On the one hand, if one is reasonable, one would, I think, assume that a conviction would be required here.
That's a defensible knee-jerk conclusion. But since the only relevant federal statute I know about flows from the 14th Amendment, it doesn't make sense to think that the amendment was written with the statute in mind. What we mean to say is that it seems reasonable that some due process and trial of fact would be in order. Not necessary a criminal trial, but some test of the facts alleged that would implicate section 3 of the amendment in an individual's case.
A reasonable person might consider that even though the amendment has some ambiguities and oddities of expression, owing to its provenance, it means what it ought to mean, but then again we have a Supreme Court that makes no such allowance, at least where its own agendas are concerned.
I can complain endlessly about the bias of the U.S. Supreme Court, but on this point I think they have correctly clarified the matter.
Moore v. Harper is the infamous "independent state legislature" case. Because the Constitution gives power to the state legislatures to set the circumstances of elections, some argue that
only the legislature has this power and that its exercise of that power cannot be checked by the state executive or judiciary. The Court found that the architecture of separated-powers government holds, even if it is not expressly called out in each case. Exceptions must be elaborated, not inferred.
Many disqualifications exist for various offices, which are not inherently punitive, and may not require the due process that is linked to punishment.
Agreed; a finding of fact in a case of eligibility to office need not be characterized as punitive. Courts sit on matters of equity too.
I would indeed assume that one has the right to contest allegations of ineligibility, but if the issue is not a criminal one, does the "innocent until proven guilty" principle still hold?
Administrative findings are generally reviewable. If the finding is that Tom is eligible for President, that may be contested. If the finding is that Dick is not, that finding may also be contested.
This is why I have such a hard time with the conclusions drawn by these professors. There are no implicit grants of power under the Constitution. It is an enumerated-powers document. Thus for them to say that any officer of government is empowered to enforce section 3 of the 14th Amendment is misleading. It's not outright false, because all officers of government must perform their duties within the confines of the Constitution. It expressly forbids certain acts from all government actors.
A county clerk, for example, may not refuse to grant a demonstration permit because she disagrees with the subject of the protest. Because of the First Amendment, the government may not discriminate in its adoption or administration of laws on the basis of the content of speech. Although the clerk is not empowered to enforce the First Amendment, she is forbidden from violating it.
However, whether or not she errs in denying a permit in any given case is still a reviewable decision in administrative court, and henceforth elsewhere in the judiciary. Hence my second peeve with the authors' conclusions: the notion that a decision on the part of an election officer to deny candidacy to someone on 14th Amendment grounds would be non-reviewable is unsupported. It's an otherwise inexplicable exception to the rule that executive findings are subject to judicial review.
If someone says you can't be president because you're 16 years old, a trial is not needed.
More specifically, if the Kansas secretary of state declines to list you on the ballot for President because you aren't yet old enough, that's tough to contest. Why? Because a determination of one's biological age via appropriate documentation is relatively straightforward today. In fact, one must generally provide suitable documentary proof of one's age and citizenship as part of the application process, and the courts have no problem with that as a statutory requirement. When you fill out the form, you can either supply legally cognizable proof of eligibility by those criteria or you cannot. If you cannot, the administrator of elections in that state is typically authorized by statute to deny your application.
Keep in mind that being (a) a natural-born citizen of the United States and (b) at least 35 years of age constitute things you
are. Avoiding a tarring from the 14th Amendment, sec. 3, constitutes something you
aren't—i.e., an insurrectionist. It's reasonable to require proof for the affirmatives. You affirm you are a proper citizen, and you have the burden to prove you are. You affirm you are of age, and you have that burden. But an affirmation that you're ineligible because you engaged in insurrection would seem to incur a burden to prove that. It's unreasonable to require proof of a negative. And this differs markedly from the straightforward matters of age and citizenship because it's unlikely to be straightforwardly clear whether a person's actions constitute insurrection. On such matters, it's often unlikely to be straightforwardly clear what a person's actions even were.
Initially, evidence of the claim may be presented to the administrating official, and that official may do such due-processy things as holding hearings or collecting additional evidence, and then issue a finding. But the idea that such a finding cannot be reviewed seems at odds with the norm in administrative law. Courts can't generally dispute the criteria themselves, unless they're add-ons like loyalty tests or administrative fees. But courts can test the means by which an executive determines eligibility. Did the official use reasonable, lawful means to establish or challenge your age, citizenship, residency, or degree of insurrectivity?
It's important to remember here that people like Jay Utah are not running the government.
I aspire to understand the law, not to practice it. Ditto government; I have no urge to govern.
