Predictable is not, however, the same thing as rational. The court’s decision can be wrong and even outrageous without being a defensible reason for making Trump president again.
Trump supporters sometimes say they feel compelled to support him as a way to stand up to the illegitimate tactics of his opponents: to preserve their freedom to use the political process to choose him as president even as those opponents try to deprive them of that option.
This is deeply unwise. It’s self-defeating, because Republicans who react that way are letting the behavior of Trump’s opponents dictate their votes. And although the opponents have taken extraordinary measures, it’s not simply because they dislike his fans or because Trump is a threat to a nebulously defined establishment. Trump poses an extraordinary threat to the Constitution: That’s what created the opportunity for this lawsuit and supplies much of the motivation of those backing it. Voters should consider the conduct at issue in the Colorado suit disqualifying even if it is not the court’s place to say so.
And it isn’t. The Colorado court followed what jurist Robert Bork called the “heart’s desire” school of jurisprudence. The teaching of that school: If you squint at the Constitution from just the right angle, it makes your fondest wish come true. It works for anyone, regardless of their party affiliation or ideology.
If you’re John Eastman, a vice president has the power to keep the president in office with no need to show that he won enough votes in the right places. If you’re the Colorado Supreme Court, you have the power to run your very own presidential election. That way, you can give millions of voters what they have badly wanted for years — a political world without Trump — without having to convince any of the scores of millions of voters who have kept it revolving around him.
Such legal arguments treat the Constitution as a set of weapons for use by clever lawyers and eager judges rather than a charter for self-government. It would be irrational for anyone to amend the Constitution to give the vice president the power to overturn an election his ticket lost. The best case for this position — and it’s still not very good — is that it’s an accidental implication of the 12th Amendment.
The Constitution’s impeachment provisions allow a majority of the House plus two-thirds of the Senate to convict and then disqualify a president from future office based on his misconduct. It would be perverse to amend it so that a random collection of state courts and state election officials — who could represent only a small fraction of the country instead of a supermajority — could bypass that process and disqualify a president themselves. The justices in Colorado maintain that’s exactly what the ratifiers of the 14th Amendment did.
Much of the criticism of the court from Republicans has questioned whether Trump really “engaged in insurrection or rebellion” under the terms of the amendment. They dispute the applicability of the word “insurrection”: That QAnon shaman isn’t exactly analogous to Robert E. Lee. “Engaged” is also a stretch: The early history of applying that term suggests that it takes more than just telling lies to whip up a crowd, and the Colorado court didn’t reconcile its argument with early cases and opinions about it. But it’s much more reasonable to suggest that Trump is guilty than that responsibility for that judgment is scattered throughout the land. (The Eastman argument, for the record, has even less going for it.)
For many millions of Trump opponents, and possibly for the Colorado justices in the majority, kicking him off the ballot is emotionally satisfying. Also, for many Republicans, is backing Trump in protest of the decision. The consequences of indulging these sentiments may be less welcome for everyone involved.
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