Posted on 12/20/2023 7:42:28 AM PST by Lakeside Granny
The Colorado Supreme Court’s decision to ban former President Trump from the state’s primary ballot undermines a “bedrock principle” of American democracy, one of the court’s Democrat-appointed justices wrote in a fiery dissent.
Justices Carlos Samour, Maria Berkenkotter and Chief Justice Brian D. Boatright all dissented, but Samour was particularly critical of the 4-3 ruling. Samour and Boatright were each appointed by Democratic former Gov. John Hickenlooper, while Berkenkotter was appointed by current Gov. Jared Polis, also a Democrat.
“The decision to bar former President Donald J. Trump — by all accounts the current leading Republican presidential candidate (and reportedly the current leading overall presidential candidate) — from Colorado’s presidential primary ballot flies in the face of the due process doctrine,” Samour wrote.
(Excerpt) Read more at foxnews.com ...
Greg Kelly reads part of the CO SC decision on Newsmax......
https://twitter.com/bennyjohnson/status/1737536898531246536
Thanks gran. I quit asking what insane thing the evil ones will do next. They’re possessed.
There are somewhere between 10-20 particular scum trolls on Free Republic that are sowing dissension daily on the threads.
This crap needs to STOP!
The country is on fire and being invaded by military-age men 24/7, with the FED GOV’s implicit help, and these TROLLS are worried about the personality flaws of Trump...
STOMP THEIR GUTS OUT AND GREASE OUR TANK TRACKS WITH THEIR GUT GOO!
good point...it is Congress acting as it is allowed to do and indeed is required to do under the text of the amendment.
but it doesn’t undo the basic written idea that as a matter of foundational constitutional law, “insurrectionists” can’t serve in those offices.
but Congress has to set forth the whys and hows of that....if they don’t, then....functionally this idea is dead.
I do think the discussion of the 14th Amendment in the post CW context is interesting.
As I understand it....many people urged Jefferson Davis to run again for the Senate. He didn’t want to serve, and he didn’t want to do anything to seek “permission” to run as it were, and (I believe) he had been demoted to non-citizenship status (which would have made him ineligible to serve in the Senate, right?). But of course stripping him of citizenship was never adjudicated - I think it was just done administratively. He was indicted for treason, but never tried...as neither side wanted to risk a trial.
It’s interesting as civil war (I’m just using that term for discussion purposes) is basically a non-recognized legal activity. There is nothing legal about it. It’s just an outbreak of violence. So establishing/re-establishing legal norms is not easy and looking back at it, you can say “well, that wasn’t legal” and you’d be correct.
In any event...I don’t think it is settled as to whether Jeff Davis “could” have served in the Senate had a southern legislature sent him there. He had not been “convicted” of treason or insurrection. But he was also sort of not eligible because he wasn’t a citizen. (His citizenship was restored in 1978).
This is somewhat relevant to the CO discussion....because obviously only the media has accused Trump of “insurrection”. They are just flat out wrong on this. But there’s not a lot of litigation/decisions on how to stop insurrectionists from serving in public office.
I’d love to hear from better historians and appelate Constitutional lawyers on this. Thank you.
I respectfully disagree. The insurrection clause was already done away with constitutionally -- through the Amnesty Act.
Relevant text from 14th Amendment/Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
And later Congress did remove that "disability" with the Amnesty Act of 1872: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.
So the 14th Amendment of the constitution gave authority to Congress to annul the insurrection clause. A few years later Congress annulled it. Basically the 14th amendment's insurrection clause is as annulled as the as the 18th amendment's prohibition of liquor.
Thank you. I hadn’t appreciated that the Amnesty Act of 1872 was passed by two thirds at least for that provision.
So....I agree with you and that would be where things sit today. Did any of the dissenters in the CO case pick up on that?
Now...that said...Congress can’t permanently amend the Constitution. It would seem that a majority in Congress could repeal that legislative repeal of something that is fundamental Constitutional law.
And of course the 18th amendment is dead because it was repealed through Constitutional amendment.
That would be the most proper way to deal with the insurrection clause of the 14th on a permanent-permanent basis.
I’ll try to look up the Colorado dissents. Seems if they missed your analysis here, that is a pretty big oversight on their part....
would you happen to know if any former Confederates who would have arguably been disqualified from office served after 1872?
Yes. Since I'm a bit more familiar with Alabama history, I'll use an example from here.
Alabama's US Senator John T Morgan was elected in 1876 even though he had been a brigadier general for the confederates. That would make him part of the 45th Congress (going into office in 1877, but count the #'s of Congress by Representatives' roles because they serve 2 year terms, so the 44th Congress started in 1875, 43rd in 1873, 42nd in 1871, 41st in 1869, 39th in 1867, 38th in 1865). Keep in mind that the 1872 Amnesty Act kept the insurrection clause in place for only the 36th and 37th Congress (thus they interpreted the insurrection clause to be applied in the past retroactively for Congress during the Civil War, but not after the Civil War). In other words, people elected from confederate states were insurrections during the civil war (insurrection), but not afterwards. Afterwards they could be elected for US govt (beginning with the 38th Congress which was inaugurated in March 1865).
Also keep in mind that that it was a Republican majority Congress that passed the Amnesty Act. In other words, they were extending an olive branch to the Dims (the party of the confederates). Lincoln himself pushed this attitude, especially in the 1864 election (when the civil war's outcome was all but certain) when he set up a temporary Unity Party and selected a Dim for his running mate. It was a huge statement from Lincoln saying it was time to transition from the parties being literally at war to a time of national peace and healing.
We vote to retain District Justices. I do not believe we vote to retain Supremes. I could be wrong. I research the justices to find out who appointed them and if they were appointed by a Democrate Governor, I vote against them.
Sul Ross would be similar. However, isn’t it the case that to be excluded, you have to have sworn an oath to the US and then broke it by siding with the insurrectionists? (Using that terminology for simplicity...). Like, Jeff Davis or RE Lee. They were United States soldiers/elected officials/cabinet members.
But was John Morgan ever sworn to uphold the US Constitution prior to the CW? I do not think Sul Ross was. So I don’t think he would have been disqualifed by the 14th.
Also keep in mind that that it was a Republican majority Congress that passed the Amnesty Act. In other words, they were extending an olive branch to the Dims (the party of the confederates). Lincoln himself pushed this attitude, especially in the 1864 election (when the civil war’s outcome was all but certain) when he set up a temporary Unity Party and selected a Dim for his running mate. It was a huge statement from Lincoln saying it was time to transition from the parties being literally at war to a time of national peace and healing.”
Absolutely, yes, noted and agreed. Lincoln was always about the Union. Before, during and after- the war. (Well, after not so much....)
I don’t know if a prerequisite for being an insurrectionist is having first sworn an oath of loyalty to the government you’re rebelling against (US govt or US Constitution). It may be that (especially by interpretation from the 19th century) being a US citizen is enough to being assumed loyal.
Here is the language:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
It seems to specifically apply to “oath breakers” as it were. Now that said....I looked up John Morgan’s bio. He would have sworn to uphold the Constitution as a lawyer, I think. A lawyer is an officer of the court or, in the words of the 14th A, a “judicial officer of any State”. So he definitely qualifies as an “oath breaker” who was able to serve (to your point) because of the 1872 legislation.
Back to the CO jurisprudence. It’s amazing that no one has brought up your point that at least for now, the insurrectionist clause of the Constitution has no effect and that in fact, ACTUAL insurrectionists did in fact serve.
This whole current scenario is beyond proposterous.
(I still need to read to CO dissents).
But that still doesn't help the Dims around my point, that the 1872 Amnesty Act nullified the 14th Amendment's insurrection clause anyway.
Right....had Trump led an insurrection, then he would have broken his oath and thus been eligible to be disqualified...
But for your point.
I’m honestly amazed that even commentators who are critical of the CO decision aren’t bringing this up.
Here’s another Alabama guy for ya:
https://en.wikipedia.org/wiki/Joseph_Wheeler
After serving as a Confederate General, he served in the US House (starting in 1880), and then eventually, as an old man, served as a Major General under President McKinley!
Buried in Arlington cemetery. Presumably for his service to the US under McKinley, not for his service to the CSA.
This is a salient point, that "Insurrection" as envisioned by both The Founders and the CWI fallout, both eras correctly proscribed "Insurrection" as siding with a complete break against the United States of America.
The Founders based this on The British Empire, CW1 based this on The Confederacy, which was initially barely even dampened by Appomattox.
I read another article this am which says “if Jefferson Davis was barred from holding office, then Trump must be also”.
But....because of the Amnesty Act, Jefferson Davis was not in fact barred, correct? (Of course it was never adjudicated, but still....also setting aside the issue that he was stripped of citizenship but that’s barred for different reasons, not a 14th amendment insurrectionist barring).
Right?
Specifically, the 1872 Act removed office-holding disqualifications against most of the secessionists who rebelled in the American Civil War, except for "Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States." Wikipedia
Since Davis had been a Senator in 1860, he would still have been barred from holding office, though he may have had his vote restored.
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