An expected Supreme Court case that will be shameful.
A textualist, whether of the Constitution or any other declarative writing, says that the clear and obvious meaning of a word or passage prevails, while an originalist claims that what words mean depends on the historical context in which the words were said, Supreme Court originalists saying the Constitution means what it was sent to mean when the passage was enacted. By both standards, the Colorado case which barred Trump from a presidential primary because he was an insurrectionist after having taken an oath to uphold the Constitution, is correct even though that provision in the Constitution might have been unwise in that it can lead to any number of forms of mischief, such as having Trump on some ballots but not on others. But the Constitution cannot simply be disregarded, a provision neglected because not in fashion, people defending the Second Amendment as incontrovertible even though its provision had in mind long single shot rifles. Rather, what is likely to happen is that the Supreme Court will go around section 3 of the Fourteenth Amendment by hedging what words mean, torturing them into being what they clearly are not.
The third section of the Fourteenth Amendment is clear and straightforward because it has to do with a procedure rather than with lofty concepts found in another part of that amendment such as due process of law where it might not be clear how much of it is needed to be considered sufficient. The section says that people previously in rebellion and before that sworn to uphold the constitution are not allowed to take elective or appointed places in the government. It says in full:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
A quibble raised by those who object to the meaning of this provision is that the President and the second those who are those, secondly, those who hold office, any and all of them, and those obviously the vice president are exempted from the provision because they have not been stipulated by name and also because they are not strictly officeholders. But that is contrar ;people because they are part of the category, the provision who is barred from hy to the orderly proceeding in their words themselves which create two categories of holding office, the first being those who are in legislative function, including electoral college members, and including the President and the Vice President. Those two do not have to be named to be included because they are categorical. It didn't have to name the Secretary of War, obviously an important role during Reconstruction, for including the office of an ex-Confederate Army. Moreover, what an office is very clear and obviously applies to the President and Vice President. An office, as Weber putty. Was that enough? I would think it, but known since the tim to establish citizenship of the Pharaohs,was the legal delegation of authority to a title embodied by a person to act within the division of labor in any organization. The Constitution says that the person made President is, among other things, the commander in chief, capable of vetoing legislation, and holds those abilities for a term of four years, unless reelected. Whatever could it mean to say that it is not an office?
As for what body should decide a candidate is unqualified to be one, the third section of the fourteenth amendment makes that clear. The passage says specifically that Congress can only restore a candidacy by three fourth votes, presumably to restore the vote to a rehabilitated wise man who had once been a Confederate. Therefore Congress cannot pass legislation to oversee who is to be barred. Who then has that power? The bodies usually appointed to supervise elections would make that determination. Those are state bodies. The question arises as to whether the hearing to make such a determination is extensive enough to meet the standard of due process. Showing a birth certificate to a clerk would be enough to establish natural born citizenship and a few documents would show sufficient residence in a district. Whether o ad been an insurrectionist might require a more extensive hearing on the merits. Colorado had a five day hearing in which it reviewed the findings of the Jan 6th Committee and heard expert testimony. I would think that process is sufficient.
But the Supreme Court justices in their deliberations did not consider what the words in the Constitution said, which is their proper purview, but engaged in idle speculation about what might happen forward of a decision, such as different states deciding differently and some states retaliating on one another by disqualifying a candidate they do not favor. However, Supreme Court Justices are not trained as prognosticators and have not done that well. The Supreme Court allowed Clinton as a sitting president to sit for a civil deposition, which the Court thought would take a day or two, but instead evolved into an impeachment that took him up for two years of his second term, hardly as intended.The Supreme Court has not developed legal standards for predictions, such as rare, probable or certain, as it has on whether potential discrimination is to be subject to low, mec
The Supreme Court cannot abolish a provision of the Constitution by saying it is unworkable or antiquated or obscure. In that case, it would have been unnecessary for there to be an amendment to repeal Prohibition, and any Supreme Court could decide that the Supreme Court could abolish both the Second and the Third Amendment (which, remember, having troops lodged in private houses) because they are unworkable and antiquated. But that is just what the Supreme Court may do regarding the third section of the Fourteenth Amendment. They find it troublesome and so to be rid of it, and that is far beyond their purview.
Consider just how low the standards of the Supreme Court have become and its regard in the public. Brown v. Board of Education is now considered the gold standard for Supreme Court decision making, however squirrelly were its arguments. The Justices wrestled with their points of view but agreed to a unanimous decision that it was no longer possible to sustain separate but equal, a form of apartheid that had just few years before been enacted in South Africa. Dealing with an unprecedented challenge to the peaceful transfer of power, the Supreme Court, rather than dealing with it straightforwardly, seems about to give one finding to one side, rejecting the Colorado decision, and one finding to the other side, finding that Trump has unlimited immunity to prosecution. That would make the Supreme Court seem even handed when in fact it was not decisive in opposing insurrection as well as the constitutional remedy to prohibit insurrectionists from playing a part in government, which was clearly intended by the Fourteenth Amendment. Shame on them. They have not risen to the historic occasion.