When the Supreme Court reviews Colorado’s decision to exclude President Trump from the state’s ballot, it will be delving into wholly uncharted territory.
The Supreme Court has never interpreted the constitutional provision prohibiting former office-holding insurrectionists from holding future office. Several leading constitutional scholars argue that, in part for this reason, the constitutional ban cannot be enforced without prior congressional enactment of guiding directives. The high court may consider this option to provide a welcome off-ramp.
But the position that the constitutional ban on insurrectionist office holders is not activated absent congressional legislation is not only incorrect, it also threatens the very foundations of America’s constitutional system.
They will rule he wasn’t given due process (not convicted of insurrection) and therefore can be on the ballot. It is the most straightforward path.
But that’s clearly not how the 14th Amendment is worded, none of the officers or politicians in the Confederacy were convicted of Insurrection & claiming that the 14th Amendment wasn’t supposed to cover that group would be some serious mental acrobatics.
I suspect that the SCOTUS will say the 14th Amendment is unclear and then fall back on the concept of due process. I don’t like it, but I do think that is what will happen.
And that will lay bare their partisanship. The 14th Amendment contains some of the plainest language in the entire Constitution.
Kinda… It is clear that an insurrectionist can’t hold office. But what defines an insurrectionist? Is it a matter of inflammatory speech? Or is it a conviction of insurrection as a crime? Somewhere in the middle? That is where I think they will be hung up - and err on the side of conviction or due process being required to label someone an insurrectionist.
Again, I want to say I am not in agreement with this likely approach. I just think this is how it will play out.