More Milley: Americans in Uniform Are Willing to Die for a Document

In Federalist 49, Madison wrote of  the" veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability."  At The Jack Miller Center, James Ceaser writes:

The idea of a written constitution is coupled in The Federalist with another important contribution about how the people should regard the document. What kind of thing is a written constitution? From a legal standpoint, a written constitution is higher law. But is it merely law, or does it perform a further function and have a different status? Is the Constitution something to be venerated—something that endows government with respect and contributes to its stability and endurance— and that provides a bond that connects the people to the nation? 

As with the idea of a written constitution, many today can easily overlook the originality of this doctrine. But there is no logical connection between what are just words on a page and the veneration we apply to them. The idea of reverence for the Constitution was a creation of The Federalist.

General Milley:

 

Knowing the Constitution

From the Annenberg Public Policy Center:

Many Americans do not know what rights are protected under the First Amendment and a substantial number cannot name all three branches of government, according to the 2023 Annenberg Constitution Day Civics Survey.

The Annenberg Public Policy Center’s annual, nationally representative survey finds that when U.S. adults are asked to name the specific rights guaranteed by the First Amendment to the Constitution, only one right is recalled by most of the respondents: Freedom of speech, which 77% named.

The civics knowledge survey, released annually to celebrate Constitution Day (Sept. 17), also finds that although two-thirds of Americans (66%) can name all three branches of government, 10% can name two, 7% can name only one, and 17% cannot name any.

As in the recent past, the Annenberg Constitution Day Civics Survey was fielded in a year of high-profile events that propelled the workings of government into the daily news cycle. This year saw four criminal indictments of former President Donald Trump and numerous trials for those charged in the 2021 assault on the U.S. Capitol. Led by a conservative supermajority, the U.S. Supreme Court sidelined race-conscious college admissions programs and a Biden Administration student-loan forgiveness plan. Several of the associate justices were dogged by allegations of unethical conduct. A plea deal to resolve a gun charge and tax offenses by President Joe Biden’s son Hunter collapsed, while in Congress, Republican Representatives discussed whether to open impeachment proceedings against Biden.

“It is worrisome that one in six U.S. adults cannot name any of the branches of government and that only 1 in 20 can name all five freedoms protected by the First Amendment,” said Kathleen Hall Jamieson, director of the Annenberg Public Policy Center and director of the survey. “One is unlikely to cherish or work to protect freedoms one does not know one has and will have trouble holding elected and unelected leaders accountable if one does not understand the nature and prerogatives of each branch and the ways in which the power of each is kept in check.”

January 6 and President Selection

 From the J6 Committee:

At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.143 Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.144

The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”145 They were careful to ensure that “those who from situation might be suspected of too great devotion to thepresident in office” “were not among those that chose the president.”146 For that reason, “[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of theelectors.”147

...

In testimony before the Select Committee, [VP counsel Greg] Jacob described in detail whythe Trump plan for Pence was illegal:

[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on thatpoint. There is no justifiable basis to conclude that the Vice President has that kind of authority.155

 143. The framers specifically considered and rejected two constitutional plans that would havegiven Congress the power to select the Executive. Under both the Virginia and New Jersey Plans, the national executive would have been chosen by the national legislature. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102Mich. L. Rev. 545, 592, 595 (2004); see also 1 The Records of the Federal Convention of 1787,at 21, 244 (Max Farrand ed., 1911) (introducing Virginia and New Jersey Plans), available at https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787vol-1; James Madison, Notes of the Constitutional Convention (Sep. 4, 1787) (Gov. Morris warning of “the danger of intrigue & faction” if Congress selected the President), available at https://www.consource.org/document/james-madisons-notes-of-the-constitutionalconvention-1787-9-4/

144. The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 

145. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

146. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

147. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also U.S.
Const. art. II, § 1, cl. 2 (“but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector”).

`155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16), available at https:// www.govinfo.gov/committee/house-january6th

 

Terminating the Constitution

 

Donald Trump believes we should terminate “all rules, regulations and articles, even those found in the Constitution” to overturn the 2020 election. That was his view on 1/6 and remains his view today. No honest person can now deny that Trump is an enemy of the Constitution.

— Liz Cheney (@Liz_Cheney) December 4, 2022

The VP and the Counting of Electoral Votes

At AEI, Joseph Bessette and Gary Schmitt find no support for the view that the Vice President has unilateral constitutional authority to resolve electoral vote disputes.

Our analysis proceeds in four stages. First, we show that the framers viewed the Vice Presidency as a rather insignificant office and, thus, one unlikely to be given the constitutional power to decide presidential elections. Second, we show that the relevant constitutional language strongly suggests that Congress possesses the authority to legislate procedures to resolve electoral disputes. Third, we show that in the congressional debates of 1789 to 1805, every major alternative for locating the power to resolve electoral disputes – that it resides in Congress, in the state legislatures, or among the electors themselves when they meet in their states – was advanced except for one: that it resides in the office of the Vice Presidency. This silence, in our view, speaks volumes. Finally, we maintain that the principles and structure of the American constitutional order are inimical to allowing the discretion and will of a single individual (especially one who often has a personal stake in the outcome) to decide presidential elections. In brief, the history of the office, the text of the Constitution, founding-era debates, and the underlying logic of the Constitution do not support the view that the Vice President possesses unilateral constitutional authority to resolve electoral vote disputes.

Republic and Democracy

 Ron Elving at NPR:

Robert Draper of The New York Times published a piece on Republicans who say this in August. He cited a GOP candidate for the Arizona state legislature, Selina Bliss, saying: "We are not a democracy. Nowhere in the Constitution does it use the word 'democracy.' I think of the Democratic Republic of the Congo. That's not us."

But a democratic republic is us. Exactly.

Throughout our history we have functioned as both. Put another way, we have utilized characteristics of both. The people decide, but they do so through elected representatives working in pre-established, rule-bound and intentionally balky institutions such as Congress and the courts.

The government seated in Washington, D.C., represents a democratic republic, which governs a federated union of states, each of which in turn has its own democratic-republican government for its jurisdiction.

The relationship between the democratic and republican elements of this equation has been a dynamic and essential part of our history. But it has not always been easy, and in our time the friction between them has become yet another flashpoint in our partisan wars.

Disqualifying an Insurrectionist

 From CREW:

A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC.

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.
Click here to read the court’s decision.

Clarence Thomas

Sam Baker at Axios:

The big picture: Thomas has spent years essentially laying out a whole parallel understanding of the law. He’s one of the court’s most prolific authors of solo dissents, according to Adam Feldman of Empirical SCOTUS, and has also written a slew of solo concurrences similar to last week's.Thomas doesn't just write a dissent here and an additional point about a majority holding there, but rather has created a whole ecosystem of opinions that build on and reference each other almost in the same way as the court’s actual precedents, except for the fact that they are all one man speaking only for himself.

Thomas’ solo opinion in last week’s abortion case cited 11 of his past opinions, 10 of which were solo opinions. It drew more heavily from the Clarence Thomas Cinematic Universe than from the rest of the court’s historical precedents, dissents and non-Thomas concurrences.

But as the makeup of the court has shifted around him, Thomas’ views have gotten more influential. And that influence will only grow.“There’s this whole array of concurring and dissenting opinions that are now available for the majority on the court to take more seriously,” said Ralph Rossum, a professor at Claremont McKenna College who wrote a book about Thomas.

Thomas has been able to “plow the field and plant the seeds” that other justices would later “harvest” for their own majority opinions, even if they didn’t join Thomas at the outset, Rossum said. “You see that coming to fruition again on abortion,” Rossum said.

Details: The Supreme Court has protected rights to abortion, same-sex marriage, same-sex intercourse and contraception under the same legal doctrine, known as “substantive due process.”Thomas rejects that entire theory, and so he would throw out every ruling that relies on it.

“That's classic Thomas. There isn't a justice on the court less committed to reliance on precedent than Thomas,” Rossum said. He said Thomas believes the court spends too much time interpreting its own work and too little time on the Constitution.

Vaccine Mandate for National Guard

Jordan Williams at The Hill:

An Oklahoma federal judge on Tuesday denied an attempt from the state to block the Department of Defense’s coronavirus vaccine mandate for National Guard members.

In a 29-page ruling, U.S. District Judge Stephen Friot denied a motion from Oklahoma Gov. Kevin Stitt (R) and Attorney General John O’Connor to preliminarily enjoin the mandate, saying the plaintiffs’ claims were without merit.

“The court is required to decide this case on the basis of federal law, not common sense. But, either way, the result would be the same,” Friot wrote. “The claims asserted by the Governor and his co-plaintiffs are without merit.”

From the ruling:

The constitutional allocation of responsibility for Guard matters has been fleshed out by Congress. The beginning point, understandably relied upon by the defendants, is 32 U.S.C. § 110: “The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” In turn, the Service Secretaries (as relevant here, the Secretary of the Army and the Secretary of the Air Force) are empowered to “prescribe such regulations as the Secretary considers necessary to carry out provisions of law relating to the reserve components under the Secretary’s jurisdiction.” 10 U.S.C. § 10202(a).

Apropos of the constitutional grant of power to Congress to provide for “organizing” and “disciplining” the Militia, Congress has directed that “[t]he discipline, including training, of the Army National Guard shall conform to that of the Army. The discipline, including training, of the Air National Guard shall conform to that of the Air Force.” 32 U.S.C. § 501. If the Guard fails to comply with federal standards, the President is empowered to cut off its funding: “If, within a time fixed by the President, a State fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 32 U.S.C. § 108. If a state should find federal standards governing the National Guard to be too tight a fit, the state is free to establish (and pay for) its own, independent version. 32 U.S.C. § 109(c). Oklahoma has not done so.

The upshot of all this is that, however wide-ranging the command authority of the Governor and the Adjutant General may be within the four corners of their own state (and the court does not presume to define the extent of that authority other than as is strictly necessary for present purposes), it is unmistakably clear that the intent of Congress, as expressed in the text of its enactments, is that the Guard and its members will at all events be prepared, conformably to federal military standards, Case 5:21-cv-01136-F Document 41 Filed 12/28/21 Page 19 of 29 20 to be ordered into federal service, deploying alongside members of the active duty Army and Air Force, on little or no notice, anywhere in the world–which is exactly what the Oklahoma Guard and its members have done, with great distinction, on dozens of occasions

Federalist and Anti-Federalist Views of the Executive

 At AEI, Gary Schmitt and Joseph Bessette have a paper titled "Debating the presidency: Anti-Federalist and Federalist views of executive power during the ratification debate."

The paper analyzes Anti-Federalist and Federalist views of the office of the presidency during the ratification debate over the Constitution in 1787-1788. It explores in detailed fashion the critiques and defenses of what the Constitution’s architects had established with respect to executive power and its relationship to republican government.

Constitutional Obligation

Many posts have discussed the Founding.

Greg Weiner at The Constitutionalist:

When teaching Edmund Burke, I often pose this question: Suppose you inherit a manor house that has been in your family for generations. It has, in all likelihood, been modified, whether with electricity or indoor plumbing or a modern kitchen. But the basic structure of the house remains intact: An ancestor from generations ago would still recognize it. The place doesn’t suit your tastes, so you decide to tear it down and build something in the style of modernist architecture instead. The question is this: Have you done something unwise or immoral?

The politics of obligation holds that you have wronged both your ancestors and descendants. Your ancestors built and tended this house; your descendants will expect to have received it in trust as well. But you elevated your appetites over that obligation.

Constitutional obligation is similar. We are obligated to the Constitution not because it or its framers were perfect—neither it nor they were—but rather because we hold their legacy in trust.

In September 1789, Madison’s friend Thomas Jefferson, the American minister to France—who was infatuated with the revolution in that country—wrote him a letter. Its central claim was that “the earth belongs in usufruct to the living.” Past generations could claim no right over it. Jefferson, using demographic tables to calculate the length of a typical generation at 19 years, said no public debt or law could bind beyond that duration.

Removals

 At AEI, Gary Schmitt and Joseph Bessette have a report titled "The First Congress Establishes the Unitary Executive."  Key points:

• Congress wrote the statutes establishing the new government’s Departments of Foreign Affairs, War, and Treasury, placing them under the president’s supervision and direction. Congress even gave the executive branch the lead in setting the country’s fiscal policies when it tasked the secretary of the Treasury with preparing plans pertaining to public revenue and credit.
• To ensure that the line of authority and responsibility went from department officials and their heads to the president and not (indirectly) to the Congress, Congress stipulated that the president had the authority to remove officials from their posts. Although this authority was not explicit in the Constitution, members argued it was implied in Article II’s vesting and take care clauses.
• Congress affirmed this removal power precisely because it believed it fully consonant with the Constitution’s language and logic. Some leading presidential scholars have argued that the majority of Congress viewed the placement of the removal authority as a matter of legislative discretion. However, a close examination indicates that a clear majority viewed the removal power as resting with the president.

Ban Critical Race Theory?

 

Yes, and it’s not even close. Bans on teaching “divisive concepts” (the phrase many of these laws use) runs counter to decades of First Amendment precedent. Moreover, dramatically limiting the First Amendment in higher ed wouldn’t work out the way the right likes. https://t.co/lpLboaWuAi

— David French (@DavidAFrench) May 29, 2021

Three-Fifths Update

 Oliver Willis at The American Independent:

On Tuesday, during a debate on the floor of the Tennessee General Assembly, state Rep. Justin Lafferty, a Republican claimed that the Three-Fifths Compromise was about "ending slavery."

"We ended up biting a bitter, bitter pill that haunts us today. And we did it to lay the foundation for all this that we enjoy in this country," Lafferty said, referencing the compromise.

He added, "The Three-Fifths Compromise was a direct effort to ensure that southern states never got the population necessary to continue the practice of slavery everywhere else in the country."

Additionally, Lafferty argued that not counting enslaved Blacks as a whole person was a praiseworthy achievement.

"By limiting the number of population in the count, they specifically limited the number of representatives that would be available in the slaveholding states, and they did it for the purpose of ending slavery," he said. "Well before Abraham Lincoln. Well before Civil War."

The claim is inaccurate and ahistorical. The Three-Fifths Compromise, in which enslaved Black people were counted as three-fifths of a human being for the purposes of counting the American population, further enshrined the institution of slavery in America.

After the compromise was agreed to in 1787, millions of human beings lived in bondage until the Emancipation Proclamation in 1862 and the abolition of slavery through the passage of the 13th Amendment in 1865.

Statehood

 Matt Glassman at Legislative Procedure:

The short answer is that Congress passes a federal law. The admission of new states is governed by Article IV, section 3 of the Constitution, which reads:

“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”

Although various detailed plans for structuring the statehood process were considered both before the adoption of the Constitution and as revisions to it in the 19th century, the Framers went with a plan that did not constitutionally constrain either the size of new states or set a population threshold required for admission. Nor did they require any supermajority procedures. In effect, they made it surprisingly easy to add new states. Creating a new state is arguably the only irreversible process in the entire Constitution. Yet, it requires no more than federal law to achieve it.

And it was immediately and always controversial. Throughout the 19th century, statehood played a prominent role in destabilizing American politics. New states' ability to alter the balance of political power in the federal government led to near-constant political jockeying over state admissions, as partisans sought to expand the Union as a mechanism of consolidating political power. Frustration with the process led to routine calls for its reform, especially for the imposition of size and population threshold restrictions on Congress's ability to add states.

A Republican Executive

 At AEI, Joseph M. Bessette and Gary J. Schmitt have a report titled "Crafting a Republican Executive: The Presidency and the Constitutional Convention." Key points:

• The Constitutional Convention of 1787 knew the young nation needed a strong executive that was still accountable to the general public. In short, the new executive was to be an unprecedented mix of monarchic-like vigor and republican restraint.
• The first major issue the Convention faced was what powers in addition to executing the nation’s laws could be given to the new executive. The office needed to be made both capable and accountable before those powers could be added. The second and related issue was how best to select the president to maintain the office’s independence and energy. The Convention ultimately settled on the Electoral College system as the best practical means to select a president.
• In the end, the authorities the delegates vested in the chief executive were as much a reflection of their confidence in the characteristics of the institution they crafted and its concomitant promotion of “presidential” behavior as it was trust in the personal characteristics of the men they expected would rise to the nation’s highest office.

From the report:

To make an obvious point, the delegates would hardly have committed themselves to making the president impeachable if they expected every president to be a Washington. Nor would they have required Senate approval to the appointment of high-ranking executive officials. In the end, the authorities the delegates vested in the chief executive were as much a reflection of their confidence in the characteristics of the institution they so carefully crafted and the ways that institution would promote “presidential” behavior as it was trust in the personal characteristics of the men they expected would rise to the nation’s highest office.

Indeed, it is remarkable how frank the delegates were in their discussions of the executive. Those concerned about creating too strong an office were not at all reluctant to speak of ignoble cabals and monarchic designs, while those who favored a powerful and energetic executive were quite open about the need to tie the president’s passions and interests to
his duties.

Rather than looking to Washington as the kind of man they expected typically to occupy the office, the delegates may have been thinking more of someone like New York Gov. George Clinton. By the summer of 1787, Clinton was serving in his 11th consecutive
year as governor. Among the state governors, only William Livingston of New Jersey had served longer (by one year), and no governor had become as powerful a political figure in his state. Although Clinton was not without talent, few would rank him with fellow
New Yorkers Hamilton or Jay, never mind with the likes of Washington. Operating under a constitution that gave him renewable three-year terms and vested the office with substantial independent powers, Clinton proved to be an effective and responsible governor.

The architects of the presidency hoped their Electoral College system would raise to the nation’s highest office men with a reputation for exemplary public service. As the delegates themselves implied, reputation was an approximation for real virtue. Men of the caliber of Washington were desired, but men like Clinton were more likely to fill the office.

Representation, Congress, and the Presidency

 Yuval Levin at NR:

Whatever you think about the particulars of the impeachment trial, the broader truth of this point is increasingly impossible to deny. Almost every other problem in our constitutional system now is a function of or a response to willful congressional weakness. And that willful weakness is not best understood as a reticence to exercise power but as a fundamental failure to understand the nature of Congress’s purpose, function, and role. It’s a failure evident among members of Congress, but also among other constitutional officers, and among the broader public.

That failure is rooted in a deformation of our concept of representation, which itself reaches back to that Wilsonian presidentialism. Long before he was an elected official himself, in his political-science work, Woodrow Wilson argued that the president is the most representative (and therefore the most legitimate) of our public officials because he is the only one chosen by a national electorate. The idea was that the presidency could focus and consolidate the public will in a single person who would then represent our society. This has been a core belief of progressive nationalism ever since, but it has long since become a bipartisan vice and it’s behind a lot of the disfigurement of our republican politics. The fact is that our society is not politically consolidated in this way. It is diverse and manifold, and it is therefore best represented by a plural rather than a singular institution.

The presidency is formed around a single person not because representation is best served by a unitary figure but because, as Alexander Hamilton noted in Federalist No. 70, unity is the first and most essential ingredient of energy in the executive. The president’s job isn’t fundamentally representative. It is Congress that is shaped to be representative. And more important still, Congress is shaped to enable the diverse interests and views of our society to be represented in a way that also enables them to negotiate and bargain, and ultimately to accommodate each other.

This is a primary purpose of Congress as an institution — to enable and compel accommodation in a divided society. And the fact that accommodation now seems nearly impossible in our politics is a result of Congress’s failure to recognize and serve its purpose more than it is the cause of that failure.

Impeachment and Trial of Former Officials

Many posts have discussed impeachment, including the impeachment of former officials.

From CRS:

The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office. It also accords with the British impeachment of Warren Hastings two years after his resignation as the governorgeneral of Bengal. The impeachment occurred during the Convention debates and was noted expressly by the delegates without expressing disapproval of the timing. While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office. But the Framers nonetheless made other highly specific decisions about the impeachment process that departed from the British practice, such as requiring a two-thirds majority in the Senate for a conviction when the British system allowed conviction on a majority vote.

That said, there are textual arguments against Congress’s authority to apply impeachment proceedings to former officials. The plain text of the Constitution, which states that “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction,” could be read to support the requirement that the process only applies to officials who are holding office during impeachment proceedings. Some have argued that the Constitution links the impeachment remedy of disqualification from future office with the remedy of removal from the office that person currently occupies; the former remedy does not apply in situations where the latter is unavailable. In his influential Commentaries on the Constitution of the United States, Justice Joseph Story claimed that impeachment is inapplicable to officials who have left their position because removal—a primary remedy that the impeachment process authorizes—is no longer necessary.

But various scholars have taken issue with Justice Story’s reasoning, and others have argued that Justice Story’s argument was primarily concerned with simply distinguishing the American practice from the British, which allowed for impeachment of private citizens who had not been part of the government, and who could potentially face severe punishments, including in some cases life imprisonment, as a result of impeachment. Some have emphasized that the impeachment provisions of the Constitution provide that the remedies of removal from office and disqualification are distinct components of the remedy for impeachable misconduct. One scholar asserts that the two clauses of removal and disqualification can be thought of as “fixing a minimum and maximum penalty” in cases of conviction in an impeachment trial; consequently, an official’s resignation following an initial impeachment by the House but before conviction in the Senate may not “deprive the people of the full measure of the protection afforded them” through the additional remedy of disqualification. Scholars have noted that if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment is lost. If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first. According to one scholar, it is “essential” for Congress to have authority to impeach and convict former officials in order to apply the punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification punishment indicates that it should apply independently of the need for removal.

President Biden's Oath

President Biden will take the oath of office today.

Many posts have discussed oaths of office.

 From the Legal Information Institute:

What is the time relationship between a President’s assumption of office and his taking the oath? Apparently, the former comes first, this answer appearing to be the assumption of the language of the clause. The Second Congress assumed that President Washington took office on March 4, 1789,128 although he did not take the oath until the following April 30.

That the oath the President is required to take might be considered to add anything to the powers of the President, because of his obligation to “preserve, protect and defend the Constitution,” might appear to be rather a fanciful idea. But in President Jackson’s message announcing his veto of the act renewing the Bank of the United States there is language which suggests that the President has the right to refuse to enforce both statutes and judicial decisions based on his own independent decision that they were unwarranted by the Constitution.129 The idea next turned up in a message by President Lincoln justifying his suspension of the writ of habeas corpus without obtaining congressional authorization.130 And counsel to President Johnson during his impeachment trial adverted to the theory, but only in passing.131 Beyond these isolated instances, it does not appear to be seriously contended that the oath adds anything to the President’s powers.

Secession, Rebellion, and the Disqualification Clause

 Section 3 of the  14th Amendment:

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.

 Drew Knight at KHOU-TV:

On Tuesday, Rep. Kyle Biedermann (R-Fredericksburg) said that he is committed to authoring legislation in the 2021 legislative session that will give Texans a vote to allow the state to secede from the U.S.

"The federal government is out of control and does not represent the values of Texans," he wrote on Facebook. "That is why I am committing to file legislation this session that will allow a referendum to give Texans a vote for the State of Texas to reassert its status as an independent nation."

Oyez describes Texas v. White:

In a 5-to-3 decision, the Court held that Texas did indeed have the right to bring suit. The Court held that Texas had remained a state, despite joining the Confederate States of America and its being under military rule at the time of the decision. The Court further held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature--even if ratified by a majority of Texans--were "absolutely null." Even during the period of rebellion, however, the Court found that Texas continued to be a state.