Here's how 2 sentences in the Constitution rose from obscurity to ensnare Donald Trump

[mahatmakanejeeves]

Hat tip, Joe.My.God.

Thursday: SCOTUS To Hear Trump Ballot Arguments
February 5, 2024

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POLITICS

Here’s how 2 sentences in the Constitution rose from obscurity to ensnare Donald Trump

BY NICHOLAS RICCARDI
Updated 8:21 AM EST, February 5, 2024

DENVER (AP) — In the summer of 2020, Gerard Magliocca, like many during the coronavirus pandemic, found himself stuck inside with time on his hands.

A law professor at Indiana University, Magliocca emailed with another professor, who was writing a book about overlooked parts of the Constitution’s 14th Amendment. He decided he would research the history of two long-neglected sentences in the post-Civil War addition that prohibit those who “engaged in insurrection or rebellion” from holding office.

Magliocca posted a copy of his research — which he believed was the first law journal article ever written about Section 3 of the 14th Amendment — online in mid-December of 2020, then revised and re-posted it on Dec. 29. Eight days later, President Donald Trump’s supporters stormed the U.S. Capitol to prevent the certification of his loss to Joe Biden. Magliocca watched as Republicans such as Sens. Mitch McConnell and Mitt Romney described the attack as an “insurrection.”

That night, Magliocca composed a quick post on a legal blog: “Section Three of the Fourteenth Amendment,” he wrote, “might apply to President Trump.”

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[usaf-vet]

1. Words to stop an assault on our Democracy. Without firing a shot. Thank you, founders, for the Constitution you left us.

Four generations in our family have worn a uniform to protect your work.

[Botany]

2. For those who say that article 3 of the 24th Amendment does not apply to Trump either can't or will not ...

… read. It is all right there and plane as can be. If you violated your oath to protect and defend
the U.S. Constitution and or took part in trying to overthrow our Constitutional Democracy you
can hold the office of POTUS. End of story.

[thesquanderer]

6. The question is not only whether it applies to Trump as an insurrectionist...

Last edited Mon Feb 5, 2024, 07:54 PM - Edit history (1)

...but also, even if everyone agreed that it does, does that necessarily mean he cannot be on a primary ballot? Or even the presidential ballot in November? The 14th amendment says such a person cannot *hold* office, which is not the same as saying such a person cannot be on a ballot where people can express their preferences (in this case, even a preference for someone who, if elected, would not be permitted to serve). It could perhaps be up to each state to make that determination, since states have a lot of freedom in how they set up their elections, and the requirements to be on a ballot.

(BTW, it is 14th amendment, your post has a typo, it says 24th.)

This leads to the question of what would happen if Trump were on the ballot in November, and won the election, but was not permitted to serve. Maybe the electors would cast their votes for whoever came in second (i.e. Biden). Maybe the electors would cast their votes for the running mate of the winning ticket (i.e. Trump's VP pick). Maybe a lack of agreement about what to do would prevent anyone from getting 270 of their votes, and the election gets thrown into the House. Then the winner would be determined by which party won the majority in the 2024 elections (since that House gets seated on Jan 1, which precedes the date when the election for President is certified by the House.)

[Botany]

7. Thanx for the correction

Botany =

I have never met a lawyer who did not think he and or she can not make the argument that
water is not wet, snow is not cold, and that it doesn’t get dark @ night. So the idea that if
elected the person would be ineligible to serve as per the U.S. Constitution so the idea that
the ineligible person should not be allowed on the primary or general election ballot should
be moot but then again logic doesn’t seem to have a place in certain cases. See US Supreme
Court bush v Gore where 5 justices ruled that it was illegal to count the vote in Florida.

[thesquanderer]

8. Exactly. It doesn't make sense to permit someone to run if they can't serve, but...

...if the court wants to justify the opposite position, there is a case to be made that the Constitution does not specifically prohibit it.

Though that also reminds be of the reference to the movie Air Bud, "well, there's no rule that says a dog CAN'T be on a basketball team..."

Logically, the intent of someone being on a ballot should be to serve. But as you say, lawyers...

[bucolic_frolic]

3. I don't know how much I can buy the premise of the article

Obscurity? Not to anyone who took a few poli sci courses, not to law professors, many lawyers, perhaps even most people who work in the judicial end of law enforcement. So the idea these two special lawyers discovered this hiding in plain sight obscurity and only they knew what to do with it? Who writes these articles? Is the journalist like a relative, or a public relations tool?

[FakeNoose]

4. The original article on AP News has a couple of interesting paragraphs

Quote:

It’s the first time in history that the nation’s highest court has heard a case on Section 3, which was used to keep former Confederates from holding government offices after the amendment’s 1868 adoption. It fell into disuse after Congress granted an amnesty to most ex-rebels in 1872.

Before the violent Jan. 6, 2021, attack on the Capitol, even many constitutional lawyers rarely thought about Section 3, a provision that isn’t taught at most law schools and hadn’t been used in court for more than 100 years. Legal scholars believe the only time it was cited in the 20th century was to deny a seat in Congress to a socialist on the grounds that he opposed U.S. involvement in World War I.

The fact that SCOTUS will rule on Chump's eligibility brings this Section 3 of the 14th Amendment into white-hot focus.

EDIT TO ADD OP LINK: https://apnews.com/article/trump-14th-amendment-insurrection-supreme-court-colorado-2b9d5b628cb2779fc84212cdc651e4e7

[bucolic_frolic]

5. Any decent history book on Reconstruction would have included 14A Sec 3

I recently read "Klan War" which is a recent book but there are others. Biographies of Thaddeus Stevens would also include it because he was it's major proponent in Congress, which also included the 1866-68 laws that preceded passage of the Amendment.