Lessig: The Supreme Court Must Unanimously Strike Down Trump's Ballot Removal

[Gaugamela]

This won’t be popular here, and I understand the arguments going the other way, but Lessig’s reasoning seems sound. It’s worth being aware of this in the event that SCOTUS rules against the Colorado supreme court’s decision. Lessig is a liberal legal scholar from Harvard Law, who made a brief run for the presidency in 2016 as a Democrat. He states that an early draft version of the 14th Amendment, Art 3 included the president in the list of offices that could not be held by insurrectionists, but was later removed.

[T]here is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.

https://slate.com/news-and-politics/2023/12/supreme-court-trump-ballot-removal-colorado-wrong.html

[lastlib]

1. The 14th Amendment MANDATES that states bear that cost.....

...when a potential candidate engages in insurrection. So I don't give his argument much shrift.

[Gaugamela]

7. According to Lessig, that mandate doesn't include POTUS/VP for the reasons stated.

[brush]

11. Yes, Biden didn't engage in a insurrection to prevent the transfer of power to himself.

trump did. And that's a violation of the 14th Amendment, Sec. 3. I don't get why Prof. Lessig, a well respected Constitutional scholar would make such a statement, unless he thinks it should be up to SCOTUS itself and not Colorado's supreme court to make such a ruling.

His stance is just the opposite of equally respected and conservative Constitutional scholar Judge Michael Luttig who has stated quite assertively that trump is definitely subject to the 14th, Sec. 3.

And it's absolutely ridiculous that the founders wanted to leave out the president and vice-president from being excluded from what the 14th Amendment, Sec. 3 says.

[hlthe2b]

2. Any other area that Mr. Lessig would like to see us simply give up and ignore the constitutional

provisions? After all, some states may decide not to observe the 15th Amendment granting black males the right to vote.. or the 19th granting women that same right... or the 13th that outlawed slavery. or or or?...

What utter bullshit from a coward hiding behind his ivory tower.

[Gaugamela]

8. Lessig is making a reasoned argument regarding a specific part of one amendment. He's not

advocating that states can cherry pick. I really don’t see where your response comes from.

[hlthe2b]

9. Obviously, you don't...

sigh...

[NoRethugFriends]

3. What a crock

Slate articles these days are almost uniformly bad

[Gaugamela]

6. This is an opinion piece by a Harvard Law constitutional scholar. Your comments don't address

anything in the argument or the article.

[hlthe2b]

10. Picking and choosing, you say? I note you do NOT quote Laurence Tribe who does not

countenance this nonsense. Also, Harvard, but far more respected, btw.

What next? Will you quote Dershowitz on this? (also Harvard, unfortunately).

[Raven123]

4. Maybe POTUS and VP were included intentionally

Why must it have been a sloppy draft? I am not a Constitutional Lawyer, but I know we cannot operate out of fear of the GOP. That’s what they hope for.

[Gaugamela]

5. They were included and then excluded, presumably because of a process of reasoning and

compromise. It’s not hard to see how this could become a tit for tat feud, just as we’re currently seeing with impeachment. I could easily see Republicans using the Colorado decision repeatedly to their advantage, while Democrats adhere to the spirit of the law.

[Xoan]

12. PRESUMABLY

Carries a lot of weight/

[Raven123]

13. I agree this could become a tit for tat feud

SCOTUS has it’s hands full on this one. Just not sure one can argue the 14th doesn’t apply to POTUS and VP. I could see the tit-for-tat discussion playing into a decision regarding how the Amendment is implemented. What a complicated issue. Hope we get to hear the oral arguments live. Interesting times we live in!

[mymomwasright]

14. Lessig fears a civil war

As he says in the article; "But excluding him, wrongfully, by a close vote of the Supreme Court could well trigger the next Civil War. We must defeat him politically—not through clever lawyer interpretations of ambiguous constitutional texts." Fear of civil war shouldn't be a reason to skirt the law or ignore the constitution!
He also says "Lash argues that it could make sense because the Framers of that clause likely expected it to apply to Civil War insurrectionists alone. No one, he argues, feared an insurrectionist presidential candidate after 1865." Because the amendment doesn't specify "Civil War" anything it throws all future candidates into a generalized bunch.

[hlthe2b]

15. Merely defeating him may well trigger violence or the ultimate civil war. We have precedence

for that after all. Cowardly willingness to give up our Constitution and our Democracy to appease these Fascists is hardly the answer. It hardly ends with the one act of appeasement.

Neville Chamberlain appears to be the new model Democrat for a few, it seems.

[TwilightZone]

17. There isn't going to be a Civil War.

The fearmongering about it is really tiresome. Trump's supporters stopped showing up at January 6th-type rallies as soon as the feds starting busting some of the seditious idiots for January 6th. Most of the Proud Boy, etc., leaders are either in prison or in hiding, afraid some 16-year-old is going to identify them on video from January 6th.

They thought it was all fun and games until they discovered that there were ramifications. There will always be some isolated individuals or small groups that will raise hell, but the claim that there's going to be some mass uprising on the scale of the CW is ridiculous, because for the most part, they're a bunch of bigoted cowards who are terrified of everything, including consequences.

[shrike3]

19. I used to think they were a bunch of all-talk blowhards.

The run-up to the 2020 election, the aftermath and Jan. 6 changed my mind. I hope you are right, though. Their innate cowardice will hold them back.

[TwilightZone]

20. Nothing has really changed - most of them still are.

The primary reason most of them showed up on January 6th was because Trump begged them to, and they assumed that since he was the president, there would be no ramifications. When that turned out to be nonsense and hundreds of them got arrested, they got a wake-up call.

Even the January 6th rally was a bit of a dud, in context. Trump had been imploring people to show up for a month, his cronies spent tons of time and money organizing, the permit was for 30,000 people, and AP estimated the crowd at roughly 10,000. Two thousand of them marched to the Capitol.

It seemed like a lot and they were certainly destructive, but in contrast, there were 50,000 people at the August 2021 March for Voting Rights on the anniversary of the original in 1963, which drew 250,000 or more. The 50k figure doesn't include the satellite marches that were organized by Al Sharpton and others.

[mymomwasright]

16. If the constitution is followed there is no tit for tat

This Colorado case was brought by Conservative Republicans (I think that gets lost on lots of folks). If the Texas Lt Gov wants to do that why wouldn't he have to prove Biden is an insurrectionist. Proof would have to be made for any reciprocal removal at any level of office. This reminds me of the cowardly argument regarding ending the filibuster and 60 vote threshold in the Senate because some may regret it later.

[lees1975]

18. Reciprocation is a moot point.

Joe Biden didn't commit insurrection, which is the condition of this Constitutional amendment. Donald Trump did, and the Congress drew that conclusion in an official investigation that is a legally enforceable condition of the law.

This is why we have courts. And the Supreme Court of Colorado has ruled on their interpretation of a pretty clear Constitutional amendment.