Back in Government class (or \u201cPOD\u201d, Principles of Democracy), the Constitution was the first big unit we taught.\u00a0\u00a0We 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.\u00a0\u00a0After a massive test, we moved onto the Amendments to the Constitution, with the full force of the original articles.\u00a0\u00a0<\/p>\n\n\n\n
There was a lot to learn and discuss over twenty-seven amendments.\u00a0\u00a0Once an Amendment was put in place, it was as much a part of the Constitution as the original Articles.\u00a0\u00a0The only way to change that was highlighted in the Eighteenth which banned \u201cintoxicating liquors\u201d.\u00a0\u00a0The Twenty-First was required to repeal the Eighteenth.\u00a0\u00a0\u00a0There were many discussions, particularly about interpreting the language of the First and Second Amendments, and how far the \u201cclear language\u201d of\u00a0\u00a0\u201cfree exercise of speech\u201d or \u201cthe right to bear arms\u201d could be stretched.<\/p>\n\n\n\n
The Colorado Supreme Court had a similar discussion in the past few weeks, about the Fourteenth. But it wasn\u2019t the \u201cusual\u201d Fourteenth arguments, citizenship and due process. It wasn\u2019t even the revived \u201cnovel\u201d argument about the \u201cfull faith and credit\u201d 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.<\/p>\n\n\n\n
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.<\/em><\/p>\n\n\n\n It seems obvious:\u00a0\u00a0a person who swore allegiance to the United States, then rebelled against it, couldn\u2019t come back into the service of the US government, unless there were forgiven.\u00a0\u00a0Most regular Confederates were ultimately forgiven under a \u201cblanket\u201d pardon.\u00a0\u00a0Some higher profile Confederate Generals were specifically pardoned.\u00a0\u00a0General Fitzhugh Lee, nephew of Robert E Lee and grandson of Declaration of Independence signer \u201cLight Horse\u201d Harry Lee, served as a Governor, Ambassador, and Army General in the decades after the war.<\/p>\n\n\n\n And Confederate General Joseph Wheeler\u00a0later served in the US House of Representatives.\u00a0\u00a0When 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).\u00a0\u00a0Supposedly, in the heat of battle, Wheeler called out to his troops:\u00a0\u00a0\u201cCome on boys, we\u2019ve got the damn Yankees on the run again\u201d.<\/p>\n\n\n\n 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 \u201cbattle\u201d to face: the one on the Capitol steps and in the hallways on January 6th<\/sup>, 2021. <\/p>\n\n\n\n The Court asked the following questions:<\/p>\n\n\n\n The District court heard the case first.\u00a0\u00a0This is a case of \u201cequity\u201d; determining whether a law applies to a particular situation.\u00a0\u00a0So there isn\u2019t a jury, just arguments made to a judge (or judges) who then make a legal ruling.\u00a0 The court of \u201cfirst impression\u201d, the District court, determines what the \u201cfacts\u201d are, then determines the law.\u00a0\u00a0It is the legal interpretation process that usually ends up appealed to higher courts.<\/p>\n\n\n\n The District court found that there was in fact, an insurrection, and that Donald Trump did give aid or comfort to the insurrectionists.\u00a0\u00a0But the Court than made a third finding:\u00a0\u00a0the President of the United States did not fall under the \u201clist\u201d of offices.\u00a0\u00a0The Court said he wasn\u2019t an \u201cofficer\u201d in the way that Generals Lee and Wheeler were.\u00a0\u00a0And the President didn\u2019t hold any of the other offices listed.\u00a0 On that basis, Trump would appear on the ballot as a qualified candidate for President.\u00a0\u00a0Section Three didn\u2019t apply.<\/p>\n\n\n\n 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 \u201ccommon sense\u201d to the language of the 14th<\/sup>. 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\u2019t 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.<\/p>\n\n\n\n This was \u201cbreaking news\u201d last night.\u00a0\u00a0And it is a \u201cbig deal\u201d.\u00a0\u00a0But there is a very long way to go before a final decision to declare Trump \u201cdisabled\u201d from holding office.\u00a0\u00a0The Colorado case next goes to the United States Supreme Court, if they decide to take it.\u00a0\u00a0And if they don\u2019t, then Trump won\u2019t appear on Colorado\u2019s ballot \u2013 but would still be on other states.\u00a0<\/p>\n\n\n\n I\u2019m sure the US Supreme Court will take this case.\u00a0\u00a0They could follow the District Court\u2019s hair-splitting, and say the Presidency wasn\u2019t listed.\u00a0\u00a0Or they could demand that a criminal conviction be required, though certainly that wasn\u2019t how Section Three was applied by the authors of the amendment after the Civil War.\u00a0\u00a0Or they could argue that January 6th<\/sup>\u00a0wasn\u2019t \u201creally\u201d an insurrection or rebellion.\u00a0\u00a0That particular argument doesn\u2019t pass the \u201ceyeball\u201d test.\u00a0\u00a0We all watched, and we all saw what happened there.<\/p>\n\n\n\n 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”. <\/p>\n\n\n\n Or they could really take a coward\u2019s way out. They could agree to hear the case, but not take arguments until next fall, and \u201cstay\u201d the Colorado decision until after they decide, after the election. <\/p>\n\n\n\n If that sounds unlikely, it\u2019s exactly what\u2019s happened with Trump since the \u201cAccess Hollywood Tape\u201d broke in October of 2016.\u00a0\u00a0At that time, the Republican Party chose to leave Trump on the ballot as their candidate.\u00a0\u00a0Let him lose to Hillary and be done, they thought.\u00a0\u00a0And after the Insurrection, the US Senate could have convicted Trump in the impeachment process, and \u201cdisabled\u201d his ability to hold office again.\u00a0\u00a0But, they chose to leave him again, and hoped he\u2019d go away.<\/p>\n\n\n\n He hasn\u2019t. And I really don\u2019t 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. <\/p>\n\n\n\n \u00a0They will determine to save the Union from Trump, or not.<\/p>\n","protected":false},"excerpt":{"rendered":"The Questions<\/h3>\n\n\n\n
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Common Sense<\/h3>\n\n\n\n
Supreme Court<\/h3>\n\n\n\n