Episode 58 - The Fourteenth Amendment

[00:00:01] Speaker A: We are back. An incomplete history podcast is back. [00:00:05] Speaker B: We were off for a little bit. We had about, I don't know, several months break, but it was maternity leave, because here on an incomplete history podcast, we believe in women's rights to have some leave after having a baby. And we had two babies on the incomplete History podcast. So after some months off, we are back and ready to record. Happy about it. [00:00:32] Speaker A: Hillary had two babies. I didn't have a baby. [00:00:35] Speaker B: Well, but it was a collective baby. [00:00:38] Speaker A: It was a collective baby. So, yeah, we're back. Episode 58. Wow. Yeah. I mean, if we'd kept up with our schedule, if you'd like, been podcasting from the delivery room like I asked you to. [00:00:57] Speaker B: Right. We could have had so much content. [00:01:03] Speaker A: Right. But there's a lot we've been wanting to do, and we kind of have just carved the time out and been like, okay, we're going to do this. Heads up. We might be interrupted by a crying baby. [00:01:17] Speaker B: That's true. [00:01:18] Speaker A: It's a. That's. That's how life. Uh, Hillary, what's the weather like in Florida right now? [00:01:30] Speaker B: It is raining, and I hope that it's not disrupting the recording, because I'm sitting next to the sliding glass door, and it just started coming down really hard. It's warm out right now, but it's set to be in the 20s by this evening or actually into the middle of the night. So we've had these crazy swings in temperature. Really hot down to really cold. And I know the rest of the country is just buried in snow right now, and it is below zero. So I'm not complaining about the cold, but it is quite a shift from being 70 degrees in the morning or the afternoon down into the night. So we're experiencing a bit of a cold snap here, but so is California. So what's going on out there? [00:02:13] Speaker A: Well, I mean, it's not that cold, but it's like 40 degrees overnight. [00:02:20] Speaker B: That's uncomfortable. [00:02:22] Speaker A: That's worse than uncomfortable. We're not prepared for that. [00:02:26] Speaker B: No. You don't have the clothing. Really? [00:02:29] Speaker A: I mean, my condo. I don't have central heating. [00:02:32] Speaker B: Excuse me? [00:02:34] Speaker A: There's no central heating in my condo. No. [00:02:37] Speaker B: What? [00:02:39] Speaker A: Because it's 72 degrees year round. What do I need? [00:02:43] Speaker B: That is a San Diego myth. Every year on my birthday, it's like 100 something degrees in September and October. It's so hot there. [00:02:53] Speaker A: But you grew up more inland. I'm closer to the ocean, and I'm. [00:02:58] Speaker B: Up next to the park, 5 miles inland. [00:03:02] Speaker A: Right, but that 5 miles is a lot. It's very rare. [00:03:08] Speaker B: So you're telling me there are days where. Okay, so you're telling me there are days where you're, like, just fine when it's 110 degrees outside? [00:03:16] Speaker A: It is never 110 at my house since I've lived in San Diego. [00:03:20] Speaker B: Okay. So I lived in Pacific beach, literally on the water, and it was 111 degrees on September 3 of 2011. I can tell you that for sure. It was very warm, and I, too, did not have ac, and it was terrible. But like you said, it's just a couple of days out of the year. [00:03:40] Speaker A: Yeah, it's no big deal. So when, like, 40 degrees hits, it's a major deal. [00:03:47] Speaker B: It's cold. [00:03:47] Speaker A: Yeah, I've got all the blankets out. I'm, like, wearing sweatshirts and sweatpants. [00:03:55] Speaker B: How's Harvey doing? [00:03:57] Speaker A: He hates it. Yeah, he understand it. He buries himself under as many blankets as he possibly can. [00:04:09] Speaker B: Well, should warm up, though, again pretty soon. [00:04:11] Speaker A: Yeah, one would hope so. Let's get right into it, then. Close. [00:04:35] Speaker B: Um. [00:04:40] Speaker A: All right, so the 14th amendment is what we're going to be talking about today. [00:04:46] Speaker B: Very timely topic. It's in the news. But I think that the historical context is important for us to cover so we can understand why the amendment was passed and why it's being brought up so much here in 2024. [00:05:02] Speaker A: Yeah, I could not agree more. So the 14th amendment is one of the three reconstruction amendments passed after the civil war. Congress passes it June 13, 1866, gets ratified two years later, July 9, 1868. And the 13th, 14th, and 15th amendments. These are the Reconstruction amendments. They're kind of bundled together, and it's a republican congress that passes these. And for a brief period, the group in charge, we call them radical Republicans, and they kind of try to reconstruct the country. They reimagine what it means to be a citizen, what that looks like, and these three Amendments are kind of part of that. So the 13th Amendment has to do with abolishing slavery, and the 15th amendment has to do with voting rights. But I think it's the 14th. The 14th is the one that's in the news right now, but I think the 14th is also one of those amendments that maybe initially was not intended to do much more than it seems to be doing on face value, but has been used extensively over the last 150 years. Would you agree with that? [00:06:30] Speaker B: Yeah. And I think what's interesting about the amendment. So it has a few different sections, and each section is being used to make a different argument. Right. I mean, you have some people saying that the 14th amendment should allow a candidate to run no matter what. And then you have some people saying that the 14th Amendment actually explicitly says that not everybody can run for president. So it's interesting to me that it's being used to make arguments on both sides of the current debate, and we can get into that in a little bit. I don't want to just make it completely about that, but we have to remember that these amendments, the 13th, 14th, and 15th, you said it's to kind of reimagine the country, and it's because during this reconstruction era, we are rebuilding our democracy after civil war. And so it has been used many times over 150 years, I think you said. Oh, was this supposed to be used so often? I'm surprised that it's used so often, because to me, it's pretty straightforward about what the intention of it was, but it has been used over and over and over again. And so do you think that they intended for that? [00:07:51] Speaker A: Well, there are a couple of the congressmen who kind of sponsored this amendment. We'll get into the text amendment in a minute. You've got John Bingham of Ohio and Jacob Howard of Michigan. And one of their intentions of the 14th Amendment is to make the first eight amendments to the Constitution parts of the Bill of Rights, make those things that states could not skirt. We're having technical difficulties. Sorry about that. [00:08:24] Speaker B: Make a big problem with the final. [00:08:26] Speaker A: Well, so if it seems like there's a big change in the sound quality or something right here, it's because we're having some technical issues, but we'll get it all ironed out. So John Bingham and Jacob Howard, the sponsors, I do think they feel it's expansive and that it's going to enshrine the Bill of rights in an enforceable way against the states, that states aren't going to be able to circumvent the Bill of Rights by virtue of being us citizen, you have certain rights that the states cannot abridge. What's interesting, though, it fails to protect black people in the south. Right. [00:09:20] Speaker B: Right. I mean, that's why the civil rights amendments have to be passed. [00:09:26] Speaker A: And as we kind of read the text of the amendment, you're going to see kind of the parts of the amendment that states like Mississippi latch onto and can mean. Let's read the very first section. [00:09:42] Speaker B: Tell me to read it. [00:09:44] Speaker A: Yeah, go ahead. [00:09:45] Speaker B: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. [00:10:13] Speaker A: There's a lot. So I would say if you want to know any part of the Constitution by heart, this section, one of the 14th amendment, is as good a section as any. It's got, like three different parts here, right? First, it's clarifying how you become a citizen. Again, it's saying born or naturalized and subject to the jurisdiction that are citizens of the United States and the state they reside in. So if you're born or naturalized in the United States and you happen to live in Mississippi, guess what, Mississippi. You are a citizen of Mississippi. No state shall make or enforce a law which will abridge the privileges or immunities of citizens of the United States. So again, reestablishing federal authority over the states. I remember we've just had a conflict about federal authority versus state authority. When this has passed, nor shall any state depriving a person of life, liberty, or property without due process, nor denied any person within its jurisdiction equal protection and law. So this is the due process and the equal protection clause. And this gets used a lot. Right? [00:11:35] Speaker B: So what is unclear about that? Because to me, it seems pretty darn clear, but yet it's been used over and over again to deny people rights. So how has that happened over time? [00:11:50] Speaker A: So the second phrase, and subject to the jurisdiction thereof, the argument is, if somebody's not subject to the jurisdiction of the United States, then they are not a citizen in the United States. So, for example, this is why, if you're a diplomat to the US and your child's born in the US, your child is not a us citizen because they weren't subject to the jurisdiction of the United States, therefore they're not a citizen. This also gets used with American Indians arguing that if they aren't subject to their jurisdiction in the United States, they can't be citizens. Although American Indians are going to be mentioned in the second section of this amendment. Explicitly. [00:12:46] Speaker B: Explicitly mentioned, right. [00:12:48] Speaker A: I mean, one of the problems I have with this amendment is I think it's trying to do too much. [00:12:56] Speaker B: Well, because you mentioned that usually they're very straightforward and it's broken down into sections, but even section one has a lot of different parts to it. [00:13:06] Speaker A: Right? So this due process clause and equal protection under the. So the gay marriage fight in the United States, this is what gets used to argue you can't summarily deny people the right to marry. Right. That you're denying them due process and equal protection under the law. It gets used a lot. [00:13:32] Speaker B: It was used in abortion as well, right? I mean, I think we covered that in one of our episodes. Yeah, it gets used all the time. And I think this is what I asked you before our audio cut out. Do you think that they intended for that? I don't think so at all. I mean, certainly not the specific examples we gave, but I don't think that it was intended to be used or they didn't imagine it being used for all the different ways that it's been used over the past 150 years. [00:14:02] Speaker A: I mean, if you buy into the idea that they saw it as a way to safeguard the Bill of Rights, then maybe they did on some level. I mean, this is, this is the perennial debate in constitutional history. Constitutional law is, what were the intents? Should we follow the amendments and parts of the constitution based on the intent of the original authors, or does it change? Is it that dynamic document that changes over time? I don't know. I don't have that answer. Right. [00:14:43] Speaker B: Well, nobody does. And that's what we're fighting about it. I think that originalists, right. They're called originalists, people who are just straight by the book. Let's read what it says and then apply it. It's interesting because in the current debate, so we're in January 2024, we're in an election year, in the current debate that is out there and being used, the 14th amendment is being used again, is whether or not Donald Trump should be allowed on the ballot, state by state. Should people be allowed to vote for him for president in 2024? That's the current debate. [00:15:22] Speaker A: Okay, so I'm going to pause you there. So let's get through the second section, and then let's get to that third section that's relevant to this question. [00:15:31] Speaker B: Okay? Want me to read the second section? [00:15:34] Speaker A: Yeah, go ahead and read the second section. [00:15:36] Speaker B: Okay. Representatives shall be appointed among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians, not taxed. But when the right to vote at any election for the choice of electors for president and vice president of the United States, representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state being 21 years of age and citizens of the United States, or in any way abridged except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such state. That is a stupid, stupid sentence. [00:16:23] Speaker A: Yeah. [00:16:26] Speaker B: I'm reading it and I go, oh, my God, there's this one sentence. [00:16:31] Speaker A: So here's the thing. If you're Mississippi and this gets ratified, there's an out for you to make it so black men cannot vote in Mississippi. So excess except for participation in rebellion or other crime. So if you start to create legislation that criminalizes certain activities, you can all but assure every black male citizen in your state is found guilty of a crime. And it's interesting because there's the documentary, there's books, 13th Amendment, about making an argument that the 13th amendment abolishes slavery, but the carcera system kind of reinforces it. It's the 14th amendment. It's this line right here, because it gives an out to states. It says you actually can deny voting and representation if you have been involved in rebellion or other crime. [00:17:32] Speaker B: It's almost like someone wrote their dissertation about this. [00:17:35] Speaker A: Yeah. [00:17:36] Speaker B: Before that documentary came things. So the carceral state does replace slavery in a way, because if you can find somebody guilty of a crime, all sorts of things start becoming crimes in order to stamp out or abolish, prohibit the participation of black men, and then later, black women in. In society, right? I mean, in voting and so many different things, because if you have any sort of convictions, it. It takes you out of the running for not just voting, but many different things, for jobs, for housing, and using the 14th amendment to say, well, if you're a criminal, you don't get to do these things. You're denied all of these rights. Because we're saying everybody has all these rights except if. And so then, of course, you just start making everything a crime. And vagrancy laws were one of the really big ones that vagrancy, meaning if you were seen out loitering, you could be convicted of a crime. [00:18:42] Speaker A: Without a job, right? Without a job, right. [00:18:45] Speaker B: And it's like, well, how do you know? It's all just interconnected, right? So the 14th Amendment and the 13th Amendment are used to me, kind of against their intention, or maybe that was the intention anyway, it's been used. [00:19:01] Speaker A: So I don't think the radical Republicans intended this to be used to deny black men the right to vote. But what Mississippi does, just to kind of walk the listeners through how it would work, is so slavery gets abolished. And so you've got suddenly all these African Americans in Mississippi who are in a place like Mississippi. I use that as an example because they're particularly egregious on this and they're the ones that kind of lead the way in skirting these amendments. Right. They kind of pioneer in a really bad way. [00:19:40] Speaker B: They're always last in so many things, but first in, first in pioneering ways to the Constitution. [00:19:48] Speaker A: So you've got all these African Americans who are without a. Because, you know, they're formerly enslaved, slaved people is no longer there, so they technically don't have jobs. Mississippi passes these vagrancy laws that state if you're kind of caught loitering and you don't have a job, you can be arrested. Right. And that's what they do. That's what they do. And then they put these men. It's almost universally men that they're arresting. They put these men into jail and then oftentimes those jails rent prisoners out to the plantations. [00:20:30] Speaker B: It's called convict leasing. [00:20:33] Speaker A: So these men suddenly find themselves right back where they were before the civil. [00:20:38] Speaker B: War and the state becomes the slave owner. And then the state ends up leasing convicts out to, yes, the plantations and they work exactly as they were before, but now have absolutely no rights. And if they carry that conviction beyond their term of imprisonment, they still have no rights. Right. [00:21:04] Speaker A: Right. There's no voting that they have. These municipalities also get permission for the plantations to beat these men to enforce work and stuff. It's a reinstitution of the status quo in a place like Mississippi. Things have changed slightly, but they really do find a way to skirt around this. Right. And then the argument is, well, you've been convicted of this crime, you no longer have voting rights, you don't enjoy the full privileges of citizenship in the state of Mississippi and the United States. [00:21:48] Speaker B: This is still an issue in several. [00:21:50] Speaker A: Right, right. So there has been a move in recent years to overturn legislation in individual states that made convicts ineligible to vote. And not a lot of states. Some states have actually said, those are pretty insidious laws and they tend to be applied unevenly. So we're going to get rid of those. Some states have said, no, we're going to keep them. [00:22:32] Speaker B: And you can guess how that breaks down. [00:22:36] Speaker A: Yes. In your mind, draw a map. [00:22:41] Speaker B: In your mind, draw a map. [00:22:44] Speaker A: Yes. But rebellion gets mentioned in section two explicitly. And section three is going to expand on this. And section three is what's in the news right now. So section three says, 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 vote of two thirds of each house to remove such disability. All right, January 6, four years and ten days ago. [00:23:50] Speaker B: You believe that was four years ago. [00:23:52] Speaker A: It doesn't seem like it was four years ago. [00:23:54] Speaker B: It seems like we've been living on that day. It just kind of paused, and everything's just been that day, politically speaking. [00:24:01] Speaker A: So two states, Maine and Colorado, have bumped Donald J. Trump off the ballot. And their argument is, he's in violation of article 14, section three. It says that he engaged in insurrection or gave aid and comfort to the enemies thereof. Right? So the argument is, he gets booted off. Now, interestingly enough, the state of California had the chance to do this, and they decided not to. So the question becomes this. Is it constitutionally legitimate behavior for Maine in Colorado to boot Trump off the ballot? [00:24:52] Speaker B: Well, so the counterargument to it also uses the 14th Amendment right to say, no, you can't boot him off the ballot, because everyone should be able to get to vote for whoever they want to vote for. But that's. The 14th Amendment says, yes, but accept these people for whoever you want for, you can vote for whoever you'd like, except for anyone who's been involved in insurrection. And what I think is interesting about the wording of this, it's not just someone who's directly involved in insurrection, but giving aid or comfort to the enemies. And, I mean, there is ample evidence to suggest not just involvement, but the aid and comfort part is just so explicitly clear. But the big question that everyone is saying is like, well, was January 6 an insurrection in the first place? That seems to be the argument being. [00:25:51] Speaker A: Made as more and more those transcripts from the trial come out and the things people are saying come out, where they're saying, no, yeah, we were going to kill people if we had. [00:26:04] Speaker B: I watched it live, and I've seen footage, I've seen documentaries. It's absolutely an insurrection because it's actively trying to overthrow the government, the democratically elected government of the country, through force. Just a plain, simple definition of what insurrection is. If you just watch ten minutes of footage, you can see that that's exactly what was happening. [00:26:28] Speaker A: So let me ask you this. Does there have to be a conviction. [00:26:32] Speaker B: Oh, a conviction of insurrection before they're taken off comfort. [00:26:39] Speaker A: I mean, it doesn't say there does. [00:26:41] Speaker B: It doesn't say there has to be, right? And I think state by state, people want to talk about states rights. States rights? States rights. Like, does the state have the right to take off somebody from the ballot who participated in insurrection? [00:27:00] Speaker A: I mean, my perspective is this. The amendment says if you've engaged in insurrection or rebellion or given aid or comfort to the enemies thereof, you're ineligible, which means you can't be on the ballot. But it does give an out. It says, but Congress may vote by two thirds of each house, remove such disability. [00:27:21] Speaker B: Do you think it should go to Congress? [00:27:23] Speaker A: So Congress, the House and the Senate could vote on this and they could say, nope. Here's the thing, though. If you're a congressman and you enter a vote in the affirmative, that he should be able to be on ballots, that you're removing that disability, what are you admitting in the process? [00:27:50] Speaker B: Yeah, exactly. If you say it should be removed, then you're saying, well, he did do it, but we'll just allow it in this case. And I was listening in preparation for the episode, right, about the trial. And Trump's attorneys were saying, well, it wasn't actually an insurrection because an insurrection should last more than a few hours and should extend past one building. And it's like, okay, so your insurrection failed. Because had it not failed, I mean, had they been able to continue and weren't stopped, it would have absolutely lasted for a lot longer because they were trying to take over the government by force to overturn the results of the election. And it was interesting to me listening to their argument saying, well, it didn't even last that long. Well, it didn't last that long because we stopped when they said, oh, let's go home. [00:28:44] Speaker A: So John Brown gets convicted of insurrection, right? That only lasted a few hours in one place, right? [00:28:56] Speaker B: That's what I'm saying. The argument is preposterous, right, to say that, because what I would ask them then is, well, how long does it need to take place for? Does it need to happen over the course of 6 hours? And they needed to take over two or three buildings? I mean, what is your parameter for what would constitute an insurrection? And again, you don't have to look very far and you don't have to look for very long to see the footage of the Capitol building of the United States being taken over by insurrectionists. And many of them were carrying confederate flags with them. So there's so much carryover from when this amendment was passed in the wake of the civil war into what's happening in 2024 and again, 150 years after the fact. But we're talking about intention, the original intention. And I think this is exactly what the amendment was written for. To say, everyone but these folks can run and you can vote for anybody unless they're trying to overthrow our way of know. [00:30:08] Speaker A: Right. And it says, if you've taken an oath to support the constitution, because what you've done is you have gone back on that. [00:30:19] Speaker B: Exactly. [00:30:20] Speaker A: You know, no matter what your views on Donald Trump are, he has a very casual attitude towards oaths and contracts. [00:30:35] Speaker B: Yeah, and that's the thing, right? Setting aside politics, I mean, it's hard to do that, but that's exactly right. It says very explicitly, you made an oath, you broke the oath. So then you broke the rules, and you don't get to do this anymore. And this isn't something that's invented by Democrats. This isn't something that's invented by the Biden supporters. This is something that we enshrined in the constitution of this country to say, these are the rules for participating in our political system. You have broken those rules. You no longer get to participate. It's just a very black and white thing. [00:31:13] Speaker A: Yeah, well, I mean, overwhelmingly, the men that are denied the ability to run for office and hold office initially as a result of this are almost all overwhelmingly democrats. [00:31:26] Speaker B: Oh, right. No, that makes perfect sense. [00:31:33] Speaker A: I want to get to the fourth section, then we can end in the fifth because the fifth is like, one short sentence, but the fourth section, because I want to bring it up. Another insurrectionist. Okay, in this section four, do you want to read section four? [00:31:49] Speaker B: Sure. Section four. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for service and suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss of emancipation of any slave. But all such debts, obligations, and claims shall be held illegal and void. Another stupid sentence. Well, I mean, they really needed a copy editor here. [00:32:26] Speaker A: Yeah. So section four. First of all, that first part, it can't be questioned. The debt can't be questioned. Congress should not be able to hold. Certain members of Congress should not be able to hold the budget hostage every year. [00:32:43] Speaker B: Right. Well, geez, they're always doing that. [00:32:45] Speaker A: I mean, it says it right here. But what I want to get to more, because I said I wanted to talk about an insurrectionist. Ashley Babbitt. [00:32:53] Speaker B: Oh, the San Diego from San Diego. [00:32:56] Speaker A: Who has these unhinged videos she recorded as she was driving to DC. Right as she was making her way there. But here's. [00:33:06] Speaker B: She was shot. Let's be clear who we're talking about. [00:33:08] Speaker A: She was shot. [00:33:09] Speaker B: She was shot at the insurrection. [00:33:12] Speaker A: At the insurrection. And there's a lawsuit I think her family is bringing. Is that true? I think it is, yeah. Her mother, Mickey, with an I, is attempting to sue the government. And here's the thing. 14th Amendment, section four, says you don't have to pay that because she was engaged in insurrection. So it's not illegal debt. Right. So if the lawsuit. Even if the lawsuit, they were found liable for it, they don't have to pay that obligation because she was engaged in insurrection. And there's ample body of evidence of the things she had posted and said before the attack on Capitol building. It's clear that's what she was doing. I guess it comes down to this. And then section five, super fast. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Great, thanks. Which is kind of boilerplate stuff for these amendments. But it gets down to, what is insurrection? What is rebellion? It's not asking for convictions for either thing, though. And I think it could clear a lot of things up if instead of engaged, it said, shall have been convicted of engaging in insurrection or rebellion. [00:35:01] Speaker B: Well, so let's look at the dictionary definition. Just a straight google. What is insurrection? It's a noun, a violent uprising against an authority or government. Now, that's just a very simple sentence. Politicians didn't write that. [00:35:24] Speaker A: A. I suppose you could make some argument that Donald Trump didn't do that, but it says. [00:35:30] Speaker B: Aid or, right, aid or. And what's interesting, so what I want to talk about, too, here is the aid part. We have a sitting Supreme Court justice whose wife paid for buses to DC for the insurrectionists. Shouldn't he recuse himself from any sort of proceeding that goes to the Supreme Court? Right? Because we're talking. I mean, what's interesting about the 14th amendment is it's passed in reaction to the civil War. But what happened on January 6, 2021, to me, is like textbook of what this amendment was written about. Anybody who is helping an insurrection, anybody who's participating in insurrection, anybody who's supporting it, or comforting or aiding financially, emotionally, whatever, those type of people must be barred from running for office in this country because they have, like you said, broken their oath. And there are lots of people who are, you know, I don't know if they predicted that something like this would happen again. I think they were trying. The reason it was written, they didn't want Jefferson Davis to be president, right? That's why it was written explicitly for one person. He was the president of the Confederacy. And they're just like, yo, he's not going to be the president of the United States. You can't even vote for this guy. Like, we're done. But this is what's happening right now. It's a very similar situation. [00:37:12] Speaker A: And it's the Supreme Court that's going to make this decision. Right? [00:37:15] Speaker B: And the Supreme Court. Clarence Thomas, who sits on the supreme Court, his wife, Jenny Thomas, paid for insurrectionists to go to DC and to revolt against the sitting government, to revolt against the results of an election, to remove people from. To hang the vice president of the United States. They were going to kill this guy. I mean, if you look at footage of that day, you could see these guys just running in the hallways, right? Terrified, scared for their lives. There is a literal violent mob attacking this building. They built gallows outside. [00:37:57] Speaker A: Literally. Literally. [00:37:59] Speaker B: Not gallows. Yes. Chanting hang Mike Pence, who's a member of their party, right? [00:38:07] Speaker A: And this is not symbolic either. There's enough audio and testimonial evidence now that they actually intended that if anybody stopped them, if they couldn't force Mike Pence to do what they wanted, they would execute him. [00:38:24] Speaker B: So this is protecting. Just know Mike Pence is a Republican. He's the vice president alongside Trump. The running mean to me. I know it's ridiculous to say it's not political. Of course it is. But removing the politics from it, I mean, this is like just a safety thing, trying to protect the lives of people, right? Because you cannot have violent mobs of citizens attacking the government and trying to execute politicians for their own safety. Right? [00:39:04] Speaker A: But Hillary, Hunter Biden. [00:39:08] Speaker B: But the cocaine. [00:39:10] Speaker A: But Hunter Biden. [00:39:12] Speaker B: But he did. [00:39:13] Speaker A: I mean, and Hilltog's emails and the emails. [00:39:23] Speaker B: What's so terrifying to me is a lot of the discussion I have heard people and in documentaries I've watched and things of January 6 who just completely think it was the right thing. Like, they do admit that it was an insurrection and they think that it was the absolute correct thing to do and that it was protecting the country and trying to establish this mob rule. There are a lot of individuals in that camp who don't deny that it was an insurrection. But stay true to the fact that they think that it was the right thing to do. And those people have not gone anywhere. They're not going anywhere this year. Scares me. What do you think? [00:40:14] Speaker A: Well, so the Supreme Court gets to make the decision, right? I think California made the right decision to not bump him off the ballot. I think bumping him off the ballot adds fuel to the fire. It confirms the worst suspicions of these reactionaries who support him unapologetically in whatever he does. [00:40:40] Speaker B: And we saw last night was the Iowa caucus. [00:40:44] Speaker A: Well, but this is the thing. If you look at the past winners of the Iowa caucus, as far as republican candidates go, it's a rogues gallery of, um. [00:40:54] Speaker B: But it was a landslide. [00:40:57] Speaker A: But it was terrible, was, it was terrible weather. Who's going to get out in that terrible weather? People who drive their lifted ram, dodge Ram trucks around with their Trump flags and the kind of f Joe Biden flags around. They're the ones who are going to show up to vote in that. Right. And this is, this is kind of. [00:41:22] Speaker B: A, something about, though, the extreme support. [00:41:27] Speaker A: That is so it's funny, when he was first running for president, Trump bragged he could shoot somebody on Fifth Avenue and his supporters would still support him. And it's come to be that that is, in fact, actually the case last week or the week before. No, it was last week where his lawyers, they did this whole thought experiment and they basically said that Trump would be able to basically order political assassinations with impunity, that executive privilege meant that he could do that and escape prosecution. And that's scary. Right? So I think the Supreme Court, I think, is going to do one of two things. They're going to pun it back to the states and just say states have control over who gets on their ballots. [00:42:32] Speaker B: Or. [00:42:36] Speaker A: Honestly, I think they're going to say there's no conviction. You can't keep him off the ballot. [00:42:43] Speaker B: Which is anything about conviction. [00:42:44] Speaker A: I know that. I know that. So it's funny that we're going to see Clarence Thomas, who says he's an originalist. Clarence Thomas is going to come in and basically advocate for the insertion of a word in this amendment that doesn't exist. Those are my predictions. I don't see them doing anything else. We know they're going to do this rapidly, too. This is going to be a rapid decision they engage in. Oh, you need to start. Say that again. [00:43:32] Speaker B: So they are going to have to decide really quickly. They have to, because the election is happening this year. They're not going to be able to set it aside and put it off in the back burner because we need a decision on this rapidly. [00:43:48] Speaker A: We do, right? We need this rapidly. Particularly since Trump seems to be leading everybody else and is on track to get the republican nominations unless things change. Here's the thing, though. There's some historical precedent in this. Convictions weren't necessary. Oftentimes when this section three was being enforced in the wake of the civil war, it was widely accepted. Convictions weren't necessary. Congress would summarily refuse to seat members who were part of the insurrection, who were given aid and comfort. There were also civil actions that were kind of brought against these people to kind of say, this happened. So what does that mean? There's historical precedent. You don't have to have a conviction. If the Supreme Court comes in and says you have to have a conviction, none of them can call themselves the originalist anymore. That's complete bs at that point, right? They're inserting words and ignoring the way the law has been used in the past. Now this court has a pattern of ignoring the way things have been done in the past. You know, I don't know. It's a mess, right? Who would have thought in 2024 we'd be talking about the insurrection clause of section three of article 14, the 14th amendment? [00:45:29] Speaker B: Well, it is, and it's not predictable. I mean, I think that eventually there was going to be some because there's so much left behind from the civil war that was not taken care of in the first place. We've talked about that so many times on this show, and it was kind of just like waiting to brew up. And here we are. But it's a long time later. But it's some of the same grievances that tore this country apart the first time, I think. So they do have to have this rapid decision. I think it's interesting what you said about California, where you think that it was good that California was just like, just let him be on the ballot. That doesn't worry you, though? Do you think that if it's a Trump Biden matchup again, do you think that Trump's not going to be reelected? I wish people could see your face right now because your face is like, so. [00:46:31] Speaker A: Me. Let me bring this up to get us back. I don't think he will be, but I think it would be close if he were to be reelected. Let me bring up this interesting piece of, bit of information, though. There has been someone who has been disqualified based on the 14th amendment in the wake of January 6. So there was a county commissioner in New Mexico who was removed from office in 2022 because of his involvement in January 6. There was no conviction. His conviction was he was video. He was like TikTok livening himself. Right. And that's the thing, is that, interestingly enough, in the era of social media, a lot of people provide the evidence, the ample evidence themselves. So does a person have to be convicted of insurrection to be disqualified? Legal opinion right now is no. Most of the individuals who have been kind of removed from the ballot or removed from office as a result of, via the 14th Amendment, section three, were not convicted of a crime. In 1919, they refused to seat Victor Berger in the house because he was, quote, disloyal to the United States, giving aid and comfort to a public enemy, and publication of expressions hostile to the government. So this had to do with World War I, the great war. Right. And then 2022, Kui Griffin from New Mexico was removed from office because of his involvement in January 6. But there was a civil lawsuit that was involved in that. So citizens in New Mexico brought a lawsuit against him because of it. Does section five of the amendment, though, make it so you have to have a conviction? There's the argument there, right? [00:48:43] Speaker B: I don't think so. I mean, I think if it gets handed over to Congress, they need to make that decision rapidly, too. Right? It doesn't say anything about a conviction. It just says that they get kind of the final say in it. [00:48:58] Speaker A: So. 18 USC section 23 80 of the US code, unanitated title 18, crimes and criminal procedures. Rebellion or insurrection. This is federal law. Whoever insight sets on foot if sister engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives a comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both, and shall be being capable of holding any office under the United States. So you would have to have a conviction. You would have to have a federal conviction for that law to come into effect. [00:49:41] Speaker B: But that's in process, too, right? [00:49:44] Speaker A: Yeah, but I mean, that would be. The argument is that men in Colorado don't have a right. Barring a civil lawsuit, they may not have a right to do it. It's messy. [00:50:07] Speaker B: What makes it so messy is the time. Right? We are so short on time here, and we know that notoriously, these institutions move at a snail's pace, and we need clarity on what's going to happen. That's part of what's really frustrating about all this. A decision needs to be made right now. We need to figure this. [00:50:29] Speaker A: If so, what happens if the Supreme Court says Trump can't be kept off ballots and Trump wins, and once he's sworn into office, one of the many trials against him kind of resolves and he's sentenced to prison? [00:50:45] Speaker B: That's so messy. It sounds like an episode of, like a daytime talk show that's so messy. I think the first part of what you said is really possible, but I don't think the second part is. I think the first part where you said he's allowed to be on the ballot, he runs, he's elected. I think that that is so possible, but I think the second part won't happen because he will just disband any court and he'll like, oh, it's executive privilege. I mean, I think that we will have an authoritarian situation if and when he's possibly reelected. For him to just stamp out any of these proceedings against him and he will have federal support. [00:51:33] Speaker A: Federal, he'd have a hard time doing that in state courts. [00:51:36] Speaker B: I know, but I don't think that it would stick. You know what? [00:51:43] Speaker A: Seizure of stick. I would say this, the seizure of his assets in New York state would certainly hurt him. [00:51:50] Speaker B: Right. [00:51:53] Speaker A: I mean, you can't move the Trump tower. [00:51:55] Speaker B: You can't move the Trump tower. [00:51:59] Speaker A: So let me ask you this kind of to wrap it up here. Do you think he should be on the. [00:52:11] Speaker B: To the. Because I think it sets a dangerous. [00:52:13] Speaker A: But I thought, you thought he what. [00:52:15] Speaker B: I thought initially, listen, we're having a conversation here because I don't want to agree with you, so I will disagree. Okay, I'm wanting to disagree with you on purpose. I can go either way. Let's switch hitter. But no, according to the 14th amendment, he should not be eligible to run for office. He should be off the ballot. The republican party needs to just go in a different direction and say goodbye to this. There's a number of reasons for this, too. He is very old. The republican party, if they want to survive and go forward, they need to start going in a different direction, and they need to find a new God to worship here because this is an unsustainable model that they have going. And it would be within their best interest to just accept the letter of the law, just to accept the 14th amendment and go, okay, our guy can't run and throw their support behind another candidate because again, it's just an unsustainable thing. But no, I mean, according to the 14th Amendment, he should not be allowed to run. But what do you think? [00:53:21] Speaker A: So I think there's an implication that a conviction is necessary of some type, and that hasn't happened. So until that happens, I think he should be allowed to be on the ballot. I mean, if states really want to fix this, then you bring civil lawsuits. Right, and get convictions of him as engaging in insurrection. And then you say, okay, well, now he's no longer allowed to be on the ballot. And what I think is going to be important over the next, what, ten months until the election, it's important for historians like us to remind people that January 6 happened. Right. And that's an anomaly. That is not normal political behavior in the United States. And that is not. Even if you suspect there are voting irregularities, that's not how you go about addressing it. Unarmed mob showing up at the Capitol building, ready to execute people summarily. That's some french revolution shit right there. [00:54:36] Speaker B: But that's what they were going for. [00:54:38] Speaker A: Right, but I think that's what we have to remind people of. Is that where we want the country to end up? Is that what we want? Do we want the rule of law? Or do we want this mob rule kind of lorded over by this demigod who believes himself untouchable from anything. Right. [00:55:03] Speaker B: Well, not to aid in your argument, but I think it also sets a dangerous precedent of who gets to define what is or is not insurrection without conviction. Right. So to be able just, if you can just from here on out, say, well, we're just going to stop people from participating. You can't run. You can't run, you can't run. It does set a precedent to say who is or is not allowed to be voted for based on opinion rather than a conviction. [00:55:36] Speaker A: I mean, 2016, I was not thrilled at the outcome of 2016, but I didn't say it was an illegitimate outcome. Right. [00:55:51] Speaker B: Right. But you know what I'm saying about defining terms and phrases. [00:55:55] Speaker A: Right, but I think this is a thing of, there is an appropriate response to grievances you may have against the system and that there's an inappropriate response. January 6 was an inappropriate response. We'll see what the Supreme Court does. Could they surprise me? No, I see no possibility of the Supreme Court just saying, yeah, Trump is banned from being on ballots because of the 14th amendment. I don't think they're going to say anything like that. [00:56:32] Speaker B: They're going to kick it back to the states. I think that's exactly what they're going to do. [00:56:37] Speaker A: I think that's the most people in Colorado and Maine can hope for is they just kick it back to the states, they get that outside chance. They say, well, it has to have a conviction. The problem, if they say that, if they rule that there has to be a conviction, first, they've now revealed themselves to not be originalist. And second, they've given a path. Right. So if you're a state, you could have a rapid trial with a conviction for insurrection. Right. If you wanted to keep Trump off the ballot. [00:57:14] Speaker B: Right. And I think a lot of states would do. [00:57:18] Speaker A: Lot. I don't know if a lot would. I think some states would, yes. So. Yeah. [00:57:29] Speaker B: Well, okay, well, the baby's awake and eating now. [00:57:33] Speaker A: Okay, well, sorry for baby noises. We'll let you get to that. Well, thank you. We are back. I think our next episode has to do with academics and plagiarism. Right? [00:57:49] Speaker B: Yeah, I forgot you said we were doing that. [00:57:53] Speaker A: Another timely topic. [00:57:55] Speaker B: Yeah. [00:57:56] Speaker A: And we're going to talk about some historians who lied. [00:57:59] Speaker B: That'll be fun. [00:58:03] Speaker A: All right, well, until next time, I'm Jeff. [00:58:07] Speaker B: And I'm Hillary. Thanks for joining.