Colorado Supremes Ban Trump for Insurrection
A historic ruling likely to be overturned.
AP (“Donald Trump banned from Colorado ballot in historic ruling by state’s Supreme Court“):
A divided Colorado Supreme Court on Tuesday declared former President Donald Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot, setting up a likely showdown in the nation’s highest court to decide whether the front-runner for the GOP nomination can remain in the race.
The decision from a court whose justices were all appointed by Democratic governors marks the first time in history that Section 3 of the 14th Amendment has been used to disqualify a presidential candidate.
“A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the court wrote in its 4-3 decision.
Colorado’s highest court overturned a ruling from a district court judge who found that Trump incited an insurrection for his role in the Jan. 6, 2021, attack on the Capitol, but said he could not be barred from the ballot because it was unclear that the provision was intended to cover the presidency.
The court stayed its decision until Jan. 4, or until the U.S. Supreme Court rules on the case. Colorado officials say the issue must be settled by Jan. 5, the deadline for the state to print its presidential primary ballots.
“We do not reach these conclusions lightly,” wrote the court’s majority. “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.”
[…]
Trump lost Colorado by 13 percentage points in 2020 and doesn’t need the state to win next year’s presidential election. But the danger for the former president is that more courts and election officials will follow Colorado’s lead and exclude Trump from must-win states.
Dozens of lawsuits have been filed nationally to disqualify Trump under Section 3, which was designed to keep former Confederates from returning to government after the Civil War. It bars from office anyone who swore an oath to “support” the Constitution and then “engaged in insurrection or rebellion” against it, and has been used only a handful of times since the decade after the Civil War.
“I think it may embolden other state courts or secretaries to act now that the bandage has been ripped off,” Derek Muller, a Notre Dame law professor who has closely followed the Section 3 cases, said after Tuesday’s ruling. “This is a major threat to Trump’s candidacy.”
The Colorado case is the first where the plaintiffs succeeded. After a weeklong hearing in November, District Judge Sarah B. Wallace found that Trump indeed had “engaged in insurrection” by inciting the Jan. 6 attack on the Capitol, and her ruling that kept him on the ballot was a fairly technical one.
Trump’s attorneys convinced Wallace that, because the language in Section 3 refers to “officers of the United States” who take an oath to “support” the Constitution, it must not apply to the president, who is not included as an “officer of the United States” elsewhere in the document and whose oath is to “preserve, protect and defend” the Constitution.
The provision also says offices covered include senator, representative, electors of the president and vice president, and all others “under the United States,” but doesn’t name the presidency.
The state’s highest court didn’t agree, siding with attorneys for six Colorado Republican and unaffiliated voters who argued that it was nonsensical to imagine that the framers of the amendment, fearful of former confederates returning to power, would bar them from low-level offices but not the highest one in the land.
[…]
Colorado Supreme Court Justices Richard L. Gabriel, Melissa Hart, Monica Márquez and Hood ruled for the petitioners. Chief Justice Brian D. Boatright dissented, arguing the constitutional questions were too complex to be solved in a state hearing. Justices Maria E. Berkenkotter and Carlos Samour also dissented.
“Our government cannot deprive someone of the right to hold public office without due process of law,” Samour wrote in his dissent. “Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office.”
WaPo (“Trump disqualified from Colorado’s 2024 primary ballot by state Supreme Court“) adds:
The 4-3 ruling marked the first time a court has kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office. The ruling comes as courts consider similar cases in other states.
If other states reach the same conclusion, Trump would have a difficult — if not impossible — time securing the Republican nomination and winning in November.
The decision is certain to be appealed to the U.S. Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle for all states whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running.
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
[…]
The Colorado Supreme Court’s majority determined the trial judge was allowed to consider Congress’s investigation of the Jan. 6 attack on the U.S. Capitol, which helped determine that Trump engaged in insurrection.
“We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection,” the majority wrote.
[…]
Derek Muller, a University of Notre Dame law professor who has studied the cases challenging Trump’s candidacy, called the Colorado decision unlike any other in history.
“No candidate’s ever been kept off the ballot for engaging in an insurrection, much less a presidential candidate, much less a former president,” he said. “So it’s just extraordinary.”
The decision puts intense pressure on the U.S. Supreme Court to act. A broad ruling by the high court would resolve the issue for all states.
“It feels like the kind of case the Supreme Court has to weigh in on,” Muller said.
In the short term, the Colorado ruling could influence courts and election officials in other states, he said. Other states have not taken such a step so far but may be willing to do so now that Colorado has acted, he said.
[…]
Section 3 bars those who engage in insurrection from holding office and does not mention who can run for office. The majority rejected the idea that that meant the state could not keep candidates off the ballot who did not meet qualifications for serving as president, such as being at least 35 years old and being a U.S. citizen.
“It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado,” the majority wrote.
[…]
The three dissenters cited different reasons for why they disagreed with the majority. One would have dismissed the case because Trump has not been charged with insurrection, one would have dismissed because Trump has not been convicted of a crime and the third did not believe the court had the authority to decide the issue under the state’s elections code.
I’ve written at length about this issue several times since the Capitol Riots, going as far back as January 2022: “The Disqualification Clause and January 6,” “14th Amendment Solutions,” “Testing Section 3,” and “Banning Trump From Office.” Suffice it to say, I think the Colorado Supremes got it wrong here and will almost certainly be reversed by SCOTUS. It’s simply absurd to me that a court could simply declare an individual who hasn’t been convicted of a crime to be an insurrectionist and ban them from office.
One contested issue where I agree with the majority, though, is the applicability of Section 3 to the Presidency. To the extent it’s applicable to anyone,* it makes no sense to exclude the highest officer in the land. (That said, the clause is incredibly poorly written. Why specifically mention Senators, Representatives, and Electors, and then proceed to exclude everyone generically?)
The one issue I hadn’t considered in those above-linked posts is whether Section 3 even applies to party primaries. Offhand, I would think not in that they’re not actual elections for public office and, indeed, there’s no requirement for parties to even hold primaries to choose their candidates. On the other hand, they’ve been part and parcel of our electoral system for more than half a century now. [UPDATE: Upon reflection, states routinely treat primaries as actual elections and exclude unqualified candidates from the ballot. The Nicholas Kristoff case comes to mind.]
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*As noted in previous posts, there’s a strong argument that the provision only applies to those who took up arms against the Union in the Civil War. Further, Congress has the power to waive the disability imposed by Section 3 and did so on a blanket basis in 1872 (under the signature of Ulysses Grant, no less) and 1898. So, it’s arguably a dead letter.
If someone who was not a US citizen ran for president, would the courts be unable to act until they had been convicted of a crime related to that fact?
They are, however, elections to determine who the candidates for public office will be. I understand your argument here, but I don’t think the logic holds. If states–who are the ultimate arbiters on the “time, place, and manner” of holding elections–have decided that the proper procedure is to hold an election to determine who is qualified to proceed to the general election, it makes no sense to say that a primary isn’t an “actual” election.
@Stormy Dragon: Insurrection is a crime set forth in a federal statute that predates the 14th Amendment by more than half a century. It is therefore a different animal than status requirements like citizenship, residency, or age. See my above-linked post “14th Amendment Solutions” for a much more detailed explanation.
Dan Patrick in Texas is already talking about removing Biden from its ballot. At what point will a heavily gerrymandered, republican-controlled swing state concoct some lame pretense to remove the democratic candidate from its ballot?
Not that I’m saying I don’t think Colorado should have done this. I’m totally on board with it. But you just know Repubs will engage in some tit-for-tat nonsense.
@Jen: You’re almost certainly right, in that state election officials pretty routinely screen primary candidates for eligibility. There’s a strong argument to be made that they’re not actual elections for public office, though.
Tangentially, from 1975 Colorado has had only one Republican governor, who served two terms. Turnover on the supreme court is fairly steady, in part because there’s a mandatory retirement age of 72. Supreme court justices are appointed by the governor from a list supplied by a nominating committee (said committee controlled by the governor in practice).
Long way of saying that having all seven justices appointed by Democratic governors is completely unsurprising in this case.
On a strict interpretation of the law, I think that the courts shouldn’t be able to determine if someone is eligible to run in a primary. Again, the primaries are strictly a party function. In fact, the Republican party could choose to switch to a caucus in Colorado for this year and completely avoid the issue.
If the decision had only been limited to that, this would be quickly overturned on those grounds.
The problem is the broader finding of ineligibility under Section 3 of the 14th Amendment. And I think the courts must find a procedural way to invalidate this decision (for a number of good reasons). For more details see the article I posted today: https://www.outsidethebeltway.com/trump-may-be-removed-from-colorado-primary-ballot/
@Michael Cain:
And the committee is, by statute, bipartisan (and technically controlled by the Chief Justice). So, the makeup of the Supreme Court isn’t necessarily all Democrats.
@James Joyner:
This. And there is a lot of past precedents that suggests that a State court cannot find, on its own, that someone–in particular a Federal Officer–participated in an insurrection. This is most likely how this will be overturned.
@Jen:
Except that Congress may intervene for federal offices — and has, regularly.
@James Joyner:
It’s a presidential primary election. The voters are not even choosing delegates to the national caucus, that will be done subsequently by the state party. (Note that the number of delegates is set by the national party.) In Colorado, delegate binding to a particular candidate is complicated. Not a single public office in sight.
My bet is the Supremes will hold that while the states may be paying for the primary election, they have no say in which names can appear on the ballot — it’s a party matter. And not a national party matter either — a state party matter.
@Stormy Dragon:
It is not a crime to be born outside the country and it would be an issue of establishing a fact, whether the person was born in the country or not.
As much as I would like Trump to be legally classified as an insurrectionist and barred from all ballots everywhere, these are not comparable issues.
@Michael Cain:
IANAL and I haven’t looked seriously at these legal/procedural questions for a long time (I did research on the topic for an abandoned paper some years ago).
But I expect that the state does have legal power over who can and cannot be on the ballot.
I will say that your point about no public office being directly at stake is a way this could be decided narrowly.
@Steven L. Taylor:
I agree with this too.
I think the only question is the amount of power they have over the primary ballot versus the general election ballot. That however is a matter of State law and I have not read the particular Colorado State Statutes closely enough to have any opinion on them.
@Steven L. Taylor:
I second Steven here. If something can be established as a fact and it is a disqualifier, it’s appropriate for a court to decide. But Insurrection is a criminal matter. I don’t see how you can establish the fact of insurrection without a trial or confession.
@Matt Bernius:
Yes and no. Yes, they could potentially do this, but no, because this would require a meeting of the central committee to make a bylaw change, and the GOP central committee in Colorado has had significant challenges in getting to the necessary thresholds to change the bylaws.
I’m going to take this from a different angle. Jury nullification and other legal wrangling often mean that individuals are not considered guilty in a court of law for technical reasons while clearly guilty to anyone with eyes. I mean, look at all the hemming and hawing about the 14th when we all know damn well what Jan 6th was and Trump’s documented part in it; we’re debating if it qualifies under a myriad of technical points on all levels of the government spectrum wherein if you showed the evidence to the Founders and the authors of the 14th, they’d say it counted.
If someone who we know 100% did a crime but never got convicted in court because of really good lawyers ran for office, the court must officially side with their fellow judiciary on guilt or innocence. However, can they cite the process and evidence as well the mechanism of dismal as reason? If a jury of MAGAts bless him and send him forth innocent of all charges, can jury nullification be pointed out as to why he’s not officially an insurrectionist when calling him an insurrectionist? Can they cite that nobody’s taken him to trial since they’re too chicken-shit to want to be the first to try an ex-POTUS for a crime as a reason why he’s not officially a criminal?
Being convicted =/= being guilty. Being guilty does not mean you’ll be acknowledged as such by the state. It doesn’t change what you did, though. If you are in clear violation of a Constitutional Amendment, the Court should not look away. Is it their fault the matter was not put before them to do their job?
@Michael Cain:
If they rule it is entirely a state party matter, i.e. a matter within Colorado, do they even have jurisdiction? It seems to my IANAL mind that they will have to rule in such a way as it has federal rather than state significance.
@Michael Cain:
Read the next bit…”…the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Congress would have to propose and pass a law to change this. The question is, would they?
@MarkedMan:
So if no one charges the criminal with the crime, it’s not a crime in the eyes of the law? Even if televised, recorded in numerous media and promoted as such by the criminal for nearly a year afterwards?
What that establishes is the extremely dangerous precedent that if your party is strong enough, POTUS is King and beyond the law’s reach. It renders the Court null and void if it’s circumvented and meaningless in the eyes of the People if it keeps saying “we cannot rule on this for reasons”. Strict adherence to procedure to avoid making controversial rulings can only be pushed down the road so far.
@Jen:
Fair point. Thank you for the clarification.
@KM:
Technically yes. Part of the charging and prosecution of a crime, from a legal perspective, is making the legal determination that there is (a) evidence that a crime took place and (b) that there is enough evidence that a specific individual or individuals committed said crime.
Again, as frustrating as it is, there is a significant precedent that a State Court doesn’t have the power to determine if someone participated in an insurrection against the Federal Government.
@James Joyner:
It’s really not. People just want to pretend it’s different because then they can justify inaction.
Well, if you the voter are denied the right to vote for your preferred candidate by judicial fiat, or perhaps you don’t like that candidate but also don’t like this heavy handed action, seems a good way to send a message would be to vote heavy for a third party candidate.
What if Trump is kept off the ballot but then Biden doesn’t win the state due to votes for a third party? Somewhat assured blue-side of Purple Electoral votes could no longer be a sure bet. That would be hilarious.
@JKB: First, you’re conflating being off the primary ballot with being off of the general election ballot. Second, Biden won Colorado in 2020 with just around 55% of the vote. Third, you’re assuming that a majority of unaffiliated voters would have the motivation to “send a message”–anyone who pays attention to politics will tell you that is an absurd assumption.
@JKB: Heavily or lightly, each individual voter gets one vote.
@KM:
Yes, but even conservatives have stopped pretending precedent matters. Precedent matters until the courts say otherwise.
This is also why it’s true that the courts could unilaterally declare Trump an insurrectionist disqualified under the 14th Amendment. Of course they can. The courts invented its right to nullify law and just unilaterally classified a fetus or zygote an “unborn person.” The court system can do whatever the American people allow. Legal observers like to pretend interpretating law is akin to math. It’s not. There is no objective standard, only accepted standards. Interpreting the Constitution requires subjective judgment calls, no matter how much John Roberts wants us to think jurists are innocently calling balls and stikes.
Yes, the courts can, but will not — and should not — unilaterally bar treasonous career criminal Trump from the ballot. But it’s not because he isn’t an insurrectionist and didn’t violate the 14th Amendment: he is, and he did. It’s because of the optics.
The Constitution opens by charging Americans to establish justice and insure domestic tranquility, among other obligations. It’s offensive to Americans’ sense of justice and fair play to have judges usurping voters, short-circuiting Trump’s ambitions themselves. And it also portends civil unrest and threatens national security.
So higher courts will lean into technicalities — a standing issue, a close reading of the 14 Amendment or presidential oath, a contested definition of “officer” or “insurrection” — to declare Trump eligible.
They will do so because it is right politically, not because it’s “absurd” for courts to acknowledge the obvious: Trump is an insurrectionist thug and traitor who incited a deadly terror attack on Congress.
And when they do so, just be reminded (again) that originalism and textualism are self-serving ‘piss on my leg and tell me its raining’ bunk.
Colorado’s Supreme Court is legally right here. But.
@Jen:
They are also missing the fact that Trump also lost Colorado in the 2016 election.
If elected Trump will swear an oath that he “will to the best of my ability, preserve, protect and defend the Constitution of the United States.” We know he lied last time he did that. Can we do anything about it?
IANAL which means there are a thousand ways to screw this up that would never occur to me. On the one hand, the plain language of the 14th says Trump is ineligible. On the other hand, the controlling legal principle is that no Republican justice who votes to exclude Trump can ever go home again.
In the end SCOTUS will support the improper election of a Republican. Again.
And why, as always, is everyone so concerned that Republicans will be pissed if the courts throw Trump off the ballot, but don’t care that I’ll be pissed when they don’t.
@gVOR10:
To paraphrase Orwell:
All men are created equal, but 55-year-old men with no college degree in MAGA hats at diners are more equal than others.
I want to make one thing perfectly clear: Adolph has to be stopped from ever reaching the White House again by any means necessary.
I am fully aware of all the implication of that phrase.
I am also fully aware such things are damaging to democratic institutions. But far less so than a second Adolph term would be. Think of amputating a limb to save the patient, as opposed to focusing so hard on saving the limb that the patient dies.
@Just nutha:
The Electoral College and United States senate are laughing at this.
@KM:
Well, essentially, yes. Again, I am not a lawyer but only a trial or a confession can establish that a) a crime took place, and b) a specific individual is guilty of that crime. (If our more legally minded friends know of other ways, I’d be interested to hear about them!). In non-criminal matters things are probably more nuanced.
@DK: Spot on analysis. And yes, originalism and textualism are bogus devices that allow judges to pretend they have special insight into the minds of long dead men. How quaint and convenient that this special insight neatly conforms to contemporary conservative policy preferences.
@KM: I don’t understand your argument here. Insurrection is a specific federal crime that was established some six decades before Section 3. It has elements and a burden of proof—except in the specific instance of the Civil War, which was the reason behind the provision. But, yes, we seen multiple instances where things we all saw on video and thought outrageous resulted in acquittals.
It is NOT absurd that a Court, after a contested hearing with evidence introduced and arguments made and parties represented by counsel, can make a factual finding that “x” happened.
The statue of limitations may have run, preventing a criminal trial, but that doesn’t mean a Court can’t, in a civil trial (and that is what this was albeit held in an expedited fashion) find that the event actually happened. In fact, we just saw this happen to Trump in the civil defamation case that was all about whether he had in fact committed a rape in the past.
@SKI:
One question and one clarification on my thinking.
First, isn’t insurrection a Federal issue, not a State one. Wouldn’t it be out of their jurisdiction? That makes it different than the E. Jean Carrol case (which I expected someone to bring up). Or am I wrong about that?
As far as the clarification, even if a State court could find that Trump committed insurrection, there is the broader question of whether such a finding, at the State level, triggers the Section 3 of the 14th Amendment, correct? It seems problematic that a finding in any State could disqualify a candidate for Federal Office.
@James Joyner:
So he is not being criminal charged with insurrection as a crime and be treated as such under the law. OK.
This is not a criminal case nor is being left off a ballot a crime in and of itself when done correctly, which is what the Court just determined. They’re not citing a criminal conviction but the act itself of which their is ample proof. You can be a de facto criminal and not be a convicted criminal – two legally separate states.
The Court can cite the facts of the case as presented to them in the past during civil matters. That’s the entire point of the court record – to record what happened and what was presented to them as evidence. It doesn’t have to be successful evidence, just legally admissible evidence. The Court understands and acknowledges that it actually and factually happened – it’s what it means and how to proceed that’s the sticking point. The tree fell in the woods and you can go stand on it’s broken body while engaging in a pointless existential debate about the sound it made that the camera heard and those present lie about.
@DK is right – this is purely about optics and not logic and procedure, legal or otherwise. People are splitting hairs to avoid noticing the elephant in the room and the system was weaponized by the perpetrators to get away with the crime. All of this is because politicians are too chicken-shit to prosecute a pretty-clear cut crime that could wreak havoc on the nation. The crime happened before our very eyes and yet we’re still quibbling about what we saw’s technicalities… and it may lead to letting that criminal back into power. So if the meaningless hair-splitting has gone our way for once, I’m not gonna argue.
I hope the more reasonable people around here are finally noticing just how unmoored some of their fellow commenters are. They are moving Heaven and Earth to support the voters of a state being denied the right to vote for a candidate because the state’s supreme court THINKS that candidate is guilty of a crime which he has been neither tried for nor convicted of. That’s where they are.
Maybe think about how they got there and how you possibly contributed to their sad state.
Speaking as a lawyer, this is what happens when you don’t have a cause of action defined for your crimes and you’ve sorta faffed around with it when you wrote up your original amendment.
The Supreme Court will most likely overturn Colorado because Trump hasn’t been separately convicted of insurrection. As said, Due Process.
The Supreme Court will also make a few pointed comments about how Congress is letting everyone down by not having done its duty as to define the matter further. And then shut up.
Prediction: Trump will be on the Colorado ballot.
@DK: The last time I voted in a Presidential election, the ballot still acknowledged that I was voting only for electors, so laugh away.
(And I only voted once that day, too.)
@Kathy:
But they’re not – they’re damaging to the moderates’ dedication to process over means that has gotten us to this point. There’s a thought that as long as you trust the system and follow the rules, it will spit out the “correct” answer because that’s what the system is designed to do. That “the ends justify the means” is a dirty phrase and that natural justice and democracy will result as long as we all do the right thing.
It’s BS and how conservatives have managed to wreak everything. If you hold procedure and the minutia of the law over it’s spirit, you get people who break the system using it’s own tools that the system cannot internally defend against. The modern road to fascism and dictatorship has started at the ballot box more often then people want to admit.
We need to accept that in order to preserve the system, we must act outside it’s preferred boundaries and definitions. The body cannot cure cancer by itself or it already would. Hand-wringing about the details always the great whole to move forward regardless and the bad outcome to be achieved. Look at Texas’ recent case with Katie Cox: conservatives appealed and appealed until they got the incorrect answer they wanted that now effectively neuters the “health of the mother” clause in the law. Trump appeals and delays until he gets the time-up signal then claims victory.
The system will die by it’s own hand unless invention occurs. Before that intervention was a bloody war. If this time its just a couple of Courts using the same rules-lawyer tactics conservatives favor, we’ll be damn lucky.
P.S. If the average American wants to elect a cracked narcissist with dementia back into power because he’ll “stick it to the libs”, then so be it. Too many Republicans are indulging Trump and his supporters because they’re hoping to ride his coattails back into perpetual power. If Trump gets reelected and then decides to never hold another election I’m sure not an insignificant number of Republicans will come up with some reason as to why this is All Right. At which point the American Experiment will finally be dead.
All empires run their course and then finally die. We allowed the rats into the wainscoting to continue nibbling away at the foundations and now the whole building is caving in. Enjoy!
@SKI:
Thanks for that. I hadn’t looked at it in that way.
@TheRyGuy: I gotta admit, watching a trumper get all indignant and hand wave-y about respecting the will of the voters is hysterically funny
@TheRyGuy: Hitler was never convicted of anything by any court. And?
The ones who are unmoored those who pretend there’s something wrong with those of us who don’t need courts to tell us that Hitler and Trump committed crimes are the ones. Since when are courts 100% correct?
Anyone who needs a court to tell them that Hitler was a mass murderer and Trump is a traitor who committed insurrection is not just unmoored and unreasonable, but lazy and unintelligent.
Smart, decent Americans will never bend to the attempts to gaslight them into normalizing Trump’s thuggery. He’s a patholgical liar, a pervert, criminal, and traitor whose vile attempt to destroy democracy on and leading up to Jan 6 renders him unfit and unqualified for the American presidency. Whether the courts ever acknowledge that reality is not going to make it any less true.
Moreover, were Trump not a rich white man he would already be in prison for his litany of crimes — rape and white collar fraud among them. His bootlickers are pathetic.
@DK:
The analogy I’ve been running with is Capone. He did it, we all know he did it and we all know he was tampering with evidence, witnesses and the courts to make sure he got away with it. Like Trump, he was quite brazen with it and the system seemed ill-equipped to stop him from continuing.
Capone never went down for all the violence he committed. He went down for tax evasion because that’s what they could get him on. Complaining that he’s “never been a convicted murderer” doesn’t change what Capone did in life. Sometimes you need to take a sideways approach to a problem and use what’s available to you even if it doesn’t seem “proper” or “sportsman-like”. Liberals and moderates seem to have a visceral distaste for these kinds of tactics but honestly, this is how democracy is persevered. If they want to play with the wording of the Amendment, why can’t we? Nowhere does the 14th-3 say “convicted” as in convicted in court of law, it says “engaged in”. Now logically that means the traditional legal definition of the term but hey, since we’re throwing out norms left and right lately why not “legally charged with”? What’s stopping the court from using that? Nothing but optics and poltics.
I agree the SC will toss this because it’s conservative AF and they want him back in power. However, it’s going to add to their reputation for undemocratic decisions and heavily favoring the wackier side of conservatism, thus degenerating confidence in the Court’s authority. It’s only a matter of time before someone pulls a Andrew Jackson and dismisses the Court’s authority officially.
I’ve lost count of the number of posts by Dr. Joyner in which court opinions he disagrees with are described as absurd. In the immortal words of Inigo Montoya, “You keep using that word. I do not think it means what you think it means.” Absurd is not a synonym for wrong. The majority opinion in this case is well-constructed and carefully argued, with a reasonable basis in the limited legal precedent available for a case of first impression. I happen to think that it is also wrong and will be reversed by the Supreme Court, but it is far from absurd.
@KM:
SMRT.
I mean, S-M-A-R-T.
It’s not surprising that people at the end of the Civil War would focus on the context of that war and its aftermath and would not consider the possibility that a President could or would foment an insurrection against the very government that the President nominally controls. And it seems the original intent was to keep the formerly rebellious states from putting in rebel leaders to the federal government to cause problems
But fundamentally, the scenario of a sitting leader actively calling for insurrection against their own government just doesn’t make much sense which is why it is so exceedingly rare.
It’s one of the reasons that I don’t think “insurrection” is a completely correct term to describe what Trump did. Trump was the legitimately elected leader who then tried to stay in power via illegitimate means. That is not typically called an “insurrection” in any other historical cases I’ve looked at. There are a ton of historical examples of politicians trying to usurp norms, processes, and institutions to stay in power, but AFAIK there isn’t a specific, neat umbrella word or term for that in English.
@KM:
Atrios likes to use the phrase “centrist dipshits”. It frequently seems apt.
I keep being reminded of Karl Popper. His goal is an “Open Society” with “incremental social engineering”. This is as opposed to a “Closed Society”, basically a patriarchal tribal society in which everyone has a set role and set beliefs. The whole point to an open society is that it can learn, it can adapt, it can improve. In Jame’s world, all the reasons you want the Army to be a “learning organization”. “Originalism” and many other aspects of modern conservatism have turned us into a closed society. We must think and act exactly like the Founders (as channeled by Alito and Thomas). We cannot change, we cannot act, we are perfect as is. The Founders would be appalled.
I like your “we must act outside it’s preferred boundaries and definitions.” Emphasis mine. We don’t need revolution. We don’t need illegality. We do need to show some imagination and creatively use the rules as they are. And legally change the rules when necessary. Like the National Popular Vote Interstate Compact. Like telling the Court funding from Congress is contingent on term limits. Or I got your fix for immigration, if we find employees on your site not cleared through E-Verify YOU go to jail.
The conservative plan for everything is “That’s just the way things are, nothing can be done.” Centrist dipshits agree.
@Andy:
The “illegitimate means” was taking up arms against the government, ie insurrection
@KM:
The irony is that Trump used an ends-justify-the-means rationale to usurp the process.
Who, exactly, decides the conditions, circumstances, and extent to which it’s necessary to act outside preferred boundaries and definitions? That’s the fundamental problem. Anyone can claim some expedient action outside the boundaries is necessary and create justifications for it. Again, that’s what Trump did.
The problem with your idea that ends-justify-the-means is legitimate and process is not is that people will inevitably selfishly decide where, when and how to act outside the boundaries. That very rarely works out and it often used as an excuse for coups, putsch’s and authoritarian actions.
Fundamentally, “process” is what gives legitimacy to the means-ends equation. If one thinks the process is inadequate, the appropriate response isn’t to dispense with process, it’s to do the work to change the process. The solution to the people usurping process – like Trump did – is, therefore, reinstating the legitimate process for ends and means to adjusting the process in a legitimate way, not rolling your own ends and means in the name of self-justified expediency.
@MarkedMan:
I wish James have me the power to declare a “comment of the day” because this would win it.
@SKI:
It’s also worth noting that the burden in a civil case is “preponderance of evidence” rather than “beyond a reasonable doubt.” There have been lots of cases in which someone is found not guilty in a criminal trial, and then found liable for damages in a civil trial. OJ Simpson comes to mind.
@Matt Bernius:
Not if it is an essential element in a state issue. You see if often in the case of breach of contract cases – a state law matter that may turn on whether one of the parties was in or out of compliance with a federal law or regulation.
Two things:
1. They were only deciding for eligibility for the Colorado ballot (collateral estoppel issues aside*). Each state must decide for itself who is eligible for their ballot and have laws and regulations on how to do that.
2. The mechanism itself goes to the issue as to whether Section 3 is self-executing (as the rest of the 14th Amendment is) or whether Congress must pass enabling legislation on how to make that determination. Of course, if Congress were to pass such legislation, it would provide a uniform method for determining eligibility, or the lack thereof.
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*That is a mess I’m really not going to wade into though I think Ken White, aka Popehat, said on bluesky that he was going to cover it on the Serious trouble podcast releasing later this week.
@SKI:
First, I have no idea why your comments keep going to moderation.
Second:
I think you are doing a really amazing job on disentangling things. I am learning a lot.
Also, this morning I seriously considered waiting until the second Serious Trouble dropped this week before writting my missive. Sadly, Dunning Kruger is a hell of a drug.
@Andy:
Yeah, this only works when you actually can. For instance, when the problem is people refusing to do their job in the system (holding up appointments for example) and there is no mechanism to force or punish them, how exact does one work within the process to fix the process?? The system requires certain things in order to function: participation, good faith, people not actively sabotaging it internally, etc. When the system cannot function because vital parts cannot be done or engaged, you need to take extraordinary means that are still within the framework of the system’s purpose. Remember DOS and how you could crash the computer by cheekily doing Go To code for endless loops? The solution isn’t to try and uninstall DOS mid-loop- it’s to turn off the computer and try again with better code.
This, by the way, is a very originalist view. The Founders tried to work within the system back in England before they realized it wasn’t working. They also built in mechanism to the Constitution as they realized it was going to need modification or even complete rewrites as things changed. They also understand that social pressure on politicians would require them to care about the opinions of the masses more and it would affect their behavior. Deadlocks and holdups happened since Day One but they were solved with external work like backroom deals, bribes, duels, fights on the floor of Congress, public shaming and yes, creative application of existing legal principals deemed utterly controversial.
Yes and we’re already suffering under it. Decades of “we can’t stoop to their level” have given us meaningless moral high ground and severe ground losses. The process is only valid when everyone agrees to play it’s rules; otherwise it’s one side hamstringing themselves so they can feel better while taking needless hits. We cannot remain under the passive ideology that the system will save us when they are using the system to destroy the system. It is appropriate then to go outside the system and yes, outside of it means the end justifies the means. It’s appropriate when your ends are the same they would have been within the system but you can no longer use it correctly. The intent hasn’t change but the process has – it’s gone from pre-defined within this boundary set to a larger, less defined one. The immorality comes in when they act outside the boundaries because what they want is immoral inside the boundaries and process too.
Examples: “I want to feed the starving homeless but it’s illegal in my district” Offering food is thus a crime but draws attention to the cause and can help correct an unjust law. Moral
“I want to drive the homeless away from my property and the city isn’t doing anything so I set their possessions and tent city on fire” Arson is illegal, your intent is wicked and the act will do nothing to help correct the system or resolve the situation. Immoral
@Grumpy realist: Honestly, I think the people who wrote Section 3 were simply trying to prohibit those who took up arms against the country in the Civil War from serving. And, of course, even that prohibition was quickly overturned by Congress.
Because it wasn’t written narrowly, it’s still a live part of the Constitution. But we’re applying it to a situation none of the folks who wrote the 14th Amendment would have even contemplated.
@Roger: I’m not calling the opinion absurd but rather the outcome. Absent the narrow case of the Civil War, which the language was designed to cover, it’s just not clear what qualifies. The most obvious answer to me is conviction under the Espionage Act.
@SKI:@Matt Bernius: The comment moderation software is pretty good, in that it eliminates probably 99% of true comment spam, which numbers hundreds a day. I have no idea why it seems to single out a handful of longtime commenters—sometimes including me—for moderation.
@mattbernius: Given that “Comment of the Day” declarations impose no financial burden on me—nor even prevents me from declaring a countervailing Comment of the Day—I hereby grant said power.