Constitutional Originalism Defeats Trump in the Colorado Supreme Court Ruling

 A few months ago, I wrote about how some conservative lawyers have argued that the original meaning of the 14th Amendment in Section Three disqualifies Donald Trump from any office under the United States because he engaged in insurrection on January 6th, 2021.  Yesterday, the Colorado Supreme Court agreed with this argument--in the case of Anderson v. Griswold--in declaring that Trump cannot appear on the Colorado Republican presidential primary ballot in 2024.  Now, surely, the U.S. Supreme Court will have to rule on this case.

Here's the language of Section Three:

"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, 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 vote of two-thirds of each House, remove such disability."

A group of Colorado electors eligible to vote in the Republican presidential primary filed a petition in the Denver District Court invoking Colorado's Election Code and asking that the court rule that Trump may not appear on the Colorado Republican presidential primary ballot.  Since Trump "engaged in insurrection" against the Constitution, and thus violated his oath to support the Constitution, they argued, he is disqualified under Section Three from holding any office under the United States. 

Remarkably, while the District Court decided that Trump had indeed engaged in insurrection on January 6th, it also decided that the Section-Three disqualification from future public office did not apply to Trump for three reasons.  (1) The Presidency is not an "office, civil or military, under the United States."  (2) The President is not an "officer of the United States."  And (3) the presidential oath set forth in Article II of the Constitution is not an oath "to support the Constitution of the United States."

The 4-to-3 majority of the Colorado Supreme Court persuasively argues that while the District Court was right to see that Trump was an insurrectionist, it was wrong in claiming that Section Three did not apply to him.  The language of the Constitution makes it clear that the Presidency is an "office" under the United States, that the President is an "officer" of the United States, and that the President's special oath to "preserve, protect and defend the Constitution of the United States" is an oath to "support the Constitution."

Since the Colorado Supreme Court's decision rests on an "originalist" interpretation of the Constitution, we will see whether the originalists on the U.S. Supreme Court are willing to uphold this originalist jurisprudence in deciding against Trump.

The dissenters on the Colorado Supreme Court do have one good argument against the majority's decision--that the Colorado Election Code does not give courts the authority to adjudicate Section Three challenges to the qualifications of presidential candidates.  But the fact that the Colorado Election Code does require identifying the "qualified candidate" in a presidential primary surely opens it up for voters to challenge the qualifications of a presidential candidate under Section Three.

It is notable that the majority decision quotes from a decision by Neil Gorsuch in a Federal Circuit Court case in Colorado--before he became a Supreme Court Justice--in which he upheld the authority of the Colorado Secretary of State to exclude a naturalized citizen from the presidential ballot.  Gorsuch said that it is "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" (32).  Presumably, the standards for "constitutionally prohibited from assuming office" must include not only the minimal qualifications for the President in Article II but also the disqualification of insurrectionists in Section Three of the 14th Amendment.  To be consistent with this earlier opinion, Gorsuch will have to rule against Trump.

If the U.S. Supreme Court upholds the Colorado Supreme Court's originalist reading of the Constitution as disqualifying Trump from holding public office, that will confirm my argument often made on this blog that Trump's biggest mistake as President was allowing the Federalist Society to dictate his nominees to the federal bench, because judges who follow the original meaning of the Constitution will not rule in Trump's favor.

There are, however, some plausible arguments that SCOTUS could use to overturn the Colorado decision.  For example, one of the dissenters in the Colorado decision (Justice Samour) argued that the expedited procedures in the Election Code did not give President Trump adequate due process of law in that his lawyers did not have enough opportunity to contest the judgment of the majority that Trump had engaged in insurrection.  SCOTUS could point out that Section One of the 14th Amendment says that no State shall "deprive any person of life, liberty, or property, without due process of law."  It could be claimed that the Colorado Supreme Court has deprived Trump of his liberty to run as a candidate for the Presidency without sufficient due process of law.

But the court is unlikely to reach that conclusion.  This is not a criminal case in which Trump is being charged with the federal crime of insurrection.  If he were, he would have all the procedural requirements of due process.  Being disqualified to serve in public office under Section Three of the 14th Amendment is not a criminal punishment but a constitutional punishment for those who have violated their oath to support the Constitution by engaging in insurrection.  The congressional Select Committee to Investigate the January 6th Attack on the U.S. Capitol conducted an elaborate fact-finding investigation that concluded that Trump was ultimately responsible for the insurrection.  The Colorado Supreme Court decided that that was admissible in court to determine Trump's disqualification under Section Three.

In the Colorado decision, the four justices in the majority were Monica Marquez, William Hood, Richard Gabriel, and Melissa Hart.  The three in the minority were Brian Boatright (Chief Justice), Carlos Samour, and Maria Berkenkotter.  The three in the minority all graduated from the University of Denver Law School.  The four in the majority graduated from Yale Law School (Marquez), the University of Pennsylvania Law School (Gabriel), the University of Virginia Law School (Hood), and Harvard Law School (Hart).  All were appointed by Democratic governors.

In Colorado, the state constitution requires that in appointing justices to the court, the Governor must choose between three individuals recommended by a bipartisan commission.  As a result, the Colorado Supreme Court is generally perceived as much less politically partisan than is the U.S. Supreme Court.  After their first two years on the court, justices must run in a state-wide retention election.  Thereafter, they must run every 10 years for retention by the voters.  So, it is not right to identify them as "unelected judges," as some critics have.