The Colorado Supreme Court’s December 19 decision touched off a storm of bad reporting: errors about the law, history, and basic facts surrounding the conclusion that Donald Trump is disqualified from holding office. Let’s correct five key errors. [And see below for an an sixth error and an update based on Maine’s disqualification.]
Error 1: Several other courts have ruled that Trump is not disqualified.
In 1870, North Carolina elected former Confederate Zebulon Vance – right – to the U.S. Senate. But he was disqualified under the 14th Amendment, withough trial, and so did not serve.
Outside of Colorado, no court has decided whether Section 3 of the Fourteenth Amendment disqualifies Trump. Federal and state courts elsewhere have dismissed disqualification cases. But they ruled on what you might call procedural grounds, particularly arguments that the plaintiffs in those cases lack “standing.” (That includes today’s decision from the Michigan Supreme Court.) That means those particular plaintiffs lack the sort of injury necessary to maintain a lawsuit, at least as of now.
In other words, if the U.S. Supreme Court affirms the Colorado decision on appeal, it will be agreeing with the only court system that has an outstanding decision on Trump and the Fourteenth Amendment.
For updates on the all the disqualification cases, see The Trump Disqualification Tracker from The Lawfare Institute.
Error 2: Disqualification isn’t likely or right because it would take the decision away from the people.
If we wanted government purely by vote of the people, we wouldn’t need a constitution. Written constitutions take power out of the majority’s hands, and ours is no exception. (In fact, it’s the model.) The U.S. Constitution outlines a government structure the majority can’t change (except through amendment). And it protects our rights from majority decisions. For example, no matter how much the majority might want a law that restricts freedom of religion, the First Amendment forbids it.
The Constitution also restricts the people’s power to choose office holders. The majority might prefer a presidential candidate younger than thirty-five or one who wasn’t born a citizen (e.g., Arnold Schwarzenegger). But he or she couldn’t become President because Article II of the Constitution forbids it.1U.S. Const. art. II, § 1. (The Constitution’s Electoral College system also restricts majority power to choose office holders. That system gave Trump the Presidency in 2016 despite the fact that he lost the national majority/popular vote.)
Section 3 of the Fourteenth Amendment serves the same purpose. Congress and the states enacted Section 3 because they knew Southern voters would elect ex-Confederates, and they wanted to block those majority votes.
Note also that removing Trump from the ballot does not actually take away anyone’s vote, assuming it’s done before votes are cast. It just removes one candidate, leaving populists and other Republicans plenty of other options.
For more on the mechanics of Section 3, see my prior article on Fourteenth Amendment disqualification.
Error 3: Disqualifying Trump would violate due process.
The Constitution requires due process of law to deprive anyone “of life, liberty, or property.”2U.S. Const. amd. V. It doesn’t require conviction or any other form of due process to deprive anyone of political office.
Further, the Fourteenth Amendment is part of the Constitution (of course). So it’s not overruled by other provisions, like the due process requirement. And as explained in my earlier post, the Amendment originally disqualified former confederates without conviction. That was the point.
It’s also not clear what process would be due if the courts ultimately required some sort of hearing. Trump may have already gotten it in Colorado.
The Constitution restricts the voters’ power. That’s the whole point.
Error 4: Disqualification is a terrible strategy for the Democrats since Trump can use it to build support.
The Democratic Party is not behind the effort to disqualify Trump. The people claiming disqualification are conservative and liberal citizens, acting on their own. Eventually, state election officials will probably block Trump too – not for political reasons (we hope) but because they think the law requires it.
As for President Biden, he’d probably prefer that Trump remain the Republicans’ nominee. Trump is the only Republican candidate carrying more political baggage than Biden. So a Trump nomination gives Biden his best odds of reelection.
Finally, disqualification is not a political strategy. It’s the law. If Trump is disqualified under the Constitution, it is everyone’s duty to see that he does not hold office, regardless of political calculation.
Error 5: There is no chance the conservative Supreme Court will rule against Trump.
The Court’s political leanings shouldn’t matter. But if they do, the majority’s conservatism may cut against Trump more than it favors him. Trump is not conservative: he’s a populist. And while the distinction is lost on many, it almost certainly isn’t lost on conservative justices like Roberts and Kavanaugh. Trump is not one of theirs.
Also, conservative justices regularly apply “original intent,” interpreting the Constitution as close as possible to the Framers’ intent. (Many doubt that modern decisions based on original intent have much to do with the Framers’ views, but that’s a separate issue.) Original intent may work against Trump. The deeper legal issues lie beyond the scope of this article, but there are good arguments that the authors of the Fourteenth Amendment meant to keep people like Trump out of office. They could have limited disqualification to former Confederates or given it an expiration date, but they didn’t. (Again, see my earlier post, as well as the sources it cites.)
For many who oppose Trump, disqualification sounds too good to be true (like assuming Putin will be overthrown, giving Ukraine an easy out). And for Trump supporters, its sounds too unfair. Those perspectives probably explain why the press insists on calling disqualification a long shot. Neither side’s feelings, however, determine the law. No one knows what the Supreme Court will do, but I think disqualification has better odds than most Americans realize.
UPDATE: On December 28, Maine’s secretary of state also held Trump disqualified. See my next post: “Main disqualification: why the secretary of state, not the courts?”
© 2023 by David W. Tollen. All rights reserved.
Images:
- Oil portrait of the three colonels of the 26th North Carolina Regiment: Henry King Burgwyn, John Randolph Lane, and Zebulon Baird Vance, by William George Randall, 1897
- Foundation of the American Government, by John Henry Hintermeister, 1925.
- 1U.S. Const. art. II, § 1.
- 2U.S. Const. amd. V.
Are you actually trying to defend the utterly preposterous notion that a 4 hour riot, where almost nobody brought guns, was an ‘insurrection?’
The idea can be thrown out on its face.
Title 18 U.S. Code 2383 makes insurrection a crime.
Not one single person was charged with this crime, much less indicted or convicted.
So it can be said that the notion that Trump ‘led an insurrection’ is absurd on the face, and must simply be laughed out of court. No person who proposes it can be taken seriously, and is either a charlatan or actively hostile to the Republic.
I would suggest that any person who supports this outrageous and absurd effort to subvert the fundamental processes of America is far more worthy of being disqualified under Am. 14 Sec 3 than Trump is.
Guns don’t define an insurrection, and no Confederate soldiers or generals were charged with insurrection, though it’s clear they were so engaged.
I assume that you are not a law school grad
Good point about due process, but many of us believe one should not be disqualified for the ballot without a criminal conviction – especially when that ‘crime’ (insurrection) is cited as the cause of the disqualification. The accusation of insurrection was immediately made by the Democrat media, Trump was tried and convicted in the court of public opinion by a Democrat controlled Congressional committee, and now has been disqualified from a state ballot by a Democrat supreme court. This decision reeks of partisanship and will further galvanize both sides.
Craig, I really apppreciate that you offered a thoughtful, reasoned argument (without insults) on Trump’s behalf. We have too little of that.
But of course, I disagree with you. The authors of the 14th Amendment chose not to require criminal conviction, and many ex-Confederates were excluded from office without one. So while most Trump supporters (and even a few of his opponents) think conviction should be necessary, that’s not the law. That means the courts have no choice. Nor do secretaries of state, like Maine’s today. Disqualification is not a choice, and it doesn’t matter what anyone prefers. It’s the law.
There is a way out of disqualification, even if Trump loses before the Supreme Court. And it’s a better way to address your concern than courts ignoring the law. As my post today explains, the authors of the 14th Amendment created a safety valve. Under Section 3, Congress can lift the disqualification by a 2/3 vote of each house. It’s not likley to happen in this case (though it did for most Confederates). But the responsibility lies with Congress, not the courts. (See, “MAINE DISQUALIFICATION: WHY THE SECRETARY OF STATE, NOT THE COURTS?”)
Finally, I don’t agree that Democrat media convicted Trump. I watched on January 6, and I’ve seen even more footage since – and reviewed the evidence collected by various authorities, particularly testimony from Trump’s own people. I believe he tried to overthrow the 2020 election using violence, and I don’t need anyone’s media to convince me. And while not all Americans agree with me, millions upon millions do, inlcuding countless conservatives.
I doubt the battle in the Supreme Court will turn on the factual questions about what Trump did – or call for any input based on the media. I don’t think even Trump’s lawyers will try to argue that he did anything other than plan and carry out January 6 and try to use it to hold onto office. Rather, I think the agruments will address the definition of “insurrection.”
I very much agree with what you have said.
Webster’s 1828 Am. Dictionary, used at the time of writing the 14th Am, makes it very simple:
“A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law..”.
The 14th Am says an Insurrection “against the Constitution.” A date is specified in the Constitution for Certification of the states’ E;ectoral College votes. Disrupting that processby use of force is, by definition, an insurrection.
The People ratified the 14th Am with those understandings in mind at the time. Just like Obama & George W Bush are disqualified by the 22nd Am.
did you neglect to read the entire 14th amendment? oh that’s right the 5th paragraph in your mind is mute. Do you really think the writers of the 14th would give the states who just left the union the ability to keep someone from running for office? please rethink your OPINION
“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.” The language and spirit of the 14th are clear. For many who voted, we see Trump as a the leader of a conspiracy to steal our votes from us, block the actual winner of the election, and engage in a coup detat by definition Trump is the enemy of the Constitution, people who want freedom, have the right to vote and don’t want an American Reich by Trump. Even now the man is signaling dictatorship and threats against those who oppose him and want to hold him accountable for his crimes which are legion. He has given aid and comfort to those that broke into our house and shat over our democracy, and continues to do so. More than any figure in history he matches the 14th A disqualification for his antidemocratic actions.
This Administration, as well as Democrats and some Republicans, do not own the White House. The American people are to be represented by their elected Representatives. Who are they to tell us who can or cannot be on the ballot? They are over reaching to try to eliminate President Donald Trump from being able to run for President again. Then, they call him a Dictator. The Dictator is exactly what we have in the current White House, along with Obama calling the shots whose term ended. This itself should be unlawful.
Your comment is ridiculous, as the people are fully able to write in Trump as their vote! Nobody is being robbed of their right to vote. Not by Dems, anyway!
I am an anti-constitutionalist because the Constitution appears to authorize powers to violate rights, not protect them. The words, “Congress shall have power to …tax…and to regulate…commerce” are words that authorize powers to violate rights. Those words are taken away by the 9th Amendment which forbids all taxes and regulations and protects trillions of our rights, but no one understands it the way it was originally written. So our politicians of all stripes have existed as fascist organized crime syndicates that existed by preying on innocent productive capitalist workers and owners. Trump was a capitalist before he became a fascist politician who made the same mistake all previous politicians did of presuming that because the constitution authorized taxes and regulations that they were legitimate, No human being on earth has ever had a right to tax one penny or regulate a single innocent act because they require threats of violence against the innocent. Read my book, “Fascism, Man’s Past, v. Capitalism, Man’s Glorious Future” on Amazon in ebook, paperback and hardcover.
I hope you are right, David and it’s an interesting point that previous disqualifications did not require conviction. I personally think it’s cut and dry that the ban should apply here, but I have less faith in the integrity of the Court right now. My prediction is they will decide on due process grounds that a case that literally determines whether a front runner can remain on the ballot must be decided by a jury or by the electorate. I hope I’m wrong!
Many have asked me the odds of a Trump disqualification. I think it’s more likely than the media assumes, but what does that mean?
The Supreme Court has three liberal justices, five conservatives, and one wild card: Thomas. He’s hard to pin down for two reasons. First, he’s arguably a populist nowadays, not a conservative – though that view may rest more on his wife’s support for Trump than his record. Second, Thomas should recuse himself since his wife was involved in the effort to overturn the 2020 election. But those sorts of judicial ethics haven’t guided him so far. (A Thomas recusal could also create a problem by opening the door to a 4-4 tie. That would leave the Colorado decision in place, other states possibly free to make their own decisions, and the election in chaos.)
Whether they are five or six, the conservative justices hold the majority. That’s probably why the media asssumes Trump will win the case. (There’s also the fact that disqualification is unfamiliar to all but historians – along with one New Mexico former county commissioner, disqualified as a result of January 6.) But as noted above, Trump is not “one of theirs.” He’s a populist, not a conservative. Also, he has a terrible record in front of the courts, particularly related to the 2020 election, where he lost nearly every case. And both his overall position and his actions related to Jan. 6 reflect contempt for the law: quite the opposite of the traditional American conservative position. And of course, prominent conservatives have argued that “strict construction” of the Constitution – the favored conservative method – holds Trump disqualified. Ultimately, I think the conservative justices could break either way.
What about the three liberal justices? It’s usually assumed they’ll hold Trump disqualified. I think that’s less assured than generally assumed but still relatively likely.
Where does that leave our math? If all three liberals rule against Trump, it only takes two of the five or six conservatives to create a majority. And if three conservatives hold Trump disqualified, it only takes two liberals. And on and on.
However, it’s possible counting liberals and conservatives gets us nowhere. The justices’ political views may not impact their view of Section 3 of the 14th Amendment.
What does all this tell us? Not much! After sifting the numbers, I’m left with little more than a gut impression. To hear most of the media, disqualification has something like a 1 in 10 chance. But my gut puts it at 50-50.