Preview | 2024.02.07
"As on January 6, 2021, the December 20, 1860 insurrection in South Carolina was against the forthcoming transfer of executive power to a newly-elected President."
- Reminding the court of its duty, Luttig's brief debunks Trump supporters' stated concern that his disqualification "would be weaponized against others by partisan state courts and state officials."
- That's an "anti-textual, policy argument" that has "no place in this Court's constitutional jurisprudence," goes the reasoning in the brief.
- In support of that proposition, it cites none other than the Dobbs decision that overturned Roe v. Wade, in which the majority claimed that "we cannot allow our decisions to be affected by extraneous influences."
- The brief also pays homage to the late arch-conservative justice Antonin Scalia, arguing that the disqualification clause shouldn't be construed narrowly.
- "A narrow construction to promote judicial restraint is just as bad as an 'unreasonably ... enlarged' construction," it says, citing a Scalia book.
|It is interesting to me that they spent so much time (about half the brief) arguing that the president isn't an "officer". The various legal news sources I follow consistently seemed quick to disregard this argument.
|One of [Trump's] claims stands out as especially silly - that he never swore to "support" the Constitution and so, his argument goes, he's not subject to the provision disqualifying people who violate their sworn support.
|There are also elegant principled arguments, like "elephants don't hide in mouseholes", in that case to blow away Trump's not-an-officer smoke. They've been finding ways to reduce and distill longer writing into punchy form.
"But in one obvious and high-profile respect, Section Three as enacted went far beyond the early draft. It referred to all insurrections, past and future, and not merely to "the late insurrection" of the 1860s. It laid down a rule for the benefit of generations yet unborn-for us today, if only we are wise enough and faithful enough to follow its words as written and intended."
It is a rare and wonderful treat to see such good writing in a legal context.
|Vikram David Amar
In that First Insurrection [of the 1860s], high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today's case. (Throughout this brief, we accept the factual findings of the trial court regarding
If one thinks-as do many journalists and noisemakers lacking historical expertise-that Section Three was only about "insurrections" akin to the Civil War, then the Trump-fueled insurrection of 2020-21 pales in comparison. The invocation of Section Three looks rather cutesy, a gimmick of clever lawyers and law professors.
|The idea of disqualifying an American president from seeking reelection for actions taken in office would have been inconceivable to anaerobic thermal vent dwelling bacteria. So, too, should it thus be inconceivable to us.
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