Insurrectionists and the Supreme Court

The Colorado Supreme Court has ruled by a vote of 4-3 that Donald Trump cannot appear on the Republican primary ballot in that state because he is disqualified under the 14th Amendment to the U.S. Constitution.

The relevant part of the 14th 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. But Congress
may by a vote of two-thirds of each House, remove such disability.

It’s a long ruling – 134 pages for the majority opinion alone – and very thorough. It even quotes a ruling by Justice Gorsuch from back when he was a judge on the U.S. Court of Appeals for the Tenth Circuit. Of course, it’s only the opinion of one state supreme court out of fifty.

Even the legal analysts who think the Colorado court is right are pretty sure the U.S. Supreme Court is going to overturn it. And many of them are also arguing that even if the Colorado court is right on the facts and on its interpretation of the Amendment – and I think they are – it would still be better to defeat Trump’s authoritarian extremism at the ballot box rather than in the courts.

They have a point, but I disagree. I don’t think it’s good for the country to allow a vote on its destruction and that is precisely what we get if Trump is allowed to run.  Our fundamental democracy should not be put up for a vote.

We settled this matter by putting down the rebellion in our Civil War that ended in 1865. We passed the 14th amendment after that to make sure that those who were part of an insurrection could not hold political office. We also passed it, along with the 13th and 15th, to change some of the fundamental rules of our country that were adopted in compromise with enslavers when the Constitution was first written.

We should not have to fight that battle again. The fact that we are struggling with these issues 150 years after the decisive victory over the rebel states in the Civil War is due to our politicians and our courts not following through on either Reconstruction or those three significant amendments that expand the rights of all Americans.

In The New York Times, columnist Jesse Wegman answered those who raised questions about the Colorado court’s opinion with these words:

But all these concerns only amplify an important point: Shouldn’t both major parties insist on presidential candidates for whom such questions are not even remotely at issue?

I found Wegman’s piece very compelling. Everyone is acting as if the Republicans have no real choice but to nominate that man, but of course, that’s not true.

As I said, a lot of people disagree with me. Constitutional law professor Steve Vladeck posted a very comprehensive discussion of the issues facing the Supreme Court in his Thursday newsletter and suggested this is a situation where the court should engage in “high Constitutional politics” rather than putting the law first.

I have a lot of respect for Prof. Vladeck, who holds the chair named after my constitutional law professor at the University of Texas, and his reasoning makes sense. But I think this country has reached a point where we must make it clear that calls for insurrection and authoritarian government are not “just politics,” but rather an intention to destroy our democracy.

Of course, as I said earlier, the smart money says the Supreme Court will overturn the Colorado court’s ruling. Prof. Vladeck’s “high Constitutional politics” might be the best we can get.

And we might not even get that. Elie Mystal has a good analysis of both the Colorado ruling and the politics at the Supreme Court in The Nation. His discussions of legal matters are always excellent. I sometimes hope he’s wrong, but I can never fault his reasoning.

I’ve seen some holiday greetings this year that are variations on the sentiment “may you live in uninteresting times.” I would love to have a boring 2024, but I don’t think we’re going to get that luxury.

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