December 28, 2023

Left-leaning legal scholars have been climbing over each other to identify the Ring of Power that will allow them to prevent Donald Trump from being elected in 2024. Their latest pennant-waving exercise comes from the Colorado Supreme Court. Four justices who graduated from Poison Ivy League law schools (Harvard, Yale, Penn, and Virginia) declared, over the objections of three justices who graduated from the University of Colorado, Denver law school, that:

  • Section 3 of the 14th Amendment is “self-enforcing,
  • Donald Trump committed insurrection, and
  • The president is an officer under the United States who is subject to Section 3.

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Thus, Donald Trump is disqualified from election as president.

Twelve hundred words doesn’t leave a lot of space to explain why they are dead wrong and the Supreme Court of the U.S. should drop kick that decision through the goal-posts of life. But, as one who spent a career translating doctor-speak into English for patients, I’ll give it a try. Major sources for those who speak lawyer fluently are found here. Numerous opposing views include this. But those opposing views neglect to fully examine the text and history of the Amendment fully as the first source does. They misrepresent certain parts of the argument and ignore others. And, without further ado, I’ll try to give the short version that SCOTUS will almost certainly adopt.

The Colorado Court claimed that the Amendment was “self-enforcing.” This means that they completely ignored the plain language of the Amendment. Section 5 says, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” One of the key principles of legal interpretation is, expressio unius est exclusio alterius (the expression of one thing means the exclusion of others). In short, as Justice Antonin Scalia noted in his book A Matter of Interpretation (2018), this is the commonsense way to read the law. Section 5 says Congress has to enforce Section 3. It is not self-enforcing.

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Scalia is in good company here. Not one member of the Congress that wrote the 14th Amendment is on record to suggest that it was self-enforcing. They all agreed with the need for Congress to flesh things out by statute. Strike one.

The second issue is insurrection. Logically, Donald Trump, the sitting president, could not commit insurrection against himself. An effort to overthrow the government would need to be actions taken after Joe Biden was installed. (We can skip the toilet analogies.) But let’s ignore such obvious logic and consider what the writers of the 14th Amendment thought to be an insurrection. Almost all of the colloquy between the drafters dealt with “the late insurrection.” This is an unmistakable reference to the Civil War, specifically the Confederate side. In other words, to them “insurrection” was armed rebellion. Given that not a single person was arrested with a weapon during the J6 event, it’s pretty hard to logically construe it as an insurrection. And at this point, we must go one step further. 18 USC 2383 is the federal statute criminalizing insurrection. It is not a state crime. Since Congress reserved prosecution for insurrection to the federal government, no state court is competent to address the question. The Colorado Supreme Court has no legal right to opine on the issue. Strike two.

The last question is perhaps the only one that allows any debate whatever. Section 3 bans an insurrectionist from holding an office “under the United States.” It appears that the Left has, as the common objection states, “assumed facts not in evidence.” We begin in Article I, Section 4.

If the president is impeached and convicted (Article II, Section 4), the maximum penalty that the Senate can impose is to disqualify him from holding any “Office of honor, Trust, or Profit under the United States.” While this might seem to eliminate any possibility of him being re-elected, it does not define the term “under the United States.” Closer examination reveals that “the President, Vice President and all civil Officers of the U.S.” can be removed by impeachment. Grammatically, the president and VP aren’t civil officers of the U.S. This is emphasized in the exclusionary clause (Article I, Section 6), which blocks any Senator or Congressman from holding “any Office under the Authority of the United States,” and vice versa. They are either part of Congress or they hold offices “Under the U.S.” Not both. All further uses in the Constitution are semantically “understood terms.” That is, the writers knew what they meant and expected their readers to understand them as well.

In 1799, as Tennessee Sen. William Blount was to be impeached, his defense relied on the fact that “it is clear that a Senator is not an officer under the Government. The Government consists of the President, the Senate, and House of Representatives, and they who constitute the Government cannot be said to be under it.” The whole Senate agreed, declaring that they had no jurisdiction because the two houses are not “under the U.S.”

Joseph Story’s Commentaries on the Constitution explores the term, finding that “civil officers of the United States” were those who “derived their appointment from and under the national government.” As this was the most influential authority as the 14th Amendment was being considered, we find with the universal agreement of the authors, “The Government consists of the President, the Senate, and House of Representatives, and they who constitute the Government cannot be said to be under it.” Strike three.