@judgeluttig Profile picture
Oct 2 7 tweets 1 min read Twitter logo Read on Twitter
This excellent piece in the @latimes by @pennlaw professor @KermitRoosevelt on Section 3 adds the compelling historical explanation/justification for the former president's disqualification from the presidency that has been missing from the national conversation to date:
"[The Civil War] was also different in its goal and rationale. The secessionists of the 19th century wanted to break away from the United States and start their own country. Confederate leader Jefferson Davis was their president, they declared, not Abraham Lincoln.
The Jan. 6 insurrectionists, by contrast, wanted to retain Trump as president of the United States. They weren’t trying to separate from the country; they were trying to take it over.
Stopping the lawfully elected president from taking office, keeping another in his place and doing so through violence and intimidation — that counts as insurrection by any standard. And the historical moment it evokes is less the Civil War than Reconstruction.
That is the period that reveals what happens when the enemies of democracy take power."

I would only elaborate on Professor Roosevelt's superb historical explanation and justification, using the precise words of the Fourteenth Amendment itself:
The events of January 6 certainly "count" as an insurrection or rebellion against [the Constitution of the United States], or giv[ing] aid or comfort to the enemies thereof."

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More from @judgeluttig

Oct 2
I apology for the length of this rejoinder. A "Letter to the Editor" seemed futile for the needs and purposes of this tweet. Thank goodness for Twitter!
This editorial today by @washingtonpost is perhaps the most journalistically incompetent and irresponsible editorial on the Constitution of the United States and a question of constitutional law by a major national newspaper that I ever remember reading.
The editorial inauspiciously begins by "misquoting" the Disqualification Clause of Section 3 of the Fourteenth Amendment itself, next dismissively pronouncing the argument for disqualification made by the nation's foremost constitutional scholars as little more than "intriguing,"
Read 23 tweets
Sep 18
There is simply no basis in constitutional interpretation, reason, or logic for concluding from the constitutional fact that the president nominates and appoints “Officers of the United States” under Article II, Section 2, Clause 2, that the president is not
“an officer of the United States” for purposes of the Disqualification Clause of Section 3 of the Fourteenth Amendment. Such is constitutional non sequitur. Under the Constitution, the president holds the “Office of the President of the United States.”
He is unquestionably an “officer of the United States,” even if he is not an “Officer of the United States” for purposes of the Appointments Clause. The fact that the president is elected, not appointed, and therefore is not an “Officer of the United States”
Read 12 tweets
Sep 3
As it always is, it was a pleasure to be on with the exceedingly intelligent, articulate, informed @AliVelshi this morning to discuss the application of the Disqualification Clause of Section 3 of the Fourteenth Amendment to the former president.
I addressed two legitimate questions that have been raised. I explained as to the first -- whether disqualification is anti-democratic -- that actually the Fourteenth Amendment itself declares that disqualification is not anti-democratic at all,
that Section 3 is one of the most democratic provisions in the Constitution precisely because it is a provision of the Constitution. Instead, it is the conduct that gives rise to disqualification under Section 3 that the Constitution deems and declares to be anti-democratic.
Read 10 tweets
Aug 31
The gravamen of disqualification under Section 3 of the Fourteenth Amendment is an insurrection or rebellion against the Constitution of the United States or the giving of aid or comfort to the enemies of the Constitution.
By the literal terms of Section 3, the gravamen is not
engaging in an insurrection or rebellion against the
governmental authority of the United States.
But it is certain that one of these two formulations of Section 3's proscription — and likely both — will be held to be reasonable interpretations of Section 3. For example, 18 U.S.C § 2383 criminalizes both “rebellion or insurrection against the authority of the United States
Read 5 tweets
Aug 29
Thank you so much for this sincere reply, @narosenblum. I believe you are right that @tribelaw and I disagree (and strongly) with your characterization of @JoeBiden’s response to the Supreme Court’s decision.
But the disagreement over the question of characterization is of surpassing importance to the politicization of law. We do not view the President’s response as defiant, provocative, or disrespectful toward the Court at all.
And yes, we do view it as “business as usual” (though we would not use that pejorative term),
Read 6 tweets
Aug 29
@tribelaw is of course right that Assistant NYU Professor @narosenblum is dead wrong. And it's important that the Professor be corrected. I am unaware of an instance where any serious thinker about the Supreme Court and the Presidency
has claimed that a president who lost his case in the Supreme Court, accepted that loss (as every President is bound by oath to do), and then tried to accomplish his policy objectives by another means than that rejected by the High Court,
has claimed that that president defied the Court or provoked a "very direct confrontation with the Court -- much more so than after Dobbs. Wild stuff," as @narosenblum exaggeratedly wrote in his Tweet on 6/30/23.
Read 9 tweets

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