You misspelled "the Colorado Supreme Fart" - but we'll forgive you. "Diminutive" is an apt description. 
Posted on 12/20/2023 10:50:25 AM PST by Ultra Sonic 007
You misspelled "the Colorado Supreme Fart" - but we'll forgive you. "Diminutive" is an apt description.
Thank God this jerk didn’t make it to the Supreme Court.
Complete NUTSO>
Frankly between you and me, I couldn’t give a flying f@&k what Michael Luttig thinks or says.
He has a bad case of TDS. Just like a large number of people...
5.56mm
Thanks.
What a mess Colo. has created.
I’m not a huge Trump fan but he’s certainly brought the fake conservatives out of their closets! So many “Republicans” bleed Democrat...or worse!
a mind is a terrible thing to waste.
He may have TDS as great as Liz Cheney.
A different take on Section 3:
https://akhilamar.com/wp-content/uploads/2023/08/The-Sweep-and-Force-of-Section-Three.pdf
Bushies and Rats are nearly indistinguishable.
From the abstract section from your link:
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
I'm no lawyer, but it's obvious to me that, despite the authors laying out four arguments in support of section 3 applying to President Trump, they ignore the most compelling reason why it does not; and that reason is in the same amendment!
The same 14th amendment prevents the Colorado Supreme Court from removing anyone from the Presidential ballot.
The 14th amendment section 2 has a punishment for abridging the right to vote:
But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.Note that this buttresses the exclusion of the President and Vice President from section 3, since section 2 speaks about denying or abridging the right to vote for the choice of Electors, and keeping someone off the ballot is the highest form of denial and abridgment.
The authors of the amendment were afraid that state institutions (especially the state courts) would pass laws post-emancipation to deny full access to the ballot, both as voters (abridged) and as candidates (choice of Electors). Now we have the Colorado Supreme Court trying to do just that, keep someone off of the ballot.
The Constitutional punishment for preventing voters from voting for Electors of their choice in a state should be the direct loss of seats in the House of Representatives, and the indirect loss of Electors in the next election.
If the Colorado Supreme Court blocks President Trump from appearing on the ballot, they are denying the entire state the right to choose President Trump. It doesn't matter what polling suggests the actual vote would be, the entire state is denied the choice.
The 14th amendment should punish Colorado with the loss of their ENTIRE House delegation, and with it their Electoral College allocation, leaving Colorado with only the two Electors based on the Senate.
-PJ
A different take on Section 3:
The paper cited by Amar is 126 pages. While I have reviewed it in its entirety, I offer the following observations.
Amar links to this paper:
https://akhilamar.com/wp-content/uploads/2023/08/The-Sweep-and-Force-of-Section-Three.pdf
The Sweep and Force of Section Three
172 U. PA. L. REV. (forthcoming 2024)
William Baude & Michael Stokes Paulsen
Observe that footnote 5 cites a Lawfare article as among "The most important scholarly articles (to which we are deeply indebted)."
Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A How-to Guide, Lawfare (Jan. 19, 2021), available at https://www.lawfareblog.com/disqualifying-insurrectionists-and-rebels-how-guide.
Even that Lawfare article states of Section Three:
The text is reasonably clear as to Section 3’s triggering offices: The person in question must be or have served as a member of Congress, an officer of the United States, a member of any state legislature, or an executive or judicial officer of any state.
Yep. On January 19, 2021 Lawfare got that right. What they missed is that the President is NOT an officer of the United States. But then the President was not the specific focus of their article. They were more writing about the mob that descended upon Washington.
[Amar, Baude&Paulsen] Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion.
Correct as long as one reads "former office holders" as not meaning "all former office holders." Section three specifies what former officers it pertains to, and it is limited in scope to those officers.
[Amar, Baude&Paulsen] Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.
Of course, no provision of the Constitution may be repealed or annulled by the Congress. Any act repugnant to the Constitution is null and void.
[Amar, Baude&Paulsen] Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency.
False in part and grotesquely misleading.
14A, section three:
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.
Section three covers the Presidency in that any of the specified covered officials may be subject to being determined ineligible to execute the office of the Presidency. Former President Trump never took 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.
The President of the United States is never an officer of the United States. No elected official is an officer of the United States. The President appoints officers of the United States. No amount of horse manure thrown over the definition of officer of the United States can change the definition of officer of the United States.
See applicable Supreme Court opinions below. Note that in every case they specify an appointed official.
https://tile.loc.gov/storage-services/service/ll/usrep/usrep124/usrep124303/usrep124303.pdf
United States v Mouat, 124 US 303, 307 (1888)
What is necessary to constitute a person an officer of the United States, in any of the various branches of its service, has 'been very fully considered by this court in United States v. Germaine, 99 U. S. 508. In that. case, it was distinctly pointed out that, under the Constitution of the United States, all its officers were appointed by the President, By and with the consent of the Senate, or by a court of law, or the head of a Department; and the heads of the Departments were defined in that opinion to be what are now called the members of the Cabinet. Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.
https://tile.loc.gov/storage-services/service/ll/usrep/usrep099/usrep099508a/usrep099508a.pdf
United States v Germaine, 99 US 508, 509-510 (1878)
The argument is that provision is here made for the appointment of all officers of the United States, and that defendant, not being appointed in either of the modes here mentioned, is not an ofcer, though he may be an agent or employee working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its officers.The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt. This Constitution is the supreme law of the land, and no act of Congress is of any validity which does not rest on authority conferred by that instrument. It is, therefore, not to be supposed that Congress, when enacting a criminal law for the punishment of officers of the United States, intended to punish any one not appointed in one of those modes. If the punishment were designed for others than officers as defined by the Constitution, words to that effect would be used, as servant, agent, person in the service or employment of the government; and this has been done where it was so intended, as in the sixteenth section of the act of 1846, concerning embezzlement, by which any officer or agent of the United States, and all persons participating in the act, are made liable. 9 Stat. 59.
As the defendant here was not appointed by the President or by a court of law, it remains to inquire if the Commissioner of Pensions, by whom he was appointed, is the head of a department, within the meaning of the Constitution, as is argued by the counsel for plaintiffs.
- - - - -
https://tile.loc.gov/storage-services/service/ll/usrep/usrep424/usrep424001/usrep424001.pdf
Buckley v. Valeo, 424 U. S. 1, 125-126 (1976)
The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing "Officers of the United States," but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U. S. 508, 99 U. S. 509-510 (1879):"The Constitution, for purposes of appointment, very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that, when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might, by law, vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt."
(Emphasis supplied.) We think that the term "Officers of the United States,"
424 U. S. 126
as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.
Note that while the Court, in Buckley v. Valeo states that any appointee exercising significant authority is an Officer of the United States, it does so in stating that those appointees must be appointed as prescribed by Article 2. It says nothing of an elected President.
14A, Section 4:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
The President is not an officer of the United States, civil or otherwise.
https://www.justice.gov/file/451191/download
Officers of the United States Within the Meaning of the Appointments ClauseA position to which is delegated by legal authority a portion of the sovereign powers of the federal government and that is “continuing” is a federal office subject to the Constitution’s Appointments Clause. A person who would hold such a position must be properly made an “Officer[] of the United States” by being appointed pursuant to the procedures specified in the Appointments Clause.
April 16, 2007
MEMORANDUM OPINION FOR THE GENERAL COUNSELS OF THE EXECUTIVE BRANCH
[...]
50 pages
J. Michael Luttig: Section 3 of the 14th Amendment … disqualifies any person who, having taken an oath to support the Constitution of the United States, thereafter engages in an insurrection or rebellion against the Constitution of the United States, disqualifying that person from holding high public office in the future, including the presidency.
That is a steaming pile of horse manure. It does not say that. 14A §3 does say:
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
That is a prime example of intellectual dishonesty. Trump never took any oath as any one of those.
The clause is still in place. A law cannot repeal a portion of the Constitution - which an Amendment is - it can only provide definition.
In this case, the cited law limited the definition of those to whom the Amendment applied. That is important, but it is not a ‘repealing of the Amendment’. That clause is still there, and it could be re-engaged, but only through new law, and likely not ex post facto.
You are trying to split hairs no one is splitting.
Yes, I recall that - many in the conservative sphere were pushing for him to be appointed to the Supreme Court. He actually was a good judge.
But since 2006 he’s being a corporate lawyer - resigned his position as a judge to take that position. I suspect more influenced by that than his record an experience as a jurist.
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