Colorado Forces a 14th Amendment Crisis to Get Trump

National Review Online

Wednesday, December 20, 2023

 

Donald Trump committed a grave offense against our constitutional system in the wake of the 2020 elections. Our editorials have been consistent on this ever since. In the absence of an unambiguous crime or a clear legal bar, there are two legitimate ways a democratic republic can bar the door to such a man: impeachment by Congress or the verdict of the voters. Trump has already been rejected by the voters once and impeached by the House twice. There were significant arguments for conviction in his second impeachment after January 6, and for declaring him ineligible to seek the office again. The Senate declined to do so.

 

Much of the past three years has been consumed by prosecutors, courts, and congressional committees attempting to finish Trump. The legal grounds for this have frequently been flimsy. The public legitimacy of removing Trump from the political process is not helped by bending the law. The job now belongs to the voters, who are rightly skeptical of partisans stripping them of that choice.

 

It would be particularly explosive to disqualify Trump from the presidency after over a year of campaigning, in which he and opponents in both parties have spent hundreds of millions of dollars arguing for or against his candidacy, and at the end of which Trump leads in the polls in both primary and general-election matchups. That is a drastic step, and one that should not be taken to disenfranchise the American electorate on any but the most definitive legal grounds.

 

The Colorado supreme court, however, has other ideas. On Tuesday, it ruled that Trump is disqualified from serving as president again under Section 3 of the 14th Amendment on the theory that he “engaged in” an insurrection on January 6, and that he should therefore be removed from the Republican primary ballot. The 4–3 decision divided the court, all of whose members were appointed by Democratic governors.

 

The Minnesota supreme court had previously declined to take this step, on the state-law grounds that it was premature to rule on a candidate’s qualification for office before placing him on a primary ballot. The three Colorado dissenters, including the chief justice, thought that their court should not reach the issue, and that the five-day trial did not comport with due process of law. Having decided the matter, however, they have likely forced the hand of the U.S. Supreme Court to resolve the federal-law questions — and to do so in time for the January 5 deadline to set the Colorado primary ballot.

 

A Supreme Court battle over Trump’s access to the ballot will also put immense pressure on Joe Biden’s Department of Justice to take a position in the case, which would compel it to choose between the political position of Biden and the Democrats that Trump is an insurrectionist and the political need to avoid appearing to ask for Biden’s likeliest general-election opponent to be taken off the ballot.

 

While there are a number of subsidiary legal questions under Section 3, the biggest problem is that the Colorado court got it wrong on the merits of the case. While Section 3 was not limited to the Civil War, it was aimed to disqualify active Confederate rebels and political leaders of the Confederacy from returning to government. Those were people who made war on the United States, or materially supported armies in the field to do so. The original public meaning of Section 3, as illustrated by decisions of Congress in the late 1860s on whether to seat Southern members, barred only active participants in an ongoing rebellion, such as those who joined the Confederate military or aided its war effort – not just those who incited secession by speeches before the fact.

 

The Colorado court ignored the contemporaneous evidence of how Congress construed its own amendment. Even under the standard it cited from the opinions of then–Attorney General Henry Stanbery, however, “the force of the term to engage carries the idea of active rather than passive conduct.” It is a serious stretch to convert Trump’s lassitude and a few tweets during the riot into active participation in the riot. More than some vague tweets ought to be required before depriving tens of millions of Americans of a candidate who may be their choice.

 

Many things led us to this pass, but only the American people can lead us out of it. We hope the primary voters reject Trump’s candidacy, put disputes over insurrection behind us, and give the general electorate a better choice than the one in the offing. Trying to short-circuit that decision in the courts is likely to make things worse rather than better.