The Colorado court is out of its jurisdiction. It’s a Federal Statute. Artifacts: there’s been no legal charge of insurrection - only an emotional one; The political insurrection impeachment trial resulted in acquittal. Any such state, if given the power to interpret the Constitution, would affect all other states thus, it is illogical.
Moreover, in the weeds of the language in Article 14, it is not explicit about the President, but all other agents and officers of the federal government. This is to the effect and intent that one man, one office cannot force an insurrection unless there are enablers. There are none.
On many levels this ham fisted State decision will be overturned by SCOTUS. Pathetic that we spend calories on this nonsense.
"Any such state, if given the power to interpret the Constitution, would affect all other states thus, it is illogical."
With your um, er, uh - how do I put this politely - lack of understanding of our political and legal system, you ought to be asking basic questions rather than making basic claims.
State courts are restricted by the COTUS - see 14th A. of the COTUS. Thus, state courts interpret the COTUS all the time. As just one example, if someone is charged with theft, and he claims that the police obtained incriminating evidence of his crime by a search that violated the 4th A. of the COTUS, the state court must then hear and rule on that issue.
The implication of your post above, is that once a COTUS provision is made an issue in a state court proceeding, the state court must give the case to a federal court. or at least have the federal court rule on the issue before proceeding any further. Do you realize how disruptive and burdensome this would be?
If a party is dissatisfied by a state court's ruling on a federal question, he or she can always appeal to a federal court after the appeal process in the state court is exhausted.
You really ought to think about the consequences of your ideas.
I have. The supremacy paradigm gives authority to the Supreme Court. States can’t wing it. Don’t even get into my knowledge of the Constitution- it’s understood.
As you must know, states can and do "wing it" all the time.
Giving you the benefit of the doubt, you appear to say that state courts are illegally taking subject matter jurisdiction over federal issues that arise in a state case. Is that what you're saying?
If this is what you're saying, you're obviously relying on authority OTHER THAN the COTUS. As a student of the COTUS, you certainly know that nothing in the COTUS prevents a state court from assuming subject matter jurisdiction of a federal issue in a state court proceeding.
They must operate within its four corners. SCOTUS ensures states can’t pass law outside its guidance. In this case, the state is trying to function as SCOTUS and - they are not. Moreover, ”insurrection” is a legal term where no court has passed judgment on this matter and thus, it is a subjective analysis that is unevenly being used as justification. Again, this is not in the states’ jurisdiction, not based on a legal argument, and not logical to accept a states’ position that only affects that state and no other.
"They must operate within its four corners. SCOTUS ensures states can’t pass law outside its guidance. "
I assume you're saying that any state law that violates the U. S. Constitution will be struck down by the courts. Saying this is almost like saying water runs downhill.
Both state court and federal courts have struck down state laws that violate the COTUS. It happens all the time.
But you appear to be saying that state courts cannot interpret the COTUS when constitutional issues arise in state court proceedings. Please cite the legal authority you rely on to reach this conclusion, and please be specific. If you think the COTUS provides such legal authority, please cite the specific provision and language of the COTUS.
Please cite the specific legal authority and language that says that state courts do not have jurisdiction to define insurrection when necessary to an issue in an otherwise legitimate case before a state court.
Yes, the federal courts - and ultimately the SCOTUS - have the final say as to an interpretation of the COTUS. It is not at all uncommon, however, for state courts and lower federal courts (in the various federal circuits) to have different interpretations of federal law or the COTUS when the SCOTUS has not yet ruled on that particular issue.
For example, one federal Court of Appeals ruled that Obamacare was unconstitutional while a different federal Court of Appeals in a different federal circuit ruled Obamacare did not violate the COTUS. Of course, the SCOTUS finally ruled on the issue. Frequently, federal Courts of Appeals will have divergent interpretation of the COTUS before the SCOTUS rules on the issue.
"...if it’s so clear cut that Trump engaged in an insurrection on January 6, why didn’t Special Counsel Jack Smith — who threw the kitchen sink at Donald Trump — not even charge him with that crime?"
Although I haven't studied the insurrection statute and its history, I can make an educated guess. When in court, you're in a different world to a large degree. Especially in criminal cases, the rules of procedure and of evidence are tight. The burden of prof is not "a preponderance of the evidence" or "clear and convincing evidence" but proof beyond a reasonable doubt.
SC Smith may well have determined that he could not have presented enough admissible evidence to get by a jury. It's not evidence to say "Come on, don't be naive, of course it was an insurrection and of course there wouldn't have been that insurrection but for his words and manner" or the like. It's not uncommon to know something is true, but to be unable to prove it in court.
That's why so many guilty persons are acquitted or even not charged and even why innocent people are sometimes convicted. The legal process is considered sacrosanct. While this process does have avenues to correct cases of individual injustice, they are subordinate to the system.
But as citizens, we are not restricted like a jury. Apparently, the drafters of Section 3, 14th A. of the COTUS didn't want to condition the section on a legal process
"Why do so many of Trump’s critics (not all, of course, but many, especially those on the left), have so little faith in the American people? Why are they so afraid to let voters decide if he should be elected again?"
Why did the drafters of the 14th A., section 3, to the COTUS have so little faith in the voters, even if they intended it to only bar Confederates from running? And if they were solely concerned about former Confederates running for office, why did they leave the language so broad? Of course, a true textualist would say this latter question is not relevant. They would say that we must look at the meaning of the text, not intent, when the language is clear.
In addition, why did the drafters of the original COTUS have so little faith in the voters that they put the provision regarding electors chosen by state legislatures to chose the POTUS? Granted, the states have each devised democratic systems - winner take all in 48 states and a more proportional system in the other two - but nothing in the COTUS requires this.
Of course the drafters of the COTUS had varying thoughts about a popular vote. Most did not trust the voters enough to have elections subject to direct popular vote. The COTUS basically establishes a political system that maximizes drawing on the wisdom of the voters while minimizing reliance on the passions of the voters.
You're suggesting that we disregard section 3 of the COTUS, at least regarding Trump. Although raising the 14th A. now complicates an already complicated election, I think the SCOTUS MUST address this head-on with regards to Trump. Section 3 is clear that offenders SHALL be barred from holding certain offices. Regardless of the motives of those raising this matter, we CANNOT afford to turn our backs on the COTUS.
Possibly the first question the SCOTUS must address is whether this a political question, i.e. is this matter so political that it's inappropriate for a court to address it? The SCOTUS could simply kick the entire issue to Congress, but I hope not. Section 3's language is so open-ended that it needs to have some process attached to it - e.g. specifically, what positions does the section 3 include if not the POTUS?, what is the definition of an insurrection?, specially, what does "...shall have engaged in insurrection or rebellion against" mean, does it bar offenders from running in state primaries, does it bar offenders from running in the general elections. Once the SCOTUS has ruled on these sub-issues, they can kick it to Congress or make an ultimate ruling themselves.
If Congress has the ultimate responsibility of enforcing section 3, they must develop more process. Is the ultimate vote a majority vote? 2/3? 3/4? Is there a trial before both houses of Congress? Who presides over the trial? What is the burden of proof? What are the rules of procedure and of evidence? Etc.
Yes, it's a constitutional and political mess. But once raised, it must be addressed regardless of why it was raised. It would be a terrible precedent to ignore section 3 claims because we disagree with it or because it's so difficult.
If the SCOTUS makes an ultimate ruling on Section 3, they should address who has standing to raise such a claim. state legislators? state AGs? sectaries of state? the US AG? Congressmen? Some combination?
In addition, is there the equivalent of a "statute of limitation"? Must the party bringing the claim take an oath that his claim is well-grounded on fact?
Times like trumps first interview with Oreilly after being sworn in and saying “there are a lot of killers, you think we’re special?” You rightfully took him and Oreilly to task over that. ANY other politician and republican voters would’ve went nuts. Ok, I promise I’m done for the week now, just needed to add that!
Great article. Oreilly has completely sold out to the Trump crowd. Especially after that despicable interview with trump right after he was inaugurated, saying “there are a lot of killers, you think we’re so innocent?” As Bernie pointed out, that’s something a left winger would have said, and had that been Hillary or any other republican the MAGA crowd would have gone ballistic. Oreilly shamelessly covered for Trump after that interview
Agreed wholeheartedly about the Colorado issue. I don’t like the man, but it should be left to the voters to decide, not political hacks in the government.
Bernie and John,
First happy holidays to both of you, and sorry to sound so negative near the holidays, but...
I’ll start my question with a statement. I’m sick of Trumpism, Trumpers and Trump especially. I’m not talking about the people who held their noses and voted for him or even people who think he was an ok president. I’m talking about the die hard conspiracy theorists who say everyone else running against him is part of the “establishment” and anyone who doesn’t lick his boots. I’m tired of being told candidates I support who aren’t Trump are establishment, or “politicians” as if Trump weren’t a politician. I found it annoying when the left thought Obama could do absolutely no wrong and any critique of him was due to “racism” not his terrible policies. Or the fact liberals can’t call Hamas a terrorist group because the left wing media won’t allow them to. The same decisiveness exists on the right now and that anyone who breaks from, criticizes in any way even if only to help him become better, or dares run against him in a primaries are exiled from the new MAGA right. Where does this allegiance without question come from, and why Trump? He’s not nearly the most conservative candidate, or the most accomplished. Republican voters used to pick a candidate based on accomplishments and conservative values. Why have republican voters decided this is the guy who is free from criticism out of every candidate before him who they held to a much higher standard? He’s shown that he’s willing to abandon and even attack conservative values republican voters supposedly held dear. Sorry it took so long to get to my question.
The Colorado court is out of its jurisdiction. It’s a Federal Statute. Artifacts: there’s been no legal charge of insurrection - only an emotional one; The political insurrection impeachment trial resulted in acquittal. Any such state, if given the power to interpret the Constitution, would affect all other states thus, it is illogical.
Moreover, in the weeds of the language in Article 14, it is not explicit about the President, but all other agents and officers of the federal government. This is to the effect and intent that one man, one office cannot force an insurrection unless there are enablers. There are none.
On many levels this ham fisted State decision will be overturned by SCOTUS. Pathetic that we spend calories on this nonsense.
"Any such state, if given the power to interpret the Constitution, would affect all other states thus, it is illogical."
With your um, er, uh - how do I put this politely - lack of understanding of our political and legal system, you ought to be asking basic questions rather than making basic claims.
State courts are restricted by the COTUS - see 14th A. of the COTUS. Thus, state courts interpret the COTUS all the time. As just one example, if someone is charged with theft, and he claims that the police obtained incriminating evidence of his crime by a search that violated the 4th A. of the COTUS, the state court must then hear and rule on that issue.
The implication of your post above, is that once a COTUS provision is made an issue in a state court proceeding, the state court must give the case to a federal court. or at least have the federal court rule on the issue before proceeding any further. Do you realize how disruptive and burdensome this would be?
If a party is dissatisfied by a state court's ruling on a federal question, he or she can always appeal to a federal court after the appeal process in the state court is exhausted.
You really ought to think about the consequences of your ideas.
I have. The supremacy paradigm gives authority to the Supreme Court. States can’t wing it. Don’t even get into my knowledge of the Constitution- it’s understood.
"States can’t wing it."
As you must know, states can and do "wing it" all the time.
Giving you the benefit of the doubt, you appear to say that state courts are illegally taking subject matter jurisdiction over federal issues that arise in a state case. Is that what you're saying?
If this is what you're saying, you're obviously relying on authority OTHER THAN the COTUS. As a student of the COTUS, you certainly know that nothing in the COTUS prevents a state court from assuming subject matter jurisdiction of a federal issue in a state court proceeding.
They must operate within its four corners. SCOTUS ensures states can’t pass law outside its guidance. In this case, the state is trying to function as SCOTUS and - they are not. Moreover, ”insurrection” is a legal term where no court has passed judgment on this matter and thus, it is a subjective analysis that is unevenly being used as justification. Again, this is not in the states’ jurisdiction, not based on a legal argument, and not logical to accept a states’ position that only affects that state and no other.
"They must operate within its four corners. SCOTUS ensures states can’t pass law outside its guidance. "
I assume you're saying that any state law that violates the U. S. Constitution will be struck down by the courts. Saying this is almost like saying water runs downhill.
Both state court and federal courts have struck down state laws that violate the COTUS. It happens all the time.
But you appear to be saying that state courts cannot interpret the COTUS when constitutional issues arise in state court proceedings. Please cite the legal authority you rely on to reach this conclusion, and please be specific. If you think the COTUS provides such legal authority, please cite the specific provision and language of the COTUS.
Please cite the specific legal authority and language that says that state courts do not have jurisdiction to define insurrection when necessary to an issue in an otherwise legitimate case before a state court.
Yes, the federal courts - and ultimately the SCOTUS - have the final say as to an interpretation of the COTUS. It is not at all uncommon, however, for state courts and lower federal courts (in the various federal circuits) to have different interpretations of federal law or the COTUS when the SCOTUS has not yet ruled on that particular issue.
For example, one federal Court of Appeals ruled that Obamacare was unconstitutional while a different federal Court of Appeals in a different federal circuit ruled Obamacare did not violate the COTUS. Of course, the SCOTUS finally ruled on the issue. Frequently, federal Courts of Appeals will have divergent interpretation of the COTUS before the SCOTUS rules on the issue.
For you, water runs up hill.
"...if it’s so clear cut that Trump engaged in an insurrection on January 6, why didn’t Special Counsel Jack Smith — who threw the kitchen sink at Donald Trump — not even charge him with that crime?"
Although I haven't studied the insurrection statute and its history, I can make an educated guess. When in court, you're in a different world to a large degree. Especially in criminal cases, the rules of procedure and of evidence are tight. The burden of prof is not "a preponderance of the evidence" or "clear and convincing evidence" but proof beyond a reasonable doubt.
SC Smith may well have determined that he could not have presented enough admissible evidence to get by a jury. It's not evidence to say "Come on, don't be naive, of course it was an insurrection and of course there wouldn't have been that insurrection but for his words and manner" or the like. It's not uncommon to know something is true, but to be unable to prove it in court.
That's why so many guilty persons are acquitted or even not charged and even why innocent people are sometimes convicted. The legal process is considered sacrosanct. While this process does have avenues to correct cases of individual injustice, they are subordinate to the system.
But as citizens, we are not restricted like a jury. Apparently, the drafters of Section 3, 14th A. of the COTUS didn't want to condition the section on a legal process
"Why do so many of Trump’s critics (not all, of course, but many, especially those on the left), have so little faith in the American people? Why are they so afraid to let voters decide if he should be elected again?"
Why did the drafters of the 14th A., section 3, to the COTUS have so little faith in the voters, even if they intended it to only bar Confederates from running? And if they were solely concerned about former Confederates running for office, why did they leave the language so broad? Of course, a true textualist would say this latter question is not relevant. They would say that we must look at the meaning of the text, not intent, when the language is clear.
In addition, why did the drafters of the original COTUS have so little faith in the voters that they put the provision regarding electors chosen by state legislatures to chose the POTUS? Granted, the states have each devised democratic systems - winner take all in 48 states and a more proportional system in the other two - but nothing in the COTUS requires this.
Of course the drafters of the COTUS had varying thoughts about a popular vote. Most did not trust the voters enough to have elections subject to direct popular vote. The COTUS basically establishes a political system that maximizes drawing on the wisdom of the voters while minimizing reliance on the passions of the voters.
You're suggesting that we disregard section 3 of the COTUS, at least regarding Trump. Although raising the 14th A. now complicates an already complicated election, I think the SCOTUS MUST address this head-on with regards to Trump. Section 3 is clear that offenders SHALL be barred from holding certain offices. Regardless of the motives of those raising this matter, we CANNOT afford to turn our backs on the COTUS.
Possibly the first question the SCOTUS must address is whether this a political question, i.e. is this matter so political that it's inappropriate for a court to address it? The SCOTUS could simply kick the entire issue to Congress, but I hope not. Section 3's language is so open-ended that it needs to have some process attached to it - e.g. specifically, what positions does the section 3 include if not the POTUS?, what is the definition of an insurrection?, specially, what does "...shall have engaged in insurrection or rebellion against" mean, does it bar offenders from running in state primaries, does it bar offenders from running in the general elections. Once the SCOTUS has ruled on these sub-issues, they can kick it to Congress or make an ultimate ruling themselves.
If Congress has the ultimate responsibility of enforcing section 3, they must develop more process. Is the ultimate vote a majority vote? 2/3? 3/4? Is there a trial before both houses of Congress? Who presides over the trial? What is the burden of proof? What are the rules of procedure and of evidence? Etc.
Yes, it's a constitutional and political mess. But once raised, it must be addressed regardless of why it was raised. It would be a terrible precedent to ignore section 3 claims because we disagree with it or because it's so difficult.
If the SCOTUS makes an ultimate ruling on Section 3, they should address who has standing to raise such a claim. state legislators? state AGs? sectaries of state? the US AG? Congressmen? Some combination?
In addition, is there the equivalent of a "statute of limitation"? Must the party bringing the claim take an oath that his claim is well-grounded on fact?
If the Supreme Court rules against Colorado and Trump goes onto win the presidency what will they do next?
Times like trumps first interview with Oreilly after being sworn in and saying “there are a lot of killers, you think we’re special?” You rightfully took him and Oreilly to task over that. ANY other politician and republican voters would’ve went nuts. Ok, I promise I’m done for the week now, just needed to add that!
EXACTAMENTE!
If, for example, Hillary or any other politician O'Reilly despises, had said that, O'Reilly would have lost his shorts, if you know what I mean..
Yes, Oreilly tells the MAGA crowd what they wanna hear. I can’t believe he thinks he could’ve saved Fox from that lawsuit. That man is an arrogant SOB
In pinpointed eight years ago exactly when O'Reilly sold out for Trump. https://www.bernardgoldberg.com/p/bill-oreilly-enters-the-trump-spin-zone
Great article. Oreilly has completely sold out to the Trump crowd. Especially after that despicable interview with trump right after he was inaugurated, saying “there are a lot of killers, you think we’re so innocent?” As Bernie pointed out, that’s something a left winger would have said, and had that been Hillary or any other republican the MAGA crowd would have gone ballistic. Oreilly shamelessly covered for Trump after that interview
He's been covering for Trump ever since. On every single thing? No. But on a lot of things.
Agreed wholeheartedly about the Colorado issue. I don’t like the man, but it should be left to the voters to decide, not political hacks in the government.
Bernie and John,
First happy holidays to both of you, and sorry to sound so negative near the holidays, but...
I’ll start my question with a statement. I’m sick of Trumpism, Trumpers and Trump especially. I’m not talking about the people who held their noses and voted for him or even people who think he was an ok president. I’m talking about the die hard conspiracy theorists who say everyone else running against him is part of the “establishment” and anyone who doesn’t lick his boots. I’m tired of being told candidates I support who aren’t Trump are establishment, or “politicians” as if Trump weren’t a politician. I found it annoying when the left thought Obama could do absolutely no wrong and any critique of him was due to “racism” not his terrible policies. Or the fact liberals can’t call Hamas a terrorist group because the left wing media won’t allow them to. The same decisiveness exists on the right now and that anyone who breaks from, criticizes in any way even if only to help him become better, or dares run against him in a primaries are exiled from the new MAGA right. Where does this allegiance without question come from, and why Trump? He’s not nearly the most conservative candidate, or the most accomplished. Republican voters used to pick a candidate based on accomplishments and conservative values. Why have republican voters decided this is the guy who is free from criticism out of every candidate before him who they held to a much higher standard? He’s shown that he’s willing to abandon and even attack conservative values republican voters supposedly held dear. Sorry it took so long to get to my question.
Thanks, again happy holidays, Ed G