Frederick Douglass: The Original Originalist

Abolitionist, textualist, originalist.

By and
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Professor Bradley Rebeiro joins Sarah and David to examine Frederick Douglass and the political theories that influenced his thinking. But, before the interview, the two go through a docket of trending political topics, including:

-DC’s picky protest arrests

-A 96-year-old judge’s continued tenure

-Hunter Biden: Deal or no deal?

-Trump’s Georgia troubles, revisited (already)

Show Notes:

-Bradley Rebeiro, Frederick Douglass and the Original Originalists

-Bradley Rebeiro’s profile at BYU

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Comments (79)
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  1. Avatar photo
    WBrisky

    The Hunter Biden criminal case is going down blind alleys now because the Justice Department, and maybe the IRS, screwed it up in the beginning. What should have happened is that Hunter should have been asked to sign waivers of the statute of limitations (which was the first thing the agent did in every tax audit I was ever involved with and is virtually always signed by the taxpayer.) Then Hunter should have agreed with the IRS to pay all back taxes with interest and some penalties (which as I understand it he only paid a small portion of what he owed because the statute expired on the earlier years.) Then maybe a couple of misdemeanor guilty pleas, with fine and probation as penalty, with no gun charge. I think that is the way most taxpayers would have been treated - though they always come down like a ton of bricks on a few unlucky ones in early April. If the criminal investigation did anything further it would have been to try to figure out just what people were paying him for. But I'm not sure that kind of influence peddling, without a clear quid pro quo, is even illegal. And if not, Justice should not get involved. It is something better left to Congress.

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  2. Max Marshall

    I feel like the Pottawatomie Massacre pretty much ruins John Brown’s legacy. Pulling a man and his son out of their house and ordering your own children to hack them to pieces with swords, leaving bodies out on the street, over the cries of the wife and mother, is not justice, regardless of the righteousness of the cause. Can we completely rule out the possibility that the guy was just a natural-born axe-murderer who happened upon a great pretext for satisfying his bloodlust in fighting slavery?

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  3. Avatar photo
    Bill Dyer (aka Beldar)

    I keep waiting for that message, "Your comment privileges on this thread have been blocked. Please contact your system administrator."

    Until then:

    Some of the people, including legal pundits, who are poo-pooing the Baude & Paulsen thesis are recoiling from the notion that it would run so far and wide and deep as to make ineligible for public office anyone who sympathized with the "Stop the Steal!" campaign or the mostly-peaceful protesters exercising their First Amendment rights by beating a police officer with an American flag. What is this, some embarkation on an American Reign of Terror, a revanchist counter-revolution of RINOs and bleeding hearts in a temporary coalition to politically emasculate the double-digit plurality of Americans who joined team MAGA or even rooted for it against a candidate whom they evaluated to be worse?

    NO! Stop that, if that's what you're postulating. This is not the RINO/FedSoc revenge on all those Americans whom candidate H. Clinton referenced collectively as the "basket of deplorables," nor anything of the sort.

    The sweep and force of Section 3 is a tiny little cross-hatched and shaded-in space amidst all those vast overlapping circles on our national political Venn diagram:

    Section 3 sweeps up ONLY those who —

    (a) have "engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof"; AND who

    (b) have "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" (shorthand: an "Oath of Public Office"); AND who

    (c) have come again before a public official charged by law with determining the eligibility of public officeholders.

    For example: a state secretary of state whose job it is to confirm that, ho hum, yes, indeed, of all these candidates asking to be put on my state's presidential primary election ballot, each of them is indeed a natural born citizen of the United States, a resident for 14 years, and 35 years of age or older — and oh yes, for those former Oath of Office-Takers among them, if any, none has since engaged in insurrection etc., or if so, they have since been relieved of their disability by two-thirds vote of each chamber of Congress.

    The force ON THAT OATH-BREAKER is magnificent and just. But it is not a sentence to prison, nor exile to Guantanamo, nor a fine or penalty of any sort; not a stripping of citizenship; not a disenfranchisement or impairment of the right to vote; not even a restriction on the oath-breaker's rights to constitutionally protected free speech in any way. It's ONLY a disqualification from "any office, civil or military, under the United States, or under any State." And it includes a built-in provision for redemption and escape from that disqualification, to prevent manifest injustices as perceived by a congressional supermajority.

    Section 3 wasn't a punishment for all who'd engaged in the just-concluded insurrection and rebellion, much less all who'd given those aid and comfort. IT WAS A PUNISHMENT ONLY FOR OFFICE-HOLDING OATH-BREAKERS WHO WANTED TO AGAIN BE OFFICE-HOLDERS. It's not even concerned with mere defalcators (look it up), but rather, would-be SERIAL defalcators.

    Like Donald J. Trump.

    Section 3 is the Fourteenth Amendment's quick and dirty compromise on the question of what may be done with Oath-Breakers, and whether we're doomed to give the undeserving among them second chances anyway: NOPE, you Oath-Breakers. You have no place in this line of people registering to get on the ballot. Write your Congress-critters, like Robert E. Lee had to do. And Congress finally agreed — posthumously, in 1975.

    So is Trump the only data point in the intersection of the Venn diagram? Certainly not. But we're talking about some dozens or perhaps hundreds at most of individuals who are Oath-Taking Oath-Breaking insurrectionists and rebels, who again want to become Oath-Breakers.

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    1. Avatar photo
      WBrisky

      I think we skip over the requirement of "insurrection" here. It seems to me that 1/6, bad as it was, may or may not be an "insurrection" within the meaning of this section. Clearly the drafters had something very specific, and much, much worse than 1/6 in mind. Could something less than secession and civil war be an insurrection, probably. But would it apply to a demonstration getting out of hand and invading the space of the legislature with the purpose (if a mob can be said to have a purpose) of disrupting whatever is going on in the legislature. I don't think so. The American Heritage Dictionary defines one as "An act of open revolt against civil authority or a constituted government." Webster is similar except to emphasize the presence of violence. Oxford defines it as "a situation in which a large group of people try to take political control of their own country with violence, synonym: uprising an armed insurrection against the regime." Blacks (my old version from 1972) defines it as "A Rebellion, or rising of citizens or subjects in resistance to their government" citing Allegheny County v. Gibson, 90 Pa 417, "any combined resistance to lawful authority of the state, with the intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence." While you can twist these definitions to seem to make them apply, that seems awful broad and would apply to the multiple times other groups, mostly on the other side, took control of legislative chambers with the purpose of blocking the legislature from acting on one subject or another. It would also apply to much of what BLM and Antifa have done in the last couple of years, maybe even more directly than 1/6. Given the history of the adoption of Section 3 immediately after the Civil War, the overbreadth of the definition if it applies to 1/6, and the overall common usage of the term historically to apply to an actual armed revolt, which this was not, I think one does not make it past subsection (a). And of course all the other stuff like false electors, refusing to concede the election, etc. that does not include actually participating in the "insurrection" would not count for this purpose. That being said I am greatly disappointed in the Republican Senators who voted for acquittal on the second impeachment since I believe that advising, indeed coercing, Pence to do what would have been an unconstitutional act was a violation of Trump's oath and grounds for impeachment and barring him from future office. I like your framing this in terms of oath-breaking, and Trump certainly violated his oath, but Section 3 ties the oath-breaking to insurrection so something short of insurrection would not count.Expand full commentExpand full commentExpand full comment

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      1. Avatar photo
        Bill Dyer (aka Beldar)

        I've certainly largely skipped that in my comments here thus far, yes, as have many other pundits! But Section IV of the Baude & Paulsen article, comprising pages 61-123, is on this very subject, including not only what text, caselaw, and past practice tell us about these definitions and their application, but also specifically how Trump (and others) fit. I'm making my way through that part this afternoon.

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        1. Avatar photo
          WBrisky

          Also, as to whether Trump was an officer of the US, the Constitution includes very similar language in Article I Section 3 regarding disqualification from office if impeached and convicted. I seems to me the language is close enough that if the Senate can disqualify him after conviction, which seems to be taken for granted, Trump was an officer of the United States for purposes of the 14th Amendment. And as you point out, he certainly took a Constitutionally prescribed oath which he broke. So I find much less difficulty with that part of the 14th Amendment. And as I recall, the Radical Republicans attempted to remove Andrew Johnson from office and failed by one vote.

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          WBrisky

          Thanks. I am looking more textually, and in context. I don't have time for the B&P Article right now, so I look forward to your analysis. But I hope they will address the overbreadth problem because much as I would like to see Trump disqualified, the danger of this being used politically by both sides in the future, and us looking like a banana republic as a result, worries me greatly going forward. I am beginning to feel that using indictments and disqualifications to keep Trump from running will end up worse than letting him be the Republican nominee, with the resulting split and destruction of the party as he loses. In the latter case, for all the bad policy results in the short term, at least the conservative party can rebuild without Trump. On the other hand, the former may result in a "lost cause" sort of mindset with the Trump base never reconciling themselves to the Republic. 2024 is looking like a terrible year.

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          1. Avatar photo
            Bill Dyer (aka Beldar)

            Legitimate concerns all. I'm belt-and-suspenders: I want to see him disqualified under Section 3 AND sent to prison. There would still be some number of lost-causers after that, but I think they're going to be at the point where their interests have been given full consideration and their intransigence simply has to be ignored.

            Thanks, WBrisky!

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  4. Avatar photo
    Bill Dyer (aka Beldar)

    I believe Ms. Isgur has expressed reservations, perhaps even skepticism, about the likelihood that Trump can show himself to be a "federal officer" for purposes of the federal-officer removal statute. For my own convenience, and since it would relate to Trump's own entitlement, independently of Meadows', to removal, if and when that should somehow become relevant (but it probably won't), I self-indulgently repost here something I left in a comment on the weekend wrap-up:

    ---------------

    I also find the argument (urged by Profs. Blackman & Tillman; link: https://tinyurl.com/3cmkfk47) that Trump's not a federal officer for purposes of the federal-officer removal statute — an issue that the SDNY district judge assumed arguendo for Trump, before finding that porn-star payoffs were neither POTUS-work nor protected by federal defenses, even under a "colorable claim" standard — unpersuasive on its face. They admit that there's contrary federal precedent treating the POTUS as a "federal officer" in a civil case against Trump that the DoJ removed to federal court based on 28 U.S.C. § 1442(a)(1), exactly the statute upon which Meadows relies along with 28 U.S.C. § 1445 (with special procedures for removal of criminal cases). They link the district court opinion, but the refusal to remand was also upheld by the D.C. Circuit: K&D, LLC v. Trump Old Post Office LLC, 951 F.3d 503 (D.C. Cir. 2020) (link: https://scholar.google.com/scholar_case?case=14359240287656764303&). They also cite and link a magistrate's opinion adopted by the district court, Brunson v. Adams, No. 1:21-CV-00111-JNP-JCB (U.S. Dist. Ct. D. UT Oct. 19, 2021)(link: https://scholar.google.com/scholar_case?case=3961125636945419963&), aff'd, No. 22-4007 (10th Cir. Oct. 6, 2022)(unpublished opinion)(link: https://scholar.google.com/scholar_case?case=9737148120753040653), but omit a rather pertinent quote that pees in their Wheaties:

    ===begin quote===
    [T]here can be no question that Defendants are federal officers. Mr. Brunson's complaint names 129 members of the United States House of Representatives, 94 United States Senators, President Biden, Vice President Harris, and former Vice President Pence. Defendants in this action consist entirely of high-level, federal executive branch officers and members of Congress. Such office holders cannot be any more "federal." Therefore, section 1442(a) applies.
    ===end quote===

    Blackman & Tillman assert, "We see no reason to believe that Congress in 1948 intended that the removal statute would apply to the president." Dudes: Open your eyes and quit chasing constitutional phantasms to avoid the plain meaning of a very straightforward statute that two federal courts have already interpreted against you! Your suggestions that Congress might not have wanted to include the POTUS within the meaning of the term "federal official" for purposes of the removal statute is NOT HELPED by saying that Congress might have been worried that might make the POTUS a "federal official" for other, entirely unrelated purposes. The idea that Congress affirmatively wanted criminal prosecutions of a POTUS to go forward in state courts, and so they picked a term used in other contexts that didn't apply to POTUSes when they wrote the federal officer removal statute, is ... just painfully stupid.

    Regardless: If Meadows' removal notice (not motion) was proper as to even just him as of the moment it was filed, the whole case stays in federal court as to everyone.

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    Bill Dyer (aka Beldar)

    Not a ringing line especially, but one from the Baude & Paulsen article (at page 47) that blots a box on your AO Bingo scorecards: "The criticisms levelled today at the shenanigans allegedly perpetrated on the Supreme Court’s 'shadow docket' fall much more heavily and justifiably on the heads of the Reconstruction justices." [Extraneous comma after the word "docket" deleted by Beldar, anticipating some Penn Law Review editor.]

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    Okay, here's the path:

    Let's say Nevada SecState Cisco Aguilar, a Democrat, decides he's a Baude & Paulsen Section 3 believer, in his capacity as someone constitutionally responsible for applying Section 3 in judging ballot qualifications. Nevada's filing deadline for presidential primaries* is October 16, 2020.

    Do you think Donald Trump would like to be on the ballot in Nevada? I do. Would he be wise to wait until, say, October 15 to ask Mr. Aguilar's office to put him on that ballot? Oh, no. It would be cutting it close if he waited until October 1st! If Trump expects to need a preliminary injunction hearing with live witnesses and evidence — because no federal judge is going to grant a TRO putting him on the ballot if he waited until the day before the deadline to ask — the middle of September would be much more prudent, with perhaps a narrow window for a motion for stay or injunction pending appeal in the Ninth Circuit if Trump loses.

    That's less than a month from now. But that would give between two and a half to three months before the first vote in the Iowa caucus, friends and neighbors. That's two and a half to three times as long as was needed to resolve Bush v. Gore.

    ------------

    [*]The Nevada GOP's state-court lawsuit against Aguilar, attempting "to block the state from holding a presidential primary required under a 2-year-old law" in favor of the caucuses preferred by the Nevada GOP, was dismissed on July 10; the Nevada GOP has just filed an appeal to the Nevada Supreme Court: Link: https://thenevadaindependent.com/article/after-judge-denies-gop-request-to-block-presidential-primary-party-appeals-to-nevada-supreme-court

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    Bill Dyer (aka Beldar)

    In case you're following along at home and want source documents:

    Meadows has not only already filed (on Friday) a motion to dismiss on the merits based on official immunity, he's even filed (on Saturday!) a corrected brief in support. This is surely contrary to Trump's interest in stringing this out for as long as possible; as with Meadows' filing of the notice of removal on the morning after the indictment was announced, this (from Trump's point of view) is a missed opportunity to run time off the clock.

    And Judge Jones has already (on Wednesday, filed after business hours) made the threshold determination not to dismiss Meadows' removal from the face of the removal notice:

    ===begin quote===
    [T]he court determines that the Notice of Removal and attached Indictment are sufficient to show that summary remand is not clearly required. In other words, it is not immediately apparent from the face of the documents that the Court lacks subject matter jurisdiction under Section 1442(a)(1) over this removal action.
    ===end quote===

    Judge Jones also scheduled an evidentiary hearing on the propriety of the removal for 10 a.m. on Monday, August 28. No motion for remand has yet been filed, but the court invites DA Ellis to submit a "written response" to the removal, which will presumably take that form; her deadline is Wednesday, August 23, with a 25-page limit.

    By contrast, the timeline in Trump's unsuccessful attempt to remove Manhattan DA Alvin Bragg's state-court indictment to the SDNY was: Indictment (Apr. 4), notice of removal (May 4), Bragg's motion to remand (May 30), evidentiary hearing (June 27), and order remanding (July 19). I thought senior U.S. District Judge Alvin K. Hellerstein was moving pretty briskly compared to most federal courts, but Judge Jones is leaving him in the shade.

    Source docs:

    https://www.beldar.org/2023/GA/2023-08-16_DOC006_Order_denying_summary_remand_setting_Aug28_hearing.pdf

    https://www.beldar.org/2023/GA/2023-08-18_Doc015_Meadows_MtoDismiss.pdf

    https://www.beldar.org/2023/GA/2023-08-19_Doc016.1_Meadows_Corrctd_Brief_MtoDismiss.pdf

    https://www.beldar.org/2023/GA/2023-08-20__Docket_Sheet_NDGA.pdf

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    Bill Dyer (aka Beldar)

    One of the major points of the Baude & Paulson article is that there are many, many scenarios in which some other official — besides a secretary of state deciding upon presidential primary ballot eligibility — has occasion to judge whether someone who's previously taken an oath of office has engaged in insurrection or rebellion. I'm sure very clever folks are looking for such opportunities even as I type this.

    But for the straightforward version, in which Trump's campaign tries to get him ballot access for a 2024 GOP primary election and a clerk says, "Nope, you're an insurrectionist," it appears that most filing deadlines for 2024 presidential primary elections are in early to mid December 2023: Link: https://ballotpedia.org/Deadline_to_run_for_president,_2024

    If, despite seeing these challenges coming, Trump waits until the deadline in any given state is nearly upon him to try to file for ballot access, he runs a serious risk of not being able to get effective relief before the deadline closes. He needs to file is paperwork, get denied, and get into court in time to get a TRO at least requiring that his name be put on the ballot. I'd allow at least two weeks pre-deadline for that, four if I were serious, if I were his elections counsel.

    Recall that the Florida recount and resulting Bush v. Gore litigation in 2000 took from November 9 through the SCOTUS decision on December 12 — a timeframe driven by the then-existing version of the Electoral Count Act and its safe-harbor provision (omitted from the revised ECA, but that doesn't matter for this). Link: https://guides.law.stanford.edu/c.php?g=991108&p=7170216

    If this is an indication of how quickly an incredibly important issue on which a presidential election depends can travel through the courts to the SCOTUS level for resolution, then there are scenarios in which this Section 3 stuff gets to, and is resolved by, the SCOTUS before the first Iowa caucus vote on January 15, 2023, even if there's no earlier way to effectively get a proceeding going that could become judiciable in court.

    Talk about your deus ex machina endings, though!

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    Bill Dyer (aka Beldar)

    Aaaaaand in "The Bandwagon's Rolling Past and Damn, I'm Hopping Aboard and It Sure Solves One of My Problems" category, GOP presidential candidate Asa Hutchison, Governor of Arkansas, is signing the GOP debate pledge in reliance on his confidence that Trump won't be the nominee, at least in part because he's ineligible under Section 3 of the Fourteenth Amendment:

    Link: https://www.cnn.com/videos/politics/2023/08/20/sotu-asa-full.cnn

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    Bill Dyer (aka Beldar)

    Ms. Isgur was radiantly all out of bubblegum on This Week With George Whatsisname on ABC News this morning (Jonathan Karl hosting): https://abcnews.go.com/ThisWeek/video/georgia-case-forever-19-defendants-sarah-isgur-102407706

    Preet Bharara has also twigged to the likelihood that remand will be denied. Good man. Y'all read that here from Beldar on what, Wednesday? Before dawn of the Tuesday morning after the night release of the GA indictment on Monday night, in my long comment left on that morning's TMD, I predicted its removal as the "next thing" that would happen in the case, even before the defendants made their appearances — and indeed that happened a few hours later. Yes, I made the point about one removal working for all defendants. Yes, I made the argument that Trump's motion would be stronger in this case than in the NY case. Yes, my arm is very sore from patting my own back.

    Nobody mentioned, in the discussion of whether Meadows has flipped, that by removing on the day after the GA indictment, Meadows kept Trump from running 29 more days off the clock against the 30-day removal deadline. Trump, who took his full 30 in removing Alvin Bragg's NY State case indictment, has GOT to see that as a stab in the back.

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