The recent decision by the Colorado Supreme Court to remove former President Donald Trump, who is trouncing all the other GOP presidential nominees in primary polls, from the Colorado primary ballot very well could be one of the worst state Supreme Court rulings in history.
According to the majority opinion, “President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution.”
The Fourteenth Amendment's primary point, ratified in 1868, was to provide citizenship for former slaves as well as “due process” and “equal protection” under the law.
Under Section Three, the architects of the Fourteenth Amendment sought to prevent former Confederate soldiers and officials from attaining seats of power in the newly reconstructed federal government.
The full text of Section Three, also known as the Disqualification Clause, states: 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.
Notice the specific language used: “shall have engaged in insurrection or rebellion.” In legal parlance, the term “shall” is interchangeable with the word “must.” In other words, the drafters of the Fourteenth Amendment designed Section Three so that it would apply solely to anyone who “must have engaged in insurrection or rebellion.” Had the drafters used the term “may,” this clause could have been used arbitrarily, and it likely would not have passed constitutional muster.
This matters considerably concerning the Colorado Supreme Court ruling because Donald Trump has not been charged with, nor found guilty of, engaging in insurrection or rebellion.
Special Counsel Jack Smith has charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights. However, Smith has not charged Trump with 18 U.S. Code § 2383 - Rebellion or insurrection, which states, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
No one who participated in the January 6, 2021, riot/protest has been charged with insurrection!
According to case law, an insurrection is defined as “a violent uprising by a group or movement acting for the specific purpose of overthrowing the constituted government and seizing its powers. An insurrection occurs where a movement acts to overthrow the constituted government and to take possession of its inherent powers.”
Although the actions that occurred on January 6, 2021, were far from peaceful, it strains credulity to describe what happened on that day as an actual insurrection under the age-old definition of the term.
What’s more, Trump was impeached by the House of Representatives and charged with “incitement to insurrection” shortly after January 6, 2021. But, he was found not guilty of this by the U.S. Senate following a lengthy trial. Although this does not carry legal water, a group of senators with extensive knowledge of the law determined that Trump’s actions on January 6 did not rise to the level of inciting an insurrection.
On January 6, while holding a demonstration at the Ellipse, Trump said, among other things, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Those words don’t sound like calls for violence, let alone a rallying cry for insurrection.
Yes, Trump did state, “We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.” But, even in this statement, he is referring to fighting in the general sense; he was not, under any reasonable interpretation, calling on his supporters to overthrow the government.
What is happening is quite simple. President Joe Biden’s approval ratings are in the toilet, and Trump is crushing Biden in the all-important swing state polls. Therefore, Democrats are terrified that Trump will defeat Biden in 2024. So, they are desperate. And desperate times call for desperate measures.
Fortunately, this last-second Hail Mary attempt by a Colorado Supreme Court comprised of seven Democrat-appointed judges will most likely be overturned by the U.S. Supreme Court. But, if this is the degree that some on the left are willing to take to remove Trump from the primary ballot, it makes me very concerned that they will leave no stone unturned as they pull out all the stops to prevent Trump from winning the 2024 general election.
Chris Talgo (ctalgo@heartland.org) is the editorial director at The Heartland Institute.