Section Three Punditry: The Good, The Bad, and The Silly
Jan 3, 2024
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Analyzing Section 3 of the 14th Amendment, potential Supreme Court review of Trump's eligibility, 50 state solution, ballot access requirements, comparing Colorado case to earlier cases, consequences of excluding Trump from the ballot, critiquing an interpretation of the 14th Amendment, discussion on Professor Moyn's article and Ruth Marcus's argument, interpretation of the Constitution and state power, involvement of Supreme Court, analyzing arguments on the 14th Amendment, presidential commissions and constitutional language, analyzing the ongoing issue of officer business.
The Supreme Court should overturn the Colorado ruling unanimously to prevent uncertainty and potential violence from Trump's supporters.
Section 3 of the 14th Amendment should not be used to hinder Americans from voting for their preferred candidate.
Sam Moyn's argument against judicial review and for a national narrative is contradictory and fails to address the legal principles.
The interpretation of Section 3 should be based on the careful analysis of the Constitution, not personal opinions or political considerations.
Deep dives
The Supreme Court should overturn the Colorado ruling unanimously
Sam Moyn argues that the Supreme Court should overturn the Colorado ruling unanimously, as it creates uncertainty and invites potential violence from Trump's supporters.
The Supreme Court should toss the Colorado case
Ruth Marcus argues that the Supreme Court should not use Section 3 of the 14th Amendment to prevent Americans from voting for the candidate of their choice.
The confusion surrounding Sam Moyn's argument
Sam Moyn's argument against judicial review and for a national narrative is contradictory and fails to address the legal principles at hand.
Integrity of Ruth Marcus's argument
Ruth Marcus presents a strong argument based on her principles, although it disagrees with the interpretation of Section 3 of the 14th Amendment.
The importance of considering text, history, and structure
The interpretation of the law should be based on a careful analysis of the text, history, and structure of the Constitution, rather than personal opinions or political considerations.
The meaning of Section 3 of the 14th Amendment
Section 3 of the 14th Amendment states that anyone who has engaged in insurrection or rebellion against the United States cannot hold any office unless allowed by a two-thirds vote of Congress. The podcast explores whether this section applies to the President and disqualifies them from office. The host argues that the language of the amendment, which refers to 'officers,' includes the President, as they hold an elected office. The argument that the President is not an officer is countered by the fact that the President commissions all other officers and can be removed from office through impeachment. The host challenges the listeners to find any historical source that explicitly says the President is not an officer, and they refute arguments that attempt to limit the scope of Section 3 depending on specific positions or constitutional clauses.
Interpreting the language of the Constitution
The podcast details the textual arguments put forth by legal scholars regarding the interpretation of Section 3. Kurt Lash, a scholar mentioned, suggests that the language of the amendment only applies to state officials and members of Congress. However, the host disputes this, emphasizing that the phrase 'all officers' encompasses cabinet officers, Supreme Court justices, and the President. The host asserts that any argument suggesting the President is exempt from Section 3 in the absence of explicit language is flawed. They challenge proponents of this view to provide evidence and justification as to why the President, unlike other officers, should be excluded from the disqualification mentioned in the amendment.
Debunking misconceptions and flawed arguments
The podcast debunks several misconceptions and flawed arguments related to Section 3. It dismisses the claim that the President does not need a commission because of the language in Article II, Section 3 of the Constitution. The host points out that commissions are not necessary for the President's designation and removal from office, as this is determined by Congress through the opening and counting of electoral college ballots. The argument that Section 3 does not apply to the President because of the right to vote for the President is also refuted, with the host explaining that limitations on presidential electors demonstrate that the President's eligibility is subject to constitutional restrictions. The podcast concludes by criticizing media outlets for perpetuating misleading arguments and stresses the importance of engaging with accurate interpretations of Section 3.
The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to present their argument and respond to it, bringing Professor Amar’s considerable armamentarium to bear for your benefit. And this week, Akhil has at least two - maybe three - major new ideas he brings to the national discussion. They can be found here first. CLE credit is available from podcast.njsba.com.
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