For many months now groups of Democrat Party activists have been shopping a novel legal theory (pushed by two law professors, William Baude and Michael Stokes Paulsen: see link) around various State courts in the USA, looking to see if they could get any bites.

The theory was that Trump had engaged in an insurrection on January 6, 2021, and therefore should be booted off ballot papers for this year’s Presidential election under the long-dormant provision in Section 3 of the 14th Amendment — the “disqualification clause”. Most rejected the theory outright as, at best, a weak stretch of the Constitution, and at worst a Banana Republic piece of anti-democracy. But a few weeks ago they got what they were looking for:

In a shocking decision, the Colorado Supreme Court held today, in a Per Curiam opinion [4-3], with three justices dissenting, that Donald Trump is an “insurrectionist” who is barred by Section 3 of the 14th Amendment from running for the presidency.

The 14th Amendment is famous because it’s connected with the rights of formerly enslaved citizens of the USA and is connected to the 13th, which banned slavery, and the 15th, which prevents any US citizen from being banned from voting because of race, colour, and “previous condition of servitude”. The 14th deals with other rights of citizenship and equal protection under the law and it’s one of the most legally contested parts of the US Constitution.

Section three was included when it was noticed that quite a few politicians who’d sided with the Confederate States were angling to get their old jobs back in Washington D.C. The most well known was the former Confederate VP Alexander Stephens, who – as the cherry on top of this chutzpah confection – was completely “unrepentant” about them starting the Civil War and his role in it.

Section 3. 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.

Another Civil War and Democrat Party connection here is that in the Presidential election of 1860, ten Southern States kept Abraham Lincoln’s name off the ballot. Lincoln’s comment when he heard of this was, “This is the same old trick”.

If you love legal theory and you’re interested in an alternative legal opinion (naturally a direct attack on the Baude & Paulsen arguments), you can read this article by Professors Josh Blackman and Seth Barrett Tillman.

But for the rest of us laymen, I’ll summarise here the basic problems with this argument and decision (aside from the Banana Republic aspects of removing political opponents via lawfare).

Let’s start with two of America’s more famous legal professors, Alan Dershowitz (Harvard, retired) and Jonathan Turley (George Washington Law School).

[Dershowitz] In the sixty years I’ve been practicing and teaching law, I’ve never seen a decision that is so antidemocratic and so unconstitutional… It is absurd. The idea that the Fourteenth Amendment was supposed to substitute for the impeachment provision, carefully drafted by the Framers, is wrong.
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If you want to impeach a president, if you want to make him not be able to run in the future, there’s a provision that requires a two-thirds vote in the Senate. But the idea that the Framers of the Fourteenth Amendment intended to circumvent that carefully drawn provision, and simply allow any state to make up grounds denying him the right to be on the ballot, undercuts democracy.

Not only that but he points out that the 14th Amendment itself made it quite clear who had the power to decide all this: Congress – and only Congress:

It says in Section 5, ‘The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.’ The Congress. That’s the United States Congress, …There’s no provision in the Fourteenth Amendment for any state, or certainly any state court, to interfere with the right to vote by its citizens. So this is a terrible, terrible decision.

Amen to that.

[Turley] Much can be said about this decision, but restraint is not one of them. What is most striking about the Colorado Supreme Court’s ruling is how the majority removed all of the fail-safes to extend the meaning of Section 3 of the 14th Amendment to block Trump.

There were a number of barriers facing advocates who have tried to stretch this provision to cover the January 6 riot. The four justices had to adopt the most sweeping interpretation possible on every one of those questions in order to support their decision.
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The result is an opinion that lacks any limiting principles. It places the nation on a slippery slope where red and blue states could now engage in tit-for-tat disqualifications. According to the Colorado Supreme Court, those decisions do not need to be based on the specific comments made by figures like Trump. Instead, it ruled, courts can now include any statements made before or after a speech to establish a ‘true threat.’

The free speech question saw the four justices delving into Tweets and speeches that Trump had made months before the events of January 6 in order to overcome the words he did say on the day to the protestors when he urged them to be peaceful and obey the law and police officers. That’s a novel twist on a person’s free speech to say the least.

Even the Washington Post, a normally reliable suckhole for Democrats and Biden, thought the decision was bullshit and dangerous:

Disqualifying a candidate based on an accusation, albeit one blessed by a state court judge as in the Colorado case — but not an actual conviction — is dangerous. What’s to stop a Republican politician from seeking to bar his Democratic opponent because the opponent attended Black Lives Matter protests, claiming that those protests, some of them nominally in service of abolishing the police, qualify as insurrection?
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Tellingly, Justice Department special counsel Jack Smith has brought an aggressive case against the former president for conspiracy to defraud the United States, obstruction of an official proceeding and more — but not for violating the federal law against insurrection [Title 18, §2383 of the U.S. Code].

Funnily enough there is one small sidebar argument (although it might become central) to the effect that while the legislation talks of barring people from being Senators, Congressmen, or any “officer of the United States”, Federal or State, it doesn’t actually specifically identify the positions of President or Vice-President. In fact SCOTUS, way back in 1888 made its position clear on that:

“An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution.  This subject was considered and determined in U.S. v. Germaine, 99 U.S. 508 [(1878)], and in the recent case of U.S. v. Mouat, 124 U.S. –, ante, 505 [(1888)]. What we have here said is but a repetition of what was there authoritatively declared.”

In other words, the President and VP are not officers of the United States so section 3 can’t be applied to them. We’ll see where that goes with today’s SCOTUS, if it’s presented to them, which I think it will be.

Another retired law professor, Ann Althouse, notices another little wrinkle that might come into play because of Trump’s petition where it focuses on the whole question of Congressional disqualification: ‘But Congress may by a vote of two-thirds of each House, remove such disability.’ That means a former government officer who did engage in insurrection or rebellion can hold office after all, with Congress’s permission. Trump’s petition argues that the clause, which is about ‘holding office,’ ‘does not prevent anyone’—even an insurrectionist—’from running for office, or from being elected to office,’ because it is always possible that Congress will vote to permit him to ‘hold’ office. As Althouse comments with amusement:

If the Supreme Court chooses that interpretation, then electing Trump will become a way to make the VP candidate President, because we would expect Congress to deny Trump that super-majority vote he needs. Trump would still get all the glory of winning and a monumental new complaint against his antagonists.

Heh.

But it’s likely that SCOTUS will focus on the key aspect of the Colorado Supreme’s decision, and it’s one that was raised by one of the three dissenting judges on that court (all appointed by Democrats), Justice Carlos Samour – and it’s worth remembering this one amidst all the soundbite crap about “self-executing” decisions like those around the age and birthright citizenship qualifications to allow a Presidential run, which both require nothing more than a birth certificate. Herewith a summarised analysis of Samour’s dissent, starting with the point about Congress’s specific powers mentioned earlier:

  • Who or what body has the power to enforce or carry out Section 3 of the 14th Amendment, which says individuals who engaged in an insurrection may not hold office. Section 5 of the same amendment says Congress has the power to pass laws to enforce section 3.
  • Congress passed a law in 1870 allowing for both civil and criminal enforcement of Section 3, though the law was repealed and replaced in 1948. The new law, 18 U.S.C § 2383, says an individual can be banned from holding office if they are charged and convicted under the law. Trump has not been charged under said statute.
  • Samour – “[the decision] flies in the face of the due process doctrine.”
  • Samour - “This can’t possibly be the outcome the framers intended” [and] “risked chaos in the country.” (allowing states to decide individually whether to allow Trump’s candidacy, with state governments divided on the legitimacy of a victorious presidential candidate).

Deeper analysis here on these points, but it ends with this summary:

This analysis renders a lot of the other questions irrelevant.  Did Trump engage in an insurrection? Does Section 3 apply to the President? Should Trump be off the ballot nationwide or just in states like Colorado that found that he engaged in an insurrection?  None of that matters. The only thing that matters is that Congress followed the 14th Amendment and established a procedure for barring someone from office for engaging in an insurrection, and that procedure was not followed here.

This writer adds some historical knowledge (“As one would have anticipated, the Internet has lately spawned scores of instant Section Three experts. I’m not going to join the crowd.” 🤣🤣🤣) that should be kept in mind when dealing with some Hair-On-Fire-TDS-Riddled fanatic whose hatred of Trump would see them do anything to stop him and for whom the notion of forgiveness is an unknown virtue:

Very quickly, however, the perceived need to disqualify them from office dwindled. Reconstruction wasn’t a smooth and easy process, but the South didn’t become an American Poland, and excluding a large portion of the white Southern population from office holding came to be viewed as an irritant that worked to the advantage of the Ku Klux Klan and other irreconcilables.
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In 1872, the scope of Section Three was restricted to pre-war federal officers. In 1898, Congress made amnesty available to all upon request.

All of these measures were approved, as required, by super-majority votes of both Houses. In other words, within six years after Section Three’s passage by Congress and four years after its ratification, the men who had fought against the Confederacy reached a consensus that the sanction against insurrection was largely unnecessary and perhaps undesirable. Symbolic of its evanescence was the seating of Alexander Stephens, former Confederate vice president, in the House of Representatives in December 1873. He served until 1882, when he was elected governor of Georgia.

The GOP did this because they realised that they didn’t want to fight another Civil War, and likely a nastier one of a Troubles type. Sadly I don’t think the Democrat Party of 2024 has the same sense:

Donald Trump is a widely unpopular figure, as, in my opinion, he ought to be. He does, however, have a base of support that is large enough and loyal… wielding Section Three would not stop with Donald Trump…From his disqualification, it follows, “as the night the day”, that the lesser fry will be thrown off ballots, too…Let us suppose, though, that MAGA accepts Trump’s removal quietly. The story won’t end there. Section Three, complete with the very broad definitions of “insurrection” and “engaged” that have been deployed against Trump, will be available for future use by all factions. Disruptive protests at state legislatures, almost always left-wing, are not uncommon…

Some of very recent vintage – anti-Israel protests to the fore – he lists. And I also appreciate this wisdom – obviously because I’ve argued it a number of times:

Donald Trump is neither immortal nor omnicompetent. He can serve as President for four more years at most. During his first term, he showed no special talent for achieving his political goals, which were often vague or unrealistic… In any event, the Democratic Party has a clear and easy course to keeping Trump from regaining the Presidency, one that doesn’t depend on a Constitutional provision that was ineffective at its origin and has been dormant ever since. It can nominate candidates other than Joe Biden or Kamala Harris

Heh! It’s only January. Maybe they still will.

I’ll end with these words from law professor, Glenn Reynolds, which echo those of the “immunity” case and other aspects of what is being thrown at Trump, Civilizational Jenga:

In a more civilized version of America – one that existed just a few decades ago – the notion of waging this sort of unrestricted lawfare against a leading presidential candidate, much less a former president – would have been considered ridiculous, and had it been taken seriously, would have been seen as enormously risky.

When considering any political tactic, after all, one question is what happens if it doesn’t work.  But sometimes an equally important question is, what happens if it does?

Say the various Democratic flacks, special prosecutors, and state attorneys general somehow manage to eliminate Trump.  What happens? Half the country – maybe more – will conclude that the whole system is rigged, that the establishment doesn’t follow the rules, and that it will gang up on anyone it sees is a threat. They will conclude, in short, that the government, and indeed the entire system, is illegitimate.

And they will be right.  And the politicians of even a generation ago recognized that as enormously dangerous.