The Problem with the Colorado Supreme Court’s Decision Is That It’s Wrong

By Charles C. W. Cooke

Wednesday, December 20, 2023

 

Since the Colorado supreme court issued its bombshell ruling last night — a ruling that, if upheld by the Supreme Court, would keep Donald Trump off the ballot in Colorado in both the primary and the general election — I’ve seen a lot of people argue that the core problem with the judgment is that it is “undemocratic.” This, no doubt, is an attractive argument to make politically. But it is an incorrect argument — or, at least, it’s an incomplete argument constitutionally. The problem with the Colorado supreme court’s decision is that it’s incorrect. Everything else flows from that.

 

This isn’t nitpicking. By design, there are many provisions within our Constitution that limit what the public is able to vote for, and sometimes even for whom. Without amending the Constitution, a transient majority of Americans cannot elect a president for a third term, hold midterm elections more than once every two years, abolish elections completely, restrict the freedom of speech, deny the accused their right to a trial, seat Article III judges without the acquiescence of the U.S. Senate, impose taxes without congressional approval, and so on. We have a process for doing things in the United States, and the Constitution sits at the peak of that process. If the Constitution says something, then that something obtains until the Constitution doesn’t say it any more. If, as the Colorado supreme court seems to believe, Article 3 of the 14th Amendment to the Constitution really does bar Donald Trump from political office, then Donald Trump must be barred from political office, and, unless one’s goal is to reject the very idea of constitutional government, complaining about that fact is fruitless.

 

It is true, of course, that some of the provisions in our Constitution prevent the democratic process from delivering exactly what voters want. But to describe this as “undemocratic” is a little misleading, given that the Constitution itself was ratified and amended by the people. This, above all else, is why originalism is so crucial. America is a democratic republic, in which the people get to vote for their politicians and their laws, and if those politicians and laws can be thwarted at will by unelected judges, then . . . well, America isn’t much of a democratic republic, is it? Unless — and this unless is utterly imperative — those unelected judges are invoking other laws that were democratically passed and have not been democratically repealed. Then, you have democracy pitted against democracy. From time to time, I am asked why I believe that Roe v. Wade was unjustly “undemocratic” when I don’t believe that, say, Brandenburg v. Ohio was. Surely, the implication runs, if I’m worried about the courts thwarting the public’s will, I should be worried about it in every case? But this does not follow. The reason that Roe was undemocratic and Brandenburg was not is that Roe was a lie and Brandenburg was not. Or, to put it another way: In Roe, unelected judges inserted law into the Constitution, whereas in Brandenburg, unelected judges upheld law that had been placed there by a supermajority of the people.

 

The same distinction must be observed here. If one believes that Section 3 of the 14th Amendment truly does disqualify Donald Trump from office, then one is not not rejecting democracy or the rule of law, but demanding that it be sustained. The 14th Amendment was ratified by a supermajority according to the process laid out in Article V, and it is thus good law. When it applies, it must be applied.

 

And when it doesn’t apply? Then it shouldn’t be applied.

 

I’ll reiterate that I’m really not trying to be pedantic here. I understand that, in some sense, “undemocratic” is shorthand for “legally incorrect, with undemocratic consequences.” But the logic of the argument I’m seeing — that it’s outrageous in all circumstances for a court to take someone off the ballot, and thereby deny the public the chance to vote for or against him — extends much too far beyond the material inquiry. There are multiple provisions within our system that exclude people from electoral consideration, either temporarily or permanently. We have impeachment, by which supermajorities within the elected federal legislature can use a provision ratified by a majority to declare a given candidate outré. We have minimum-age and “natural born Citizen” provisions that govern who is eligible to run. And, at the state level, we have all manner of ballot rules with which aspirants must comply. If unelected figures bend those regulations in ways that do not comport with what the people originally passed, we have a problem. If they uphold them — and thereby ensure the integrity of the democratic process and the rule of law — we do not. On balance, I oppose what Colorado’s supreme court did because, while I’d very much like to see Donald Trump go away, I agree with Dan McLaughlin that it got the law wrong. Others I respect disagree with us. Irrespective of who is right, this is the only question that matters in this case — and, as it moves ineluctably to the Supreme Court, it is the only question that ought to be debated abroad the land.