Arnold Schwarzenegger might have been a very good candidate for President of the United States. Yet he was not and is not eligible. Is that anti-democratic?
Sir, as a public servant you should limit your pronouncement to what you know and can be empirically verified. You are not a lawyer. I hope when the SCOTUS rules you would be humble and honest enough to admit your gross error both in facts and logics.
The you-have-no-right-to-speak position is really lame. It's one notch above STFU, and you may want to consider that that's the kind of invective it conveys. As an argument, including your hint at some notion of regard for law or courts, your comment is empty.
Andrew scores, as usual, in thoughtfulness and expository writing. You might want to set aside which "side" wins or loses for a moment, and just entertain an argument on its own merits. (If you're a lawyer, then the tenor of your comments makes even less sense. I suspect you are not.)
I don't think anyone here said "you-have-no-right-to-speak." Also: in my reply to "Wilton" (is that you writing under a different name from "BWhatt"?) on Dec 30 (whose comment you are also replying) I started with the following 5 words: "I am not a lawyer." Given that, I am not sure why you merely "suspect" I am not a lawyer. In any case, I am curious: given that you think what I have to say is pretty terrible, why do you engage with it? (I ask in all seriousness; I am trying to understand why people get into various sorts of discussions.)
I think you misunderstood my remark. I am addressing Wilton, and what I see as his poorly constructed criticism of you that seems to imply that you are speaking out of turn. As he said:
"you should limit your pronouncement to what you know and can be empirically verified. You are not a lawyer."
I strongly disagree with his sentiment. I find all of your remarks to be thoughtful, reasonable and constructive.
I am not a lawyer; that doesn't mean I know nothing about the law and it certainly doesn't mean I am not competent to discuss what is or is not democratic. About the latter, lawyers have no special training; political theorists and philosophers do (I am a political philosopher by training). In any case, I'm happy to admit if I made a mistake about either facts or logic. Thus far, I haven't been shown either, but if and when SCOTUS rules, feel free to remind me. I won't promise to remember. Thanks for reading.
As to the claim that the CO decision isn't somehow unacceptably undemocratic or isn't deeply illegitimate, I agree that in principle there is nothing unacceptable about clear eligibility conditions. However, what does pose a serious threat to our democratic system is vague or ambiguous eligibility conditions which allow judges to choose the result they want based on ideological biases.
Had the CO supreme court articulated both a plausible set of elements that must be proved to constitute insurrection and the standard they need to be proved to I'd be much more sympathetic. Unfortunately the CO test seems to basically boil down to "isn't it obvious".
They basically adopt, with minimal analysis, the standard from the district court that "an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States” which the CO supreme court later interprets/modifies with the single extra demand that the action be intended to block the peaceful transfer of power.
But that's a pretty absurd rule. On its face that includes Trump asking the police or secret service to **legally** use force to protect him from protestors blocking his path to the capital where he intends to ask Pence to refuse to count the votes. More broadly, nothing in their standard requires any significant nexus between the force and the transfer of power. Suppose Trump asked his mob to mug people and give him the money so he could bribe Pence. That's an insurrection??
And WTF does block the peaceful transfer of power even mean? Trump wasn't trying to make the transfer of power violent, he was trying to prevent it from happening at all and he no doubt preferred that occur peacefully. Are they understanding this to mean that any protests (say as in Bush v Gore) claiming an outcome is illegitimate become an insurrection the moment one person is violent?
I suspect they really mean any attempt to illegitimately wrest control of the presidency. But again what does that mean? Technically speaking, Trump's theory that Pence could throw the election to the house is ridiculous but there are plenty of ridiculous constitutional theories that get taken seriously such as the trillion dollar coin or even accepted as precedent by the court. Besides, it's arguably not actually the constitution Trump was trying to violate but the electoral count act. So does violating any law to retain power count? What if 2024 does get thrown to the house and the train that a bunch of democratic reps are on gets delayed and Biden tells Harris to ignore the statutory deadline and wait until everyone shows up. Is that enough? What if delivering a note to that effect requires pushing past republican protestors by 2 staffers (so public concerted violence)?
I'm not saying any of these situations are at all similar but at a minimum the court should specify the elements of insurrection so as to clearly exclude all these obvious cases where the word doesn't apply. And this is on top of the lack of clarity about whether the president is an officer at all, when did Trump form what intentions on Jan 6th, is this part of the amendment self-executing.
The problem is that, taken together in the heat of a political campaign, all this ambiguity makes it seem like judges aren't applying some settled rule in this case but rather making up a rule that accords with their desiered outcome. I'd give the court the benefit of the doubt had it at least articulated a clear rule to apply in future situations rather than effectively saying: c'mon it's clearly an insurrection.
I have to agree with you about this. It leads me tho think, though, that SCOTUS really should weigh in and provide clearer indications of what counts as insurrection. (I still believe they can do better than "I know it when I see it."). Thank you for the very thoughtful comments. I appreciate it.
100% agree..but for all I want SCOTUS to rule Trump is disqualified (you could make a strong enough case/test here to be a reasonable interpretation and the benefit to the country from avoiding another Trump term is huge) I think all the incentivizes for them point the other way and I think a much narrower definition of insurection is probably the stronger legal interpretation.
After all, if you think the amendment really is self-executing then they likely assumed it would be obvious when it was satisfied or they would have given more process. Also, as the amendment was passed in the wake of the civil war it's pretty plausible that by insurrection they meant something along the lines of the civil war or the forceful denial of federal authority over part of the US (eg a state/region declaring federal law nullified and blocking federal enforcement by threat of force). Had Trump obviously intended to use force to hold the capital he might still qualify but it seems likely he didn't even expect that to happen (even he must have realized it wouldn't be in his interest) but just didn't want to help his enemies by reigning his supporters in when they did break in (bc he's a toddler throwing a tantrum after realizing his plan is sunk bc of the images on TV).
I don't think it's the only interpretation that's reasonable but SCOTUS has both political, pragmatic and judicial philosophy reasons for accepting it if they don't punt on some earlier off ramp.
Yep. Most people who I know and respect as being far more knowledgeable about this stuff than I am think my prediction is wrong. They are probably right. I'm keeping the prediction nonetheless. I've never been a betting man and it is not something I am supposed to be expert at, so little hinges on it.
I'm curious what your grounds are for sticking with the prediction? Do you mostly just expect SCOTUS to avoid the issue, e.g., 40% chance they avoid taking the case and just 10% they uphold the CO decision?
Or are you including the outcome in which they take the case and either apply the political question doctrine or otherwise leave it to the individual states so they leave CO decision in place for CO? That doesn't seem crazy but since it requires something pretty specific and usually political question means deference to non-judicial branches I wouldn't give it more than 10%.
However, I think the chances they actually hold that Trump is barred under the 14th are extremely low and I'm not sure how you can plausibly believe otherwise given your other views. I mean it doesn't appear that you think the argument for him having engaged in insurrection is extremely compelling. Does that mean you don't think the incentivizes and biases push SCOTUS not to disqualify Trump?
I know that deference to experts is a complex issue but the fact that this seems to be expert consensus plus the sheer number of ways they could avoid doing this makes me suspect that if you assigned them each subjective probabilities and multipled them out you'd have trouble getting a probability over 30%
Call it a hunch. I’m not sure I can really articulate any real reasoning here. Partly, it has to do with the decision earlier this year regarding states’ rights and the Voting Rights Act--a thought that the justices will want to find a counterbalance to giving power to Federal legislation. But I don’t know all of the relevant law and certainly don’t have access to the minds of the nine. I’d add I’m something of an enthusiast for reason ruling the day, even amongst justices who have provided evidence against the likelihood of that.
I'd argue that all those rules are in some sense anti-democratic. They may be good and fair anti-democratic rules but they impose limitations on the ability of the people to choose the leader they want.
I get the point you are trying to make but I think we need a more careful definition of anti-democratic to distinguish it from simply unacceptable or wrong. The arguments you give seem to all be of the form that certain rules are reasonable for states to apply to elections -- which seems to me to be an argument that the deciscion isn't somehow unacceptably anti-democratic not that it isn't anti-democratic.
All of the rules I discussed impose limits on the ability of people to choose the leader they want. Is that undemocratic? In some sense, but if one won't complain about it being undemocratic to prevent 20 year olds from being president, one can't complain about preventing insurrectionists. One can complain about both, but no one does. In any case, the loose definitions I provide were not in the first draft of the piece and I'm not committed to them. The literature on what is and is not democratic is huge; I haven't read it all, but I've yet to find a definition that I think works for all purposes. I suspect there is no such thing; that it simply is different in different contexts. My real point in the post is simply that the cases now being considered are not undemocratic (and certainly not anti-democratic) in this context.
Sure, I don't have an issue with those examples being undesirable but I think you are conflating undemocratic with bad/unacceptable. I think that's a potentially risky thing to do.
Specifically, it seems to build in the assumption that it's something about being democratic that makes a government legitimate/acceptable/good. And sure maybe that's true but it's a complex issue and not at all an obvious one.
I mean, I agree that as a contingent matter of human psychology, our technological and social development it seems like systems that are largely democratic tend to be superior to the alternative but I'm skeptical that there is anything to this notion beyond this empirical observation. If you could articulate rules that denied almost everyone the vote but convinced me they'd maximize utility in the long run I'd find them just as acceptable as your examples here.
And I fear this move because it invites us to make fallacious inferences by shifting between the concepts of legitimate/good and reflecting the will of the people.
We're in agreement! Until someone offers a convincing definition that makes sense all of the cases, I don't think there is much more to do. Putting my point differently: I don't intend (at the moment) to provide a good definition of "democracy" so am content to point out the inconsistency of those claiming the recent actions are undemocratic--they simply are no more undemocratic than the other sorts of cases I include in the post. I didn't mean to say democracy makes government legitimate. That's why I left in this line: "merely claiming something is undemocratic is simply not sufficient to show that it is bad. (Nor, I think, is claiming something is anti-democratic, but that is not to the point here.)." I am concerned to protect freedom; if democracy does that, great; if it doesn't, then I'd toss it.
In our system, a person has to be charged with a crime and then given due process in a court. Mr. Trump was never charged and there was not trial by a jury of his peers. On the other hand you may argue that he was accused of something by his impeachment but for that he was acquitted by the Senate. Therefore, he cannot be tried again by any court because of the Constitutional guarantees against double jeopardy. As a philosopher it is your duty to lay out the whole case and not just make one sided pontifications.
Sorry, but I don't know enough about insurrection law to really answer any better about that than I already did below. A CO court said he took part in insurrection. They may be wrong, but that decision stands in CO; hence, the CO Supreme Court’s decision. Regarding double jeopardy: I don't think that applies since an impeachment is not a criminal court case.
"The fact is, that for the same reason a naturalized citizen, a non-citizen, and a 30 year old cannot be president, someone who has been found guilty of participating in an insurrection against the United States government cannot be president." Hmmm, seems like there are a couple of problems here. First, the found guilty claim is at issue. Trump would have to be convicted of insurrection or interfering in an official proceeding--that is, found guilty--after due process and in the appropriate jurisdiction. A CO court's unilateral decision is ... dubious. Maine's Secretary of State's unilateral decision is, as well. In neither case was Trump afforded due process, so the bans might be both undemocratic and unconstitutional. I could be missing something, but it doesn't strike me as sane or just for the question of insurrection to be determined by the individual states--which would mean 50 cases. I'm no fan of Trump. I'm also no fan of democracy. But I am a fan of rule of law and due process. This strikes me as neither. Instead it is just another exercise in 'exitus acta probat' that may stoke civil war.
What is the standard for due process in ballot access cases? In what way was that standard violated in this particular instance?
Do MOST political candidates have to be convicted in a criminal case to be deemed ineligible?
If I am 30 years old and want to run for president, do I have to be accused of being 30 years old, brought to trial, and found guilty by a unanimous jury of my peers before I can be denied a slot on the ballot? Or does the judge just look at my birth certificate and rule that 2024-1994 is 30, which is less than 35, after an interested party sues to keep me off the ballot?
If you are 30 and not born here, then you are ineligible by reference to an objective fact, bureaucratically determined. There doesn't need to be a trial to determine your age, merely a birth certificate. This is wholly different from being ineligible by virtue of being accused but neither tried nor found guilty of that by which you are being determined ineligible. Indeed, the Congress (Senate) did not find Trump guilty of insurrection, but that or federal court would be the appropriate jurisdiction. I am not wild about the system we have, but If you think it would be better to preserve the system we have, only change it so that there are fifty opportunities to remove candidates from primaries based on partisan accusation, we are going to open Pandora's box every election cycle. States will start hurling accusations and barring disfavored candidates. Now, one might argue, like AJC, that states should be able to determine eligibility without due process/trial by jury, and that ballot access is somehow not connected to criminal law. But insurrection is a criminal charge and a federal one at that. (I am skeptical that what transpired was an insurrection attempt, particularly as there is mounting evidence of entrapment on the part of federal agents/proxies hoping to paint this movement in Gretchen Whitmer fashion as domestic terrorism. But even in the absence of federal plants, this strikes me as a protest that burned out of control in spots.) Therefore, if we can't agree on whether it was an insurrection, on whether Trump was truly complicit in planning it, and the only way to make a determination is through due process (which is intersubjective agreement by a jury of peers, not bureaucratically-determined objective fact) then this A) seems arbitrary and B) opens the door to perennial partisan warfare. // That said, if the consequence is a breakup of the republic, I'll be happy.
While I happen to agree that the standard SHOULD be conviction on a criminal charge of insurrection, that's not what the 14th Amendment says. It just says that if you've done X, you're ineligible. It doesn't reference a criminal conviction under e.g. the Insurrection Act of 1807, and in fact the former Confederates who were disqualified under Section 3 were neither charged with nor tried for insurrection, nor were the thousands who applied for congressional amnesty to remove that disqualification.
I've always objected to the cudgel they're using -- "ballot access" laws which didn't exist until a couple of decades after the 14th Amendment was ratified -- but am unsurprised to see the "major" parties finally using that cudgel against each other instead of just against "third" parties and independents.
"Due process of law" only entails a trial by jury for alleged criminal defenses. This was a civil matter of ballot access, and Trump received notice of the proposed action and grounds for it, the opportunity to respond, a hearing by a court, etc. That's generally more than you or I get if the IRS says we owe them $147.94 and puts liens on our houses, or the driver's license examiner decides I'm too palsied to drive.
Like you, I'll be happy if it brings the system down. And like you, I'd prefer to see a criminal conviction instead of a civil ruling. But I'm not seeing any lack of "due process" as such.
You make good points here. I don't think the Constitution is particularly clear on how one determines insurrection as a fact to be used on the question of ballot access, which is why SCOTUS will have to clarify. In the case of the Civil War, though, that's far closer to "you can't be president at 30." After all, Confederates were standing armies designated as such by bureaucratic facts. They had uniforms, ration stamps, paperwork, ranks, etc. It would not have been terribly feasible to try every Confederate. And some were conscripted. But had it been organized as a non-military guerrilla revolt, one suspects there would have had to be trials to determine guilt or innocence.
The political class loves ambiguity, because ambiguity lets rulers do what they want to subjects.
But sooner or later rulers and would-be rulers start using the weaponized ambiguities against each other. It's part of the decline/fall stage of the political cycle. And it's often not very pretty. Eggs breaking themselves, while we try to figure out how to get an omelet out of the deal.
Your first 2 questions are important. I’m not qualified to answer. I merely note that a CO court decided Trump was involved in an insurrection and then CO’s highest court agreed and decided that meant, per the US Constitution and CO state law, that he could not be on the ballot. Unless/until SCOTUS overturns the latter, that’s where it stands.
Max-If there is a problem with the CO lower court's decision, that would clearly matter. I am not sure what you mean by calling it a "unilateral" decision though. With you, I wondered about the Secretary of State's decisions, but I assume (*merely* assume) that in each case (Maine against Trump; California for him), they followed the state law appropriately. If they did, though it would not be democratic, I am not sure why it would be problematically undemocratic (or anti-democratic). I gather the big issue for SCOTUS is whether states can determine these things for their own purposes. Whatever decision is made (assuming one is made), I'm sure it will be narrowly tailored. Still, states can decide differently without it being problematically undemocratic. (And if it were only ends justifying the means, one would have thought CA would have gone the other way; of course, it can be that in some cases and not others, but I don't know anywhere near enough to say if that is the case.). All of that said, I'm with you in caring much more about the rule of law than democracy; I don't see, though, that it has been violated.
Please see my response to Thomas above. Basically, I think you and Thomas are conflating two different types of facts from which such determinations flow, or at least should flow. If there is no clarity about how or whether ballot access should flow, then SCOTUS should make that determination. But the manner in which one is determined to be an insurrectionist, say, is different from how one is determined to be native or under 35. If we allow partisan states to bar people based on mere accusation, that is, without trial/due process in the appropriate jurisdiction, we are going to see deeper tit-for-tat partisan lawfare.
Yeah, lots of issues. And great discussion above. I don’t welcome having 50 different decisions about eligibility to run; I simply don’t see that a clear single path is specified.
Well this guy really misses the mark, not good reasoning for a philosopher. He completely ignores the process of determining guilt or innocence before the law in a democratic society. That is why his prediction about SCOTUS will most likely not
Can you explain what missed the mark? As I understand it, the only issue (sort of) about guilt here is whether DT took put in an insurrection. A CO court said yes. They may be wrong, but that decision stands in CO; hence, the CO Supreme Court’s decision.
As I understand it, the determination of guilt was made in a "trial" in a lower court in which a group of electors in Colorado (Anderson, et al.) sued the Secretary of State (Griswold) to have Trump removed from the ballot. So, to be clear, that wasn't a trial in which Donald Trump was a defendant, nor a proceeding in which Donald Trump advanced a defense.
A determination of guilt of an individual is usually handled by way of a criminal trial, subject to the applicable rules of criminal procedure, none of which seems to have been part of the proceedings in which Trump was found "guilty." Under typical criminal procedure, the state must first [usually] secure an indictment of the accused by a grand jury, and then proceed to a trial against the indicted party. The state must meet its criminal burden of proof against the accused, and the accused is afforded the right to a full defense, as well as the choice to be judged by a jury of his peers.
I am uncomfortable with officers of the state being able to render a determination of criminal guilt, a conviction, subjecting the not-even-formally-accused party to criminal sanctions such as being excluded from running for office, without the due process of a criminal trial that is typically afforded all people accused of crimes in the United States. More simply: the state has convicted Donald Trump of a crime without giving him the benefit of a trial. (The state did, however, give other parties the benefit of a trial of Donald Trump, and somehow therein and without him, he now stands convicted.)
Ah. I actually share your concerns here and had considered having a parenthetical about it, but decided it would have to be too hand-wavy to be of any use. I'm not competent to make any helpful claims about the lower court decision (or likely any decision about insurrection in any court) at all. That said, given the finding, I think the C-SC decision stands. And, most importantly here, I do not think any of this suggests it's problematically undemocratic. If there is more of a claim to that, it would require getting into far into the weeds about insurrection law. It would also need an argument either that something about how CO's legal system works goes against the sort of federal democracy we want or is otherwise problematic in a way the other cases aren't. Perhaps SCOTUS will provide such. As indicated, though, I am dubious.
9-0
Yeah. I've been wrong before and I'll be wrong again.
Sir, as a public servant you should limit your pronouncement to what you know and can be empirically verified. You are not a lawyer. I hope when the SCOTUS rules you would be humble and honest enough to admit your gross error both in facts and logics.
The you-have-no-right-to-speak position is really lame. It's one notch above STFU, and you may want to consider that that's the kind of invective it conveys. As an argument, including your hint at some notion of regard for law or courts, your comment is empty.
Andrew scores, as usual, in thoughtfulness and expository writing. You might want to set aside which "side" wins or loses for a moment, and just entertain an argument on its own merits. (If you're a lawyer, then the tenor of your comments makes even less sense. I suspect you are not.)
I don't think anyone here said "you-have-no-right-to-speak." Also: in my reply to "Wilton" (is that you writing under a different name from "BWhatt"?) on Dec 30 (whose comment you are also replying) I started with the following 5 words: "I am not a lawyer." Given that, I am not sure why you merely "suspect" I am not a lawyer. In any case, I am curious: given that you think what I have to say is pretty terrible, why do you engage with it? (I ask in all seriousness; I am trying to understand why people get into various sorts of discussions.)
I think you misunderstood my remark. I am addressing Wilton, and what I see as his poorly constructed criticism of you that seems to imply that you are speaking out of turn. As he said:
"you should limit your pronouncement to what you know and can be empirically verified. You are not a lawyer."
I strongly disagree with his sentiment. I find all of your remarks to be thoughtful, reasonable and constructive.
Yes, I was completely misunderstanding. My apologies. And thank you for the compliment. It is much appreciated!
Damn those emails that show the comment but not the context!
I am not a lawyer; that doesn't mean I know nothing about the law and it certainly doesn't mean I am not competent to discuss what is or is not democratic. About the latter, lawyers have no special training; political theorists and philosophers do (I am a political philosopher by training). In any case, I'm happy to admit if I made a mistake about either facts or logic. Thus far, I haven't been shown either, but if and when SCOTUS rules, feel free to remind me. I won't promise to remember. Thanks for reading.
As to the claim that the CO decision isn't somehow unacceptably undemocratic or isn't deeply illegitimate, I agree that in principle there is nothing unacceptable about clear eligibility conditions. However, what does pose a serious threat to our democratic system is vague or ambiguous eligibility conditions which allow judges to choose the result they want based on ideological biases.
Had the CO supreme court articulated both a plausible set of elements that must be proved to constitute insurrection and the standard they need to be proved to I'd be much more sympathetic. Unfortunately the CO test seems to basically boil down to "isn't it obvious".
They basically adopt, with minimal analysis, the standard from the district court that "an insurrection as used in Section Three is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States” which the CO supreme court later interprets/modifies with the single extra demand that the action be intended to block the peaceful transfer of power.
But that's a pretty absurd rule. On its face that includes Trump asking the police or secret service to **legally** use force to protect him from protestors blocking his path to the capital where he intends to ask Pence to refuse to count the votes. More broadly, nothing in their standard requires any significant nexus between the force and the transfer of power. Suppose Trump asked his mob to mug people and give him the money so he could bribe Pence. That's an insurrection??
And WTF does block the peaceful transfer of power even mean? Trump wasn't trying to make the transfer of power violent, he was trying to prevent it from happening at all and he no doubt preferred that occur peacefully. Are they understanding this to mean that any protests (say as in Bush v Gore) claiming an outcome is illegitimate become an insurrection the moment one person is violent?
I suspect they really mean any attempt to illegitimately wrest control of the presidency. But again what does that mean? Technically speaking, Trump's theory that Pence could throw the election to the house is ridiculous but there are plenty of ridiculous constitutional theories that get taken seriously such as the trillion dollar coin or even accepted as precedent by the court. Besides, it's arguably not actually the constitution Trump was trying to violate but the electoral count act. So does violating any law to retain power count? What if 2024 does get thrown to the house and the train that a bunch of democratic reps are on gets delayed and Biden tells Harris to ignore the statutory deadline and wait until everyone shows up. Is that enough? What if delivering a note to that effect requires pushing past republican protestors by 2 staffers (so public concerted violence)?
I'm not saying any of these situations are at all similar but at a minimum the court should specify the elements of insurrection so as to clearly exclude all these obvious cases where the word doesn't apply. And this is on top of the lack of clarity about whether the president is an officer at all, when did Trump form what intentions on Jan 6th, is this part of the amendment self-executing.
The problem is that, taken together in the heat of a political campaign, all this ambiguity makes it seem like judges aren't applying some settled rule in this case but rather making up a rule that accords with their desiered outcome. I'd give the court the benefit of the doubt had it at least articulated a clear rule to apply in future situations rather than effectively saying: c'mon it's clearly an insurrection.
I have to agree with you about this. It leads me tho think, though, that SCOTUS really should weigh in and provide clearer indications of what counts as insurrection. (I still believe they can do better than "I know it when I see it."). Thank you for the very thoughtful comments. I appreciate it.
100% agree..but for all I want SCOTUS to rule Trump is disqualified (you could make a strong enough case/test here to be a reasonable interpretation and the benefit to the country from avoiding another Trump term is huge) I think all the incentivizes for them point the other way and I think a much narrower definition of insurection is probably the stronger legal interpretation.
After all, if you think the amendment really is self-executing then they likely assumed it would be obvious when it was satisfied or they would have given more process. Also, as the amendment was passed in the wake of the civil war it's pretty plausible that by insurrection they meant something along the lines of the civil war or the forceful denial of federal authority over part of the US (eg a state/region declaring federal law nullified and blocking federal enforcement by threat of force). Had Trump obviously intended to use force to hold the capital he might still qualify but it seems likely he didn't even expect that to happen (even he must have realized it wouldn't be in his interest) but just didn't want to help his enemies by reigning his supporters in when they did break in (bc he's a toddler throwing a tantrum after realizing his plan is sunk bc of the images on TV).
I don't think it's the only interpretation that's reasonable but SCOTUS has both political, pragmatic and judicial philosophy reasons for accepting it if they don't punt on some earlier off ramp.
Yep. Most people who I know and respect as being far more knowledgeable about this stuff than I am think my prediction is wrong. They are probably right. I'm keeping the prediction nonetheless. I've never been a betting man and it is not something I am supposed to be expert at, so little hinges on it.
I'm curious what your grounds are for sticking with the prediction? Do you mostly just expect SCOTUS to avoid the issue, e.g., 40% chance they avoid taking the case and just 10% they uphold the CO decision?
Or are you including the outcome in which they take the case and either apply the political question doctrine or otherwise leave it to the individual states so they leave CO decision in place for CO? That doesn't seem crazy but since it requires something pretty specific and usually political question means deference to non-judicial branches I wouldn't give it more than 10%.
However, I think the chances they actually hold that Trump is barred under the 14th are extremely low and I'm not sure how you can plausibly believe otherwise given your other views. I mean it doesn't appear that you think the argument for him having engaged in insurrection is extremely compelling. Does that mean you don't think the incentivizes and biases push SCOTUS not to disqualify Trump?
I know that deference to experts is a complex issue but the fact that this seems to be expert consensus plus the sheer number of ways they could avoid doing this makes me suspect that if you assigned them each subjective probabilities and multipled them out you'd have trouble getting a probability over 30%
Call it a hunch. I’m not sure I can really articulate any real reasoning here. Partly, it has to do with the decision earlier this year regarding states’ rights and the Voting Rights Act--a thought that the justices will want to find a counterbalance to giving power to Federal legislation. But I don’t know all of the relevant law and certainly don’t have access to the minds of the nine. I’d add I’m something of an enthusiast for reason ruling the day, even amongst justices who have provided evidence against the likelihood of that.
I'd argue that all those rules are in some sense anti-democratic. They may be good and fair anti-democratic rules but they impose limitations on the ability of the people to choose the leader they want.
I get the point you are trying to make but I think we need a more careful definition of anti-democratic to distinguish it from simply unacceptable or wrong. The arguments you give seem to all be of the form that certain rules are reasonable for states to apply to elections -- which seems to me to be an argument that the deciscion isn't somehow unacceptably anti-democratic not that it isn't anti-democratic.
All of the rules I discussed impose limits on the ability of people to choose the leader they want. Is that undemocratic? In some sense, but if one won't complain about it being undemocratic to prevent 20 year olds from being president, one can't complain about preventing insurrectionists. One can complain about both, but no one does. In any case, the loose definitions I provide were not in the first draft of the piece and I'm not committed to them. The literature on what is and is not democratic is huge; I haven't read it all, but I've yet to find a definition that I think works for all purposes. I suspect there is no such thing; that it simply is different in different contexts. My real point in the post is simply that the cases now being considered are not undemocratic (and certainly not anti-democratic) in this context.
Sure, I don't have an issue with those examples being undesirable but I think you are conflating undemocratic with bad/unacceptable. I think that's a potentially risky thing to do.
Specifically, it seems to build in the assumption that it's something about being democratic that makes a government legitimate/acceptable/good. And sure maybe that's true but it's a complex issue and not at all an obvious one.
I mean, I agree that as a contingent matter of human psychology, our technological and social development it seems like systems that are largely democratic tend to be superior to the alternative but I'm skeptical that there is anything to this notion beyond this empirical observation. If you could articulate rules that denied almost everyone the vote but convinced me they'd maximize utility in the long run I'd find them just as acceptable as your examples here.
And I fear this move because it invites us to make fallacious inferences by shifting between the concepts of legitimate/good and reflecting the will of the people.
We're in agreement! Until someone offers a convincing definition that makes sense all of the cases, I don't think there is much more to do. Putting my point differently: I don't intend (at the moment) to provide a good definition of "democracy" so am content to point out the inconsistency of those claiming the recent actions are undemocratic--they simply are no more undemocratic than the other sorts of cases I include in the post. I didn't mean to say democracy makes government legitimate. That's why I left in this line: "merely claiming something is undemocratic is simply not sufficient to show that it is bad. (Nor, I think, is claiming something is anti-democratic, but that is not to the point here.)." I am concerned to protect freedom; if democracy does that, great; if it doesn't, then I'd toss it.
Fair, sorry for being so pedantic...it's a character flaw from too much math ;-).
In our system, a person has to be charged with a crime and then given due process in a court. Mr. Trump was never charged and there was not trial by a jury of his peers. On the other hand you may argue that he was accused of something by his impeachment but for that he was acquitted by the Senate. Therefore, he cannot be tried again by any court because of the Constitutional guarantees against double jeopardy. As a philosopher it is your duty to lay out the whole case and not just make one sided pontifications.
Sorry, but I don't know enough about insurrection law to really answer any better about that than I already did below. A CO court said he took part in insurrection. They may be wrong, but that decision stands in CO; hence, the CO Supreme Court’s decision. Regarding double jeopardy: I don't think that applies since an impeachment is not a criminal court case.
"The fact is, that for the same reason a naturalized citizen, a non-citizen, and a 30 year old cannot be president, someone who has been found guilty of participating in an insurrection against the United States government cannot be president." Hmmm, seems like there are a couple of problems here. First, the found guilty claim is at issue. Trump would have to be convicted of insurrection or interfering in an official proceeding--that is, found guilty--after due process and in the appropriate jurisdiction. A CO court's unilateral decision is ... dubious. Maine's Secretary of State's unilateral decision is, as well. In neither case was Trump afforded due process, so the bans might be both undemocratic and unconstitutional. I could be missing something, but it doesn't strike me as sane or just for the question of insurrection to be determined by the individual states--which would mean 50 cases. I'm no fan of Trump. I'm also no fan of democracy. But I am a fan of rule of law and due process. This strikes me as neither. Instead it is just another exercise in 'exitus acta probat' that may stoke civil war.
What is the standard for due process in ballot access cases? In what way was that standard violated in this particular instance?
Do MOST political candidates have to be convicted in a criminal case to be deemed ineligible?
If I am 30 years old and want to run for president, do I have to be accused of being 30 years old, brought to trial, and found guilty by a unanimous jury of my peers before I can be denied a slot on the ballot? Or does the judge just look at my birth certificate and rule that 2024-1994 is 30, which is less than 35, after an interested party sues to keep me off the ballot?
If you are 30 and not born here, then you are ineligible by reference to an objective fact, bureaucratically determined. There doesn't need to be a trial to determine your age, merely a birth certificate. This is wholly different from being ineligible by virtue of being accused but neither tried nor found guilty of that by which you are being determined ineligible. Indeed, the Congress (Senate) did not find Trump guilty of insurrection, but that or federal court would be the appropriate jurisdiction. I am not wild about the system we have, but If you think it would be better to preserve the system we have, only change it so that there are fifty opportunities to remove candidates from primaries based on partisan accusation, we are going to open Pandora's box every election cycle. States will start hurling accusations and barring disfavored candidates. Now, one might argue, like AJC, that states should be able to determine eligibility without due process/trial by jury, and that ballot access is somehow not connected to criminal law. But insurrection is a criminal charge and a federal one at that. (I am skeptical that what transpired was an insurrection attempt, particularly as there is mounting evidence of entrapment on the part of federal agents/proxies hoping to paint this movement in Gretchen Whitmer fashion as domestic terrorism. But even in the absence of federal plants, this strikes me as a protest that burned out of control in spots.) Therefore, if we can't agree on whether it was an insurrection, on whether Trump was truly complicit in planning it, and the only way to make a determination is through due process (which is intersubjective agreement by a jury of peers, not bureaucratically-determined objective fact) then this A) seems arbitrary and B) opens the door to perennial partisan warfare. // That said, if the consequence is a breakup of the republic, I'll be happy.
While I happen to agree that the standard SHOULD be conviction on a criminal charge of insurrection, that's not what the 14th Amendment says. It just says that if you've done X, you're ineligible. It doesn't reference a criminal conviction under e.g. the Insurrection Act of 1807, and in fact the former Confederates who were disqualified under Section 3 were neither charged with nor tried for insurrection, nor were the thousands who applied for congressional amnesty to remove that disqualification.
I've always objected to the cudgel they're using -- "ballot access" laws which didn't exist until a couple of decades after the 14th Amendment was ratified -- but am unsurprised to see the "major" parties finally using that cudgel against each other instead of just against "third" parties and independents.
"Due process of law" only entails a trial by jury for alleged criminal defenses. This was a civil matter of ballot access, and Trump received notice of the proposed action and grounds for it, the opportunity to respond, a hearing by a court, etc. That's generally more than you or I get if the IRS says we owe them $147.94 and puts liens on our houses, or the driver's license examiner decides I'm too palsied to drive.
Like you, I'll be happy if it brings the system down. And like you, I'd prefer to see a criminal conviction instead of a civil ruling. But I'm not seeing any lack of "due process" as such.
You make good points here. I don't think the Constitution is particularly clear on how one determines insurrection as a fact to be used on the question of ballot access, which is why SCOTUS will have to clarify. In the case of the Civil War, though, that's far closer to "you can't be president at 30." After all, Confederates were standing armies designated as such by bureaucratic facts. They had uniforms, ration stamps, paperwork, ranks, etc. It would not have been terribly feasible to try every Confederate. And some were conscripted. But had it been organized as a non-military guerrilla revolt, one suspects there would have had to be trials to determine guilt or innocence.
The political class loves ambiguity, because ambiguity lets rulers do what they want to subjects.
But sooner or later rulers and would-be rulers start using the weaponized ambiguities against each other. It's part of the decline/fall stage of the political cycle. And it's often not very pretty. Eggs breaking themselves, while we try to figure out how to get an omelet out of the deal.
Amen. I hope we can find opportunity in the coming chaos.
Your first 2 questions are important. I’m not qualified to answer. I merely note that a CO court decided Trump was involved in an insurrection and then CO’s highest court agreed and decided that meant, per the US Constitution and CO state law, that he could not be on the ballot. Unless/until SCOTUS overturns the latter, that’s where it stands.
Max-If there is a problem with the CO lower court's decision, that would clearly matter. I am not sure what you mean by calling it a "unilateral" decision though. With you, I wondered about the Secretary of State's decisions, but I assume (*merely* assume) that in each case (Maine against Trump; California for him), they followed the state law appropriately. If they did, though it would not be democratic, I am not sure why it would be problematically undemocratic (or anti-democratic). I gather the big issue for SCOTUS is whether states can determine these things for their own purposes. Whatever decision is made (assuming one is made), I'm sure it will be narrowly tailored. Still, states can decide differently without it being problematically undemocratic. (And if it were only ends justifying the means, one would have thought CA would have gone the other way; of course, it can be that in some cases and not others, but I don't know anywhere near enough to say if that is the case.). All of that said, I'm with you in caring much more about the rule of law than democracy; I don't see, though, that it has been violated.
Please see my response to Thomas above. Basically, I think you and Thomas are conflating two different types of facts from which such determinations flow, or at least should flow. If there is no clarity about how or whether ballot access should flow, then SCOTUS should make that determination. But the manner in which one is determined to be an insurrectionist, say, is different from how one is determined to be native or under 35. If we allow partisan states to bar people based on mere accusation, that is, without trial/due process in the appropriate jurisdiction, we are going to see deeper tit-for-tat partisan lawfare.
Yeah, lots of issues. And great discussion above. I don’t welcome having 50 different decisions about eligibility to run; I simply don’t see that a clear single path is specified.
Love the logic, Andrew. Enjoyable read!
Well this guy really misses the mark, not good reasoning for a philosopher. He completely ignores the process of determining guilt or innocence before the law in a democratic society. That is why his prediction about SCOTUS will most likely not
Come true.
Can you explain what missed the mark? As I understand it, the only issue (sort of) about guilt here is whether DT took put in an insurrection. A CO court said yes. They may be wrong, but that decision stands in CO; hence, the CO Supreme Court’s decision.
As I understand it, the determination of guilt was made in a "trial" in a lower court in which a group of electors in Colorado (Anderson, et al.) sued the Secretary of State (Griswold) to have Trump removed from the ballot. So, to be clear, that wasn't a trial in which Donald Trump was a defendant, nor a proceeding in which Donald Trump advanced a defense.
A determination of guilt of an individual is usually handled by way of a criminal trial, subject to the applicable rules of criminal procedure, none of which seems to have been part of the proceedings in which Trump was found "guilty." Under typical criminal procedure, the state must first [usually] secure an indictment of the accused by a grand jury, and then proceed to a trial against the indicted party. The state must meet its criminal burden of proof against the accused, and the accused is afforded the right to a full defense, as well as the choice to be judged by a jury of his peers.
I am uncomfortable with officers of the state being able to render a determination of criminal guilt, a conviction, subjecting the not-even-formally-accused party to criminal sanctions such as being excluded from running for office, without the due process of a criminal trial that is typically afforded all people accused of crimes in the United States. More simply: the state has convicted Donald Trump of a crime without giving him the benefit of a trial. (The state did, however, give other parties the benefit of a trial of Donald Trump, and somehow therein and without him, he now stands convicted.)
Ah. I actually share your concerns here and had considered having a parenthetical about it, but decided it would have to be too hand-wavy to be of any use. I'm not competent to make any helpful claims about the lower court decision (or likely any decision about insurrection in any court) at all. That said, given the finding, I think the C-SC decision stands. And, most importantly here, I do not think any of this suggests it's problematically undemocratic. If there is more of a claim to that, it would require getting into far into the weeds about insurrection law. It would also need an argument either that something about how CO's legal system works goes against the sort of federal democracy we want or is otherwise problematic in a way the other cases aren't. Perhaps SCOTUS will provide such. As indicated, though, I am dubious.