SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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Slaan: Mar 16, 2009; ASHERAH DEMANDS I FEAST, I VOTE FOR A FEAST OF FLESH

Cimber posted:

They have jurisdiction because they say they do.

They have jurisdiction because the Constitution gave Congress the power to set SCOTUS' jurisdiction*. Congress gave them final appellate jurisdiction over all matters with federal questions. That includes suits over constitutional matters**. Jurisdiction isn't an issue here

*They have original jurisdiction that Congress can't touch in a few areas like suits between the states and ambassadors per article 3

** They stole constitutional review in Marbury though, tbf, which was basically "we decide because we say we do"

# ? Mar 5, 2024 21:16

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# ? Apr 29, 2024 04:47

Bubbacub: Apr 17, 2001

This...is quite a take from Harvard Law.

quote:

Jack Goldsmith, a law professor at Harvard, said the justices were in an impossible spot.

�Everyone on the court is acting in good faith and thinks they are being nonpolitical and doing the right thing,� he said. �The court far more than any federal institution has avoided the Trump and Trump-reaction craziness. But these cases involving or implicating Trump, which the court is right to consider, invariably have a huge impact on presidential politics, no matter what or how the court decides.�

# ? Mar 5, 2024 21:21

Potato Salad: Oct 23, 2014; nobody cares

Cimber posted:

But its not! The SC clearly stated the only way to evoke 14.3 is to have congress do it.

almost like this ruling was designed to create this catch 22

# ? Mar 5, 2024 21:24

eke out: Feb 24, 2013

Bubbacub posted:

This...is quite a take from Harvard Law.

jack goldsmith is one of the old republicans at lawfare that grimly shakes his head in disappointment about whatever the latest trump thing is but doesn't ever support much anything good

# ? Mar 5, 2024 21:30

Javid: Oct 21, 2004

Colorado tried to exceed their authority under the 14th, which the court correctly bounced. "Congress isn't doing what we want" isn't a legal justification for a state to grab congressional authority.

# ? Mar 5, 2024 21:37

FlamingLiberal: Jan 18, 2009; Would you like to play a game?

Isn�t Goldsmith a former Dubya WH guy?

# ? Mar 5, 2024 21:37

Kaal: May 22, 2002; through thousands of posts in D&D over a decade, I now believe I know what I'm talking about. if I post forcefully and confidently, I can convince others that is true. no one sees through my facade.

Slaan posted:

They have jurisdiction because the Constitution gave Congress the power to set SCOTUS' jurisdiction*. Congress gave them final appellate jurisdiction over all matters with federal questions. That includes suits over constitutional matters**. Jurisdiction isn't an issue here

*They have original jurisdiction that Congress can't touch in a few areas like suits between the states and ambassadors per article 3

** They stole constitutional review in Marbury though, tbf, which was basically "we decide because we say we do"

If you want to get really �Originalist�, the Constitution merely says that judicial power extends to a variety of cases, and vests that power in one supreme Court and those inferior courts that Congress may establish. There�s no rules saying that any particular court has a specific jurisdiction, nor governing which court should be considered supreme at any particular time. Congress could simply declare that the Supreme Court is the one in charge of all cases involving ambassadors, while the Circuit Courts have oversight over other matters. Or maybe there�s a new court called the Ultimate Court that is more supreme, and therefore there�s 13 open seats to fill.

The jurisdictional definitions are so vague that they can easily be interpreted however you�d like. The Commerce Clause is the classic example of the court doing an end-run around their constitutional limitations. Breaking the Constitution over your knee is fairly simple if you�re willing to do the same sort of gaslighting as the judicial Republicans.

At the end of the day we�re talking about an unelected, anti-democratic institution filled with life-long oligarchs that is appointed by a similarly ancient and undemocratic Senate, and whose impact for decades has only been to destabilize the rule of law and degrade the interests of the United States. The Roberts Court�s signature has been throwing out legal precedent, issuing momentary decrees, and daring the country to do anything about it.

Congressional Republicans are calling for a second American Revolution, threatening to imprison all their enemies, and are challenging each other to act rather than to speak. This is largely enabled because they believe they have given themselves a stranglehold on the courts. How America decides to meet that threat will largely be up to their ability to imagine alternatives.

# ? Mar 5, 2024 21:52

DTurtle: Apr 10, 2011

Kaal posted:

The jurisdictional definitions are so vague that they can easily be interpreted however you�d like. The Commerce Clause is the classic example of the court doing an end-run around their constitutional limitations. Breaking the Constitution over your knee is fairly simple if you�re willing to do the same sort of gaslighting as the judicial Republicans.

The more modern example of overreach is the "major questions doctrine" that the Supreme Court invented out of absolutely nothing.

# ? Mar 5, 2024 22:10

Main Paineframe: Oct 27, 2010

Potato Salad posted:

almost like this ruling was designed to create this catch 22

There's no catch-22. It's entirely possible to write an enforcement law for the Insurrection Clause that isn't also a bill of attainder. The decision even cites a historical example (the Enforcement Act of 1870) and strongly implies that a law modeled after that would also be constitutional.

# ? Mar 6, 2024 00:15

bird food bathtub: Aug 9, 2003; College Slice

Main Paineframe posted:

There's no catch-22. It's entirely possible to write an enforcement law for the Insurrection Clause that isn't also a bill of attainder. The decision even cites a historical example (the Enforcement Act of 1870) and strongly implies that a law modeled after that would also be constitutional.

Is this frictionless perfectly spherical cow on an infinite plane theorizing or something? We can't even write legislation to keep the loving lights on without some rear end in a top hat demanding we disband the DoE. Which one? Yes.

# ? Mar 6, 2024 01:40

Papercut: Aug 24, 2005; The quickest substitution in the history of the NBA

bird food bathtub posted:

Is this frictionless perfectly spherical cow on an infinite plane theorizing or something? We can't even write legislation to keep the loving lights on without some rear end in a top hat demanding we disband the DoE. Which one? Yes.

Legally possible is not the same thing as politically possible. The former happens to be the one more relevant to Supreme Court discussion.

# ? Mar 6, 2024 01:49

Evil Fluffy: Jul 13, 2009; Scholars are some of the most pompous and pedantic people I've ever had the joy of meeting.

It's moot in the case of Trump because even if Congress were to pass a law tomorrow, the SCOTUS majority would rule against applying it to Trump. Whether saying it's an ex posto facto violation or some other blatant bullshit that'd give him electoral immunity for his crime.

# ? Mar 6, 2024 01:59

The Artificial Kid: Feb 22, 2002; Plibble

Main Paineframe posted:

This is 100% false, easily and verifiably so. The case is about whether Colorado is allowed to determine that Trump has violated the 14th and enforce consequences against him for it. Since the Supreme Court ruled against that, they reversed all of the consequences that Colorado had imposed for that purported 14th-violation, including (but not limited to) removal from the ballot.

Just look at the very first page of the Supreme Court's ruling, summarizing it:

The decision is almost entirely written about the 14th Amendment Section 3 specifically, with ballot removal only mentioned in the context of enforcement for that clause specifically.

They could have chosen to address the question of whether Trump was ineligible under the 14th amendment. The lower courts already decided as a question of fact that Trump participated in an insurrection.

# ? Mar 6, 2024 03:12

Ardlen: Sep 30, 2005; WoT

So with this ruling, if hypothetically the Speaker led a coup that killed off the President and Vice President, they'd be the legal president unless Congress passed a law (which the newly anointed coup President can veto) saying it was an insurrection? I guess the same holds true for anyone in the line of succession.

# ? Mar 6, 2024 03:30

Papercut: Aug 24, 2005; The quickest substitution in the history of the NBA

Ardlen posted:

So with this ruling, if hypothetically the Speaker led a coup that killed off the President and Vice President, they'd be the legal president unless Congress passed a law (which the newly anointed coup President can veto) saying it was an insurrection? I guess the same holds true for anyone in the line of succession.

Congress could just impeach or override the veto, assuming there is the popular will to do so. If we're assuming there wouldn't be the popular will to do so under this scenario, then it doesn't matter what the Supreme Court said in this ruling or any other.

# ? Mar 6, 2024 03:33

eke out: Feb 24, 2013

if you've got enough military backing to do that kind of thing without being killed, you don't exactly need Congress to legitimize you, and if you don't have enough military backing they're going to remove you one way or the other

either way it's the end of the current republic so no need to quibble over hypothetical constitutionality

eke out fucked around with this message at 04:03 on Mar 6, 2024

# ? Mar 6, 2024 03:56

Proust Malone: Apr 4, 2008

The per curiam refers to �rebalancing of state and federal power� which strikes me as ultimately a confederate viewpoint. In the same way as saying the civil war was about �states� rights� without asking the power to do what?

The fourteenth amendment is not a tweak in how government functions like direct election of senators or lowering the voting age.

The fourteenth amendment is a protection for the citizens of the states against their own states proclivity to disenfranchise them - specifically, but not only, those formerly enslaved. The very first sentence gives us birthright citizenship. The second sentence says something that really should be implied by that citizenship - that the protections of the declaration apply to everyone, yes even black people.

Federal enforcement should be a backstop to state enforcement, intervening where the interests of minority rule work against the citizens, sure as gently caress not the other way where only the feds can enforce civil rights. Christ the more I read the more I hate it.

# ? Mar 6, 2024 06:47

Potato Salad: Oct 23, 2014; nobody cares

Main Paineframe posted:

There's no catch-22. It's entirely possible to write an enforcement law for the Insurrection Clause that isn't also a bill of attainder. The decision even cites a historical example (the Enforcement Act of 1870) and strongly implies that a law modeled after that would also be constitutional.

I don't actually know how to engage this kind of naivete

# ? Mar 6, 2024 09:41

Javid: Oct 21, 2004

You are extremely mad at an imaginary future scotus rejection of a theoretical act of congress that scotus themselves have just ruled congress has the direct and sole authority to perform. Given that congress is absolutely not interested in performing that act during this election cycle, fixating on that instead of the greater problem - that congress is utterly useless - seems unproductive.

# ? Mar 6, 2024 12:52

DTurtle: Apr 10, 2011

Javid posted:

You are extremely mad at an imaginary future scotus rejection of a theoretical act of congress that scotus themselves have just ruled congress has the direct and sole authority to perform. Given that congress is absolutely not interested in performing that act during this election cycle, fixating on that instead of the greater problem - that congress is utterly useless - seems unproductive.

I found this article on vox.com quite interesting in that regard:

The courts were never going to save America from Donald Trump posted:

In the last few days, the Supreme Court delivered two body blows to anyone hoping that former President Donald Trump might face consequences for his attempt to overthrow the 2020 election.

...

A written Constitution and the courts that are supposed to enforce it are weak guarantors of a liberal democratic society. The Supreme Court of the United States does not always align itself with authoritarian policies and movements, but it does so often enough that it cannot be counted on as an ally in a conflict between constitutional democracy and something more sinister.

And the Court is particularly ineffective in standing up against figures like Trump, who enjoy broad (if not necessarily majoritarian) political support.

Constitutional rights and other legal safeguards are worthless in the face of a sufficiently powerful political movement

For 49 years, the right to an abortion was a constitutional right, affirmed over and over and over again by the Supreme Court. And then, one early summer morning, the right disappeared.

The American people woke up on June 24, 2022, with their right to an abortion intact. Before noon, it was gone.

This did not happen because of any substantive change to the Constitution. The Constitution in 2022, when Roe v. Wade was overruled, was identical to the Constitution in 1973, when Roe was first handed down (save for a minor, irrelevant amendment concerning congressional pay).

Rather, Roe fell because the minority of Americans who oppose abortion organized. They took over one of America�s two major political parties. And then they installed their operatives on the Supreme Court of the United States.

...

So the idea that Donald Trump, and the MAGA movement he leads, would crumble simply because there�s a law saying that his actions are forbidden was always na�ve. When powerful political movements conflict, the Court honors the law maybe some of the time. And it is just as likely to align itself with an authoritarian faction as it is to choose the rule of law.

It�s not even clear that the Supreme Court is capable of standing up for the rule of law in the face of a sufficiently determined opposition

...

Consider Dred Scott v. Sanford (1857), the odious pro-slavery decision that declared that Black people are �beings of an inferior order� with �no rights which the white man was bound to respect.� This decision is now widely viewed by scholars as an attempt to resolve sectional tensions over slavery by handing down a sweeping, comprehensive judicial declaration of the rights (or lack thereof) of enslaved people.

In the very next presidential election, the nation elected President Abraham Lincoln, a man whose commitment to abolitionism developed only gradually, but whose contempt for Dred Scott was apparent in his very first act as president. In his first inaugural address, Lincoln revealed his intent to openly defy the Court�s decision:

quote:
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
And Lincoln followed through on this threat. His State Department issued a passport to a Black man, flouting the Court�s declaration that Black people cannot be citizens. More significantly, he also signed legislation banning slavery in US territories, mocking Dred Scott�s conclusion that enslaved people do not escape from bondage after entering a free territory.

A similar narrative played out nearly a century later, with the Supreme Court taking the opposite side. In Brown v. Board of Education (1954), the Supreme Court famously held that racially segregated public schools are �inherently unequal,� placing a unanimous Court in opposition to the Southern racial apartheid that characterized that region ever since the 15th Amendment ceased to function.

But Brown was enforced unreliably in its first decade on the books, and enforcing it required extraordinary resources that were far beyond the judiciary. President Dwight Eisenhower had to send the 101st Airborne Division to protect Black students attending a historically white high school in Little Rock.

At least initially, moreover, Brown accomplished virtually nothing in the states most determined to resist it. As legal historian Michael Klarman has documented, only 40 of North Carolina�s 300,000 Black students attended an integrated school five years after the Court�s decision. In Nashville, just 42 of the city�s 12,000 Black students were integrated six years after Brown. By Brown�s 10th anniversary, only one in 85 Black children in the South attended an integrated school.

...

The landscape did shift in 1964, but not because of anything the Supreme Court did. That was the year Congress passed legislation permitting the Justice Department to sue segregated schools, and also permitting the federal government to withhold funds from schools that refused to desegregate. Two years after this bill became law, the number of Southern Black students in integrated schools increased fivefold. By 1973, 90 percent of these same students were in desegregated facilities.

So the Court was unable to achieve integration in the face of a powerful white supremacist political movement in the South. It was only after a more powerful movement gained the sympathy of the federal government, and enlisted Congress and the Executive in the fight against segregation, that Jim Crow began to crumble.

There is a lesson here for all who hope to defeat Trump�s authoritarian movement.
No one is coming to save us from Donald Trump. We have to do it ourselves.

...

No one is coming to save us � not the courts, not the Constitution, and certainly not a process for choosing candidates that has not been used since the 1960s.

Donald Trump will be defeated, if at all, in November at the ballot box. The only thing his opponents can do to make that happen is to vote for Joe Biden, and to encourage others to do the same.

There is no other solution.

(Italics are subheadings in the original)

# ? Mar 6, 2024 13:38

Kaal: May 22, 2002; through thousands of posts in D&D over a decade, I now believe I know what I'm talking about. if I post forcefully and confidently, I can convince others that is true. no one sees through my facade.

One of the normal coping strategies with gaslighting is hoping that some herculean and perfect effort will be enough to meet the undefined expectations and change things for the better. But the reality is that Lucy still pulls the football away. The Republicans have been killing off the 14th Amendment with a thousand cuts, and aren�t going to change their minds about that.

# ? Mar 6, 2024 13:40

atriptothebeach: Oct 27, 2020

John Yossarian posted:

What exactly is the point of the 14th ammendent if it can't used? It just seems like laws really don't mean anything.

Some of them realllllllllly hate the 14th and wish it cant be used, ever

The 14'th amendment provides for equality in the eyes of the law and extends due process requirements for the protections of civil rights to the states. Both of these focuses are counter to the racist mindset enshrined in the Republican party,

"For some Republicans, the 14th Amendment was viewed as being only intended to help those who had been directly enslaved, and not applicable to future generations. This view has become common in right-wing media, and sorry as that sounds, it�s not even�the most radical view.

"The even uglier approach has been�to outright challenge the validity of�14th Amendment because members of Confederate states were not seated in Congress when the amendment was proposed just after the end of the Civil War.� Because of this, say the deniers, the Congress itself was illegitimate, and so anything it recommended�including the 14th and 15th Amendments�are illegitimate."

In its inaugural publication in 1985, the Christian Knights of the Ku Klux Klan wrote in an article decrying school desegregation that "the Fourteenth Amendment was never legally ratified but pronounced 'law' by the 'Radical Reconstruction' Congress in July 1868."

quote:

The decision of Scott v. Sandford, considered by many legal scholars to be the worst ever rendered by the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be citizens of the United States.
-

The Supreme Court's opinion in the Brown v. Board of Education case of 1954 legally ended decades of racial segregation in America's public schools. Chief Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case. State-sanctioned segregation of public schools was a violation of the 14th Amendment and was therefore unconstitutional.

The Supreme Court�s unanimous 1954 decision in Brown was monumental in several respects. It struck down the doctrine of separate but equal and began rolling back the sprawling policy of racial segregation in schools and public accommodations. It infused real meaning into the Constitution�s core value of �equal protection of the laws.� And it undergirded constitutional milestones of the 20th century, including the 1967 decision of Loving v. Virginia, which overturned bans on interracial marriage, the 2003 decision in Lawrence v. Texas, which struck down the criminalization of LGBTQ persons, and the 2015 decision in Obergefell v. Hodges, which recognized marriage equality and drew upon Loving and Lawrence.

However, dozens of recent conservative judicial appointments have departed from this mainstream consensus and rejected answering that Brown was correctly decided.

quote:

In 1967, in Loving v. Virginia, the U.S. Supreme Court unanimously struck down miscegenation statutes, which criminalized interracial marriage, as unconstitutional.

While Loving was a unanimous decision, the Court in United States v. Windsor, recognizing marriages between same-sex couples, was closely divided. Almost half a century after Chief Justice Warren issued his unanimous Loving opinion, the Loving dissent has been written. Justice Alito authored it in Windsor.

Justice Alito, who joined a group devoted to keeping women and people of color out of Princeton, fashioned his dissent as upholding the Defense of Marriage Act, but the rationales he employed were much more suited to the facts of Loving than the facts of Windsor.

There is simply no internally consistent way to defend Justice Alito's arguments while also upholding the unconstitutionality of miscegenation laws. Justice Alito not only authored a dissent for the Windsor case; he wrote a dissent in Loving nearly 50 years after the case was decided. His reasoning would require the upholding of Virginia's miscegenation statute.

alito's quotes posted:

[On whether children born within the US from parents present in the territory unlawfully are automatic citizens by virtue of the 14th:]
"Recent scholarship has demonstrated that this is an open question."
---

The Court�s conception of the 14th amendment, I said in this opinion and I believe to be true, is a very postmodern idea; it�s the freedom to define your understanding of the meaning of life. Your�it�s the right to self-expression. So if all of this is on the table now, where are the legal limits on it?

If a libertarian is appointed to the Supreme Court, is it then proper for the libertarian to say, �Well, I think that there is a right to work less than the minimum wage? I think there is a right to work as many hours as I want without being limited by the government. I think I have the right to build whatever I want on my property irrespective the zoning laws and so forth.�

If a socialist is appointed to the Supreme Court, can the socialist say, �I think that liberty and the 14th Amendment means that everyone should have a guaranteed annual income or that all education through college should be absolutely free,� or whatever. There�s no limit.

Thomas posted:

Justice Clarence Thomas made a surprising proclamation: A celebrated ruling against school segregation � which, along with Brown v. Board of Education, abolished the doctrine of �separate but equal� � was wrongly decided. That decision, 1954�s Bolling v. Sharpe, compelled the federal government to abide by equal protection principles. It forms the basis of countless landmark civil rights decisions over the last 70 years.

Thomas also used the moment of overruling Roe v. Wade to urge the court to go further and jettison the entire line of privacy precedents that shield access to contraception, private sexual conduct and same-sex marriage.

Thomas called for the court to abandon its reliance on what�s known as �substantive due process.� This is the notion that the 14th Amendment guarantee against depriving individuals of liberty without due process of law encompasses a right to privacy, among other protections.

�Substantive due process has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.� - Justice Clarence Thomas

Roberts posted:

The Voting Rights Act of 1965 was one of the crowning achievement of the civil-rights era in prohibiting discrimination. Designed to enforce the rights protected by the Fourteenth Amendment, the Act sought to secure the right to vote for racial minorities, especially in the South.

The U.S. Department of Justice considers the Act to be the most effective piece of federal civil rights legislation ever enacted in the country; it has been a target for dismantling for decades by racists.

Chief Justice Roberts, appointed in 2005 by President George W. Bush, has long argued that the various government efforts to address historic racial discrimination are a problem.

�The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,� Roberts famously wrote in a 2007 ruling in which the court struck down a Seattle program aimed at desegregating schools. He expressed a similar sentiment in a 2006 redistricting case in which he disagreed with the court�s finding that Texas had unlawfully diluted the Latino vote in drawing electoral districts.

As chief justice, Roberts was in the majority on both occasions when the court in previous cases weakened the Voting Rights Act, enacted in 1965 to protect minority voters.

As a lawyer in the Reagan administration, he unsuccessfully advocated against legislation enabling race discrimination claims brought under the Voting Rights Act. It �should not be made easy to prove� that a state had violated the rights of its citizens, Roberts wrote.

In Shelby County v. Holder, Roberts�s majority opinion essentially killed Section 5 of the Voting Rights Act, the highly successful rule under which jurisdictions with a history of racial discrimination in voting had to get permission from the Justice Department or a federal court before making changes in voting procedures. The South had done so well in correcting the sins of its past, Roberts wrote, that the law as applied could no longer be justified.

The impact of the Shelby County decision was stunning. Within hours, Greg Abbott, then the attorney general of Texas and now the state�s governor, announced that a stringent voter-ID law that had been blocked under Section 5 the previous summer would go into effect �immediately.� That was just the beginning. States across the South and the Southwest have been quick to exploit their new freedom from the federal scrutiny that once would have deterred changes in voting hours, ID requirements, and other seemingly neutral moves with disproportionate effects on minority voters.

Justice Amy Courtney Barrett's words posted:

Congress has to decide whether to rely on the�power conferred by the possibly illegitimate Fourteenth Amendment...
---

An originalist legislator might have to face questions, such as the legitimacy of the Fourteenth Amendment...

atriptothebeach fucked around with this message at 06:25 on Mar 7, 2024

# ? Mar 6, 2024 13:45

Raldikuk: Apr 7, 2006; I'm bad with money and I want that meatball!

Main Paineframe posted:

There's no catch-22. It's entirely possible to write an enforcement law for the Insurrection Clause that isn't also a bill of attainder. The decision even cites a historical example (the Enforcement Act of 1870) and strongly implies that a law modeled after that would also be constitutional.

Everything I have found about the enforcement act of 1870 suggests its for the 15th amendment. Is this your understanding as well fron your reading of it?

# ? Mar 7, 2024 16:21

Potato Salad: Oct 23, 2014; nobody cares

Kaal posted:

One of the normal coping strategies with gaslighting is hoping that some herculean and perfect effort will be enough to meet the undefined expectations and change things for the better. But the reality is that Lucy still pulls the football away. The Republicans have been killing off the 14th Amendment with a thousand cuts, and aren’t going to change their minds about that.

Yep.

I Believe In Robert Muller! I Believe In The Rule Of Law!

# ? Mar 7, 2024 16:34

Potato Salad: Oct 23, 2014; nobody cares

atriptothebeach posted:

In its inaugural publication in 1985, the Christian Knights of the Ku Klux Klan wrote in an article decrying school desegregation that "the Fourteenth Amendment was never legally ratified but pronounced 'law' by the 'Radical Reconstruction' Congress in July 1868."

I forgot that I had read about this. The amount of space my brain has decided it needs to dedicate to remembering white supremacist bullshit is depressing.

I recall somebody pointing out at the time that, ahistorical as this may be, it doesn't even make sense on its own nonsense pretense. Secession and war is the solution the slaveowning class of the antebellum South reached for to settle this matter. They signed up for that contest and subsequently lost. Even if the Civil War amendments had not been ratified -- which they had been, within 2-3 years -- they were passed by the 1866 Congress that had just won a massive war, had a gigantic fuckoff army, and was occupying the traitor States. The same fuckos who talk about "might makes right" can get hosed on this one: the traitors asked for that fight, lost, and had these amendments foisted upon them at the tip of Union bayonets. Live by the sword, get owned by the sword.

Potato Salad fucked around with this message at 16:46 on Mar 7, 2024

# ? Mar 7, 2024 16:43

Main Paineframe: Oct 27, 2010

Raldikuk posted:

Everything I have found about the enforcement act of 1870 suggests its for the 15th amendment. Is this your understanding as well fron your reading of it?

While the Enforcement Act of 1870 was primarily about enforcing the 15th Amendment, it also contained enforcement clauses for Section 3 of the 14th Amendment:

quote:

Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid, to proceed against such person, by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.

Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.

This clearly delegates Congress' power of enforcement to federal DAs and gives them a legal obligation to pursue federal lawsuits against people they believe are holding office in violation of the Insurrection Clause. Moreover, it specially privileges these lawsuits, fast-tracking them by giving them precedence over other cases on the docket. In addition, it makes it a federal crime to hold office in violation of the Insurrection Clause, punishable with prison time and/or a pretty significant fine (by the standards of the time).

The obvious question is "if federal prosecutors could pursue Insurrection Clause violations in court back then, why can't they do so now?", and the Supreme Court's answer is "because Congress passed a law specifically granting this power to federal prosecutors". According to SCOTUS, the power to enforce the Insurrection Act was not an inherent power of the judicial branch - it was a power held by the legislative branch, which the legislative branch could delegate to other branches if they chose to and passed a law saying so. That isn't really unusual, by the way - Congress frequently does that kind of thing. Much of the modern regulatory state is based on exercises of Congressional power which delegated actual enforcement to various regulatory agencies. In the case of the Enforcement Act, Congress delegated that enforcement power to the judicial branch, handing the responsibilities of day-to-day enforcement down to federal prosecutors and judges.

The problem is that the relevant clauses have since been repealed, and thus we no longer have a law delegating Congress's power of enforcement anywhere. This is not an uncommon problem either, by the way - there's a surprising number of constitutional bits and pieces where the writers clearly expected Congress to pass a law handling the details of actually enforcing it, but Congress either never actually bothered to do so or repealed it later. What happens in situations like that is up to the judicial philosophy of whichever Supreme Court justices we happen to have at the time, as "the Constitution says Congress is required to pass a law about this, but Congress didn't" is not really an issue with a clear-cut solution, since judges can't really force Congress to pass a law. Some SCOTUSes generally answered that question with "this clause requires a law, so if there's no law on the books, this clause is effectively powerless", while others answered it with "this is loving stupid, if Congress won't act then we judges will invent something". Personally, I don't think either stance is wildly unreasonable - the first stance is probably closer to what's actually correct from a pedantic law-interpreter POV, but the second stance worked to paper over what was essentially a serious flaw in our system. The Warren Court was especially prone to doing the latter, while our current court makeup leans a lot more toward the former. Unfortunately, the Warren Court's activism may have backfired in the long run, as stretching judicial powers to cover for the legislative branch's failings eased public pressure on our politics even as Congress continued to rot.

The upshot of all this is that if the court passed something like the Enforcement Act now, empowering federal prosecutors to go after insurrectionists under the Insurrection Clause, then it would in fact be possible to sue for removal of insurrectionists including Trump. Of course, even if Congress got together and passed such a law tomorrow, that still wouldn't be able to get Trump disqualified before the election. Even with the expedited procedures available to federal prosecutors under the Enforcement Act, there were very few successful removals because most of the lawsuits managed to drag out until amnesty happened. But an eagle-eyed law-reader would notice that that doesn't really matter anyway - the relevant Enforcement Act clauses weren't actually about removing people from ballots, they were about removing people from office. By the time it was passed, the South had already been openly ignoring the Insurrection Clause, with both voters and legislatures putting plenty of ex-Confederates back in state government positions even before the Amnesty Act was passed.

# ? Mar 7, 2024 17:14

FlamingLiberal: Jan 18, 2009; Would you like to play a game?

The real problem is that instead of just executing all of the Confederate leadership they allowed them to go home and then proceed to over time retake power once Reconstruction became politically toxic for the North

# ? Mar 7, 2024 17:15

Morrow: Oct 31, 2010

If they'd executed the confederate leadership for treason, you'd have a huge bloc of the country still angry about the civil war instead of reintegrating.

# ? Mar 7, 2024 17:40

FlamingLiberal: Jan 18, 2009; Would you like to play a game?

They still think they won!

# ? Mar 7, 2024 17:43

Cormack: Apr 29, 2009

Potato Salad posted:

Yep.

I Believe In Robert Muller! I Believe In The Rule Of Law!

I don't know if you intended this, but I heard this in my head to the tune of https://www.youtube.com/watch?v=yfY4b1NszpY and with some very slight tweaks it was thematically appropriate enough that it burned.

They sold me a dream of justice
They sold me a silent night
And they told me a fairy story
'Till I believed in the rule of law
And I believed in Robert Mueller
And I looked to the sky with excited eyes
'Till I woke with a yawn in the first light of dawn
And I saw him and through his disguise

# ? Mar 7, 2024 19:37

Professor Beetus: Apr 12, 2007; They can fight us
But they'll never Beetus

Morrow posted:

If they'd executed the confederate leadership for treason, you'd have a huge bloc of the country still angry about the civil war instead of reintegrating.

That's horseshit because that is exactly what happened. They remained still angry about the civil war and essentially fought integration at every turn. They should have executed confederate leadership and stationed the union army to forcibly enforce reconstruction rather than acquiescing and letting the confederates claw back the right to treat black people as subhuman for the next 100 years, but it turns out the whole of America is and always has been astonishingly racist. Maybe read a history book or two.

# ? Mar 7, 2024 20:16

Evil Fluffy: Jul 13, 2009; Scholars are some of the most pompous and pedantic people I've ever had the joy of meeting.

Morrow posted:

If they'd executed the confederate leadership for treason, you'd have a huge bloc of the country still angry about the civil war instead of reintegrating.

You mean the exact thing that happened anyways, only with the Confederate leadership being alive to take advantage of it and form groups like the KKK and sabotage what little effort was put into Reconstruction before being abandoned?

There's a reason other countries look at the US's post Civil War treatment of the Confederacy and do the opposite. IIRC, part of the reasoning for the Nuremberg Trials was because the Allies saw the failures of Reconstruction and problems caused by Confederate leaders and decided to try and execute Nazi leadership instead of just letting them all go (for the most part).

# ? Mar 7, 2024 20:32

Dameius: Apr 3, 2006

Every political office from sheriff up to president and every officer in the Confederate military and every appointed position in the Confederate government should have been tried and sentenced for treason with any and all wealth they had confiscated, but alas the north lacked the will to actually address the rot and we're still paying for it.

# ? Mar 7, 2024 20:42

Captain_Maclaine: Sep 30, 2001; Every moment I'm alive, I pray for death!

Dameius posted:

Every political office from sheriff up to president and every officer in the Confederate military and every appointed position in the Confederate government should have been tried and sentenced for treason with any and all wealth they had confiscated, but alas the north lacked the will to actually address the rot and we're still paying for it.

Also and in one of the more damning elements of his life, Grant intervened (out of a staggeringly misplaced sense of gentlemanly good sportsmanship, best I can tell) to short circuit early attempts to put Lee specifically on trial in the aftermath of Lincoln's assassination, at which time temperatures in the North were high enough that had it happened it well could have generated momentum to at least try more of the bastards.

Captain_Maclaine fucked around with this message at 21:06 on Mar 7, 2024

# ? Mar 7, 2024 21:03

Main Paineframe: Oct 27, 2010

FlamingLiberal posted:

The real problem is that instead of just executing all of the Confederate leadership they allowed them to go home and then proceed to over time retake power once Reconstruction became politically toxic for the North

Executing the Confederate leadership wouldn't have changed much; the problem was that the Confederate population still mostly sympathized with the Confederacy's ideals. The moment Southern voters regained the ability to vote in federal elections, Reconstruction's days were numbered.

# ? Mar 7, 2024 22:04

Fork of Unknown Origins: Oct 21, 2005; Gotta Herd On?

Main Paineframe posted:

Executing the Confederate leadership wouldn't have changed much; the problem was that the Confederate population still mostly sympathized with the Confederacy's ideals. The moment Southern voters regained the ability to vote in federal elections, Reconstruction's days were numbered.

Well there�s the answer then.

# ? Mar 7, 2024 22:24

Lemniscate Blue: Apr 21, 2006; Here we go again.

Evil Fluffy posted:

There's a reason other countries look at the US's post Civil War treatment of the Confederacy and do the opposite. IIRC, part of the reasoning for the Nuremberg Trials was because the Allies saw the failures of Reconstruction and problems caused by Confederate leaders and decided to try and execute Nazi leadership instead of just letting them all go (for the most part).

It really is amazing how many things about the US are examined and emulated by other countries with a handful of changes because they saw how certain critical flaws messed us up, but we're stuck looking at our founding documents and traditions as unchangeable and perfect.

# ? Mar 7, 2024 22:48

Dameius: Apr 3, 2006

Lemniscate Blue posted:

It really is amazing how many things about the US are examined and emulated by other countries with a handful of changes because they saw how certain critical flaws messed us up, but we're stuck looking at our founding documents and traditions as unchangeable and perfect.

Real big, "'no way to prevent this!' says only country where this happens," energy.

# ? Mar 8, 2024 00:31

Captain_Maclaine: Sep 30, 2001; Every moment I'm alive, I pray for death!

Dameius posted:

Real big, "'no way to prevent this!' says only country where this happens," energy.

Pyotr Chaadayev once said that Russia was one of those nations that don't exist as a regular part of the world but rather to serve as a terrible warning to everyone else.

Sauce for the gander, I guess.

# ? Mar 8, 2024 00:44

Adbot: ADBOT LOVES YOU

# ? Apr 29, 2024 04:47

Javid: Oct 21, 2004

Our government places such a high priority on excluding traitors from returning to office that they *checks notes*

oh.

# ? Mar 8, 2024 00:54

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

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