I really didn’t want to talk about the Colorado Supreme Court much more than I did yesterday because, as I mentioned, the direct impact on the election is minimal and the U.S. Supreme Court is more than likely going to invalidate it.
But, alas, there are people in the media who are so broken by Donald Trump that they really and truly believe that their cause is just and that Colorado did the rightest of all things by invalidating his ballot eligibility.
There is a piece at The Atlantic that really attempts to be a clever take on the Constitution and originalism, but it completely misses the point on both. The piece, titled “The Colorado Ruling Calls the Originalists’ Bluff“, makes the fatal flaw that the Colorado Supreme Court and the silly people who are going after Trump through the 14th Amendment continue to make: They are only looking at the issue through the lens of their Trump hatred and not the lens of actual historical context.
Ironically, what they are doing is the opposite of what originalism actually means.
From that piece in The Atlantic:
There is no language limiting the power of the section to former Confederates, however, and its scope is sweeping, with no requirement that those engaged in the specified conduct be convicted. Indeed, given the number of people who served in the Confederate army and governments, such a requirement would have been impractical.
The Colorado court weighed all of this in arriving at its decision. “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us,” the justices in the majority wrote. “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.”
The author then comes to this conclusion (emphasis mine):
In framing the stakes this way, the Colorado court is calling the bluff of the U.S. Supreme Court’s originalists, forcing its conservative justices to choose between their purported legal philosophy and the partisan interests of the party with which they identify. The ruling itself seems written with a consciously originalist interpretation, with an eye toward legitimizing its conclusions to the justices who will ultimately be compelled to deal with the case.
Except, the author discredits himself from the jump, by reminding the reader earlier in the article that Section 3 of the 14th Amendment was “written in the aftermath of the Civil War to disqualify former Confederates who had taken up arms against the United States in defense of the institution of human bondage.”
If you look at the 14th Amendment through an originalist lens, then it’s clear it is meant to be used against those who actively took part in an armed uprising against the United States and/or were working with the nation’s enemies. Through the originalist lens of the Civil War and the Reconstruction Era of the United States, what happened on January 6 does not measure up. The actions of a bunch of idiots role-playing as “patriots” seeking to cause chaos do not an insurrection make.
Further, through that same lens, what Donald Trump did on January 6, while (in my opinion) irresponsible, was clearly not an attempt to overthrow the U.S. government. If it were, if the Democrats were really serious about that, he would’ve been charged with violating U.S. code as it pertains to insurrection and tried by now.
If that had happened, and if he were found guilty, then the 14th Amendment is clear – Trump would be ineligible to be President of the United States.
It is also more than likely that the original crafters of the 14th Amendment believed in due process. While it is not explicitly written in Section 3 of the 14th Amendment, it was written in response to Confederates who had withdrawn completely from the United States, forswearing their citizenship here. They became a hostile force seeking war against the United States. Donald Trump sought to be named the “rightful” president. He wasn’t attempting to overthrow the system, but to right what he (may or may not have really) believed was a major wrong.
Again, that isn’t treason or insurrection. It’s an attempt to interrupt an official proceeding, but even then, he has yet to be found guilty of being responsible for that bedlam.
There is very little evidence to suggest that anything that happened on January 6 would have fit the vision of the original crafters of the 14th Amendment. What happened during and after the Civil War was vastly different than what we saw on January 6, 2021, that using the 14th Amendment to justify what the Colorado Supreme Court did makes zero sense from an originalist perspective.
But what that writer at The Atlantic did, like so many others, is say “Well, this fits MY definition of an insurrection, so clearly what they did was right” and then used that logic to try and (once again) attack conservative justices on the Supreme Court. But the originalists on the Supreme Court understand history and law better than a writer at The Atlantic, as well as most of the deranged people pushing the 14th Amendment as a means of eliminating their Trump problem.
They understand the intent of the 14th Amendment. They also understand the intent of the 5th Amendment, which guarantees due process. That is something Trump isn’t getting in the Colorado ruling. A panel of judges declared him de facto guilty of a crime so they could make their preferred ruling work.
That, too, is in no way originalist.
