The U.S. Supreme Court has taken an appeal from the decision of the Colorado Supreme Court banning Donald Trump from the Colorado presidential primary because he engaged in insurrection on January 6, 2021. Colorado held a “trial” of sorts to determine that an insurrection occurred and that Trump engaged in it. The state of Maine came to the same conclusion by an executive decree, without a trial or other legal process. Other states are considering barring Trump from their ballots as well. Oral arguments before the U.S. Supreme Court will be made on February 8, and it is expected a decision will follow soon thereafter.
My initial reaction to the news that SCOTUS would take up the issue was that this was likely to be a 9 – 0 ruling in favor of Trump. To my mind, the idea that the protesters on January 6, none of whom had guns, could be said to have engaged in an “insurrection” was a sort of Trump-Derangement-Syndrome fever-dream. When a case like this gets to the Supreme Court, as it does on rare occasions, the one or two leftwing partisan hacks will sometimes see how useless it is to assert, reflexively, their progressive ideals. At that point, they join the majority. This gives them a piece of evidence they can later assert. “See. I’m an actual judge. I sometimes read and follow the law.”
This is why there was a unanimous ruling in McDonnell v. United States, 579 US 550 (2016), overturning the conviction for fraud and bribery of Robert F McDonnell, Republican Governor of Virginia. His political career was over anyway, so even Ginsburg, Kagan, Breyer and Sotomayor joined in dumping the ridiculous charges against him even though he was a Republican. Another famous instance was the 9 – 0 reversal of Arthur Andersen LLP v. United States, 544 US 696 (2005). The firm had been (absurdly). convicted of obstruction of justice for covering up the fraud of their client, Enron. Again, the accounting firm had already been destroyed by the case by the time it got to the SCOTUS, so even the partisan lefties on the Court could join in the decision with no harm to their political agenda.
That’s why I initially assumed this Trump case would be decided unanimously. The other possibility, I thought, was 7 – 2 for Trump with Sotomayor and Ketanji Brown in dissent simply because they would break out in boils and rashes if they were ever to rule in Trump’s favor for anything.
But now I’m not so sure.
The relevant sections of the Fourteenth Amendment to the U.S. Constitution state:
Section 3
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.
Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
On first reading, several bits of text jump out immediately. First, if the intention of Section 3 was to bar an insurrectionist from running for the office of President, why didn’t they specifically list “president” as one of the offices an insurrectionist could not hold? They say “Senator.” They say “Representative.” They say “member of any State legislature.” Why didn’t they say “President?” Instead, we have to infer that Trump, by running for President, is 1) running for “any office, civil or military, under the United States” AND that 2) his previous presidential oath in 2017 was taken as “an officer of the United States.”
In other words, is the President an “officer of the United States?” Why make this so complicated? Why make this something for us to argue about 160 years after the Amendment was passed instead of just specifying “President?”
In fact, this was the central issue in the Colorado case. A lower-court judge had found that Trump had engaged in an “insurrection,” but decided that Section 3 did not apply to him because Section 3 did not specify it applied to a President. The Colorado Supreme Court reversed the lower court on this point, ruling 4 – 3 that Trump, as President, was an “officer of the United States.”
I’m not going to analyze this question for you. To decide what “officer of the United States” means, you have to go back and figure out, from arguments in Congress in the 1860s, what the term meant to them. And that depends, to some extent, on what “officer” meant during the arguments on the original Constitution, drafted in 1788.
Personally, I take what I think is the more obvious and likely path---that you can’t assume “President” when they could easily have specified “President” but chose not to. However, there is a legitimate argument about what was meant. There have been law review articles written on this question and they were not written by AOC and Kamala Harris. This is not like finding a “right to abortion” in the Constitution that was sitting there for 200 years but nobody had noticed it before. They’re not just making it up as they go along.
The next question that arises is the meaning of the “self-executing” provision in Section 5. This same provision appears in the 13th, 14th, 15th, 18th, 19th, 23rd, 24th, and 25th amendments, and is generally held to mean that these amendments need fleshing out with rules and procedures, so Congress has the power to do that. In the case of the “insurrection” clause in Section 3, the argument on Trump’s side is that a court in Colorado cannot simply decide that what Trump did was “engage in an insurrection.” (And neither, presumably, can an executive officer in the Maine government.)
Even here, though, there is a legitimate argument to be made that no such congressional assistance is needed. Following the Civil War, the Fourteenth Amendment was used for about four years (until an amnesty was declared in 1872), and a number of men who had served in the Confederacy were barred from holding office in southern states. The procedure for doing this was---well, there was no procedure and no legal process. They were summarily dismissed from the ballot by election authorities. At the time, of course, there was no real factual issue about who had been engaged in an insurrection, and no real need for “due process.” The extent of it would be, “Yo, Beauregard. You were a colonel under General Lee, weren’t you? Well, sorry. You can’t run for sheriff.”
The effect of this history is that, during the period Section 3 was actually used to keep some insurrectionists off the ballot, the provision was self-executing. Nobody looked to Congress for definitions or procedures, so if some local official in 2024 wants to rule that Trump engaged in insurrection, there’s precedent for him having the power to do that. Leftist partisans on the Supreme Court will be aware of this argument and will use it to justify Trump being declared an insurrectionist without a helluva lot of procedure or testimony or debate.
All of which suggests to me that some context needs to be taken into consideration if we wish to avoid absurd results.
Let’s start here: the “insurrection” they were thinking about when the 14th Amendment became law was a four year conflagration in the American republic where more than a million men suited up for battle against their countrymen, and where more than a million Americans were killed in battle, in accidents, by disease, in prison camps, and by all the other horrific ways people die in an all-out existential war. For this, the Amendment barred insurrectionists from the Confederacy from holding elective office, for a while.
By contrast, the “insurrection” that Trump is alleged to have engaged in occurred on one day, January 6, 2021, and sought to delay the certification of electoral votes in Congress from the 2020 election. The insurrectionists, none of whom brought firearms, did damage to property and injured several police officers, though none fatally. Several of the rioters vandalized office areas of elected officials they believed had stolen the election, and one of them put his feet on Nancy Pelosi’s desk.
Beyond the vastly differing nature of the “insurrections” of 1861 and 2021, the other point to be made about the self-executing nature of the 14th Amendment is that Congress eventually did exercise its “power to enforce, by appropriate legislation, the provisions of this article.” It did so by passing the Insurrection Act in 1948, which is found in the U.S. Code at 18 USC 2383. It is a criminal statute which provides for fines and prison for anyone found to have engaged in an insurrection. It also provides that a person convicted may not run for elective office. Neither Trump nor any of the thousand people charged with crimes in connection with the January 6 riot have even been charged with violating the Insurrection Act.
This argument was made by one of the dissenting justices on the Colorado Supreme Court, and it will be the grounds on which the case is decided at the Supreme Court. In a 6-3 or 5-4 decision, the Court will rule that Congress passed the Insurrection Act in order to enforce the provisions of Section 3, so a conviction under the Insurrection Act is a prerequisite for barring someone from running for office. This is the easiest possible ruling for the majority on the Court. It is also the smallest possible ruling in the sense that it will have the least possible effect on other existing laws. The Supreme Court never likes to make more law than it has to.
(The other issue that is an ice-cold winner for the Trump side is the free speech argument it presented in Colorado, asserting that the First Amendment permitted Trump to say what he said about stolen elections. The Colorado Supreme Court opinion on this point is based on the “imminent danger” doctrine of Brandenburg v. Ohio, 395 U.S. 444 (1969), and they get Brandenburg so wrong you have to wonder if they even read it. Since the SCOTUS does not have to reach this issue, however, they won’t bother.)
The Supreme Court will overturn the Colorado decision and it will do so in such a way that all the other challenges to Trump in other states will disappear as well. They can do this by ruling that insurrectionists are only those people who have been convicted under the Insurrection Act---in other words, nobody.
But the lefties on the Court will not go along for the ride. They have decent arguments they can make in dissent, and more importantly, this is not the McDonnell case or the Arthur Andersen case, where the Left had no real investment in the issues by the time those cases got to the SCOTUS.
Here, there’s Trump, and their heads will explode if they participate in a Trump victory in any way.
More importantly, there’s an even larger issue at stake here. For the elites on the Left, the assault on dissent of all kinds is a global campaign. We first witnessed it in COVID “misinformation” campaigns around the world, where respected epidemiologists and other scientists were censored and de-platformed and had their professional licenses revoked for challenging the official pandemic narrative. We have also seen opposing voices silenced by the transexual-medical industry, and by the DEI forces in industry and on campus. Most recently, we have seen any opposition to Jew-hatred met with violence by pro-Hamas demonstrators and academics. Our old-fashioned ideals of free speech were designed merely to prop up the fascist establishment, we are told. Dissent from accepted leftist views is “dangerous,” and one thing Trump regularly does is dissent from accepted leftist views, so he must be silenced.
The insistence that only “approved” candidates be permitted to run for office is part of this campaign. We would all be so much safer, you see, if only decent, non-colonialist, anti-racist progressives (preferably people of color) could be elected to office. Getting Trump thrown off the ballot would send an unmistakable message: “We’ll pick our candidate and we’ll pick your candidate too, and that’s how it’s going to work from now on.” That’s why the Left is fighting this battle.
Copyright2024MichaelKubacki
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