i think if you believe that this was fair, you might want to look at the reality of the situation. no offense to J. J. but this is a very plain analysis of the situation. though he's at least called them rioters and not falsely insurrectionists. pinning this comment is proof he is engineering the responding conversation. am I saying he didn't put a lot of effort into this? no, clearly he worked hard as he usually does. for the record, I don't like trump and I don't want him to be president, but trump didn't do as claimed. if that's the case then maaxin aters, Hillary Clinton, and others have also been in violation of the 14th amendment as they made the same false claims about a fraudulent election in 2016 when Trump won. which is something that J. J. didn't even bring up.
@@matthewfurlani8647solid point! I’m not huge on Trump either(Midwest American here btw) I was never really in love with his rhetoric and his overall “rich elite” attitude in certain situations. He did thumb his nose to power in this country and that takes BALLS! He didn’t govern that different from other Republicans though, he literally was just a more chaotic Bush Sr lol! I agree with you, he didn’t commit insurrection by any stretch of the imagination. Yet I still wouldn’t let him NEAR the Oval Office ever! I hope Republicans across the country can recognize that Trump just isn’t the man for us. Never was!
The argument that the President is not an office of the US state is directly refuted by the Oath that the President swears which specifies the "Office of President". I don't know why this has not been stated, (as far as I know) in any of these discussions.
"The president isn't an officer!" "Oh, well where does he work then?" "The White House." "Which part of the White House?" "The... the West Wing." "And where in the West Wing does he work?" "... the Oval Office."
The "office" of an officer is not referring to a literal room used for work and called an "office", lol. You could never set foot in an office and still be an "officer". The office is the job, the position, the role, the service, the responsibility, the power, etc.
This argument that President is "not an office" and some of the others being made by the Trumpists are just in such transparently bad faith that they're almost comical
"He's running for ______" "He holds public ____" "The ____ of the Presidency" "The President is the Highest _____" Funny how those very common sayings and understandings are now being questioned somehow by anyone. Spoiler: Office fits all of them.
It's also important to note that US Code 18 §2383 was passed in 1948, while the 14th Amendment was written in 1868. No one involved in the Civil War could have been convicted under §2383 when the 14th Amendment was passed because it wouldn't exist for another 80 years.
The thing is though, if we are Strict Constitutionalists, the 14th Amendment could *never* have been used against those involved in the Civil War. The 14th Amendment does not explicitly waive the *ex post facto* clause of Article I Section 9 of the Constitution.
@@SupremeLeader673Article I Section 9 specifically limits the power of Congress to pass an ex post facto law. A constitutional amendment is not subject to the limitations of Congress. Besides, I'm not sure it's an ex post facto law since it was a qualification for running for office that only applied to elections after the amendment was passed.
@@SupremeLeader673 It does not need to explicitly waive the ex post facto clause. With the exception of the 2 Senators rule, as a more recent amendment to the constitution, if it needs to waive ex post facto to function, it waives ex post facto.
The lawmakers who wrote the 14th Amendment were acting against politicians who BROKE AN OATH, a thing that was seen as much more serious in the 19th century than apparently it is today. "An honorable man's word is as good as his bond." to quote Miguel de Cervantes.
“Today we are going to do something that we do not do often on this channel” And discuss a political topic. I’ve been subscribed for some time since you talked about politics regularly. For some time now, this has more or less transformed into a cultural analysis channel. I must say that you do a good job of covering both of these subjects! I was just surprised to see a political analysis from JJ in my notifications
Well it's mostly a culture channel, but politics is certainly an aspect that affects culture (and vice versa for that matter). And when he does mention politics, it's usually Canadian politics. But every once in a while a topic begs for comment, and I certainly think this one qualifies.
@@troodon1096 it’s mostly a culture channel with some politics now. But look at his uploads from 4+ years ago. Back then it was mostly a politics channel with some culture
It's the worst video he's made, intentionally spun and leaving you completely ignorant of the development. I'm glad he's incapable of voting in America. It's funny I do not support trump but I'm also glad JJ proved in this video that he's not a lawyer. I would never vote for JJ
The biggest issue was stated by Ben Wittes at 20:00. The amendment is about objective reality. That was a simple matter in 1865 after a Civil War in which separatists formed an independent government and fought a war against the US. No one anywhere doubted that an insurrection happened and no one disputed the people involved. But here we have a case where reasonable people can disagree whether or not an insurrection occurred, and also disagree about who was involved and to what extent if they agree it did. Because those doubts exist and haven't been resolved, I I'd bet the SC throws this out.
It is absolutely not reasonable to assert that an attempted insurrection took place. It happened in so many different ways - that it was not successful was a lot closer than most anyone not wearing a read hat is willing to admit. I am most definitely not one of those people and I knew about it - weeks in advance - and I am not anyone that has anything to do with government or some movement - just a young idiot kid in a bar - hundreds of miles from DC told me what he was going to be a part of and how proud he was. And I said - that is very foolish you could get killed or you could kill someone and ruin your life and it would all be for nothing. He told this to me Dec 20 that there was a plan in place and basically described exactly what they were going to do. I had no idea whether it was credible or not or even knew the kids name - But I remembered and kept my eyes and ears on alert for the potential - all the gaslighting is actually far sicker than the insurrection
Without a criminal trial to establish what HAS happened as legal fact, the Supreme Court will rightfully throw it out. I'm not sure how other people don't understand this, but in a democratic country (and society) you NEED to have a legal process for everything; else, people resort to violence because their voice isn't being heard.
It's a complex analysis that I am not qualified to make... however on the specific question of whether he "riled up the mob"... I don't think he did, directly. He asked for peaceful protests in a march. That relatively small group of citizens took it upon themselves to take it way too far by breaking in... you could go back and forth on whether Trump gave a "nod" and a "wink", and go back and forth about his interactions with Pence. However distasteful I find Trump these days, I really don't think you can blame him for what those clowns did when they got to the capitol. I have no doubt he was overjoyed at their actions! But that does not direct legal responsibility make.
And he certainly isn't the first president to contest the results of an election. We've had several recounts and election drama in recent decades, where one side refused to concede, demanding further investigations/counts.
@@mercster what is an example of another time that a president hatched an elaborate scheme to stay in office after losing an election? I certainly can’t think of any other examples. George HW Bush didn’t do it, Jimmy Carter didn’t do it, Gerald Ford didn’t do it, Herbert Hoover didn’t do it….
@@darklelouchg8505the colorado case shows that trump and guliani literally influenced the fraudulent electors for thier cases of "proven voter fraud". That is a conspiracy to undermine the election.
This is why I think a prior conviction should be required. Because you cannot determine an incitment of an insurrection based on actions alone, you have to look to intent. And that's basically a criminal procedure right there
I won't speak as to the law itself, but I do think (despite being a Leftist) that Trump SHOULD be on the ballot. I just think it seems wrong to be genuinely considering this drastic of a consequence for simply voicing support for a protest turned riot at the capital. There are tons of offices that make up our government, from Town Halls to Statehouses to the halls of Congress, all of them are constantly being protested by very passionate very angry people from both sides of the aisle and politicians on both sides of the aisle routinely express support for these demonstrations. It is a matter of both freedom of speech and the right to demonstrate that it not be illegal for politicians to express this kind of support. I know that these laws don't exist on state and local levels because it's only considered treason when it happens to a major federal institution, but still. Also, while I don't find trying to suss out which protests are "peaceful" and which are "riots" and which are caused by police, or by instigators and which are caused by the majority of protestors themselves particularly helpful; and while I know that to say something like "Black Lives Matter is violent too" would illicit a mob of angry liberals with highly detail-oriented lists of specific ways in which specific events of January 6th differed from the specific events of various BLM protests, I do think its safe to say that the left is capable of having protests turn violent too. And I think that Left-wing politicians would say something very similar to Trump if they were in his shoes. Something along the lines of "I'm glad to see so many demonstrators out here passionate about [Abortion.] I'm sure some of you [Gun Control] supporters will be marching on the capital soon. I hope that you're all peaceful. I love you", etc.
Ted Cruz makes a pretty convincing argument tbh. If Trump had actually been tried convicted for intersection this will be an open and shut case. But he has not.
That just means it would be open-and-shut. Nobody is disputing that. The fact that the case is not "open-and-shut" means that it's not clear-cut, it doesn't mean it's wrong. If it were obviously wrong, it would STILL be "open-and-shut," just in the other direction.
I apprieciate approaching things from a more objective perspective. Human bias is already a serious thing, we don't need people being openly biased while covering "news".
I think he does a great job with human bias; he also is aware that he has biases and makes sure he doesn't hide them when necessary. Saying that being openly biased is a problem is definitely a bad word choice. We really don't need more people to hush up about their biases to get more support and then doing things that are questionable, held up by the idea that centrism is perfect and doesn't involve its own biases. Appreciate what you want. I don't care about that for you personally. Please don't infer that *that* is my intent. PotFriend
If the insurrection and rebellion clause is found to be purely fact based without need for conviction, I would worry that that would open it up to abuse shortly thereafter.
I think that setting a precedent holds FAR less potential damage than to allow someone who has stated anti-democratic ideals to hold the highest office in the country. Set the precedent, then re-write the Amendment to close up any potentially damaging loopholes, is my opinion on how to cause the least amount of future troubles.
It most certainly will be abused but I don't see that as a reason to scrap it. That would be like saying murder should be legal because an innocent person gets screwed occasionally. All of life is a string of cost-benefit analyses, I would say the benefit of the clause outweighs the cost.
@@levi1929Rewriting an amendment is a horrible idea. You would burn everything for your own feelings. That is far more anti-democratic than anything Trump has done.
@@angrytheclown801 this is a common claim of magaworld but you all seem to ignore the fact that there *was* due process in Colorado. There was a lawsuit and it was appealed to the state's highest court. Removal was the direct result of due process not some random, arbitrary tactic.
This case was never clear cut. JJ did an excellent job breaking this down. The colorado court that barred Trump from appearing on the ballot voted 4-to-3, meaning half the judges disagreed with the decision. Their choice came after another court found him eligible to run. So even among Colorado's legal experts, it's contentious.
The original Colorado decision DID find that he engaged in an insurrection, but that it did not disqualify him. But, you are right, it is a contentious issue with no definitive answer.
Also important to remember that every member of the Colorado Court that barred him from the ballot were trained in Ivy Leagues, whereas those who did not were Colorado trained.
@@Diphenhydra it was very clear cut. There was no insurrection for him to have taken part in and this was all a purely political example of election interference and voter suppression
Great video, J.J.! I think one argument that Trump might also be able to use is some favorable precedent around the 14th Amendment. In the case “In re Griffin” (1869), Chief Justice Salmon Chase (Lincoln’s treasury secretary-and no friend of secession) explicitly found that the 14th Amendment was not self-executing as applied to a state judge who had served in the Virginia House of Delegates during the war. He read Section Five of the Fourteenth Amendment as requiring congressional action to activate Section Three. While the court isn’t bound to follow previous precedent it does actually weigh quite heavily for the justices-even after some high-profile overturnings! It might be particularly relevant for the originalist justices since it provides a glimpse at what the framers of the amendment might have been thinking.
Precedent does tend to weigh heavily upon American (and English) law, because we have common law (i.e., precedent-based system of law). Now the Supreme Court can throw out precedents if it so chooses, but like you said, they have long-standing effects and may be difficult to correct.
Please read entirely before commenting: The main point I'm stuck with is Ted's point. If he's correct, all the other points are pretty much mute. Ted's basically saying that the court was deciding if Trump should be barred from running, not whether or not he committed 'insurrection'. That means Trump has to have already been convicted in order for the State courts to rule Trump be barred on the basis of 'insurrection'. It is not up to any random courts discretion to decide if the crime was committed without due process. This point is addressed in the video with the 'automatic activation' theory on the 14th amendment. The issue here, is that I can't think of any other example in law where you can automatically determine that a person has committed a crime. The equivalence given in the video is that 'turning 18 is automatically determined by your ID or government certs'. It's a false equivalence since 'turning 18' is not a crime. Even if there was video evidence of you murdering someone, you still get due process in court before you are convicted of murder. THAT POINT is further addressed with the idea that 'there is evidence that the 14th amendment was meant to be used in an automatic way' since they were not taking each Confederate Representatives to trial to determine if they had committed treason. The problem I have with this argument is that we're basically saying 'It was intended to be used fraudulently back then, therefore, we should use it fraudulently today'. I say 'fraudulently' because an automatic conviction of a crime circumvents 'Presumption of Innocence' (PoI) which is in the UN Universal Declaration of Human Rights. It's not explicitly stated in the USA Constitution, but it WAS widely held to follow from the fifth, sixth and.... FOURTEENTH amendments (until now I guess because some University Prof said so...). To be more explicit, Coffin v. United States (1895) established PoI of crimes in the United States. (There is NO WAY Laurence Tribe doesn't know this BTW...). Because of the outstanding issue of PoI in this video, I'm inclined to disagree that this was a fair analysis. I found the video to be rather vague or dismissive when discussing points beneficial to Trump's case. I also found that the CORE points contrary to Trumps case were mostly qualified with accolades (He's a prof at Harvard/Legal Journalist, so it's true. Trust me bro) as opposed to anything written down in black and white. I still think this was a great video in getting wind on the current talking points of the trial, no matter which way it was inclined to lean. So I guess there is value to the conversation from this video for free thinkers. But don't base your opinion on this video on it's own. Apply your own critical thinking to the matter and come to your own conclusions.
i don't know... i enjoy your content but this seemed way off base. I think a big part of the problem is the people you're quoting are extremely radical. I think about the only thing you got right was at the end you kind of implied that this whole situation is probably not worth anyone's time.
I'm constantly impressed by JJ's commitment to unbiased discussion of very difficult topics. Sometimes I agree with his personal opinions and sometimes I don't, but I've never once felt that he hadn't taken both sides seriously and approached them fairly. Shame on national/international news outlets and analysts who consistently fail to reach this level of balance and insight.
I think you handled this current event very well, but I would have two comments. First, you said that originalism is the legal idea that texts (like the constitution) should be interpreted literally but that is actually the related idea of textualism. Originalism posits that the text should be interpreted in the context of the time it was written and enacted. So when it comes to broadly defined things like “equal protection” an originalist would say that this should be understood as a 19th century American would understand it while a textualist argument could be made that texts should take the meaning of the time they are adjudicated. Second, I don’t think it was fair to make a comment about Sen. Cruz’s partisan political affiliation without doing so for Professor Tribe, who is a well known and vocal supporter of the Democratic Party in the US, having worked for the Gore and Obama campaigns
Agree. I would add, I've seen "originalism" and "textualism" be used interchangeably, so I'm not sure how people use or apply one term to mean one meaning or the other. The basic idea, though, is that if words have any meaning, then the laws that use them do too. And therefore, we decide according to what the law says.
@@JJMcCullough lol protest is illegal now, but I'm sure you'd describe burning buildings and murdering people in the street as "fiery but mostly peaceful protesting". Explain how every Democrat who supported that ain't banned from running for office huh?
@@JJMcCullough Yeah why was their a women's march in 2017 after Trump was elected? Women hated Trump and CLEARLY wanted to yell in DC loud enough until they were heard and they prevented Trump being president. You have the burden of proof, he organized a rally and you're implying it was for insurrectionist purposes, argue why it was first otherwise we can just say it was for the same reasons as so many other rallies he had before and since.
@@JJMcCullough Because the 1st amendment allows for people to protest the government for redress of grievances. The election being stolen is a grievance that many people would like to see redressed. We KNOW that the election was rigged. We KNOW that the FBI engaged in mass, systemic censorship and promoted outright misinformation to get Biden elected. You can't deny this.
I just think that the other 3 analysts are not confident because the judges are very partisan. Ted Cruz knows the judges are partisan towards Trump, so he isn’t worried
Something a couple of other people have mentioned in the comments but after the Civil War it was mostly obvious who had engaged in insurrection. The Confederacy had formally declared war and secession against the United States, so anyone who agreed to hold an office of the confederacy or fought for the confederacy essentially implicitly agreed that they were an insurrectionist. They were fighting for the government that had declared insurrection. The insurrectionist clause has only been used to disqualify a handful of candidates since then. If the 14th amendment was originally designed to remove civil war insurrectionists, it's a lot easier to argue that it wasn't originally designed to consider insurrectionists of all varieties.
@@stone_pilot this is some serious originalist argument. Im just confused why a lot of conservatives argue that “ the 14th Amendment is only for the Civil War”. The Constitution doesn’t work like that. When it comes to the 2nd Amendment, the founders original intent be damned. Guns only for state militias? Everyone is part of a State Militia now!!! Conservative logic is flawed and purely based on emotion lol
It won't ever happen. The republicans don't have the balls to wield power like this. The left oppresses us openly and unapologetically because they know we're too pussy to ever do anything about it.
One other potential factor in this is the fact that Trump is leading most, if not all, recent polls for the general election. They wouldn't be disqualifying just any candidate, they'd be disqualifying the most popular candidate.
You're slowly catching on to what Trump supporters have been saying since 2015. The game is rigged and they're completely emboldened to openly show their hand
The issue with the "no conviction" take where in a person doesn't need to be legally charged and then found guilty of the actual crime of being an insurrectionist is that it blatantly leads the door open to nearly free interpretation on what actually constitutes being an insurrectionists with effectively only the smallest amount of justification being needed. What is going to stop this from becoming a tool used by partisan state courts to just ban whatever candidate they want from being on the ballet? You are essentially arguing a judge or group of judges should have free reign to find a political figure guilty of insurrection and then penalize them in whatever way they see fit with no trial and little to no legal recourse, that is judicial tyranny and in total violation of the most basal legal practices written into the founding legal document of MY country. I won't claim to have a full or even summary understanding of the Canadian legal system so perhaps such action would be seen as fine or even normal to most Canadians and be seen as perfectly legal, in which case I am glad I was born south of our shared border.
What’s to prevent partisan state courts from just faking evidence and arresting every politician from the other side and sentencing them to death by electric chair?
I highly recommend contacting Uncivil Law for a talk JJ. He is a lawyer on RU-vid, whose main focus is IP/Copyright and Constitutional Law. He tries to divorce his political takes from his legal analysis and a conversation between you two would be really cool to see and his knowledge of these topics/relevant cases is encyclopedic.@@JJMcCullough
@@JJMcCullough That's not exactly a fair response. Partisan state courts haven't been floating the idea to fake evidence and sentence political rivals to death. Whereas, the Texas Lt. Gov. has floated the idea of disqualifying Biden on the basis of immigration. Now, I think this was an idea and bluster rather than any honest conviction, but if a top Republican official is floating the idea, then I don't think it's a particularly farfetched outcome.
The criminal law of conviction was not created for decades after the amendment, and yet many people were barred under the 14th amendment in the intervening years, so there's no precedent of what you're describing. Also, if we're going to say crooked courts can do what they want, then why not just issue phony criminal convictions of insurrection immediately before barring them under the 14th amendment without cause?
@@JJMcCullough Difference is one is pretty obviously tyrannical and would be very hard to pull off without triggering a civil war/breakdown. Partisans would much rather have a quick, easy, and sneaky way at silencing an opponent
Great video. This issue really reminds me of Karl Popper's Paradox of Tolerance. The 14th Amendment is saying that to preserve the Constitution, we must be intolerant of intolerance against it.
Your lawyer guy said the quiet part out loud: they're trying to use it as an ideological screening method. There are plenty of lawyers commenting on this case who are far less partisan. What made you choose these ones?
Because we live in a country with rights and laws. Tyrants cannot lock people up for whatever reason they want whenever they want. Donald Trump did not "plan an insurrection." The Capitol riot happened on its own, like any other riot.
I think the problem of using proof of citizenship and age being self evident, are not in fact correct. As there was a legal due process involved with the generation of a birth certificate. You cannot simply claim to live in the usa and be a certain age, you must produce proof.
@@northernmetalworkerThis is one of those instances where you can’t disprove a negative, but you can certainly prove a positive. The evidence is overwhelming; what was shown on the news coverage on Jan. 6 was just the tip of the iceberg.
@@northernmetalworker Nice spot. You can't prove a negative, the positive has to be argued first and then that argument can be refuted on it's evidence.
I mean, being too young is not a crime, rebellion is. I think it matters to decide first and foremost if he did something wrong on a national level instead of letting the courts of individual states wing it. I'm not a trump supporter, I'm not even a US citizen, but given the sentiment around Trump and how opinions are divided on him, it's hard to believe there isn't some level of "we don't want him running again because a section of the US people really dislike him". I think that not proceeding like that first is a sure-fire way to make these decisions look partisan. A lot of people that vote for trump are people that feel the country left them behind, I think, and excluding trump from the ballot without a national consensus that he did them crimes is sure to reinforce that feeling.
It's not necessarily a crime. You would have to be convicted of something, and the language does not specify anything of that nature. It would be the same as being impeached and removed from office for something. It carries nothing like what it would for a criminal conviction in a court of law.
@@RickJaeger Then why is there a law that makes it a crime ? And I'm not even talking about "the guy needs to be convicted and punished by law", what I mean is "it's probably wise to come to a decision about whether the guy actually committed insurrection or not on a national level" before taking such drastic steps on a state level. I'm sure there's some way to officialize or not on a state level what he did was insurrection, and then move as a country, not just as an individual state.
@@FlavorsomeMusic Re: why there is a law that makes it a crime. I am not sure what that has to do with it. If Trump were convicted, that would of course be a no-brainer that anyone could agree that anyone else could take him off the ballot for it. That doesn't imply that a conviction is _necessary_ for the law's effect. As for the rest, I don't know. I don't think so. I rather think the states retain the power to run their own elections, and they already do that without creating a constitutional crisis. You may be right that it would be _better_ for the country if we did come to a national consensus, but I feel that's irrelevant when it comes to the Constitution. The law is the law is the law, and the law does not say anything like "The nation must come to a consensus."
@@RickJaeger I never made the argument that it should objectively happen like that because the law forces it, I'm making the argument that the political situation in the US is tense enough as it is right now without inflaming it further. It's not because the states have the right to do it that they should, it feels irresponsible to me. I'm not making a law argument, I'm making a common sense argument. I also never made the argument that there needs to be a court conviction, I made the argument that there should at least be a consensus on the national level, not because the law requires it, more because of the tense political situation in the states. Politics is about compromises after all, and I see both of these things as olive branches to a majority of his supporters who will very most likely see this as some form of corruption. Some will no matter what, of course, that can't be helped. To the common people, usually, when you're accused of a crime or at least something as important as this, you need to be proven guilty. I don't think they care about the technicalities of the constitution unless it benefits their perspective. I'm more tackling this from the human side than the law side. I'm a hobbyist software engineer and I deal with legal licenses a fair bit, and I can assure you that a majority of people don't give a rat's arse about their license agreements and the technicalities of them, they act more on feelings, and I'm pretty sure that a lot of people in the states right now don't feel that he did insurrection. I hope this is a relevant parallel. >< TLDR: Yeah, we're dealing with legal stuff, but we're also dealing with human beings that have nuanced perspectives first and foremost, and I see benefits in officializing whether or not he did it on a human level.
What would happen if the SCOTUS rules that the Colorado Supreme Court made the right decision but most other states (at least ones that are likely to vote for Trump) don't make a decision similar to Colorado?
@@JJMcCulloughit likely depends on the state election law and who is allowed to challenge the eligibility of candidates. It some cases it’s a voter (Colorado), other times it might be another candidate. The process also differs within each state.
@@JJMcCulloughif it were Florida or say Ohio, I would then find any evidence of insurrection and remove dems from ballots. It is so utterly retupid this video is moot. Oh wait, that's exactly what Republicans are doing. And it's easy since the media let dems say whatever incitement they wanted for almost 8 years now.
Hey JJ, thanks for this video, it made me more informed of this topic! I want to give even more thanks as thanks to you, I found out about the Bulwark a couple of weeks ago. Been loving their stuff since then! Cheers from California!
It's cool to think in a long time (1000 years) if America is still a thing that we'll still be using the constitution as such an important document. In that many years we'll speak an English very different than the one the constitution is written in. Already the writing of the constitution feels *old* and kind of foreign. And since how we interpret the constitution is so so important, they'll probably be 1700s English classes in the year 3024. Or maybe we'll translate the constitution, but I feel like that will be very controversial because Republicans or Democrats will say "that's not what the original says!"
You hit the nail on the head with that opening statement. I hate Trump. And that is not a term I use lightly, even in regards to politics. But I absolutely can not stand the man. However, the idea of the government banning a potential candidate is ridiculous. It rubs me the wrong way. Anyone should be able to be on the ballot. If bin-laden was to run it shouldn't be the government to stop him, but rather the responsibility of Americans to make the best choice with him as an option. Also whenever I talk about Trump I have to have the obligatory 1Million dead Americans. It killed my dad. It shouldn't have.
As a brit, I don't really understand US law. But as I understand it bin-laden would be prevented from running, for the same reason Arnie can't run, and for the same reason I can't run. And I learned from this video that a 34 year old can't run. So there are already rules in place for who can and can't run. And I'm guessing some of those rules pertain to behaviour. Personally I think the issue is that everything in the US is partisan, including the interpretation of the law. I'm not saying the US is unique, it just seems particularly obvious there.
I admit it seems the "spirit of the law" requires conviction, but it seems like the current Republican strategy is to ignore the strongest likelihood and defer to the horde!
@@JJMcCullough 2 felony counts (including one conspiracy count) of obstructing an official proceeding under 18 U.S.C. § 1512 | 1 felony count of conspiracy to defraud the United States under 18 U.S.C. § 371 | 1 felony count of conspiracy against rights under 18 U.S.C. § 241
The Colorado Supreme Court is comprised entirely of liberal-appointed Justices, and 3 out of 7 still disagreed. One wrote, “I’ve been involved in the Justice system for 33 years, and what took place here doesn’t resemble anything I’ve seen in a courtroom.”
Don't speak mis truths I read the dissent and 2/3 dissenting boiled down to " I beilieve it MAY be true that this was legitimate but I beilive that trump should have more than 3 days to appeal which Isn't fair for something so important". And tbh I actually agree, legit ruling but only 3 days is ridiculously fast to file an appeal giving essentially no time to prepare a legal argument, and look how the appeal went, bad, not like time would have made it much better but still
@@andrewwebb624 that is what magas do. The descents never questioned whether or not there was an insurrection - they questioned whether or not they should/could do something about it.
Hey, you've got a pretty good grasp of this "politics" stuff. You should write a column or something! ;) No but for real, thanks JJ. You've made the most sense of this mess out of anyone I've seen/read so far. Even more hilarious because we're not even American.
This is a tremendous video that packs a huge amount of information and argument into 30 minutes, and it’s such a difficult subject that could really go on for hours of legal arguments and philosophical reflection. Great job JJ! You captured by far the most pertinent things. I also must admit to being dismayed by some of the first comments that are dismissing the question without explaining why and how they are dismissing it. For all the people whose initial response is that you are horrified by the prospect of removing Trump from the ballet, because A) you like him quite a bit and intend to vote for him, or B) you strongly feel that democracy requires that judges shouldn’t be the ones to remove a candidate from the ballet, It would be nice if you elaborated on (or at least admitted the existence of) the thorny way in which you would have to accomplish that, given what section 3 of the 14th amendment says and clearly intended. You can go with not being an originalist, but then you need to accept that Judges can make or change the law without the legislative branch (which is not the move conservatives usually make). If you go with it being non-self executing, then you seem to have to accept that the framers of that amendment, added that amendment, with a fairly obvious intention, but forgot to pass the further laws required to make it actually effective. You might also have to claim that people under 35 actually can run for president (at least for now), because Congress hasn’t gotten around to creating a mechanism to enforce that provision yet. If you go with that it doesn’t apply to presidents, then you have to accept that apparently the only position that can be held by an insurrectionist is the most important one. You would also to have go through some very unseemly gymnastics about what the framers thought of the difference between holding office and being an officer (which if you care to learn about you should really listen to some of the podcasts referenced by JJ, especially Ben Wittes and the Lawfare podcasts that he is involved in). You might be tempted to go with it's not an insurrection at all, but, unfortunately, appeals courts aren't usually supposed to change the facts that lower courts found (and also keep in mind, the case wasn't just confined to the day of January 6th, and don't forget that it says not just engaged in insurrection, but also "gave comfort to" those that did, which is very broad, so it's not clear a reasonable judge couldn't find that he did) unless their is obvious reason to think there was an abuse of the process, which incidentally is why the Colorado Supreme court accepted that the facts applied to Trump. I understand why one might want to take one of those views (or some other position), and grasping the thistle that the 14th amendment does bar Trump, very much has it own thorns, but you have to accept something thorny in this question it seems. Why don’t you tell us which one you go for (or perhaps another argument), rather than just exclaiming “boo, hiss, I don’t like these people or their arguments.”
Do you think the people who wrote the 14th amdmt intended for the "comfort to enemies" part to include a potential president knowingly giving millions to Hamas? If you're a strict constitutionalist, surely you have to demand Biden be auto-disqualified without any due process? There are all sorts of laws that are ridiculous and thus arent enforced. Jimmy Carter and John Kerry both violated the Logan Act in extremely egregious ways (going against the president in order to help North Korea/Iran) but faced 0 punishment for it. Milley boasted about conspiring with China against the president. Every social network is thousands of times per day violating the law against providing support to terrorists, but it's not enforced.
An honest person can recognize the blatant political persecution by analyzing all the other phony things they are going after him for. This is a desperate last attempt by his political rivals to end him for good. The political bias involved in this whole thing should disqualify the case from going forward. There is no genuine interest in upholding the law, the only interest is in preventing trump from being president. How wonderful a political system that some activist judge can unilaterally declare a candidate unfit because of some speculation. Criticizing and casting doubt on the integrity of our electoral processes is not insurrection. He did nothing illegal in his challenge of the election. All of these claims are contigent on his involvement in jan 6. To say that some of his supporters deciding to interpret "peacefully protest" into "violently riot" is his fault is ridiculous. He has the right to challenge the election, he has the right to ask his supporters to protest. Just because some idiots decided to get violent does not magically make him an insurrectionist.
14A Section 3 isn't Self-executing. If it were 14A Section 5 wouldn't exist. 14AS5 is the process by which Congress was given sole power to create the enforcement mechanism for it, which they either exercise via 18 USC 2383 or didn't exercise at all. If the former, the federal preemption doctrine is in play, if the latter then no mechanism exists. Simply see In Re Griffin for the determination that 14A S3 is self executing, wherein Chief Justice Chase expressly found such. Age is a qualification under a completely separate Constitutional provision, and has no bearing, nor would be modified by any determination on the nature of the 14A in this case. This is before getting into the nature of a qualification vs a disqualification in a substantive way. All of the above btw, flows logically from an Originalist framework. It isn't even that hard to understand.
@@darklelouchg8505 Let’s start with the point I am really trying to make, because this is going to be much longer than any RU-vid comment deserves to be. And that point is a broad philosophical one: this is an especially difficult question, when you need to apply a coherent legal theory to answering it. It’s easy enough to find a theory that works for most of the arguments you could use to go either way on this question. However, the vast majority of people whose job it is to have and apply a legal theory (and usually these people want to apply it consistently, ie you don’t find too many judges who decide some cases as originalists, but then at other times realize that the constitution is better seen as a living document that adapts to the times) are very likely to find their political and legal philosophies clashing. And it’s not just about interpretive theories of constitutionalism. There are a host of other questions around state rights to run their own elections, etc that need to be harmonized with a judge’s held views. Most people watching this care far more about the result of whether Trump is maintained or not on the ballet than which legal theory prevails when the judges make the decision. Ask yourself, if the judges keep Trump on the ballet, but not for the reason that you think is so obvious, are you going to be disappointed? Does it surprise you that the Colorado supreme court was split 4-3 with dissents and concurrences? Legal scholars and judges are quite unusual, they care more about the theories they use and their own internal consistency than partisans and politicians who only care about the results of the decisions. Secondly, as for section 5. I don’t interpret it as meaning that none of the 14th amendment has any force until such laws are passed, because first of all, the framers didn’t go on quickly to pass them, or provide a list of former confederates that should be charged criminally, even though barring them from holding an office was clearly a major component (by far their biggest concern actually) in why they did it in the first place. They clearly didn’t expect that they needed to do that to prevent former confederates from being elected. And it was further clear, from how they were debating the issue (for example arguing about why it shouldn’t be a straight majority of the houses to remove the impediment) that they understood it to be immediately and continually barring insurrectionists from running for a host of offices and positions. There are many amendments whose final section contains that clause. Do you maintain that all of those are not self-executing as well? Like the 15th “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”, for example? Finally, the silly example, which really isn’t that important, but I think interesting, and amusing to consider at least. Imagine, there is a very popular billionaire (I like to think it maybe it's Greta Thunburg after making a fortune arbitraging carbon credits), who wants to run for president, and because she is so popular, she would win (and for that reason the Democrats are very keen that she run for them). Unfortunately, for her, she is 40 days too young. To rectify this, she gets in her private jet and flies around the world, crossing the international date line 41 times, and declares, “OK, I am now old enough to run for president, I have seen the prerequisite number of ‘sunrises’ that we all know makes me the right age”. The democrats, believing that she will win if she does run (or perhaps because she is so popular with their base, they cannot stop her from running), proceed to nominate her. They make a whole bunch of further even more dumb arguments than her international date line claim. Mostly they do this just to muddy the waters, For example they argue she is so close to old enough, and so much wiser than her years, that in this case it’s fine. Primarily though, they argue, it doesn’t matter, because there is no mechanism laid out in article II that explains whose job it is to stop a candidate that might be too young from running for president. Is it up to federal courts, attorneys general, congress, do you need to wait until she becomes president, and only then does a private citizen will have standing to sue when that particular citizen is negatively affected by one of her decisions, who knows? Really, we need to wait until this crucial question is spelled out unambiguously, and only then can this obscure part of the constitution come into force --that's also why, incidentally, it doesn't matter that she was born in Sweden. I will only further observe, that while most of the people in this comments section are not old enough to remember, it wasn’t that long ago that the above example would strike most Americans as more plausible (as ridiculous as it is) than the conception that a sitting president would plot and attempt to have fake electors recognize him as the winner of an election that he actually lost and then, when that didn’t work, would go on to incite a riot to prevent congress from counting the electoral college votes at all.
Your "broad philosophical points" can be summed up as: 1.This is a difficult question. 2.Legal Theories need to be internally consistent. 3.There are arguments fore and against. 4.Political philosophies and legal determinations often conflict (A point I dispute, given how partisan the courts obviously are) 5.Interpretive theories must be juxtaposed with other factors such as states rights, etc. 6. Most common people care about the result then the process or legal theory that reaches it. (Irrelevant to the topic at hand) 7. Legal scholars/judges care about the theory rather then the result (You would hope, but actually isn't the case and a point I dispute heavily. You merely have to look to Jackson to see post-hoc justification from initial political desire) Asked Question: Does it surprise you that the Colorado supreme court was split 4-3 with dissents and concurrences? Answer: No, not at all. All it shows is that some on the CSC still have integrity. Speaking broadly to the majorities opinion, it was contradictory and very clearly partisan in its construction having on numerous occasions eaten itself or drawn contraindicated conclusions, seemingly out of their asses. Now for your personal take: "Secondly, as for section 5 I don’t interpret it as meaning that none of the 14th amendment has any force until such laws are passed" - Good for you. You remain utterly without support in text, legislative history and precedent. "Clearly didn’t expect that they needed to do that to prevent former confederates from being elected" - (Completely contradicted by Thaddeus Stevens, the Pennsylvania congressman who introduced the Fourteenth Amendment in the House, who stated that “[Section Three] will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out.” Seems pretty clear cut from just that, but there is more. Lyman Trumbull, Chairman of the Senate Judiciary Committee at the time, likewise said “Some statute is plainly necessary to enforce the constitutional provision.”. There is also the entire Enforcement Act of 1870 existence, which contained two sections-14 and 15-that provided a means for enforcing Section Three, which seems to indicate that Congress itself thought such an act was needed. So your grounds are getting weaker and weaker. All before In Re Griffin, where Chief Justice chase rears his head and kills your take as well by expressly determining 14A Section 3 isn't self executing. Then you go on a big spiel about Greta Thunberg, which I am going to skip and ignore because it has no purpose and I am going to move on to your last two mistakes. "...sitting president would plot and attempt to have fake electors" - Nice characterization, but such slates have been done before, in particular dueling electors as was the case in 1876. "...incite a riot to prevent congress from counting the electoral college votes at all" - Not legally incitement of any stripe, whether in the context of a riot or not. Points though for calling it a riot and not an insurrection, at least you got that right. Now for my own questions, really just two, consider them hypotheticals. 1. Do you honestly think that violent backlash and/or massive political upheaval wont follow, if this is ducked or otherwise allowed to stand? 2. How many graves to your own are you ready to dig, in pursuit of your goal? @@terribletanks
One huge, important thing to keep in mind is that the ACLJ (the American Center for Law and Justice) was founded by Pat Robertson, a televangelist, political commentator, and was founded to be a legal organization countering the ACLU (American Civil Liberties Union). They were founded with the stated "mandate to protect religious and constitutional freedoms". ACLJ generally pursues constitutional issues and conservative Christian ideals in courts of law. So, there’s A LOT of bias going into the kinds of sources you’re getting from when it comes to this legal analysis and, quite frankly, the ACLJ makes Ted Cruz look like Sandra Day O Conner when it comes to legal opinions…
since there was no inserection, and there's no guilty verdict i am aware of of trump being involved. it's funny when and how people want to apply the lie.
@@JJMcCullough"Nooo you didn't listen to my legalese mumbo jumbo I used to justify turning America into a one party state! Stop thinking about common sense and listen to meeeee!"
@@PrimalBee I have no obligation to argue with nonsense. Y'all threw everything away to win in 2020. Y'all destroyed my life with your stupid ass covid policies, but now I'm supposed to give a fuck about the constitution? Fuck that. Gloves are fucking off now. We're taking our country back from the usurpers and you won't stop us.
As someone who very much thinks Trump is guilty of violating the 14th amendment and should not be eligible for the presidency, I do think there is absolutely no process in place to actually enforce thus. Thus there is currently no fair way to actually enforce the constitution.
Yes there is. It's called Democracy, where the people vote for the canidate of their choice. Not the canidate the courts or the Democrat Party feels is acceptable.
@@johntex105that's not what the 14th is about. That amendment was written in wake of the civil war _in recognition_ that "the people" sometimes are inclined to elect people who should NOT have power. In either case, the amendment clearly is meant to fundamentally exclude some people from running or holding stakes, how are you going to tell me that risking letting them hold positions is the solution when the whole point is they shouldn't?
I’m glad to see this. I hate very much that I agree with Cruz…but…I do. This isn’t the play. I’m uncomfortable with the idea that there’s no precedent for this. I’m also uncomfortable with the idea of setting a precedent of severe consequences without due process. It would be WAY better for US politics, if we focused on defeating this extremist movement at the ballot box.
In most countries, Trump's actions would've made him immediately unelectable. That Trump is still a major (and possibly leading) contender for the 2024 election says a lot about US politics
I think there is something missing here, and unfortunately its a state's rights thing. Does Colorado have the right to implement a 14th amendment disqualification by itself in the theory that the states have power over their own elections, or is there a universality that since some court has found cause for disqualification that it should be universally applied as it is a constitutional provision. There is a lot of twisty things in here that could cause damage in the present political environment and generally understood positions. It is perhaps the most soft-balled constitutional crisis I have ever heard of....
My issue with leaving it as a state's right issue is that we could have a situation where a candidate wins the Presidency, and thus some level of authority, over a state that ruled the candidate ineligible by reason of insurrection. That doesn't make any sense to me regardless of the pure legality of the situation. Let's say Trump is allowed on the federal ballot and wins the 2024 election. Then Colorado has to say, "Well, we ruled that you committed an insurrection and thus are not eligible on the primary ballot, but since you got enough electoral votes, we'll exist under a presidency helmed by the insurrectionist." That's why I feel like this determination of Insurrection has to be done at a federal level or through a Congress-level action. People will use certain Confederates being dismissed under the 14th, but the difference is that there was proof of allegiance to an opposing power in that situation. You could empirically determine (at least to an extent back then) whether someone physically (through money or through labour) supported the Confederates. There is no such determination here, as Trump prior to the point of January 6 had not assumed allegiance to a state in opposition to the US.
Are unarmed protests and riots insurrection? Is the filing of documents to courts insurrection? Is claiming that you were cheated insurrection? If the action wouldn't radically change the form of government, can you call it a revolt? If you can't call it a revolt, can you call it insurrection? I see nothing that comes close to The Civil War, the event that inspired this amendment. This entire argument seems political to me.
Seriously. Anybody with a lick of honesty can recognize that these farcical arguments about legal theory and due process are really a disagreement about what happened in the 2020 election and the ensuing protest on January 6th. Part of me continues to be flabbergasted that these people can argue with a straight face that a bloodless political protest by unarmed civilians constitutes an insurrection in any way comparable to the Civil War - and further yet, that it was all a deliberate plot by Donald Trump to end American democracy. The level of either delusion or dishonesty required to treat Trump like he's a military dictator speaks volumes of the profound psychosis, ignorance, and unwarranted self-righteousness of the American left.
Yes, being armed or not has no bearing whatsoever. A mob can threaten and murder people without guns. The idea of changing the "form" of government also is not relevant if you are illegally changing who is in power.
@@krombopulos_michaelnever forget the 0,000,000 lives lost on that fateful day that democracy nearly came to an end! someone moved peolsi's lectern a whole 10 feet, the horror!
Thankfully, the judgement was carved out from a good avenue setting the states apart from the federal government and giving congress the power to define insurrection. From the get-go it was obvious that this ruling would be 9-0 as giving power to the states over the federal government is extremely dangerous regarding election eligibility. Slippery Slope!
Inconsistency among the states on ballot access is a entirely nonsensical consern. Pretty much every presidential election includes presidential candidates who do not meet the qualifications to be on every state ballot for a variety of different reasons. The issue before the court was the 14th amendment section 5 which specifically gives Congress the power to enforce the foregoing amendment. The court simply decided that Congress had not yet done so in such a way as to enable states to enforce it. Had the court decided the other way it would simply place Trump in the same boat as most independent candidates. Given Trump couldn't win the only States willing to do this anyway, it would have made no difference.
What would you say is the bare minimum action necessary for something to be considered an 'insurrection' in a case where people are opposing the constitutional process, rather than a 'protest', 'violent protest', or 'riot'?
I agree! The electoral count certification was more of side effect of it than the intent. Besides, come January 20, 2021, Trump's term as president ended without incident and the peaceful transfer of power did indeed take place.
@@dannysroadshow ive been watching JJ since I was a teenager, im 22 now. He raised me by helping me think about things more analytically rather than taking things at face value
@@JJMcCulloughAh yes I forgot the secret article of the constitution written in invisible ink that says democrats have a god given right to power. Please, lock all of us up for trying to prevent that.
A President who violates his Presidential Oath should not be allowed to run for President again. Are there no consequences for violating the Presidential Oath?
Conservatives don't care about any of that it's about maintaining the status quo not about following the law or advancing quality or progressing the nation but just about maintaining an old power structure from the 19th and 20th century And because of that desire, they are willing to overlook the gross violations of his oath and his decorum as president
What if I looked at Joe Biden and his border enforcement policy (letting people into the point where texas took over border control themselves ) and made the argument that he violated his oath to uphold the united states laws and constitution? Would you support him being forced off ballots?
What's the US presidential oath? Start as many wars as possible or you get kicked out of the cool kids club and lose out on all the perks of it, like insider trading, and the ability to completely exonerate family members who get caught doing federal crimes like owning illegal guns and large amounts of class 3 drugs? LMAO
@@isurvivedthebattleofwolf359uh ok dude. almost all presidents lie and lying is a disqualification so therefore thats a disqualification from president thats not enforced
@@MrSeananim Were not numerous protests/riots done back in 2016 and early 2017 in opposition to Donald Trump assuming office? Many of which were egged on by Democratic politicians. ru-vid.com/video/%D0%B2%D0%B8%D0%B4%D0%B5%D0%BE-aj1Rwlztapg.html ru-vid.com/video/%D0%B2%D0%B8%D0%B4%D0%B5%D0%BE-OjnX4IUt_eo.html
The fact you managed to stay neutral. But frankly this is such a semantically battle. The amendment needs to be amended to define what an insurrection/rebellion is
How did he stay neutral while not including the media war against trump, Facebook paying x millions to change voting laws unconstitutionally and protesters being unarmed at the so called insurrection? How about the part where feds were present and a former officer was arrested inciting riots? JJ is ignorant or lying.
The important point is that what happened doesn't reflect the definition of insurrection or rebellion, and Trump's behavior doesn't reflect engaging, or giving aid or comfort. Trump's behavior doesn't reflect that not only because his behavior per se doesn't reflect that, but because the first (insurrection and rebellion) was not true. This event, even in 200 years ago, would not reflect an insurrection or rebellion. First off, how do you insurrect and rebel without proportionate power? Without a power that can make the other side fear? Even then it wouldn't make sense, and it just makes even less sense now, since the arming power of the state has disproportionately increased more compared to the people's power of arming themselves. If a person is honest to himself, they know none of that happened. There are specific things to be done to clearly show insurrection and rebellion, and to show engagement and giving aid or comfort. There are clear things, but we live in a highly subjectivized and relativized society who takes the opportunity to twist the abstract (not clear) words in the Constitution. For instance, insurrection, to stay with this word only, meant one thing back then, and today it's highly interpreted, and why? Because it doesn't specify what insurrection (technically speaking) is. Also, today's education has formed an army of people who know they can take advantage of abstract language. If you are ideologically twisted (socialist, commie, Marxist, progressive, liberal, leftwing, etc), you will say that a child crying is an act of rebellion, you'll say that a Trump look is an act of rebellion. It'll be all about interpretation. When the Constitution was written, there was no institutionalized and systematized education promoting a parallel truth in education (cultural Marxism). The writers did not foresaw that. What bother's me about conservatives is that they accept going past the premise and start to work on arguments they never had to. Once you, the accused, accepted going past the premise, you already accepted the premise (even if not openly, expressly) imposed by the accuser. It's like the gender ideology. Some conservatives engage in discussing things that are past the premise that there are only two sexes, two genders, and people a little or a lot confused about their gender and their sex. Once you discuss other things, you unconsciously accepted the opposing premises (or you showed others you did). It's like, "I've been trying to counterargument every single of dozens of pro-gender ideology arguments thrown at me, but why are we in the backyard if the first argument didn't even allow us to go past the front gate in the first place?" Another example is a thug trying to enter your home. You say, "Don't enter or I will defend myself," and the robber says, "But I'm not like the other robbers. You can let me it." Are you going to let the premise aside and let the robber get in so you can discuss how different a robber he is? It's all a witch hunt. The left NEVER wins on fair battlefield. I mean, fair is abstract language. Plain and level battlefield.
“Letting the voters decide” isn’t American tradition. Voters decided Samuel Tilden should be president, but that didn’t happen. Voters don’t decide, the electors decide, they just listen to the voters sometimes
Regarding the necessity of conviction argument: how many former Confederate politicians actually were even tried in a court of law, much less convicted? Yet, clearly, they were the principle target of 14A at the time.
If these people were Confederate politicians or military leaders, no conviction is necessary by virtue of their participation in the Confederacy as politicians or military leaders. Or in other words, one could not participate as a politician or a military leader without already committing an insurrection against the US. If they had not participated in an insurrection, then they wouldn’t have been part of the Confederacy.
Many ex-Confederate military officers and politicians went on to serve in state legislatures and in Congress in the years following the war. There were very, very few people who were barred from everything, Jefferson Davis and Robert E. Lee among them. But in their cases, attempts at giving them criminal trials were actually made and in the end, they were stripped of their U.S. citizenship, which had more to do with them being ineligible for office than anything.
15:13 I really enjoy this statement, not because I agree with it but because it perfectly describes how the mind of the neoliberal progressive works: Democracy is not a value, or really a political system; according to these people it is simply "anything I like." The more they like it, the more "democratic" it is. Calls to "democratize" different systems -- the electoral college, policing decisions, the Supreme Court, etc. -- are common, and yet when anything that actually matters, like an election, is under threat of democracy it must instantly be put under the purview of an aristocratic, unelected governing class controlled by people who think like them. It's a good reminder that democracy is more of a tool to people like this than an actual value of theirs and should therefore not be respected as such.
@@JJMcCullough I don't think it's necessarily good. I think that an aristocracy/strong central leader is necessary, it just needs to be formalized. It creates ineffeciency and is just dishonest to claim we exist in a democracy when we live in an oligarchy. Democracy isn't a stable form of government, and oligarchy creates decadence. What we need is an accountable monarch who does away with these well meaning but useless ideas of 18th century liberalism. They served their purpose but it's time for something like we see in El Salvador.
@@smfe so what’s your problem with taking Trump off the ballot then? It is part of an explicitly undemocratic mechanism in the constitution, designed to protect America from a bad ruler.
@@JJMcCullough I don't really necessarily have a problem with that action specifically, just like I don't have a "problem" with Trump declaring the elections fake. They're both political maneuverings designed to circumvent the current system. The elections were probably not fake and Trump probably did not incite an insurrection, but honestly I don't really care about either of these things. Elections have always been rigged just because most people aren't smart enough to know who to vote for and so they vote for whatever "feels right," and even if Trump won, this entire system is so insulated against him he is practically useless. His entire term he was basically fighting the State Department. Elections don't really have any sanctity to me, just like a government doesn't have a "right" to be free from insurrection (if that's what we're gonna call it). It's all Machievellian power games, and it always has been. I believe that the bureaucracy which undertakes these actions is fundamentally inefficient and disconnected from the people's best interests. There isn't one person you can blame for getting him removed, it's a complicated and informal network. The president doesn't even do any of this prosecuting, it's all these entirely unaccountable bureaucrats in the Justice Department or whatever who only care about securing power for themselves and don't care about the health of the American people.
@JJMcCullough Thank you for another excellent and thought-provoking video. It is a fair and honest review of the situation and the topic of section 3 of the 14th Amendment. After watching your video, I went and downloaded and read the US Constitution and all of the Amendments. I notices something peculiar regarding the amendments that I would like your opinion on. The amendments can be split into two distinct groups; This first group the amendment is written as is with no special instructions, such as Amendment 1, 2, 3, 4, 17, 20, 21, 22 and more. The second group has at the end of the amendment a clause that “The Congress shall have the power to enforce this article by appropriate legislation.” Amendments in this group include 13, 14, 15, 18*, 19, 23 and more. It would appear to me that the various congresses had two general mind sets regarding how amendments work. The first is “the amendment is in place you have to live with it too bad”. While the second is “the amendment is there and in force, however we can decide how to enforce it by passing laws.” (with the sole exception of the 18th which allows the states to pass laws on enforcement outside of congress). Since congress passed a law on rebellion and insurrection, would that not require a criminal conviction to engage the 14th as congress has by passing that law implemented a mechanism of enforcement?
Furthermore, if we look at two amendments that govern presidential elections, 14 and 22. Each are in a different group as stated before. If congress was looking to have the automated enforcement automatically trigger, why have a clause that allows them to regulate it? Why not make 14 sec 3 into a separate “15th ” amendment at that time and make its execution automatic?
Wait, so you think it's better for American society to legally bar Trump from running? Are you considering the amount of turmoil, hatred, and distrust that this will foster with 40% of the American adult population?
My issue with the idea that insurrection under the 14th amendment "does not require conviction" is that there still has to be a determination of some sort on Trump's behaviour. Sure, the 14th amendment applied in historical past to people not formally convicted of insurrection, but they had all taken an active part on the Confederate side of the American Civil War. This meant that they were clearly on the Confederate side, which meant they were actively fighting against the United States. So if we're saying that an insurrection is purely a matter of fact finding, then I would have to ask the question, "Who does the fact finding?" Does a state court have the jurisdiction to find this fact? What is to stop an ideologically Republican state court from finding that Biden or any number of Democrat politicians committed an insurrection? And if you find it laughable that a Democrat politician committed an insurrection, then try convincing a Trump supporter that Trump committed an insurrection. What I'm trying to say is that whether someone committed an insurrection can be heavily skewed based on perception and the perception of facts. There are those who will not agree with one's personal perspective, and if the SC ends up upholding the Colorado ruling, then I would prepare for dozens if not hundreds of cases to immediately be brought up to lower courts in Republican-aligned states to disqualify various Democrat politicians because of a supposed "insurrection."
@@JJMcCullough It's not entirely, though. It's the question of who has the right to determine whether someone has "engaged" in an insurrection (at least from a Federal level) and that is a question the courts can determine.
@@JJMcCullough So if Trudeau decided to ban your guy from running based on some vague line in your constitution you'd just be cool with it? Don't lie, you wanted this to happen regardless.
@@jaredpoon5869 Who has the right? Congress. Absent their action, state courts and state officials. Trump was removed in Maine and Colorado based on applying the 14th through state law.
@@jimvert7110 And that’s fair enough, but I foresee a lot of problems when we allow state courts the ability to remove people from primaries for a federal election. If the state court has the authority to remove someone in lieu of guidance from Congress, then any state court could rule that any person had committed and insurrection. So a Texas state court could rule that a Democrat politician engaged in an insurrection, and if their Supreme Court agreed, we could do nothing about it.
I think it is fair to say that the main debate boils down to whether one takes a Dworkinesque approach or that of a legal positivist. The main difference between the two approaches is whether one looks at the spirit of the law or if they look at the letter of the law. I tend to side more on the side that one should look at the intent of the law rather than the words themselves, as by doing so, I think one ensures that justice is not undermined by the ultra-literalistic interpretation of the words. Then again, some would argue that the positivist approach provides legal certainty, which is true, but at a certain point, one needs to be careful not to miss the forest for the trees.
What I’m still left wondering is how much question #2 (did he or did he not incite a insurrection) matters and how that would be determined. Given the possible outcomes of the court ruling, wouldn’t that have to be determined regardless of the ruling?
@@JJMcCullough I also think that the US Supreme Court does not review "findings of fact". The Colorado Supreme Court and lower courts have made a finding of fact that Trump "engaged in insurrection". The US Supreme Court only reviews matter of law (I think, not a lawyer).
@@realCyng The Rule Of Law doesn't work if you cast off judicial decisions without proof of bias. Also, Colorado's court is loaded with conservatives because we used to be a conservative state.
Hey JJ. Do you ever think about the irony of your intro where you say "hello friends" and then tell your friends your name? You strike me as someone who HAS thought about it and likes the irony. Its a perfectly acceptable introduction for RU-vid of course, given the connotation of "internet friends", but its still amusing to hear it said aloud.
Yes, I have actually thought about this before. When I started saying it, I didn't put much thought into it, but now I kind of like it as a weird paradoxical statement. It's like saying "let me give you the address to your home."
You talked about the fact that he **hasn't** been found guilty of, or even indicted for the crime of insurrection, but you failed to discuss the very pertinent question of **why* *he hasn't.
@@JJMcCullough In terms of your selection process and conclusion. I like a lot of your content and you often strike a good balance, but my perspective of you would place you closer to a moderate within a *Canadian* conservative context, putting you on the Left side of the Left/Right political spectrum in the broader American context, so the tendency is that when you err you err in that direction. David French has been running so far from the Right in recent years, particularly in his derangement against Trump, that it's a 3 v 1 analyst comparison. Ending the video on Jan. 6 footage after calling a ruling in favor of keeping Trump on the ballot a "minimally disruptive interpretation" definitely sharply shifts the tone away from anything like a "fair analysis." IMO. I'm actually surprised at the unanimity of the decision of the court, but I think it affirms that the "common-sense intuitive" side speaks for itself.
@@JJMcCullough Are you saying that the Supreme Court Justices are biased in their evaluation of the case but these analysts are not? 3 out of 4 of them are Leftist activists, regardless of their expertise.
@@JJMcCullough Are you saying that the Supreme Court Justices are biased in their evaluation of the case but these analysts are not? 3 out of 4 of them are Leftist activists, regardless of their expertise.
By the way if it was apparently "illegal" for Pence to reject the electors from the sketchy states, why did congress pass a NEW law saying he can't AFTER the fact? Is that not an admission that the law was at least ambiguous?
I feel like there are just so many missed points here and seemingly one lawyer you didn't listen to was the very person arguing the case on behalf of Trump. Anyway, given my personal understanding of it all from the lawyers whom I've listened to, my perspective is that this is not a fair analysis. Aside from my _understanding_ - my personal _opinion_ is that it's an unacceptable violation of due process. The other qualifications for being President are not things that are taken away from you, they are things that are self-evident. When you're taking away someone's right there better be the highest burden on the government. That said, I also think it's nonsense to call what he did as engaging or inciting insurrection. He neither engaged nor incited it; the people who were on the Capitol grounds did.
@@RickJaeger Well, first there *is* a right to candidacy implicit in the articles, and first amendment, as well as derived from the 14th amendment (perhaps ironically, in this case). Second, it has nothing to do with that. You have a right to not have the government make you guilty of what is unequivocally a crime without the burden of proof being met. Everything not explicitly said not to be a right is a right, the Constitution recognizes that when it points out that the enumerated rights are not an absolute list - they are only explicitly banning the government from taking action to restrict certain rights. Rights are not given by the Constitution, they are implicit, and the Constitution simply protects them.
@@pXnTilde First, there is no right to candidacy implicit in the articles. There is only a privilege to candidacy enjoyed by those who qualify by constitutional law, which states cannot prevent by standards any more stringent than those set by the Constitution, which is supreme over state law. This does not apply here, since the states are purportig to comply with Constitutional law, that being amendment 14. Second, that is an outright false reading of the 9th amendment. I think you are confused on this point. The amendment does NOT say "Anything not said to be not a right, is thereby a right." The 9th amendment _actually_ says that anything not on the list, is not _not_ a right simply because it's not on the list. That is not equivalent to how you described it, so all it proves is that the fact that there's no explicit constitutional right to a candidacy _doesn't prove_ that no such right exists naturally. Third, regarding the 14th amendment, the two sections do not modify each other. Deprivation of ballot listing is **not** a deprivation of "life, liberty, or property", so due process does not come into it. The Constitution is always supreme, so if we licitly pass an amendment, theoretically, that says "All private automobiles are hereby confiscated and are now federal property, and no compensation or warning will be issued," that amendment does not, cannot, violate the due process protection of the 14th. It might revoke it, but it cannot violate it. By licitly putting that into law, we have changed the Constitution and superseded its earlier language, which either is irrelevant, or is relevant and no longer in force. Last, states retain power over the “Times, Places and Manner of holding Election for Senators and Representatives” under Article I, Section 4 of the Constitution. Ballot representation doesn't actually stop anyone from voting for you, as long as they count write-ins (now, Colorado specifically has also disallowed write-ins for Trump, so I'll grant you the stronger objection and suppose that states will also bar him from being counted, not just removing his option from the ballot).
@@RickJaeger I am not an expert, I can only defer to people who I find to credibly claim to be experts. To the supremacy of the Constitution, I would say it cannot be true in a pragmatic sense if it is interpreted. The only real supremacy is the most current opinions of the SCOTUS. Fundamentally, the question is simply unanswered and unanswerable by anyone that is not the Court; likewise, the right to candidacy is unanswered. There are many things that are proper rights that are still subject to restriction; the fact there are restrictions does not necessitate it is not a right. To your last point, I would note the language, time place and manner of _holding_ an election; not of who is running or eligible.
@@pXnTilde On the last point, they already restrict who can be on the ballot, and that has been upheld. They regularly deny named ballot access, for example, to those candidates from parties who fail to get some number of registered members. You must file to be listed, and when you file, it must be by a certain date and with certain paperwork to be filled out, sometimes including a great many signatures.
