Conservative scholars have made a case for invoking – or really upholding – the Fourteenth Amendment:
W. Baude and M. S. Paulsen, “The Sweep and Force of Section Three.” University of Pennsylvania Law Review, Rochester, NY, Aug. 09, 2023. [Online]. Available: https://papers.ssrn.com/abstract=4532751
Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
From what you say, I take it the 14th Amendment, Section 3 can be used by anyone, at any time, for any reason at all as long as they say the person excluded engaged in an insurrection, on their say-so of what an insurrection is. From my take on your reasoning, I conclude it sets aside every single rule in the rest of the U.S. Constitution.
Also, I call attention to your claim that the 14th "disqualifies former President Donald Trump, and potentially many others. . ." By your summary, would that include Kamala Harris, to take only one example, who urged people to help bail out the violent protesters arrested during the summer uprisings, which destroyed, not merely occupied, several public buildings and seized territory in Seattle that they declared no longer a part of the U.S.? (Which is in fact precisely the kind of insurrectionary act the Confederacy took to bring on this amendment in the first place.) I don't say it does include Kamala, but if you think tens of millions won't say it does once Trump is excluded, you are kidding yourself. It is this that Loury is trying, desperately, to get through to those who think this arcane 14th Amendment ploy is some sort of cute law school exercise, nothing more.
Conservative scholars have made a case for invoking – or really upholding – the Fourteenth Amendment:
W. Baude and M. S. Paulsen, “The Sweep and Force of Section Three.” University of Pennsylvania Law Review, Rochester, NY, Aug. 09, 2023. [Online]. Available: https://papers.ssrn.com/abstract=4532751
Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.
First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.
Also, see this Atlantic article by George Conway:
G. T. Conway III, “The Colorado Ruling Changed My Mind,” The Atlantic. [Online]. Available: https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/
From what you say, I take it the 14th Amendment, Section 3 can be used by anyone, at any time, for any reason at all as long as they say the person excluded engaged in an insurrection, on their say-so of what an insurrection is. From my take on your reasoning, I conclude it sets aside every single rule in the rest of the U.S. Constitution.
Also, I call attention to your claim that the 14th "disqualifies former President Donald Trump, and potentially many others. . ." By your summary, would that include Kamala Harris, to take only one example, who urged people to help bail out the violent protesters arrested during the summer uprisings, which destroyed, not merely occupied, several public buildings and seized territory in Seattle that they declared no longer a part of the U.S.? (Which is in fact precisely the kind of insurrectionary act the Confederacy took to bring on this amendment in the first place.) I don't say it does include Kamala, but if you think tens of millions won't say it does once Trump is excluded, you are kidding yourself. It is this that Loury is trying, desperately, to get through to those who think this arcane 14th Amendment ploy is some sort of cute law school exercise, nothing more.
To clarify, all of the text in my post above under “Abstract” is by the authors, not by me.