prior probability

For my part, I have been conducting some new research on two aspects of Adam Smith’s biography (his decision to abandon his studies at Balliol College in the summer of 1746 and his final departure from Paris in the fall of 1766) that I hope to present at the upcoming annual meeting of the International Adam Smith Society at Waseda University in Tokyo in March of 2024. I will share additional details about my ongoing research projects in the days and weeks ahead.

Who shot JFK? For my part, I have never believed the far-fetched single-bullet theory proposed by the Warren Commission, so a spate of stories published during the past few days and calling into question the government’s version of the assassination of President John F. Kennedy has grabbed my full attention. These various reports (see links below) are based on the forthcoming book The Final Witness (scheduled to be released next month; see here), which contains new testimony by Paul Landis, one of the Secret Service agents who was just a few feet away from JFK when he was shot in Dallas on 22 November 1963.

1. “JFK Secret Service agent questions assassination theory” (via Axios).
2. “JFK assassination witness questions whether shooter acted alone“, by Ramon Antonio Vargas (via The Guardian).
3. “JFK assassination witness breaks his silence and raises new questions“, by Peter Baker (via the NY Times).
4. “A new JFK assassination revelation could upend the long-held ‘lone gunman’ theory”, by James Robenalt (via Vanity Fair).
5. “Secret Service agent who was with JFK on day of his assassination breaks silence with claim that blows up the ‘magic bullet’ theory and suggests there was more than one shooter“, by Keith Griffith (via the Daily Mail).

For the record, via Wikipedia, here is a compilation of 21 other non-fiction books about the JFK assassination. Also, via JSTOR, here is a review of seven additional JFK assassination books.

Today (11 Sept.) is the 50-year anniversary of the 1973 Chilean coup d’état. What led up to the coup, and what lessons can we learn from it today? In the English language, here is a short report from the Office of the Historian of the U.S. Department of State, and here, by contrast, is a much longer report from Allan Woods, a British political theorist.

In their massive 126-page law review article (see here), William Baude and Michael Stokes Paulsen claim that former president Donald J. Trump is automatically disqualified from holding federal office under 14th Amendment’s Disqualification Clause (Amend. XIV, § 3). I already wrote up a formal reply to their article explaining why disqualification cannot be automatic or self-executing. Here, however, I will compare and contrast the various provisions in the Constitution that refer to insurrections or rebellions and then pose some questions directly to Baude and Paulsen.

For starters, aside from Sections 3 and 4 of the 14th Amendment of 1868, where else does the U.S. Constitution refer to rebellions or other serious domestic strife? As it happens, the Constitution makes only two references–one direct; the other indirect–to insurrections, invasions, and the like. A direct mention appears in the Habeas Corpus Clause of the Constitution (Art. I, § 9, cl. 2), which uses the actual words “Rebellion or Invasion”. (For the record, the Habeas Corpus clause states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”) The indirect reference, by contrast, appears in the Guarantee Clause of the Constitution (Art IV, § 4), which refers more broadly to “domestic Violence” as well as invasions. (For its part, the Guarantee Clause states: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”)

Broadly speaking, both of these constitutional provisions anticipate the possibility of a state of emergency, such as a full-scale rebellion by a domestic group or an invasion/sneak attack by a foreign force. One provision (Article I, § 9) contemplates the curtailment of procedural rights during the emergency situation, while the other (Article IV, § 4) appears to allow for the use of military force and martial law. Alas, both of these provisions raise many more questions than they answer. Who decides what constitutes an emergency? The Congress, the president, or the courts? What other common law or judicial rights, in addition to habeas corpus, can be suspended during the emergency? (If habeas corpus can be suspended, for example, what about due process?) And last but not least, can governmental actions under either constitutional provision be challenged in a court of law, or are such actions “non justiciable” political questions beyond the scope of judicial review? (See, for example, the leading Guarantee Clause case of Luther v. Borden.)

For my part, I will not attempt to address these thorny questions here. Instead, I just want to point out that many of these same questions apply to the 14th Amendment’s Disqualification Clause. In brief, the Disqualification Clause can be used to disqualify a candidate from federal office when two conditions are met: 1st, the candidate must be someone who has “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,” and 2nd, the candidate must “have engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” But who decides, for example, who is an “officer of the United States” under Section 3 of the 14th Amendment, and who decides what forms of violence rise to the level of an “insurrection or rebellion”?

For now, I will conclude this post with the following observation: the Disqualification Clause refers only to internal insurrections and rebellions–not to foreign-led invasions or mere cases of “domestic Violence” more generally. This observation, in turn, generates several more key questions. First off, why does the Disqualification Clause omit the words “domestic Violence” from its scope? Was this omission a deliberate one? Either way, where should we draw the line between a full-scale insurrection/rebellion and an isolated case of “domestic Violence”? I await Baude and Paulsen’s reply …

I am late to the party, but yesterday (8 Sept.) was “Star Trek Day“!

Yesterday, I posted to SSRN a formal reply (see here) to a forthcoming paper by William Baude and Michael Stokes Paulsen, a pair of legal scholars who claim that the Disqualification Clause set forth in Section 3 of the 14th Amendment automatically disqualifies former president Trump from holding federal office for giving aid and comfort to the enemies of the USA.

As it happens, five years ago this month (28 September 2018, to be more precise) I presented a paper of mine on “Domestic Constitutional Violence” (DCV) at the University of Arkansas in Little Rock. In summary, my DCV paper, which is available here or here, explores what I call “the laws of constitutional necessity”, i.e. the constitutional and statutory powers of the president to use military force to quell insurrections and rebellions within the United States. (It is also a federal crime to engage in a rebellion or insurrection; see the video below or Section 2383 of Volume 18 of the U.S. Code, 18 U.S.C. § 2383.)

In other words, a possible connection exists between the laws of constitutional necessity and the Disqualification Clause, which prohibits certain people who have engaged in an insurrection or rebellion from holding any federal office. Stay tuned, for I will further explore this connection next week …

Is former president Donald J. Trump automatically disqualified from holding any federal office under Section 3 of the 14th Amendment? I wrote up a short but formal academic reply to Professors Michael Stokes Paulsen and William Baude (pictured below) and posted it here (via SSRN).

Update (7 September): Although a federal judge in South Florida ruled last week that private parties lack “standing” to enforce the 14th Amendment’s disqualification clause (a case I blogged about the other day; see below), another cohort of progressive plaintiffs — this one in Colorado — has now filed a 105-page complaint in a local court (not federal) in Denver demanding that Trump be kept off the ballot in their home State. Here is a copy of their complaint. Will this new case be dismissed for lack of standing like the Florida case was? Either way, I will be following the Colorado case closely and will report back as soon as any new developments occur.