If most Americans read Section 3 of the 14th Amendment to the U.S. Constitution (and Section 3 is short), they should understand why the Colorado Supreme Court disqualified Donald Trump from the state's presidential ballot, according to a post today at The New York Times: The Morning newsletter. Unfortunately, The Times article includes an example of how at least one prominent American -- an accomplished, intelligent guy you would expect to know such things -- still does not grasp the once-obscure, Civil War-era provision of law under which Trump was disqualified.
The man I'm talking about in The Times article is a lawyer and an expert on the U.S. Supreme Court (SCOTUS), so how are everyday "kitchen table" Americans supposed to understand this stuff. To many of them, the Trump DQ probably seems like one of those events that "just doesn't seem right.," especially if they were planning to vote for Trump. I can provide three pieces of information that might be comforting to some folks: (1) The disqualification, at the moment, applies only to Colorado -- a state Trump was not likely to win anyway; (2) Like it or not, The Colorado Supreme Court got it right, and Trump really is disqualified as a matter of law. The Colorado Supremes became the first court to rule correctly on the question of Trump's eligibility -- courts in Michigan and Minnesota had gotten it wrong, and a finding from Maine is expected any moment, possibly today. I know point No. 2 will not provide solace for Trump voters, but as a general notion, if should be of some comfort to know our judiciary still can get things right sometimes -- and that does not always happen, by a long shot; (3) The Trump matter is expected to wind up before SCOTUS, in an expedited manner, so that could provide drama and produce a ruling in a relatively short time. As for the drama, SCOTUS' handling of the Trump matter should tell us whether the beleaguered court has any credibility left at all, whether it even cares about upholding the law on a matter that really is not all that complicated. (Note: We will have more in upcoming posts on challenges SCOTUS faces because of the Trump case.)
Since Section 3 and surrounding issues can seem complex, many Americans might be wondering how they can get a grip on it. My No. 1 suggestion is to read the analysis of Ilya Somin, a constitutional scholar at George Mason University's Antonin Scalia Law School who was the subject of a Legal Schnauzer post yesterday. A link to my post is here, and a link to Somin's full piece is here. It's a bit lengthy, but it's the most clear-eyed explanation I've seen of what Section 3 is, how the Colorado court worked through various issues surrounding the Trump matter, and how the court ultimately reached the lawful, correct conclusion. Somin's work is well worth the time to read, no matter your political leanings.
What about insights from The New York Times at The Morning newsletter? David Leonhardt and Ian Prasad Philbrick write:
At its core, the Colorado lawsuit trying to keep Donald Trump off the 2024 ballot involves a clash between Constitutional textualism and voter empowerment.
If you simply read the 14th Amendment, you will understand the argument that Trump should be disqualified from serving as president again. Section 3 of the amendment states that nobody who has taken an oath to support the Constitution should “hold any office” in the United States if that person has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On Jan. 6, 2021, of course, Trump encouraged a mob that later attacked Congress, and he praised the attackers that day and afterward.
There are important legal technicalities, including a debate over whether the authors of the amendment intended for the word “officer” to describe appointed officials rather than elected ones. But many legal scholars, including some conservatives, have concluded that the amendment applies to Trump. “The ordinary sense of the text” and “the evident design to be comprehensive” indicate that it bars Trump from holding future office, William Baude and Michael Stokes Paulsen, who are members of the conservative Federalist Society, concluded in a recent law review article.
The clearer philosophical argument against the lawsuit is democratic rather than technical: If the American people do not believe Trump is fit to be president, they can vote against him next year. For that matter, the Senate, an elected body of representatives, had the power to convict Trump during the impeachment trial over his Jan. 6 actions and bar him from future office, and it did not do so.
Now, though, the seven justices of the Colorado Supreme Court (in a 4-3 vote, no less) have decided that Trump cannot appear on the state’s primary ballot. Lawyers are asking other courts to make similar decisions (as this Lawfare page tracks). Ultimately, the nine justices of the U.S. Supreme Court are likely to decide the case.
Here is where The Times article starts to swerve off the tracks. Write Leonhardt and Philbrick:
Were [SCOTUS] to bar a leading candidate from running for president, it could disenfranchise much of the country. It would in some ways be “a profoundly anti-democratic ruling,” as our colleague Adam Liptak, who covers the Supreme Court, said on “The Daily.” As Adam explained:
Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?
The lawyers making the case against Trump have a response to this. For one thing, the Constitution already restricts the voters’ judgment in other ways, as Ciara Torres-Spelliscy, a law professor at Stetson University, told us. Nobody under the age of 35 can become president, nor can Barack Obama or George W. Bush again, because both have served two terms. And a judge in New Mexico last year barred a county commissioner from holding office because of his role in the Jan. 6 attack.
For another thing, Trump may represent a threat to the national interest that no politician in decades has. He has encouraged violence, described his critics as traitors, lied constantly, used the office of the presidency to enrich himself, promised to target his political rivals for repressions and rejected basic foundations of American democracy. He is, according to this argument, precisely the kind of autocratic figure whom the founders wanted the Constitution to prevent from holding power, even if voters felt otherwise in the moment.
These will be the terms of the debate in coming weeks.
Liptak is the guy I was referring to in the second paragraph above. He unquestionably is one of the top legal journalists in the country, a true expert on the nation's highest court. But he is off target on the Trump-Colorado matter. How so? Let's consider some of the points raised in The Times article:
(1) Leonhardt and Philbrick write:
Were [SCOTUS] to bar a leading candidate from running for president, it could disenfranchise much of the country. It would in some ways be “a profoundly anti-democratic ruling,” as our colleague Adam Liptak, who covers the Supreme Court, said on “The Daily.”
Schnauzer Response: Leonhardt and Philbrick, unintentionally I suspect, are confusing the matter here. Section 3, the law at the heart of the Trump-Colorado case, is not about disenfranchising voters; in fact, it's not about voters at all. It's about candidates -- specifically which candidates are qualified to run for, and hold office.
In an August 2023 post, we introduced you to Professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — both members of the conservative Federalist Society (FedSoc). From the post:
Two prominent conservative legal scholars determined that former President Donald Trump is ineligible to be president under a provision in the Constitution barring people who engaged in insurrection from office.
[Baude and Paulsen] studied the question for more than a year and detailed their findings in an article set to be published next year in the University of Pennsylvania Law Review, according to The New York Times.
Said Baude: "When we started out, neither of us was sure what the answer was," Baude told the outlet. "People were talking about this provision of the Constitution. We thought: 'We're constitutional scholars, and this is an important constitutional question. We ought to figure out what's really going on here.' And the more we dug into it, the more we realized that we had something to add."
The professors' conclusion, he said, is that Trump "cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6."
That goes to the crux of the issue in the Trump-Colorado case. Section 3 is about candidates and their qualifications, not voters -- and two conservative scholars, members of the Federalist Society, determined months ago that Trump was disqualified under the constitution. Now the Colorado Supreme Court has agreed with them.
Why does Adam Liptak not get it, at least not yet. Let's consider his words, as reported by Leonhardt and Philbrick:
Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?
Liptak essentially makes the same mistake that Leonhardt and Philbrick make -- he concentrates on voters, not candidates. Yes, the electorate picks its favorites from among candidates who qualify to be on the ballot. But who decides who qualifies for ballot? That's a constitutional matter, spelled out in Section 3 -- and as is usually the case, constitutional questions require action from the courts.
The Colorado Supreme Court has correctly decided the issue, and we soon will see if SCOTUS follows suit.
We leave you with an important thought from Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington (CREW), the watchdog group that filed the Colorado lawsuit:
Disqualification for insurrection is not a punishment. It is simply one of the constitutional requirements for office, like that you have to be 35 and a native born citizen to be president.
That is the simplest and shortest explanation I've seen for why a court, not voters, was required to determine Trump's eligibility in Colorado.
For those interested in further reading, The Times provides links to a number of articles about the Section 3 issue:
- “The Colorado Supreme Court just decided that the U.S. Constitution still matters,” John Avlon argues for CNN. “The 14th Amendment was put in place to use in moments like this.”
- Anastasia Boden of the Cato Institute calls the Colorado ruling “a good-faith attempt to grapple with a vague constitutional provision.”
- Michael Mukasey has argued in The Wall Street Journal that the provision doesn’t apply to Trump. “If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020 — by defeating him in an election.”
- “Section 3 of the 14th Amendment should not be used to prevent Americans from voting to elect the candidate of their choice. The best outcome, for the court and the country, would be for a unanimous court … to clear the way for Trump to run,” Ruth Marcus writes in The Washington Post.
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