Holy crap, I didn’t think this would ever happen at any level of court, anywhere. When the news first hit that there were lawsuits being launched in various States to disqualify Trump from running in 2024, owing to the application of the 14th Amendment, I thought the whole effort was a liberal fantasy, and said as much in this space. No court, surely, would want to interfere in the political process to such a dispositive degree, right? Now, to be clear, that opinion had nothing to do with the wording in the Constitution, which you can find at Amendment 14, Section 3, and which says, plain as day:
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. But Congress may by a vote of two-thirds of each House, remove such disability.
This was written in the wake of the Civil War, with the aim of preventing Confederate traitors from trying to assume responsible positions in government, and until Donald launched his coup attempt it seemed like a vestigial relic of an uglier time that no longer, thank the Good Lord, had any possible relevance. No such luck! Insurrection is back in style! Following the horror show on January 6, various scholars dusted off the old Amendment and recognized, perhaps with some surprise, the possibility, maybe even the necessity, of using it to run a pole through Donald. Most notable were Laurence Tribe and Michael Luttig, who wrote this article for The Atlantic :
On a plain reading of the Amendment’s language, that just had to be right. Trump was constitutionally disqualified from being President, just as surely as people less than 35 years old, and anyone not born in the United States. Really, there was no other way to interpret it.
Sure, but that, I reckoned, wouldn’t stop the courts from finding a weaselly way out from under. I figured they’d probably find an emergency exit via some narrow and infuriatingly legalistic interpretation of the word “insurrection”, concluding that in light of the context in which the 14th Amendment was written, it was meant to embrace full-blown war, like the one then just ended, not merely a lousy little riot staged by a bunch of disorganized INCELs. That, or something equally slippery and juridical. I’d have bet good money on it.
When a group of eligible Republican Primary voters brought their 14th Amendment argument to the Colorado District Court, it looked like I was going to win my hypothetical wager. Clearly, this court wanted nothing to do with blowing up the election. Hot potato! Flee! The exit was, as expected, found in an absurdly narrow reading of the Amendment’s language, but, surprisingly, not by playing games with the definition of “insurrection”; no, the Court concluded, what Donald incited on January 6 was an insurrection, all right. No two ways about it. Nothing else you could call it. Instead, the Court, flailing and obviously desperate, seized upon the word “office”, of all things. The text reads: “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…”. Seems pretty clear, doesn’t it? No, no it does not, bleated Judge Sarah Wallace of the District Court, apparently with a straight face. Twisting herself into logical pretzels, her judgment concluded that the Presidency was not an “office” within the meaning of Section Three, and therefore the 14th Amendment didn’t bar Trump from clawing his way back into the Oval Office. There! Responsibility evaded! Let’s go have a drink!
This ruling was, of course, laughably absurd. To imagine that the drafters of the Amendment wanted to bar insurrectionists from, say, serving in Congress, or in any State Legislature, or even serving in the Electoral College, yet reckoned it was just fine if a dirty rotten traitor became Commander in Chief, was silliness that wouldn’t pass muster with the less stellar pupils of the average elementary school. For the love of God, you’d flunk out of law school, trying to float an argument like that. Anyway, there was no need to quibble about the constitutional meaning of “office” in the abstract, because the Constitution itself refutes the District Court’s reasoning in Article II, Section 1, Clause 8, which establishes the requirement for the oath that anyone elected President must take:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
See? It’s an Oath of Office. The President-Elect has to utter it before assuming the Office of the Presidency. It’s that fucking simple.
Oy. Only a legally trained mind could argue the opposite.
Next stop: the Colorado Supreme Court! Oh joy, thought I. Now thoroughly jaded, I fully expected this batch of distinguished jurists to uphold the lower court decision, maybe even augment it with some fancy-pantsed legal sophistry of their own. Well, knock me over with a feather, because instead we got this:
We disagree with the district court’s conclusion, as our reading of both the constitutional text and the historical record counsel that the Presidency is an “office . . . under the United States” within the meaning of Section Three. When interpreting the Constitution, we prefer a phrase’s normal and ordinary usage over “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” …Dictionaries from the time of the Fourteenth Amendment’s ratification define “office” as a “particular duty, charge or trust conferred by public authority, and for a public purpose,”that is “undertaken by.. . authority from government or those who administer it… The Presidency falls comfortably within this definition.
And this:
A majority of the court holds that President Trump is disqualified from holding the office of president under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. …
We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.
Holy shit! That took guts. Colorado Supreme Court, I salute you.
There were three dissents to the decision, including one from the Chief Justice, but they’re all rather feeble, stressing all sorts of procedural arguments. Chief Justice Boatwright’s dissenting opinion, for example, laid great stress upon the meaning of Section 1-1-113 of the Colorado Electoral Code, and whether the present action had been properly brought according to its terms. Justice Samour’s view was that a separate conviction for insurrection was needed before Section Three could apply ( i.e. that the Amendment is not “self executing”), a contention seemingly at odds with the text, but the argument, not necessarily toothless, was that the expedited process being used under the Colorado Electoral Code was denying Trump due process (something the Supremes might hang their hats on when the hot potato lands in their laps). That seems to be about as compelling as any of the dissents managed to be; reading through them is a long slog I’ve yet to complete, but near as I can tell, none of the dissenting judges offered anything quite persuasive enough to counter the overwhelming power of the argument that every bit of the Constitution remains fully in force, the 14th Amendment says what it says, it isn’t in the least bit ambiguous, and Trump was, by any sensible meaning of the term, an insurrectionist.
What was an honest judge to do, except gulp hard and conclude the inevitable?
Very well then, it’s off to SCOTUS we go, and that’s why any celebration at this point is premature. God knows what they’ll make of it, though it seems to me that the forces of light and goodness have a 50/50 shot that the Supremes will uphold the Colorado decision. True, the Court’s rabid conservatives and assorted Trump-appointed stooges have shown themselves more than willing to make almost any leap of logic, so long as it allows them to support authoritarian and inhumane interpretations of the law, but they’ve never shown themselves to be in the tank for Trump. Plus, though I’m sure they’d all rather come down with mouth cancer than disqualify a candidate in the 2024 election, they can’t, realistically, refuse to hear the case (though I wish they would!), and they must know that their already vanishing legitimacy could be further undermined by a bogus and obviously politically motivated misinterpretation of the 14th Amendment’s plain language, or an end-run around the whole problem via legal sleight of hand involving, probably, quibbles with procedure. On the other hand, maybe for them it’s a wash, since millions of Americans are going to despise them no matter what they rule. Maybe too, as it certainly has seemed for years now, they don’t really give a rat’s ass about their perceived legitimacy.
Then there’s the problem that six of the nine Supreme Court Justices are more or less complete and irredeemable dicks. Sigh. On second thought, maybe the odds aren’t anywhere near as good as 50-50. The talking heads on MSNBC sure didn’t think so tonight. The view that the Supremes would find some way to overturn the Colorado decision, even if it forces the conservative Justices to ignore their sacred doctrines of originalism, textualism, and State’s rights – hey, where there’s a will, there’s a way – was just about unanimous.
Anyway, I’m not betting good money on this one. I’ve learned my lesson.
What I haven’t figured out yet is what it means if they do muster up the courage to uphold the Colorado ruling. On its face, this is mainly a question of constitutional interpretation – does that mean that once they decide the matter it applies across the whole nation? Or is this case to be more narrowly construed as a ruling only upon the application of Colorado’s election laws, leaving the dozens of actions brought in the other States to make their own way through the system? I suspect the latter, but digging around, I’m not finding a clear answer.
There was a blissful time when I had no idea I’d have to immerse myself so thoroughly in the substance and practice of American law. It seems like a dream to me now.
I’ll tell you what’s sweet, though: the shrill, panicky bellyaching of the MAGA crowd and assorted other so-called conservatives over the courts playing any role in the outcome of elections. Get a load of this:
Really? You’re being serious? Oh that’s rich, coming from you lot! David Simon had an appropriate and typically pithy response to this bullshit:
Never mind Bush v. Gore. Where was this antipathy to constitutional disqualification when Donald was trying to convince everybody that Obama wasn’t a natural-born citizen? Where were these whiners when Trump was pursuing his bogus election fraud claims in almost every possible jurisdiction, on every specious argument his lawyers could pull out of their backsides, never quitting until he’d been laughed out of court fully 60 times? Where were they when a bunch of Republicans in Congress lent their names to an amicus brief submitted to the Supreme Court, in an underhanded effort to persuade SCOTUS that the election results in a number of key swing states should be thrown out, and their Electors given to Trump? Oh, so now the courts are being undemocratic and should butt the hell out, should they?
We’re supposed to believe that these despicable devotees of Trump and the Big Lie, having failed to overturn a free and fair election with their fake Elector schemes, frantic court actions, bullying of local officials, and finally an insurrection, now consider it imperative that a matter like this should only be determined by the will of the voters. God give me strength.
Here’s another delightful knock-on effect of the Colorado decision:
Gee, really, Vivek? No fooling? You promise? Don’t be Lucy with the football on this, O.K.?
the needlefish 