hear. also, rachel maddow leads special coverage with our whole team, trump ballot battle. see everybody will be there because this is the first big supreme court case of the year dealing with the election. that's tomorrow 8:00 p.m. eastern. and that's not all, right now chris hayes has a special report previewing trump's arguments and the assorted issues next. ♪♪ good evening. and welcome to a special hour of coverage on donald trump and his ballot battle to stay on the ballot. i'm chris hayes, joy has the night off. i'm a little other -- in a little other 12 hours from now, the supreme court of the united states of america will hear arguments as to whether donald trump is ineligible to be on the ballot. based on section 3 of the 14th amendment to the u.s. constitution. now this case will have enormous

repercussions for the election this year and also for the future of american democracy. it is arguably the most important election case to reach the supreme court since bush v gore nearly a quarter century ago. the question before the court is pretty simple actually. does section 3 of the 14th amendment, which bars, quote, an officer of the united states who, quote, engaged in insurrection from holding public office actually apply to the man who incited the january 6th riot, who tried to disrupt the peaceful transfer of power for the first time since the civil war. the colorado state supreme court has already ruled that, yes, trump should be barred from the ballot in that state based on the insurrection that he clearly engaged in. quote, president trump is disqualified from holding the office of president under section 3 because he is disqualified it would be a wrongful act under the election code for the secretary to list him as a candidate on the presidential primary ballot. so, unlike in trump's federal

january 6th trial, the court in colorado here already found that trump did engage in insurrection. there was a trial, a state court trial actually at the civil level to find it out. and pursuant to that after several appeals at the top of the state court system in colorado that he should be barred from the presidency as a result. it's not the only state that has done this. the secretary of state in maine, through a different process, this wasn't a trial, this was a determination made by the secretary of state, also came to a similar conclusion. and those are not the only states considering this. about a dozen other states are currently weighing the same question in some form or another. should trump be barred from the presidency because he supported insurrection? so, now it is up to the 6-3 supreme court, three of whom were appointed by trump himself, to give the final word. we actually got a preview of what some of the arguments before the supreme court might look like when this case was argued in colorado late last

year. some of those arguments focussed on the intentions of the 14th amendment, first drafted in the response to the aftermath of the civil war with so called radical republicans in congress, it's contingent of anti-slavery lawmakers committed to instituted general racial democracy in america who are working to ensure that those who had taken up arms against the union, who had sought to destroy the government, should never be allowed to serve in it again. trump's lawyers did not seem to take it that way, however. one of them argued -- this is a strange moment, the former president of the confederacy himself, jefferson davis, would still be eligible to serve as president of the united states under section 3 of the 14th amendment. >> jefferson davis ran a while ago, and the electors who were not themselves insurrectionists chose to put him into the

presidency. that would be fine under section 3 and that would be consistent with the purposes of section 3? >> that would be the rule of democracy in work. >> jefferson davis the chief insurrectionist, the greatest traitor to this country in history perhaps, we should note that jefferson davis himself believed at the time that section 3 applied to him. the fact that he was already disqualified from office under the 14th amendment was part of his argument, again, back then as to why he should not be tried for treason after he lost the civil war. but, i should say, i'm not entirely sure trump's lawyers are really making good faith argument. they're just sort of throwing out anything they can, considering they also seem to waffle on the question of whether or not former president barack obama twice elected to be president, could be disqualified from the ballot under the text of the 22nd amendment, which clearly states a president can only serve two terms. >> could the democratic party

put president obama up for -- on the primary ballot, could that happen? >> i haven't done a full analysis of that particular provision, your honor. i'm really focussed on section 3. but could they do it? conceivably i think it's an open question. >> i mean, to be clear, i don't think it's an open question. the 22nd amendment quite clearly forecloses the possibility of a third term. if a third term is foreclosed he can't be on the ballot because he can't serve. why would he be there? but, that's the caliber of argument that we've been dealing with here. trump's team are also trying to parse the question of who exactly qualifies as what the constitutional provision calls an officer of the law. they argue the term doesn't actually apply to the president himself and therefore the 14th amendment cannot restrain the ex-president. now interestingly, a lower court actually agreed with that determination. the first level of appeals in the colorado court agreed with that before being overruled by the state supreme court of colorado. one of the lawyers trying to

keep trump off the ballot offered this argument for why it is not legally sound. >> the constitution tells us over and over that the presidency is an office and that the person who holds it swears an oath of office before assuming the execution of his office. and the plain meaning of an officer is just one who holds an office. so we think the text here is very clear that the history supports it and certainly the core purpose of the provision supports that reading as well. >> notice the wording there. the text, the history, it was drafted carefully. you see how he referred to the plain meaning of the language of the constitution. likely a direct appeal to the so-called originalist not on the state supreme court of colorado before whom he was arguing, but on the supreme court of the united states who tend to take the view or at least say they take the view that the constitution should be

interpreted only as it was understood at the time of their founding, original public meaning. that's their sort of watch word. notably, many of those same originalists on the supreme court are happy to, it seems, ignore the truly radical intentions of the 14th amendment, how it relates explicitly to both legacy and slavery and the treasonist insurrection that started the civil war, which may be why it is notable the newest member of that court, judge browne, refuses to let them forget it. >> i understood that we looked at the history and traditions of the constitution at what the framers and the founders thought about. and when i drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the 14th amendment, the 15th amendment in a race conscious way. the entire point of the amendment was to secure rights of the freed former slaves. the legislator who introduced

that amendment said that, quote, unless the constitution should restrain them, those states will all, i fear, keep up this discrimination and crush to death the hated freed men. that's not -- that's not a race-neutral or race blind idea. >> so, that argument, this sort of reconstruction originalism ketjanji brown jackson made a name for may not resonate with the court's conservative majority. i mean, it's difficult to envision a scenario in which they uphold colorado's decision, although, i should say the arguments are not -- trump's arguments are weaker than i thought they would be a month before. but ever a time to invoke section 3, this is it. that argument deserves to be heard publicly tomorrow. we will do exactly that. jenna griswald is colorado

secretary of state, she filed a brief asking the supreme court to conclude the state can lawfully bar donald trump from the republican primary ballot and she joins me now. it's great to have you on the program. obviously your office is intimately involved with this, as you're the administrator of colorado elections. why is it important -- why are you going to the supreme court in support of your state supreme court decision even though that's not the body that you serve on. you're independent of that. why is it important to the voters who elected you and the people you represent to have this power? >> chris, good evening. thanks for having me on. and it's important for the very simple reason that insurrectionists do not deserve to be in elected office. as the secretary of state of colorado, we have colorado election law interest. we will be defending our law. and going with the simple message tomorrow to the supreme court. states can rightfully disqualify

oath-breaking insurrectionists, like donald trump, and that is perfectly within the confines of the constitution and federalism. >> i want to be clear here because i think i spoke to you before this all played out. and we spoke about this. and obviously this is on our radar screen because you're secretary of state. what's happened in colorado and the cases have been combined maine and colorado. what happened in colorado is different from maine. in maine the person who had your job made an administrative determination that donald trump qualified. in your case in colorado there was a trial, a sort of civil trial, right? there was a lawsuit and there was a trial with facts entered into evidence. are you -- are you sufficiently assured that there was enough process at that level for what is a monumental decision taken? >> absolutely. the trial court held five-day trial. donald trump was able to call every single one of his

witnesses. and actually did not use all of his time granted. now, trump himself refused to come and testify. he refused to take deposition. but they were able to properly try to defend themselves from this lawsuit. the trial court determined that he engaged in insurrection. the colorado supreme court then determined that trump engaged in insurrection. and historically civil suits, civil proceedings, have been the proceedings under which section 3 of the 14th amendment has been adjudicated. so absolutely i think there is enough due process. and section 3 of the 14th amendment is there to protect the nation from those who would swear to protect it but then engage in insurrection and try to take office again. insurrectionists are dangerous to our nation. and again, they do not deserve a seat in elected office let alne

the presidency. >> you're a politician. you've been elected. you're elected into office. you're a democrat as well. there's an argument that i have seen some people make that this would open up this kind of pandora's box in a polarized nation. you're familiar that there are secretaries of states -- of other states who are quite conservative, who would start routing about for reasons to disqualify joe biden or democrat from the ballot, that this would start a really kind of really, really destructive arms race. someone who, you know, you know who your fellow secretaries of state are across this country. what do you think of that argument? >> well, i would say i have some good fellow secretaries of state and others that are more interested in political stunts. and honestly, there is nothing stopping them from looking at section 3 of the 14th amendment. but just like the colorado case, any case against any candidate

would be litigated. and a court ultimately would stop a rogue secretary of state from removing someone that is actually qualified. and let me make it very clear, the far right wants to say that biden and trump are the same thing. they are not. biden did not incite a violent insurrection. trump did. feet from where we are, trump incited a violent mob that led to the murder and death of police officers, trying to steal the presidency from the american people. that was president trump. so i am not concerned about that. i think elected officials and election officials need to be not focussed on the politics. we need to be focus on the law and the constitution. and in the case of this big colorado case, two courts have found trump engaged in an insurrection. i agree with them that the president should not be above the constitution. and that means that trump is disqualified. now, of course, we'll see what

the supreme court says. and i will follow whatever decision they render. >> all right. colorado secretary of state jena griswald. there was no determination of homicide brian sicknick who died after january 6th. he did die. we don't know definitively the causes of that. just to be clear. thank you for that. appreciate it. >> thank you. president of crew citizens for responsibility and ethics in washington which is a group that filed and won this lawsuit and he joins me now. and i want to start on the eve of supreme court oral arguments. just the trajectory of this idea i feel i have watched go from slightly fringey, like, you know, law professor, spit balling to two states actually disqualifying the man who is likely going to be the republican nominee and arguments before the highest court in the land. >> yeah. i think a lot of people -- for a lot of people, this really did

seem like something kind of out of nowhere, sort of a fringe idea. we wouldn't have brought the case if we didn't think it was a case that was right on the law and a case that could win. and i think one of the things that has been interesting has been to watch people start actually looking into what the constitution says and what the law is and over time i think we've gone from a place of people saying this seems crazy to people saying actually these are some tough issues for courts. and now, as we saw particularly a set of amicus briefs come in this case, friend of the court briefs from historians, from legal experts, from former officials of both parties saying this provision clearly applies now, it clearly applies to donald trump, it clearly applies to the president, i think we're now in a situation where people are saying maybe these issues aren't so hard. maybe these are pretty clear legal issues. and now it's a question of

whether courts are willing to actually enforce the clear law that's in the constitution. >> we played a little of the sound from oral arguments of the colorado supreme court with the invocation of a thought experiment about barack obama running for a hypothetical third term in the 22nd amendment. i do think the -- this really does come down -- a lot of the arguments i would say fail what i call the 22nd amendment test. which is how do you distinguish between that? if you say well, it's not democratic. okay, but keeping barack obama off for a third term wouldn't be democratic either. but it's in the constitution. you write, if scotus won't enforce the 14th amendment we should worry how they will handle the 22nd. what do you mean by that? >> well, if the supreme court essentially says, you know, we can't -- we just can't quite get there and say that the clear language of the 14th amendment

should be enforced when we're talking about a popular candidate for president, a former president. what is to give us faith that if a popular, sitting president, or a popular former president, who has been twice elected decided to run and a party decided to get behind them, that the court wouldn't do the same thing and say, you know what, this is -- this is what the people want. we have to let the people vote. we can't get in the way. and at that point, we stop having a country that is determined by -- that is ruled by law, by the constitution, as opposed to by who's popular. that's a really dangerous place for a democracy to be. >> you know, the sort of legal realist conventional wisdom, it's what i hold, although the future is unwritten. i have no idea what's going to happen. is like there's no way they're going to kick him off the ballot. that's like there's no way you can win this. what are we talking about?

we know, you know, these folks which appointed -- presidents appointed them, where their ideological or partisan loyalties lie. what do you say to people who say that? >> well, look, obviously everybody knows what the breakdown of this court is in terms of presidents of which parties appointed them. we think that -- a couple things. first of all that the law is very clear. and that ultimately this court is going to have to look at that and to decide if they're going to enforce what's clearly in the constitution. but beyond that, this is a court that consistently in cases about the 2020 election, about donald trump's taxes and his financial records, about the january 6th committee's access to documents has been very strong when it comes to checks and balances and to donald trump's abuses of power. we think this court is going to

give a fair look, as they should, and as we believe they will, into this case. and when they do, they're going to see that the law is clear and also that it's ultimately the right thing for democracy to enforce a provision that is meant to protect the democracy from those who would -- who have attacked it and could again. >> all right. noah bookbinder, of crew, thank you very much for your time tonight. >> thank you so much. up next, i'll be joined by former montana governor mark roscoe, one of three former republican governors who filed a brief supporting trump's remove from the 2024 ballot. we'll be right back. we'll be right back.

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xfinity1stand10gs.com for your chance to win. ♪♪ the plaintiffs in the case before the supreme court tomorrow are four republican and two unaffiliated voters from colorado. they are suing to block donald trump from the primary ballot in that state. those voters are not the only republicans who weighed in. the long list of amicus briefs includes one filed by three former republican governors. weld of massachusetts, christine todd wittman of massachusetts and marc racicot of montana. he previously chaired the republican national committee. they all took an oath to protect and defend the constitution. he engaged in insurrection, elevating his own political interest over the governmental stability secured by the peaceful transfer of power in

direct violation of his constitutional oath. former montana governor marc racicot, former chairman of the rnc joins me now. thank you for joining us. great to have you on. >> thank you for having me. >> i guess i wonder how you came to be involved with this amicus and why you felt strongly enough that you wanted to put your name on it? >> well, the three of us, christie and bill weld and myself all felt it was important to make note of the fact that it's not a partisan issue. it's a constitutional issue. and we think it's the correct interpretation is the plaintiff's side or the respondent's side of the case. we still feel bound to protect and defend the constitution. and as a result of that, we felt duty bound and inclined to make certain we made that position known so that the people we live with, the people that we served, don't see this as some kind of a partisan effort. it's a constitutional

enforcement effort that is distinct and appropriate and right. the only thing that makes this unusual is that we've never had -- mercifully we never had a president that betrayed the oath of office before and as a consequence of that, we've probably had great benefit. but at the same time, when it happens, you have to enforce the constitution as it's written. >> you know, you were an office holder, so you're a politician. you've had to go out and get votes. and you're not from the judiciary branch, right? and i wonder, the arguments that i see people make, not even a legal level but kind of instinctual level, something that irks them about this on -- at a democratic level, that this takes a choice away from voters. what do you say to that? >> well, i would say that there are qualifications to office. nobody has a right to run for office. we have a right to vote. constitutional right to vote. but we don't have a right to run unless we're qualified.

and the qualifications are very plain and simple. they're unmistakably clear here. you have to be 35. you have to be native born. you have to have lived in the united states of america for 14 years and then the fourth qualification is that you cannot, after having taken an oath, engage in insurrection, incited, encouraged it. as a consequence of that, you -- the case is plain. it's unmistakable. and it needs to be -- the 14th amendment needs to be enforced. so there's nothing unfair about that. if somebody was under 35, they would be disqualified. we've had disqualifications throughout our 250-year history, 235-year history of the republic. in montana, a few years ago, we had eight disqualifications. and it's a self-executing requirement. so, the chief elections officer is supposed to make the judgment. the burden is on the candidate, not on the state. the burden is on the candidate to prove they meet the

qualifications. mr. trump hasn't proved that he met the qualifications. therefore he's ineligible until such time as he does. >> there's a broader issue here than just president trump. and you talked about wanting to make the point this isn't partisan. the support for -- at the time of the insurrection and support since for that course of action is fairly widespread in the republican party and not just among people in the base but actual elected members. i thought this is a very striking moment that happened this weekend with the senator, junior senator, from ohio jd vance, who was basically asked the question, if you were mike pence on january 6th, if you were the vice president of the united states, what would you have done when donald trump tried to basically subvert the constitutional republic. this is what he had to say. >> if i had been vice president, i would have told the states, like pennsylvania, georgia and so many others that we needed to have multiple slates of electors and i think the u.s. congress should have fought over it from there. that is the legitimate way to

deal with an election that a lot of folks, including me, think had a lot of problems in 2020. i think that's what we should have done. >> he's basically saying he would have done the coup. kicked it to the house. and allowed republican majorities maybe to make donald trump president despite losing by 7 million votes. what's your reaction to hearing a sitting u.s. republican senator say that? >> well, i think it's stunningly uninformed and mistaken. and frankly, it's preposterous. in the first place, the selection of electors is a matter within the exclusive province of the individual states. so, he's terribly wrong. he doesn't understand the constitutional history, nor the requirements of the law. or of the constitution. to suggest that you would do something that would once again incite more chaos and disruption is beyond the pail. and frankly i think it's an unbelievable demonstration of a lack of information and

knowledge about what's appropriate under the constitution. >> all right. former republican governor of montana, marc racicot, also a signatory to amicus brief before the court tomorrow. thank you very much. >> thank you. coming up, harvard law professor and constitutional scholar on why he's arguing for keeping trump on the ballot despite his stated opinion that, quote, trump is, quote, astoundingly dangerous candidate for president. stay with us.

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two leading candidates for senate. two very different visions for california.

steve garvey, the leading republican, is too conservative for california. he voted for trump twice and supported republicans for years, including far right conservatives. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. growing up, my parents wanted me to become a doctor or an engineer. those are good careers! but i chose a different path. first, as mayor and then in the legislature. i enshrined abortion rights in our california constitution. in the face of trump, i strengthened hate crime laws and lowered the costs for the middle class. now i'm running to bring the fight to congress. you were always stubborn. and on that note, i'm evan low, and i approve this message.

♪♪ tomorrow's case before the supreme court on whether donald trump can or must be disqualified from the ballot is as a legal matter considerably more complex than yesterday's d.c. appellate court ruling on immunity. and the intricacies of this case under the third section of the 14th amendment have led lots of folks, like scholars like lawrence, a harvard law professor, not at all a fan of donald trump, to argue that trump should stay on the ballot. writing, if this court is to preserve its integrity, it must unanimously reject the colorado supreme court's judgment because section 3 of the 14th amendment does not apply to donald trump. he adds that intentionally excluding the president makes perfect sense because if state officials from blue states can remove red state candidates or vice versus that state bears no cost instead gains a political victory. such behavior is to lead to a

tit for tat and break down of our entire electoral system. how to steal a presidential election, a book, a warning not a how-to and comes out next week. professor, great to see you. i have profound and tremendous respect for your thinking and one of the people i respect a lot who are weary of this case and think trump should be kept on the ballot. why? >> well, chris, i think the most important reason is that everybody is assuming section 3 of the 14th amendment is self executing. but we know that section 2 of the 14th amendment is not self executing, meaning courts can't just enforce its provisions without some authorizing legislation from congress. and section 5 of the 14th amendment expressly says it's for congress to pass by appropriate legislation to enforce the provisions of the 14th amendment. and it makes sense that section

3 is also the kind of provision that requires clarity to be provided by congress before you can imagine courts going out there and kicking not just presidents but, you know, josh hawley off the ballot because didn't he support the insurrection as well? so, i think that the assumption people are making that this is self executing is just not born out by the law and i think that's actually the easiest way that the court could ultimately say that congress could pass a law. it hasn't. so since it hasn't, it can't be applied to federal officers. >> but why does that not run into the 22nd amendment problem, right? because i think we all assume the 22nd amendment is self-executing. that if barack obama ran for office, secretary of state could dis -- voters could sue, secretary of state could disqualify him. is it just you're saying that history of the 14th amendment explicitly itself that is the

difference here? >> no. i think the 22nd amendment would be self executing. i think the 35-year-old provision is also self-executing. and the reason for that is the rule is sufficiently clear that the constitution could be presumed to be signaling to judicial branch that it ought to enforce it directly. what distinguishes section 3 is that the complexity in figuring out exactly how you establish that there's such a thing as insurrection, what is the standard, is the secretary of state like in maine or is it a trial like in colorado? all of these questions are complex and it's exactly the reason why it's inappropriate for a court to step in without congress passing a law to say, here are the procedures you go through if you want to kick somebody off the ballot for insurrection. and so the judgment is always made by courts about whether the constitution's terms can be

directly interpreted and applied, or whether they require the help of congress. and in section 5 of the 14th amendment, it's a pretty clear signal that congress plays a huge role in figuring out what the scope of the 14th amendment is. >> the thing about this specific finding, just in terms of not sort of a normative argument but sort of descriptive argument, legal reasoning of the court, right, is that this would provide them a way -- the kind of he's not an officer argument seems to be kind of too cute by half, and a little bit belied by huge parts of the text of the constitution and people's understanding of it. reaching the actual substantive question of was this insurrection or not seems both messy and difficult and also there's a factual record from a lower court. the self-executing thing does give people -- it does give the court a way of doing that is

neither too small nor too broad. >> yeah. and the court could say, congress is perfectly free to pass a law that says here's how insurrectionists will be excluded from the ballot. it never has, but it could pass such a law. just like congress could pass a law that says here's how apportionment in a state will be reduced under section 2 if males are denied the right to vote. but congress hasn't acted. and that means those provisions of the constitution are underenforced. >> this also runs a little into the jefferson davis problem, right, which is that right after the reconstruction, after the war, and you've got this -- it's a very strange time in the nation's history because you have the south under military control after they've lost the war. you've got this congress that's one of the most productive and radically egalitarian probably ever in the history of the country and they don't pass legislation specifically pursuant to this amendment, they

pass the amendment. but people understood jefferson davis understood i can't run for office because that amendment is there even though there's no executing legislation from congress. was he wrong? >> well, look -- you wouldn't appeal to jefferson davis as understanding of the constitution to understand what the constitution means. he made a lot of fundamental mistakes in interpreting the constitution. but more fundamentally the point is in 1868, after the amendment has been adopted, there were a lot of ways it could have been applied. what we know is that congress thought it was its job to patch a whole series of legislation to make the provisions especially of section 1 enforceable. so it passed the 1866 act before the 14th amendment came in. it repassed it in 1870. pased the enforcement acts of 1870 and 1871. so we know that's what they thought they needed to do for the important provisions that would really matter. but maybe it could have gone the

other way. maybe section 2 would have been enforced by courts. i doubt it. but maybe it would. and if we had 100 years of history, 150 years of history, of section 2, section 4, being interpreted by courts and applied without any legislation by congress, i think it would be a different case. but we don't. we don't have that history. and indeed, when the advocates for self executing point to state courts that applied this provision to exclude state officers, under section 3 of the 14th amendment, to support the idea it of self executing, every case they point to is a case where the state court is enforcing a law passed by the state legislature to exclude. so we don't have any case. we don't have any case of a court enforcing it to kick some candidate off. certainly not a state court kicking a federal candidate off. certainly never the president, obviously. >> all right. professor lawrence lessig, that was pretty persuasive on this point. thank you very much. appreciate it.

>> great to have you. civil rights attorney and naacp sharon eiffel expert on the 14th amendment, the ornls of the insurrection clause and how she thinks it applies to tomorrow's proceedings. we'll be right back. ow's procees we'll be right back. advantas come with the ucard — one simple member card that opens doors for what matters. what if we need to see a doctor away from home? we got you — with medicare advantage's largest national provider network. only from unitedhealthcare.

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♪♪ the argument before the supreme court tomorrow is all about whether donald trump is ineligible for the 2024 ballot

under section 3 of the 14th amendment. that amendment explicitly bars lawmakers from holding office if they have held office before and have engaged in insurrection or rebellion against the country. it was originally designed to present -- prevent former confederates from reclaiming their seats in congress after the civil war. according to civil rights lawyer, this quite straight forwardly applies to what we experienced on january 6th. he writes in her amicus brief, section 3 was enacted for such a time as this and such a figure as president trump. designed to ensure the ambitious rights of the 14th amendment guarantees that can with stand the resistance that its framers knew were sure to recur, not just in the immediate past, but in the future. she founded the 14th amendment center for law and democracy. she previously served as president director counsel for the naacp legal defense fund and she joins me now.

i enjoyed your brief a tremendous amount. and i think let's just start with the 14th amendment. i think i want to raise this argument. and get your response to it. which is look, they say insurrection in the text. and maybe what he did was insurrectionish, but they were just really talking about the civil war. like the plain meaning of it is basically if you were a confederate, if you flew the flag of treason against this country you can't come back into congress right now in this period where we're trying to stitch the country back together. what do you think of that? >> thanks so much, chris. it's an interesting argument i heard obviously repeatedly. and my response to it is, one of the things that's so compelling about the 14th amendment and its framers and why i find it really the most important provision in the constitution, is because it's doing these two things.

it's providing all of these guarantees that suggest an expansive and full citizenship for black people. it was promising equal protection and due process. it's establishing birthright citizenship. but it also takes a very hard look at the american character and the character of those who had been the opponents of the union in the civil war. and what they recognized when you read that legislative history is that they understood that there would be resistance, that this -- that these and multiple legislators talked about the desire to protect the union forevermore. they did not believe that it was just for the moment. i quoted in my brief, frederick douglass, who talked about why black people needed voting rights. he wanted there to be voting rights in the 14th amendment. and he said it was the only way

black people could protect themselves against the treacherous spirit that he believed lived deeply within those who had been in the confederacy. and he said, disk treacherous spirit, he said, will be passed from syre to sun. it will not end in a year. it will not end in an age. they understood that they were creating something that was designed to protect against what they sought to be a deeply embedded spirit, at that time, and the american south, but certainly in those who resisted the full citizenship of black people. so no, this was not just meant as a stop gap for 1868 or for 1869. that's why it's in the constitution and it's not a statute. it is designed to protect our republic forevermore. >> the washington post did a sort of handy kind of breakdown of some of the points that are gonna be argued in contention

tomorrow. you, know is the president an officer? again, i think that's a little too cute by half. i'm gonna put that to the side. if they want to wheedle weasel out of this, i think they can do it, but it's not too strong. the president also takes an oath, which is cute by half. do they and -- did he engage in insurrection? that's an interesting one, that's a meeting one. although you've got the actual record of the state trial, so you can't really second guess what they're doing. you can second guess from a process perspective. and then this question that -- he basically says, congresses required to enforce. that basically, other provisions of the 14th amendment or understood at the time is not self executing. they required further congressional action. congress took such action, in fact one of those pieces of legislation, famously known as the enforcement acts, and absent congressional action here, this is not enough guidance for specificity about the process. what do you say? >> well, when action did congress take to establish

birthright citizenship? which was created to overturn the dred scott decision and ensure that black people both formerly enslaved and free would be citizens of the country. if you read -- no, please, i'm sorry to have interrupted. but yes. if you read section three as overturning -- there's a lot of overturning happening in the 14th amendment, right? so we have birthright citizenship, which overturns dred scott. we also have in section two, the requirement that we're counting every person as a person. as a whole person. that overturned the three fifths compromise, and it? and section three is essentially an amendment to the qualifications for holding office. and then the case of the president, it's an amendment, it serves as an amendment to article two, section one. we don't need a congressional statute to enforce the fact that you have to be 35 years old to serve as president. we don't need a congressional

statute to enforce that you have to be a natural born citizen that is born in the united states to be president. we don't need a congressional statute to establish that you have to have resided in the united states for 14 years in order to be president. and, all section 3 does is add another requirement. another eligibility requirement, not only for the president, but for all who have formally taken an oath. and that requirement is loyalty. so it's not tremendously complicated. the question you asked about whether he performed an inspection, i think that becomes the only complicated question uncomplicated by the fact that -- reviewed all the evidence in a try meridional and which mr. trump had the opportunity to represent himself and to be represented and he was, and presented evidence. and that tribunal found that he participated in insurrection. the supreme court, much as it might want to be -- we heard this from justice alito last

term, is, may want to be a fact finder. they are not fact finders. it is a reviewing court. it is an appellate court. and the fact finding in this case as to whether or not mr. trump engaged in insurrection has already been done. and so, the question is whether or not the supreme court will hold fast to the role that they appropriately should be in, which is as an appellate court. they certainly held the palette to say what the law is, but they don't hold the power to overdo the fact finding of the colorado trial court that was upheld by the colorado supreme court. >> yeah. that is a really important point for people to sort of sit with about, there was a trial, there was a friday trial, there was evidence, those process, this is the factual determination of that court, and furthermore, it's a quite that is a state court whose fact finding is basically fully outside the portfolio of the supreme court. at least it should be. i think that probably won't stop their arguments, but we'll

see where they end up. sherrilyn ifill, always such a pleasure, thank you. >> thank, you chris. >> that was fun. i got to pretend like i wasn't a ballot judge for an hour and just pepper people with questions. that wraps it up for this special hour of coverage. tomorrow, the whole primetime msnbc gang will be back here to break down what happens in the supreme court after those arguments. that happens from eight pm to ten pm tomorrow. -- 10 am, i'll be listening to them, i hope you are too. but before we get through that, guess what? tonight, we've gotten a whole hour of all in, with me, chris hayes. my guests include -- ocasio- cortez, it's gonna be a good one, stick around for that, after this quick break. quick

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>> c