U.S. Supreme Court to determine the fate of the American Revolution

Arguments against the Colorado Supreme Court's interpretation of the 14 Amendment to disqualify Trump are anemic

In today’s Washington Post “Will the voters know the verdict on Trump before November?,” columnist Ruth Marcus writes, “The language of Section 3 clearly could be used to disqualify Trump from running.  But it is unimaginable that the court would give state courts or other state officials the authority to do so. The consequences of such a move would be so dangerously destabilizing to the nation that the court will almost certainly resort to one of the many legal off-ramps that would prevent Section 3 from being deployed against Trump.”

The arguments and reasoning seem less than convincing.

First, under Colorado state law as authoritatively interpreted by the Colorado Supreme Court, the Colorado legislature authorized Colorado courts to adjudicate the section 3 issue.  Article II of the U.S. Constitution makes clear that state legislatures in each state respectively prescribe the process for selecting presidential electors, even though they perform a federal function in casting state-certified votes for the president.  The Colorado Supreme Court acted as Article II contemplated.

Second, state judges are bound to support the U.S. Constitution under Article VI, including the Bill of Rights and the Civil War Amendments.  I know of no case in which state courts were held to lack jurisdiction to entertain and adjudicate a federal constitutional claim, including provisions of the Fourteenth Amendment like the due process and equal protection clauses. Indeed, state courts are presumed to possess jurisdiction over all federal claims unless Congress makes federal court jurisdiction exclusive, as for antitrust or patent claims. I know of no argument that state courts lack jurisdiction to enforce the two-term limit on the presidency stipulated by the 22^nd Amendment.  Indeed, the U.S. Supreme Court held in Testa v. Katt, 330 U.S. 386 (1947) that state courts are required to enforce federal claims under the Supremacy Clause.  

Third, it seems less than self-evident that different state courts adjudicating the section 3 issue differently would be “dangerously destabilizing to the nation.”  The U.S. Supreme Court sits to insure national uniformity in constitutional interpretation. If it sustained the finding of the Colorado state court after a five-day due process trial that Trump engaged in insurrection within the meaning of section 3 against the United States on January 6, 2021, by inciting or orchestrating violence against the Capitol to prevent Vice President Mike Pence from counting state-certified electoral votes as prescribed by the 12^th Amendment and Electoral Count Act, that finding would be binding nationwide and disqualify Trump from the presidency absent a two-thirds vote of Congress.  Why would that be destabilizing any more than the Supreme Court’s Second Amendment ruling in New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022) casting a cloud over every state or local gun control statute?

The President is elected via 50 different state elections each with different eligibility rules for appearing on the ballot.  It is not at all unusual for presidential candidates to qualify on some but less than all state presidential ballots.  In 2000, for example, Ralph Nader appeared on presidential ballots in 43 states and the District of Columbia.  If section 3 disqualified Trump from some but not all state presidential ballots, the result would not be destabilizing or odd.

Fourth, Trump’s case is sui generis in the more than 150 years that have elapsed since section 3 was enshrined in the Constitution in 1868.  His misbehavior is off the charts—endless standard deviations from the mean of presidential bows to the peaceful transfer of presidential power.  A U.S. Supreme Court decision affirming the Colorado Supreme Court would have no enduring influence or relevance beyond the 2024 election.  In contrast, a decision against the insurrection finding and disqualification would set a precedent that would lie around like a loaded weapon ready for use by Trump and his Stop the Steal ruffians to replace the rule of law with the law of the jungle and undo the American Revolution.

To be sure, section 3 is not intellectually tidy.  But Ruth Marcus’ proposed cure seems vastly worse than the disease.