The Colorado Supreme Court on Tuesday decided 4-3 that Mr. Trump’s name may not appear on the ballot for the state’s upcoming primary election. The reasoning: Section 3 of the 14th Amendment prohibits anyone who has “engaged in insurrection or rebellion against” or “given aid or comfort to the enemies” of the United States after taking a state or federal oath to uphold the U.S. Constitution from holding high office ever again. According to the court, the presidency is one of these high offices, and Mr. Trump, having egged on his supporters as they stormed the U.S. Capitol, is an insurrectionist.
Obvious as this analysis might seem to citizens appalled at the then-commander in chief’s conduct on Jan. 6, 2021, the law is not so clear. The court had to answer “yes” to a vexing series of questions: Does Section 3 apply to the presidency? The answer here is probably “yes.” The provision doesn’t list that office even as it does list others — but the Colorado court majority found the idea that Section 3 should exclude the most powerful position of all implausible. Harder still is the question of whether Congress needs to pass legislation for Section 3 to take effect. A dissent by Colorado Supreme Court Justice Carlos Samour Jr. explains why that’s a tricky one. Chief Justice of the United States Salmon P. Chase ruled that such a move was necessary just a year after the 14th Amendment’s 1868 ratification.
Yet these puzzles are relatively mundane compared with the case’s most consequential conundrum: whether Mr. Trump really did engage in insurrection. The Colorado court, armed with dictionary definitions and the defense’s counsel’s own words (according to which Jan. 6 was “more than a riot but less than a rebellion”), lays out the evidence. The armed mob that forcibly entered the Capitol with the purpose of preventing the peaceful transfer of power, they say, was surely carrying out an insurrection. By fomenting myths of election fraud; by urging supporters at least 12 times to travel to D.C.; by exhorting them to “take back our country” when they arrived; by ignoring pleas to tell them to leave; Mr. Trump “engaged,” they say, in that insurrection, too.
As Justice Samour points out in his dissent, however, what’s missing from the majority’s analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn’t even been charged with it. 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. The penalties for that, by the way, include disqualification from “any office under the United States.”
Of course, in the United States, not just anyone can be president. Only aspirants over age 35 who are natural-born citizens may occupy the Oval Office. The difference is that these criteria are objective. Whether someone has engaged in insurrection is less so. 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? To be clear, there is no moral equivalence between Black Lives Matter protesters and the Jan. 6 Capitol mob. But that is the point: the potential for abuse is ample.
The courts don’t have an easy job. The drafters of the 14th Amendment, amid the turmoil and recriminations following the Civil War, inserted Section 3 into the Constitution. The states ratified it. The Colorado Supreme Court is correct that the judiciary has a “solemn duty to apply the law, without fear or favor.” Here, however, across multiple aspects of the case and on the insurrection question especially, the law is unclear. In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them. The Supreme Court, hopefully, understands that.
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