Trump Banned!

Colleague Dave Gonigam recently wrote of a potential American “civil war.”

Is the Supreme Court of the state of Colorado out to kindle one?

It has ruled — 4-3 — that Mr. Donald Trump is disqualified from running upon the Republican ticket in the state of Colorado.

That is because the state’s high court has deemed the fellow guilty of insurrection against the United States.

They claim the 14th Amendment to the United States Constitution — Section Three specifically — as the rock of their case.

Section Three reads:

No person shall… hold any office, civil or military, under the United States… who, having previously taken an oath… as an officer of the United States… 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.

Is Trump the Equal of a Confederate?

The amendment in question and the section in question are legal artifacts of the United States Civil War.

Or — as the conflict is officially styled — the “War of the Rebellion.”

The section’s precise target was former members of the Confederate States of America.

Now the Supreme Court of the state of Colorado invokes the thing against Mr. Trump.

Courts in Minnesota and Michigan have dismissed comparable challenges to Mr. Trump’s appearance upon the presidential ballot.

Yet Colorado’s Supreme Court has pounded a gavel the other way.

Disqualified!

Ruled the court:

A majority of the court holds that President Trump is disqualified from holding the office of president under Section Three of the Fourteenth Amendment of the United States Constitution.

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…

President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power [on Jan.6, 2021].

Concludes the court — sternly, soberly, solemnly, self-aggrandizingly — slump-shouldered under the impossible burden of responsibility it has taken upon itself:

We do not reach these conclusions lightly. 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.

Just so. Yet we have consulted our constitutional scholar. We solicited his sage counsel on this ruling…

Legalities

This fellow conveyed to us his grave misgivings over its constitutional fidelity.

He finds it dynamited through with holes. For example:

He informs us that the Supreme Court of Colorado — or any other American state — lacks legal standing to rule Mr. Trump guilty of “insurrection.”

Mr. Trump has not been charged — officially — with insurrection against the government of the United States.

He has not been tried for insurrection against the government of the United States.

He has not been convicted of insurrection against the government of the United States.

Mr. Trump has been charged with conspiracy to defraud the United States. He has been charged with conspiracy to obstruct an official proceeding.

He has been charged with “conspiracy against rights,” which — in our reckoning — occurs each instance Congress assembles on alleged behalf of the American people.

Yet Mr. Trump has not been charged formally with insurrection. And he has not been ruled guilty of insurrection.

On what constitutional authority… then… does the Supreme Court of the state of Colorado find the fellow guilty of insurrection?

Our constitutional scholar informs us this authority does not exist.

Yet as the iconoclast Mencken styled it:

“A judge is a law student who marks his own examination papers.”

Trump to Appeal

Mr. Trump pledges to file grievance with the Supreme Court of the United States.

There he will confront nine additional law students who likewise mark their own examination papers.

Our constitutional professional believes these exorbitantly privileged law students will rule with plaintiff Trump — and perhaps by a vote of 9-0.

Is our man’s constitutional judgment sound? We are not in a position to “judge.”

That is because we are not a constitutional authority.

The abstruse and intricate labyrinths of constitutional law are beyond our slender abilities to navigate.

The “penumbras and emanations” glowing from the constitutional text are invisible to us.

Thus we are disqualified from service upon the Supreme Court of the United States.

We merely present the findings of our inquiry, in the highest faith.

Is an Ivy League Education Better or Worse?

We mention… in passing only… that each jurist of the Colorado Supreme Court is a registered Democrat.

The four who heaved the 14th Amendment, Section Three at Mr. Trump attended “elite” legal schools.

The three who did not heave the 14th Amendment, Section Three at Mr. Trump attended the University of Denver’s legal school.

In dissent, one of the three jurists — a certain Carlos Samour — gave the majority a good hard razzing:

The decision to bar former President Donald J. Trump… from Colorado’s presidential primary ballot flies in the face of the due process doctrine…

Significantly, there is a federal statute that specifically criminalizes insurrection and requires that anyone convicted of engaging in such conduct be fined or imprisoned and be disqualified from holding public office. See 18 U.S.C. § 2383. If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383.

This fellow continues, in dissent:

Section Five of the Fourteenth Amendment specifically gives Congress absolute power to enact legislation to enforce Section Three. My colleagues in the majority… conclude… that the states are free to apply their own procedures… to enforce it. That is hard for me to swallow.

That… will inevitably lead to the disqualification of President Trump from the presidential primary ballot in less than all 50 states, thereby risking chaos in our country. This can’t possibly be the outcome the Framers intended.

What are we to conclude about the legal education of the four assenters? Or of the three dissenters?

Opening Pandora’s Box

Let us consult constitutional scholar Jonathan Turley:

The opinion of the Colorado Supreme Court is so sweeping that it would allow for tit-for-tat removals of candidates from ballots… The opinion is remarkable in how the four justices adopted the most sweeping interpretations to get over each barrier. The result is lack of a limiting principle. I view the opinion as strikingly anti-democratic in what it now allows states to do in blue and red states alike. 

What if… for example… the red state of Texas opts to retaliate against the blue state of Colorado?

That is, what if it bars Mr. Biden from the Texas ballot?

Texas might claim the sitting president has executed treasonous crimes for facilitating the mass trespassing of its border with Mexico.

Conversely — or additionally — it might claim the same president is a corrupt fellow. Thus he is unfit for the office he so villainously and treacherously occupies.

What if the blue state of California proceeds to retaliate against the red state of Texas for retaliating against the blue state of Colorado?

And what if the remaining states fall into the chain reaction Colorado has set going?

Electoral Mayhem

In practice it would mean very, very little.

Mr. Trump would not claim the blue state of California whether he is on the presidential ballot or not.

Nor would Mr. Biden claim the red state of Mississippi whether he is on the presidential ballot or not.

Yet what if one or more “swing states” ban the one or the other?

Here you have electoral mayhem. Yet… yet…

As we type these words we begin to entertain malicious and seditious notions.

They may very well… by our own admission… cross into actual treason.

They run this way:

Let all 50 states ban one candidate or the other. Let the great circus unfold in all its rings.

The election — such that it is — would lack all legitimacy.

Even less legitimacy, that is, than elections currently rate.

“But how could we possibly elect a president?” you thunder.

Our response: A grinning silence…

What do you think of the Colorado ruling? Agree or disagree? Let us know: feedback@dev.dailyreckoning.com.