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On December 19, 2023, The Colorado Supreme Court has ruled that "President Trump is disqualified from holding the office of President under Section Three [of the 14th amendment]".

The legal question and this ruling have been the subject of intense debate. Most likely, the Supreme Court will be asked to make a final decision.

Apart from a host of legal and factual detail questions, there is one very fundamental issue here. The decision who becomes President is the supreme privilege and responsibility of the electorate, the American people. Is the Colorado court ruling (and a potential Supreme Court ruling) which takes Trump off the ballot judicial overreach, depriving the people of the core of their democratic power?

Should, and can, the courts decide at all who can become President?

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Is the Colorado court ruling (and a potential Supreme Court ruling) which takes Trump off the ballot judicial overreach, depriving the people of the core of their democratic power?

As in any dispute over constitutional rights, no right is absolute. Rights may be limited due to conflicts with other constitutional provisions. There are several constitutional provisions that limit who may stand for president. It is for example limited by age and nation of birth. What if "the people" wanted to choose a 30 year old born in Canada as the president? The constitution prevents them from having that choice. I don't see that the limitation on electing insurrectionists is any different. If "the people" regard this as unjust they can amend the constitution to repeal that part of the 14th amendment.

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  • I think this is a very good, perhaps the central argument. That section 3 of the 14th amendment is not as widely known and familiar as Art. II section 1 doesn't make it special. Dec 20, 2023 at 19:46
  • Being born in Canada is not disqualifying.
    – phoog
    Dec 20, 2023 at 23:20
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    @phoog :"No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States." Article 2 Section 5. There is an edge case in children born abroad with at least one parent who is a US citizens are considered natural born citizens (John McCain for example), so I was being sloppy by not further qualifying the restriction. Dec 20, 2023 at 23:42
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    There has been some legal dispute about this edge case, but it has never got any traction. At the very least, no-one wanted to disqualify children of American military personnel born overseas. Dec 20, 2023 at 23:46
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The argument that the voters should decide, and not the courts, has an immediate and fundamental appeal, not only to conservatives. It springs from both the democratic core of the people being the sovereign and the separation of powers, which prevents judicial overreach. I can see why a judge would shy away from taking this matter out of the hands of the people.

But at second glance, the amendment is very interesting: If it could be taken for granted that the voters would never elect an insurrectionist, it would be redundant and superfluous. The mere existence of this law, therefore, shows its design and purpose: To provide a backstop specifically against the will of an electorate which is indifferent or even hostile towards the constitution.

That a ruling might contradict and invalidate the will of the voters is not unfortunate and lamentable, and certainly is not a reason to refuse its application — it is the very purpose that this law exists.

The essence and mission of the amendment is to protect the constitution in times of disunion. Its application is not only acceptable in this case — it is mandatory.

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  • This is generally a very good answer, but I would quibble with the "specifically against the will of a misled electorate". Considering the context in which the amendment was written I would say it is specifically against the will of a electorate that is fully informed and supportive of the aims of the insurrection and are willing to continue that struggle within the legislature.
    – User65535
    Dec 20, 2023 at 18:29
  • @User65535 You have a point. The word makes the assumption that the constitution is a Good Thing. Dec 20, 2023 at 18:36
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You ask:

Is the Colorado court ruling (and a potential Supreme Court ruling) which takes Trump off the ballot judicial overreach, depriving the people of the core of their democratic power?

The characterization of a judicial act as "overreach" or a "deprivation" of democratic power is subjective and depends in part on what one views the status quo to have been.

Part of the status quo is that various categories of people are ineligible for the presidency, and the populace simply does not have the democratic power to vote them into office. For example, US citizens do not have the democratic power to elect a person to the presidency who is younger than 35 years old.

If a court were to rule that a state attorney general were required to keep such an ineligible candidate off of the ballot, this might be considered by some to be a "deprivation" of democratic power. On the other hand, it was not a power people ever held in the first place.

A similar analysis could be applied to any judgment in relation to other reasons for ineligibility: citizenship, having been elected president twice prior, disqualification after conviction in an impeachment trial, or in this case, disqualification due to Section 3 of the 14th Amendment.

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I agree with Peter's answer.

I will also add that the Supreme Court's ruling, if they choose to take up the issue, will likely hinge on the definition of "insurrection or rebellion" against the Constitution of the United States, as well as "the enemies thereof". They would also need to consider the definitions of "aid or comfort".

They will also likely nitpick over whether the President counts as an "officer of the United States", especially since several of Trump's allies in these appeals have been making the argument that the office of the President of the United States doesn't technically count for the purposes of this amendment.

Since Trump has not yet been convicted of any crime related to the Jan 6 riot at the Capitol, they will likely consider whether people who have been convicted of charges such as "seditious conspiracy" and "obstruction of an official proceeding" qualify as "[engaging] in insurrection or rebellion against the [Constitution of the United States]".

If they do make that finding, they will likely weigh whether Trump's words and actions before and during the attack on the Capitol count as giving "aid or comfort to the enemies [of the Constitution]". They will likely rule that he didn't provide "aid", as he was not physically present and didn't send helpful information to any participant, nor did he send military resources to help the rioters; but they would be harder-pressed to find that re-echoing the accusations against Pence while rioters were actively chanting "hang Mike Pence" and later telling them to "go home in peace" and "we love you" wouldn't count as giving "comfort".

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    Interesting questions emerge from the "comforting" thing. If Trump wins the election and then, as President, pardons insurrectionists as promised: That would certainly qualify as "giving comfort" to -- proven! -- insurrectionists. If I read the amendment right, such an act would disqualify even a sitting President. The amendment is not only about elections. Dec 20, 2023 at 17:17
  • @Peter-ReinstateMonica That's a good point! I hadn't even thought about that aspect of it. Dec 20, 2023 at 17:23
  • @Peter-ReinstateMonica not a chance. An official act such as a grant of clemency for someone convicted of insurrection doesn't count as aid or comfort any more than would serving as a defence attorney for someone charged with insurrection.
    – phoog
    Dec 21, 2023 at 0:22
  • @phoog That appears an unfounded opinion to me ;-). No, seriously. Pardons are interesting; for example, accepting them is a confession of guilt. Why could handing them out not have legal repercussions as well? Dec 21, 2023 at 0:30
  • @phoog You may be interested in this article: "Either the pardon would be a continuation of the crime, and thus the pardon itself would be an invalid attempt to pardon actions that were ongoing, or the pardon would be a new conspiracy and thus a new crime—in either case, Trump and his accomplice or accomplices would still be subject to legal liability for conspiracy." Of course, that is only an opinion. Dec 21, 2023 at 0:37

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