Editor’s note: This represents the opinion of The Denver Post editorial board, which is separate from the paper’s news operation.
With great anxiety about the future of America, we will watch three justices decide whether the man who gave them lifetime appointments to the U.S. Supreme Court is still eligible to be elected president despite organizing, fomenting and then executing a violent uprising against Congress.
Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh hold the future of our storied democracy in their hands as they consider a robust 213-page ruling from the Colorado Supreme Court that found former President Donald Trump engaged in insurrection on Jan. 6, 2021. Because of their appointment by Trump, these three justices are uniquely positioned to enforce the Constitution and avoid a crisis that could unravel the foundations of America’s republic.
The case Anderson vs. Griswold is clear; Trump’s actions have disqualified him from holding the office of president.
Four members of Colorado’s Supreme Court spelled out exactly how and why Trump cannot appear on Colorado’s primary ballot in 2024 in a ruling that slams the door on many of the exit ramps the U.S. Supreme Court could take to avoid actually considering the consequences of Trump’s actions.
Insurrection has a common, widely-understood definition, according to the ruling, the dictionary and legal precedent, of “a public use of force or threat of force by a group of people to hinder or prevent execution of the Constitution of the United States.”
As he desperately clung to power from the White House despite having lost a free and fair election on Nov. 3, 2020, Trump worked for weeks to foment unrest among his supporters based on an elaborate election fraud lie. He then organized a rally near the U.S. Capitol on the very day Congress was set to seat President Joe Biden by counting the Electoral College ballots in a joint session of the House and Senate.
Trump worked behind the scenes to pressure members of Congress and the vice president to only count the ballots from states that would ensure his victory, but he also urged the crowd at his rally to march to the Capitol and “fight like hell.” The crowd did just that, breaking through security barriers, assaulting Capitol police, entering the U.S. Capitol and forcing Congress to shut down its official proceedings as the mob entered the chambers where members had been about to finish their vote to officially make Biden president.
The language of Section 3 of the 14th Amendment of the U.S. Constitution could not be clearer. Anyone who “engages in an insurrection” while holding public office, is disqualified from holding office in the future. The amendment’s precise language does not require there to be a criminal conviction of insurrection – the equivalent of which would be charges of treason, sedition or subversive activities. Rather the amendment merely requires a determination that someone engaged in insurrection.
The amendment became part of our Constitution following the insurrection and rebellion of political leaders in the South that eventually led to the Civil War. Confederate President Jefferson Davis was never tried for a crime following the Civil War, but the 14th Amendment’s plain language makes it clear the people and Congress never wanted Davis, a former senator and congress member, and those who had followed him to war despite having sworn an oath to uphold the Constitution, holding federal office again. Unless, as spelled out in Section 3, Congress overwhelmingly voted to forgive someone of their insurrection or rebellion. Another critical point is that the Amendment doesn’t say unless someone is acquitted in a court of law. The intent is clear that this determination is separate from criminal proceedings.
The reality is that following the Civil War, very few people faced criminal prosecution for their actions. The decision not to prosecute was a concerted effort to reunite America following the war. Davis was the only Confederate leader who remained stripped of his citizenship following the war.
Some hold now, that the U.S. Supreme Court, if asked on appeal, should take a similar conciliatory approach to keeping Trump on the ballot. If Trump is denied another bid for the presidency his supporters have already proven themselves capable of violence in the former president’s name. Shouldn’t we allow democracy to run its course and trust that the American people will not put a man in office who already once attempted to undermine our republic?
No. Trump has already once convinced millions of people that the 2020 election was fraudulent and then inspired thousands of his followers to attack the U.S. Capitol. When Trump loses the 2024 election, it will be no different. His lies will again permeate among his followers inspiring extremism and violence. Worse, he could win and then, wielding the power of the White House, become the threat from within that the drafters of the 14th Amendment were trying to prevent when they wrote Section 3. Congress agreed that the threat was real by passing the Civil Rights Amendment in 1866 and it became part of the Constitution in 1868 when 28 states ratified the amendment.
The U.S. Supreme Court, if asked on appeal, must protect our republic. The court is charged with upholding and enforcing the Constitution, including Section 3 of Amendment 14. And in doing just that the court will defend our democratic process by which elections determine who leads this country. Trump is not only unqualified to hold office according to the Constitution, but his actions have proven he is a real threat to the United States of America.
Gorsuch, Barrett and Kavanaugh – given their unique positions as those appointed by Trump — can save America by uniting behind Colorado’s Supreme Court ruling.
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