Why are U.S. courts afraid of the 14th Amendment?

[NWRatCon]

Courts are inherently conservative, in the sense that they generally don't like change (as opposed to the radicals that currently use the term as cover for themselves). There are several doctrines that demonstrate this tendency: stare decisis, res judicata, collateral estoppel. Even "burdens of proof" are arrayed against change. This carries over from our tradition of "common law" which was just the accretion of legal opinion over time until, like coral, it formed a solid mass.

Statutes are different, as they create new laws. It then falls on the courts to interpolate these new creations into that body of existing law using "canons of interpretation". They often don't do it well (particularly if they don't want to). Which brings us to the thread topic, a WaPo opinion penned by Professor Sherrilynn Ifell:

Why are U.S. courts afraid of the 14th Amendment? Because it's radical.​

https://wapo.st/46wFqMQ

 

[Rexedgar]

The 14th Amendment was written for a specific purpose and in “vague” language. Serving in the CSA army was an easy call, keeping and un-charged citizen off a ballot, without due process goes against my interpretation of the US Constitution, but take that for what it’s worth.

 

[NWRatCon]

Courts are inherently conservative, in the sense that they generally don't like change (as opposed to the radicals that currently use the term as cover for themselves). There are several doctrines that demonstrate this tendency: stare decisis, res judicata, collateral estoppel. Even "burdens of proof" are arrayed against change. This carries over from our tradition of "common law" which was just the accretion of legal opinion over time until, like coral, it formed a solid mass.

Statutes are different, as they create new laws. It then falls on the courts to interpolate these new creations into that body of existing law using "canons of interpretation". They often don't do it well (particularly if they don't want to). Which brings us to the thread topic, a WaPo opinion penned by Professor Sherrilynn Ifell:

Why are U.S. courts afraid of the 14th Amendment? Because it's radical.​

https://wapo.st/46wFqMQ

I was having trouble posting quotes, so here are some pertinent ones:

"Judge Sarah B. Wallace’s decision that Trump engaged in insurrection but is nevertheless qualified to run for office is emblematic of the often outright resistance courts have shown to the 14th Amendment’s guarantees and protections

... is of a piece with courts’ frequent unwillingness to contend honestly with all the radical demands of the 14th Amendment.

During Reconstruction and the first half of the 20th century, it was the Supreme Court that left unprotected Southern Black people seeking to vote and engage in the political process in the face of deadly violence by White mobs seeking to disenfranchise them (United States v. Cruikshank, 1875). It was the Supreme Court that held that the 14th Amendment did not protect Black citizens from discriminatory conduct by private actors (Civil Rights Cases of 1883). And it was the Supreme Court that endorsed a system of Jim Crow segregation (Plessy v. Ferguson, 1896) that essentially nullified the 14th Amendment for Black people in the South for nearly 100 years after its ratification. Later, the court created onerous burdens to prevailing in discrimination cases brought under the 14th Amendment
....
post-Reconstruction courts have rarely upheld or applied in full the ambitious demands of the 14th Amendment. Instead, its guarantees have been watered down to accommodate the political forces of the day, or repurposed to serve powerful interests (such as the dubious determination that corporations are “persons” entitled to its protections), or treated like an a la carte menu, in which some items — such as the guarantee of privileges and immunities and all of Section 2 (which would reduce state representation as punishment for voter suppression) — are essentially ignored."

 

[NWRatCon]

The 14th Amendment was written for a specific purpose and in “vague” language.

I disagree. I don't think it's vague at all. I think it's radical and quite clear.

Serving in the CSA army was an easy call, keeping and un-charged citizen off a ballot, without due process goes against my interpretation of the US Constitution, but take that for what it’s worth.

As noted ad nauseum elsewhere, there are appropriate processes that are being pursued. It never was intended to require criminal conviction. Neither is history nor existing precedents require that.

 

[Rexedgar]

I disagree. I don't think it's vague at all. I think it's radical and quite clear.

As noted ad nauseum elsewhere, there are appropriate processes that are being pursued.

Then the outcomes of those should be reached before disqualification. Imo.

It never was intended to require criminal conviction. Neither is history nor existing precedents require that.

I also disagree with the Colorado judge being able to label anyone a criminal without due process. The judge tried to please both sides and created more issues, io.

 

[Rich2018]

The 14th Amendment was written for a specific purpose and in “vague” language. Serving in the CSA army was an easy call, keeping and un-charged citizen off a ballot, without due process goes against my interpretation of the US Constitution, but take that for what it’s worth.

Much of the Constitution is vague an ambiguous

Unless Trump is convicted of insurrection, I don't see how he could be disqualified from running for office.

 

[NWRatCon]

Then the outcomes of those should be reached before disqualification. Imo.

I completely agree.

I also disagree with the Colorado judge being able to label anyone a criminal without due process.

She didn't. She made a legal determination about a civil action based upon evidence.

The judge tried to please both sides and created more issues, io.

On this I also agree, although I think she addressed it earnestly. Fortunately, her errors are easily corrected and the record is clear.

BTW, this thread is about so much more than just Trump's disqualification. That's why I gifted it.

 

[Rich2018]

I completely agree.

She didn't. She made a legal determination about a civil action based upon evidence.

On this I also agree, although I think she addressed it earnestly. Fortunately, her errors are easily corrected and the record is clear.

BTW, this thread is about so much more than just Trump's disqualification. That's why I gifted it.

Then what is it about ?

Is the XIV Amendment past it's sell-by date ?

 

[Barque of Dante]

Then what is it about ?

Is the XIV Amendment past it's sell-by date ?

 

[Barque of Dante]

Courts are inherently conservative, in the sense that they generally don't like change (as opposed to the radicals that currently use the term as cover for themselves). There are several doctrines that demonstrate this tendency: stare decisis, res judicata, collateral estoppel. Even "burdens of proof" are arrayed against change. This carries over from our tradition of "common law" which was just the accretion of legal opinion over time until, like coral, it formed a solid mass.

Statutes are different, as they create new laws. It then falls on the courts to interpolate these new creations into that body of existing law using "canons of interpretation". They often don't do it well (particularly if they don't want to). Which brings us to the thread topic, a WaPo opinion penned by Professor Sherrilynn Ifell:

Why are U.S. courts afraid of the 14th Amendment? Because it's radical.​

https://wapo.st/46wFqMQ

The current SCOTUS is obviously radical.

 

[Rich2018]

Is that a yes or a no ?

 

[Barque of Dante]

Is that a yes or a no ?

Sell by date?

linguistic slippage?

Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment?

Update: In December 2021, Seth and I published an article in the NYU Journal of Law & Liberty, based on...

reason.com

 

[Rich2018]

Sell by date?

linguistic slippage?

Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment?

Update: In December 2021, Seth and I published an article in the NYU Journal of Law & Liberty, based on...

reason.com

Sell-by date would be an analogy for becoming obsolete. In need of replacement. No longer fit for purpose.

 

[Barque of Dante]

Sell-by date would be an analogy for becoming obsolete. In need of replacement. No longer fit for purpose.

I get your point now. But that is not a realistic and credible one. The XIV Amendment is not going to be changed or discarded. No one of any importance or power is proposing that.

There was the 18th/21st amendment battles, but I see no one advocating repeal of the 14th.

 

[Rich2018]

I get your point now. But that is not a realistic and credible one. The XIV Amendment is not going to be changed or discarded. No one of any importance or power is proposing that.

There was the 18th/21st amendment battles, but I see no one advocating repeal of the 14th.

But do you think that the XIV Amendment is still relevant ?

 

[Barque of Dante]

But do you think that the XIV Amendment is still relevant ?

It's on the books, so to speak so sure It's as relevant as it gets. Maybe you mean to sue another term here than , relevant.

 

[Rich2018]

It's on the books, so to speak so sure It's as relevant as it gets. Maybe you mean to sue another term here than , relevant.

Being "on the books" does not equate to being relevant.

 

[Barque of Dante]

Being "on the books" does not equate to being relevant.

In the sense of "closely connected or appropriate to what is being done or considered." does so. I understand you're using a different interpretation of the term. If the amendments and the constitution were not relevant than there'd be little in the way of arguments that should be heard in the courts. The arguments are relevant. And the arguments depend on the amendments and constitution as written.

 

[Rich2018]

In the sense of "closely connected or appropriate to what is being done or considered." does so. I understand you're using a different interpretation of the term. If the amendments and the constitution were not relevant than there'd be little in the way of arguments that should be heard in the courts. The arguments are relevant. And the arguments depend on the amendments and constitution as written.

So the fugitive slave clause, in the Constitution, was relevant after the Civil War ?
I think not.

 

[Barque of Dante]

So the fugitive slave clause, in the Constitution, was relevant after the Civil War ?
I think not.

Again, I understand you're using a different interpretation of the term relevant.

 

[NWRatCon]

Then what is it about ?

Is the XIV Amendment past it's sell-by date ?

Section 1​

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Is this still relevant?

Section 3​

"No person shall ... hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath... as an officer of the United States, ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 5​

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

All of these are relevant to the article, thus the discussion. I sure wish people would actually read the OP article (which I gifted) before commenting. It would make the comments so much more relevant.

 

[j brown's body]

The 14th Amendment was written for a specific purpose and in “vague” language. Serving in the CSA army was an easy call, keeping and un-charged citizen off a ballot, without due process goes against my interpretation of the US Constitution, but take that for what it’s worth.

Check it out.

"First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."

The Sweep and Force of Section Three

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range

papers.ssrn.com

 

[NWRatCon]

Check it out.

"First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election."

The Sweep and Force of Section Three

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range

papers.ssrn.com

I've downloaded the whole paper. It'll take awhile for me to get through it, but it looks interesting. I'll post excerpts that seem pertinent.

 

[Mircea]

Why are U.S. courts afraid of the 14th Amendment?

Because there's a question whether it was lawfully enacted.

 

[NWRatCon]

Because there's a question whether it was lawfully enacted.

Nope.