On Tuesday, the Colorado Supreme Court handed down an opinion that — if allowed to stand — would prevent former President Donald Trump from appearing on the state’s 2024 Republican presidential primary ballot.
By a 4-3 margin, the Democrat-appointed justices ruled that Section 3 of the 14th Amendment to the U.S. Constitution disqualified Trump from holding office because the former president engaged in “insurrection.”
Attorney, constitutional law scholar and legal analyst Jonathan Turley wrote an opinion piece for The Messenger, describing the court’s opinion as “making history in the most chilling way possible.”
In short, four judges took the unprecedented step of trying to prevent Colorado Republicans from voting for Trump. The former president, of course, leads Republican presidential primary polls by enormous margins nationwide.
How did this happen? On what grounds did Colorado’s high court justify what Turley called “the most anti-democratic opinion in decades?” And what happens next?
First, the high court’s opinion would apply to the Colorado Republican primary. And readers should know that nominal Republicans helped author it.
The case originated in what the Colorado Supreme Court called “a lengthy petition” filed in the Denver District Court by “both registered Republican and unaffiliated voters.” Those voters wanted Trump’s name removed from the Republican primary ballot. They cited the events of Jan. 6, 2021, at the U.S. Capitol as proof of “insurrection.”
Then, the district court “conducted a five-day trial” and “found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.”
Thus, the district court cited the 14th Amendment’s third section and declared that Trump “engaged in insurrection.” And this became the basis for the state supreme court’s opinion.
The 14th Amendment, ratified in 1868, ranks as one of the most important constitutional provisions in U.S. history. Until Tuesday, however, no high court had interpreted its disqualifying clause to mean what the Colorado high court said it means.
Congress passed the 14th Amendment in 1866 to establish citizenship for “All persons born or naturalized in the United States.” That meant citizenship of both the U.S. and of the states in which those citizens resided. As a practical matter, it brought newly freed slaves into the political community by recognizing their full and equal civil rights.
Or at least it attempted to do so. In the ensuing decades, as segregation took hold in former slaveholding states, the meaning of the 14th Amendment became one of the most contentious questions in U.S. political history.
The amendment’s first two sections covered most of these issues. Thus, they became objects of scrutiny.
The amendment’s third section, on the other hand, created relatively little controversy, for it had a narrow application. In fact, Congress intended it for former Confederate high officials. It reads as follows:
“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.”
Note that the text makes no direct mention of the nation’s chief executive as one of the specified offices.
The Denver District Court ruled Jan. 6 an “insurrection.” But it also ruled that the 14th Amendment’s Section 3 does not apply to the president. Thus, the district court did not order Trump’s name removed from the Colorado Republican presidential primary ballot.
Then, the case went to the state supreme court, which reversed the district court in part.
While agreeing that Trump did indeed engage in “insurrection” as the district court found, the Colorado State Supreme Court’s majority also declared that the 14th Amendment’s third section does apply to the president.
The high court’s opinion featured eight bullet-pointed findings used to justify its conclusion. Several of these findings merit close attention.
“Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine,” the third bullet-pointed finding read.
In other words, four judges decided that on the “eligibility” question, courts have the power to overrule voters. By this method, they evaded the thorny “doctrine” that such questions belong in the “political” arena.
“The district court did not err in concluding that President Trump ‘engaged in’ that insurrection through his personal actions,” the seventh bullet-pointed finding read.
Trump’s “personal actions,” of course, did not include secession or armed rebellion. In that sense, therefore, Section Three could not apply to him in the way it applied to former Confederate high officials.
In that case, how could Trump’s “personal actions” fall under Section Three? The blood-curdling eighth and final bullet point explained.
“President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment,” the eighth bullet point read.
Thus, the Colorado State Supreme Court ruled Trump ineligible for the presidency based on his political speech.
The four authoritarian judges then adopted a pose of false humility. They declared themselves “cognizant that we travel in uncharted territory” and confessed that the “case presents several issues of first impression.”
As a matter of constitutional interpretation, the Colorado State Supreme Court did three remarkable and unsettling things.
First, it expanded judicial review at the expense of voting citizens.
Second, it interpreted the 14th Amendment’s third section to mean something its authors clearly did not intend.
Third — and most ominous of all — it eviscerated the First Amendment by equating political speech with insurrection.
Now, what comes next?
In sum, the electoral calendar will dictate a quick resolution. Colorado Secretary of State Jena Griswold faces a Jan. 5 deadline for certifying the presidential primary ballot.
Therefore, the Colorado Supreme Court — “pending any review by the U.S. Supreme Court” — ordered a stay on its ruling until Jan. 4.
On the basis of an authoritarian theory that both invalidates free speech and disenfranchises an entire state’s voters, the high court ordered a former president’s name removed from the ballot — pending a possible review.
“The only good news is that this flawed theory can now be appealed to the U.S. Supreme Court where it is likely to be put to rest conclusively,” Turley wrote.
