2 Experts, 3 Courts, Section 3, Part 3 - Special Guests William Baude and Michael Stokes Paulsen
Dec 12, 2023
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Special guests William Baude and Michael Stokes Paulsen, leading experts on Donald Trump's disqualification under Section 3 of the 14th Amendment, discuss the arguments made in court and in the media. They cover topics such as confirmatory evidence, interpretation of Section 3, critiques of enforcement, understanding departmentalism, the nature of law and constitution, risks of political retaliation and violence, disqualification vs punishment, the psychology of judges, judicial restraint, the importance of judges ruling on cases, and the extent of Supreme Court authority.
Section three of the 14th Amendment is a forceful and self-executing part of the Constitution that does not require activation by Congress.
Citizens have a moral and civic obligation to vote in conformity with the Constitution and not support constitutionally ineligible candidates.
The Constitution should not be held hostage to threats of violence or political consequences, and constitutional principles must be upheld despite potential backlash.
The question of timing in enforcing section three should be approached with early resolution and informing people of the constitutional implications to prevent further conflict.
Deep dives
Section three of the 14th Amendment and its enforceability
Section three of the 14th Amendment is discussed, highlighting its enforceability and relevance beyond the Civil War period. It is argued that section three is a viable and forceful part of the Constitution, with much acceptance for the idea that it is self-executing and does not require activation by Congress. While some have raised political objections, it is emphasized that constitutional limitations on eligibility are not undemocratic, drawing parallels with limitations such as the 22nd Amendment. The importance of upholding the Constitution and not letting it be held hostage to threats of violence or political retaliation is underscored.
The role of citizens in constitutional interpretation
The duty of citizens to adhere to the Constitution and act consistently with it is discussed. It is argued that citizens have a moral and civic obligation to vote in conformity with the Constitution, particularly if they recognize someone as constitutionally ineligible for office. While voting for an ineligible candidate may not be a technical crime, it is seen as a breach of fidelity to the Constitution. The importance of citizens interpreting and applying the Constitution faithfully is emphasized.
The risk of political retaliation and violence
The concern of potential political retaliation and violence in response to enforcing section three is acknowledged. It is noted that historical figures, such as Chief Justice Chase, have succumbed to similar fears in the past. However, it is argued that the Constitution should not be held hostage due to threats of violence or political consequences. The importance of carrying out constitutional principles despite potential backlash is emphasized, drawing comparisons to the civil rights cases preceding Brown v. Board of Education.
Balancing remedies and potential consequences
The question of the speed and timing of enforcing section three, considering the potential consequences, is addressed. The argument for gradual enforcement, based on concerns of resistance and violence, is acknowledged. However, it is emphasized that waiting indefinitely may not be the best approach. Encouraging early resolution and informing people of the constitutional implications sooner rather than later is suggested to prevent further conflict
District court judge makes factual determinations in insurrectionist case
In the Colorado case, a trial judge made important factual determinations regarding the January 6th insurrection and Trump's role in inciting it. The judge concluded that Trump intended to incite insurrection and that January 6th was indeed an insurrection. These factual determinations will likely have a significant impact on the legal proceedings. Although the judge also concluded that section three of the 14th Amendment does not apply to the president, this conclusion is open to potential reversal by the Colorado Supreme Court on appeal.
Michigan court defers decision, citing political question doctrine
The Michigan court, citing the political question doctrine, deflected responsibility and claimed that it is not their role to decide the case. They argue that this matter should be for Congress to determine. However, this decision may have limited relevance, as it is uncertain whether Congress has the power to reject electoral votes based on constitutional disqualification. The role of Congress in these cases remains a matter of debate, as the text and history of the Constitution do not clearly establish whether Congress has substantive power to reject electoral votes.
Minnesota case distinguishes between primary and general elections
In the Minnesota case, the state supreme court ruled that while the Republican Party has discretion in determining who appears on the primary ballot, the general election presents a different situation. The court decided to defer its ruling on the general election issue, indicating that further consideration may be required. This decision highlights the need for clarity and resolution in determining a candidate's eligibility long before the general election, as uncertainty could lead to inconsistent rulings and potential disputes.
Congress's role in determining eligibility and counting electoral votes
Congress plays a pivotal role in determining a candidate's eligibility and counting electoral votes. While state courts and legislatures can address specific eligibility issues, Congress ultimately decides the fate of electoral votes. There is ongoing debate about the extent of Congress's authority in rejecting electoral votes based on disqualification. Some argue that Congress has a substantive power to reject such votes, especially under the 14th Amendment. However, others contend that Congress's role is more limited, with a duty to open and count the votes rather than making determinations of constitutionality. The issue of Congress's authority in these matters requires further examination and legal clarity.
The question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts. Last week the Colorado Supreme Court heard appeals of the District Court rulings. As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged definitive article. (Note: this episode is uploaded a day early because of the timing of the case.) They respond to the arguments made in court, as well as those that have been put forth in media and elsewhere - and we also consider the two other cases, in Michigan and Minnesota. The previous appearance by Profs. Baude and Paulsen were the highest rated episodes in Amarica's Constitution's 3 years, and this may be even more important for clerks, judges, and citizens to hear and consider.
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