The disqualification of Donald Trump challenges the Supreme Court’s conservatives to follow through on their stated beliefs.
The Colorado Supreme Court has left the justices of the United States Supreme Court in the very uncomfortable position of having to prove that they have the courage of their stated convictions.
Yesterday, Colorado’s high court ruled in a 4–3 decision that former President Donald Trump, because of his attempts to overturn the results of the 2020 election, is disqualified from appearing on the ballot in Colorado, based on Section 3 of the Fourteenth Amendment of the U.S. Constitution. The language of that section, written in the aftermath of the Civil War to disqualify former Confederates who had taken up arms against the United States in defense of the institution of human bondage, is short and simple:
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.
There is no language limiting the power of the section to former Confederates, however, and its scope is sweeping, with no requirement that those engaged in the specified conduct be convicted. Indeed, given the number of people who served in the Confederate army and governments, such a requirement would have been impractical.
David Frum: The Colorado Supreme Court just gave Republicans a chance to save themselves
The Colorado court weighed all of this in arriving at its decision. “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the justices in the majority wrote. “We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
In framing the stakes this way, the Colorado court is calling the bluff of the U.S. Supreme Court’s originalists, forcing its conservative justices to choose between their purported legal philosophy and the partisan interests of the party with which they identify. The ruling itself seems written with a consciously originalist interpretation, with an eye toward legitimizing its conclusions to the justices who will ultimately be compelled to deal with the case.
The possibility that Trump’s actions disqualified him from holding office again was explored in careful detail in August by the conservative legal scholars William Baude and Michael Stokes Paulsen. They wrote, “It would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to law.”
There are a lot of practical reasons for opposing Trump’s disqualification. One is that it removes the choice of rejecting Trump from the electorate, which might seem undemocratic, even if it’s done with constitutional provisions adopted by the people’s chosen representatives. Another is that it could damage the legitimacy of democracy itself, by appearing to confirm Trump’s allegations that the political system is “rigged” against him. Still another is that it could lead to unrest or political violence. It is not hard to imagine Republicans embracing the provision and using flimsy pretexts to disqualify opponents who did nothing reasonably defined as “insurrection or rebellion.” Even if Trump were disqualified from appearing on the ballot, there is no way to prevent people from writing in his name and, after a potential victory, forcing the courts to litigate the issue again, but with his opponents demanding that the courts overturn election results.
These are all compelling reasons to avoid or disregard this provision, notwithstanding its plain meaning and intent. A second rejection of Trump at the ballot box seems like the least destabilizing outcome. The problem for a majority of the justices on the Supreme Court is that they’re not supposed to care about any of this. They’re originalists, remember? They have repeatedly insisted that if you don’t like what the law or the Constitution says, then you should pass a law or amend the Constitution, but that their own hands are rightfully tied by the text and intentions of the Framers.
“The text means what it says. Similarly, if the rule supplied by the objective meaning of the text runs right on past the specific historical purpose for which it was enacted and embraces as well other insurrectionists, rebels, and aiders and comforters of enemies, that rule must be given full legal effect as part of the Constitution,” Baude and Paulsen write. “The rule’s overbreadth in terms of its perceived purpose, and even its inconvenience as a consequence of such overbreadth, are beside the point.”
In theory, originalism is committed to interpreting the Constitution according to its original meaning as it was understood at the time of adoption. This should lead to legal outcomes that liberals prefer sometimes and outcomes that conservatives prefer other times. In practice, it has most frequently been an undead version of the supposed “living constitutionalism” it rejects, a method of rationalizing and using history to offer a patina of legitimacy to the preferred outcomes of the Republican Party or its key constituencies. This reality has become more and more clear to the public since conservatives on the Court obtained a 6–3 majority, and began to reshape society on the basis of right-wing whims and obsessions.
Adam Serwer: The Constitution is whatever the right wing says it is
Originalists are not supposed to rule based on the impact of their decisions, a tendency they derisively refer to as “results-oriented judging.” Instead, they are merely supposed to ensure that the law is implemented to the letter, as it was intended to be. Indeed, all of the self-identified originalists and strict constructionists in the conservative intelligentsia should be demanding this provision be enforced as written, damn the consequences. If these labels had any meaning for most of them, they would be.
The evidence that Trump engaged in the sort of conduct the Fourteenth Amendment was designed to address is overwhelming, as is the originalist case for its application. Every piece of information that has emerged in the aftermath of the Capitol riot on January 6 has clarified what appeared even then to be a premeditated attempt to overthrow constitutional government in the United States.
What we saw on the day itself was sufficient: Having tried to bully Republican secretaries of state not to certify the results of the 2020 election, to pressure Republican state legislatures to overturn those results, to appeal to the courts to keep him in power based on fraud accusations the Trump campaign knew to be baseless, to compel the Department of Justice to substantiate fictional examples of fraud as pretexts for overturning the election, and to coerce then–Vice President Mike Pence to reverse the results based on a crackpot legal theory, Trump tried to remain in power by force.
Trump called his supporters to Washington, D.C., to protest his loss and urge Congress to overturn the results—an illiberal act but one protected by the First Amendment—then directed his followers to the Capitol, telling them, “If you don’t fight like hell, you’re not going to have a country anymore.” Retreating to safety, Trump watched on television as the mob turned violent, and initially refused to call off the rioters despite entreaties from right-wing figures who would later defend both his actions and those of the mob. The Capitol itself was ransacked as legislators fled under the protection of the Capitol Police, who lacked the numbers to restore order until the National Guard arrived. Internal messages from the organizers and a never-posted draft tweet from Trump himself have since revealed that Trump intended to direct this mob to the Capitol, hoping to prevent the peaceful transfer of power to his lawfully elected opponent.
If any of this had succeeded, Trump’s quislings were planning to order the U.S. military to suppress its own citizens if they rose up in protest to defend their right to democratic self-determination.
Still, I do not expect the Supreme Court to allow states to disqualify Trump from the ballot, and I am skeptical that the political aftermath would be desirable even if they did. Trump has been impeached twice, both times for attempting to subvert elections. The first time, he sought to use his power as president to force Ukraine to implicate his Democratic then-rival Joe Biden in a nonexistent crime in exchange for U.S. aid, and was spared removal from office by Senate Republicans. The second time he was impeached, it was for attempting to remain in power by force, and he was again spared by Senate Republicans.
Despite their anonymous whispers disparaging Trump to sympathetic reporters, the GOP elite has never possessed the will to rid themselves of a man they recognize to pose a threat to democratic self-determination, either because they are enthusiastic supporters of Trump’s authoritarian project or because they are cowards. Whatever their reasons, they have repeatedly delegated that responsibility of defending the republic to the people. I do not expect a different outcome here.
To be in this position at all, between disqualification of a man running to hold the highest office of a government he tried to overthrow and the possibility that he might win again outright, implies that no happy ending can be had, regardless of the path chosen.
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