Fourteenth Amendment, 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, 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.”
We have heard and read this amendment countless times since January 6, 2021. Its meaning has been debated by constitutional scholars and by the people, our families, friends, and coworkers. Now, the Colorado District Court and the Colorado Supreme Court have weighed in with their opinions, and they cannot be ignored. For those of us who are not constitutional scholars, a breakdown of the basic arguments and the timeline of the Colorado case is imperative.
November 17, 2023
United States District Court, City and County of Denver, State of Colorado; Final Order.
298. Consequently, the Court finds that Petitioners have established that
Trump engaged in an insurrection on January 6, 2021 through incitement, and that the
First Amendment does not protect Trump’s speech.
December 19, 2023
The Supreme Court of the State of Colorado; Per Curiam.
¶158 In sum, “[t]he simplest and most obvious interpretation of a Constitution, if
in itself sensible, is the most likely to be that meant by the people in its adoption.”
Lake County v. Rollins, 130 U.S. 662, 671 (1889). The most obvious and sensible
reading of Section Three, supported by text and history, leads us to conclude that
(1) the Presidency is an “office under the United States,” (2) the President is an
“officer . . . of the United States,” and (3) the presidential oath under Article II is
an oath to “support” the Constitution.
¶257 The district court erred by concluding that Section Three does not apply to
the President. We therefore reverse the district court’s judgment. As stated above,
however, we affirm much of the district court’s reasoning on other issues.
Accordingly, we conclude that because President Trump is disqualified from
holding the office of President under Section Three, it would be a wrongful act
under the Election Code for the Secretary to list President Trump as a candidate
on the presidential primary ballot. Therefore, the Secretary may not list President
Trump’s name on the 2024 presidential primary ballot, nor may she count any
write-in votes cast for him.
Trial courts find facts and appellate courts review laws. This essential separation of judicial duties codified in the Constitution is not easily breached. The District Court found in fact that then-President Trump engaged in insurrection against the United States. The Supreme Court found in law that Section Three of the Fourteenth Amendment applies to the President of the United States.
The conclusion finds itself in both fact and law. Because Donald Trump engaged in insurrection, he is barred from holding office. Conservative retired U.S. Court of Appeals Judge J. Michael Luttig called the Colorado Supreme Court decision “ironclad.” United States Supreme Court justices cannot simply discard findings of fact, and the conservative justices applying conservative principles of original intent, written text, and historical context would be hard-pressed to reverse Colorado on findings of law.
Whether affirming or reversing Colorado, any split decision will be seen as a result-driven political decision, which justices are purported to loathe. But what Supreme Court justices have never been loath or even timid to do is issue sweeping rulings. Right or wrong, unanimous or divided, the history of SCOTUS is replete with landmark decisions. Marbury v. Madison, Dred Scott v. Sandford, Plessy v. Ferguson, Brown v. Board of Education, Loving v. Virginia, Roe v. Wade, U.S. v. Nixon, Bush v. Gore, District of Columbia v. Heller, Obergefell v. Hodges, Dobbs v. Jackson, these are but a few of the controversial and consequential decisions having affected all of American society. There is every reason to believe that if SCOTUS ruled that former president Trump is barred from holding office under Section Three of the Fourteenth Amendment it would be just as controversial and even more consequential than other historical milestones. But the Supreme Court must rule without fear or favor, and their decision must be unequivocal and convincing. The great gravity of this critical case calls for the Court to act firmly; side-stepping the issue will only lead to more chaos and more division, further undermining respect for the Court. Quoting Article Three, Section Two, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, . . .”
Lastly, the Fourteenth Amendment provides its own remedy to disqualification: “But Congress may by a vote of two-thirds of each House, remove such disability.”
Colorado has now established a legal mechanism for finding facts and law to enforce this article and section of the Constitution, SCOTUS should now uphold that precedent. Let former president Donald Trump be disqualified and removed from presidential election ballots as the Constitution demands. This is not a denial of the right of the people to vote for the candidate of their choice, rather this is an enforcement of a constitutional disqualification to hold office. Let any member of the House or Senate, or elector or any legislative, executive, or judicial officer of any State who engaged in insurrection or gave aid and comfort to the enemies of the United States be held to such examination, and if facts and law are proven against them, be removed and disabled to “hold any office, civil or military, under the United States, or under any State.”
No one is above the law and the Constitution is the supreme law of the land. We the people, can and will vouch for our support of the Constitution, and we expect our leaders to do the same.
