Insurrection and the 14th Amendment [NLC 2023]

Featuring:
- Prof. William Baude, Professor of Law and Faculty Director, Constitutional Law Institute, University of Chicago Law School
- Prof. Michael W. McConnell, Richard and Frances Mallery Professor and Director, Constitutional
Law Center, Stanford Law School; Senior Fellow, Hoover Institution
- Moderator: Prof. Julia D. Mahoney, John S. Battle Professor of Law and Joseph C. Carter, Jr., Research Professor of Law, University of Virginia School of Law
* * * * *
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

[@originalgangsta794]

Thank you

[@originalgangsta794]

Thank you for your clarification and law statue of factual base subject matters of course

[@originalgangsta794]

This means any LLC

[@halfulford3081]

Why would anyone in their right mind vote for someone they know can't hold the office they are running for? That's the stupidest argument anyone could make that a person can run for the highest office in the USA but cannot hold that office.

[@ubroc]

This is maga being desparate

[@professormuro]

@@ubroc Wrong again. The argument was made today at the Supreme Court because that is what it says in Section 3. You can't keep people off of the ballot unless they didn't pay the filing fee.

[@ubroc]

What you heard tody were texturalists inventing new constitutional concepts to make an activist decision.

[@halhagy1766]

It’s interesting that the historically conservative, and partisan members of the Federalist Society are so concerned about Partisan secretaries of state choosing to keep a presidential candidate off of the ballot, and allowing a judicial decision to be made, when this entity is probably as Partisan, or more partisan than most secretaries of state. Since this amendment is self actuating, the courts should have no hand in giving an opinion in this decision. Saying Donald Trump was not acting as a participant, or an instigator of an insurrection, is in itself a dangerous, and partisan observation Making congress an arbitrator is ludicrous, as congress is not only a hyper partisan body, but also has extremely financial motivations in making very consequential decisions.

[@professormuro]

Congress criminalized insurrection and you can find this in Title 18, Section 2383. Thankfully, one must be convicted, in court by a jury of peers, of insurrection to be banned from holding office, but there is no ban for appearing on a ballot. If Trump is an insurrectionist, Mr. Halhagy1766, then would someone please indict him for insurrection. Trump has been indicted for everything EXCEPT insurrection. Indict him, have a trial, render a verdict, and then, if guilty, he would be unable to hold office. However, no one has the authority to unilaterally deny a citizen access to being on the ballot. Reading the 14th Amendment would be a good place to start, friend.

[@ubroc]

Congress has the final say in that they are empowered to grant amnesty through a political process. They have done so in the past for other insurrectionists and tump should avail himself of that remedy.

[@professormuro]

@@ubroc It wouldn't make sense until he's actually convicted of insurrection. Of course, you have to be charged with it first. What makes you think the US Senate would approve this remedy? Trump wouldn't have the votes in the Senate.

[@ubroc]

@@professormuro A criminal conviction is not required by the Constitution. sorry but you don't agree but that's how they wrote it. The remedy of a Senate vote for amnesty is a provision in the 14th Amendment. If teh Senate doesn't approve then he remains ineligible. But only the Senate can make a political decision, not the USSC He doesn't have the votes on the USSC either.

[@professormuro]

@@ubroc To "engage in insurrection," one must be convicted of it. Congress created Title 18, Section 2383 of the US Code to provide for the prosecution of insurrection. You are factually incorrect if you posit that a person is guilty of insurrection by a group of individuals labeling someone as an insurrectionist. There is this thing called due process that everyone, even Trump, is entitled to before they can be branded an insurrectionist. You are also incorrect about the USSC . . . as they will vacate Colorado's Supreme Court. You will be proven wrong definitively in the third week of February. I'll accept your apology in advance.

[@spottery2k]

You can engage in all the hair-splitting you like, but at the end of the day what we are considering is whether or not the events that transpired on January 6, 2021 and related events are acceptable political discourse. Anything less than a full and unequivocal NO dismantles guardrails protecting the US constitutional order and invites more of the same. A line has been crossed, gentlemen. What say you?

[@carlkutty5852]

59:20 VIOLENCE is NOT acceptable political disciurse.

[@martinmasten4107]

It isn’t a question of is it acceptable. I think most of us say no. Is it an insurrection?

[@spottery2k]

@@martinmasten4107 The next time anyone asks you "How do you define insurrection?" simply reply with these two numbers - 232 and 57 - because between February 9th and 13th, 2021 those were the MAJORITY votes in BOTH chambers of congress to the question, "Is Donald J Trump guilty of inciting an insurrection?" Although the Republican led Senate would not remove him from office, those majorities formally identified him as an insurrectionist, per the congressional record, effectively triggering Section 3 of the 14th amendment. The only excuse the Republican led senate made for not removing him from office was he was only weeks away from the end of his term and could be subject to prosecution thereafter, an argument they now pretend they didn't make. This point should be of special interest for those who follow conservative jurisprudence, which abhors what they often criticize as political activism from liberal justices. If congress has formally ruled as a matter of fact that Trump is an insurrectionist, the courts cannot say otherwise, just ask an originalist. Although it should need no further explanation, Republicans are highly intransigent and will likely respond to say that since Section 3 requires 2/3 majorities to remove the disability, then the same should be true for imposing the disability. However, that is not standard operating procedure. Simple majorities are usually enough to get most things done in congress. Super majorities are prescribed for specific circumstances, like removal from office, or to break a filibuster. No such procedure is prescribed where a vote is taken on a finding of fact, according to the congressional record. Donald Trump is an insurrectionist, and no further debate is needed, and anyone who has a problem with that can just take it up with congress to vote on removing the disability.

[@davidcertain2492]

They say there’s no such thing as a stupid question, but these legal questions aren’t just stupid, they’re a stretch, lame excuses.

[@spottery2k]

@@martinmasten4107 The next time anyone asks you "How do you define insurrection?" simply reply with these two numbers - 232 and 57 - because between February 9th and 13th, 2021 those were the MAJORITY votes in BOTH chambers of congress to the question, "Is Donald J Trump guilty of inciting an insurrection?" Although the Republican led Senate would not remove him from office, those majorities formally identified him as an insurrectionist, per the congressional record, effectively triggering Section 3 of the 14th amendment. By the Senate trial, Trump had already left office, and Rand Paul argued to dismiss the trial for that reason. However, House managers stipulated inclusion of the insurrection clause into their one and only article; therefore, the trial included that question. Since the only remedy for impeachment is removal, and they couldn't remove him if he was already gone, the disqualification clause remains relevant, and indeed a simple majority was all that was needed to make that finding a matter of the congressional record, even if removing him was off the table. This point should be of special interest for those who follow conservative jurisprudence, which abhors what they often criticize as political activism from liberal justices. If congress has formally ruled as a matter of fact that Trump is an insurrectionist, the courts cannot say otherwise, just ask an originalist. Although it should need no further explanation, Republicans are highly intransigent and will likely respond to say that since Section 3 requires 2/3 majorities to remove the disability, then the same should be true for imposing the disability. However, simple majorities are standard operating procedure, except where otherwise specified, and usually enough to get most things done in congress. Super majorities are prescribed for specific circumstances, like removal from office, or to break a filibuster. Donald Trump is an insurrectionist, and no further debate is needed, and anyone who has a problem with that can just take it up with congress to vote on removing the disability.

[@Nonesuch55023]

Prof. Baude: an officer of the 'Courts' is someone that enforces the 'Laws' of the Court. Including the Police Officers, in the Courts.

[@dnlchoc6830]

Every time McConnell I believe is his name agrees with the other panel and then but? No, but it's clear, and common sense is needed at times even when we have to try to understand where and how to use it

[@professormuro]

This post is the antithesis of clear and does not convey common sense.

[@dnlchoc6830]

@@professormuro is clear he agrees 95% of the time then he bends over backward to try to undermine the founder father's purpose to try to excuse Trump's constitutional crimes. During the Second impeachment, 57 voted he was guilty 3 short of 60, the other Republican senators didn't have the backbone to condemn Trump, afraid of backslash from the antipatriots. Now is the same thing Republicans are afraid of the monster they have created MAGA! Republicans haven't or don't want to see Maga has already drained true Republicans from the Washington swamp and the only ones holding the Constitution are the Democrats.

[@justicekharma7938]

KZbin · MSNBC Trump starts Waco rally with song by Jan. 6 prison choirKZbin · MSNBC

[@simonb4664]

42:50 Josh Blackman's debate request is so cringy

[@spottery2k]

The next time anyone asks you "How do you define insurrection?" simply reply with these two numbers - 232 and 57 - because between February 9th and 13th, 2021 those were the MAJORITY votes in BOTH chambers of congress to the question, "Is Donald J Trump guilty of inciting an insurrection?" Although the Republican led Senate would not remove him from office, those majorities formally identified him as an insurrectionist, per the congressional record, effectively triggering Section 3 of the 14th amendment. The only excuse the Republican led senate made for not removing him from office was he was only weeks away from the end of his term and could be subject to prosecution thereafter, an argument they now pretend they didn't make. This point should be of special interest for those who follow conservative jurisprudence, which abhors what they often criticize as political activism from liberal justices. If congress has formally ruled as a matter of fact that Trump is an insurrectionist, the courts cannot say otherwise, just ask an originalist. Although it should need no further explanation, Republicans are highly intransigent and will likely respond to say that since Section 3 requires 2/3 majorities to remove the disability, then the same should be true for imposing the disability. However, that is not standard operating procedure. Simple majorities are usually enough to get most things done in congress. Super majorities are prescribed for specific circumstances, like removal from office, or to break a filibuster. No such procedure is prescribed where a vote is taken on a finding of fact, according to the congressional record. Donald Trump is an insurrectionist, and no further debate is needed, and anyone who has a problem with that can just take it up with congress to vote on removing the disability they imposed themselves.

[@Nonesuch55023]

Prof McConnell: does it make sense to remove him before he's elected, yes. To try removing him after he's elected, seems like madness. That in itself would be cause for 'Civil War' hardly the first choice & only choice.

[@kevinmcinerney1959]

Decent discussion. McConnell made substantial points from a textual viewpoint, although that did leave him acknowledging that this could lead to an election being held where one candidate could be elected, and then denied office. That doesn't sound like a healthy outcome. The audience made its sentiments pretty clear - guffawing at the notion that President Biden is wilfully leading a de facto insurrection at the southern border. McConnell's statement that those attempting to enter the country were rooted more in a desire to share in American wealth rather than in rebellion were notably met with a stony silence.

[@silone20101]

This two lawyers are some good reminders all races that to take for adjustment but some has influenced his family believes the other ways more negatively in regarding of Mr. Trump voters in democracy?

[@gaylecheung3087]

Trump was stopped from going was the Secret Service stop him from going?

[@user-kj7cr4ed6g]

Mr trump did not go to the capital but you claimed or failed to mention that why the 14th amendenent states he had to be a part of it .if he did not go how coukd he bbe a part of it explain please

[@brianniegemann4788]

Engaging in an insurrection means that you participated in some part of it. Trump called the crowd to DC and goaded them into interfering with the ballot count. So he was the leader of the mob. When they started fighting with the police, Trump spent almost 3 hours watching the violence on tv and did nothing. So he's responsible for starting the riot, and for not acting quickly to stop it. Before Jan 6 Trump led a large conspiracy to change the election results by various means, including threatening officials like Raffensperger. But the worst thing he did was start the rumor that the election was unfair. That is a HUGE LIE. The election of November 2020 was legal and above board. Trump brought 62 cases claiming election fraud to various courts. Almost all those courts issued summary judgment decisions against him. One court held a hearing and found a discrepancy of 500 votes, hardly enough to make any difference. Yet Trump continues to lie about the election to this day. He lost. That's it.

[@Nonesuch55023]

To both Professors: The President of the USA is employed by the USA, he is paid a salary. He does not work for himself. Although it seems like he 'Trump' did work for himself. Simply put he's an "Officer" that enforces the Laws of the USA.

[@justicekharma7938]

KZbin · MSNBC Proud Boy brags from jail that Trump will pardon him - KZbin

[@chriseshelby7705]

Cult tank

[@professormuro]

Thank you, Federalist Society, for this excellent indulgence in cerebral pursuits, which is quite uncommon in our modern age. I am perplexed by some of Prof. Baude's arguments. My first concern is why everyone seems to omit Section 5 of the 14th Amendment from any discussion when everything in the Amendment is contingent upon Section 5. Every segment of the 14th is to be enforced as determined exclusively by Congress. Take that, Incorporation Doctrine. Congress already enforces the Insurrection Clause in Section 3, through Title 18, Section 2383 of the US Code. Isn't it clear that you have to be convicted of this section of Title 18 to be guilty of engaging in Insurrection? Professor Baude's assertion that Section 3 is determined by judges, election clerks, or State Cabinet officials making a controlling proclamation about when an Insurrection happens defies logic. It skips over the idea of due process. That is fulfilled by Title 18, Section 2383, and having to be convicted of it formally. Respectfully, Professor Baude will, eventually, by the end of this process be rebuked.

[@diegoquesada496]

The Supreme Court severely circumscribed Congress’s role to “enforce” the Fourteenth Amendment via Section 5. After City of Boerne v. Flores, Congress can only enact remedial legislation that addresses constitutional violations as defined by the Court. In fact, the Court explicitly rejected the idea that Congress can itself interpret the Amendment beyond the Court’s own constructions of its provisions. Based on the Court’s precedents, the Court is the only arbiter of the meaning of Section 3. Insofar as Professor Baude’s argument regarding the “self-executing” nature of Section 3 is correct, Congress’s role is to remedy violations of this provision-not enforce it in a traditional sense. Finally, the Court regularly enforces other sections of the Fourteenth Amendment without congressional action-e.g., equal protection cases such as SFFA. Granted, perhaps the Framers of the Fourteenth Amendment envisioned a more expansive role for Congress under Section 5!

[@professormuro]

@@diegoquesada496 Thanks for your thoughtful comments, however, I believe that you are conflating issues as Boerne was a different matter from the insurrection question. Personally, I concur only in part with that decision. Boerne dealt with Section 1, and the national government was punishing states for violating the free-exercise clause. RFRA, much of it, was determined to exceed the statutory authority of Congress. Again, fascinating issues but different from what is discussed in this video anyway. Section 3 of Amendment 14 can only be enforced by Congress, not the state of Colorado or any state, and that will be clear when the US Supremes overturn the Colorado Supreme Court, even if Sotomayor decides to cast her dissenting vote, solidifying her ideologue status of making it up as she goes along as she did in the vaccine mandate case during oral arguments. There are 100,000 kids on ventilators!!

[@patriciuss5743]

"Every segment of the 14th is to be enforced as determined exclusively by Congress." How is it that you read “exclusivity” into a clause that grants power to one branch of government the power to enforce, “through appropriate legislation” Many incorporation cases involved individual plaintiffs, one famous one being Yick Wo v. Hopkins, where Plaintiffs operated laundries s without a permit and were eventually imprisoned. Plaintiffs sued for writ of habeas corpus, arguing the ordinance in question violated their rights under the Equal Protection Clause of the Fourteenth Amendment. The unanimous opinion of the Supreme Court was yes. I do not recall any involvement of either Congress or a federal statute.

[@professormuro]

@@patriciuss5743 "Section 5.The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." How am I "reading" exclusivity into it? The language of the 14th is clear; no ambiguity. Congress, one branch, shall, not may, have the power to enforce, by passing laws, the provisions of the Amendment. It is no secret that Congress has abdicated many of its powers since the 1930's. See Louis Fischer.

[@patriciuss5743]

​@@professormuro Congress’s ability, “shall have” to pass laws does not mean others do not have standing to enforce the 14th amendment directly through, say, the equal protections clause. If Congress is the only mechanism of enforcement, how then do you explain the numerous cases where a Plaintiff's cause of action is a direct invocation of the equal protections clause (e.g. Yik Wo v. Hopkins and many, many, state cases where the equal protection clause is invoked as a cause of action by an individual plaintiff?

[@justicekharma7938]

KZbin · Associated Press Trump tells Proud Boys: 'Stand back and stand by'

[@ubroc]

18 U.S. Code § 2383 "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both, and shall be incapable of holding any office under the United States." 18 U.S. Code § 2383 is unconstitutional because only the Constitution can establish qualifications for President, not Congress. 18 U.S. Code § 2383 disqualifies insurrectonists who never took an oath of office. Therefor it should not be considered an enforcement code for Section 5. There is nothing in Section 5 that prohibits the power of enforcement from States given to the states by the 10th Amendment. There is no legitimate definition of Section 3 that doesn't apply to J6. If anyone on this thread can find one please post it. I'll post one here that clearly covers J6. Webesters Dictionary 1828 INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.] 1. A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.

[@brianniegemann4788]

Very good points, l agree with you 99%. I would just add that in my humble opinion 18 USC 2383 is constitutional because it deals with the punishment of insurrection. A person convicted under this section would lose the right to hold office in addition to fines and prison time. But he'd have to be convicted first. Clearly a state has the right to disqualify a candidate. If a person applied as a presidential candidate in Colorado and the state learned that they were only 26 years old, the application would be rejected. And nobody would think twice about it. Thanks for your excellent comment.

[@ubroc]

If the only way a person cn be DQ from the presidency is by a standard set by the constituition then how can Congress set a different standard as they did in 18 USC 2383? If 18 USC 2383 applies to the president then isn't that proof that A14S3 applies to the presidency?@@brianniegemann4788

[@professormuro]

@@brianniegemann4788 Wrong. Listen to oral arguments from the Supreme Court yesterday, Section 2383 came up more than once. It is made is pursuance of Section 5 of the 14th Amendment. Who cares what Merriam Webster says? The dictionary didn't come up, but this section of the law did. A state can deny ballot access for citizenship, age and residency as described in Article I. That is it, not by declaring someone an insurrectionist. In order to have an insurrection, someone has to be convicted of . . . insurrection.

[@professormuro]

@@brianniegemann4788 True, nobody would think twice because of the Qualifications Clause. Age, citizenship, and residency . . . no one would think twice. You are correct. However, this isn't that. Colorado is adding items to the list, and they cannot. It is obvious now that the Supreme Court will slap down Colorado on this very question, and it will be 9-0 or 8-1. Sotomayor might not be able to help herself.

[@professormuro]

Wrong. Section 2383 is not unconstitutional. No serious person believes this to be so, and no one who matters has ever made this claim. There is something in Section 5 that prohibits states from enforcement when it names Congress as the only entity with enforcement power. How hard can it be? Here are the 15 words: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. What is the major malfunction? The Congress. That's it. The Congress shall . . . not might, not could, but shall . . . have the power. Not share the power, shall have the power.

[@robertcruces6170]

I think the best answer is…. Garbage statement

[@justicekharma7938]

KZbin · MSNBC 111K+ views · Trump on a possible second term: 'I'd be a dictator on day one'

[@robertcruces6170]

Out of context…. He said to secure the southern border and to drill baby drill…. watch the entire video

[@PurpleIrishSweater]

@@robertcruces6170he also said he thought there was cause to throw out the Constitution. While I completely believe that Trump says a lot of nonsense things just to yank everyone around, I no longer trust him. January 6th proved to me that he should never be trusted with the powers of the Office of the President. If we still think we need him as a chaos agent, he would be a wonderful state senator or representative. Let him go create drama in New York. Let him run for Governor there, or take over as mayor of NYC. But not the nation. And not the free world. He doesn’t have the moral courage or personal integrity to be President again.

[@robertcruces6170]

The southern border….yes

[@HumblyQuestioning]

I see where McConnell is going and it is utterly insane. He comes across as wanting to win an argument and not get to truth. That's apologetics and not interesting.

[@professormuro]

Actually, it doesn't seem that you see where Professor McConnell is going. One year from now, or even sooner, it will be settled without question. Prof McConnell will prevail on the facts. Also, both of these gentlemen were extremely interesting, and the format of the discussion was an excellent design.

[@HumblyQuestioning]

@@professormuro Then it will be one of the saddest days in American history if a finding is made that insurrectionists may not hold any office EXCEPT the presidency, that the Office of the Presidency is not an office under the United States despite plain reading in Article 2 Section 1 as well as the oath of office, that the presidential oath to “preserve, protect, defend” is not an oath that “supports” the constitution, and all of the other absurdities one must accept to believe that an insurrectionist may hold the highest office in the US. But please fill me in on how I’m wrong and how the framers intended for insurrectionists to hold the presidency.

[@professormuro]

@@HumblyQuestioning People are not insurrectionists because you say they are. They are not insurrectionists because there is a "consensus among the experts." A person is an insurrectionist because they are convicted of it in court, and found guilty of violating Title 18, Section 2383. Not one person has been charged with, let alone convicted of insurrection, hence the reason you are incorrect. If Trump gets convicted of insurrection, then he could only hold office with a 2/3rds vote of Congress to repeal the restriction in the 14th Amendment. Simple.

[@HumblyQuestioning]

Now sadly, that judge was unwilling to say the presidency fell under 14th. Why? Well first and foremost she was terrified of maga death threats. Just look at the utterly ridiculous reasoning, setting up the appeal for CREW, but devastating Trump on facts of insurrection. He's an insurrectionist, the end. No appeal is going to undo that. But do we allow insurrectionists in the presidency? That's the question and it has to be "no"

[@BrianShh]

@@HumblyQuestioning that wasn't his argument...his argument was he must be convicted in court before this applies to him. and that there is not enough evidence, or any, depending on who you talk to; to substantiate that he committed or aided an insurrection

[@truckerdude977]

We have 2 flags we are flying war time flag since 1933.

[@dnlchoc6830]

Precedent He says, there was a 50-year precedent called Roe v Wade, and they shovel up their 🍑 so his argument is pathetic!

[@truckerdude977]

14th amendment was never ratified

[@dnlchoc6830]

Precedent He says, there was a 50-year precedent called Roe v Wade, and they shovel up their 🍑 so his argument is pathetic!

[@kevinyaucheekin1319]

Not a Yank, Singaporean & foeman to the banksters of the FRBNY. It was July 9th, 1868. 2 years after it was proposed. It was ratified. However, Orangeman was never impeached for insurrection by the Senate, nor was he tried & convicted by a duly consituted federal court under Title 18 USC 2383 for the crime of insurrection. Therefore, Orangeman is innocent until he is convicted by either the Senate or a duly consituted Federal court. Innocent until proven beyond reasonable doubt that he is guilty. Under 14 A Sc 5, "Section 5 Congress shall have the power to enforce by appropriate legislation, the power of this Article." Congress did pass such a applicable federal law into existence & it's Title 18 USC 2383 which makes insurrection & rebellion a federal crime. Therefore, as per 14th A sc 5 a federal court as per Title 18 USC 2338 where he can be charged & prosecuted for insurrection or rebellion by a Federal prosecutor in a federal court. As per 14th A Sc 1, "no state shall make or enforce any law which shall abridge the privileges or immunities of a citizen of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person of life, liberty, or property without due process of law; nor deny to any person within the jurisdiction the equal protection of the law." That means Trump need be at least impeached by the Senate & or convicted under Federal law, Title 18 USC 2338 for the crime of insurrection to be denied the right to run for the position of President of the United States. He was never indicited much least convicted under federal criminal lawTitle 18 USC 2338. Therefore, he has the right to run until & unless the US Senate or a Federal court convicts him. As per 14th A Sc 1 his rights to run cannot be determined by the states or even a state supreme court but only by the senate & or alternatively a US Federal court under US Federal law Title 18 USC 2383. Blame the ijits of the DoJ for not empanelling a federal grand jury to establish a probative cause of action against him & doing the necessary due process to convict him in a federal court. Capiche Yankee 😊

[@ubroc]

Title 18 USC 2383 is unconstitutional, so there's that.@@kevinyaucheekin1319

[@brianniegemann4788]

You really should look that up in a history book before you go around making such unfounded claims. Your local library will have some good books on civil war history to help you understand. Nobody has to know that you looked up the truth and believed it.