Please consider the ominous implications of the decision of the Colorado Supreme Court to block former President Donald Trump from the primary ballot. The court has dug through the U.S. Constitution to find something, anything, to stop him. They landed on Section 3 of the 14th Amendment, the so-called disqualification clause.
Despite having studied Constitutional law and having been concerned with the Bill of Rights for years, I had never strongly considered this paragraph and the implications of a broad and contemporary reading.
In fact, I’m pretty sure I’ve long glanced over it as a relic of a particular time, one pertaining to defeated Confederate officers, who were barred from office. In that case, invoking it for any reason now seems wildly anachronistic, even to the point of desperation.
The paragraph reads as follows:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
The historical import here is very obvious. The Confederate States “engaged in insurrection or rebellion.” This clause was designed to cement the Union victory in the Civil War. It has never before been invoked to block anyone from running for president. Indeed, the text says nothing about the president.
This is why you haven’t heard of it before. And yet there it sits, ready to be cited by absolute fanatics willing to do anything to prevent President Trump from running for president, much less taking office. Now we see why for two years, we’ve heard such a unity of voices calling Jan. 6, 2021, an “insurrection.”
It was all designed to warm us up for some state court somewhere to disqualify President Trump from the ballot. This has been the plan all along! That now seems obvious.
The whole thing is preposterous. We know that the “hearings” by the Democrat-controlled House were elaborate theater, and now that uncensored tapes are out, the reality of that day is far more complex. It’s certainly true that President Trump has loudly complained for years that the election was stolen, which is certainly his right to believe. He obstructed counting votes, maybe, but it’s a wild stretch to say that this amounts to insurrection and rebellion.
Here’s the problem. If President Trump is guilty under Section 3 and must be blocked from participation in public life, a vast amount of normal citizen activism can also be included as such activity. Have you done or said anything to have “given aid or comfort” to anything or anyone who favors President Trump? Maybe the courts can cite the paragraph to delete your participation, stop you from running for office, and maybe even more.
But there’s even more to this story and danger. It’s a possible blueprint for ending democracy completely and imposing one-party rule forever. This is a path toward ending real democracy forever.
A publisher in Milwaukee, Berger was the first member of the Socialist Party to be elected to the U.S. House of Representatives. He served one term but later ran afoul of the Wilson administration and was among many convicted under the Espionage Act, solely because of his journalism against the war.
While under indictment, he ran again for Congress and won! Sure enough, Congress voted to not seat him, citing Section 3 of the 14th Amendment—the exact same fate now befalling President Trump!
In 1919, he ran again to replace himself and won again. Congress refused again to seat him. This whole back and forth was ended by the Supreme Court in 1922, when his Espionage Act conviction was overturned by the Supreme Court.
Once the political panic died down and people came to their senses, Berger served three more terms in Congress and had a distinguished career.
Do you see what’s happening here? This Section 3 bit has only been invoked twice since 1872 (the other time was recently in New Mexico in light of Jan. 6) and one of those times was to punish a political dissident during the Red Scare, based entirely on moral panic, political freakout, arbitrary and capricious restrictions on political liberty, and in a way that was deeply harmful to democracy.
In other words, the Colorado Supreme Court is here playing with a very dangerous fire. They’re slogging through deep juridical history to find any possible way—however juridically implausible—to flog President Trump and block a possible presidency. This is an action more typical in a banana republic or some weird foreign despotism that has no respect for the people’s rights.
It'll surely be reversed by the Supreme Court (we can hope) but consider the implications of this. We now have real proof that some people in power are willing to do anything to block a major portion of the electorate from having a vote or a voice in American public life.
An expansive and thoroughly bogus reading of Section 3 could disenfranchise half the country. That’s the implication. There’s a reason we’re suddenly talking about the Civil War again. This kind of jurisprudence is exactly the way to incite another. It’s ominous.
