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this post was submitted on 30 Dec 2023
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Given that, how would you propose we, as a society, deal with someone who is willing to either circumvent or delegitimize any and every legal process that attempts to hold them accountable?
I think it is dangerous to suggest that we should not use any and all legal means provided to us within the constitution to punish those who would seek to undermine our democracy simply because we are afraid they will seek to distort the law to serve their own ends, for they will do so regardless.
At some point I believe there are things worth fighting for, dying for, and even killing for if necessary. It may get to that point, as it has innumerable times before in human history. I would prefer the civilized path where we fight with the law rather than the sword. I'm convinced those who seek to drag us into the dystopian breach are counting on the fear and inaction of the general public, and that may be our undoing.
Some fights are about the principal of the thing, and it is better to suffer the consequences that may come from trying rather than allowing society to quietly march towards fascism for the second time in as many centuries.
Edit: Also, I'm not the one downvoting you. I appreciate the dialogue even if we disagree.
There just needs to be due process to make it harder to abuse. Now arguably there has been due process at least in Colorado, it's a factual finding that he engaged in insurrection there. I'm here for it. I just suspect the Supreme Court will find a way to invalidate that, and I suspect it will hinge on the fact that he never was formally tried for insurrection, rather the case was essentially "we all saw him commit the crime so he can't hold the office." But we can have a murder on film with a closeup of a person's face and they still get a formal trial to defend themselves. We saw it with our own eyes is not sufficient to bypass a trial unless a trigger-happy cop feels sufficiently threatened.
Edit: that being said, when it was used against civil war criminals, I don't believe there was any official finding of insurrection there either, so that might be a harder argument than I think.
I can see where you might think that. I previously thought the same. I don't think so anymore.
Because an insurrection against the government is fundamentally a criminal act, one would naturally think that Section 3 of the 14th Amendment would require a criminal conviction to apply. For most crimes you have to be convicted before there is a penalty. This is basic due process (which, BTW, is described in Section 1 of the 14th Amendment), however I don't think that is the case here.
Section 3 of the 14th Amendment reads as follows:
Section 3 describes how participating in an insurrection will result in disqualification to hold office. It has no requirement for a criminal conviction. If a State believes that a person who previously took an oath to support the US Constitution engaged in an insurrection, then that person is disqualified from running for office. There is no due process requirement for disqualification due to age or citizenship, so there is no need for due process for any other disqualification.
If Congress feels that the person should be allowed to run for office, they can remove the qualification disability with a two-thirds vote in both houses.
The States can decide for themselves if Trump is disqualified, if Congress disagrees they alone have the ability to fix it.
Yup, Congresses vote is meant to serve as the check and balance as well as due process here. This is a civil matter, not criminal. It doesn't matter if he was convicted. As you pointed out, we don't requre such things on age or citizenship and we don't require them here either.
There needs to be due process because .. Hunter Biden … laptop … insurrection.
Now that this can of worms is open, someone will try to abuse it. Establishing due process sets a bar that future fascists know not to cross plus makes it harder to abuse for partisan manipulation
I thoroughly agree with you that the most likely argument that comes from the Supreme Court in regards to Trump's eligibility to serve will hinge on the application of due process, and what that means in the case of insurrection. As you said, there was not a formal criminal tribunal or insurrection charges filed during the post-war reconstruction. It seems to have just been defacto applied via the actual ratification of the 14th Ammendment, and was understood to unanimously bar confederate representatives from serving in government.
I think all of the historical context as well as the spirit of the law does need to be closely examined. However, my fear is that no matter what the outcome of that examination may be it will only serve to further erode public trust in the judicial system due to the (valid) perception of political corruption within the Supreme Court, as well as their continuous inaction, which serves to telegraph a lack of concern or desire to avoid the prudential and consistent application of the law.