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this post was submitted on 30 Dec 2023
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There just needs to be due process to make it harder to abuse. Now arguably there has been due process at least in Colorado, it's a factual finding that he engaged in insurrection there. I'm here for it. I just suspect the Supreme Court will find a way to invalidate that, and I suspect it will hinge on the fact that he never was formally tried for insurrection, rather the case was essentially "we all saw him commit the crime so he can't hold the office." But we can have a murder on film with a closeup of a person's face and they still get a formal trial to defend themselves. We saw it with our own eyes is not sufficient to bypass a trial unless a trigger-happy cop feels sufficiently threatened.
Edit: that being said, when it was used against civil war criminals, I don't believe there was any official finding of insurrection there either, so that might be a harder argument than I think.
I can see where you might think that. I previously thought the same. I don't think so anymore.
Because an insurrection against the government is fundamentally a criminal act, one would naturally think that Section 3 of the 14th Amendment would require a criminal conviction to apply. For most crimes you have to be convicted before there is a penalty. This is basic due process (which, BTW, is described in Section 1 of the 14th Amendment), however I don't think that is the case here.
Section 3 of the 14th Amendment reads as follows:
Section 3 describes how participating in an insurrection will result in disqualification to hold office. It has no requirement for a criminal conviction. If a State believes that a person who previously took an oath to support the US Constitution engaged in an insurrection, then that person is disqualified from running for office. There is no due process requirement for disqualification due to age or citizenship, so there is no need for due process for any other disqualification.
If Congress feels that the person should be allowed to run for office, they can remove the qualification disability with a two-thirds vote in both houses.
The States can decide for themselves if Trump is disqualified, if Congress disagrees they alone have the ability to fix it.
Yup, Congresses vote is meant to serve as the check and balance as well as due process here. This is a civil matter, not criminal. It doesn't matter if he was convicted. As you pointed out, we don't requre such things on age or citizenship and we don't require them here either.
There needs to be due process because .. Hunter Biden … laptop … insurrection.
Now that this can of worms is open, someone will try to abuse it. Establishing due process sets a bar that future fascists know not to cross plus makes it harder to abuse for partisan manipulation
I thoroughly agree with you that the most likely argument that comes from the Supreme Court in regards to Trump's eligibility to serve will hinge on the application of due process, and what that means in the case of insurrection. As you said, there was not a formal criminal tribunal or insurrection charges filed during the post-war reconstruction. It seems to have just been defacto applied via the actual ratification of the 14th Ammendment, and was understood to unanimously bar confederate representatives from serving in government.
I think all of the historical context as well as the spirit of the law does need to be closely examined. However, my fear is that no matter what the outcome of that examination may be it will only serve to further erode public trust in the judicial system due to the (valid) perception of political corruption within the Supreme Court, as well as their continuous inaction, which serves to telegraph a lack of concern or desire to avoid the prudential and consistent application of the law.