The Colorado Supreme Court kicked President Trump off the ballot based on his organizing an insurrection against the United States. The court cited Section 3 of the Fourteenth Amendment. It is now up to the United States Supreme Court to decide the matter – whether Colorado, or any state, has the constitutional authority to make such a decision.
Most observers – on the right and on the left — are predicting that the high Court will strike down the Colorado decision and allow Trump to be on the ballot every state in the Union. That opinion has been reinforced by the nature of the questions from the justices – especially the three liberal justices. Former Republican National Committee Chairman – and now an MSNBC leftwing zealot – Michael Steele predicts it will be nine to nothing in favor of Trump.
The fact that it is even possible that all three liberal justices may vote with Trump offers good evidence that the Colorado case is a bunch of Democrat donkey dung. In fact, it is almost impossible to find an intelligent argument in defense of the decisions.
Insurrectionist Argument
The Fourteenth Amendment 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.”
As with all constitutional provisions, there are unresolved questions based on the text and the intent of those who wrote and enacted the Amendment.
The text is clear in banning insurrectionists from holding various offices – but not so clear as to what constitutes an insurrection and how a person’s involvement is determined. It also is not clear whether enforcement is general or reserved to the federal government.
The only place that can determine if an insurrection has taken place – and who is involved – is a court. Otherwise, a person is to be presumed innocent until CONVICTED in a court-of-law. All the talk about Trump being an insurrectionist is political poppycock – bordering on false accusation. No prosecutor, no court has even charged Trump with insurrection, much less found him guilty. Not even Special Counsel Jack Smith, who is handling the federal case regarding the events of January 6, 2021. Not even, Georgia District Attorney Fani Willis, who his handling the vote fraud case associated with the 2020 presidential election.
And not even the Colorado District and Supreme courts. They have alleged insurrection without actually adjudicating it. They did not file charges – or indict – Trump for insurrection. They merely based their decision on the false claim of insurrection based on political opinion — and called Trump an insurrectionist. No due process.
Ponder that. ALL that talk declaring Trump to be an insurrectionist – and not a single charge or indictment. Nothing. If for no other reason, the Colorado case must be overturned as a miscarriage of justice.
What is an insurrection?
There is no clear definition of an insurrection – largely because it is a law that is rarely called into play. This is where the Supreme Court will explore the intent of those writing and enacting the Amendment. If you look at their view of an insurrection at the time they wrote the Amendment, the Civil War was on their mind. That was their definition of an insurrection. A major violent armed effort to overthrow the federal government by force.
It is very arguable that the sponsors of the Fourteenth Amendment would never have seen the riot on Capitol Hill as an insurrection. Historically, America has experienced hundreds of violent protests (riots) against the government, and almost no one has been prosecuted for insurrection. In fact, of the thousands of people who demonstrated – and the hundreds who committed criminal acts – on Capitol Hill, less than a dozen have been charged and convicted of insurrection. Most have been charged with crimes commonly associated with … a riot.
In fact, the violence on Capitol Hill was less damaging, less deadly and more short-lived than most riots that have plagued American cities for generations. The January 6th riot did not stop the work of Congress but merely delayed it by a few hours.
Despite the political banter by Democrats and their leftwing media pals, there is very little evidence of a planned or conducted insurrection to literally overthrow the government. The claim that the throngs were there to overturn the government is exaggerated and specious. Calling on legislators to not certify an election is perfectly legal – and has been done in the past. To paraphrase the old expression … if it does not look like a duck, walk like a duck or quack like a duck, it is not duck. That duck was not an insurrection, in my judgment.
Who has jurisdiction?
Apart from the Trump issue, there is a serious question to be resolved. Who has the authority to handle a presidential or federal insurrection case – especially involving a President of the United States. The Constitution and federal law regulate the qualifications and disqualifications of candidates for federal offices. They cannot be nullified or superseded by the states.
On that basis, Trump would have to be indicted, tried and found guilty by a federal court before any attempt to invoke the fourteenth Amendment. This is especially logical in the case of a President or presidential candidate since that is a national election – not based on jurisdictions within the states.
While local courts could be said to be operating independently – and only in the interest of the residents of the state, upholding the Colorado ruling would enable one court – or even one person, as in Maine – the power to upend a presidential election based on political biases. You do not need a law degree to know that is not right.
Technical issues
Some issues are deep in the weeds of Supreme Court analysis. For example, does Section 3 of the Fourteenth Amendment even apply to the President. You can legitimately argue that both ways. The President is not listed among the offices articulated in the Fourteenth Amendment. Did the founders simply mistakenly leave it off when listing all the offices it covers? Not likely. They must have meant to omit the President. Why?
Some argue that the President is covered by the mention of people holding government “office.” Is the presidency an office in the meaning of the Constitution. It seems bizarre to say it is not, but the generic use of “office” in the Amendment seems to be referring to lessor unnamed offices. Perhaps the drafters left off Presidents since they have certain constitutional immunities from prosecution. That is a matter of a different Supreme Court Case (which I personally believe Trump will lose). The failure to list the President produces ambiguity, to say the least – and that is what the supreme Court must resolve. It must provide clarity to ambiguity.
Remember, the first court in Colorado did not remove Trump from the ballot because the judge believed the Fourteenth Amendment did not apply to a President. It was not two courts in agreement, but the state Supreme Court overruling the District Court on whether the Fourteenth Amendment applies to a President. History and the language leave room for debate – and that is what the Supreme Court does.
Another debatable question is: Does the Fourteenth Amendment ban a candidate convicted of insurrection from both running and serving? That may seem to be an arcane issue, but again the language is not precise. It seems ridiculous to think that the drafters of the Amendment did not link serving and running. But it is a debatable point the Supreme Court can and should resolve. It is what the justices get paid for.
Summary
This is yet another example of a situation in which the courts-of-law and the court-of-public-opinion are in conflict. The folks in the leftwing media are affirmatively declaring Trump guilty of insurrection and ineligible to return to the Oval Office in accordance with their own politically motivated and unprofessional interpretation of constitutional law. They are mal-practicing law without a license.
Most times, the Supreme Court gets it right, and I feel confident that it will happen again.
So, there ‘tis.