There are a bunch of legal arguments, most of them fairly technical, about whether the Colorado supreme court’s opinion was wrong to throw Donald Trump off the state’s primary ballot on the basis of the disqualification language of Section 3 of the 14th Amendment. I bow to nobody in my lawyerly love for technical textual arguments, but I have generally not found these arguments persuasive. I’m inclined to think the court was right to reach the merits of whether Trump is disqualified from office under Section 3 of the 14th Amendment. I just think the court got that central question wrong.
Like Charlie Cooke, my problem isn’t with disenfranchising American voters, but with getting the law wrong. For example, it is probably the case that a supermajority of Democratic primary voters in 2024 would prefer Barack Obama to Joe Biden. We don’t let them make that choice, because Obama is disqualified from the presidency by the 22nd Amendment’s two-term limit. If I thought the law was similarly unambiguous in disqualifying Trump, I’d be all for throwing him off the ballot at the earliest possible opportunity, so that voters could choose among candidates who are actually eligible for the job. As the Colorado court noted, Neil Gorsuch is already on record taking the same stance, having written as an appeals judge in a 2012 case involving a non-natural-born citizen that ballot access implicates “a state’s legitimate interest in protecting the integrity and practical functioning of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
That being said, denying the voters their preferred choice of presidential candidate is a really big deal, and we should not do that unless the law is really, really clear in requiring it. That’s the problem here. As I have explained as some length here and here, I think the ratification-era evidence of Section 3’s language shows that a former official has “engaged in insurrection or rebellion” only by active participation in the insurrection after it begins. The Colorado court sadly ignored the entire record of contemporaneous congressional decisions on the question, which are the best evidence of the original public meaning of Section 3.
The court did not really get the standard itself all that wrong, in spite of ignoring the best available evidence; it just got far too creative and divorced from the text in applying it to the facts. The Colorado supremes relied heavily on legal opinions issued in 1867 by Henry Stanbery, the attorney general at the time the 14th Amendment was written and ratified. As discussed in our editorial, Stanbery opined that “the force of the term to engage carries the idea of active rather than passive conduct.” (Emphasis in original). Stanbery continued that this definition anticipated “some direct overt act, done with the intent to further the rebellion,” which in the context of the Confederacy meant aiding the war effort in some material way.
Did Trump actively engage in the January 6 riot at the Capitol? Consider the 4–3 Colorado majority’s full discussion of what Trump did:
By 1:21 p.m., President Trump was informed that the Capitol was under attack…Rather than taking action to end the siege, however, approximately one hour later, at 2:24 p.m., he tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”. . . This tweet was read over a bullhorn to the crowd at the Capitol, and produced further violence, necessitating the evacuation of Vice President Pence from his Senate office to a more secure location to ensure his physical safety. . . .
President Trump’s next public communications were two tweets sent at 2:38 p.m. and 3:13 p.m., encouraging the mob to “remain peaceful” and to “[s]tay peaceful” (obviously, the mob was not at all peaceful), but neither tweet condemned the violence nor asked the mob to disperse. . . .
Throughout these several hours, President Trump ignored pleas to intervene and instead called on Senators, urging them to help delay the electoral count, which is what the mob, upon President Trump’s exhortations, was also trying to achieve. . . . And President Trump took no action to put an end to the violence.
To the contrary, as mentioned above, when told that the mob was chanting, “Hang Mike Pence,” President Trump responded that perhaps the Vice President deserved to be hanged. . . . President Trump also rejected pleas from House Republican Leader Kevin McCarthy, imploring him to tell his supporters to leave the Capitol, stating, “Well, Kevin, I guess these people are more upset about the election than you are.” . . .
Finally, at 4:17 p.m., President Trump released a video urging the mob “to go home now.”. . . Even then, he did not condemn the mob’s actions. . . . Instead, he sympathized with those who had violently overtaken the Capitol, telling them that he knew their pain. . . . He told them that he loved them and that they were “very special.”. . . And he repeated his false claim that the election had been stolen notwithstanding his “landslide” victory, thereby further endorsing the mob’s effort to try to stop the peaceful transfer of power. (Emphasis added; citations omitted).
That’s . . . not what engaging in a riot looks like. It’s what rage-tweeting from your couch while other people riot looks like — and tweeting as if the riot isn’t even happening, for that matter.
More defensible is the Colorado court’s conclusion that the January 6 riot at the Capitol amounted to an “insurrection,” but we should acknowledge that that definition is itself an aggressive reading of the term — and if you take an aggressive and creative reading of both the definition of insurrection and the definition of who “engaged” in that insurrection, you have opened a very wide door for judicial creativity on a matter that calls for sticking to close and careful fealty to defined text — to what Antonin Scalia called “the rule of law as a law of rules.” There is a straightforward definition of what makes the core of a rebellion or insurrection, and it looks like the Confederacy: a denial of the sovereign authority of the government over some place and/or people, and an armed effort to substitute a different authority. The framers of the 14th Amendment had that in mind, but likely aimed for a broader definition that would encompass things such as the Whiskey Rebellion that used armed force to displace federal authority without seeking to establish a competing authority. At the opposite end of that scale is a definition that includes any riot: violence that ousts lawful authority from being in control of the situation and able to enforce the law and ensure public order.
The Colorado court took a loosely defined approach: “an insurrection falls along a spectrum of related conduct.” It cited the undoubtedly seminal 1863 Supreme Court opinion in The Prize Cases: “Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government.” It ultimately concluded that “any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
The transfer of presidential power in the joint session of Congress proscribed by the Twelfth Amendment is undoubtedly a vital function, but it smacks of ‘rules for these facts only’ to zero in on that as an excuse to avoid defining “insurrection” more generally. The Capitol rioters sought to use force to intimidate Congress and the vice president into changing how they would make a governmental decision. That decision was a momentous one about the allocation of executive power, but that is hardly a bright-line rule for what an insurrection is. What about a riot that seeks to influence decisions about the seating of members of Congress? The confirmation of Supreme Court justices? The admission of new states? Changes to election law? Changes to the criminal law? The outcome of a jury trial, or an appellate decision? A bright-line rule that is easily derived from this opinion seems elusive.
Where the definition of insurrection itself is elusive, combining that with an elastic definition of who “engages in” that insurrection makes the inquiry all the more standardless, and therefore more prone to abuse. Where the banning of a candidate for national office from the ballot is at stake, we should demand more from the courts than “trust us, we know it when we see it.”