ANALYSIS: Did Colorado Supreme Court Make Right Decision to Keep Trump Off State’s Ballot?

ANALYSIS: Did Colorado Supreme Court Make Right Decision to Keep Trump Off State’s Ballot?

Analysis by Julia Stronks | FāVS News

On Dec. 19 the Colorado Supreme Court disqualified candidate Donald Trump from appearing on the 2024 Republican primary ballot. The Court did this because they found that on Jan. 6, 2021, Trump had engaged in “insurrection.” Under the 14th Amendment to the U.S. Constitution, people who engage in “insurrection or rebellion” are ineligible to hold office in the nation if they had ever been an “officer” who had sworn an oath to support the Constitution.

The Colorado opinion and the dissent together are a fascinating 212 pages of jurisprudence on some questions that have rarely been analyzed: What is insurrection? Who gets to decide if it has occurred? Is an elected president an “officer” under the meaning of the 14th Amendment?

Does faith intersect with this issue at all?

There are people of faith who support Donald Trump’s candidacy and those who oppose it. If your focus is on faith and the person of Trump, then the Colorado decision is not likely to impact your perspective on the candidate. People’s views on this candidate are deeply entrenched.

But, if your interest is in faith and the Constitution, then the Colorado decision is more significant. How relevant is faith to understanding the significance of the Constitution?

As a Christian, I believe that the Constitution is a necessary, though not sufficient, tool for a just government. I believe this not because the Constitution is a Christian document (it isn’t). Or because the Framers of the Constitution were themselves Christian (some were, some were not).

Rather, I believe it because the Constitution embodies a framework that is consistent with Christian teaching: human beings are fallen. We will abuse power. So, divided government, dispersed power and rule of law are tools to control abuse of power. These tools that bind everyone are a necessary foundation on which to shape the kind of society we want to have.

James Madison was the primary architect of the Constitution and in the Federalist Papers he explained why divided government was so important. If men were angels, he said, no government would be necessary. But because all of us have ambition, our ambition has to be checked. Even the most enlightened of us will be tempted, at times, to abuse power. So, the Constitution is not a document to ensure a just society. Rather, it is a document that structures a government to divide power so that ambition will check ambition. Every article of the document in some way divides power between and among branches and levels of government. And, when presidents in particular move to consolidate power in themselves, they must be stopped. Presidents are not kings. Presidents are subject to the exact same rules and division of power structure as the rest of society.

As a person of faith, my view of human nature is the same as Madison’s who drew his from philosophers and theologians like John Locke and John Calvin. I believe that even the best among us will abuse power and must be restrained by rule of law. Because of this belief, I think that the Constitution needs to be upheld even when I do not really like the result.

This perspective drives my assessment of what the Colorado Supreme Court did. I do not want Donald Trump to be the Republican nominee, but I think they made a mistake.

What did the Colorado Supreme Court say?

The Colorado majority opinion had many procedural aspects to it but three of the key findings were related to the definition of insurrection, the evidence used to conclude that insurrection had occurred, and the assumption that, of course, a president is an “officer” under the meaning of the 14th Amendment.

The definition and the evidence: The judges used dictionaries to conclude that an insurrection was something between a rebellion and a war. Then, the judges said it was clear that insurrection had occurred because they read the 845-page report that was produced by the nine-member House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Thirty-one findings from the report were used by the lower district court in a five-day trial to demonstrate that insurrection had occurred, and the state supreme court accepted this evidence of insurrection as well.

This troubles me. Is the use of the Congressional report sufficient to conclude that insurrection has occurred under the 14th Amendment? There was no due process, no full challenge of the evidence, no opportunity for a jury of one’s peers. Furthermore, insurrection is actually a federal crime, and it is defined by statute (18 U.S. Code ss2383). Donald Trump has not been convicted of or even charged under this statute. The only charge of insurrection Trump has faced is a 2021 U.S. House impeachment charge; he was acquitted in the Senate.

The meaning of “officer”:  When I first paid attention to this issue, I scoffed along with many that obviously when a president swears an oath to support the Constitution he is doing so as an officer, and thus falls under the 14th Amendment. But upon closer examination, this isn’t really so clear.

The justices in the Colorado Supreme Court said that the word officer should be understood in its ordinary and normal usage, again using dictionaries. Then they analyzed the meaning of different sections of the Constitution, saying that parts of it didn’t make sense if the President was not included in the responsibilities of the other officers. It is persuasive to read this argument.

But, other scholars make even more persuasive arguments that there is an important distinction between the President and “officers” in four places in the Constitution. In fact, as recently as 2010 Chief Justice John Roberts said that officers of the United States are appointed, not elected, under procedures outlined in Article II of the Constitution. The President is elected. Does this mean he is not an “officer?”

So, while it makes sense that a president is an officer under the common meaning of the word, it isn’t clear that the 14th Amendment includes presidents. And, it cannot be said that by rule of law Donald Trump has been charged and found guilty of insurrection.

I was strongly opposed to Donald Trump as president and am just as strongly opposed to him as an upcoming presidential candidate. But I value the rule of law even more than I resist him as a candidate. The Constitution, as our foundational rule of law, binds our presidents. That’s as it should be. But it also now protects candidate Trump. That’s as it should be also. I think candidates should be left off a ballot only if the Constitution clearly states that they are eliminated.