The all-Democratic Colorado Supreme Court's decision to remove Donald Trump from the ballot is among the most undemocratic and unconstitutional rulings I have ever read in my 60 years as an attorney and advocate.
The 4-3 ruling is said to derive its authority from Section 3 of the 14th Amendment, which was enacted after the Civil War. The measures were intended to prevent people who had participated in the uprising and uprising of 1861–1864 from running for certain political offices.
But the authors of the 14th Amendment never intended it to deny voters the right to decide who their next president would be in all future elections.
That would have been completely ridiculous for the authors of this amendment.
Consider the historical context of the passage of the 14th Amendment.
The United States at that time also included Confederate States, which had recently been violently suppressed.
Why would Congress have wanted to strengthen the former rebel states? If given the power to exclude candidates from the ballot, they could well cause mischief.
In fact, the Fourteenth Amendment expressly provides that “Congress shall have power to enforce the provisions of this article by appropriate laws.”
It is clear that this measure was never intended to leave enforcement mechanisms to individual states and their courts.
The all-Democratic Colorado Supreme Court's decision to remove Donald Trump from the ballot is among the most undemocratic and unconstitutional rulings I have ever read in my 60 years as an attorney and advocate.
It is clear that this measure was never intended to leave enforcement mechanisms to individual states and their courts. (Above) Colorado Supreme Court Justice
How could you read this differently?
Furthermore, the 14th Amendment was not intended to circumvent the impeachment provisions of the U.S. Constitution, which also allow disqualification from voting, but requires a two-thirds majority of the U.S. Senate and other procedural guarantees.
There are no safeguards under the Colorado court's power grab. Due process has been thrown out the courthouse window.
According to these Colorado judges, a candidate does not even have to be convicted by a jury of the crimes of insurrection or rebellion before his rights are taken away.
But even if Trump were convicted in Washington DC or Georgia of the crime of attempting to overturn an election, that would still not justify invoking the 14th Amendment because the text does not make the disqualification provisions applicable to a presidential candidate.
The amendment's language applies only to politicians who have taken the congressional oath – not the presidential oath. The text specifies an oath to “support” the Constitution, which is the operative word in the Congressional oath. The key words in the presidential oath are: “Preserve, protect and defend” the Constitution.
This is a technical distinction, but combined with the absence of the word “President” and the presence of the words “Senator or Representative,” it cannot be said with certainty that the drafters of the amendment intended to provide for the disqualification of candidates for the highest office in the country.
At least as likely, the framers believed that candidates for this particular office should be judged by voters on the basis of their totality.
After all, there is no legal precedent for such a significant court order. If presidential candidates can be disqualified, there must be a clearly established mechanism. It is completely ridiculous to accept that state courts have the power to manipulate a previously unknown ad hoc process that can be manipulated to achieve results.
Even if Trump were convicted in Washington DC or Georgia for the crime of attempting to overturn an election, that would still not justify invoking the 14th Amendment because the text does not make the disqualification provisions applicable to a presidential candidate.
It is this common sense thinking that provides the strongest argument against the Colorado court's decision.
The 14th Amendment does not authorize individual states to make such important decisions about voting rights for presidential candidates. Rather, it is a temporary provision based on post-Civil War fears that the Confederates would interfere in the state's reconstruction efforts.
The U.S. Supreme Court will almost certainly review the case and delay a decision beyond Colorado's March 5 primary.
But no matter what the Supreme Court does, Republicans will fight back in some way.
Outraged — and perhaps emboldened — by this blatant abuse of the 14th Amendment, some may seek to disqualify President Joe Biden in some states or use other anti-democratic means to restrict access to the vote.
The end result will lead to even more disorder in our electoral system in the 2024 presidential election and beyond.
Make no mistake – the Colorado Supreme Court has damaged American democracy and violated our Constitution.
And the American people will pay the price – as the country inevitably becomes bitter, distrustful and divided.