The Colorado Supreme Court’s ruling that former President Donald J. Trump cannot be president again because he was involved in an insurrection has cast a spotlight on the basis of the decision: the 14th Amendment of the Constitution, which includes a disqualifying clause people who violated their oaths rights from holding government positions in the future.
Mr. Trump has vowed to appeal to the Supreme Court. He is dominated by an absolute majority of six judges who emerged from the conservative legal movement, whose methods of interpreting values are known as textualism and originalism. Under these precepts, judges should interpret the Constitution based on its text and its publicly understood meaning once adopted, with respect to factors such as evolving social values, political consequences, or an assessment of the provision’s intended purpose.
Some of the main questions raised by the ruling – such as whether an act of Congress would be needed to take effect as well as the power of a state court to decide whether a federal nominee is qualified – do not concern the interpretation of the text of the clause. But this is where textualism and originality come into play.
What is the disqualification clause?
The 14th Amendment was adopted in 1868 as part of the post-Civil War Reconstruction era. To address the problem of former Confederates holding positions of government power, his third section disqualifies from office former government officials who have betrayed their oaths.
Specifically, the clause states that individuals are ineligible to hold any federal or state office if they have taken an oath to uphold the Constitution in one of various government roles, including that of “officer of the United States,” and then become involved in a ‘insurrection or rebellion. against the United States or aided its enemies. The clause also says that a qualified majority vote in Congress could waive that penalty.
Second a report from the Congressional Research Service, a criminal conviction was not deemed necessary: Federal prosecutors brought civil actions against other officials who were former Confederates, and Congress refused to seat some members under the clause. Congress passed amnesty laws in 1872 and 1898, lifting sanctions on former Confederates.
Is the president an “officer of the United States”?
Trump is unique among American presidents: he has never held any other public office and as president he has only taken the oath of office on the Constitution. This raises the question of whether the disqualification clause covers the oath taken. While in ordinary terms a president is clearly an “officer of the United States,” there is controversy over whether this excludes presidents as a constitutional term of the art.
In 2021, two conservative legal scholars, Josh Blackmann of South Texas College of Law Houston and Seth Barrett Tillmann of the National University of Ireland, Maynooth, published a law review article on the clause which holds, on textualist and originalist grounds, that a president does not count as an officer of the United States. Among other issues, they focused on language related to “officers” in the original Constitution ratified in 1788, including language about oaths that can be read as a distinction between appointed officials of the executive branch and presidents, who are elected.
Last summer, two other conservative jurists… William Baude of the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas – published a law review article who invoked a similar methodology but concluded that Mr. Trump is unfit for the presidency. “Substantially all evidence regarding the original textual meaning” of the clause pointed in that direction, the scholars argued. Among other things, they wrote that phrases like “United States official” should be read “sensually, naturally and contextualized, without artifice” which would make it a “‘secret code’ loaded with hidden meanings.”
Earlier in the Colorado case, a lower court judge ruled that the clause does not cover presidents and therefore rejected Trump’s removal from the ballot. In finding otherwise, the Colorado Supreme Court also cited evidence of people in the immediate post-Civil War period discussing the president as a government official, focusing on the ordinary use of the term rather than treating it as a term of art.
Were the events of January 6th an insurrection?
The question of whether “insurrection” adequately describes the events of January 6 is another topic of debate, although it was not a major disagreement among the Colorado judges.
Some Trump critics use the word to describe how a pro-Trump mob invaded the Capitol in an attempt to stop Congress from certifying President Biden’s Electoral College victory. Trump’s allies – as well as some people who would otherwise be his critics – argue that “insurrection” is hyperbole.
The Constitution does not define the word. Although it was written after the South’s armed rebellion against the Union, its text does not limit its scope to participation in events of comparable magnitude. TO federal statute presidents to use troops to quell insurrections speaks of “illegal obstructions, combinations, or assemblages, or rebellion against the authority of the United States” that “make it impracticable to enforce the laws of the United States in any state through the ordinary course of judicial proceedings .”
The four-justice majority of the Colorado Supreme Court found that the events were an insurrection and that the issue was not the basis of any of the three dissents. The lower court who dismissed the lawsuit on the grounds that the president is not an “officer of the United States” nevertheless found that the events of January 6 constituted an insurrection.
Is Trump “committed” to an insurrection?
Even assuming that the events of January 6 were an insurrection, the question remains whether the actions of Trump – who did not storm Congress – amounted to engaging in an insurrection against the government or giving aid and comfort to his enemies.
The House panel investigating Trump’s attempt to subvert the 2020 election concluded that the events met the standards of an insurrection and asked the Justice Department to consider charging him under the law this makes it a crime to incite, assist, or give “aid or comfort” to an insurrection.
The commission cited his rallying of supporters in Washington on Jan. 6, the fiery speech he delivered before them as they turned into a mob, the way he refused for hours to take action to recall the rioters despite being implored by aides to do so, and a provocative tweet he sent about Mr. Pence during the violence.
However, the special prosecutor, Jack Smith, did not include incitement of insurrection in the charges brought against Mr. Trump, and to date Mr. Trump has not been convicted of any crime in connection with his attempts to remain in office for a second. ended despite the defeat in the elections. Trump argued that all of his actions were protected by the Constitution, including the First Amendment.
What else have the courts said about the clause and January 6?
There has never before been a presidential candidate accused in court of being an insurrectionist who violated his oath of office, so there is no solid Supreme Court precedent on the matter. But other politicians have faced similar legal challenges in relation to the events of January 6, 2021.
In early 2022, opponents of Representative Madison Cawthorn, a Trump-aligned North Carolina Republican, filed a lawsuit to bar him from running for reelection based on what they described as his role in encouraging what is became the January 6th uprising. A Federal District Court judge threw out the case, ruling that the clause no longer had force after the Amnesty Act of 1872. But an appeals court annulled that sentence, holding that the amnesty law was only retroactive and that the ban continued to apply generally. Mr. Cawthorn lost the primary election, so the case was adjudicated without resolving other issues.
Similarly, opponents of Rep. Marjorie Taylor Greene, a Trump-aligned Georgia Republican, have sought to block her from running for re-election in 2022. A state judge he rejected that challengefinding no convincing evidence that she “took any action – direct physical effort, contribution of personal or capital services, issuance of directives or marching orders, intelligence transmissions, or even statements of encouragement – in support” of what she it turned into the January murder. 6 riot after being sworn in for the first time on January 3, 2021.
And in September 2022, a New Mexico state judge ordered that Couy Griffin, a New Mexico Otero County commissioner, be removed from office under the stipulation. Mr. Griffin had been convicted of trespassing for breaching the Capitol as part of the mob. The judge ruled that the events surrounding the January 6 riot counted as an insurrection and that Mr. Griffin’s role in the matter made him “constitutionally disqualified from service.”