Government Class
Back in Government class (or “POD”, Principles of Democracy), the Constitution was the first big unit we taught. We went through the entire document, article by article. We discussed who could be a Representative, a Senator, a President or a Justice, and the arcane path of legislation. After a massive test, we moved onto the Amendments to the Constitution, with the full force of the original articles.
There was a lot to learn and discuss over twenty-seven amendments. Once an Amendment was put in place, it was as much a part of the Constitution as the original Articles. The only way to change that was highlighted in the Eighteenth which banned “intoxicating liquors”. The Twenty-First was required to repeal the Eighteenth. There were many discussions, particularly about interpreting the language of the First and Second Amendments, and how far the “clear language” of “free exercise of speech” or “the right to bear arms” could be stretched.
The Colorado Supreme Court had a similar discussion in the past few weeks, about the Fourteenth. But it wasn’t the “usual” Fourteenth arguments, citizenship and due process. It wasn’t even the revived “novel” argument about the “full faith and credit” of the United States debt in Section Four. Colorado was arguing about the Third section of the Fourteenth, a section that seemed nothing more than an historic relic of another time.
Section Three
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 seems obvious: a person who swore allegiance to the United States, then rebelled against it, couldn’t come back into the service of the US government, unless there were forgiven. Most regular Confederates were ultimately forgiven under a “blanket” pardon. Some higher profile Confederate Generals were specifically pardoned. General Fitzhugh Lee, nephew of Robert E Lee and grandson of Declaration of Independence signer “Light Horse” Harry Lee, served as a Governor, Ambassador, and Army General in the decades after the war.
And Confederate General Joseph Wheeler later served in the US House of Representatives. When the Spanish-American War broke out, he returned to service as a US Major General and led at the Battle of San Juan Hill (of Teddy Roosevelt fame). Supposedly, in the heat of battle, Wheeler called out to his troops: “Come on boys, we’ve got the damn Yankees on the run again”.
The Questions
But the Colorado Courts were faced with interpreting that third section in a whole new light. Instead of the faded echoes of Gettysburg and Chickamauga, there was a much more immediate “battle” to face: the one on the Capitol steps and in the hallways on January 6th, 2021.
The Court asked the following questions:
- Were the actions on January 6th an insurrection or rebellion under the 14th Amendment?
- Did Donald Trump engage or give aid of comfort to the insurrectionists or rebels?
- Was Donald Trump an “officer” or other official labeled under Section Three?
- If all of the above are “yes”, should Trump be disqualified (disabled) from the ballot for President of the United States?
The District court heard the case first. This is a case of “equity”; determining whether a law applies to a particular situation. So there isn’t a jury, just arguments made to a judge (or judges) who then make a legal ruling. The court of “first impression”, the District court, determines what the “facts” are, then determines the law. It is the legal interpretation process that usually ends up appealed to higher courts.
The District court found that there was in fact, an insurrection, and that Donald Trump did give aid or comfort to the insurrectionists. But the Court than made a third finding: the President of the United States did not fall under the “list” of offices. The Court said he wasn’t an “officer” in the way that Generals Lee and Wheeler were. And the President didn’t hold any of the other offices listed. On that basis, Trump would appear on the ballot as a qualified candidate for President. Section Three didn’t apply.
Common Sense
But the Colorado Supreme Court reversed the decision. The agreed that there was an insurrection, and that Trump gave aid and comfort to it. But they applied “common sense” to the language of the 14th. Surely if every other elected office was included, from Senator to state Judges, the authors did not intend to leave the President of the United States out. They simply didn’t envision a President committing such a heinous act. Then there was one named Donald Trump, and so he, for the moment, could not appear on the Colorado Republican Primary ballot.
This was “breaking news” last night. And it is a “big deal”. But there is a very long way to go before a final decision to declare Trump “disabled” from holding office. The Colorado case next goes to the United States Supreme Court, if they decide to take it. And if they don’t, then Trump won’t appear on Colorado’s ballot – but would still be on other states.
Supreme Court
I’m sure the US Supreme Court will take this case. They could follow the District Court’s hair-splitting, and say the Presidency wasn’t listed. Or they could demand that a criminal conviction be required, though certainly that wasn’t how Section Three was applied by the authors of the amendment after the Civil War. Or they could argue that January 6th wasn’t “really” an insurrection or rebellion. That particular argument doesn’t pass the “eyeball” test. We all watched, and we all saw what happened there.
The Supreme Court could agree with Colorado, and declare Trump disabled from holding the Presidency. Now that would be a “big deal”, a world changing “breaking story”.
Or they could really take a coward’s way out. They could agree to hear the case, but not take arguments until next fall, and “stay” the Colorado decision until after they decide, after the election.
If that sounds unlikely, it’s exactly what’s happened with Trump since the “Access Hollywood Tape” broke in October of 2016. At that time, the Republican Party chose to leave Trump on the ballot as their candidate. Let him lose to Hillary and be done, they thought. And after the Insurrection, the US Senate could have convicted Trump in the impeachment process, and “disabled” his ability to hold office again. But, they chose to leave him again, and hoped he’d go away.
He hasn’t. And I really don’t expect the Supreme Court to show any more courage than the Republican Party leaders or Republican Senators showed. In the end, I expect it will be up to the American people, on their ballots next November.
They will determine to save the Union from Trump, or not.
