20 Questions on Section 3 and Insurrection #1 - Special Guest Ted Widmer
Feb 7, 2024
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Special guest Ted Widmer, a distinguished historian and professor, joins the podcast to discuss the conspiracy to prevent Lincoln's election and cripple the Union, exploring the implications for the Trump v. Anderson case. They compare historical events to the Capitol insurrection, analyze Section 3 of the 14th Amendment, and emphasize the importance of a peaceful transfer of power.
The president's oath is more than a simple oath to support the Constitution, implying a duty to actively preserve, protect, and defend it.
Section 3 of the 14th Amendment allows for disqualification from office for engaging in insurrection or rebellion against the United States, and this provision is part of the democratically adopted Constitution.
The interpretation of Section 3 should be guided by originalism, recognizing the intent of the framers to prevent threats to democracy and ensure a peaceful transfer of power.
Allowing each state to enforce Section 3 in its own way upholds democratic principles and judicial minimalism, respecting the democratic accountability of state officials and courts.
Deep dives
The president is an officer within the meaning of Section 3 of the 14th Amendment
The argument that the president is not an officer is not supported. It does not make sense, no one argued it at the time of the 14th Amendment, and there are clear examples that demonstrate otherwise.
Every officer needs a commission
The president does not require a commission like other civil officers. The presidential oath is equivalent to a commission, which is different from an oath to support the Constitution.
The impeachment clause does not require the word 'other'
The inclusion of the term 'other' is not necessary in the impeachment clause, as it applies to all officers, including the president.
The presidential oath to preserve, protect, and defend the Constitution
The president's oath is more emphatic than a simple oath to support the Constitution. It implies a duty to actively preserve, protect, and defend the Constitution.
Section 3 of the 14th Amendment: Disqualification from Office
Section 3 of the 14th Amendment allows for the disqualification of individuals from holding office if they have engaged in insurrection or rebellion against the United States. This provision is not undemocratic, as it is part of the democratically adopted Constitution. The disqualification is not punishment, but rather a qualification for office. The decision to disqualify someone is not the sole authority of the Supreme Court, but can be determined by state election officials, state courts, or Congress. The 50-state solution allows each state to have its own approach to disqualification, in line with state constitutions. Upholding Colorado's decision to remove Trump from the ballot is a more democratic approach, as it respects the decisions of democratically elected state officials and courts.
Interpretation of Section 3: Originalism and Intent of the Framers
The interpretation of Section 3 should be guided by originalism, recognizing the intent of the framers of the 14th Amendment. The framers had experienced threats to democracy and sought to ensure a peaceful transfer of power. The provision applies not only to criminal convictions, but also to disqualify individuals who have broken their oaths or engaged in insurrectionary acts. The emphasis is on preventing the proper counting and certification of electoral votes during a critical moment, such as the presidential election or certification of a new president. Upholding the disqualification of Trump aligns with the original intent and democratic wisdom of the framers.
Balancing Democracy and Judicial Minimalism
Ensuring democratic principles and maintaining judicial minimalism can be achieved by allowing each state to enforce Section 3 in its own way. Upholding Colorado's decision respects the democratic accountability of state election officials and state courts. Imposing a sweeping national ruling would undermine state constitutions and the role of state Supreme Courts, who are democratically countable. Congress also has the role to soften the rigors of Section 3 through the power to provide amnesty. By adopting a more modest stance, the Supreme Court can respect the democratic process and avoid overstepping its role. Upholding Colorado's decision is a less intrusive approach and better aligns with principles of judicial minimalism and state autonomy.
Oral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake. We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise to the oh-so-timely topics of John B. Floyd and the conspiracy to prevent the certification of Abraham Lincoln’s election with the aim to prevent his inauguration and otherwise cripple the Union during the Secession Winter. This was of course integral to our amicus brief in the case, and this podcast offers additional support for its theses. We also review the promised “20 questions” that the brief explored - the perfect review or reference as the Court faces this vital case that has gripped the nation. CLE Credit is available from podcast.njsba.com.
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