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StarfishSaver

(18,486 posts)
Wed Jan 13, 2021, 10:17 AM Jan 2021

The 14th Amendment prohibition against insurrectionists holding office is a great option , BUT

it isn't immediately available since a conviction for insurrection wi first be required and that will take awhile.

I think it's a valid option, but want to caution folks not to think it can be invoked quickly or easily.

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The 14th Amendment prohibition against insurrectionists holding office is a great option , BUT (Original Post) StarfishSaver Jan 2021 OP
Also it can be Reversed with 2/3 vote of House and Senate. yellowcanine Jan 2021 #1
I don't see House Democrats reversing anything. gab13by13 Jan 2021 #3
Not now, no, but what about 20 years hence if reactionaries take over House and Senate. yellowcanine Jan 2021 #6
Rachel Maddow had a guest on her show last night, gab13by13 Jan 2021 #2
That's not exactly what he said, but he did leave that impression StarfishSaver Jan 2021 #4
Is an actual conviction required? unblock Jan 2021 #5
The amendment says nothing about a conviction. It is the judgment of the Congress. yellowcanine Jan 2021 #7
The amendment doesn't give that judgment to Congress. It doesn't even mention them in that regard StarfishSaver Jan 2021 #9
Kick for visibiity StarfishSaver Jan 2021 #10
I think it is required StarfishSaver Jan 2021 #8

yellowcanine

(35,733 posts)
6. Not now, no, but what about 20 years hence if reactionaries take over House and Senate.
Wed Jan 13, 2021, 10:41 AM
Jan 2021

We do not want Trump's sins to be scrubbed even after he is dead.

gab13by13

(22,022 posts)
2. Rachel Maddow had a guest on her show last night,
Wed Jan 13, 2021, 10:23 AM
Jan 2021

I'm sorry but I don't remember his name. His opinion was that they could vote on prohibiting him from office without convicting him.

I'm not saying he is right but the issue may not be cut and dried. He was some sort of Constitutional expert.

 

StarfishSaver

(18,486 posts)
4. That's not exactly what he said, but he did leave that impression
Wed Jan 13, 2021, 10:32 AM
Jan 2021

That was Professor Deepak Gupta from Harvard, btw.

He said that Congress would have to put a process into place for implementing the 14th Amendment, that included a court adjudication. That's correct. But a court can't just step in and determine unilaterally that someone has committed a crime. There would have to be a trial and conviction.

The 14th Amendment requires due process and Congress does not have the power to determine a president is disqualified from serving outside of the impeachment process without that due process.

Let's put the shoe on the other foot. Would anyone here think it's okay for a Republican-controlled Congress to bar a Democrat from serving as president, simply by declaring by simple majority that they're guilty of insurrection? Such an act would be so clearly unconstitutional, it wouldn't be upheld. There would have to be an independent adjudication of guilt, and the only way to do that is through a trial and conviction.

I was a little frustrated that he didn't make that clearer during the interview since Rachel Maddow clearly and incorrectly believed that an impeachment on the grounds of insurrection was sufficient to invoke the 14th Amendment prohibition. He should have been more precise in pushing back on that.

unblock

(52,869 posts)
5. Is an actual conviction required?
Wed Jan 13, 2021, 10:38 AM
Jan 2021

If a candidate is barred from office, they could challenge it, so a court would surely be asked to make a determination. But I don't know that they would make it entirely on whether or not there was a conviction.

I'd imagine that after the civil war, courts would simply look at the evidence of whether someone fought for the confederacy rather than say, well, they haven't charged you yet, so you can serve in office until they get around to charging, trying, and convicting you.

 

StarfishSaver

(18,486 posts)
9. The amendment doesn't give that judgment to Congress. It doesn't even mention them in that regard
Wed Jan 13, 2021, 10:52 AM
Jan 2021

But the 14th Amendment DOES require due process of law, which means a trial and conviction. Congress cannot, on its own, declare anyone disqualified from holding a Constitutional federal office by just voting it so. Their only power of disqualification is the impeachment power.

They also have the power to "un-disqualify" a person, but that does not translate into the power to disqualify them - If the drafters had intended them to have that power, they would have explicitly stated so.

Without such an express grant of power, Congress cannot unilaterally disqualify anyone from holding federal office under the 14th Amendment insurrection clause without due process of law.

 

StarfishSaver

(18,486 posts)
8. I think it is required
Wed Jan 13, 2021, 10:44 AM
Jan 2021

It's possible that what you propose would constitute "due process" that meets constitutional muster, but I don't think it would. I believe in order for it to actually be due process, there would have to actually be a clear process, including rules of evidence and procedure, standards of proof, etc., otherwise it would be too arbitrary.

A trip does not mean a full-blown jury proceeding. It could be tried to the bench, but it would still have to be a trial and an adjudication, i.e., conviction, before it could be acted upon.

Other scholars may differ - I'd be interested to see opposing arguments by legal experts - but that's how I see it.

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