LET THINGS BE DONE DECENTLY AND IN ORDER.

The Federal Constitution exists to put limitations on how arbitrary and capricious the national government can be.  I submit, dear reader, that attempts to circumvent Constitutional provisions in the expediency of the moment will have unpredictable effects, when some future expediency favoring a different set of potential beneficiaries arises.

It is with that in mind that I commend Volokh Conspiracy contributor Ilya Somin's "Yes, Trump Is Disqualified from Office."  Yes, it's a Bulwark column, and that site is a nest of former conservatives who should know better providing aid and comfort to Democrats in the hopes they will be last purged.  His argument, though, is about doing things decently and in order.

[F]undamentally it comes down to this: liberal democracies often have good reason to bar from positions of vast power people whose track record shows them to be a threat to democracy itself, or to basic liberal values. Section 3—[of the XIV Amendment] originally enacted to bar former Confederates in the aftermath of the Civil War—is a useful tool towards that end. And Trump epitomizes the sort of person who should be barred, for both legal and pragmatic reasons.

Section 3 bans anyone from state or federal office who previously held certain public offices and “engaged in insurrection” against the United States or gave “aid or comfort to the enemies thereof.” Donald Trump is disqualified under Section 3 because of his attempt to use force and fraud to overturn the results of 2020 election, and especially because of his role in instigating the January 6, 2021 attack on the Capitol.

A president who tried to use force and fraud to stay in power after losing an election should not be allowed wield the power of office ever again. And we need not and should not rely on the democratic process alone to combat such dangers.

That might be, although the other procedural measures he refers to might not be relied upon too readily, as they turn into the sort of New Rules that ultimately bite the people who created them.

If elected to a second term, Trump probably won’t be able to fully implement this authoritarian agenda; some parts would likely be stymied by the courts and other constraints. But the combination of his plans and his track record create a strong justification for denying him the chance to try, using all available legal means.

Both the U.S. Constitution and the laws of other democracies include a variety of provisions intended to bar from office people who pose a danger to liberal democracy through malevolence or incompetence. For example, the Twenty-second Amendment bars presidents from serving more than two terms, for fear that allowing one to serve longer would enable him to consolidate power and become a despot. Countries like Germany and Israel have banned fascist or Communist parties from contesting elections. Several former Communist nations have enacted “lustration” laws, barring officeholding by former members of the Communist secret police. Had Russia followed the example of Poland and others, it might have spared itself and the world from the restoration of dictatorship under former KGB Colonel Vladimir Putin.

Those lustration laws might have been written with denazification in Germany following the Allied victory, or the Fourteenth Amendment itself, in mind.

From there, though, he ventures into hazardous waters.

Some argue that voters have an inherent right to elect whatever candidates they want, and that restricting it would be undemocratic. If so, that theory would dejustify all of the other constitutional constraints on officeholding, including the Twenty-second Amendment and the requirement that the president be at least 35 years old. More fundamentally, the logic of that argument is unsound: It is not “undemocratic” to block officeholding by candidates who are likely to undermine democracy itself if they come to power, as Trump tried to do in 2020 and may well do again if given the chance. Voting is not a sufficient protection against authoritarians who are likely to undercut the electoral process itself if given the chance.

It is also sometimes claimed that it is especially reprehensible to disqualify a candidate who has many supporters and is the likely nominee of one of the two major parties. But disqualification is most useful precisely when it targets would-be authoritarians who have a real chance of winning. There is little point to disqualifying longshots who have little or no chance of getting into power anyway.

In addition to protecting the democratic process itself, democracy can be properly limited in order to protect other liberal values, including fundamental individual rights. Many provisions of the Constitution constrain democracy in that way. Parts of Trump’s agenda, including his plan to use government power to persecute his opponents, are obvious threats to those rights. Conservatives like to remind us that the United States is a “republic,” not a “democracy.” This distinction isn’t as edifying as sometimes claimed. But it is true that our constitutional system rejects unconstrained majoritarianism—and for good reason.

Ultimately, barring some types of dangerous people from public office is a useful tool for protecting both democracy and other liberal values.

Today is not the day to talk about the end-runs around Constitutional order that the administrative state permits, or the difficulties non-authoritarian longshots in third parties face getting on ballots.  Let us note, though, the gravamen of his argument, which is that, conviction for insurrectionary behavior notwithstanding, Donald Trump might be understood as fomenting insurrection in the sense Amendment XIV intends.

Finally, even if Trump did not “engage” in insurrection, Section 3 also disqualifies officeholders who give “aid and comfort to the enemies of the United States.” Like the Confederate insurrectionists of the 1860s, the people who attacked the Capitol were clearly domestic “enemies of the United States.” And Trump’s actions and rhetoric surely gave them “aid and comfort,” even if we conclude he did not go so far as to “engage” in insurrection himself.

I have doubts. Today, though, is for considering the possibility that states can remove Donald Trump from primary ballots for reasons with a proper intellectual and legal foundation.  It might be that the foundation will not survive scrutiny in the courts.  Mr Somin argues that it is also on the voters to reject a presidential candidate who is not acting in the voters' best interest.

It would be a mistake to put all our eggs in the Section 3 disqualification basket. While the legal arguments against disqualification are ultimately unsound, there is a substantial likelihood that courts—including the U.S. Supreme Court—will ultimately endorse one or more of them. The issue could go either way.

Thus, it is important to simultaneously work to defeat Trump at the ballot box. But there is no conflict between that effort and pursuing Section 3 disqualification. The two may even be mutually reinforcing.

That's a point Common Dreams contributor Mark Graber also makes, whilst also contemplating disqualifications done decently and in order.

People seeking political and constitutional changes must play by the rules set out in the Constitution. In a democracy, people cannot substitute force, violence, or intimidation for persuasion, coalition building, and voting.

Sixty years of liberating tolerance and verbal terrorism makes that course more difficult. Is anybody surprised that Trumpian populists have also made that substitution?

Since then, the conversation has turned into, well, caviling over legalities.  Mr Somin returned to Reason, where he addressed "conviction for insurrection notwithstanding."

As conservative Washington Post columnist Jim Geraghty puts it: "If you're going to throw a presidential candidate off the ballot for engaging in an insurrection through his personal actions, shouldn't he first be convicted of engaging in an insurrection?"

The answer to this question is "no." The reasons why are based on a combination of the basic structure of our legal system, and the original meaning of Section 3.

A standard element of our legal system is that the same events often give rise to both civil and criminal liability. For example, a person who commits rape, murder, or assault is subject to criminal penalties, and also to civil suits by his or her victims. In such cases, a criminal conviction is not a prerequisite to civil liability. Indeed, even an actual acquittal on criminal charges doesn't necessarily preclude civil lawsuits against the perpetrator. Just ask O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families. The criminal acquittal didn't stop Simpson from incurring $33.5 million in civil liability. The criminal and civil cases were distinct, and the result of one did not determine that of the other.

The same reasoning applies to Trump. The absence of a criminal conviction for insurrection doesn't immunize him from civil proceedings arising from his role in the January 6 attack on the Capitol. Disqualification under Section 3 is a civil issue, not a criminal one. It cannot result in a prison sentence or other criminal sanctions.

That might be, but the wrangling by the legal commentariat continues. Follow the updates at that Reason essay.  Brace yourself for the arguments in the alternative.

Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues. Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.

But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court.

The court challenges are, predictably, under way.