Much has been written — and much more will be – about the Colorado Supreme Court’s decision holding that former president Donald Trump must be denied a place on the state’s primary election ballot in the 2024 election on the basis of Section 3 of the Fourteenth Amendment.
Too many of these writings have been without any proper Constitutional and legal analysis of the decision. Let’s try to do better, applying both Constitutional law and logic. (READ MORE from Jed Babbin: Foreseeable Consequences)
As the Colorado Supreme Court (CSC) ruled the pertinent part of Section 3 is;
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office . . . under the United States . . . who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same….
Section 5 of the Amendment provides that, “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” That means Congress has the exclusive power to do so, not the states.
Trump, having never been convicted of such an offense, cannot be barred from the Colorado — or any other states’ — ballots on the basis of Section 3.
It was not until 1994 that Congress enacted the legislation, 18 US Code Section 2383, that made it a crime to assist or engage in any rebellion or insurrection against the authority of the United States.
The Colorado district court held that the president, being a Constitutional officer, not an ordinary officer of the United States, could not be barred under Section 3. The CSC reversed that part of its decision, also holding that Section 3 is self-executing and held that Trump should be denied a place on the ballot.
The first — and most important question — is whether Section 3 is self-executing, which means that no court decision or decision of any other adjudicative body or further legislation is necessary to bar a person from holding federal office.
In the 1869 Griffin case, a man who had been a judge prior to the Civil War, had been elected to a judgeship after the war. Griffin, held guilty by that judge for a post-war crime, sued to get the judge disqualified by saying he had joined the Confederacy and was thus barred from office.
In the Supreme Court’s opinion on that case, Supreme Court Chief Justice Chase wrote that the question boiled down to:
[W]hether upon a sound construction of the amendment, it must be regarded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once, and absolutely, of all official authority and power … it is obviously impossible to [disqualify certain officers] by a simple declaration, whether in the Constitution or in an act of Congress.
That means Section 3 is not self-executing. There has to be an intermediate proceeding — allowing due process of law — for anyone to be barred from federal office.
Moreover, it means that no state can enact legislation implementing Section 3: only the U.S. Congress can. Colorado’s law enabling it to surpass the Constitution’s protections of a person’s right to be on the ballot is unconstitutional.
In the lower Colorado court, an expedited trial was held under Colorado law which allows those proceedings to consider such cases.
The CSC held that, because other sections of the Fourteenth Amendment had been held to be self-executing, so should Section 3.
The CSC blew past Trump’s claim that because he had never been indicted or tried under 18 US Code Section 2383, he couldn’t be barred from the ballot. It wrote:
We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383 … True, with that enactment, Congress criminalized the same conduct that is disqualifying under Section Three. All that means, however, is that a person charged and convicted under 18 U.S.C. § 2383 would also be disqualified under Section Three. It cannot be read to mean that only those charged and convicted of violating that law are constitutionally disqualified from holding future office without assuming a great deal of meaning not present in the text of the law.
That is, logically — and Constitutionally according to Chief Justice Chase — wrong.
Under the U.S. Constitution’s Bill of Rights, in place since 1789, no person can be deprived of life, liberty, or property without due process of law.
The three dissenting opinions to the CSC decision write that the CSC is wrong in its decision that Section 3 is self-executing and that the expedited proceedings in the lower court were questionable because they may not have provided Trump with due process. In one of the dissents, a judge held that only Congress can enact legislation — as the Fourteenth Amendment says — to effectuate the words of Section 3. That is a correct statement. (READ MORE: Colorado’s Christmas Gift to Trump)
The Constitution’s only qualifications for the office of president are that a person be a naturally-born citizen, a resident of the U.S. for fourteen years, and thirty-five years of age. That must be read to be consistent with Section 3 in that a disqualification can only be on the basis of a judicial finding or verdict that a person has engaged in an insurrection or rebellion against the United States or given aid and comfort to its enemies.
Trump, having never been convicted of such an offense, cannot be barred from the Colorado — or any other states’ — ballots on the basis of Section 3.
Aside from these facts and law, there is another question that none of the courts have addressed. Under the law, once a case has been decided by the highest courts that can consider it, the matter is resolved. The ancient legal doctrine of res judicata — the thing has been decided — always prevails.
In Nancy Pelosi’s second impeachment of Trump, article 1 of the impeachment states the cause of impeachment to have been “Incitement of Insurrection.” It goes on to recite the Democrats’ version of the January 6, 2021 riot at the Capital.
As we remember, the Senate acquitted Trump of the charges brought in that impeachment. That is a trial on the same charges and facts relied on by the Colorado courts. Res judicata applies and there cannot be another charge of insurrection after the impeachment — such as brought in the Colorado case — because it would place Trump in the double jeopardy barred by the Fifth Amendment.
The U.S. Supreme Court will, probably soon, reverse the CSC decision. It cannot do otherwise.
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