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.

[halfulford]

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.

[Nonesuch]

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.

[spotteryk]

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?

[halhagy]

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.

[spotteryk]

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.

[Nonesuch]

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.

[hartmatterhorn]

What in the world is ambiguous about "peacefully"?! Is there any definition of the word that includes breaking into the Capitol?

[Nonesuch]

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

[dnlchoc]

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

[silone]

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?

[justicekharma]

YouTube · MSNBC
Trump starts Waco rally with song by Jan. 6 prison choirYouTube · MSNBC

[kevinmcinerney]

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.

[simonb]

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

[originalgangsta]

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

[gaylecheung]

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

[justicekharma]

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

[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.

[Jonmurray-vg]

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

[justicekharma]

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

[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.