Debate on Trump's disqualification, importance of 14th Amendment enforcement, provisions as swords and shields, criticism of trial judge's findings, misinterpretation of Cohen's case, expectations for enforcing restrictions on insurrectionists, inconsistency in 14th Amendment Section 3 interpretation, irrelevance of McKee, challenges of accelerated briefing schedules, correcting mistakes in legal practice, challenges of applying originalism, importance of disseminating legal knowledge in society.
Misinterpretation of a Thaddeus Stevens quote weakens the Attorney General's argument about self-execution.
The mistake reveals a lack of familiarity with the history of the 14th Amendment and raises concerns about the scholars' understanding.
The Constitution requires legislative action for the census implementation, highlighting the importance of congressional involvement in implementing constitutional provisions.
Deep dives
Thaddeus Stevens quote misinterpreted
The Attorney General and his colleagues misinterpret a quote from Thaddeus Stevens, claiming it supports their argument, when in fact Stevens was referring to a different section of the 14th Amendment and his statement was made before the final version of section three was drafted.
Lack of understanding of 14th Amendment drafting history
The mistake in the Attorney General's brief reveals a lack of familiarity with the history of the 14th Amendment, particularly the drafting and changes made to section three. They misinterpret the significance of the earlier draft and its relationship to the final version, undermining their argument about self-execution.
Impact on overall argument
The incorrect assertion of the Thaddeus Stevens quote weakens the Attorney General's argument, as it was a central pillar supporting their claim about self-execution. Without this quote, their argument loses significant evidence and is less compelling.
Larger implications for scholarship and competence
The mistake made by the Attorney General and his colleagues raises concerns about their understanding of the 14th Amendment and their scholarship. It is a significant error that should be acknowledged and corrected, particularly as it formed a key part of their argument before the Supreme Court.
The Importance of Passing Laws for Census
The podcast episode emphasizes that the Constitution requires Congress to pass laws detailing the census, highlighting the importance of legislative action for its implementation. This requirement demonstrates that the census cannot be self-executing, as Congress is obligated to pass laws to carry out the census. The episode draws parallels to other constitutional requirements that necessitate legislative action, such as the need for laws for criminal statutes or spending. These examples underscore the significance of congressional involvement in implementing constitutional provisions.
Challenges in Interpreting Section 3 of the 14th Amendment
The podcast episode discusses the confusion surrounding Section 3 of the 14th Amendment. It clarifies that earlier drafts of Section 3, which were tied to voting and had potential disenfranchisement implications, differ from the current Section 3. The episode highlights misconceptions about the earlier draft and explains that any arguments about its self-execution were rendered irrelevant as the language and meaning of Section 3 changed over time. The episode also raises broader challenges faced in originalist interpretation, including time constraints, limited case law, and the need for scholars to produce and consume relevant scholarship to assist in legal analysis.
Oral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else. At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others. We analyze the debate - and the brief. And in that brief, Akhil identifies what he considers to be an egregious error, which is telling not only in its fatal weakening of the particular argument, but in the way it calls into question the entirety of their brief, and how it points the way to needed reforms in the legal ecosystem as a whole. This is an indispensable episode. CLE credit is available from podcast.njsba.com.
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