The Colorado Supreme Court Got It Right

Donald Trump is the luckiest guy in the history of authoritarianism. Look no further than the initial wave of reactions to Tuesday’s bombshell ruling on whether the former president can run for the White House again. The Colorado Supreme Court ruled Trump can’t be placed on the state’s 2024 ballot because his role in the insurrection on January 6, 2021, disqualified him from future political office under the Fourteenth Amendment.

“We do not reach these conclusions lightly,” the court wrote in its unsigned 4–3 decision. “We are mindful of the magnitude and weight of the questions now before us. 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.”

The ruling, including the dissents, amounts to 213 pages. This is no surprise: It’s a complex legal issue with multiple novel questions that the courts have rarely, if ever, decided. Despite that, or perhaps because of it, most of the initial reactions to the court’s ruling skipped past whether the decision was legally sound and went straight to whether it was a good idea politically.

“Democracy is whatever the Colorado Supreme Court says it is, sorry, I don’t make the rules,” quipped New York Times columnist Ross Douthat, a Trump-skeptical conservative. “You Democrats are setting precedents that will be used against you,” added conservative radio host Erick Erickson. Typifying this reaction is New York magazine’s Jonathan Chait, who wrote on Wednesday morning that he thought the decision was a mistake for nonlegal reasons—and highly specious ones at that.

“The weak point in this argument is the finding that Trump’s behavior constitutes ‘insurrection,’” he wrote. “This is a defensible shorthand for January 6, one I’ve used frequently myself. But it’s not the most precise term. When I have the chance to use a longer description, I generally say that Trump attempted to secure an unelected second term in office.”

This is the sort of flimsy reasoning that we usually find in Trump’s legal briefs. It’s barely removed from Trump’s own recent claim that he only swore to “preserve and protect” the Constitution, not to “support” it. For a former president who’s promising to be a dictator on day one if he wins next year, this is the greatest Christmas gift imaginable. If Trump’s critics don’t believe in holding him accountable for his actions, why should anyone else?

The legal case for disqualifying Trump centers on Section 3 of the Fourteenth Amendment, which was ratified in 1869. It sought to address a wide range of difficult political and legal questions that arose after the Civil War and the emancipation of four million enslaved people. To that end, it defines all freedpeople as U.S. citizens, entrenches their equal protection and due process rights, and guarantees the wartime national debt. The amendment also forbids anyone who betrayed their oath of office from holding future office.

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.

Though written in a bygone style of English, the meaning is fairly straightforward when you break it into its constituent parts. Generally speaking, if someone has held a federal or state office and sworn an oath to support the Constitution and then subsequently taken part in an insurrection or rebellion, they are permanently ineligible from holding future federal or state office. The only remedy is an act of Congress; lawmakers passed one in 1872 to un-disqualify ex-Confederates in an attempt at national reconciliation.

Section 3 has only come up in a few fleeting instances since the Civil War, and the Supreme Court has never interpreted it. Like any constitutional provision, there are legitimate questions about how to interpret it. Does the president, for example, count as an “officer of the United States” for its purposes? Conservative legal scholars William Baude and Michael Stokes Paulsen argued strongly that he does, in their influential law review article on the subject earlier this year. Some have reached a different conclusion, notably the Colorado district court judge in this exact case.

Chait, however, disclaimed that his opposition is based on legal reasoning. “I am not a lawyer, and I won’t comment on the legal merits of the case,” he wrote. “I can assess its political and civic logic, which strikes me as dangerous and likely to backfire.” Instead he argued that his opposition was grounded in higher principles.

“To deny the voters the chance to elect the candidate of their choice is a Rubicon-crossing event for the judiciary,” he wrote. “It would be seen forever by tens of millions of Americans as a negation of democracy. It is not enough that their belief is plausibly wrong or likely wrong. It must be incontrovertibly wrong to support such a momentous step.”

I could not think of an easier way to play into Trump’s hands. The man has spent his entire life arguing that any institution that challenges him is illegitimate. He does it as easily as other people breathe and walk. There is no universe in which he—and, by extension, a great many of his supporters—will concede the validity of an adverse outcome for him. It is pathological on his part: Even when he won the 2016 presidential election, he still said that there were millions of illegal ballots cast because Hillary Clinton won the popular vote.

The Constitution does not care whether “tens of millions of Americans” think of it as a negation of democracy. It would be weird if it did, since the Constitution is riddled with negations of democracy. If disqualification came about from a bill in Congress that Democrats were trying to pass, or some half-baked scheme by the Colorado legislature, Chait would have a much stronger argument. I previously argued, for example, against a California effort to keep Trump off the 2020 ballot by requiring him to disclose his tax returns since it went beyond what the Constitution authorized.

Indeed, the Constitution already limits the voters’ ability to choose the candidate of their choice in multiple ways. Americans can’t elect a 34-year-old to be president, no matter how good the person would be at it. Americans can’t reelect Barack Obama or George W. Bush because they’ve already served two terms under the Twenty-Second Amendment. Americans can’t elect Arnold Schwarzenegger or Elon Musk because they aren’t natural-born citizens. Trump is especially familiar with that last one because he launched his political career in the early 2010s by aggressively and falsely claiming that Obama was disqualified from the presidency because he was born in Kenya.

Most abhorrent to me is the idea that Trump shouldn’t be disqualified—even if disqualification would be legally and constitutionally valid, as Chait conceded for the purposes of his argument—simply because Trump supporters do not like it. This is precisely the reasoning that got us into this situation in the first place. Trump and a few thousand of his supporters gathered in Washington on January 6, 2021, because they thought their beliefs mattered more than the Constitution.

Other counterarguments have come from the likes of Erickson, a conservative commentator who promised some sort of retribution against Democrats for the Colorado ruling. “A court that did not put the man on trial and who has not been convicted of a crime related to an insurrection,” he wrote on Twitter. “You people will regret this. Kamala [Harris] raised money for BLM activists who burned down cities. It is so obvious where this heads.”

Is it? If any Democratic elected officials take part in or support an insurrection or rebellion, they should be disqualified as well. Kamala Harris did not do either of those things, despite what Erickson suggested. He is apparently referencing a tweet by Harris that linked to a Minnesota bail fund in the summer of 2020. Donating to a bail fund is not supporting an insurrection or rebellion, mostly because the George Floyd protests did not amount to insurrection or rebellion, no matter how apocalyptically Erickson wants to frame them.

If the threat here is that Republicans will use false and disingenuous legal attacks on their political opponents, then it’s not really a threat at all. The birtherism that more than a few conservatives indulged in during Obama’s first term already met that threshold. So does the free-floating impeachment inquiry that Republicans are trying to find a reason to open against Joe Biden. So did the Supreme Court lawsuit by multiple Republican-led states to strip Biden of Electoral College votes based on false claims of voter fraud. It’s not a deterrent if you’re going to do it anyway.

The Section 3 question, as I’ve noted before, is a legally complicated one. The Supreme Court may well overturn the Colorado Supreme Court’s ruling if and when it hears the case later this spring. (It is virtually certain that the justices will take up this case as soon as they get the opportunity, given the national stakes and the impending election deadlines.) They also might not. There will be plenty of debate over that question in the weeks and months ahead.

But as a civic and political matter, the disqualification question is actually pretty easy. Trump summoned a mob to attack Congress to illegally keep himself in power on January 6. He broke his oath of office and tried to overturn an election by force. When you try to destroy the American constitutional order, Section 3 says that you forfeit the right to hold office under it. I understand why Trump’s supporters might resist those conclusions. What baffles me is when people who think that Trump is a danger to the republic refuse to treat him like one.