclear on what you mean by “provides for due process.”
Sorry, I was wrong, it’s section 1:
Okay … that is really interesting, and something I hadn’t noticed. And it’s not the part you think.
Even if “liberty” here includes the liberty to hold office (which it may not), the law we’re talking about is constitutional. It is not a State who would be depriving the liberty, it would be the United States.
The part that is still catching me up, however, is this, just preceding the above:
If, like in the other clause, the liberty to hold office is a “privilege,” does this prohibit States from enforcing this constitutional law? Because when the constitutional law has everything to do with elections, which are run only by the States, no body has jurisdiction to enforce.
If “due process of law” necessarily means “a judicial hearing” (not necessarily a criminal trial), that means that there must be input from a court before someone is disqualified.
So, we have two questions that need answering:
Both of those have to be “yes” in order for the disqualification under Section Three to be self-executing (the disqualification being immediate once the described conditions are met). Someone would have to make a legal and binding judgment.
However, if A14 S3 is not self-executing because of this kind of reasoning, then neither are any parts of the Constitution regarding qualification for office. Junior high kids could gain the office of Governor. Arnie could be President.
Even so, the person or group that would make that judgment might arguably be the State process for qualifying people from office, and the judgment could be communicated and recorded by the disqualification itself by that person or group.
Anyway - those bulleted questions above would need to be answered in order for me to go any further. I suspect one or the other of those answers is “no,” but I can’t really say. The kind of deep legal history study that would be required to answer those two is way beyond what I know.
This is the first time I’ve been plain stumped by this disqualification thing.
Being able to hold office is not a right. Nothing is being deprived. The state is not enforcing anything. They are denying a request to be on the ballot. It is not a right.
State elections commissions should decide this correctly.
No trial is needed and there is nowhere that says it is to determine insurrection.
This is in no way a criminal matter. It is extremely black and white in this case.
I wholly agree with you (as a walk through my comment history will demonstrate), but that “No State shall … enforce” part definitely deserves a very close look by people much smarter than I am.
Yup. It’s all entirely untried- were in unknown waters.
That said, given the current composition of the SCROTUS, I’m fairly certain that any rulings that do come out will be extremely politicized. And not in the favor of democracy
Well, not really unknown. Section Three was used plenty to disqualify former Confederates, but that was easy, because everyone knew what they were talking about then. There had been an awful war.