Posted on 12/21/2023 10:06:07 AM PST by SeekAndFind
In his book Profiles of Courage, John F. Kennedy discussed figures who answered the call of history and how such defining moments are “an opportunity that sooner or later is presented to us all.” That moment will now be presented to nine justices of the United States Supreme Court after a divided decision of the Colorado Supreme Court to disqualify Donald Trump in the 2024 election.
The test for the U.S. Supreme Court is not just what they should do, but how they should do it.
As an institution, the Court is often called upon to seize such moments to bring unity and clarity on our core values. That is why this insidious opinion must not only be unequivocal but unanimous.
The Colorado decision to bar Donald Trump from the ballot will be overturned because it is wrong on the history and the language of the 14th Amendment.
Dead wrong.
The question is whether the US Supreme Court will speak with one voice, including the three liberal justices.
As with the three Democratic state justices who refused to sign off on the Colorado opinion, these federal justices can now bring a moment of unity not just for the court but the country in rejecting this shockingly anti-democratic theory.
For years, the disqualification theory has been treated like some abstract parlor game for law professors.
While Democrats called for the disqualification of 120 House members, it was treated as a fringe theory.
It has now lost its charm as a legal brain teaser.
As I have previously written, the disqualification of Trump is based on the use of a long-dormant provision in Section 3 of the 14th Amendment.
After the Civil War, House members were outraged to see Alexander Stephens, the Confederate vice president, seeking to take the oath with an array of other former Confederate senators and military officers.
They had all previously taken the same oath and then violated it to join a secession movement that claimed the lives of hundreds of thousands of Americans.
That was a true rebellion.
January 6, 2021, was a riot.
That does not excuse those who committed crimes that day — but it was not an insurrection.
The majority on the Colorado Supreme Court adopted sweeping interpretations of every element of the decision to find that Trump not only incited an insurrection, but can be disqualified under this provision.
It does not matter that Trump has never been charged with even incitement or that he called for his supporters to go to the Capitol to protest “peacefully.”
In finding that Trump led an actual insurrection, the four justices used speeches going back to 2016 to show an effort to rebel before Trump was ever president.
There are ample grounds to summarily toss this opinion to the side.
However, that would not answer the call of this historic moment.
What these four justices did was a direct assault on our democratic process in seeking to bar the most popular candidate in the upcoming election.
Whatever the view of Trump, this is a decision that should rest with the voters.
No only are these four justices seeking to bar the votes of millions of voters (even barring the counting of write-in votes), but they are doing so in the name of democracy.
It is the ballot cleansing that is usually associated with authoritarian countries like Iran, where voters are protected from “unworthy” candidates.
Justice Robert Jackson once observed that he and his colleagues “are not final because we are infallible, we are infallible because we are final.”
A decision on Colorado could put this theory to rest by the sheer finality of the appeal.
However, it is not the finality that is needed at this moment. We need clarity. Clarity of purpose and principle.
The Supreme Court plays a unique role in our system at times like these.
It must at times defy us in rejecting racism as cases such as Brown v. Board of Education.
At other times, it has protected in rejecting government overreach as in cases such as Katz v. United States, demanding warrants to overcome the reasonable expectation of privacy.
This is a time where it can unify us.
The court holds the ultimate “bully pulpit” that can educate citizens on what defines us as a people.
Most people understand intuitively that what these four justices did in Colorado was wrong.
However, the court can speak as one — conservatives and liberals — in reaffirming the core values discarded by these state justices.
In that sense, it may be the greatest test of Chief Justice John Roberts.
Roberts once observed that “the most successful chief justices help their colleagues speak with one voice.”
Past chief justices from John Marshall to Earl Warren struggled to secure unanimous votes on fundamental cases to reaffirm such defining values.
The court could help unify this country in a way that may be unparalleled in its history.
It can show that justices who hold vastly different ideological views can be unified on core principles.
It can remind us that, as citizens, the Constitution is ultimately not a covenant with the government but with each other.
It is a leap of faith that, as a free people, we can decide our shared destiny and protect our shared identity.
The moment has come for nine justices to speak in one voice.
An American voice that transcends the personalities and divisions of our time.
It is a voice that speaks not to what divides us but what defines us as a people.
The Roberts court utterly failed the nation in December 2020. No one should count on them doing the right thing this time either.
No comment from Thune, Cornyn, or McConnell, but some Democrat lawyer blasts the decision.
According to Obama (Biden is his lackey) failure to sign on to the liberal fabrication that the 2020 election was not fraudulent is insurrection. They haven’t a clue what insurrection is, but they sure as hell know what election fraud is. They invented it. The election fraud the Democrats used in 2020 is the insurrection.
If they screw around long enough...some other ‘red’ state will remove Biden’s name...then you will see retaliation go full-turbo.
Some 1860 history here....Lincoln wasn’t on 10 state’s ballots, and yet still won. It was an unusual race, with four party candidates though.
“SCOTUS Should Rule Unanimously Against Trump Ballot Ban”
Should yes, but I can assure you it most certainly will not.
One or more of the lefties on the SCOTUS will dissent as a gesture of “solidarity” with their commie bretheren.....bet on it.
Amen.......good deconstruction.
I can see a 7-2 ruling, with Kagan joining the conservatives.
Turley, like so many is naive. They think the rats will give this serious deliberation and rule according to law. Turley doesn’t seem to understand these are nothing but Democrat hacks. They know how they are going to vote before they hear one word of testimony and nothing will change it
“ Thune, Cornyn, or McConnell,”
They don’t want Trump in.
Should yes, but I can assure you it most certainly will not.
One or more of the lefties on the SCOTUS will dissent as a gesture of “solidarity” with their commie bretheren.....bet on it.
The Supreme Court does not exist in a vacuum. They are fully aware of what is going in the nation, they are also aware of their place in history.
The 14th amendment (and the reason it exist) is clear. First while several elective offices are named, the office of the President is NOT named so the amendment does not apply to him. Second the 14th amendment clearly states the US Congress is the enforcer of these restrictions, not the states.
So basically, Colorado has no standing.
I will add one more thought, if they allow this to stand every state in the union that has majority control would move to ban anyone from the other party to be on ballots. It will be chaos.
The justice would be the ones blamed for the mess.
Now the justices know all this, do you really think they will support Colorado and trash their place in history or will they simply read the 14th as it is written.
Don’t bet too much on it going Colorado’s way.
The question - and potential problem - is...when?
Something like this calls for an emergency session, but the dems are counting on the court’s inertia, as more blue states do the same. CA already has proposed it.
You need to expand your reading material
Senator John Cornyn
@JohnCornyn
The Colorado court’s decision will confirm for millions of Trump voters that his opponents will do everything possible to deny them their democratic choice. https://wsj.com/articles/colorado-supreme-court-donald-trump-ballot-2024-fourteenth-amendment-083b1271?st=bcsbi9rxd5kpepm via
@WSJopinion
And Congress, with over a 2/3rd vote in each chamber, nullified Section 3 in 1898.
It doesn’t exist anymore. Read on:
Judges Have No Legal Authority to Bar Trump From
2024 Ballots
Hans von Spakovsky / November 02, 2023
As state court proceedings get under way in Colorado, Michigan and Minnesota in lawsuits aimed at
barring Donald Trump from appearing as a presidential candidate on the ballot in next yearʼs
presidential election, the judges in those cases should understand that the text, history, and
application of the 14th Amendment make it clear that they have no legal authority to take any such
action.
Due to Trumpʼs supposed actions on Jan. 6, 2021, the challengers are trying to argue that Section 3 of
the 14th Amendment, the disqualification clause, prevents him from being president even if he is
elected, so he should be removed from the ballot by state election o{icials.
Section 3 provides that:
No person shall be a Senator or Representative in Congress, or elector for President and Vice
President, or hold any o{ice, civil or military, under the United States … who, having previously
taken an oath, as a member of Congress, or as an o{icer of the United States … to support the
Constitution of the United States, shall have engaged in insurrection or rebellion against the
same … . But Congress may, by a vote of two-thirds of each House, remove such disability.
Because Trump allegedly engaged in an insurrection, according to the challengers, he is disqualified by
Section 3.
There are three major legal problems with that claim, however.
Trump Didn’t Hold An Applicable Ozce
First of all, Section 3 only applies to individuals who were previously a “member of Congress,” an
“o{icer of the United States,” or a state o{icial. Trump has never been any of those.
He has never held state o{ice or been a U.S. senator or representative, and the U.S. Supreme Court
held in 1888 in U.S. v. Mouat that “o{icers” are only those individuals who are appointed to positionswithin the federal government.
Individuals who are elected—such as the president and vice president—are not o{icers within the
meaning of Section 3.
The Supreme Court reiterated that view in 2010 in Free Enterprise Fund v. Public Company Accounting
Oversight Board, in which Chief Justice John Roberts concluded “the people do not vote for ʻO{icers of
the United States.ʼ” They are appointed under Article II of the Constitution.
It must also be noted that while Section 3 applies to an “elector for President or Vice President,” it does
not specify that it applies to the president or vice president. This supports the argument that the
dra|ers did not mean for Section 3 to apply to the president and vice president, which, again, is not
surprising, since they are not “O{icers of the United States.”
No Conviction for ‘Insurrection or Rebellion’
Second, no federal court has convicted Trump of engaging in “insurrection or rebellion” in violation of
18 U.S.C. §2383, which makes it a crime to engage in “any rebellion or insurrection against the
authority of the United States.”
More importantly, in the second impeachment resolution of Trump on Jan. 11, 2021, he was charged
by the House of Representatives in Article I with “Incitement of Insurrection.” Yet, he was acquitted by
the Senate.
Given our federal constitutional system, state and federal courts should not gainsay the findings of
Congress on this issue. The risk of inconsistent rulings from state and county election o{icials, as well
as from the many di{erent courts hearing these challenges, could cause electoral chaos.
Further, Congress has never passed a federal statute providing any type of enforcement mechanism in
the courts for Section 3. While some argue that this provision is self-executing and no legislation is
required, legal scholars such as Josh Blackman and Sett Tillman point to an 1869 decision of a federal
circuit court presided over by U.S. Supreme Court Chief Justice Salmon P. Chase, which held that
“legislation by Congress is necessary to give e{ect to” Section 3.
Under that holding, in the absence of such legislation, states do not have the ability to throw accused
insurrectionists o{ a federal ballot, whether they are running for Congress or the presidency.
Section 3 No Longer Extant?
Third, there is an argument that can be made—and which was already adopted by one federal court—
that Section 3 doesnʼt even exist anymore as a constitutional matter.Keep in mind that the 14th Amendment was ratified in 1868 a|er the end of the Civil War. It was aimed
at the former members of the Confederate government and military who had previously been in
Congress or held executive posts.
All of the challengers filing lawsuits to try to remove Trump from their state ballots are ignoring the
final sentence in Section 3, which is a unique provision found in no other amendment to the
Constitution. It allows Congress to remove the disqualification clause “by a vote of two-thirds of each
House.”
Congress voted to remove the disqualification twice. The Amnesty Act of 1872 stated that the “political
disabilities” imposed by Section 3 “are hereby removed from all persons whomsoever” except for
members of the 36th and 37th Congresses and certain other military and foreign officials.
Note that there is no time limit in this language.
Congress even got rid of these remaining exceptions in the Amnesty Act of 1898, which stated that “the
disability imposed by section 3 of the Fourteenth Amendment to the Constitution of the United States
heretofore incurred is hereby removed.”
There was no language preserving any of the disqualifications for future cases.
In short, these anti-Trump ballot challenges are lawfare at its worst, trying to use the law and the
courts as a political weapon. All of these lawsuits should be dismissed.
But if any of these state courts rule against Trump, they should immediately stay their decisions and
allow Trump to remain on the ballot.
If they donʼt, and their decisions are later overturned by an appellate court a|er the election when
votes have already been cast, there will be no viable remedy.
On the other hand, if their rulings are upheld, then even if Trump won the election, he could still be
barred from actually serving, although I seriously doubt that the ultimate decider on this issue, the
U.S. Supreme Court, would uphold any such ruling, given the weakness of the challengersʼ claims.
If it was a real insurrection, Pelosi et al would have faced a makeshift gibbet...
My opinion is that they still should and that we missed an opportunity to enact a solid fix for our government.
Sadly, 9-0 is a healthy longshot, not as long as 8-1-but unf it’s out there.
Spot on. I would add that since there was never an investigation done on the abundant instances of voter fraud, especially in the swing states, Democrats fear that Trump, when elected, would demand a formal investigation to set the record straight and expose all of those who perpetrated the fraud. And by doing so our election procedures would also be exposed and reforms made.
“The Roberts court utterly failed the nation in December 2020. No one should count on them doing the right thing this time either.”
They failed, quite deliberately so, on Obamacare, also. I wouldn’t expect them, under the same SOS “leadership”... to do what’s right and good for America and for Americans this time, either.
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