tag:theconversation.com,2011:/us/topics/constitutional-law-2019/articlesConstitutional law – The Conversation2024-03-20T12:28:41Ztag:theconversation.com,2011:article/2256192024-03-20T12:28:41Z2024-03-20T12:28:41ZBiden cannot easily make Roe v. Wade federal law, but he could still make it easier to get an abortion<figure><img src="https://images.theconversation.com/files/582808/original/file-20240319-20-n2gu76.jpg?ixlib=rb-1.1.0&rect=419%2C62%2C4759%2C3385&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester marks the Dobbs v. Jackson Women's Health Organization decision anniversary outside the Supreme Court building on June 23, 2023. </span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/39d8d89cb379472ea647b7756c313426/preview/AP23175098262311.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Nathan Howard</a></span></figcaption></figure><p>President Joe Biden promised during his State of the Union address on March 7, 2024, that he would make the right to get an abortion a federal law. </p>
<p>“If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/08/remarks-by-president-biden-in-state-of-the-union-address-3/">law of the land again</a>,” Biden said. </p>
<p>If Biden meant simply that he would sign a bill enshrining the right to an abortion, then he can keep his promise. But, as he noted, such a bill is unlikely to be enacted by this current Congress, <a href="https://pressgallery.house.gov/member-data/party-breakdown">in which the House majority is Republican</a>. Moreover, if Biden expected such a law to be upheld by this Supreme Court, or even a different set of justices, he could be seriously disappointed.</p>
<p>On the other hand, there is much that Biden’s administration and Congress can do to offset the impact of the Supreme Court’s 2022 <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson Women’s Health Organization</a> ruling, which removed federal constitutional protection for the right to get an abortion and sent the regulation of abortion back to the states. </p>
<p><a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">As experts</a> on <a href="https://www.law.gwu.edu/alan-b-morrison">constitutional law</a> and <a href="https://www.law.gwu.edu/sonia-m-suter">reproductive health and justice</a>, we are sorting out just what the federal government can do to protect access to abortion.</p>
<p>Most Americans think of the federal government and the president as capable of doing anything that a majority of Congress thinks is appropriate. But that is not true. </p>
<p>The president has various powers under the Constitution, including the authority to issue <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">executive orders</a>. </p>
<p>That’s what <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2022/07/08/executive-order-on-protecting-access-to-reproductive-healthcare-services/">Biden did</a> shortly after the Dobbs decision when he issued an executive order that called on different government officials and agencies to promote access to reproductive care, including abortion. </p>
<p>Biden can also have government agencies craft rules that protect abortion rights. The Department of Health and Human Services, for example, has proposed <a href="https://www.hhs.gov/about/news/2023/04/12/hhs-proposes-measures-bolster-patient-provider-confidentiality-around-reproductive-health-care.html#:%7E:text=Today%2C%20the%20U.S.%20Department%20of,protected%20health%20information%20(PHI)%20to">a rule to increase privacy protections</a> for reproductive health information, including abortion information. </p>
<p>But Biden has only limited authority to do this: These efforts could be undone by <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">Congress overriding</a> executive orders – or his successors reversing them – and courts invalidating agency decisions. </p>
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<span class="caption">President Joe Biden speaks during the State of the Union address on March 7, 2024.</span>
<span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/8a914f2c68444fefb2f27f6cfa4ab597/preview/AP24068158996875.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Andrew Harnik</a></span>
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<h2>Congress’ hands are partially tied</h2>
<p>Biden specifically said in February 2024 that he needs a Congress that will help him support a “woman’s right to choose.”</p>
<p>Two of us have written <a href="https://slate.com/news-and-politics/2022/01/congress-roe-law-abortion-alternative.html">about how Congress</a> does not have the authority to override a state’s decision to make abortions unlawful in most circumstances – although we <a href="https://twitter.com/jdmortenson/status/1521580604323737600">recognize that some</a> observers and experts would <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10787">question this conclusion</a>.</p>
<p>Congress has the power to pass laws, but only on a limited list of subjects. While the understanding of Congress’ power has expanded over time, there are still very real limits. </p>
<p>Congress is able to regulate commerce between states, but the Supreme Court has determined that its powers only reach activities that are <a href="https://crsreports.congress.gov/product/pdf/IF/IF11971">economic in nature</a>. So, the court ruled in 1994 that the federal government could not ban the possession of guns in a “<a href="https://www.oyez.org/cases/1994/93-1260">school zone</a>,” since there was no direct economic element involved. </p>
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<a href="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two white boxes say the words 'Mifepristone tablets' and are on a black table." src="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Packages of Mifepristone tablets are displayed in April 2023 at the family planning clinic in Rockville, Md.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-packages-of-mifepristone-tablets-news-photo/1481950657?adppopup=true">Anna Moneymaker/Getty Images</a></span>
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<h2>Other options for protecting abortion rights</h2>
<p>The president and the federal government have other ways to make it easier and more affordable to get an abortion. Some of these methods might even be effective in states where there are partial or full bans.</p>
<p>First, Congress could amend existing federal laws to provide economic assistance for abortion. For example, it could repeal the <a href="https://crsreports.congress.gov/product/pdf/IF/IF12167#:%7E:text=The%20Hyde%20Amendment%2C%20according%20to,are%20not%20obligated%20to%20cover.">Hyde Amendment</a>, which is an annual restriction passed in 1976 that prohibits federal money from being used to fund abortions, except when necessary to save the life of a pregnant person or when a pregnancy is the result of rape or incest. </p>
<p>Biden promised to remove the Hyde Amendment in his 2020 campaign but has been unable to do so because of lack of congressional support. But eliminating the Hyde Amendment would have minimal impact in <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">states with abortion bans</a>. </p>
<p>Second, some states with abortion bans, like Idaho and Alabama, <a href="https://apnews.com/article/abortion-texas-idaho-alabama-state-lines-trafficking-d314933f3f7db93858561a0c6ad0b188">are threatening to prosecute women</a> who travel to another state to get an abortion. Congress could enact legislation that protects the right to interstate travel for an abortion. Congress could also make it a federal offense for anyone, including state prosecutors, to interfere with that right. </p>
<p>Justice Brett Kavanaugh, <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">in his concurring opinion in Dobbs</a>, asserted that if states criminalized interstate travel for people to get an abortion, those laws would fail “based on the constitutional right to interstate travel.” </p>
<p>Since Dobbs, <a href="https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588">Idaho has passed a law</a> making it a felony for adults who are not the parent of a pregnant minor to help that minor cross state lines for an abortion. A <a href="https://apnews.com/article/idaho-abortion-trafficking-travel-ban-270a403d7b4a5e99e566433556614728">district court has temporarily stayed</a> this law as unconstitutional. In addition, <a href="https://www.texastribune.org/2024/02/09/texas-abortion-transgender-care-outside-state-borders/#:%7E:text=In%201974%2C%20just%20after%20Roe,they%20travel%20to%20that%20State.%E2%80%9D">four counties and a few cities in Texas</a> have passed so-called “abortion trafficking laws,” which allow individuals to sue people who travel to get abortions out of state and those who help them.</p>
<p>Third, the Food and Drug Administration has approved, and in 2016 and 2021 expanded, the <a href="https://theconversation.com/medication-abortion-could-get-harder-to-obtain-or-easier-theres-a-new-wave-of-post-dobbs-lawsuits-on-abortion-pills-198978">availability of mifepristone</a>, one of the two drugs used for medication abortions. The Supreme Court is <a href="https://www.scotusblog.com/2023/12/justices-will-review-lower-court-ruling-on-access-to-abortion-pill/">considering a challenge</a> to some of the FDA’s rules about access to mifepristone and will hear <a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/">oral arguments in that case on March 26, 2024</a>. </p>
<p>But even if the FDA prevails, an anti-abortion president could replace the head of this federal agency. The FDA might then rescind the current rules that have <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">expanded access</a> to mifepristone, including allowing the pill to be used later in pregnancy. </p>
<p>To prevent that from happening, Biden could ask <a href="https://crsreports.congress.gov/product/pdf/IF/IF12269">Congress to pass a law</a> that would guarantee the same kind of access to mifepristone that the FDA currently allows. </p>
<p>Congress could also ensure that <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">mailing abortion pills is legal</a>. It could do so by repealing a Victorian law called the Comstock Act, which <a href="https://www.nytimes.com/interactive/2023/04/08/us/court-decision-invalidating-approval-of-mifepristone.html">some judges</a> have interpreted as prohibiting the mailing of abortion pills, and directly declaring that such acts are legal. </p>
<p>The Department of Justice issued an <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">opinion in 2022</a> that the Comstock Act does not override the FDA rule allowing mifepristone to be delivered by mail. But legislation would make it impossible for a future president to reverse that opinion alone, or reverse that decision without congressional approval. </p>
<h2>Biden’s actions could still matter</h2>
<p>Biden’s attempt to explicitly codify Roe would probably not succeed. </p>
<p>But Biden can recommend that Congress undertake many other legal reforms that are not constitutionally barred, and he could also take some limited actions based on his own authority. These could remove some obstacles to getting an abortion.</p><img src="https://counter.theconversation.com/content/225619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While both Congress and the president have extensive legal powers, they cannot easily change the law to protect abortions under federal law.Naomi Cahn, Professor of Law, University of VirginiaAlan Morrison, Professor of public interest and public service law, George Washington UniversitySonia Suter, Professor of law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2255502024-03-12T12:36:10Z2024-03-12T12:36:10ZIreland referendums: what went wrong for the government and why double defeat draws a line under a decade of constitutional reform<p>Ireland, more than any other EU country, has a long and colourful history of referendums. Another chapter in that history has played out in the form of resounding defeats for two government proposals aimed at modernising the constitution. </p>
<p>One sought to remove a reference to a “woman’s” life “within the home” and recognise the value of “care” provided to others within the home. The other aimed to redefine the “family” as being based on “durable relationships” as well as marriage.</p>
<p>This enthusiasm for referendums – there have been 43 since 1937 – stems partly from an unusual quirk of the Irish constitution. Every amendment to the constitution, no matter how minor or obscure, requires a referendum, as well as an act of the Oireachtas (the national parliament). This is almost unique in Europe.</p>
<p>While a lot of these referendums have been about relatively technical matters, such as the court structure or the approval of new EU treaties, there has been a noticeable change in the way referendums are used in Ireland in recent years.</p>
<p>For a long time, referendums were, most typically, proposed by governments as a sort of means to an end. They were a way of permitting policies and acts which would otherwise have been unconstitutional, like making changes to the political system. Referendums were usually just a procedural requirement, imposed by the constitution, for making certain types of legal changes.</p>
<h2>The ‘post-crash referendums’</h2>
<p>In the years following the financial crisis of 2008 – which hit Ireland particularly badly – the approach to referendums noticeably changed. Amid a national crisis of confidence, <a href="https://www.independent.ie/business/irish/hell-at-the-gates-how-the-financial-crash-hit-ireland/36709945.html">following a crash of historic proportions</a>, a degree of soul-searching was in evidence. </p>
<p>Themes of rebirth and renewal came to prominence within what was historically a conservative (and very stable) political system. <a href="https://academic.oup.com/book/25895/chapter-abstract/193609555?redirectedFrom=fulltext">There was much talk of a “new republic”</a>, or at least of reforming a political system seen as parochial and clientelist, and as bearing much of the responsibility for the scale of the property crash.</p>
<p>This period also coincided with a spate of revelations about the state’s historical complicity with staggering abuse conducted in religious-run industrial schools, <a href="https://theconversation.com/mother-and-baby-homes-inquiry-now-reveal-the-secrets-of-irelands-psychiatric-hospitals-153608">mother and baby homes</a>, and the notorious Magdalene laundries. A series of high-profile disputes between the church and the state followed over the country’s reckoning with this legacy.</p>
<p>And so, in this light, a new style of referendum arguably emerged. Beginning in around 2012, referendums came to be used as part of a distinctive project of constitutional modernisation. There was an emphasis on removing or updating various parts of the constitution seen as archaic, oppressive or outdated. </p>
<p>This began with a referendum to enshrine children’s rights in 2012, followed by two very high-profile referendums to permit <a href="https://theconversation.com/explainer-irelands-world-first-popular-vote-on-gay-marriage-42033">marriage equality</a> and <a href="https://theconversation.com/ireland-votes-to-repeal-the-8th-amendment-in-historic-abortion-referendum-and-marks-a-huge-cultural-shift-97297">abortion</a> in 2015 and 2018. In 2018 and 2019, referendums were used to liberalise divorce law and <a href="https://www.tandfonline.com/doi/full/10.1080/07907184.2019.1584846">decriminalise blasphemy</a>.</p>
<p>These referendums were not simply a means of legislating. They were also part of a deeply symbolic and expressive project. They were understood not just as a route to changing the law, but as a way of asserting a new national identity and values. </p>
<p>They became a way of making collective statements about “who we are”. They were also a way both of reckoning with dark aspects of the past and forging a new national “brand” for the future.</p>
<p>It is true, of course that some of these liberalising referendums, which removed controversial aspects of a Catholic-influenced constitution, related to materially significant issues of sometimes existential importance. The referendum repealing notorious abortion restrictions in the constitution was certainly that. </p>
<p>On the other hand, there was, running through these referendums, a noticeable narrative about national image – both Ireland’s self-image, and its image externally. These constitutional changes were a way of making a statement – of crafting a new national identity. </p>
<p>The Irish people were putting distance between themselves and a conservative past, and even making the country a beacon of liberalism and progress in a troubled world. </p>
<p>Some of these liberalising referendums were, indeed, purely symbolic. The <a href="https://www.gov.ie/en/publication/c4aa51-the-referendum-relating-to-children/">children’s rights referendums</a> enacted some grandiose-sounding language about the human rights of children, but made almost no material difference to the lives of children in practice. The blasphemy referendum removed an arcane criminal offence which some regarded as having been effectively impossible to prosecute anyway.</p>
<h2>End of an era</h2>
<p>It’s in this context that we must understand the latest referendums. The 39th amendment proposed to reform <a href="https://www.irishstatutebook.ie/eli/cons/en/html#article41">article 41</a> of the Irish constitution to provide that a “family”, in constitutional law, could be based not only on marriage but also on “durable relationships”. Again, this was understood as liberalising and modernising a constitutional framework where only traditional marital families were given constitutional recognition. </p>
<p>The 40th amendment proposed to remove a controversial gendered provision of article 41, which recognises that, “by her life within the home, woman gives to the State a support without which the common good cannot be achieved”, and goes on to say: “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”</p>
<p>However, the amendment also added a vaguely worded new article on “care”, in which the state was to recognise the care provided “by members of a family to one another by reason of the bonds that exist among them” and pledging to “strive” to support that care.</p>
<p>In the course of the campaign, the opacity and uncertainty both of the phrases “durable relationship” and of “striving” to support care were widely criticised. They were also the subject of sometimes outlandish speculation bordering on disinformation – for example, the idea that recognition of “durable relationships” would enshrine legal rights for “throuples”, or affect inheritance.</p>
<p>Both amendments were roundly defeated, with an historic 73.9% rejecting the “care” proposal in particular. And while no exit polling gave any comprehensive account of why these referendums were defeated, what is clear is that the symbolic aspects of them – the mere signalling of values they represented – failed to resonate with the public.</p>
<p>These referendums showed the limits of the project of constitutional liberalisation that has been conducted since the great recession. It seems unlikely that the problem lay in this liberalisation “going too far”, or in a decisive conservative shift in public opinion. </p>
<p>Rather, the public was unenthused by the promise of mere recognition or of symbolic change, especially in a context of growing, and very concrete social problems that obviously require concrete material solutions. These referendum defeats are therefore likely to draw a line under a recent pattern of symbolic and “expressive” referendum use in Ireland.</p><img src="https://counter.theconversation.com/content/225550/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eoin Daly does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Leo Varadkar has been criticised for expecting the public to vote in favour of adding vague language to the constitution.Eoin Daly, Lecturer Above The Bar, School of Law, University of GalwayLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247302024-02-29T02:33:54Z2024-02-29T02:33:54ZCan Trump be prosecuted? Supreme Court will take up precedent-setting case to define the limits of presidential immunity<figure><img src="https://images.theconversation.com/files/578791/original/file-20240228-18-4t2s64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks to the media following his appearance at the District Court in Washington, D.C., on Jan. 9, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-to-the-media-at-news-photo/1912962647?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p><em>The U.S. Supreme Court announced on Feb. 28, 2024, that it <a href="https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html">will consider the momentous issue</a> of whether Donald Trump is immune from criminal prosecution, delaying the federal prosecution of the former president for his alleged efforts to subvert the 2020 election.</em> </p>
<p><em>A lower court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled on Feb. 6 that <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf">Trump could be prosecuted</a>, rejecting his claims of immunity. Trump appealed that ruling to the Supreme Court.</em></p>
<p><em><a href="https://scholar.google.com/citations?user=7cOGzcwAAAAJ&hl=en">Claire Wofford</a>, a political scientist who teaches constitutional law and American government at the College of Charleston, <a href="https://theconversation.com/trump-was-not-king-and-can-be-prosecuted-for-crimes-committed-while-president-appeals-court-places-limits-on-immunity-221843">analyzed that previous ruling for The Conversation</a>. Senior politics and democracy editor Naomi Schalit asked Wofford to answer questions here about the Supreme Court’s decision to consider the Trump immunity case.</em></p>
<p><strong>What question did the Supreme Court say it will address by taking this case?</strong></p>
<p>In agreeing to hear this case, the Supreme Court justices said they will decide whether or not Trump is immune from criminal prosecution by Special Counsel Jack Smith for his alleged attempt to overturn the results of the 2020 presidential election. Until that question is answered, Smith’s prosecution – which was <a href="https://www.npr.org/2024/02/28/1231974416/supreme-court-trump-immunity">already on hold</a> during the lower court deliberations – <a href="https://www.reuters.com/legal/us-supreme-court-decide-trump-criminal-immunity-claim-2020-election-case-2024-02-28/">cannot move forward</a>.</p>
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<a href="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a black jacket and red tie and walks down steps outside, flanked by two men also in suits." src="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump leaves a press conference following his appearance at the D.C. Appeals Court on Jan. 9, 2024. The court considered the claim that he is immune from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-departs-the-waldorf-news-photo/1913158135?adppopup=true">Kent Nishimura/Getty Images</a></span>
</figcaption>
</figure>
<p><strong>Is there something that’s not obvious about how the Supreme Court stated this question?</strong></p>
<p><a href="https://www.supremecourt.gov/orders/courtorders/022824zr3_febh.pdf">The precise phrasing</a> of the question the Supreme Court said it will answer is interesting: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The court stated it will answer not only whether Trump might have immunity but also “to what extent” that immunity exists. </p>
<p>This raises the possibility that rather than simply answer if Trump does or does not have immunity, the court may be looking to extend immunity to some of Trump’s actions and not others. It could also indicate that at least some justices believe future presidents should enjoy some immunity from criminal prosecutions for actions they took while in office, but that this should not extend to what it is alleged Trump did in this Jan. 6 case. </p>
<p>Making this kind of distinction – which the D.C. Circuit ruling did not – could explain why at least four justices on the Supreme Court agreed to hear the case. Rather than simply affirm – or reverse – the lower court, the justices may be interested in making a more nuanced ruling than the lower courts have done. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The top half of the Supreme Court building, including pillars, is seen on a gray day. The U.S. flag waves above it." src="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court is seen on Feb. 28, 2024, the day it announced that it would hear the case regarding former President Donald Trump’s immunity from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-february-28-2024-news-photo/2038351010?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>How will this affect the timing of the Jan. 6 prosecution?</strong></p>
<p>For now, the federal prosecution in the Jan. 6 case will remain on hold. </p>
<p>The Supreme Court has set oral arguments in the case for April 22, 2024, and would presumably issue a decision by June. That decision could be delayed, however, if the justices are not able to reach an agreement or one or more of them wish to write separate opinions. </p>
<p><strong>Is this going to be a historic decision?</strong></p>
<p>Absolutely. Even if the Supreme Court were to simply state that Trump does or does not have immunity from criminal prosecution, that alone would be a major new statement of constitutional doctrine. </p>
<p>If the justices go further and specify circumstances in which immunity would or would not apply to a former president, that would also be a very significant legal development. </p>
<p>In any event, given that the ruling will determine whether Smith’s federal case against Trump moves forward, the decision will likely make both legal and political history.</p><img src="https://counter.theconversation.com/content/224730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a case that will make legal and political history, the US Supreme Court will consider whether Donald Trump is immune from criminal prosecution for his alleged effort to undermine the 2020 election.Claire Wofford, Associate Professor of Political Science, College of CharlestonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223582024-02-06T18:57:10Z2024-02-06T18:57:10ZMore than 78 ‘friends’ of the Supreme Court offer advice on the 14th Amendment and Trump’s eligibility<figure><img src="https://images.theconversation.com/files/573765/original/file-20240206-32-y14p79.jpeg?ixlib=rb-1.1.0&rect=13%2C0%2C4336%2C2927&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">US President Donald Trump speaks to supporters from the Ellipse near the White House on Jan. 6, 2021, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-to-supporters-from-the-news-photo/1230450752?adppopup=true">Brendan Smialowski/AFP via Getty Images</a></span></figcaption></figure><p>Members of the U.S. Capitol Police targeted with “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">brutal violence</a>” on Jan. 6, 2021, <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf">25 historians of the U.S. Civil War and Reconstruction</a>, the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">San Francisco Taxpayers Association</a> and <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">dozens of other parties</a> have weighed in at the U.S. Supreme Court with their opinions about the case that has the potential to disqualify Donald Trump from the 2024 presidential election.</p>
<p>The justices will hear oral arguments in that case, <a href="https://www.oyez.org/cases/2023/23-719">Trump v. Anderson</a>, on Feb. 8. 2024. The plaintiffs, a group of Colorado voters, claim that under <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Section 3 of the 14th Amendment</a> to the U.S. Constitution, Trump is not constitutionally qualified to run for president because he “engaged in insurrection or rebellion” against the U.S. Constitution. When the Colorado Supreme Court ruled that Trump could not appear on that state’s ballot, Trump appealed the decision to the U.S. Supreme Court. </p>
<p>While the Supreme Court will ultimately determine Trump’s fate, the numerous parties who have chimed in aim to add context and additional arguments for the justices to consider. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of nine people in black robes, seated in two rows." src="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573767/original/file-20240206-29-d7iow2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court’s nine justices, who will determine whether the Constitution’s 14th Amendment bars presidential candidate Donald Trump from the ballot.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/justices-of-the-us-supreme-court-pose-for-their-official-news-photo/1243791674?adppopup=true">Olivier Douliery/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>78 amicus briefs</h2>
<p>As with many cases before appellate courts, and especially those before the Supreme Court, outside interested parties can file what are called an amicus brief. The filers are referred to as <a href="https://www.law.cornell.edu/wex/amicus">“amicus curiae,” Latin for a “friend of the court</a>.” They are not a party to the case but rather someone or a group who volunteer advice in a case before the court. </p>
<p>The purpose of amicus briefs varies. They can be used to share specialized knowledge with the courts. In their Trump v. Anderson amicus brief, constitutional law scholars <a href="https://law.yale.edu/akhil-reed-amar">Akhil Reed Amar of Yale Law School</a> and <a href="https://law.ucdavis.edu/people/vikram-amar">Vikram David Amar of University of California, Davis, School of Law</a> write about <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/295994/20240118094034746_Trump%20v%20Anderson.pdf">the history and significance</a> of the first insurrection, which occurred in the 1860s. They describe this as an effort to “prevent the lawful inauguration of duly elected Abraham Lincoln.” </p>
<p>Others file amicus briefs to advance or further an argument. Some may discuss the potential effects of possible decisions. All share a common thread: Amicus briefs are filed to help the court shape the ruling in the case.</p>
<p>In Trump v. Anderson, the amicus filers who support Trump filed 34 briefs. Filers who support Anderson, the plaintiff whose name is on the case, filed 30 briefs. In addition, 14 briefs were filed in support of neither party. </p>
<p>The total of 78 amicus briefs filed is lower than other recent and controversial cases before the Supreme Court. For instance, in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, the case that ultimately overturned the constitutional guarantee of a right to abortion, there were approximately 140 amicus briefs filed. In a recent affirmative action case, <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">Students for Fair Admissions Inc. v. Harvard</a>, which concluded that universities cannot use race as a consideration in admissions decisions, amici filed approximately 100 briefs. </p>
<p>While the total number of briefs filed in this case is notably lower, it is important to note that the Supreme Court expedited Trump v. Anderson, almost certainly because the presidential campaign is well underway. While normally there is a period of months to file amicus briefs in cases, the court’s expedited timeline directed amicus filers that they had less than four weeks to file their briefs. </p>
<h2>Constitutional or unconstitutional?</h2>
<p>In his amicus brief, U.S. Sen. Ted Cruz, a Republican from Texas and former presidential candidate himself, argues that the Colorado Supreme Court’s decision to remove Trump from its ballots was an <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">unconstitutional encroachment on Congress’ powers</a> </p>
<p><a href="https://www.c-span.org/person/?40188/MichaelLuttig">Former U.S. Appeals Judge J. Michael Luttig</a> was part of a group of amicus filers made up of “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299107/20240129171610494_23-719_Amici%20Brief.pdf">former officials</a> who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.” Their brief argues that the Supreme Court is well within its constitutional authority to determine the constitutional qualifications of the presidency, and that “Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly elected President.” </p>
<p>Constitutional law scholars such as Berkeley’s <a href="https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/#tab_profile">Erwin Chemerinsky</a> and Yale’s <a href="https://law.yale.edu/bruce-ackerman">Bruce Ackerman</a> argue in their filing that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299220/20240130143600068_23-719%20Amici%20BOM%20Floyd%20Abrams%20et%20al%20PDFA.pdf">Trump’s rhetoric is not protected by the First Amendment</a>. Thus, they write, the First Amendment should not affect how the court interprets and applies Section 3. </p>
<p>And the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/296994/20240118104059498_No.%2023-719_Brief.pdf">National Association for the Advancement of Colored People argues that the court</a> should give consideration to the 14th Amendment’s commitment to equal protection and multiracial democracy because the drafters of the amendment had a “practical concern about how insurrectionists would respect the rights of those whom they did not believe were entitled to rights.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of angry-looking people in front of the U.S. Capitol, a white-domed building." src="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573774/original/file-20240206-19-qzc24.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pro-Trump protesters gather in front of the U.S. Capitol on Jan., 6, 2021, in Washington, D.C. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-trump-protesters-gather-in-front-of-the-u-s-capitol-news-photo/1230457865?adppopup=true">Jon Cherry/Getty Images</a></span>
</figcaption>
</figure>
<h2>Unexpected friends</h2>
<p>Although legal scholars and politicians frequently file amicus briefs in cases, this case also generated significant interest from nontraditional amici. </p>
<p>An unspecified number of Capitol Police officers who fought against the rioters on Jan. 6, 2021, to protect senators and representatives argue that the First Amendment should not apply because Trump’s speech was <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299404/20240131142752665_Trump%20v.%20Anderson%20--%20Amicus%20Brief.pdf">“integral to unlawful activity</a>.”</p>
<p>The San Francisco Taxpayers Association’s brief claims that Trump is disqualified because, in addition to engaging in an insurrection, Trump also engaged in a “rebellion against the Constitution, by knowingly <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299385/20240131142241099_trump%20amicus%20brief..1.30.24.Final.pdf">disregarding the presidential oath of office</a>.” This rebellion, as they note, is a separate basis for disqualification under Section 3 of the 14th Amendment. </p>
<p>And international scholars who study democracies, political violence and the rule of law write that Trump’s actions following the November 2020 election “are alarmingly similar to activities that have <a href="http://www.supremecourt.gov/DocketPDF/23/23-719/299402/20240131142658027_2024.01.31%20Final%20Brief%20of%20Democracy%20Experts.pdf">destroyed democracies in other countries</a>.” </p>
<p>Even voters who say they “have a constitutional interest in a ballot” filed amicus briefs in this case. Voters in New Hampshire argue that all Americans have a constitutional right to “<a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299369/20240131133403242_Brief%2001%2031%2024.pdf">a ballot free of such an insurrectionist</a>” as Trump.</p>
<h2>‘Great peril’ for the nation</h2>
<p>Most of the amicus briefs in this case, however, reiterate the litigants’ core arguments. Trump’s supporters argue that Section 3 <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">does not apply to the office of the president</a>. Even if it did, they assert, Trump’s speech should be protected by the First Amendment. Moreover, they argue that Section 3 requires an act of Congress to enable its enforcement. </p>
<p>Anderson’s supporters who seek Trump’s disqualification argue that Section 3 does apply to the president. They also argue that <a href="https://theconversation.com/colorado-voters-seeking-to-disqualify-trump-from-the-ballot-tell-supreme-court-jan-6-will-forever-stain-us-history-221714">Trump engaged in an insurrection</a> as evidenced by the violence on Jan. 6, 2021. Further, they argue that Section 3 automatically applies unless Congress acts by removing the disqualification disability.</p>
<p>And both sides argue that the Supreme Court must decide the issue now because any delay will “<a href="http://www.supremecourt.gov/DocketPDF/23/23-719/297014/20240118112848137_23-719.Amicus.Foley.Ginsberg.Hasen.pdf">place the Nation in great peril”</a>. </p>
<p>Whether the Supreme Court relies on any of the amicus briefs is up to the justices’ discretion. But without any doubt, this case is monumental – likely more consequential than <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep531/usrep531098/usrep531098.pdf">Bush v. Gore</a>, which decided the outcome of the 2000 presidential election in George W. Bush’s favor. While the court’s self-imposed deadline to release its decision is the end of June, it is reasonable to expect a decision in this case sooner rather than later.</p><img src="https://counter.theconversation.com/content/222358/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>34 groups filed briefs with the Supreme Court in favor of keeping Donald Trump on the ballot, 30 favored disqualifying him as an insurrectionist, and 14 simply added legal information to the record.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2214602024-02-01T13:31:37Z2024-02-01T13:31:37ZWhy treason is a key topic in Trump’s 14th Amendment appeal to the Supreme Court<figure><img src="https://images.theconversation.com/files/572501/original/file-20240131-21-j0wp43.jpg?ixlib=rb-1.1.0&rect=23%2C14%2C3164%2C2107&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump's actions on Jan. 6, 2021, are key to questions about his eligibility to hold office.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/33b4d0015eee462d9656a3c4146731d5/photo">AP Photo/Jacquelyn Martin</a></span></figcaption></figure><p>As oral arguments approach in former President Donald Trump’s U.S. Supreme Court appeal of a Colorado Supreme Court decision, <a href="https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html">many friend-of-the-court briefs</a> <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">in the case</a> bring up a subject not much found in public discussion of the case: <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">treason</a>.</p>
<p>Trump is appealing a Colorado ruling that the 14th Amendment bars him from holding office because he engaged in insurrection before, during and after Jan. 6, 2021. That decision – and <a href="https://www.cnn.com/2024/01/20/politics/donald-trump-ballot-removal-efforts-dg/index.html">several others in states around the nation</a>, some agreeing and some disagreeing with Colorado’s conclusion – have roots in the Constitution’s definition of treason, and Congress’ intent to block traitors from serving in the government. </p>
<p>As a <a href="https://www.law.umaryland.edu/faculty--research/directory/profile/index.php?id=055">scholar of constitutional law</a>, I have submitted legal briefs in several of those cases, explaining the <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">history of the 14th Amendment’s drafting and passage</a>, and <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299332/20240131112542122_GRABER%20Amicus%20BRIEF%20filed.pdf">discussing what Republicans immediately after the Civil War hoped to attain from constitutional reform</a>.</p>
<h2>What did Congress intend?</h2>
<p><a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> reads:</p>
<blockquote>
<p>“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.”</p>
</blockquote>
<p>When Congress was drafting Section 3 of the 14th Amendment the year after the Civil War ended, the purpose of that provision was clear: to prevent people <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">from serving in the government</a> if they had used force to resist or overthrow the United States. To Congress, those actions constituted treason.</p>
<p>In drafting the language, Congress drew inspiration from the framers of the Constitution that was ratified from 1787 to 1789. Article III of the Constitution declares that there are two ways to commit treason against the United States: “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying War against</a> (the U.S.), or in adhering to (its) Enemies, giving them Aid and Comfort.”</p>
<p>Section 3 of the 14th Amendment, <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">passed by Congress and ratified by the states in the late 1860s</a>, makes the same division when describing the actions of people who should be barred from public office. There is one change: Republicans in Congress substituted the phrase “engaged in insurrection or rebellion” for “levying war.” </p>
<h2>A significant offense</h2>
<p>Treason has long been a serious crime, different from other crimes because the target was the government. </p>
<p>Since at least the 1760s, and almost certainly for centuries before that, English common law made clear that treason was not a regular crime like, say, murder: Someone who gave a weapon to a person knowing they intended to kill another person is an accessory to murder. But someone who gave a weapon to a person knowing they intended to commit treason is <a href="https://avalon.law.yale.edu/18th_century/blackstone_bk4ch3.asp">a traitor, not an accessory to treason</a>.</p>
<p>In short, treason is treason, and a person either engages in treason or does not. There are no degrees of treason.</p>
<p>This rule applied in the U.S. too: <a href="https://www.oyez.org/justices/samuel_chase">Samuel Chase</a>, who signed the Declaration of Independence and was appointed to the Supreme Court by George Washington, said so <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0009.f.cas/0009.f.cas.0924.pdf#page=16">in 1800</a>. His view was echoed <a href="https://famous-trials.com/burr/169-judgement">in 1807 by Chief Justice John Marshall</a> and in <a href="https://www.google.com/books/edition/The_Monthly_Law_Reporter/ti8ZAAAAYAAJ?hl=en&gbpv=1&dq=%E2%80%9D+the+law+knows+no+accessories+in+treason%3B+but+that+every+one+who,+if+it+were+a+felony,+would+be+an+accessory,+is,+in+the+law+of+treason,+a+principal+traitor.%E2%80%9D&pg=PA417&printsec=frontcover">1851 by Supreme Court Justice Benjamin Curtis</a>.</p>
<p>The rule was also reiterated in an 1863 case, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. v. Greathouse</a>, in which people were charged with treason for buying a ship and outfitting the vessel to break the U.S. blockade of Confederate ports. </p>
<p>Supreme Court Justice Stephen Field served on the bench of a lower federal court for that trial, as justices often did then. In directions to the jury, he declared, “all who aid … whether by open hostilities … or any part in the furtherance of the common object, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">however minute or however remote from the scene of action</a>, are equally guilty of treason.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A crowd of people climb the walls and stairs of the U.S. Capitol." src="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572503/original/file-20240131-27-fdc5sw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Violent protesters stormed the Capitol on Jan. 6, 2021.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SocialMediaConservativeVoices/1714e596e04b4367956e142598025532/photo">AP Photo/John Minchillo</a></span>
</figcaption>
</figure>
<h2>Two forms of treason</h2>
<p>In the Constitution’s Article III, and in the 14th Amendment, there are two ways a person can commit treason: by “<a href="https://constitution.congress.gov/constitution/article-3/#article-3-section-3-clause-1">levying war</a>” – which in the 14th Amendment is replaced with “<a href="https://constitution.congress.gov/browse/amendment-14/section-3/">engaged in insurrection or rebellion</a>” – or by giving “aid and comfort” to people determined to be “enemies” of the United States.</p>
<p>The distinctions were important enough for the Framers to make, and for Congress to repeat <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">in the late 1860s</a>, when the 14th Amendment was passed and ratified by the states.</p>
<p>But ever since the nation’s founding, the difference between those two has been clear, and it’s not whether a person took one treasonous action or another. Field made very clear the distinction is in the person’s nationality: By constitutional definition, <a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">U.S. citizens cannot be considered</a> “enemies of the United States.” They can only be viewed as rebels or insurrectionists. </p>
<p>In the Greathouse case, another federal judge, Ogden Hoffmann, served alongside Field. When Hoffmann spoke to the jury, he agreed with Field that the distinction between the two categories was whether the fighters were U.S. citizens or not. And he was clear that any treasonous action a person took was covered by either category:</p>
<blockquote>
<p>“<a href="https://law.resource.org/pub/us/case/reporter/F.Cas/0026.f.cas/0026.f.cas.0018.2.pdf">Every act which</a>, if performed with regard to a public and foreign enemy, would amount to ‘an adhering to him, giving him aid and comfort,’ will, with regard to a domestic rebellion, constitute a levying of war. And, conversely, every act which, with regard to domestic rebellion, will constitute ‘a levying of war,’ will, with regard to a foreign enemy, constitute ‘an adhering to him, giving him aid and comfort.’”</p>
</blockquote>
<h2>Trump’s defenders</h2>
<p>Many of those who support Trump have <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298133/20240118180130038_23-719_Amicus%20Brief.pdf">argued his actions don’t amount to engaging in insurrection</a>. They say that, therefore, he can’t be disqualified from office for that reason. </p>
<p><a href="https://www.supremecourt.gov/DocketPDF/23/23-719/297012/20240118111500480_23-719%20-%20Amicus%20Curiae%20Brief.pdf">Several of his allies</a> have even <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">pointed out</a> that <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">nobody has accused him of giving “aid and comfort”</a> to the insurrectionists. </p>
<p>At least one of those supporters has gone so far as to claim that the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298119/20240118165017246_Amicus%20Brief%20Final.pdf">failure to accuse him of “aid and comfort” is a reason to overturn</a> the Colorado ruling and declare Trump eligible to hold office.</p>
<p>Trump did not personally attack a police officer on Jan. 6, 2021, or aid and abet a foreign nation. In legal terms, then, Trump did not offer “aid and comfort” to “enemies” of the United States: The people he <a href="https://apnews.com/article/capitol-siege-florida-donald-trump-conspiracy-congress-040a763522081e592af10fae682fda70">urged to march on the Capitol</a> and <a href="https://www.cnn.com/2021/01/07/politics/trump-history-comments-trnd/index.html">said kind words to</a> may have been enemies of democracy. But like Trump himself, they were American citizens, and therefore, constitutionally speaking, could not be enemies of the United States. </p>
<p>Rather, they were insurrectionists. And as Hoffman’s 1863 statement makes clear, the constitutional law of treason does not differentiate between supporting them and being among them.</p><img src="https://counter.theconversation.com/content/221460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark A. Graber filed an amicus brief in the Colorado case, and another in the U.S. Supreme Court, that was technically in support of the voters seeking to block Trump from the ballot, but focused specifically on the history of Section 3 of the 14th Amendment.</span></em></p>US law has long held that those who support rebels and insurrectionists are just as guilty of treason as those who support foreign enemies.Mark A. Graber, University System of Maryland Regents Professor of Law, University of MarylandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213962024-01-19T01:58:08Z2024-01-19T01:58:08ZTrump defends himself to the Supreme Court, saying he called ‘for peace, patriotism, respect for law and order’ on Jan. 6 and is not an insurrectionist<figure><img src="https://images.theconversation.com/files/570080/original/file-20240118-23-m47epr.jpeg?ixlib=rb-1.1.0&rect=33%2C0%2C5553%2C3718&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S Supreme Court will decide whether former President Donald Trump can be kept off the 2024 presidential ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/4df6455230514c2b8f930927d90862af/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=4">AP Photo/Mariam Zuhaib</a></span></figcaption></figure><p>Filing late in the day to meet the Jan. 18, 2024, deadline, former President Donald <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf">Trump submitted a brief to the U.S. Supreme Court</a> that asked the justices to overturn the <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court’s decision</a> to remove him from that state’s primary ballot. </p>
<p>Norma Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had <a href="https://www.citizensforethics.org/wp-content/uploads/2023/09/Anderson-v-Griswold_Verified-Petition_2023.09.06_01.pdf">filed suit in September 2023</a> to keep Trump off the 2024 Colorado ballots. The plaintiffs argued that Trump was disqualified from public office because his “efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States.” Their arguments were based on <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a> of the Constitution, which bans insurrectionists from holding public office.</p>
<p>The <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">Colorado Supreme Court issued its ruling</a> in the case, originally known as Anderson v. Griswold, on Dec. 19. The Colorado justices concluded that Trump was disqualified from holding the office of the president because of his actions on Jan. 6, 2021, and they affirmed the trial court’s conclusion that Trump engaged in an insurrection. </p>
<p>“These actions constituted overt, voluntary, and direct participation in the insurrection,” <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">the court majority wrote</a>. </p>
<p>Trump faces more than a dozen similar <a href="https://www.axios.com/2024/01/07/trump-ballot-remove-14th-amendment-map">legal challenges to his candidacy in other states as well</a>, based on Section 3. Many complainants, jurists and constitutional law scholars argue that Trump is disqualified to hold office because he “engaged in insurrection or rebellion” against the U.S. based on his actions before, during and after the attack on the U.S. Capitol on Jan. 6, 2021.</p>
<p>Trump appealed the Colorado Supreme Court’s decision to the U.S. Supreme Court, and the justices agreed to consider the case. In his Jan. 18 brief, Trump presented a range of arguments for why the Colorado decision was wrong. Chief among them: He claimed that Section 3 of the 14th Amendment does not apply to the presidency and that he did not engage in an insurrection against the United States. </p>
<p>Describing his actions on Jan. 6, 2021, Trump’s brief says “Calling for peace, patriotism, respect for law and order, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark winter coat standing on a stage outside in front of a lot of people, with many American flags behind him." src="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570084/original/file-20240118-27-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Donald Trump speaks at the ‘Stop The Steal’ Rally on Jan. 6, 2021, in Washington.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-speaks-at-the-stop-the-steal-rally-news-photo/1294908917?adppopup=true">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>Officers and insurrections</h2>
<p>Trump’s brief attacks the Colorado Supreme Court’s “dubious interpretation of (S)ection 3 of the Fourteenth Amendment.” He argues that Section 3 does not apply to the presidency because the “President is not an ‘officer of the United States.’” Trump points to <a href="https://www.archives.gov/founding-docs/constitution-transcript">other parts of the Constitution</a> that use the term “Officer,” and he argues that an “Officer of the United States” only includes political appointees, such as the Secretary of State, and not anyone who is elected to an office. </p>
<p>There is merit to this argument, but Trump confuses the original intent of the Framers, when the Constitution was initially ratified, with the intent of the <a href="https://constitutioncenter.org/the-constitution/drafting-table-mobile/item/amendment-xiv">39th Congress that drafted the 14th Amendment</a> decades after the nation’s founding. Several constitutional law scholars argue that the 39th Congress did intend for Section 3 <a href="https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf">to apply to the presidency</a> because congressional records highlight senators’ and representatives’ specific comments that it should.</p>
<p>Whether Section 3 applies to the presidency is likely the first question that the Supreme Court will have to answer. While Trump also claims that he did not engage in an insurrection, the justices likely will not consider whether he did or not because the court generally does not disturb the factual conclusions of trial courts. </p>
<p>But the justices may have to consider the other legal questions that Trump raises. Trump argues that even if Section 3 applies to the presidency, it cannot be enforced because Congress has not passed a law to enforce it. But <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3946576">as a constitutional law scholar</a>, I believe that perhaps his strongest argument and the justices’ easiest legal question to answer turns to the plain text of Section 3, which states that it bars insurrectionists and rebels from holding office. It does not say anything about running for office.</p>
<h2>Bullets, not ballots</h2>
<p><a href="https://www.britannica.com/topic/Fourteenth-Amendment">The 14th Amendment, ratified in 1868</a>, is considered a “<a href="https://www.gilderlehrman.org/history-resources/essays/reconstruction-amendments-official-documents-social-history">Reconstruction Amendment</a>,” along with the 13th and 15th amendments. Congress and state legislatures ratified the Reconstruction Amendments in the years immediately following the end of the Civil War. Within that context, the drafters of the Reconstruction Amendments sought, among many things, to prevent Confederates from <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">serving in public office following their unsuccessful rebellion</a> against the Union. </p>
<p>Section 3 of the 14th Amendment says:</p>
<blockquote>
<p>“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 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.” </p>
</blockquote>
<p>With 15 commas, the meaning and application of Section 3 may confuse many readers. Constitutional law scholar Mark Graber provided a thorough discussion of each sentence fragment and clause in a <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">recent article for The Conversation</a>. In his summary of this section of the 14th Amendment, he says “These words in the amendment declare that those who turn to bullets when ballots fail to provide their desired result cannot be trusted as democratic officials.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A page from a legal document filed 'In the Supreme Court of the United States'" src="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570081/original/file-20240118-21-uh5p2k.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A page from the appeal by former President Donald Trump asking the U.S. Supreme Court to review the Colorado Supreme Court’s decision.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpColoradoInsurrectionAmendment/f1e2b09db9de4b658048c40c6627b9cf/photo?Query=Trump%20colorado%20ballot&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=268&currentItemNo=5">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<h2>Settling the unsettled</h2>
<p>The Supreme Court agreed to consider Trump’s appeal in early January 2024 because whether Trump is constitutionally qualified to serve as the president of the United States again is a critical question in an area of law that is not settled. While the Supreme Court <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10569">considered some general cases of insurrection and rebellion</a> following the Civil War, the Supreme Court has never faced this specific question regarding Section 3.</p>
<p>The Supreme Court will consider whether the Colorado Supreme Court erred in ordering the former president excluded from the 2024 presidential primary ballot.</p>
<p>But this specific question also presents a number of related legal questions that the Supreme Court could also decide, ranging from whether Section 3 applies to the presidency to whether Section 3 only prohibits a candidate from serving in office as opposed to appearing on any ballot. Then, of course, there is the factual issue as to whether the former president “engaged in an insurrection or rebellion” against the United States.</p>
<p>The Supreme Court will hear oral arguments in <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">Trump v. Anderson on Feb. 8, 2024</a>.</p><img src="https://counter.theconversation.com/content/221396/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>No conflicts.</span></em></p>The first shoe has dropped in the Supreme Court’s process of considering whether Donald Trump is eligible to be president.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2146282023-11-29T13:38:28Z2023-11-29T13:38:28ZLGTBQIA+ sanctuary declarations help cities take a stand to defend rights – but may not have much actual legal impact<figure><img src="https://images.theconversation.com/files/560848/original/file-20231121-25-54tmre.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Minnesotans hold a rally at the state capitol in St. Paul to support trans kids in March 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/st-paul-minnesota-march-6-2022-because-the-attacks-against-news-photo/1385207884?adppopup=true">Michael Siluk/UCG/Universal Images Group via Getty Images</a></span></figcaption></figure><p>Several <a href="https://thenationaldesk.com/news/americas-news-now/naacp-joins-other-civil-rights-groups-in-issuing-travel-advisory-for-florida-national-association-for-the-advancement-of-colored-people-diversity-equity-and-inclusion-african-american-studies-history-people-of-color-lgbtq-rights-civil-rights-policy-guns">cities and towns</a>, mostly in the American Midwest and South, are responding to a surge of proposed and approved legislation that restricts gay and transgender people’s rights by declaring they are “sanctuaries” for people who identify as LGBTQIA+. </p>
<p>States like Alabama, Texas, Florida, North Dakota and Montana have <a href="https://www.aclu.org/legislative-attacks-on-lgbtq-rights">passed 84 laws</a> <a href="https://apnews.com/article/lgbtq-laws-states-gender-affirming-zephyr-fc2528326823c8232cb0aaa7ece0beab">in 2023 alone</a> that restrict LGBTQIA+ rights, primarily targeting transgender kids. </p>
<p>Some of these laws require teachers to <a href="https://www.nbcnews.com/nbc-out/out-politics-and-policy/north-dakota-advances-record-setting-10-anti-lgbtq-bills-one-day-advoc-rcna78311">call trans students by the name and pronoun</a> they were assigned at birth, for example, and <a href="https://apnews.com/article/desantis-florida-dont-say-gay-ban-684ed25a303f83208a89c556543183cb">prohibit any students</a> from discussing sexual orientation or gender identity. </p>
<p>In September 2023, the small town of Lake Worth Beach, Florida, was the latest to say that it was “a safe place, a sanctuary, a <a href="https://www.usatoday.com/story/news/nation/2023/09/07/lgbtq-sanctuary-city-florida/70789322007/">welcoming and supportive city</a> for LGBTQIA+ individuals and their families to live in peace and comfort.” </p>
<p>At least 15 states and cities have dubbed themselves <a href="https://www.lgbtmap.org/equality-maps/healthcare/trans_shield_laws">LGBTQIA+ sanctuaries</a> over the last several years.</p>
<p>Sanctuaries are generally considered local refuges, where people who are afraid of persecution or discrimination have legal immunity from particular government policies or laws. </p>
<p>As a <a href="http://jfinn.faculty.wesleyan.edu/">scholar of constitutional law</a> and a student of sanctuary movements, I think that sanctuary declarations of all kinds raise important questions of constitutional law. </p>
<p>The most difficult is the question of whether and when these declarations violate the U.S. Constitution by placing state or local law above federal law.</p>
<p>The short answer is that it depends on what these declarations actually promise. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People hold signs that say 'Love is love,' and 'say gay loud!' Some of the people wear large yellow wigs." src="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560853/original/file-20231121-4697-40ulzc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest Florida’s anti-LGBTQIA laws during a pride parade in Wilton Manors in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-protesting-against-florida-gov-ron-desantis-and-news-photo/1499333323?adppopup=true">Joe Raedle/Getty Images</a></span>
</figcaption>
</figure>
<h2>Sanctuaries’ history in the US</h2>
<p>Sanctuaries are a long-standing part of the United States’ constitutional history. </p>
<p><a href="https://www.lirs.org/news/what-are-sanctuary-cities-and-why-do-they-exist-lirs/">In the 1980s,</a> for example, Los Angeles, Chicago and Boston, among other places, said they would <a href="https://cis.org/Map-Sanctuary-Cities-Counties-and-States">not cooperate with federal immigration</a> officials trying to deport Central American migrants. These cities’ representatives said the migrants were eligible for asylum and had fear of returning to their homelands because of persecution – but federal judges still did not give them the right to stay in the U.S. </p>
<p>More recent examples include the proliferation of <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">Second Amendment sanctuaries</a> <a href="https://www.bradyunited.org/act/second-amendment-sanctuaries">in local towns and counties</a> in 42 states, which say they will not enforce a variety of federal gun laws. </p>
<p>Now, Tallahassee, Florida, is among the places that is considering <a href="https://gray-wctv-prod.cdn.arcpublishing.com/video/2023/07/14/tallahassee-residents-push-mayor-make-capital-sanctuary-city-lgbtq/">declaring itself a LGBTQIA+ sanctuary</a>. Other places – <a href="https://www.vice.com/en/article/g5qk7w/austin-texas-trans-kids-sanctuary-city">including Austin, Texas</a> and <a href="https://www.latimes.com/world-nation/story/2023-05-12/kansas-city-declares-lgbtq-sanctuary-city">Kansas City, Missouri</a> – have also made themselves LGBTQIA+ sanctuaries over the last few years.</p>
<p>Most of the sanctuaries focus on the rights and protection of trans kids and their families, in particular.</p>
<p>In some places, like Austin, the aim is to create a “safe place, a sanctuary, for <a href="https://www.kxan.com/news/local/austin/leaders-to-declare-austin-a-safe-and-inclusive-city-for-transgender-families/">transgender children and their families.”</a> In Kansas City, the intent is to make the city “a sanctuary for people seeking or <a href="https://apnews.com/article/sanctuary-city-lgbtq-kansas-city-resolution-bccdd5c33818bf9c1270ef2af63e393e">providing gender-affirming care.”</a> </p>
<h2>Are they legal?</h2>
<p>Sanctuary declarations raise important and difficult questions of constitutional law, especially when they claim immunity from federal laws or the U.S. Constitution. That’s because the Constitution <a href="https://constitution.congress.gov/constitution/article-6/">contains Article 6</a>, commonly known as the supremacy clause, which says that the Constitution and federal laws trump any state or local law. </p>
<p>The supremacy of the Constitution to state and local laws is a key part of how the U.S. government works. It means that state and local governments must act within the confines of the Constitution, even when state or local lawmakers disagree with federal law. </p>
<p>So, does the Constitution allow <a href="https://www.hrc.org/press-releases/roundup-of-anti-lgbtq-legislation-advancing-in-states-across-the-country">places to say that they will not follow</a> discriminatory laws, such as those that prevent trans students or faculty from use of the restrooms that match their gender identity?</p>
<p>The answer often depends on a sanctuary declaration’s precise wording and meaning.</p>
<p>Some sanctuary declarations, like the <a href="https://thehill.com/homenews/lgbtq/4192088-this-town-is-floridas-first-lgbtq-sanctuary-city/">Lake Worth Beach resolution</a>, are simply rhetorical statements of support or opposition to a particular cause or policy. They have little or no legal consequences. </p>
<p>Others, like some <a href="https://theconversation.com/sanctuaries-protecting-gun-rights-and-the-unborn-challenge-the-legitimacy-and-role-of-federal-law-122988">Second Amendment resolutions</a>, announce that local officials, often sheriffs or other law enforcement personnel, will not enforce or comply with laws restricting guns that they regard as unconstitutional. </p>
<p>In these sorts of cases, the proclaimed sanctuaries directly challenge what the Constitution says, specifically that the Constitution and federal laws are <a href="https://constitution.congress.gov/constitution/article-6/">“the supreme Law of the Land”</a>. State laws or laws passed by lower levels of government cannot overrule them.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Children wear rainbows on their shirts and dance in front of people also wearing rainbows and waving rainbow flags." src="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560856/original/file-20231121-19-vf2yk4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People dance during a drag story time in Austin, Texas, in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-dance-during-a-drag-time-story-hour-at-the-waterloo-news-photo/1497480212?adppopup=true">Brandon Bell/Getty Images</a></span>
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</figure>
<h2>Devil is in the details</h2>
<p>It is important to note, however, that not all sanctuary declarations violate Article 6. </p>
<p>When it comes to whether sanctuaries declared by states, cities or small towns are legal, the devil is in the details – as with most things concerning the Constitution. </p>
<p>A sanctuary resolution that only says that local officials disagree about what the Constitution means or requires, without pledging to break federal law, is simply <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does">freedom of expression</a>. </p>
<p>Consequently, a claim of sanctuary for LGBTQIA+ people that simply declares a city or a town a safe and welcoming space, without calling for anything else or any kind of direct violation of federal law, is constitutionally protected. This is what the Lake Worth City <a href="https://www.wptv.com/news/region-c-palm-beach-county/lake-worth/city-of-lake-worth-beach-now-lgbtq-sanctuary-city">sanctuary declaration does</a>. </p>
<p>A more complex case arises when sanctuary spaces claim immunity not from federal law, but rather from state or local laws that impede a certain group of people’s rights. These kinds of sanctuary declarations do not ordinarily challenge the authority of Article 6 or the Constitution, in general, because the sanctuary claim is made against state laws, not federal law or the Constitution.</p>
<p>Indeed, in many such instances, these sanctuaries seek to protect people’s federal civil liberties and rights against discriminatory state laws. This is what the <a href="https://www.palmbeachpost.com/story/news/local/lakeworth/2023/09/07/what-is-an-lgbtq-sanctuary-city-lake-worth-beach-just-became-one/70774974007/">Lake Worth Beach resolution</a> and other <a href="https://www.nbcnews.com/nbc-out/out-politics-and-policy/kansas-city-declares-lgbtq-sanctuary-city-rcna84126">LGBTQIA+ resolutions do</a>. </p>
<p>These sanctuaries actually reinforce the Constitution’s authority by insisting upon the power of people’s basic, constitutional principles and rights over discriminatory state laws.</p>
<p>Sanctuaries that promise a safe space for people who identify as part of the LGBTQIA+ community do not undermine federal constitutional law. </p>
<p>Instead, they seek to make good on the Constitution’s commitments to equality and human dignity against discriminatory policies. Unlike some sanctuary resolutions, most LGBTQIA+ sanctuaries do not threaten the Constitution – they celebrate it by insisting upon the supremacy of basic constitutional rights and principles without violating Article 6.</p><img src="https://counter.theconversation.com/content/214628/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Finn is Professor Emeritus of Government at Wesleyan University.</span></em></p>The question of whether local declarations offering sanctuary for LGBTQIA+ people place local law above federal law depends on what the statements actually promise.John E. Finn, Professor Emeritus of Government, Wesleyan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2126822023-10-02T19:08:13Z2023-10-02T19:08:13ZSaskatchewan’s revised policy for consulting Indigenous nations is not nearly good enough<iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/saskatchewans-revised-policy-for-consulting-indigenous-nations-is-not-nearly-good-enough" width="100%" height="400"></iframe>
<p>The Government of Saskatchewan announced its revised <a href="https://www.saskatchewan.ca/government/news-and-media/2023/august/11/revised-2023-first-nation-and-metis-consultation-policy-framework-released">framework for consultation with First Nation and Métis communities</a> in August 2023. This framework sets out the provincial government’s latest approach to fulfilling its constitutional duty to consult and accommodate Indigenous Peoples. However, Indigenous leaders <a href="https://www.cbc.ca/news/canada/saskatchewan/sask-policy-indigenous-1.6934724">say the changes do not go far enough</a>. </p>
<p>This is the first time changes have been made to the <a href="https://www.saskatchewan.ca/residents/first-nations-citizens/duty-to-consult-first-nations-and-metis-communities/first-nation-and-metis-consultation-policy-framework-review-and-revised-policy">consultation framework</a> in 13 years. While a few changes will come into effect in January of 2024, in substance, this policy advances the same 15-year-old framework for consultation from 2008, which was <a href="https://ammsa.com/publications/saskatchewan-sage/duty-consult-key-priority-fsin">rejected then</a> by First Nations in Saskatchewan and has again been <a href="https://regina.ctvnews.ca/sask-government-unveils-new-indigenous-consultation-framework-fsin-rejects-it-1.6516134">rejected now</a>.</p>
<p>Yet this is just one document that speaks to far deeper issues and must be placed in a broader context, especially as we recently marked <a href="https://www.rcaanc-cirnac.gc.ca/eng/1631130192216/1631130220404">the National Day for Truth and Reconciliation</a> on Sept. 30.</p>
<p>The Truth and Reconciliation Commission’s 94 <a href="https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Calls_to_Action_English2.pdf">Calls to Action</a> call on all levels of government to support a new policymaking framework for the country. Some Canadian jurisdictions are making efforts to break away from colonial mentalities by developing policies in true partnership with Indigenous Peoples. Yet, in Saskatchewan, there is little evidence of any similar progress. </p>
<h2>Sticking with the status quo</h2>
<p>Careful readers might spot <a href="https://www.mltaikins.com/indigenous/saskatchewan-announces-new-first-nation-and-metis-consultation-policy-framework/">slight differences</a> between the revised version and Saskatchewan’s earlier provincial frameworks. Timelines have been tweaked, a new chart has been added and a central role for the Ministry of Government Relations has been clarified. </p>
<p>Yet stepping back from the minutiae, the provincial government’s approach to Indigenous consultation largely preserves the status quo — a standard that is out-of-step with the <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)</a> and broader trends in Canadian and international law. It also fails to acknowledge or make any concessions to the distinct perspectives of the Indigenous Peoples of this land.</p>
<p>The TRC called for Canada to adopt UNDRIP as its framework for policy development. This could help set in motion a new era of policymaking that reorients us toward reconciliation. UNDRIP affirms the <a href="https://www.hilltimes.com/story/2018/01/10/legislative-framework-essential-un-declaration-response/271733/">minimum standards</a> for the survival, dignity, security and well-being of Indigenous Peoples. </p>
<p>Both the <a href="https://www.justice.gc.ca/eng/declaration/index.html">federal government</a> and <a href="https://www2.gov.bc.ca/gov/content/governments/indigenous-people/new-relationship/united-nations-declaration-on-the-rights-of-indigenous-peoples">British Columbia</a> have enacted legislation to implement UNDRIP. But similar action in other Canadian jurisdictions remains slow or non-existent.</p>
<p>Saskatchewan’s government has so far avoided engaging with UNDRIP in its policymaking processes. Notably, the UN declaration is absent from its revised consultation framework. </p>
<h2>Leaving it up to the courts</h2>
<p>The government of Saskatchewan <a href="https://www.saskatchewan.ca/government/news-and-media/2023/august/11/revised-2023-first-nation-and-metis-consultation-policy-framework-released">says the revised policy reflects its dedication</a> to “building positive relationships, honouring Aboriginal and Treaty rights, and supporting economic reconciliation.” </p>
<p>However, the policy primarily summarizes principles from case law on the duty to consult Indigenous Peoples. If the framework was simply intended as legal advice for civil servants to help them avoid lawsuits, that would be one thing. But the framework purports to serve a more ambitious goal: facilitating “<a href="https://www.saskatchewan.ca/government/public-consultations/past-consultations/first-nation-and-metis-consultation-policy-framework-engagement">mutually beneficial relationships</a>” with Indigenous Peoples. </p>
<p>Case law and legal precedent reflect specific disputes based on the specific facts that give rise to them. They cannot be used to design entire policy frameworks from the ground up. Relying almost entirely on the existing case law as a framework for relationship-building with Indigenous Peoples is misguided. </p>
<p>When it comes to the duty to consult and accommodate, the courts define the minimum legal standards within which other branches of government must operate. In other words, they clarify a constitutional floor below which the executive and legislative branches cannot sink. But this is very different from dictating what policies and consultations <em>should</em> look like. </p>
<p>In <a href="https://canlii.ca/t/1fsvj"><em>R. v. Sparrow</em></a>, the Supreme Court of Canada described Canada’s constitutional provision for Aboriginal and Treaty rights, <a href="https://www.constitutionalstudies.ca/2021/09/section-35-aboriginal-and-treaty-rights/">section 35</a>, as “a solid constitutional base upon which subsequent negotiations can take place.” </p>
<p>In <a href="https://canlii.ca/t/1j4tq"><em>Haida Nation v. British Columbia</em></a>, the court described section 35 as “a promise of rights recognition” that requires “honourable negotiation,” as well as consultation and accommodation. The Supreme Court has always been clear that the judicial role in reconciliation is a limited one.</p>
<p>More recently, the B.C. Court of Appeal made a similar point in <a href="https://canlii.ca/t/jfdlx"><em>Ahousaht Indian Band and Nation v. Canada</em></a>, a case on commercial fishing rights. It stated that a court has no capacity to “design a fishery.” At most, it can provide legal guidance to assist Indigenous Peoples and Canadian governments in crafting regulations that respect Indigenous rights. </p>
<p>Courts cannot and will not design the laws and policies that are required for a positive, just political relationship. It is up to the federal and provincial governments to work with Indigenous Peoples to build a harmonious relationship or <a href="https://teaching.usask.ca/curriculum/indigenous_voices/land-agreements/conclusion.php">miyo-wîcêhtowin</a>.</p>
<h2>Implementing UNDRIP</h2>
<p>Saskatchewan’s approach may be setting the province up for greater risk as well. The case law it relies on shifts and the policy itself can be challenged before the courts. For example, the Métis Nation—Saskatchewan is <a href="https://saskatoon.ctvnews.ca/this-must-and-will-change-metis-nation-sask-takes-province-to-court-over-consultation-policy-1.5107369">actively challenging</a> the policy’s restriction against consultation on Aboriginal title claims.</p>
<p>Likewise, Carry the Kettle Nakoda Nation in Treaty 4 territory is <a href="https://www.aptnnews.ca/national-news/ottawa-saskatchewan-government-sued-treaty-rights/">pursuing a claim</a> that no further development can take place in their traditional territory without their consent, as there is almost no land left on which they can freely exercise their treaty rights. A <a href="https://blueberryfn.com/where-happiness-dwells/">similar case</a> succeeded in B.C. in 2021.</p>
<p>Either of these cases could single-handedly raise the floor for consultation and accommodation in Saskatchewan, requiring more meaningful revisions to provincial policy and laws. There can be no certainty in sticking to minimum standards that could be upended at any time. </p>
<p>What is the alternative? As the Supreme Court of Canada noted in <a href="https://canlii.ca/t/g7mt9"><em>Tsilhqot'in Nation v. British Columbia</em></a>, the best way to avoid lawsuits is to obtain Indigenous Peoples’ consent. Saskatchewan can follow B.C.’s lead by negotiating nation-specific, consent-based processes in line with UNDRIP.</p>
<p>UNDRIP reflects key principles of <a href="https://doi.org/10.1007/978-3-030-98351-2_5">customary international law</a>, which are <a href="https://canlii.ca/t/j5k5j">directly binding in Canadian courts</a> and therefore highly relevant to Canadian policymaking.</p>
<p>Saskatchewan has been a policy leader in many fundamental areas, with <a href="https://www.canada.ca/en/health-canada/services/health-care-system/reports-publications/health-care-system/canada.html">universal health care</a> often mentioned as one of its gifts to Canada. In the 1970s, for a short time, First Nations and the provincial government worked together to create policies on reconciliation that led to <a href="http://www.otc.ca/pages/education.html">agreements on education</a> and laid the foundation for <a href="https://teachers.plea.org/resources/from-dream-to-reality-the-story-of-treaty-land-entitlement/overview">resolving treaty land entitlement claims</a>. </p>
<p>Rather than treating Indigenous nations as political adversaries, the government appreciated the <a href="https://uofrpress.ca/Books/B/Back-to-Blakeney2">importance of partnership and consultation</a>. Saskatchewan’s current provincial government must do more than the bare minimum required by courts and legal precedent. It must work with Indigenous nations on a shared vision for the future that is more likely to withstand the tests of time and litigation.</p><img src="https://counter.theconversation.com/content/212682/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kathy Walker has volunteered for Saskatchewan NDP and federal Liberal party candidates in Saskatchewan in two elections.</span></em></p><p class="fine-print"><em><span>Benjamin Ralston does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Saskatchewan’s provincial government must work with Indigenous nations on a shared vision for the future that is more likely to withstand the tests of time and litigation.Benjamin Ralston, Assistant Professor, College of Law, University of SaskatchewanKathy Walker, Assistant Professor, Department of Political Studies, University of SaskatchewanLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2134322023-09-12T19:58:20Z2023-09-12T19:58:20ZRepublicans call for impeachment inquiry into Biden – a process the founders intended to deter abuse of power as well as remove from office<p>Yielding to pressure from <a href="https://www.bloomberg.com/news/articles/2023-09-12/mccarthy-hardliner-dilemma-resounds-from-impeachment-to-ukraine">hard-line members of the GOP House</a> caucus, on Sept. 12, 2023, U.S. House Speaker Kevin McCarthy directed the top Republicans in Congress to open a <a href="https://www.theguardian.com/us-news/2023/sep/11/biden-impeachment-inquiry-abject-failure-report">formal impeachment inquiry</a> into President Joe Biden. The Republicans allege that the president committed financial wrongdoing with foreign businesses.</p>
<p>GOP-led congressional <a href="https://www.nytimes.com/2023/09/12/us/politics/mccarthy-biden-impeachment-inquiry.html">inquiries of presidential son Hunter Biden’s records</a> to date <a href="https://www.theguardian.com/us-news/2023/sep/11/biden-impeachment-inquiry-abject-failure-report">have not shown any foreign payment</a> to his father, Joe Biden, or any other evidence of wrongdoing. </p>
<p>But McCarthy said in brief remarks on Sept. 12, 2023, “Taken together, these allegations paint a picture of a culture of corruption.”</p>
<p>Although impeachment inquiries can be misused, those concerned about McCarthy’s actions should consider words spoken at the Constitutional Convention, when the founders explained that impeachment was intended to have many important purposes, not just removing a president from office. </p>
<p>A critical debate took place on July 20, 1787, which resulted in adding the impeachment clause to the U.S. Constitution. Benjamin Franklin, the oldest and probably wisest delegate at the convention, said that when the president falls under suspicion, a “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">regular and peaceable inquiry</a>” is needed.</p>
<p>In my work as a <a href="http://www.clarkcunningham.org/">law professor</a> studying <a href="https://www.washingtonpost.com/politics/2019/01/29/big-trump-case-hinges-definition-emoluments-new-study-has-bad-news-him/">original texts</a> about the U.S. Constitution, I’ve found statements made at the Constitutional Convention explaining that the founders viewed impeachment as a regular practice with three purposes: </p>
<ul>
<li>To remind both the country and the president that he is not above the law. </li>
<li>To deter abuses of power. </li>
<li>To provide a fair and reliable method to resolve suspicions about misconduct.</li>
</ul>
<p>The convention delegates repeatedly agreed with the assertion by George Mason of Virginia that “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">no point is of more importance</a> … than the right of impeachment” because no one is “above justice.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294441/original/file-20190926-51425-1fa1c8y.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason of Virginia.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason_portrait.jpg">Library of Congress/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Need for deterrence</h2>
<p>One of the founders’ greatest fears was that the president would abuse his power. George Mason described the president as the “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">man who can commit the most extensive injustice</a>.” </p>
<p>James Madison thought the president might “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">pervert his administration</a> into a scheme of stealing public funds or oppression or <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">betray his trust to foreign powers</a>.” Edmund Randolph, governor of Virginia, said the president “will have <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=70">great opportunitys of abusing his power</a>; particularly in time of war when the military force, and in some respects the public money will be in his hands.” </p>
<p>Gouverneur Morris of Pennsylvania worried that the president “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">may be bribed by a greater interest to betray his trust</a> and no one would say that we ought to expose ourselves to the danger of seeing him in foreign pay.” James Madison, himself a future president, said that in the case of the president, “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">corruption was within the compass of probable events</a> … and might be fatal to the Republic.” </p>
<p>William Davie of North Carolina argued that impeachment was “an essential security for the good behaviour” of the president; otherwise, “he will spare no efforts or means whatever to <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=67">get himself re-elected</a>.” Elbridge Gerry of Massachusetts pointed out that a good president will not worry about impeachment, but a “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=69">bad one ought to be kept in fear</a>.” </p>
<h2>Creating a powerful oversight procedure</h2>
<p>Until the very last week of the convention, the founders’ design was for the impeachment process to <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=432">start in the House of Representatives and conclude with trial in the Supreme Court</a>. </p>
<p>It was not until Sept. 8, 1787, that the convention <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=557">voted to give the Senate instead the power to conduct impeachment trials</a>. </p>
<p>This is clear evidence that the convention at first wanted to combine the authority and resources of the House of Representatives to conduct the impeachment investigation – a body they called “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=159">the grand Inquest of this Nation</a>” – with the fairness and power exemplified by trial in a court. </p>
<p>Even though trial of impeachments was moved from the Supreme Court to the Senate, Congress can still draw on the example of court procedures to accomplish an effective inquiry, especially if they are trying to get information from uncooperative subjects. In many of the investigations that are now part of the House’s impeachment inquiry, the <a href="https://www.washingtonpost.com/graphics/2019/politics/trump-blocking-congress/">Trump administration has refused</a> to hand over documents and blocked officials from testifying to Congress.</p>
<p>The Constitution makes clear that impeachment is not a criminal prosecution: “<a href="https://www.law.cornell.edu/constitution/articlei">Judgment in cases of impeachment shall not extend further than to removal from office</a>.” </p>
<p>If impeachment trials had remained at the Supreme Court, the court could therefore have consulted the rules it has approved for civil cases. It makes sense that when the convention at the last minute decided Congress would have complete power over impeachment, the delegates intended Congress would have at least the same powers the Supreme Court would have exercised.</p>
<h2>When courts are stonewalled</h2>
<p>In civil cases, courts have powerful tools for dealing with someone who blocks access to the very information needed to judge the allegations against him.</p>
<p>The most commonly known method is the rule that says that once a person is legally served with a lawsuit against them, they must respond to the complaint. If they don’t, the court can <a href="https://www.law.cornell.edu/rules/frcp/rule_55">enter a judgment</a> against them based on the allegations in the complaint. But there are other processes as well.</p>
<p>One court tool that could easily be adapted to the impeachment process comes from the federal rules of civil procedure. In a process called “<a href="https://www.law.cornell.edu/rules/frcp/rule_36">request for admission</a>,” one party to a lawsuit can give their opponents a list of detailed factual allegations with a demand for a response.</p>
<p>If the party does not respond, the court can treat each allegation as if it were true, and proceed accordingly. If the respondent denies one or more particular allegations, there is a follow-up procedure called a <a href="https://www.law.cornell.edu/rules/frcp/rule_34">request for production</a>, demanding any documents in their possession or control supporting the denial. If the respondent refuses, again the court has the power to order that the alleged fact be taken as true. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=734&fit=crop&dpr=1 600w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=734&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=734&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=923&fit=crop&dpr=1 754w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=923&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/294443/original/file-20190926-51438-chhu7p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=923&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Benjamin Franklin of Pennsylvania.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Benjamin_Franklin_by_Joseph_Duplessis_1778.jpg">Joseph Duplessis/National Portrait Gallery/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Good for the president and the country</h2>
<p><a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=70">Benjamin Franklin told his fellow delegates the story</a> of a recent dispute that had greatly troubled the Dutch Republic. </p>
<p>One of the Dutch leaders, William V, the Prince of Orange, was suspected to have secretly sabotaged a critical alliance with France. The Dutch had no impeachment process and thus no way to conduct “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">a regular examination</a>” of these allegations. These suspicions mounted, giving rise to “the <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71&">most violent animosities & contentions</a>.”</p>
<p>The moral to Franklin’s story? If Prince William had “been impeachable, a regular & peaceable inquiry would have taken place.” The prince would, “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=71">if guilty, have been duly punished – if innocent, restored to the confidence of the public</a>.”</p>
<p>Franklin concluded that impeachment was a process that could be “<a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">favorable</a>” to the president, saying it is the best way to provide for “the <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">regular punishment</a> of the Executive when his misconduct should deserve it and for his <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=68">honorable acquittal</a> when he should be unjustly accused.”</p>
<p><em>Editor’s note: This is an updated version of an article originally published Sept. 26, 2019.</em></p><img src="https://counter.theconversation.com/content/213432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Clark D. Cunningham does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The founders of the United States viewed impeachment as a way to remind the country and president that he is not above the law and to deter abuses of power.Clark D. Cunningham, Professor of law and ethics, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2116492023-08-16T17:48:11Z2023-08-16T17:48:11ZWhere will Trump go on trial first? How federal and state prosecutors and judges work out conflicts<figure><img src="https://images.theconversation.com/files/542856/original/file-20230815-29-t4edqh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County District Attorney Fani Willis holds a press conference after the grand jury voted to indict former President Donald Trump on Aug. 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-district-attorney-fani-willis-holds-a-press-news-photo/1600218311?adppopup=true">Christian Monterrosa/AFP via Getty Images </a></span></figcaption></figure><p>If a person is charged by federal and state prosecutors – or prosecutors in different states – at the same time, which case goes first? </p>
<p>A county grand jury in Atlanta indicted former President Donald Trump and 18 associates on Aug. 14, 2023, <a href="https://www.nytimes.com/interactive/2023/08/15/us/politics/trump-georgia-indictment-annotated.html">on a collective 41 felony counts</a>, including racketeering and forgery. The charges are linked to Trump’s alleged criminal conspiracy <a href="https://www.theguardian.com/us-news/2023/aug/14/georgia-trump-2020-fulton-county-case-explained">to overturn</a> the 2020 election results.</p>
<p>The latest, sweeping state charges come on top of other mounting legal trouble Trump is facing at the state and federal levels.</p>
<p>Manhattan District Attorney Alvin Bragg first <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">charged Trump</a> in April 2023 with 34 felony counts of falsifying business records. </p>
<p>Then, in June 2023, the Justice Department indicted Trump on multiple criminal charges related to <a href="https://theconversation.com/trump-indictment-unsealed-a-criminal-law-scholar-explains-what-the-charges-mean-and-what-prosecutors-will-now-need-to-prove-207469">withholding classified government documents</a>. One month later, the Justice Department indicted Trump again on <a href="https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf">unrelated felony charges</a> regarding his alleged attempts to overturn the 2020 presidential election results.</p>
<p>Trump’s first trial, related to the New York business documents case, is scheduled to begin in March 2024. His federal classified documents trial is <a href="https://www.nytimes.com/article/trump-indictment-trial-dates-timeline.html">slated for May 2024</a>. Fulton County District Attorney Fani Willis proposed to the court in a motion filed on Aug. 16, 2023, that the Georgia trial <a href="https://www.fultonclerk.org/DocumentCenter/View/2092/MOTION-08-16-2023-151715-39070073-1C86D04A-9755-4D11-B5B2-0C36FAC21C70">begin on March 5, 2024</a> –- a formal date has not yet been set. </p>
<p>Who gets priority?</p>
<p>I am a <a href="https://scholar.google.com/citations?user=xANL5ZkAAAAJ&hl=en">scholar of criminal law.</a> It’s important to recognize that criminal law provides no clear answer on how to settle that question. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A close up of a legal document is seen against a woman's orange dress." src="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542858/original/file-20230815-22-hav4rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fulton County Superior Court Judge Robert McBurney receives letters of indictment for former President Donald Trump on Aug. 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1600397506?adppopup=true">Megan Varner/Getty Images</a></span>
</figcaption>
</figure>
<h2>No law dictating a path ahead</h2>
<p>Nothing in the U.S. Constitution or federal law dictates that federal criminal cases get priority over state cases, or that prosecutions proceed in the order in which indictments are issued. </p>
<p>The solution ordinarily is that the various prosecutors will negotiate and decide among themselves which case should proceed first. </p>
<p>Often, the one that involves the most serious charges gets priority, although the availability of key witnesses or evidence could play a role.
But once one court has set a trial date, courts in other jurisdictions are likely to schedule around that date. </p>
<p>There are a few cases to look to as reference for state charges competing with federal ones. </p>
<figure class="align-left ">
<img alt="A white man with a beard looks very serious." src="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531049/original/file-20230609-22-cxytde.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Special Counsel Jack Smith has filed a seven-count indictment against former President Donald Trump.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/prosecutor-jack-smith-of-the-us-waits-for-the-start-of-the-news-photo/1229563865?adppopup=true">Peter Dejong /AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>After <a href="https://apnews.com/article/ohio-us-news-ap-top-news-crime-charlottesville-2e61587a0b9c4849b4aec1ec3695ef22">neo-Nazi James Fields drove his car</a> into a group of protesters at the Unite the Right rally in Charlottesville, Virginia, in 2017, killing one person and injuring others, he was charged with crimes in both federal and state courts. </p>
<p>The state homicide trial went first. Then, <a href="https://www.justice.gov/opa/pr/ohio-man-pleads-guilty-29-federal-hate-crimes-august-2017-car-attack-rally-charlottesville">Fields pleaded guilty</a> to federal hate crime charges after the state conviction and <a href="https://www.npr.org/2019/07/15/741756615/virginia-court-sentences-neo-nazi-james-fields-jr-to-life-in-prison">received two life sentences</a> for his crime from both the state and federal charges.</p>
<p>By contrast, <a href="https://www.cnn.com/2013/11/04/us/dc-area-sniper-fast-facts/index.html">“D.C. sniper” John Allen Muhammad</a> was finally apprehended at a highway rest stop in Maryland in 2002, after a deadly series of sniper shootings in Maryland, Virginia and the District of Columbia that killed 10 people and injured three. </p>
<p>Maryland police <a href="https://www.washingtonpost.com/history/2022/10/01/timeline-dc-sniper-attacks/">arrested Muhammad</a>. Then, <a href="https://abcnews.go.com/US/story?id=91093&page=1">federal officials were the first</a> to file charges. But Muhammad was first put on trial and convicted of murder <a href="https://mdcourts.gov/data/opinions/coa/2022/29a21.pdf">in Virginia</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a Make America Great Again red hat and a white shirt and points towards the camera." src="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542859/original/file-20230815-21-jyu9ua.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump acknowledges the crowd as he attends a golf tournament in Bedminster, N.J., on Aug. 13, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-points-at-the-crowd-as-he-news-photo/1600166011?adppopup=true">Timothy A. Clary/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Trump’s circumstances</h2>
<p>In Trump’s case, all of his federal charges are likely to carry longer potential sentences than the state offenses. That said, I think that any actual sentence would surely be much shorter than the potential maximum penalty. This is typical, as per federal sentencing guidelines for any defendant with no previous criminal record. </p>
<p>It’s hard to reliably speculate on whether a federal sentence would be longer than Georgia’s five-year mandatory minimum sentence for a RICO conviction – although Georgia prisoners, unlike federal inmates, are eligible for parole. </p>
<p>The felonies he is facing in New York are white-collar crimes and may <a href="https://www.forbes.com/sites/alisondurkee/2023/04/05/will-trump-go-to-prison-counts-against-him-could-result-in-136-year-sentence-but-its-highly-unlikely/">not result in any prison time</a>, legal experts have said.</p>
<p>But the Georgia prosecution alleges much more serious charges. If Trump were convicted of most or all of them, avoiding a prison sentence would be an unprecedented development.</p>
<p>Of course, much about Trump’s case is unique. Never has a former president faced federal or state prosecution. That fact alone probably makes priority for the federal prosecution more likely. </p>
<p>An active presidential candidate has faced criminal charges in the past, though. </p>
<p>Socialist Party <a href="https://www.smithsonianmag.com/history/fiery-socialist-challenged-nations-role-wwi-180969386/">nominee Eugene Debs</a> was <a href="https://www.oyez.org/cases/1900-1940/249us211">prosecuted and convicted under the Espionage Act</a> for his opposition to World War I in 1918. He <a href="https://theconversation.com/the-presidential-campaign-of-convict-9653-203027">campaigned from prison</a> for the 1920 election, before <a href="https://www.loc.gov/rr/program/bib/elections/election1920.html">losing to Republican Warren G. Harding</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A number of court documents, with the one on top saying prominently 'Search and seizure warrant' in bold type and all capital letters." src="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479038/original/file-20220814-41056-hb12gh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A judge unseals a search warrant that showed the FBI was investigating former President Donald Trump for possible violation of the Espionage Act.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXTrumpFBI/101838a380e34baeb9395b5ccc3ae49d/photo?Query=Trump%20warrant&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=201&currentItemNo=1">AP Photo/Jon Elswick</a></span>
</figcaption>
</figure>
<p>Federal authorities could assert priority over state officials by taking custody of the defendant. But this has not yet happened, as judges determined Trump was not a <a href="https://www.cnn.com/politics/live-news/donald-trump-indictment-court-appearance-06-13-23/h_a1a9eac55c1638585e314ea458d23729">flight risk</a> following his brief arraignments at Washington, D.C., courthouses in June and July. States cannot arrest suspects who are outside the state’s borders, but federal law enforcement officers <a href="https://www.fbi.gov/about/faqs">can arrest suspects anywhere</a> in the country. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/do-federal-or-state-prosecutors-get-to-go-first-in-trying-trump-a-law-professor-untangles-the-conflict-207402">article originally published on June 8, 2023</a>. This version was also updated to indicate it was a county grand jury in Atlanta, not a federal one.</em></p><img src="https://counter.theconversation.com/content/211649/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Darryl K. Brown does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump has trial dates set for three of his four criminal cases. But generally, state and federal prosecutors will coordinate to make sure that their dates don’t overlap.Darryl K. Brown, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2115822023-08-15T03:31:12Z2023-08-15T03:31:12ZFulton County charges Donald Trump with racketeering, other felonies – a Georgia election law expert explains 5 key things to know<figure><img src="https://images.theconversation.com/files/542726/original/file-20230815-6385-nfovfk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County Superior Court Judge Robert McBurney receives documents from court clerk Che Alexander on August 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1599897578?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p><em>An Atlanta, Georgia, <a href="https://www.ajc.com/politics/trump-18-others-indicted-for-trying-to-overthrow-2020-georgia-election/PQ3N2YBIDRDJFLJGFLEBZUWM6I/">grand jury indicted</a> former President Donald Trump on Aug. 14, 2023, charging him <a href="https://www.law.cornell.edu/wex/racketeering">with racketeering</a> and 12 other felonies related to his alleged attempts to overturn his 2020 election defeat in the state.</em></p>
<p><em>Eighteen of Trump’s allies and associates, including former Trump attorney Rudolph Giuliani and former White House chief of staff Mark Meadows, were <a href="https://www.documentcloud.org/documents/23909548-trump-georgia-criminal-indictment">also indicted</a> for racketeering and other felony charges for their alleged involvement in the scheme.</em></p>
<p><em>This marks <a href="https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html">Trump’s fourth indictment in five months</a> – and the second to come from his efforts to undo the election results that awarded the presidency to Joe Biden. Fani Willis, the district attorney of Fulton County, Georgia, <a href="https://www.atlantanewsfirst.com/2023/07/24/timeline-donald-trumpgeorgia-investigation/">started investigating</a> Trump’s involvement in this alleged scheme, as well as that of Trump’s colleagues, in February 2021.</em></p>
<p><em>In January 2021, one month before the investigation started, Trump <a href="https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html">placed a phone call</a> to Georgia Secretary of State Brad Raffensperger and pressed him to <a href="https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-a7b4aa4d8ce3bf52301ddbe620c6bff6">“find” enough votes</a> to overturn Biden’s win.</em> </p>
<p><em>The Conversation U.S. spoke with <a href="https://scholar.google.com/citations?user=AI_UyLUAAAAJ&hl=en">Anthony Michael Kreis</a>, a scholar of Georgia’s election laws, to understand the significance of the charges laid out in the <a href="https://www.documentcloud.org/documents/23909543-23sc188947-criminal-indictment">98-page indictment</a>. Here are five key points to understand about the precise nature of the charges and why <a href="https://www.nytimes.com/live/2023/08/14/us/trump-indictment-georgia-election#trump-georgia-rico-charges">racketeering is at the center</a> of them.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two black cars that say 'sheriff' on it block off a street in front of a walk over that says Fulton County and nearby government buildings." src="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Police officers block off a street in front of the Fulton County Courthouse on August 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-sheriff-officers-block-off-a-street-in-front-news-photo/1614302634?adppopup=true">Joe Raedle/Getty Images</a></span>
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<h2>1. Racketeering is different from conspiracy charges</h2>
<p><a href="https://www.pbs.org/newshour/politics/why-georgias-rico-law-could-be-key-in-the-states-case-against-trump">With a Racketeer Influenced and Corrupt Organizations, or RICO, charge</a>, Willis presents a narrative that there were a large number of people involved in this case, but that they didn’t necessarily sit down at some point and over cocktails and say, “We are going to engage in this criminal act,” which would be a traditional conspiracy case. She is painting this picture of people winking and nodding and working toward this end goal of overthrowing the election, but without some kind of expressed agreement. </p>
<p>The Georgia RICO law allows her to rope in a lot of people who allegedly were involved with this kind of approach. </p>
<p>To be able to bring conspiracy charges, she would have to have an expressed agreement and a concrete act in furtherance of that conspiracy. And here there really wasn’t quite a plan – it is essentially a loose organization of people who are all up to no good. </p>
<h2>2. Georgia – and Willis – have used racketeering charges before</h2>
<p>Traditionally in Georgia, <a href="https://www.axios.com/2023/08/14/trump-georgia-rico-charges-fani-willis">RICO</a> has been used to prosecute people engaged in very violent kinds of activity – for street gangs and the Mafia, in particular. It has also been used in other contexts. </p>
<p>The most notable is the Atlanta public school cheating prosecution in 2015, when a <a href="https://www.washingtonpost.com/education/2022/02/01/atlanta-cheating-schools-scandal-teachers/">number of educators</a> were charged with manipulating student test scores. They wanted to make the public schools look better for various reasons. But they didn’t all know exactly what the other people were doing. </p>
<p>Willis <a href="https://www.jacksonville.com/story/news/2015/04/01/11-atlanta-public-schools-educators-convicted-racketeering-test/15657062007/">was the assistant district attorney prosecuting that racketeering</a> case. It’s a tool that she likes to use. And it is a tool that can be really hard for defendants to defend against. Eleven of the 12 defendants were convicted of <a href="https://www.usatoday.com/story/news/nation/2015/04/01/atlanta-schools-cheating-scandal-verdict/70780606/">racketeering in 2015</a> and received various sentences, including up to 20 years in prison. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Fanni Willis looks straight ahead at the camera and sits at a wooden table." src="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Fanni Willis, the district attorney of Fulton County, Georgia, is seen inside her office in September 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fani-willis-the-district-attorney-of-fulton-county-georgia-news-photo/1246123003?adppopup=true">David Walter Banks</a></span>
</figcaption>
</figure>
<h2>3. Georgia law poses particular risks to Trump</h2>
<p><a href="https://law.justia.com/codes/georgia/2021/title-16/chapter-14/">Georgia’s RICO law</a> is much more expansive than the federal version of the law. It allows for a lot more different kinds of conduct to be covered. That makes it very easy to sweep people into one criminal enterprise and it’s a favorite tool for prosecutors. </p>
<p>And the punishments for violating the state’s RICO are harsh. There is a <a href="https://www.newsweek.com/donald-trump-rico-georgia-charges-fani-willis-1818509">minimum five-year sentence</a> for offenders, and there can be a lengthy prison sentence for any co-defendants, as well. </p>
<p>But it also introduces a new dynamic, which Trump might not be used to. There is a big incentive for people who are listed as co-defendants to cooperate with the state and to provide evidence, in order to escape punishment and secure favorable deals.</p>
<p>This is probably the biggest risk to Trump, and the likelihood that he would be convicted in Fulton County rests with this. The other people involved in this are not all household names, and presumably have families and friends and don’t want to go to prison. They may well find themselves in a position to want to give evidence against Trump. </p>
<p><iframe id="tYrfU" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/tYrfU/12/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>4. It’s ultimately about election law</h2>
<p>It looks like Georgia election law is taking a slight backseat to some of these other possible charges – of false swearing, giving false statements – which is not quite an election conspiracy, or election interference, which are distinct charges under Georgia law. </p>
<p>The important lesson here is that Willis is essentially bringing an election conspiracy charge under RICO, so it is an election law violation by another name. </p>
<p>What she is vindicating is not only the rights of Georgians to vote and have their votes counted. Willis is also preserving the integrity of the election system – to not have poll workers harassed, to not have people making false statements about the elections in courts of law, and to not have <a href="https://apnews.com/article/fulton-county-election-investigation-trump-georgia-fb5240cf854eb546b027f950646268c2">people tamper</a> with an election.</p>
<h2>5. This could influence future key elections</h2>
<p>Georgia has some serious contested elections <a href="https://ballotpedia.org/Georgia_elections,_2024">ahead in 2024</a> and 2026. And people need to have faith in the system, the process, as well as in the institutions and the people. Fani Willis has a very important goal here – which is to expose the wrongs for what they were, to show people what happened here and to what degree it was criminal, if she can prove that. It’s also about reassuring people that if others engage in this kind of conduct, they will be penalized.</p><img src="https://counter.theconversation.com/content/211582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Michael Kreis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fulton County District Attorney Fani Willis’ RICO charges against Trump are targeting election law violations, but by another name. The charges can result in a minimum five years in prison.Anthony Michael Kreis, Assistant professor of law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1953932023-07-21T13:43:39Z2023-07-21T13:43:39ZWhat Germany’s quest to define dignity – both before and after 1945 – tells us about society<p>We all know what <a href="https://theconversation.com/how-to-define-dignity-and-its-place-in-human-rights-a-philosophers-view-81785">dignity</a> looks like when it is taken from us. From job losses and <a href="https://theconversation.com/we-showed-i-daniel-blake-to-people-living-with-the-benefits-system-heres-how-they-reacted-73153">income deprivation</a>, to <a href="https://theconversation.com/what-racial-discrimination-does-to-young-peoples-wellbeing-141655">discrimination</a>, systemic <a href="https://theconversation.com/whiteness-is-at-the-heart-of-racism-in-britain-so-why-is-it-portrayed-as-a-black-problem-181742">racism</a> or oppression, throughout history there have been constant and countless instances of people being deprived, humiliated and <a href="https://theconversation.com/dehumanising-policies-leave-autistic-people-struggling-to-access-health-education-and-housing-new-review-202997">dehumanised</a>, their dignity refused.</p>
<p>The second world war – and the atrocities committed by the National Socialist regime in particular – represents a salient instance of dignity denied, of crimes against humanity. At its conclusion, in 1945, legal scholars, politicians and the wider public agreed that life without dignity was meaningless.</p>
<p>My doctoral research looks at the German quest, both before and after the conflict, to define dignity, in order to enshrine its protection in law. Tracing this task from German philosopher Immanuel Kant’s attempts at a universal definition, to the West German constitution drafted between 1948 and 1949, I have found that while a clear definition remains elusive, it is that very abstraction that ensures it is universal.</p>
<figure class="align-center ">
<img alt="A sculpture of German words on a building." src="https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=444&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=444&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=444&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537493/original/file-20230714-22-a9slss.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">‘Human dignity shall be inviolable’, Frankfurt am Main.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Basic_Law_for_the_Federal_Republic_of_Germany#/media/File:Landgericht-frankfurt-2010-ffm-081.jpg">Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>An inviolable attribute</h2>
<p>On September 1 1948, 65 members of the West German <em>Parlamentarischer Rat</em> (parliamentary council) convened in Bonn to draw up a constitution for the nascent democratic, federal state. The council wanted to draft an unwavering response to the atrocities Germany had committed. </p>
<p>Under Nazi law, human beings were excluded from community and thus dehumanised. <a href="https://core.ac.uk/download/pdf/147631666.pdf">Dignity</a>, therefore, had to be firmly established in the new constitution. The law had to ensure that each person was positioned as a member of society and protected by society.</p>
<p>To do so, some argued that it first had to be defined. Others, including Theodor Heuss, the Free Democratic Party representative for West Germany and Berlin, disagreed. He advocated for dignity to be left as an “uninterpreted proposition”, purposefully abstract so as to be universal. </p>
<p>This, Heuss reasoned, would guarantee that the notion of dignity would be protected from political manoeuvring, yet still open to interpretation, according to different philosophical and religious backgrounds. Heuss considered defining dignity in this way to be the only proper refutation of the barbarism of National Socialism, a safeguard against ever again allowing the state to judge the value of human life.</p>
<p>Heuss’s argument <a href="https://link.springer.com/referenceworkentry/10.1007/978-3-319-27830-8_14-1">prevailed</a>. The <em>Grundgesetz für die Bundesrepublik Deutschland</em> (Basic Law for the Federal Republic of Germany) was adopted on May 8 1949. <a href="https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#:%7E:text=(1)%20Human%20dignity%20shall%20be,of%20justice%20in%20the%20world.">Article 1</a>, which still has its distinctive validity today, reads:</p>
<blockquote>
<p>Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.</p>
</blockquote>
<h2>A universal definition</h2>
<p>One and a half centuries earlier, in his 1785 volume, Groundwork of the Metaphysics of Morals, the German philosopher Immanuel Kant had sought to <a href="https://core.ac.uk/download/pdf/41174358.pdf">democratise human dignity</a>. His idea was that all human beings have an inner worth and should be valued simply because they are human. All should be treated as ends in themselves rather than simply as means to an end.</p>
<p>Moreover, Kant defined dignity by distinguishing it from those things that could be costed:</p>
<blockquote>
<p>In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity.</p>
</blockquote>
<figure class="align-center ">
<img alt="Illustration of a silhouette of a man in expensive 17th-century clothes." src="https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1007&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1007&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1007&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1265&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1265&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537498/original/file-20230714-30-8k8z7x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1265&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Immanuel Kant by Puttrich Johann Theodor, 1793.</span>
<span class="attribution"><a class="source" href="https://wellcomecollection.org/works/djr8t98g/images?id=pfpyjc6s">Wellcome Collection Images</a></span>
</figcaption>
</figure>
<p>Kant’s timeless formula did not, however, seem to fully anticipate what the second world war would go on to lay bare: the degree to which humans could deprive others of their dignity. It also stood at odds with the philosopher’s own espousal, for most of his career, of <a href="https://academic.oup.com/book/4139/chapter/145901251">scientific racism</a> and his ignorance of how such views precisely denied dignity to countless people. </p>
<p>So in retrospect, Heuss’s definition of human dignity proved wise. Kant’s framing of dignity may be concise, timeless, and universal, but his judgement of who is worthy of dignity – and who is not – was indeed marred by the ideologies of his own time. </p>
<p><a href="https://theconversation.com/overcoming-racism-depends-on-respect-for-every-persons-dignity-201065">Dignity today</a> still appears as a visible horizon. Everything – politics, the rule of law, our societal compass, the way we each live our lives – is directed towards it, yet it remains difficult to reach. </p>
<p>Framing dignity by what it is not (indignity) or by what denies it (humiliation) runs the risk of our only ever thinking about it in terms of victimhood. Throughout history, though, there has also been this idea that, with dignity, comes something sublime that demands respect: a sense of <a href="https://theconversation.com/awe-can-alter-our-sense-of-self-and-open-us-to-new-possibilities-could-it-help-save-the-planet-205917">awe</a>. </p>
<p>This is of course most obvious in the way a <a href="https://theconversation.com/king-charles-iiis-coronation-oath-is-a-crucial-part-of-the-ceremony-experts-explain-202870">sovereign’s dignity</a> is traditionally hailed – if only in officialdom – with words such as “excellence”, “highness” and “majesty”. </p>
<p>The modern concept of democratic dignity might be seen as exactly this sublime status, formerly reserved for the nobility and now democratised. A <a href="https://tannerlectures.utah.edu/_resources/documents/a-to-z/w/Waldron_09.pdf">universalised high social rank</a> could have a persuasive force. It would not only affirm the moral worth of each individual, it would also answer the yearning for recognition – of honour and status – that everyone experiences. </p>
<p>Quite how to define the dignity of all people depends on each person’s unique interpretation of the world. The law, however, cannot equivocate on its status: as a legally recognised human characteristic, dignity must remain inviolable. It must be constantly recreated and protected from any bias.</p><img src="https://counter.theconversation.com/content/195393/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frederick Hauke does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The second world war showed that dignity had to be enshrined in law. Defining it in order to do so is no easy task.Frederick Hauke, PhD candidate, University of CambridgeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2098182023-07-17T12:24:47Z2023-07-17T12:24:47ZDemocrats revive the Equal Rights Amendment from a long legal limbo – facing an unlikely uphill battle to get it enshrined into law<figure><img src="https://images.theconversation.com/files/537520/original/file-20230714-23-855i72.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Rep. Carolyn Maloney speaks during a press conference in December 2022, calling to affirm the Equal Rights Amendment to the Constitution. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1447783358/photo/rep-maloney-calls-on-the-senate-to-affirm-the-equal-rights-amendment.jpg?s=1024x1024&w=gi&k=20&c=hGcNpi9mEXQibuonF4NTKVn8RnM_0m2G7RxTDeTNy50=">Alex Wong/Getty Images</a></span></figcaption></figure><p>Democrats in Congress are making a new push to get the long-dormant proposed Equal Rights Amendment enshrined into law. As legislation, it would guarantee sex equality in the Constitution and could serve as a potential legal antidote to the Supreme Court’s 2022 decision in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, which removed the federal right to an abortion. </p>
<p>“In light of Dobbs, we’re seeing vast discrimination across the country,” <a href="https://www.nytimes.com/2023/07/13/us/politics/democrats-equal-rights-amendment.html">said U.S. Sen. Kirsten Gillibrand</a> of New York in an interview July 13, 2023. “Women are being treated as second-class citizens. This is more timely than ever.”</p>
<p>Gillibrand, U.S. Rep. Cori Bush of Missouri and other Democratic lawmakers are arguing that the Equal Rights Amendment, often referred to as the ERA, has already been ratified by the states and is <a href="https://www.nytimes.com/2023/07/13/us/politics/democrats-equal-rights-amendment.html">enforceable </a> as the 28th Amendment to the Constitution. </p>
<p>Efforts to amend the U.S. Constitution to recognize women’s rights have faced major challenges for the past century. Most recently, in April 2023 Senate Republicans <a href="https://www.rollcall.com/2023/04/27/senate-gop-blocks-resolution-nixing-equal-rights-amendment-ratification-deadline/">blocked a similar resolution</a> that would let states ratify the amendment, despite an expired deadline. </p>
<p>I’m a scholar who <a href="https://www.cambridge.org/us/academic/subjects/sociology/political-sociology/abortion-politics-mass-media-and-social-movements-america?format=HB&isbn=9781107069237">studies gender</a> and <a href="https://journals.sagepub.com/doi/abs/10.1177/2329496515603726?casa_token=4HXIJlECyQQAAAAA%3AY9b0XOGxgif8EinuzkdxBcW53F80hF0khTztRdnu3Kx6DxC5I0_Nou7RiY8K3KsLxdIk6QgaxWyb">politics</a>. Here’s a quick summary of how the country got to this point and the barriers that still exist to adding the Equal Rights Amendment to the Constitution.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows women marching and holding signs that say 'Pass the equal rights amendment NOW'" src="https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537525/original/file-20230714-15-iem14i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the National Organization for Women demonstrate outside the White House in 1969 for the Equal Rights Amendment.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/515572176/photo/n-o-w-members-picket-the-white-house.jpg?s=1024x1024&w=gi&k=20&c=RjyB65MvzHJceIHpUB_K5B6PVhAuv81ysYkW70bUuWk=">Bettmann/Contributor</a></span>
</figcaption>
</figure>
<h2>‘Ladies against women’</h2>
<p>Women’s rights advocates argue that sex discrimination is a pervasive problem that could be resolved by the ERA. Even though the Equal Protection Clause in the <a href="https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html">14th Amendment</a> prohibits states from denying any person equal protection under the law, women’s rights are not explicitly guaranteed.</p>
<p>In the wake of the Supreme Court’s Dobbs decision, which took away a woman’s right to an abortion, women’s rights advocates argue that the ERA is critical in the <a href="https://www.nytimes.com/2023/07/13/us/politics/democrats-equal-rights-amendment.html">post-Dobbs</a> world. The amendment could help protect women’s access to reproductive health services, including abortion and contraception. </p>
<p>Proponents also believe that the ERA can be used to push back against legislation that <a href="https://www.advocate.com/commentary/2022/3/22/why-passing-era-critical-lgbtq-folks-equality-act">threatens the rights of LGBTQ+ people</a>. </p>
<p>The push for equal rights first heated up in the 1920s after women gained the right to vote. </p>
<p><a href="https://catalog.hathitrust.org/Record/012280242">Alice Paul</a>, a suffragist, proposed the first version of an Equal Rights Amendment in 1923. The <a href="https://www.archives.gov/women/era">language of the legislation</a>, which is very similar to the amendment Democrats are currently championing, guaranteed equal rights under the law, regardless of a person’s sex. </p>
<p>The proposal was adopted and turned into proposed legislation by two Kansas Republicans, Sen. Charles Curtis and Rep. Daniel Anthony Jr., and was brought up during every congressional session between 1923 and 1971 without success.</p>
<p>The idea of an Equal Rights Amendment, however, gained momentum among politicians and the broader public. <a href="https://bepl.ent.sirsi.net/client/en_US/default/search/detailnonmodal/ent:$002f$002fSD_ILS$002f0$002fSD_ILS:316728/ada">World War II</a> opened many doors for women, who filled gaps in the labor force while men were off fighting. During this time, women were welcomed into politics, onto juries, openly wooed by educational institutions and encouraged to take up male-dominated majors such as math, science and technology.</p>
<p>The fledgling feminist group, the <a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100290360">National Organization for Women</a>, adopted the passage of the ERA in its 1967 Bill of Rights for Women and began staging massive demonstrations and lobbying politicians in the late 1960s and early 1970s in an effort to get Congress to pass the amendment. </p>
<p>Finally, <a href="https://fas.org/sgp/crs/misc/R42979.pdf">in 1972</a>, the ERA passed both houses of Congress. The amendment had seven years to be ratified by three-fourths, or 38, of the 50 states.</p>
<p>While 30 states ratified the ERA in 1972 and 1973, the amendment ultimately came up three states short of approval by the 1979 deadline. </p>
<p>This was in large part due to the <a href="https://www.press.uchicago.edu/ucp/books/book/chicago/W/bo5977742.html">efforts of conservative</a> women’s organizations <a href="https://www.cambridge.org/us/academic/subjects/sociology/political-sociology/abortion-politics-mass-media-and-social-movements-america?format=HB&isbn=9781107069237">opposed it</a>. Conservative women <a href="https://academic.oup.com/socpro/article-abstract/32/4/348/1734706">said that the ERA</a> was a <a href="https://theconversation.com/could-the-era-pass-in-the-metoo-era-87901">threat</a> to family and child-rearing, because it would disrupt traditional gender roles. They also believed women would lose, among other things, their exemptions from the draft and combat duty.</p>
<p>At the same time, for a number of reasons, <a href="https://history.nebraska.gov/blog/nebraskas-again-again-relationship-equal-rights-amendment">Nebraska</a>, Tennessee, Idaho, South Dakota and Kentucky rescinded their ERA ratifications between 1972 and 1982. Some state legislators argued that the amendment was <a href="https://www.press.uchicago.edu/ucp/books/book/chicago/W/bo5977742.html">too controversial</a> given its potential to upend traditional gender roles and legalize what they called “abortion on demand.”</p>
<p>States such as Illinois and Florida became battlegrounds for liberal and conservative women fighting over the amendment. Feminists successfully lobbied Congress to extend the ERA’s ratification deadline to June 30, 1982. The ERA, however, was not ratified by the three states needed to ensure its passage. In 1982, conservative women proclaimed the Equal Rights Amendment officially dead. </p>
<p>In 2023, conservative women’s groups like the Eagle Forum and Concerned Women for America continue to make the same arguments against the ERA. Instead of focusing on the battlefield, however, the groups argue that the ERA will <a href="https://eagleforum.org/topics/era.html">eliminate restrictions on abortion</a> and erase “<a href="https://concernedwomen.org/dont-erase-women-with-an-equal-rights-amendment/">women-only safe spaces</a>” like bathrooms and locker rooms.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blond woman yells into a megaphone and has a green sticker on her cheek that says 'ERA Now'" src="https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537523/original/file-20230714-16543-hkfcq9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters gather to call for the passage of the Equal Rights Amendment in Washington, D.C., in September 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1428419441/photo/house-democrats-hold-a-news-conference-to-speak-on-the-equal-rights-amendment.jpg?s=1024x1024&w=gi&k=20&c=HGFwhCAjx1QQg-_0bwZEcuXghYQYVjWfgnj7Hppi9-g=">Tasos Katopodis/Getty Images</a></span>
</figcaption>
</figure>
<h2>Another chance?</h2>
<p>Since 2017, three more states – <a href="https://www.npr.org/2020/01/15/796754345/virginia-ratifies-the-equal-rights-amendment-decades-after-deadline">Nevada, Illinois and Virginia</a> – have ratified the Equal Rights Amendment, bringing the total to 38 states, which is the number required to ratify the ERA and officially make it the 28th Amendment. That is why Democrats believe they have legal standing. </p>
<p>Some constitutional experts see Democrats’ latest attempt to codify the ERA as a <a href="https://www.nytimes.com/2023/07/13/us/politics/democrats-equal-rights-amendment.html">political stunt</a> rather than a legitimate legal move. To some extent, I think this may be true.</p>
<p>More than a dozen states have <a href="https://www.brennancenter.org/our-work/research-reports/state-level-equal-rights-amendments">ERA equivalents</a> that protect women’s equal rights in their constitutions. And four states, including <a href="https://www.wxxinews.org/capitol-bureau/2023-01-24/new-york-legislature-moves-on-equal-rights-amendment-that-includes-abortion-rights-protections">New York</a>, have active ERA initiatives.</p>
<p>The current push for Democrats to pass the ERA seems to be largely about advocating for <a href="https://www.washingtonpost.com/politics/2022/05/11/abortion-choice-roe-dodds-confrontation/">abortion access</a> and <a href="https://thehill.com/homenews/administration/4052425-supeme-court-abortion-democrats-political-gift-elections/">mobilizing abortion rights supporters</a> ahead of the 2024 presidential election. </p>
<p>About half of the states across the U.S. have enacted restrictive abortion laws over the last year, with some <a href="https://states.guttmacher.org/policies/texas/abortion-policies">states</a> banning the procedure altogether. State ERA efforts, like the one in New York, are <a href="https://www.wxxinews.org/capitol-bureau/2023-01-24/new-york-legislature-moves-on-equal-rights-amendment-that-includes-abortion-rights-protections">a response</a> to these bans. </p>
<p>The renewed push for the ERA makes the fight over abortion access, once again, a national battle. In the current polarized political environment, abortion access promises to serve as a political lightening rod in coming years. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/in-2019-womens-rights-are-still-not-explicitly-recognized-in-us-constitution-108150">article originally published on Dec. 13, 2018</a>.</em></p><img src="https://counter.theconversation.com/content/209818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deana Rohlinger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Women’s rights groups and politicians have pushed, ultimately unsuccessfully, for the Equal Rights Amendment to become part of the Constitution for the past several decades.Deana Rohlinger, Professor of Sociology, Florida State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2030262023-05-04T12:12:05Z2023-05-04T12:12:05ZFree speech used to be honored by both left and right – now shouting down opponents and banning disliked speech is a bipartisan cause<figure><img src="https://images.theconversation.com/files/523683/original/file-20230501-1574-ys3s45.jpeg?ixlib=rb-1.1.0&rect=17%2C0%2C3970%2C2646&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Demonstrators who support banning books gather during a protest outside of the Henry Ford Centennial Library in Dearborn, Mich., on Sept. 25, 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-who-support-banning-books-gather-during-a-news-photo/1243508622?adppopup=true">Jeff Kowalsky/AFP via Getty Images</a></span></figcaption></figure><p>Students’ shutting down campus public speakers has <a href="https://www.thefire.org/news/blogs/eternally-radical-idea/new-report-push-against-campus-speakers-getting-more-intense">become increasingly common</a> at <a href="https://www.insidehighered.com/news/students/free-speech/2023/04/13/shouting-down-speakers-who-offend">universities</a> across the U.S. </p>
<p>Recently at Stanford Law School, student protesters <a href="https://davidlat.substack.com/p/the-full-audio-recording-of-judge">shouted over</a> a Trump-appointed federal judge and <a href="https://www.nytimes.com/2023/03/24/briefing/campus-free-speech.html">disrupted</a> the speech he had been invited by students to give. </p>
<p>Instead of telling the students that they were in violation of Stanford’s <a href="https://www.insidehighered.com/news/students/free-speech/2023/04/13/shouting-down-speakers-who-offend">speech policy</a>, the associate dean of diversity, equity, and inclusion, who attended the event, appeared to <a href="https://www.reuters.com/legal/legalindustry/stanford-law-official-who-admonished-judge-during-speech-is-leave-dean-says-2023-03-22/">sympathize</a> with the students. Taking the podium, she <a href="https://nypost.com/2023/04/11/stanford-dei-dean-admits-she-didnt-get-response-to-students-heckling-of-judge-right/">criticized the judge, in part because he was being hostile toward the student protesters</a>.</p>
<p>The law school’s dean <a href="https://www.independent.co.uk/news/world/americas/us-politics/duncan-kelly-stanford-law-student-protest-b2301601.html">then issued a public apology</a> to the judge and explained to the public that Stanford’s speech policies do not permit coordinated efforts to shut down invited speakers. </p>
<p>Students then <a href="https://news.yahoo.com/stanford-law-students-protest-university-174558516.html">protested the</a> dean’s apology, claiming that “counter speech is free speech.” But coordinated efforts to shut down someone’s speech through disruption or threat of violence, sometimes called “the heckler’s veto,” is not protected free speech.</p>
<p>As a constitutional law professor who <a href="https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1489472">studies and writes about</a> the First Amendment and free speech, I have seen a growing number of cases across the political spectrum in which people try to suppress others’ speech because it is deemed too harmful. This is happening not only among students and faculty on college campuses, but among those in state and local government, on school boards and library committees. </p>
<p>As a scholar in this area, I know that underlying the First Amendment is a belief that <a href="https://constitutioncenter.org/education/constitution-101-curriculum/10-the-first-amendment">free and open discussion is what makes democracy strong</a>. Conversely, <a href="https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html">repression of speech</a> is not consistent with democratic ideals or practice.</p>
<p><a href="https://www.mtsu.edu/first-amendment/article/328/abrams-v-united-states">The theory</a> behind the First Amendment and the exercise of free speech is that speech, unlike physical conduct or force, should be countered with other speech. Speech is not itself violence, and challenging ideas promotes critical thinking and growth.</p>
<p>Much of the rising intolerance to speech has a common thread: Instead of using speech or protest to counter the speech or expression that critics dislike, people on the right and the left appear to want to prevent ideas they don’t like from entering the conversation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A headline from an online newspaper that says 'President, law school dean apologize to Judge Kyle Duncan for ‘disruption’ to his speech'" src="https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=278&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=278&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=278&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=350&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=350&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523681/original/file-20230501-28-acjs1l.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=350&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The headline on Stanford’s campus newspaper when the school’s president and law school dean apologized to the judge who was shouted down by students.</span>
<span class="attribution"><a class="source" href="https://stanforddaily.com/2023/03/12/president-law-school-dean-apologize-to-judge-kyle-duncan-for-disruption-to-his-speech/">Stanford Daily</a></span>
</figcaption>
</figure>
<h2>Banning, repressing and shutting down</h2>
<p>Over the past few years, legislators and government officials as well as some parents and school administrators, largely in Republican-leaning states, have demanded that certain books be <a href="https://abcnews.go.com/US/conservative-liberal-book-bans-differ-amid-rise-literary/story?id=96267846">removed from school libraries</a>. Some government officials are trying to make it easier to remove books from public libraries, too. </p>
<p>Usually, the claim is that the books are inappropriate for children. Many of the books removed from libraries or school curricula include <a href="https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools/">authors or characters</a> who belong to racial, ethnic or religious minorities or are members of the LGBTQ+ community.</p>
<p>The right, in control of certain state governments, has increasingly attempted to use <a href="https://www.pbs.org/newshour/politics/experts-say-attacks-on-free-speech-are-rising-across-the-us">legislative power to ban certain speech</a>. </p>
<p>Legislators have proposed bills to <a href="https://www.edweek.org/policy-politics/heres-the-long-list-of-topics-republicans-want-banned-from-the-classroom/2022/02">prohibit teachers from promoting specific views</a> that they believe is harmful to children, or too sexual, or erodes students’ self-esteem, including suggestions that members of certain races are inherently privileged or disadvantaged because of their race.</p>
<p>Legislators have also proposed <a href="https://www.theguardian.com/culture/commentisfree/2023/mar/10/drag-show-bans-tennessee-lgbtq-rights">bills that ban drag shows</a> where children may be in attendance. A <a href="https://theconversation.com/why-tennessees-law-limiting-drag-performances-likely-violates-the-first-amendment-201126">Tennessee ban</a> has been temporarily <a href="https://time.com/6260421/tennessee-limiting-drag-shows-status-of-anti-drag-bills-u-s/">halted from going into effect</a> by a federal judge. The ban likely violates the First Amendment because it does not apply only to sexually explicit speech.</p>
<h2>Not just conservatives</h2>
<p>The intolerance of certain speech is not limited to the political right.</p>
<p>Although many of the policies limiting what students read, see or hear come from conservatives, in some places high school administrators also <a href="https://reason.com/2023/04/26/school-officials-forced-students-to-remove-lets-go-brandon-sweatshirts-now-theyre-suing/">censor or punish</a> conservative speech, such as forcing students to take off sweatshirts that bear a slogan critical of President Joe Biden. </p>
<p>The left, <a href="https://heterodoxacademy.org/blog/professors-moved-left-but-country-did-not/">especially in higher education</a>, has promoted policies that would force faculty and staff to adhere to certain ideas, including the university’s stated mission, undercutting academic freedom and free speech values. An instructor at Hamline University in Minnesota <a href="https://www.nytimes.com/2023/01/08/us/hamline-university-islam-prophet-muhammad.html">had her job offer for the next semester rescinded</a> after showing a class a historical depiction of the Prophet Muhammad that offended certain students. An applicant for a school superintendent position recently <a href="https://www.bostonglobe.com/2023/04/06/business/superintendent-ladies-email-microaggression-experts/">similarly had his job offer rescinded</a> for addressing two women as “ladies.” This has a chilling effect on dissenting or even moderate voices in education.</p>
<p>Besides the specific examples of speech repression, a documented shift in public attitudes about free speech is happening that is more diffuse, but highly consequential for democracy.</p>
<p><a href="https://www.aclu.org/news/free-speech/free-speech-can-be-messy-we-need-it">Younger progressives</a> seem eager to use the heckler’s veto to intimidate or block people from speaking. </p>
<p>For example, a <a href="https://www.nationalreview.com/news/riley-gaines-assaulted-by-trans-activists-at-san-francisco-state-university/">former collegiate swimmer</a>, recently invited to San Francisco State University to discuss her opposition to trans athletes’ competing in sports, faced protesters who were so aggressive that she had to be barricaded in a room for her own safety.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1651677646546169871"}"></div></p>
<h2>Undermining the search for truth</h2>
<p>The censoriousness on the right and on the left can reinforce each other. </p>
<p>Universities are <a href="https://jonathanhaidt.com/viewpoint-diversity/">dominated in an unprecedented way</a> by progressive professors and administrators. At many universities, including my own, professors have <a href="https://www.cato.org/blog/required-dei-diversity-equity-inclusion-statements-campus-analogy">to demonstrate</a> – sometimes even in their scholarship – a commitment to diversity, equity and inclusion. </p>
<p>This mandate, many argue, tramples on <a href="https://www.pewresearch.org/fact-tank/2015/11/20/40-of-millennials-ok-with-limiting-speech-offensive-to-minorities/">academic freedom</a> and <a href="https://ecollections.law.fiu.edu/lawreview/vol13/iss4/6/">forces professors</a> to tailor their scholarship to a particular politicized view of group rights versus individual rights. </p>
<p>Many state governments have responded to these progressive initiatives by enacting legislation that is even more censorious and potentially unconstitutional. </p>
<p>Ohio is <a href="https://www.chronicle.com/article/this-ohio-bill-wouldnt-just-ban-diversity-training-it-would-reshape-higher-ed">considering a bill</a> that prevents teaching particular subjects related to diversity at its universities. Part of the bill seeks to ensure that professors do not impose their views on students. That reflects a concern of the right, that professors force students to parrot back the professors’ own views, or that professors present material in a one-sided way.</p>
<p>In my view, these efforts to restrict what people can see, say or read undermine healthy discussions and the <a href="https://ois.iu.edu/living-in-the-us/civil-discourse/index.html">search for truth</a>. </p>
<h2>Room for agreement</h2>
<p>Yet historically, free speech has been one area that both the right and the left have found a unifying, nonpartisan principle. First Amendment <a href="https://www.oyez.org/cases/2010/09-751">cases</a> <a href="https://www.oyez.org/cases/2009/08-769">at</a> <a href="https://www.oyez.org/cases/2011/11-210">the</a> <a href="https://www.oyez.org/cases/2016/15-1293">Supreme Court</a> often get decided in ways that cut across partisan lines, even by courts that are quite politically divided.</p>
<p>The left, on principle, has been a major champion of offensive and hateful speech, including when the American Civil Liberties Union <a href="https://www.aclu.org/issues/free-speech/rights-protesters/skokie-case-how-i-came-represent-free-speech-rights-nazis">defended in 1977</a> the right of neo-Nazis to march in a town whose residents included many Holocaust survivors. </p>
<p>We live in a different world now, however, where <a href="https://www.aclu.org/press-releases/aclu-statement-charlottesville-violence-and-demonstrations">white supremacist groups are armed</a> and both the right and the left are polarized. </p>
<p>Censorship breeds more censorship. Attempts by both the left and the right to impose orthodoxy by stifling views leads ultimately to intolerance and authoritarianism. As Justice Robert H. Jackson said in a 1943 case that held that students in public schools <a href="https://supreme.justia.com/cases/federal/us/319/624/#tab-opinion-1937809">cannot be forced to salute the flag</a>, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” </p>
<p>As much as people may dislike hearing views they consider harmful, that displeasure is evidence of what I believe is the most fundamental freedom guaranteed by federal law – freedom of expression.</p><img src="https://counter.theconversation.com/content/203026/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Erica Goldberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Free speech is under attack from both sides of the political spectrum.Erica Goldberg, Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2031342023-04-05T12:36:09Z2023-04-05T12:36:09ZTrump’s indictment is unprecedented, but it would not have surprised the Founding Fathers<figure><img src="https://images.theconversation.com/files/519432/original/file-20230404-28-pony0a.jpg?ixlib=rb-1.1.0&rect=11%2C34%2C7634%2C5307&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former U.S. President Donald Trump sits with his attorneys for his arraignment at the Manhattan criminal court on April 4, 2023, in New York City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-sits-with-his-attorneys-news-photo/1479825853?adppopup=true"> Pool/ Getty Images News via Getty Images North America</a></span></figcaption></figure><p>Much has been made of the unprecedented nature of <a href="https://www.washingtonpost.com/politics/2023/04/04/trump-arraignment-ny-indictment-live-updates/">the April 4, 2023 arraignment</a> on criminal charges of former President Donald Trump following an indictment brought by <a href="https://www.manhattanda.org/meet-alvin-bragg/">Manhattan District Attorney Alvin Bragg</a>. But a closer look at American history shows that the indictment of a former president was not unforeseen.</p>
<h2>What the Constitution says about prosecuting a president</h2>
<p>The Constitution’s authors <a href="https://texaslawreview.org/prosecuting-and-punishing-our-presidents/">contemplated the arrest of a current or former president</a>. At several points since the nation’s founding, our leaders have been called before the bar of justice. </p>
<p><a href="https://constitution.congress.gov/browse/article-1/section-3/">Article 1, Section 3,</a> of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” </p>
<p>In his defense of this constitutional provision, <a href="https://avalon.law.yale.edu/18th_century/fed69.asp">Founding Father Alexander Hamilton noted</a> that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice, but not removed from office. </p>
<p>As a scholar with <a href="https://www.press.umich.edu/16032/history_memory_and_the_law">expertise in legal history</a> and <a href="https://www.sup.org/books/title/?id=20093">criminal law</a>, I believe the punishment our Founding Fathers envisioned for high officeholders removed from office would also apply to those who left office in other ways. </p>
<p>Tench Coxe, a delegate from Pennsylvania to the Continental Congress from 1788–89, <a href="https://archive.csac.history.wisc.edu/pa_1.pdf">echoed Hamilton</a>. He explained that while the <a href="https://constitution.congress.gov/browse/essay/artI-S6-C1-3-1/ALDE_00013300/#:%7E:text=They%20shall%20in%20all%20Cases,questioned%20in%20any%20other%20Place.">Constitution’s speech and debate clause</a> permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives; for he may be proceeded against like any other man in the ordinary course of law.”</p>
<p>In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. And, though Coxe didn’t say it explicitly, I’d argue that it follows that if a president can be charged with a crime while in office, once out of office, he could be held responsible like anyone else. </p>
<h2>The indictment of Aaron Burr</h2>
<p>Hamilton’s and Coxe’s positions were put to an early test soon after the Constitution was ratified. The test came <a href="https://founders.archives.gov/documents/Hamilton/01-26-02-0001-0281">when jurors in New Jersey indicted</a> Vice President Aaron Burr for killing Hamilton in a duel in that state.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black-and-white illustration showing Aaron Burr, in black top hat and coat, shooting Alexander Hamilton in a wooded area. Two eyewitnesses stand in the background." src="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An artist’s depiction of the Burr–Hamilton duel on July 11, 1804. Hamilton was mortally wounded, and Burr was indicted for his death.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/duel-between-burr-and-hamilton-royalty-free-illustration/489170896?adppopup=true">Ivan-96/DigitalVision Vectors via Getty Images</a></span>
</figcaption>
</figure>
<p>The indictment charged that “Aaron Burr late of the Township of Bergen in the County of Bergen esquire not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil … feloniously willfully and of his malice aforethought did make an assault upon Alexander Hamilton … [who] of the said Mortal wounds died.” </p>
<p>While Burr’s powerful friends subsequently <a href="https://www.mentalfloss.com/article/57580/what-did-aaron-burr-do-after-shooting-alexander-hamilton">interceded and persuaded state officials to drop the charges</a>, their success had nothing to do with any immunity that Burr enjoyed as an executive officer of the United States.</p>
<p>Indeed, Burr’s legal troubles were not over. In February 1807, after his term as vice president ended, <a href="https://www.history.com/this-day-in-history/aaron-burr-arrested-for-treason">he was arrested</a> and charged with treason for plotting to create a new and independent nation separate from the U.S. This time, he stood trial and was acquitted. </p>
<h2>The Strange case of Ulysses S. Grant</h2>
<p>Fast forward to 1872, when the incumbent president, Ulysses S. Grant, <a href="https://www.theguardian.com/us-news/2023/mar/22/ulysses-s-grant-arrest-speeding-horse-drawn-carriage">was arrested in Washington, D.C.,</a> for speeding in his horse-drawn carriage.</p>
<p>The arresting officer <a href="https://www.newspapers.com/image/330876502/?clipping_id=121285615&fcfToken=eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJmcmVlLXZpZXctaWQiOjMzMDg3NjUwMiwiaWF0IjoxNjgwMzc2MzkzLCJleHAiOjE2ODA0NjI3OTN9.v6vBKQxZHqtZ9LJ6QFO290LwcrzOnYYMgg7bSCMZSKM">told Grant</a>, “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.” </p>
<p>As The New York Post recently <a href="https://nypost.com/2023/03/31/trump-will-be-first-president-arrested-since-ulysses-s-grant-who-was-busted-for-speeding-in-1872/">recounted the story</a>, Grant “was ordered to put up 20 bucks as collateral.” But he never stood trial.</p>
<h2>20th and 21st century precedents</h2>
<p>A little over a century later, Republican Vice President Spiro Agnew <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html">had a more serious brush with the law</a> when he was accused by the Department of Justice of a pattern of political corruption starting when he was a county executive in Maryland and continuing through his tenure as vice president.</p>
<p>On Oct. 10, 1973, Agnew agreed to a plea bargain. He <a href="https://www.nytimes.com/1973/10/11/archives/judge-orders-fine-3-years-probation-tells-court-income-was-taxable.html">resigned his office</a> and <a href="https://www.history.com/this-day-in-history/vice-president-agnew-resigns">pleaded no contest</a> to a charge of federal income tax evasion in exchange for the federal government dropping charges of political corruption. He was fined US$10,000 and sentenced to three years’ probation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Surrounded by Secret Service agents, Spiro Agnew speaks to reporters outside a federal courthouse." src="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Spiro Agnew leaves a Baltimore federal courthouse on Oct. 10, 1973, after pleading no contest to tax evasion charges and resigning as vice president.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/spiro-agnew-flanked-by-secret-service-agents-leaves-federal-news-photo/515575060?adppopup=true">Bettmann via Getty Images</a></span>
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</figure>
<p>Richard Nixon, the president with whom Agnew served, <a href="https://theconversation.com/watergate-at-50-the-burglary-that-launched-a-thousand-scandals-185030">narrowly escaped being indicted</a> for his role in the Watergate burglary and its cover-up. In 2018, the <a href="https://www.archives.gov/research/investigations/watergate/roadmap">National Archives released</a> documents, labeled the Watergate Road Map, that showed just how close Nixon had come to being charged.</p>
<p>The documents <a href="https://www.cnn.com/2018/10/31/politics/richard-nixon-watergate-national-archives-mueller/index.html">reveal</a> that “a grand jury <a href="https://www.law.cornell.edu/wex/bribery">planned to charge Nixon with bribery</a>, <a href="https://www.law.cornell.edu/uscode/text/18/371">conspiracy</a>, <a href="https://www.law.cornell.edu/wex/obstruction_of_justice">obstruction of justice</a> and <a href="https://www.law.cornell.edu/uscode/text/18/1510">obstruction of a criminal investigation</a>.” But an indictment was never handed down because, by that time, Hamilton’s and Coxe’s views had been displaced by a belief that a sitting president should not be indicted.</p>
<p>Nixon was later saved from criminal charges after he left office when his successor, President Gerald Ford, <a href="https://www.fordlibrarymuseum.gov/library/speeches/740061.asp">granted him a full and complete pardon</a>.</p>
<p>Another occasion on which a president came close to being charged with a crime
occurred in January 2001, when, as an article in The Atlantic notes, <a href="https://www.theatlantic.com/ideas/archive/2023/03/trump-indicment-president-prosecution-nixon-clinton/673503/">independent prosecutor Robert Ray considered</a> indicting former President Bill Clinton for lying under oath about his affair with <a href="http://www.cnn.com/SPECIALS/multimedia/timeline/9809/starr.report/narrative/n2.htm">former White House intern</a> Monica Lewinsky.</p>
<p>Ultimately, Ray decided that if Clinton publicly admitted to “having been misleading and evasive under oath … he didn’t need to see him indicted.” </p>
<p>And in February 2021, after President Trump had left office, Republican Senate Minority Leader <a href="https://www.marketwatch.com/story/mcconnell-trump-is-still-liable-for-everything-he-did-read-full-speech-11613254884">Mitch McConnell acknowledged</a> that the former president, who had escaped being removed from office twice after being impeached, would still be legally “liable for everything he did while he was in office … We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”</p>
<h2>What history teaches about Trump’s indictment</h2>
<p>This brings us to the present moment.</p>
<p>For any prosecutor, including Alvin Bragg, the indictment and arrest of a former president is a genuinely momentous act. As Henry Ruth, one of the prosecutors who was involved in the Nixon case, <a href="https://www.theatlantic.com/ideas/archive/2023/03/trump-indicment-president-prosecution-nixon-clinton/673503/">explained in 1974</a>, “Signing one’s name to the indictment of an ex-president is an act that one wishes devolved upon another but one’s self. This is true even where such an act, in institutional and justice terms, appears absolutely necessary.” </p>
<p>For the rest of us, this nation’s history is a reminder that ours is not the first generation of Americans who have been called to deal with alleged wrongdoing by our leaders and former leaders.</p><img src="https://counter.theconversation.com/content/203134/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The arrest of a former American president is unprecedented, but the nation’s founders anticipated the day would come.Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2021432023-03-23T01:35:07Z2023-03-23T01:35:07ZWe now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains<p>The Albanese government has now released the formal wording of the proposed referendum it will introduce into parliament next week. </p>
<p>It had earlier released a draft proposed amendment at the Garma Festival last year, which was intended to start a debate on the wording. Since then, this wording has been the subject of intense discussion and debate in the Referendum Working Group, comprised of Indigenous representatives, which has been advising the government.</p>
<p>It has also been scrutinised by the Constitutional Expert Group, which has provided legal advice in response to questions raised by the Referendum Working Group. </p>
<p>Many other Australians have raised ideas and concerns in the media and in communications with the government, which have been the subject of analysis and deliberation.</p>
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<strong>
Read more:
<a href="https://theconversation.com/the-referendum-rules-have-been-decided-what-does-this-mean-for-the-voice-201372">The referendum rules have been decided. What does this mean for the Voice?</a>
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<h2>What do the words say?</h2>
<p>The wording of the proposed amendment will be as follows:</p>
<blockquote>
<p><strong>Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples</strong></p>
<p><strong>129 Aboriginal and Torres Strait Islander Voice</strong></p>
<p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:</p>
<p>(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;</p>
<p>(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;</p>
<p>(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1638699476826353664"}"></div></p>
<h2>What is new?</h2>
<p>First, it is now clear this amendment will be placed in its own separate chapter at the end of the Constitution in a new section 129. </p>
<p>The title of the chapter makes clear it is directed at the “recognition” of Aboriginal and Torres Strait Islander peoples in the Constitution. </p>
<p>This recognition then flows through to some introductory words which form a preamble at the beginning of the section. These words provide “recognition” of Aboriginal and Torres Strait Islander peoples as the “First Peoples of Australia”.</p>
<p>The terminology used is careful. It avoids the use of “First Nations”, which is politically more contentious and might have given rise to implications drawn from the term “Nation”. </p>
<p>The description “Aboriginal and Torres Strait Islander peoples” is long-standing and well-accepted, and the statement that they were the First Peoples of Australia is one of fact and recognition.</p>
<p>The rest of the proposed amendment remains the same except for a minor alteration of words at the end of sub-section (3). </p>
<p>Importantly, the guaranteed ability of the Voice to make representations to the executive government remains. </p>
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<p>However, concerns about this have been addressed by the alteration to sub-section (3). </p>
<p>The concern that had been raised was the High Court might draw an implication from sub-section (2) the representations by the Voice must be considered by government decision-makers before they can validly make a decision, potentially resulting in litigation and the delay of decision-making. </p>
<p>While this concern had little to no substance, there was a suggestion some words should be added to the end of sub-section (3) to make it abundantly clear it was a matter for parliament to decide what the legal effects of the Voice’s representations would be. </p>
<p>Parliament could make the decision that in some cases decision-makers would be obliged to consider representations first, but there would be no such obligation in relation to other types of decisions.</p>
<p>This has now been accommodated by a compromise set of words added to the end of sub-section (3). </p>
<p>These words say parliament can make laws with respect to “to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”</p>
<p>The words “relating to” and “including” broaden the scope of this power. </p>
<p>They are intended to permit parliament to legislate about the effect of the Voice’s representations, so it is a matter for parliament to decide whether the representations of the Voice must be considered by decision-makers when making administrative decisions. </p>
<p>They are also intended to permit parliament to extend the powers and functions of the Voice as and when needed in the future.</p>
<h2>The question on the ballot</h2>
<p>The ballot paper never sets out the whole constitutional amendment, as in many cases, it would go for pages. </p>
<p>Instead, voters are asked to approve the proposed law, as it is described in its long title. </p>
<p>So the question put on the ballot will be set out as follows:</p>
<blockquote>
<p>A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.</p>
<p>Do you approve of this alteration?</p>
</blockquote>
<p>Voters then write Yes or No.</p>
<h2>What now?</h2>
<p>The amendment bill is intended to be introduced next week. When it is introduced, a parliamentary committee will be set up to allow the public to make their own submissions about the amendment. </p>
<p>Anyone who has concerns can have their voice heard by the committee and it remains possible that the committee might recommend alterations to the wording. </p>
<p>After the committee reports, the amendment bill will be debated in June and if passed, it will go to a referendum between two and six months after its passage. It will then be a matter for the people to decide.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
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<img src="https://counter.theconversation.com/content/202143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and occasionally does consultancy work for governments and parliaments. She is a member of the Constitution Expert Group that advised the Referendum Working Group upon the proposed amendment.</span></em></p>Here’s what the question says, what’s new and what happens next.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2000562023-02-22T19:05:18Z2023-02-22T19:05:18ZNo, the Voice isn’t a ‘radical’ change to our Constitution<p>Some people have criticised the draft proposal for a First Nations Voice as a <a href="https://www.skynews.com.au/opinion/peta-credlin/voice-to-parliament-a-trojan-horse-in-the-heart-of-australias-constitution/video/a2c545aa48d85dfdf4d6cd458c2542ef">radical</a> change to Australia’s Constitution.</p>
<p>This view is reflected in <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">recent calls</a> by some Liberal members of parliament for a different model that will be palatable to constitutional conservatives, and in <a href="https://www.afr.com/politics/federal/we-need-a-minimalist-voice-the-whole-country-can-support-20230207-p5cijp">concerns expressed</a> by some commentators.</p>
<p>But this is incorrect – the current model for the Voice is constitutionally conservative. </p>
<p>Here’s why.</p>
<h2>Conservative or radical?</h2>
<p>A quick reminder. The government is made up of three branches:</p>
<ul>
<li><p>the legislature (the parliament, which makes laws)</p></li>
<li><p>the executive (the cabinet — the prime minister and senior ministers — and government departments, which create policy and put laws into action)</p></li>
<li><p>and the judiciary (the High Court and other courts, which interpret laws).</p></li>
</ul>
<p>The current draft of the constitutional amendment would allow the Voice to advise both the legislature and the executive. Proponents of this <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">say</a> it’s important the Voice is able to lobby both the parliament as well as cabinet ministers and government departments.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-voice-referendum-how-did-we-get-here-and-where-are-we-going-heres-what-we-know-198299">The Voice referendum: how did we get here and where are we going? Here's what we know</a>
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<p>But some critics <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">have suggested</a> the Voice should advise parliament <em>alone</em>, and not the executive. That would help ensure the Voice doesn’t lead to High Court challenges, especially challenges to cabinet decisions that don’t properly consider the Voice’s advice.</p>
<p>The concern here is that the Voice could significantly change the country’s constitutional structure by shifting power over Aboriginal and Torres Strait Islander affairs from the executive and parliament to the judiciary. </p>
<p>Liberal Senator Andrew Bragg <a href="https://www.smh.com.au/national/voice-s-ability-to-lobby-bureaucrats-crucial-advocate-says-amid-high-court-challenge-fears-20230205-p5ci0g.html">said</a>: “No one wants a transfer of power from parliament to the High Court; we want to avoid becoming like the US.”</p>
<p>However, allowing the Voice to advise both the executive and parliament <em>is</em> the constitutionally conservative option. To put it another way, it’s the model most consistent with Australia’s current and historical constitutional practice. </p>
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<h2>A consistent change</h2>
<p>A key feature of Australia’s constitutional system is that lawmaking is an integrated process shared by the executive and parliament. Parliament publicly debates and formally enacts legislation. The executive does most of the policy formation before laws are enacted, and most of the implementation after they’re enacted. </p>
<p>The executive is also responsible for making large swathes of legislation through its delegated lawmaking powers. </p>
<p>A model where the Voice can only advise parliament, and not also the executive, presumes a clear distinction between the two arms of government that doesn’t exist in Australia.</p>
<p>To minimise disruption to the existing constitutional system, the Voice needs to be structured in a way that allows it to work with the lawmaking process as it currently operates.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1625376815337316353"}"></div></p>
<p>The <a href="https://www.pm.gov.au/media/address-garma-festival">current draft</a> of the proposed text on the Voice affirms, and in fact expands, parliament’s power. It reads:</p>
<ol>
<li><p>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</p></li>
<li><p>The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.</p></li>
<li><p>The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.</p></li>
</ol>
<p>Parliament is the institution given the power to make laws about the Voice’s constitution. This provides parliament with the ability to adapt and develop the Voice in the future, as circumstances require. This is consistent with the role parliament performs in relation to other institutions mentioned in the Constitution.</p>
<p>The draft text confers no new role or powers on the High Court, which is another way in which the Voice is constitutionally conservative. It reinforces the existing centres of decision-making on Aboriginal and Torres Strait Islander affairs – the executive and parliament – by establishing a body that gives advice to these arms of government.</p>
<p>What’s more, attempting to immunise the Voice completely from legal challenge would be far from constitutionally conservative. No part of the Australian Constitution has ever been entirely immune from litigation.</p>
<p>It’s a fundamental aspect of the rule of law in Australia that the judiciary ensures the Constitution is respected. That has been the case since federation. The current draft of the constitutional amendment reflects that fact. It leaves the judiciary to interpret the Voice’s provisions in the same way it has interpreted the Constitution’s other provisions for the past 120 years.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/young-people-may-decide-the-outcome-of-the-voice-referendum-heres-why-199599">Young people may decide the outcome of the Voice referendum – here's why</a>
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<p>Possible modifications to the text designed to reduce the chance of High Court litigation could, in fact, increase the chance of litigation and possibly take power away from parliament.</p>
<p>Say, for example, the text is changed to state that the Voice may give advice only to parliament. What if parliament later decides it wants the Voice to give advice directly to the minister for Indigenous Australians? That choice would now give rise to the prospect of litigation and invalidation. The High Court could be asked: has parliament exceeded its constitutional powers because the text of the Constitution refers only to advice to parliament?</p>
<p>Even if the text is modified in other ways, separating advice given to the executive from that given to parliament would introduce a narrow distinction into the Constitution. Those types of distinctions are a common cause of High Court litigation.</p>
<p>For those seeking a constitutionally conservative option for the Voice, the model that aligns most closely with the existing system of government is one that allows the Voice to advise both arms of government, grants parliament broad powers to regulate the Voice, and leaves the High Court’s longstanding supervisory jurisdiction intact.</p><img src="https://counter.theconversation.com/content/200056/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott Stephenson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The current draft wording is the model most consistent with Australia’s current and historical constitutional practice.Scott Stephenson, Associate Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1976042023-02-08T13:42:04Z2023-02-08T13:42:04ZWhat the First Amendment really says – 4 basic principles of free speech in the US<figure><img src="https://images.theconversation.com/files/507966/original/file-20230202-5680-ll0ht.jpg?ixlib=rb-1.1.0&rect=298%2C381%2C2619%2C1641&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protection that is, at least in this Philadelphia park, carved in stone.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:First_Amendment_to_the_U.S._Constitution.jpg">Zakarie Faibis via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Elon Musk has claimed he believes in free speech no matter what. He calls it a <a href="https://twitter.com/elonmusk/status/1597405399040217088">bulwark against tyranny in America</a> and promises to reconstruct Twitter, which he now owns, so that its policy on free expression “<a href="https://twitter.com/elonmusk/status/1519036983137509376">matches the law</a>.” Yet his grasp of the First Amendment – the law that governs free speech in the U.S. – appears to be quite limited. And he’s not alone.</p>
<p>I am a lawyer and a professor who has taught constitutional concepts to undergraduate students for over 15 years and has written a book for the uninitiated about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">freedom of speech</a>; it strikes me that not many people educated in American schools, whether public or private – including lawyers, teachers, talking heads and school board members – appear to have a working knowledge about the right to free speech embedded in the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment of the U.S. Constitution</a>. </p>
<p>But that doesn’t have to be the case.</p>
<p>In short, the First Amendment enshrines the freedom to speak one’s mind. It’s not written in code and does not require an advanced degree to understand. It simply states: “Congress shall make no law … abridging the freedom of speech.” The liberties embraced by that phrase belong to all of us who live in the United States, and we can all become knowledgeable about their breadth and limitations.</p>
<p>There are just four essential principles.</p>
<h2>1. It’s only about the government</h2>
<p>The Bill of Rights – the other name for the first 10 amendments to the U.S. Constitution – like the Constitution itself and all the other amendments, sets limits only on the relationship between the U.S. government and its people.</p>
<p>It does not apply to interactions in other nations, nor interactions between people in the U.S. or companies. If the government is not involved, the First Amendment does not apply.</p>
<p>The First Amendment ensures that Twitter is, in fact, free of government restrictions against <a href="https://www.nytimes.com/2022/11/20/opinion/donald-trump-twitter-return.html">spreading misinformation and disinformation</a> or virtually anything else. The company is similarly free to <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">expel any users</a> who offend Musk’s personal sensibilities. They can be <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">booted off Twitter</a> and any charges of “Censorship!” don’t apply.</p>
<h2>2. For decades, speech has faced very few limits</h2>
<p>Freedom of expression was understood by the nation’s founders to be a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016815">natural, unalienable right</a> that belongs to every human being. </p>
<p>Over the course of the first 120-plus years of the country’s democratic experiment, judicial interpretation of that right slowly evolved from a limited to an expansive view. In the middle of the 20th century, the Supreme Court ultimately concluded that because the right to speak freely is so fundamental, it is subject to restriction <a href="https://supreme.justia.com/cases/federal/us/395/444/">only in limited circumstances</a>. </p>
<p>It is now an accepted doctrine that tolerance for discord is built into the very fabric of the First Amendment. In the words of one of the most revered Supreme Court justices, Louis D. Brandeis, “<a href="https://supreme.justia.com/cases/federal/us/274/357/#tab-opinion-1931857">it is hazardous to discourage thought, hope and imagination</a>; … fear breeds repression; … repression breeds hate; … hate menaces stable government.” </p>
<p>Opinions, viewpoints and beliefs – which are sometimes based on provable fact, other times on hypothetical theories and occasionally on lies and conspiracies – all contribute to what constitutional scholars and lawyers refer to as the “<a href="https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas">marketplace of ideas</a>.” Similar to the commercial marketplace, the marketplace of ideas subjects all products to competition. The hope is that only the best will survive.</p>
<p>Therefore, members of the <a href="https://www.oyez.org/cases/2010/09-751">Westboro Baptist Church can picket the funerals of fallen soldiers</a> with signs disparaging the LGBTQ+ community, <a href="https://supreme.justia.com/cases/federal/us/432/43/#tab-opinion-1952312">Nazi hate groups</a> can hold rallies and <a href="https://supreme.justia.com/cases/federal/us/373/262/">civil rights groups can participate in lunch-counter protests</a>. The ideas expressed by each of these groups represent one perspective in the public debate about rights and privileges, government responsibility and religion. Other people and groups may disagree, but their perspectives are also protected from government censorship and repression.</p>
<p>Messages communicated by means other than speech or writing are generally protected by the First Amendment, too. A jean jacket bearing the Vietnam-era anti-war slogan “<a href="https://www.oyez.org/cases/1970/299">F*ck the Draft</a>” is protected, as is the act of <a href="https://supreme.justia.com/cases/federal/us/491/397/">burning a United States flag</a> in front of a crowd. These were potentially more emotionally powerful than politely worded statements opposing government policies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people stand nearby while a U.S. flag burns." src="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It may be upsetting to see – but that’s part of the point of burning a flag, and a key reason it’s protected by the First Amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-communist-party-usa-and-other-anti-fascist-news-photo/1230698352">Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>3. But not all speech is protected</h2>
<p>The government does, in fact, have the power to regulate some speech. When the rights and liberties of others are in serious jeopardy, speakers who <a href="https://www.oyez.org/cases/1940-1955/315us568">provoke others into violence</a>, <a href="https://www.oyez.org/cases/1963/39">wrongfully and recklessly injure reputations</a> or <a href="https://www.oyez.org/cases/1968/492">incite others to engage in illegal activity</a> may be silenced or punished. </p>
<p>People whose words cause actual harm to others can be held liable for that damage. Right-wing commentator Alex Jones found that out when courts ordered him to pay <a href="https://www.texastribune.org/2022/11/23/alex-jones-texas-lawsuit-damages/">more than US$1 billion in damages</a> for his statements about, and treatment of, parents of children who were killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut. </p>
<p>So, abortion opponents can say what they wish but <a href="https://www.mtsu.edu/first-amendment/article/706/planned-parenthood-of-the-columbia-willamette-inc-v-american-coalition-of-life-activists-9th-cir">can’t threaten or terrorize abortion providers</a>. And the white supremacists who rallied in Charlottesville, Virginia, in 2017 can shout to the rafters that Jews will not replace them, but they can be <a href="https://www.washingtonpost.com/dc-md-va/2023/01/03/charlottesville-unite-the-right-damages/">held liable for the intimidation, harassment and violence</a> they used to amplify their words. </p>
<p>Rules about incitement to illegal action are part of the <a href="https://www.pbs.org/newshour/show/justice-department-examines-trumps-conduct-in-jan-6-probe">U.S. Department of Justice’s investigation</a> into whether former President Donald Trump is at all responsible for the violence at the Capitol on Jan. 6, 2021. On that day, <a href="https://www.factcheck.org/2021/01/trumps-falsehood-filled-save-america-rally/">citing unproven, even disproved, events</a>, Trump <a href="https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial">delivered a speech</a> insisting the 2020 presidential election was rife with fraud. </p>
<p>However, <a href="https://www.law.cornell.edu/supremecourt/text/11-210">the First Amendment doesn’t protect only true statements</a>. Trump has a constitutional right to advocate for his perspective. Even his references to violence might be considered shielded from criminal prosecution by the superpower of the First Amendment. That superpower would evaporate only if a court finds that, when he spoke the words that day, “And if you don’t fight like hell, you’re not going to have a country anymore,” his intent was to <a href="https://www.washingtonpost.com/opinions/2022/12/19/jan-6-committee-report-trump-referrals/">incite the violence that followed</a>.</p>
<h2>4. What’s legal isn’t always morally correct</h2>
<p>Finally, and perhaps most importantly: Moral boundaries to acceptable speech are different, and often much narrower, than constitutional boundaries. They should not be conflated or confused.</p>
<p>The First Amendment right to speak freely as an exercise of people’s natural rights does not mean everything anyone says anywhere is morally acceptable. Constitutionally speaking, ignorant, demeaning and vitriolic speech – including hate speech – are all protected from government repression, even though they may be morally offensive to the majority.</p>
<p>Still, some people insist that malicious and emotionally hurtful speech <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">adds no value to society</a>. That is one reason used by people who seek to <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">cancel or ban controversial speakers from college campuses</a>. </p>
<p>Indeed, virulent speech may even <a href="https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html">weaken the democratic exchange of ideas</a>, by discouraging some people from participating in public discussion and debate, to avoid potential harassment and scorn. </p>
<p>Nonetheless, that sort of speech remains firmly under the umbrella of First Amendment defenses. Each person must decide how their own humanity and morality allows them to speak for themselves.</p><img src="https://counter.theconversation.com/content/197604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Congress shall make no law … abridging the freedom of speech.’ It’s often misunderstood, by many Americans. A constitutional scholar explains what it really boils down to.Lynn Greenky, Associate Professor of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1981812023-01-25T16:48:19Z2023-01-25T16:48:19ZHow the UK government’s veto of Scotland’s gender recognition bill brought tensions in the union to the surface<p>From calls for a second <a href="https://www.bbc.com/news/uk-scotland-scotland-politics-50813510">Scottish independence referendum</a> and speculation about <a href="https://www.bbc.co.uk/news/uk-wales-politics-49018127">“indy-curiousity”</a> in Wales, to the collapse of the power-sharing agreement in <a href="https://www.theguardian.com/politics/2019/apr/26/northern-ireland-power-sharing-stormont-crisis-timeline">Northern Ireland</a>, the state of the UK union has been the subject of much political discussion over the past decade.</p>
<p>Traditionally, devolution has followed a so-called <a href="https://ukandeu.ac.uk/long-read/the-possible-break-up-of-the-united-kingdom/">devolve and forget</a> model. The UK parliament transfers law making power to the devolved legislatures to exercise as they see fit, as long as they do so within the <a href="https://centreonconstitutionalchange.ac.uk/the-basics/what-meant-devolved-and-reserved-powers">defined limits</a>.</p>
<p>However, the UK government’s recent blocking of Scotland’s <a href="https://theconversation.com/qanda-why-are-the-scottish-and-uk-governments-going-to-court-over-gender-recognition-laws-197981">gender recognition bill</a> suggests political and legal relationships are <a href="https://ukandeu.ac.uk/reshaping-devolution-the-united-kingdom-internal-market-act-2020/#:%7E:text=Historically%2C%20devolution%20has%20followed%20a%20%E2%80%98devolve%20and%20forget%E2%80%99,Rights%20under%20s29%20%282%29%20%28d%29%2C%20Scotland%20Act%201998%29">being tested</a>, and maybe even reshaped. </p>
<p>The fallout over Scotland’s gender recognition bill has not happened in isolation. It is important to understand the events which have led to recent <a href="https://www.express.co.uk/news/politics/1722040/scottish-gender-bill-blocked-conservative-snp-nicola-sturgeon-constitution">headlines</a> declaring the UK is heading for a “<a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseoflords/house-of-lords-reform/overview/constitutionalcrisis/">constitutional crisis</a>”.</p>
<h2>Brexit</h2>
<p>Since 2016 the UK has seen heightened pressure on relationships within the union. </p>
<p>The Brexit referendum highlighted <a href="https://www.bbc.co.uk/news/uk-politics-36616028">differences</a> among the UK’s nations and regions, for example Scotland’s 62% and Northern Ireland’s 55.8% vote to remain within the EU. These differences weren’t recognised by the ultimate decision to pull the UK completely out of the EU (with some <a href="https://www.nidirect.gov.uk/articles/eu-exit-and-northern-ireland-protocol#toc-1">exceptions for Northern Ireland</a>).</p>
<p>Similarly, the pandemic led to a period of more prominent <a href="https://www.bbc.co.uk/news/uk-wales-54328474">policy differences between the four nations</a>, highlighting how the devolved governments diverged from Westminster.</p>
<p>Then came the <a href="https://www.legislation.gov.uk/ukpga/2020/27/contents/enacted">UK Internal Market Act</a> in late 2020. With the UK no longer bound by EU law, there was a post-Brexit risk that nations could make different rules for devolved areas, such as agriculture. This could have created new trade barriers between different parts of the UK, as well as making pursuing new international trade agreements more difficult. </p>
<p>The Scottish and Welsh governments <a href="https://www.instituteforgovernment.org.uk/article/explainer/uk-internal-market-act#:%7E:text=The%20UK%20Internal%20Market%20%28UKIM%29%20Act%20puts%20the,new%20barriers%20for%20businesses%20trading%20across%20the%20UK.">opposed the act’s approach</a>. Nonetheless, in implementing a common standard for the whole of the UK, ministers in Westminster now have control over traditionally devolved areas under the new law.</p>
<p>Last year, the Scottish government’s push for a second independence referendum ended up at the <a href="https://www.supremecourt.uk/cases/docs/uksc-2022-0098-judgment.pdf">supreme court</a>, which ruled Holyrood didn’t have the power to hold such a vote. This reasserted the legal dominance of Westminster in deciding if, and when, such a question may be put to the people of Scotland once more.</p>
<p>Meanwhile in Wales, there have been <a href="https://www.bbc.co.uk/news/uk-wales-politics-63303690">heated exchanges in the Senedd</a> between First Minister Mark Drakeford and Conservative members regarding the leadership of the UK and devolved funding models, particularly in relation to the financing of the NHS.</p>
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<figcaption><span class="caption">An angry exchange in the Senedd between First Minister Mark Drakeford and Andrew Davies, leader of the Welsh Conservatives, over the NHS in Wales.</span></figcaption>
</figure>
<p>In Northern Ireland, the <a href="https://www.bbc.co.uk/news/uk-northern-ireland-57583168">power-sharing government</a> collapsed again in October. This time due to disagreements over the <a href="https://www.gov.uk/government/publications/northern-ireland-protocol-the-uks-solution">UK’s new relationship with the EU</a>. The situation shows little sign of being resolved. Specifically, the Democratic Unionist Party continues to block power-sharing in protest at <a href="https://www.theguardian.com/politics/2023/jan/18/ministers-set-six-week-window-to-decide-on-northern-ireland-elections">post-Brexit trading arrangements</a>, which treat Northern Ireland differently to the rest of the UK.</p>
<p>These various events show the working relationships between the UK’s different governments are under renewed pressure. In turn, instead of reaching political compromise through <a href="https://www.gov.uk/government/collections/intergovernmental-relations">intergovernmental working</a>, the UK government has responded by relying on its law-making dominance. </p>
<h2>Law v politics</h2>
<p>Last week, and for the first time, the UK government decided to invoke <a href="https://commonslibrary.parliament.uk/section-35-of-the-scotland-act-and-vetoing-devolved-legislation/#:%7E:text=Section%2035%20of%20the%20Scotland%20Act%201998%20has,as%20%E2%80%9C%20a%20matter%20of%20last%20resort%20%E2%80%9D.">section 35 of the Scotland Act</a> to block Scotland’s <a href="https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill">gender recognition bill</a>. These proposals were designed to make it easier for people in Scotland to change their legal gender. However, they have been halted by the UK government on the grounds they would affect equality law for the whole of the UK, and are therefore a <a href="https://www.parliament.uk/site-information/glossary/devolved-and-reserved-matters/">reserved matter</a> for Westminster. </p>
<p>The UK government insists it has not used its powers lightly, and does all it can to <a href="https://www.msn.com/en-gb/news/uknews/government-insists-it-respects-devolution-as-it-blocks-scottish-gender-reform-bill/ar-AA16rrhZ">“respect the devolution settlement”.</a> Yet <a href="https://www.heraldscotland.com/politics/23267981.fm-no-compelling-persuasive-legal-argument-gender-bill/">Nicola Sturgeon has alleged</a> the UK government is denying Scotland its democracy.</p>
<p>Drakeford told the Senedd the block is a <a href="https://www.bbc.co.uk/news/uk-wales-politics-64304540">“dangerous precedent”</a> and that he planned to emulate the Scottish gender recognition legislation. However, it is likely that the UK government would similarly veto any Senedd laws in this area. Drakeford also suggested the Welsh government may be party to <a href="https://www.bbc.co.uk/news/uk-scotland-scotland-politics-64264063">any supreme court action</a> by the Scottish government.</p>
<p>If the supreme court finds gender recognition is within the scope of equality law, and necessitates a UK-wide approach, the legal reality of any court action by the Scottish government is likely to follow a similar approach to previous <a href="https://commonslibrary.parliament.uk/supreme-court-judgment-on-scottish-independence-referendum/">cases</a>. In other words, the law-making dominance of Westminster will prevail.</p>
<p>While <a href="https://commonslibrary.parliament.uk/section-35-of-the-scotland-act-and-vetoing-devolved-legislation/#:%7E:text=Section%2035%20of%20the%20Scotland%20Act%201998%20has,as%20%E2%80%9C%20a%20matter%20of%20last%20resort%20%E2%80%9D.">section 35</a> has never been invoked before, it is part of the foundation for the Scottish parliament’s legal framework. If Wales tried to adopt a similar law to Scotland’s gender recognition bill, it is likely that similar action would be taken by the UK government, given the provisions within the <a href="https://www.legislation.gov.uk/ukpga/2006/32/section/114">Government of Wales Act</a>.</p>
<figure class="align-center ">
<img alt="The Senedd building lit up in the evening" src="https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Senedd in Cardiff.</span>
<span class="attribution"><span class="source">Billy Stock/Shutterstock</span></span>
</figcaption>
</figure>
<p>This does not mean the UK government’s decision on the Scottish bill is without constitutional ramifications. Drakeford has <a href="http://www.senedd.tv/Meeting/Clip/5faf08e7-e61e-4cb6-ad8f-9ab68c35fe45?inPoint=00:31:46&outPoint=00:34:34">described</a> the use of legal power against the Scottish government as a “slippery slope”, in which the UK government is increasingly reliant on legal dominance, rather than respect and dialogue.</p>
<p>For nearly 20 years, governments of every political persuasion respected the <a href="https://researchbriefings.files.parliament.uk/documents/SN02084/SN02084.pdf#:%7E:text=The%20%E2%80%9CSewel%20Convention%E2%80%9D%20is%20a%20colloquial%20term%20for,the%20Scotland%20Bill%201997-98%20on%2021%20July%201998%3A1">Sewel convention</a>. This is a principle stating the UK parliament will not normally legislate in respect of a devolved matter without the devolved government’s consent. While it has been <a href="https://www.supremecourt.uk/cases/uksc-2016-0196.html">ruled</a> the convention is not legally enforceable, it exists to ensure the decisions of devolved governments are respected by the UK government.</p>
<p>However the 2016 Brexit referendum set a new precedent for these working relationships. The Scottish parliament withheld consent for the <a href="https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted">EU (Withdrawal) Act</a>, which removed the influence of the EU institutions in the UK and paved the way for cutting off sources of EU law via the <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-7793/">‘great repeal’</a>. </p>
<p>All three devolved nations also withheld consent for the <a href="https://www.legislation.gov.uk/ukpga/2020/1/contents/enacted">EU (Withdrawal Agreement) Act</a>, the law that was needed to ratify the Brexit withdrawal agreement negotiated between the UK and EU. Nonetheless, both were still passed by the UK parliament.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/t1BHhZ_6AFI?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>The UK government’s veto of Scotland’s gender recognition bill is arguably a further shift away from conventions and reliance upon legal force.</p><img src="https://counter.theconversation.com/content/198181/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The fallout over the Scottish government’s gender recognition legislation has not happened in isolation.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1977782023-01-13T20:38:07Z2023-01-13T20:38:07ZVoters have few options to remove George Santos from Congress – aside from waiting until the next election<figure><img src="https://images.theconversation.com/files/504483/original/file-20230113-14-zq62bx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rep. George Santos leaves the U.S. Capitol on Jan. 12, 2023, followed by reporters. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1456010393/photo/embattled-newly-elected-rep-george-santos-is-sought-after-by-reporters-on-capitol-hill.jpg?s=1024x1024&w=gi&k=20&c=5qWU_1KtaUqMVDo7LvMqkWfmL8qHJmVE7XwbaG2rkn8=">Win McNamee/Getty Images</a></span></figcaption></figure><p>There are <a href="https://www.yahoo.com/now/congressman-george-santos-resists-growing-173207994.html">mounting calls</a> from both politicians and voters to force the newly elected apparent fabulist U.S. Rep. George Santos from Congress following revelations he fabricated his background and other details of his life. </p>
<p>But New York’s 3rd Congressional District voters, who elected Santos as their representative in November 2022, cannot directly force him out of office until the next election, in November 2024. </p>
<p>It appears that Santos, who beat Democrat Robert Zimmerman during the 2022 midterm election, has woven a web of lies about his personal and professional background, some of them touching on on major historical and tragic events. <a href="https://forward.com/news/529130/george-santos-jewish-lie-genealogy-records/">Santos falsely claimed</a>, for example, to have Jewish ancestry and said that his maternal grandparents fled to Brazil during the Holocaust. He also said that the Sept. 11, 2001, terrorist attacks seemingly “<a href="https://www.washingtonpost.com/politics/2022/12/29/george-santos-mother-911-death/">claimed” the life</a> of his mother – who actually died in 2016.</p>
<p>Santos said he graduated from Baruch College in the top 1% of his class and from NYU’s Stern School of Business – but <a href="https://www.nytimes.com/2022/12/26/nyregion/george-santos-interview.html?searchResultPosition=3">he never attended</a> either institution, nor did he graduate from college. </p>
<p>He also lied about his work experience, <a href="https://fortune.com/2022/12/27/george-santos-admits-lies-college-graduation-citigroup-goldman-sachs-jewish-long-island-queens/">falsely claiming</a> Citigroup and Goldman Sachs as former employers. </p>
<p><a href="https://www.nytimes.com/2022/12/26/nyregion/george-santos-interview.html">Santos has since admitted</a> to embellishing parts of his résumé and said that he has not worked for CitiGroup or Goldman Sachs – and does not have a college degree. </p>
<p>Although a <a href="https://dankennedy.net/2022/12/23/a-long-island-weekly-had-the-goods-on-santos-several-weeks-before-election-day/">local weekly newspaper</a> raised questions about his background in September, the story did not gain traction until <a href="https://www.washingtonpost.com/media/2022/12/29/north-shore-leader-santos-scoop/">The New York Times published its</a> own story in December 2022. If the voters had known about these lies before the election, Santos might have lost. </p>
<p>As a scholar of <a href="https://case.edu/law/our-school/faculty-directory/jonathan-l-entin-0">constitutional law</a> and public policy, I think it is important to understand that voters have limited options at this point. Forty states provide for <a href="https://ballotpedia.org/Laws_governing_recall">the recall of state and local elected officials</a>. But there is no <a href="https://www.everycrsreport.com/reports/RL30016.html">federal recall law</a> that could lead to the removal of someone like Santos from Congress.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits raise their hands, surrounded by other men and one women in formal clothing." src="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504484/original/file-20230113-19-61gavq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Santos and other members of Congress are sworn into office on Jan. 7, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246172509/photo/fourth-day-of-118th-congress.jpg?s=1024x1024&w=gi&k=20&c=VZpuLG0oZTTghKfdWqOBYoM59EJ6k8tiiCECK5mYY9c=">Elizabeth Frantz/For The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>There are few federal options to remove Santos</h2>
<p>The Nassau County Republican Committee and other local offices in Santos’ Long Island district <a href="https://www.aljazeera.com/news/2023/1/11/local-ny-republicans-call-on-disgraced-congressman-santos-to-quit">are calling for</a> him to step down. Several Republican House members have joined the chorus.</p>
<p>Santos, meanwhile, has said that he will not resign. </p>
<p>“I was elected by 142,000 people. Until those same 142,000 people tell me they don’t want me, we’ll find out in two years,” <a href="https://www.reuters.com/world/us/us-rep-santos-opens-door-resignation-if-142-people-ask-2023-01-12/">Santos recently said</a>. </p>
<p>He may be right.</p>
<p>The Constitution says that members of Congress can <a href="https://constitution.congress.gov/browse/article-2/section-4/">be impeached and removed</a> for treason, bribery or other offenses. <a href="https://constitution.congress.gov/browse/article-1/section-5/clause-2/">The Constitution does not</a> specify grounds for expulsion – or actually removing someone from office – leaving that to each chamber of Congress to determine. </p>
<p>The Constitution also says nothing about recall elections. </p>
<p>The Supreme Court has also never specifically addressed the legality of a federal recall, but two other rulings suggest that such a law would be unconstitutional. The court first <a href="https://www.oyez.org/cases/1968/138">determined in 1969</a> that Congress may not refuse to seat a duly elected member who meets the constitutional qualifications for office. And it also <a href="https://www.oyez.org/cases/1994/93-14565">ruled in 1995</a> that states may not impose term limits on members of Congress, because that would add an additional qualification for membership beyond the citizenship, age and residency requirements mentioned in the Constitution. </p>
<p>Even if a federal law authorizing the recall of members of Congress were adopted and survived a legal challenge, the legislative and legal processes would consume virtually all of Santos’ two-year term. So recalling Santos is not a promising option, even if it were legal.</p>
<p>Critics might also try to get the House to expel Santos. But expulsion is exceedingly rare. The House has expelled only five members in its entire history, most for joining the Confederacy <a href="https://www.usatoday.com/story/news/factcheck/2021/01/02/fact-check-14-congressmen-expelled-1861-supporting-confederacy/4107713001/">during the Civil War</a>. </p>
<h2>Ethics concerns are at play, though</h2>
<p>Santos would not be committing any crime simply by telling lies. Maybe he did other things that violated the law – state, federal and Brazilian authorities <a href="https://www.nytimes.com/2022/12/28/nyregion/george-santos-long-island-investigation.html?searchResultPosition=8">are currently investigating</a> whether he used campaign funds for personal expenses, and whether he committed fraud in Brazil by using someone else’s checkbook to pay his bills. </p>
<p>But Santos will not automatically lose his office even if he is convicted of any crime. The House does not require members to forfeit their office in those circumstances – or even if they go to prison. </p>
<p>Santos’ case, however, does raise ethics concerns that members of Congress can address. Two House Democrats from New York <a href="https://www.axios.com/2023/01/10/george-santos-ethics-committee-complaint">have filed ethics complaints</a> against Santos with the House Ethics Committee regarding incomplete financial disclosure forms. </p>
<p>This bipartisan committee investigates alleged law violations by Congress members and makes recommendations to <a href="https://ethics.house.gov/about">the full House</a>. Ethics Committee recommendations are not legally binding. The House itself must consider them, though. In any event, this process probably would extend far into or beyond Santos’ term. </p>
<p>Santos might also resign if the Ethics Committee recommended his expulsion. That has happened on several occasions. In 1986, Sen. <a href="https://www.senate.gov/artandhistory/history/common/expulsion_cases/140HarrisonWilliams_expulsion.htm">Harrison Williams</a> resigned when facing an Ethics Committee’s recommendations that he be expelled because of corruption. In 1995, Sen. <a href="https://www.nytimes.com/1995/09/08/us/packwood-case-overview-packwood-says-he-quitting-ethics-panel-gives-evidence.html">Robert Packwood</a> left his post for the same reason. </p>
<p>Rep. Mario Biaggi of New York also stepped down before an expulsion vote <a href="https://www.nytimes.com/1988/08/06/nyregion/biaggi-quits-will-not-seek-an-11th-term.html">in 1988</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person stands and leans into a voting box in a gymnasium." src="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=350&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=350&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=350&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=439&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=439&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504485/original/file-20230113-20-7p0nn6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=439&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Voters in Garden City, New York, vote in October 2020.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1284810362/photo/early-voting-booth-in-nassau-county-new-york.jpg?s=1024x1024&w=gi&k=20&c=u6UksNYbIqqwN8dQxcsXn00wqi7f2czC53Zb79jhBJ0=">Chris Ware/Newsday via Getty Images</a></span>
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</figure>
<h2>No clear exit ahead</h2>
<p>In short, Santos would be able to serve most or all of his term even if the House did ultimately vote to expel him. But there are additional complications. <a href="https://www.archives.gov/founding-docs/constitution-transcript">The Constitution requires</a> a two-thirds vote to expel a member of Congress. Such a supermajority is unlikely, especially in a House with <a href="https://www.npr.org/2022/12/31/1146453695/republicans-turn-to-2023-with-narrow-house-majority">a narrow majority</a> in which every vote counts and when Republicans might be hard-pressed to win a special election to fill Santos’ vacancy.</p>
<p>Voters who are appalled by George Santos’ apparent lies have little direct leverage to force him out of office quickly. Their first and best opportunity will come in 2024 if Santos decides to seek another term. Voters could defeat him in the Republican primary, where he surely would face opposition. And if he somehow survived the primary, he would still have to face a Democrat in the general election.</p><img src="https://counter.theconversation.com/content/197778/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Entin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There is no federal recall law that could lead to another election for Santos’ seat. But Santos’ case presents ethics concerns that the House may review.Jonathan Entin, Professor Emeritus of Law and Adjunct Professor of Political Science, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968412022-12-19T21:57:46Z2022-12-19T21:57:46ZWhat the criminal referral of Trump means – a constitutional law expert explains the Jan. 6 committee action<figure><img src="https://images.theconversation.com/files/501988/original/file-20221219-24-bna81y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Jan. 6 House Committee announced four recommended charges against Donald Trump, including conspiracy to defraud the US.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1450388267/photo/house-select-committee-to-investigate-the-january-6th-attack-on-the-u-s-capitol-holds-final.jpg?s=612x612&w=gi&k=20&c=E1rElTdlVPQiszH-7ZgsepscBa6aIY5H8C1o4izW81M=">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p><em>After 18 months investigating, <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">the House Select Committee to Investigate the January 6 Attack on the United States Capitol held its final public meeting</a> on Dec. 19, 2022. The panel recommended that the U.S. Department of Justice bring criminal charges against former President Donald Trump for his efforts to overturn the 2020 presidential election results.</em> </p>
<p><em>The House committee recommended that the Justice Department pursue four main charges against Trump – <a href="https://www.law.cornell.edu/uscode/text/18/1505">obstruction of an official proceeding</a>, <a href="https://www.law.cornell.edu/uscode/text/18/371">conspiracy to defraud</a> the U.S., conspiracy to <a href="https://www.law.cornell.edu/uscode/text/18/1001">make a false statement</a> and <a href="https://www.law.cornell.edu/uscode/text/18/2383">inciting or assisting</a> an insurrection. The committee also recommended <a href="https://twitter.com/nprpolitics/status/1604924716833275955">that the House Ethics Committee</a> sanction four Republican members of Congress who refused the committee’s subpoena requests to provide information about the events of Jan. 6.</em></p>
<p><em>But what does that all mean? The Conversation asked <a href="https://law.scu.edu/faculty/profile/russell-margaret/">Margaret Russell</a>, professor of constitutional law at Santa Clara University, to help explain why these recommended charges are important, where they fall short – and what could come next.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle aged Black man with a white beard wears sunglasses and stands in front of the U.S. Capitol building, as he is surrounded by people holding up voice recorders and phones." src="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/501950/original/file-20221219-14-zsgze.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. Rep. Bennie Thompson, chairman of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, talks to reporters in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1244858949/photo/congress-works-on-capitol-hill.jpg?s=612x612&w=gi&k=20&c=al9RLfPqCreysmniFO5etKirObFJMB1bZQInlCcDbAg=">Drew Angerer/Getty Images</a></span>
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<h2>1. What are the biggest takeaways from these referrals?</h2>
<p>People have wondered whether the proceedings would have any strong result. Now it is clear that the committee does not see these proceedings as primarily about making a historical record. They have done more than that.</p>
<p>One big takeaway is that Trump is at the top of the pile. When the proceedings began it was not clear – though many people suspected and alleged – how much he knew, when he knew it, what he said before Jan. 6, what he knew and said before the election’s certification, and <a href="https://www.theguardian.com/us-news/2022/oct/13/january-6-hearing-key-takeaways">whether he knew</a> he really had not won the election. It is now clear Trump was the architect of most of this conspiracy – and the committee is urging specific accountability for him and other people who played a part in it. </p>
<p>It is also interesting to think about the committee urging criminal prosecution. It really means it reached the brink. This bipartisan committee, which comprised seven Democrats and two Republicans, decided unanimously that backing away from criminal charges would be a dereliction of its duty to recommend, based on what it has found. Committee members are not telling the Department of Justice what it has to do – they can’t. But in their investigatory role they concluded that in order for there to be accountability, they needed to recommend charges.</p>
<h2>2. Do these referrals have any legal teeth?</h2>
<p>The magnitude of these recommended charges, particularly the insurrection one, is unprecedented. Rather than saying they don’t have legal teeth, I think they certainly have very strong teeth in the sense of urging the Department of Justice to make sure that there is accountability. Accountability is a word that jumped out to me in committee members’ statements on Dec. 19 – there must be accountability, even though this committee, of course, cannot force the Department of Justice to do anything. </p>
<p>The charges, of trying to overthrow the government, essentially, go right to the heart of the Constitution. There is no historical precedent for this. The Justice Department’s determination to pursue the referrals would depend on the validity of the House commitee’s findings. And since the department <a href="https://www.washingtonpost.com/national-security/2022/11/15/trump-doj-2024-special-master/">has been doing its own</a> investigation of Trump, it wouldn’t be starting from ground zero. The committee’s work could be added to what it has.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with a gas mask stands in a crowd of people with Trump and American flags and holds up a bronze bust of a man wearing a suit" src="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/501952/original/file-20221219-14-8rbm19.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A rioter at the Capitol attacks on Jan. 6, 2021, holds up a bust of Donald Trump.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1230458006/photo/topshot-us-politics-election-trump.jpg?s=612x612&w=gi&k=20&c=sW1bj2Nb_qAhS5NWlBdWxo2KyauL-Go2Uxfs9ohAK9s=">Roberto Schmidt/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. Will the new GOP Congress have any say in these referrals?</h2>
<p>Now that the report has been handed over and the referrals made, I would imagine the Department of Justice will start considering it. And, so, when there is a difference in leadership of the House there won’t be any way to undo it. The House can conduct its own investigations, but it cannot stop the Department of Justice and it cannot undo this report and its recommendations. Attorney General Merrick Garland has clearly <a href="https://apnews.com/article/politics-donald-trump-merrick-garland-government-and-550c01de053c08db4d53ca57f315feb6">sent a message</a> that the department he runs is not influenced by outside factors. And he has tried to insulate any prosecutions from accusations of political influence by appointing <a href="https://www.justice.gov/opa/pr/appointment-special-counsel-0">a special counsel</a> to oversee the Trump investigations.</p>
<h2>4. Were lawmakers who ignored the subpoenas legally required to obey the committee’s request for testimony?</h2>
<p>I think the answer is yes. The Constitution (Article I, Section 5) states that each chamber makes its own rules that bind its members. The Supreme Court has underscored this constitutional power as well as the legal legitimacy of the congressional subpoena. The consequences of ignoring a congressional subpoena might ultimately wind up within the purview of the Ethics Committee, but there are consequences.</p>
<h2>5. Does the House committee’s report increase the likelihood that Trump will be charged?</h2>
<p>I think it makes a strong argument in the public sphere for the prosecution of Trump, which is what a lot of people have been waiting for. It doesn’t guarantee a prosecution, but it spells out, I think meticulously, why Trump is included in this and at the forefront.</p>
<p>The House committee’s message of accountability – that if the nation is to consider itself to be a democracy that works there must be accountability for Trump and others – was made very powerfully. As committee member <a href="https://www.nytimes.com/live/2022/12/19/us/jan-6-committee-trump">Adam Schiff said on Dec. 19</a>, “I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.”</p><img src="https://counter.theconversation.com/content/196841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret M. Russell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The House Committee’s criminal referrals show that the proceedings are not just about a historical record – they argue that Trump should be held accountable for four criminal charges.Margaret M. Russell, Associate Professor of Law, Santa Clara UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1968512022-12-19T21:11:18Z2022-12-19T21:11:18ZEven if Jan. 6 referrals turn into criminal charges – or convictions – Trump will still be able to run in 2024 and serve as president if elected<figure><img src="https://images.theconversation.com/files/501993/original/file-20221219-26-noptxz.jpg?ixlib=rb-1.1.0&rect=0%2C190%2C7935%2C5012&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Looming large over proceedings.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-image-of-former-president-donald-trump-is-displayed-as-news-photo/1245731847?phrase=January%206&adppopup=true">Jim Lo Scalzo-Pool/Getty Images</a></span></figcaption></figure><p>The <a href="https://www.washingtonpost.com/national-security/2022/12/19/jan-6-committee-hearings-live-updates/?itid=hp-top-table-main_p001_f001">criminal referral of Donald Trump to the Department of Justice</a> by a House committee investigating the Jan. 6 attack <a href="https://www.npr.org/2022/12/19/1143415487/the-jan-6-committee-is-about-to-have-its-last-hearing-heres-what-to-expect">is largely symbolic</a> – the panel itself has no power to prosecute any individual.</p>
<p>Nonetheless, the recommendation that Trump be investigated for four potential crimes – obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement; and inciting, assisting or aiding or comforting an insurrection – raises the prospect of an indictment, or even a conviction, of the former president.</p>
<p>It also poses serious ethical questions, given that Trump has already <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced a 2024 run for the presidency</a>, especially in regards to the referral over his alleged inciting or assisting an insurrection. Indeed, a <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Department of Justice investigation</a> over Trump’s activities during the insurrection is already under way.</p>
<p>But would an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
<figure class="align-left ">
<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection …</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … 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.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol. And one of the four criminal referrals made by the Jan. 6 House committee was over Trump’s alleged role in inciting, assisting or aiding and comforting an insurrection.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
<figure class="align-right ">
<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
</figcaption>
</figure>
<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. </p>
<p>But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office. Of course, managing a presidency from a prison cell would in itself raise myriad issues in regards the handling of sensitive or classified documents.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p>
<p><em>Editor’s note: This is an updated version of an <a href="https://theconversation.com/no-an-indictment-wouldnt-end-trumps-run-for-the-presidency-he-could-even-campaign-or-serve-from-a-jail-cell-194425">article originally published</a> on Nov. 16, 2022.</em></p><img src="https://counter.theconversation.com/content/196851/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A House panel made four criminal referrals in relation to Donald Trump’s alleged role in the attack on the Capitol. Convictions might make him an unpalatable candidate but wouldn’t bar him from running.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956322022-12-06T19:03:15Z2022-12-06T19:03:15ZThe government wants to change Australia’s referendum laws. How will this affect the Voice to Parliament?<figure><img src="https://images.theconversation.com/files/499127/original/file-20221205-20-cjl5s5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>Last week, the Albanese government took another important step towards the referendum on a Voice to Parliament. It introduced a <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6965">bill</a> to make changes to our referendum process, including new arrangements for public education and campaign finance.</p>
<p>Getting the referendum process right is essential if the Voice vote is to be fair and informed. So, what changes has the government proposed, and will they help to achieve that?</p>
<h2>Modernising our outdated referendum rules</h2>
<p>It is more than 20 years since Australia held its last referendum in 1999. That is the longest period in our history without a vote on constitutional change. So much time has passed that only Australians over 40 have any experience voting in a referendum.</p>
<p>One of the effects of this long gap is that the laws governing the referendum process have become stale. Unlike election laws, they have not always been updated to reflect changes in voting and campaigning. And some aspects – like the design of the referendum pamphlet – have barely changed in over a century.</p>
<p>With a Voice referendum on the horizon, it was clear a big update was needed. A major <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Constitutionalreform/Report">parliamentary inquiry</a> said as much in December 2021 when it called Australia’s <a href="https://www.legislation.gov.au/Details/C2022C00073">Referendum Act</a> “outdated and not suitable for a referendum in contemporary Australia”.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=655&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=655&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=655&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=823&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=823&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499164/original/file-20221206-17-lsu8aw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=823&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The last time Australians were asked to consider a constitutional change was in 1999, when the republic referendum was held and failed.</span>
<span class="attribution"><span class="source">Parliament of Australia</span></span>
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</figure>
<p>The federal government proposes to modernise the law in several areas. The arrangements for postal voting, authorisation of advertisements and ballot scrutiny would all be brought into line with election laws.</p>
<p>But the more noteworthy changes concern public education and campaign finance. These are the most sensitive areas covered by the bill and will attract the most debate in the months ahead.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-government-will-not-send-out-yes-and-no-case-pamphlets-ahead-of-the-voice-to-parliament-referendum-does-this-matter-195806">The government will not send out Yes and No case pamphlets ahead of the Voice to Parliament referendum. Does this matter?</a>
</strong>
</em>
</p>
<hr>
<h2>Scrapping the pamphlet</h2>
<p>In a surprise move, the government wants to drop the official Yes/No pamphlet for the Voice referendum.</p>
<p>For over a century, the usual practice has been for governments to mail voters a pamphlet that contains official Yes and No arguments authorised by members of parliament.</p>
<p>The Bill suspends this practice for any referendum held during this parliamentary term. The government <a href="https://ministers.ag.gov.au/media-centre/next-steps-towards-voice-referendum-01-12-2022">says</a> the circulation of a hard-copy pamphlet is outdated in the digital age and that MPs can make their case in other ways, including via television and social media.</p>
<p>The pamphlet has never lived up to its promise as an educative tool. It is designed to persuade, not inform. Past pamphlets have often contained exaggerated or misleading claims that seem designed to confuse or frighten voters. In 1974, for example, the No campaign said “democracy could not survive” a change to how electorates were drawn. At its worst, the pamphlet can serve to spread misinformation rather than counter it.</p>
<p>All the same, many voters will want an accessible source of official information, both on the proposal and the arguments for and against change, to help them make up their own mind. A hard-copy pamphlet can serve that purpose, even in a digital age.</p>
<p>Rather than ditching the pamphlet, the parliament should reform it. It should be revised to include a clear, factual explanation of the proposal, just like similar pamphlets in <a href="https://www.refcom.ie/previous-referendums/referendum-on-termination-of-pregnancy/36th-Refcom-Guide-2018-English.pdf">Ireland</a>, California and New South Wales. The arguments for and against should be shorter, calmer and more considered. And if we can’t trust politicians to formulate quality Yes and No cases, we should give that task to public servants or an independent body.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1599184297503903744"}"></div></p>
<h2>Civics education</h2>
<p>The government says it wants to <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F26234%2F0045%22">focus</a> its public education efforts on a civics campaign that will provide voters with information about “Australia’s constitution, the referendum process, and factual information about the referendum proposal”. The bill temporarily lifts a block on government spending to allow that to happen.</p>
<p>This move is promising, and there is a precedent for it – the Howard government funded a neutral education program for the republic referendum.</p>
<p>But the government has not provided any detail on how the campaign would run. Careful design is crucial if it is to be trusted and effective.</p>
<p>Here the government should heed the recommendation of the 2021 parliamentary inquiry and establish an independent referendum panel to advise on, or even run, the civics campaign. A <a href="https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=/laca/referendums/report.htm">2009 inquiry</a> suggested the same.</p>
<p>To ensure public confidence in the body, its membership could be appointed by the prime minister in consultation with other parliamentary leaders. Ideally, the members would come from diverse backgrounds. The inquiry recommended a panel comprising “constitutional law and public communication experts, representatives from the AEC and/or other government agencies, and community representatives”.</p>
<p>It was disappointing that last week’s announcement made no mention of this idea. The creation of a well-designed, independent body to oversee public education could make a huge difference to voters looking for accessible, balanced and reliable information on the Voice.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499167/original/file-20221206-16-jxhb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It’s a shame parliament has waited so long to make changes to referendum law. But now it has a brief window to explain the changes to Australians.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<h2>No public funding for the Yes and No campaigns</h2>
<p>The government has <a href="https://www.theguardian.com/australia-news/2022/dec/01/indigenous-voice-to-parliament-referendum-vote-foreign-donations-banned-and-campaigns-forced-to-raise-their-own-cash">said</a> it won’t provide public funding to the Yes and No campaigns. Both sides will instead have to rely on private fundraising to pay for advertising and other campaign activities.</p>
<p>This approach has been the norm over Australia’s referendum history. Howard allocated public money to the Yes and No sides in 1999, but that remains a one-off.</p>
<h2>Transparency and accountability in campaign finance</h2>
<p>The bill makes long-overdue changes to the rules on referendum campaign finance.</p>
<p>Labor wants campaigners to publicly report donations and expenditure that exceed the disclosure threshold (which is currently set at $15,200). It would also restrict foreign influence by banning foreign donations over $100.</p>
<p>These changes bring referendum laws into line with ordinary election laws – for better and worse.</p>
<p>They will help to improve accountability and transparency. But they replicate the failings of election laws and fall well short of best practice.</p>
<p>The disclosure threshold is too high, ensuring some large donations will remain anonymous. And Australians will have to wait until after the referendum to find out who gave money to the Yes and No campaigns.</p>
<p>A better approach would be to set a lower threshold and require real-time disclosure, as occurs in some states.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-do-we-know-about-the-voice-to-parliament-design-and-what-do-we-still-need-to-know-195720">What do we know about the Voice to Parliament design, and what do we still need to know?</a>
</strong>
</em>
</p>
<hr>
<h2>The dangers of last-minute rule changes</h2>
<p>Australia’s referendum laws need an overhaul. The government’s bill is a step in the right direction, although it falls short in important areas. It has been referred to the electoral matters committee and will be debated in the new year.</p>
<p>It is unclear if the major parties will reach consensus on all aspects of the bill. The decision to axe the pamphlet has already proved contentious. The Liberal opposition has <a href="https://www.senatorhume.com/media/labors-lack-of-detail-of-risks-the-voice">said</a> that suspending the pamphlet is “worrying” and “puts a successful referendum at risk”.</p>
<p>Unfortunately, conversations about the referendum process are much harder on the eve of a vote. Rule changes, even when well-intentioned, are more likely to be viewed as strategic or self-interested.</p>
<p>Given our long referendum hiatus, it is a shame parliament has waited until now to seriously consider these process reforms. </p>
<p>However, there is now a short window for parliamentarians to work seriously and cooperatively towards a framework that will ensure a fair and informed vote on the Voice to Parliament.</p><img src="https://counter.theconversation.com/content/195632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Kildea has previously received funding from the Australian Research Council.</span></em></p>The Albanese government wants to change the way referendums work ahead of the Voice to Parliament vote. There are still flaws, but it is a step in the right direction.Paul Kildea, Senior Lecturer, Faculty of Law & Justice, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1937572022-11-21T18:21:11Z2022-11-21T18:21:11ZNo, invoking the Emergencies Act isn’t the same as using the notwithstanding clause<figure><img src="https://images.theconversation.com/files/495502/original/file-20221115-19-qsakxa.JPG?ixlib=rb-1.1.0&rect=15%2C0%2C5187%2C3427&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester walks along the sidewalk in front of the Parliament buildings in February 2022 in Ottawa.</span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Adrian Wyld</span></span></figcaption></figure><p><a href="https://torontosun.com/opinion/columnists/goldstein-ford-and-trudeau-are-eroding-our-democratic-rights">Some commentators</a> <a href="https://www.washingtonpost.com/opinions/2022/11/16/canada-constitution-ambiguities-ontario-quebec/">are comparing</a> the federal government’s use of emergency legislation to deal with the prolonged “freedom convoy” protests in Ottawa and the Ontario government’s decision, since abandoned, to invoke the notwithstanding clause to impose back-to-work legislation on education workers. </p>
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Read more:
<a href="https://theconversation.com/preventing-use-of-the-notwithstanding-clause-is-a-bad-idea-and-unnecessary-194097">Preventing use of the notwithstanding clause is a bad idea — and unnecessary</a>
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<p>Is there any merit to the comparison?</p>
<p>Virtually none.</p>
<p>At worst, it’s based on a crude depiction of what each legal mechanism allows a government to do. Since both the <a href="https://laws-lois.justice.gc.ca/eng/acts/e-4.5/page-1.html">Emergencies Act</a> and <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html">the notwithstanding clause</a> authorize governments to suspend the rights of citizens, each is equally offensive to the principles of liberal democracy. Or so the argument goes.</p>
<h2>Motivations are critical</h2>
<p>What this argument fails to appreciate is that the reason for the suspension in either case makes all the difference.</p>
<p>The Emergencies Act permits the federal government to take “special temporary measures to ensure safety and security during national emergencies.” </p>
<p>Written into the act is an explicit definition of what constitutes a national emergency, a declaration that the exercise of powers under the act must comply with obligations under various rights documents (including the <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/">Charter of Rights and Freedoms</a>) and that an inquiry into the appropriateness of its use begin within 60 days of the order being lifted.</p>
<p>The notwithstanding clause, on the other hand — or Sec. 33 of the Charter — permits both the federal and provincial governments to enact legislation even if it violates other rights protected under the Charter.</p>
<p>In a word: the presence of an “emergency” distinguishes one from the other.</p>
<p>Emergency legislation operates in response to an emergency situation, and only for as long as an emergency situation persists.</p>
<p>Not so with the notwithstanding clause. Invoking the clause is not a legislative response to an emergency, but rather to a disagreement. More specifically, it’s a response to a disagreement between a legislative body and a body of judicial review. </p>
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<img alt="Orange autumn leaves and the Canadian flag fram the Supreme Court building" src="https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&rect=0%2C0%2C8627%2C5548&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495492/original/file-20221115-11-tsmzvn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The notwithstanding clause’s original intent was to prevent the possibility of courts becoming radical.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Sean Kilpatrick</span></span>
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<h2>‘Rogue judiciary’</h2>
<p>The notwithstanding clause offers a check against the possibility of a rogue judiciary becoming overly radical in its duties, which, <a href="https://theconversation.com/in-defence-of-the-notwithstanding-clause-why-canada-should-hold-onto-it-186375">as I’ve written before</a>, is in alignment with Canada’s unique constitutional history.</p>
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Read more:
<a href="https://theconversation.com/in-defence-of-the-notwithstanding-clause-why-canada-should-hold-onto-it-186375">In defence of the notwithstanding clause: Why Canada should hold onto it</a>
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<p>Safeguards that apply to the Emergencies Act don’t apply to the notwithstanding clause. </p>
<p>It would make little sense, for instance, to set up an inquiry to review whether a government was justified in violating the rights of citizens via the notwithstanding clause since the entire rationale of Sec. 33 was to grant final say in the matter to the government in question. </p>
<p>And it would make little sense to require use of the clause to comply with broader obligations under the Charter. That’s because its very use makes clear that a government has declared its legislative intentions are worthy of a rights violation.</p>
<p>So comparing the Emergencies Act to the notwithstanding clause due simply to the rights-violating potential of each is misguided. </p>
<h2>‘Antagonistic’</h2>
<p>Recent uses of the notwithstanding clause by the <a href="https://www.cbc.ca/news/canada/montreal/quebec-laicity-secularism-bill-1.5075547">Québec government</a>, which used it pre-emptively in two bills, and <a href="https://www.cp24.com/news/ontario-passes-election-spending-bill-with-notwithstanding-clause-1.5469529?cache=pawumraq">Ontario</a>, which invoked it after passing legislation in 2021 and then invoked it pre-emptively last month, are antagonistic to our broader constitutional commitments. </p>
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<img alt="A man wheels boxes of documents into a courthouse." src="https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495501/original/file-20221115-19-ytsdio.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Court documents are rolled into the Québec Court of Appeal on the first day of hearings on the appeal of Bill 21 in Montréal on Nov. 7, 2022. The Québec government has pre-emptively invoked the notwithstanding clause twice in recent years.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Paul Chiasson</span></span>
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<p>The legitimacy of the notwithstanding clause is grounded in the possibility that an elected legislative body may disagree with how a court has balanced a rights violation in a given case. </p>
<p>Under these conditions, it could be argued that granting final say to the elected body over the unelected court is democratically appropriate.</p>
<p>But when a government chooses to invoke the clause pre-emptively — as appears to now be the trend — even before disagreement with a review body has had a chance to materialize, that’s no longer a democratically appropriate way to resolve a dispute. Pre-emptively invoking Sec. 33 transforms it into an authoritative mechanism to enforce legislation that violates constitutional rights.</p>
<p>There’s no argument that can square this manoeuvre with the principles of liberal democracy.</p>
<p>The point is seen clearly if we consider <a href="https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html">Sec. 1 of the Charter</a>, the so-called “reasonable limits” clause. </p>
<p>In every case where a review court finds that a given piece of legislation violates a Charter right, the government in question is given an opportunity to explain why that violation represents a justifiable limit on the enjoyment of the right.</p>
<h2>Shutting down dialogue</h2>
<p>That opens a dialogue between the offending government and the review court on the objectives of the legislation at issue, and whether those objectives are pressing enough to justify a limitation of the violated right.</p>
<p>Pre-emptive use of the notwithstanding clause circumvents this vital step in the process. Far from being part of the dialogue, it shuts down dialogue altogether. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/its-the-40th-anniversary-of-the-charter-of-rights-and-freedoms-but-recent-protests-show-a-serious-misunderstanding-of-what-those-mean-178758">It's the 40th anniversary of the Charter of Rights and Freedoms, but recent protests show a serious misunderstanding of what those mean</a>
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<p>Pre-emptively invoking Sec. 33 does great damage to our constitutional heritage. Invoking the Emergencies Act in the event of an emergency does no such thing.</p>
<p>If the notwithstanding clause becomes little more than a tool for political expediency, any rationale for including it in the Charter in the first place is lost. </p>
<p>Its pre-emptive use effectively guts Canadian democracy and nullifies the Charter. The consequences could be dire.</p><img src="https://counter.theconversation.com/content/193757/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Geoff Callaghan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s no equivalence between invoking the Emergencies Act and the pre-emptive invocation of the notwithstanding clause, which guts Canadian democracy and nullifies the Charter.Geoff Callaghan, Assistant Professor, Political Science, University of WindsorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1944252022-11-16T13:29:52Z2022-11-16T13:29:52ZNo, an indictment wouldn’t end Trump’s run for the presidency – he could even campaign or serve from a jail cell<figure><img src="https://images.theconversation.com/files/495552/original/file-20221116-21-l1o2i3.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C2000%2C1320&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former US President Donald Trump speaks in Palm Beach, Florida, on Nov.15, 2022.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-speaks-at-the-mar-a-lago-news-photo/1244812333?phrase=trump&adppopup=true">Photo by Alon Skuy/AFP via Getty Images.</a></span></figcaption></figure><p>Donald Trump <a href="https://news.yahoo.com/trump-announces-2024-run-president-015331045.html">announced his 2024 run for the presidency on Nov. 15</a>. In his address he railed against what he perceived as the “persecution” of himself and his family, but made scant mention of his legal woes.</p>
<p>Confirmation of Trump’s White House bid comes at a curious time – a week after a <a href="https://www.politico.com/news/2022/11/09/2022-election-results-analysis-and-takeaways-00065878">lackluster Republican midterm performance</a> that <a href="https://www.nbcnews.com/politics/2022-election/trump-hurt-republicans-2022-elections-numbers-point-yes-rcna56928">many blamed on him</a>. Moreover, it comes as the former president faces <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">multiple criminal investigations</a> over everything from his <a href="https://www.theguardian.com/us-news/2022/nov/14/donald-trump-handled-records-marked-classified-after-presidency-court-filing-alleges">handling of classified documents</a>, to allegations of <a href="https://theconversation.com/trump-properties-arent-the-only-ones-to-see-wild-valuations-putting-a-price-on-real-estate-isnt-straightforward-191228">falsifying the value of New York properties</a>. There is also the not-so-small matter of a <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">Justice Department investigation</a> into the Jan. 6 storming of the Capitol.</p>
<p>The announcement has led some to speculate that Trump may be hoping that becoming a presidential candidate will in some way <a href="https://www.theguardian.com/us-news/2022/jul/05/trump-2024-run-us-elections-prosecution">shield him from prosecution</a>.</p>
<p>So, does an indictment – or even a felony conviction – prevent a presidential candidate from running or serving in office? </p>
<p>The short answer is no. Here’s why:</p>
<p>The U.S. Constitution specifies in clear language the qualifications required to hold the office of the presidency. In <a href="https://constitution.congress.gov/browse/article-2/section-1/clause-5/#:%7E:text=No%20Person%20except%20a%20natural,been%20fourteen%20Years%20a%20Resident">Section 1, Clause 5 of Article II</a>, it states: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”</p>
<p>These three requirements – natural-born citizenship, age, and residency – are the only specifications set forth in the United States’ founding document.</p>
<h2>Congress has ‘no power to alter’</h2>
<p>Furthermore, the Supreme Court has made clear that constitutionally prescribed qualifications to hold federal office may not be altered or supplemented by either the U.S. Congress or any of the states.</p>
<p>Justices clarified the court’s position in their 1969 <a href="https://www.oyez.org/cases/1968/138">Powell v. McCormack</a> ruling. The case followed the adoption of a resolution by the House of Representatives barring pastor and New York politician <a href="https://history.house.gov/People/Listing/P/POWELL,-Adam-Clayton,-Jr--(P000477)/">Adam Clayton Powell, Jr.</a> from taking his seat in the 90th Congress.</p>
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<img alt="A button with a man's face on it under the motto 'Keep The Faith, Baby'." src="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=596&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=596&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=596&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=749&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=749&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495444/original/file-20221115-21-uz4qmi.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=749&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Adam Clayton Powell.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/button-promoting-harlem-congressman-adam-clayton-powells-news-photo/534234502?phrase=Clayton%20Powell&adppopup=true">David J. & Janice L. Frent/Corbis via Getty Images</a></span>
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<p>The resolution was not based on Powell’s failure to meet the age, citizenship and residency requirements for House members set forth in the Constitution. Rather, the House found that <a href="https://www.washingtonpost.com/archive/politics/1987/12/15/charges-of-favoritism-tests-of-credibility-at-house-ethics-panel/b878ba60-348e-471f-87aa-ded06cac0e4b/">Powell had diverted Congressional funds and made false reports</a> about certain currency transactions.</p>
<p>When Powell sued to take his seat, the Supreme Court invalidated the House’s resolution on grounds that it added to the constitutionally specified qualifications for Powell to hold office. <a href="https://supreme.justia.com/cases/federal/us/395/486/">In the majority opinion</a>, the court held that: “Congress has no power to alter the qualifications in the text of the Constitution.”</p>
<p>For the same reason, no limitation could now be placed on Trump’s candidacy. Nor could he be barred from taking office if he were to be indicted or even convicted.</p>
<h2>But in case of insurrection…</h2>
<p>The Constitution includes no qualification regarding those conditions – with one significant exception. <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment</a> disqualifies any person from holding federal office “who, having previously taken an oath … 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.” </p>
<p>The reason why this matters is the Department of Justice is <a href="https://www.washingtonpost.com/national-security/2022/09/15/trump-january-6-subpoenas-meadows/">currently investigating</a> Trump for his activities related to the <a href="https://theconversation.com/us/topics/january-6-us-capitol-attack-128973">Jan. 6 insurrection</a> at the Capitol.</p>
<p>Under the provisions of the 14th Amendment, Congress is authorized to pass laws to enforce its provisions. And in February 2021, one Democratic Congressman proposed <a href="https://www.congress.gov/bill/117th-congress/house-bill/1405">House Bill 1405</a>, providing for a “cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States.”</p>
<p>Even in the event of Trump being found to have participated “in insurrection or rebellion,” he might conceivably argue that he is exempt from Section 3 for a number of reasons. The 14th Amendment does not specifically refer to the presidency and it is not “self-executing” – that is, it needs subsequent legislation to enforce it. Trump could also point to the fact that Congress enacted an <a href="https://www.bostonglobe.com/2022/03/11/opinion/confederate-amnesty-act-must-not-insulate-jan-6-insurrectionists/">Amnesty Act in 1872</a> that lifted the ban on office holding for officials from many former Confederate states.</p>
<p>He might also argue that his activities on and before Jan. 6 did not constitute an “insurrection” as it is understood by the wording of the amendment. There are few judicial precedents that interpret Section 3, and as such its application in modern times remains unclear. So even if House Bill 1405 were adopted, it is not clear whether it would be enough to disqualify Trump from serving as president again. </p>
<h2>Running from behind bars</h2>
<p>Even in the case of conviction and incarceration, a presidential candidate would not be prevented from continuing their campaign – even if, as a felon, they might not be able to vote for themselves. </p>
<p>History is dotted with instances of candidates for federal office running – and even being elected – while in prison. As early as 1798 – some 79 years before the 14th Amendment – House member <a href="https://history.house.gov/Historical-Highlights/1800-1850/The-life-of-Representative-Matthew-Lyon-of-Vermont-and-Kentucky/">Matthew Lyon was elected to Congress</a> from a prison cell, where he was serving a sentence for sedition for speaking out against the Federalist Adams administration.</p>
<p><a href="https://aflcio.org/about/history/labor-history-people/eugene-debs">Eugene Debs</a>, founder of the Socialist Party of America, <a href="https://www.washingtonpost.com/dc-md-va/2019/09/22/socialist-who-ran-president-prison-won-nearly-million-votes/">ran for president in 1920</a> while serving a prison sentence for sedition. Although he lost the election, he nevertheless won 913,693 votes. Debs promised to pardon himself if he were elected. </p>
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<img alt="A black and white photo shows a man in a suit and long coat standing in front of a boat." src="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=845&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=845&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=845&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1061&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1061&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495443/original/file-20221115-13-r799l3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1061&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">American socialist Eugene Debs ran for office from prison.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/eugene-v-debs-american-socialist-organized-social-news-photo/515948158?phrase=Eugene%20Debs&adppopup=true">Bettmann / Getty Images</a></span>
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<p>And controversial politician and conspiracy theorist <a href="https://www.nytimes.com/2019/02/13/obituaries/lyndon-larouche-dead.html">Lyndon Larouche also ran for president</a> from a jail cell in 1992. </p>
<h2>A prison cell as the Oval Office?</h2>
<p>Several provisions within the Constitution offer alternatives that could be used to disqualify a president under indictment or in prison.</p>
<p>The <a href="https://constitution.congress.gov/browse/essay/amdt25-1/ALDE_00001013/#:%7E:text=Twenty%2DFifth%20Amendment%2C%20Section%201,Vice%20President%20shall%20become%20President.">25th Amendment</a> allows the vice president and a majority of the cabinet to suspend the president from office if they conclude that the president is incapable of fulfilling his duties.</p>
<p>The amendment states that the removal process may be invoked “if the President is unable to discharge the powers and duties of his office.”</p>
<p>It was proposed and ratified to address what would happen should a president be incapacitated due to health issues. But the language is broad and some legal scholars believe it could be invoked if someone is deemed incapacitated or incapable for other reasons, such as incarceration.</p>
<p>To be sure, a president behind bars could challenge the conclusion that he or she was incapable from discharging the duties simply because they were in prison. But ultimately the amendment leaves any such dispute to Congress to decide, and it may suspend the President from office by a two-thirds vote.</p>
<p>Indeed, it is not clear that a president could not effectively execute the duties of office from prison, since the Constitution imposes no requirements that the executive appear in any specific location. The jail cell could, theoretically, serve as the new Oval Office.</p>
<p>Finally, if Trump were convicted and yet prevail in his quest for the presidency in 2024, Congress might choose to impeach him and remove him from office. <a href="https://constitution.congress.gov/browse/essay/artII-S4-1-1/ALDE_00000282/#:%7E:text=Article%20II%2C%20Section%204%3A,other%20high%20Crimes%20and%20Misdemeanors.">Article II, Section 4</a> of the Constitution allows impeachment for “treason, bribery, and high crimes and misdemeanors.”</p>
<p>Whether that language would apply to Trump for indictments or convictions arising from his previous term or business dealings outside of office would be a question for Congress to decide. The precise meaning of “<a href="https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/">high crimes and misdemeanors</a>” is unclear, and the courts are unlikely to second-guess the House in bringing an impeachment proceeding. For sure, impeachment would remain an option – but it might be an unlikely one if Republicans maintained their majority in the House in 2024 and 2026.</p><img src="https://counter.theconversation.com/content/194425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The former president made little mention of his personal legal battles as he announced his bid to retake the White House.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.