Colorado and Maine threaten the rule of law, not Trump

First Colorado and now Maine have decided that Donald Trump is ineligible as a candidate for president because he engaged in “insurrection.” Section 3 of the 14th Amendment does indeed bar some persons from federal office if they have been insurrectionists. But it is neither clear whether that section applies to the president nor clear whether a criminal conviction for insurrection under federal law must precede a candidate’s disqualification from office.

Even so, the Colorado state Supreme Court last month ruled that Trump is disqualified and, in a 34-page, closely reasoned ruling relying in large part on Colorado’s opinion and on the testimony and submissions of two law professors, the Maine secretary of state (who is not a lawyer) last week barred Trump from that state’s Republican primary ballot.

When the Supreme Court inevitably corrects Colorado and Maine’s misguided decisions — as it must — Trump’s critics will attack it as arbitrary and undemocratic.

That official, Shenna Bellows, is the only person to have signed her opinion disqualifying Trump, but it strains credulity to believe she is the decision’s true author. It would be interesting to learn who drafted the document. In its creative interpretation of the Constitution and law, it is a fine example of some of the fanciful analysis that now passes for legal interpretation in this country.

Bellows’ opinion suspends its own effect until Maine’s Superior Court renders an opinion on appeal. And, of course, the U.S. Supreme Court will eventually need to decide the question of whether the 14th Amendment applies to Trump’s candidacy. The Colorado Court itself seems to have understood this as well since it also suspended its decision until the Supreme Court decides whether to take the case. Accordingly, Colorado’s secretary of state has permitted Trump’s name to remain on the primary ballot until the high court decides.

While a few within the legal academy dissent, most analysts believe the Supreme Court will overrule the actions of the Colorado Supreme Court and Maine’s secretary of state, either because the provision of the 14th Amendment does not apply to the president or because no court has ever convicted Trump of insurrection. The astonishing and alarming fact remains that four judges on one state Supreme Court and one state secretary of state believe they have the power to misconstrue the Constitution so egregiously.

One could dismiss all of this as Trump Derangement Syndrome, which has led so many to impute dangerous and unprecedented malevolent motives to the former president. But we also see an exceptionally cavalier attitude toward the law and the Constitution itself.

This attitude flows from a profound change in our jurisprudence that occurred among legal thinkers in the late 19th and early 20th centuries who pioneered a movement called “legal realism.” The “realists” held that legal rules were malleable in the hands of judges and that, in the words of the most important thinker of this jurisprudential school Oliver Wendell Holmes Jr., “the felt necessities of the times” were more important in shaping the law than the rules in the law books.

To be fair to Holmes, he was discussing the common law — the state court decisions regarding private law — but his attitude was eventually manifested by many deciding constitutional law questions, most notably the justices of the U.S. Supreme Court during the middle and late 20th century. The “legal realist” view eventually morphed in the loftiest reaches of our most elite law schools to something called “critical legal studies,” the key insight of which was that all law — constitutional or private — was essentially politics and that the holders of power in society inevitably rewrote the legal rules to serve their own interests.

While “realist” jurisprudence was essentially a 20th-century phenomenon in our courts and law schools, the view that law (or justice) is just a tool of the powerful is an ancient notion that goes back at least as far as Plato’s character Thrasymachus in his “Republic.”

The core American idea that ours is a government of laws, not men, rejects this Thrasymachian model. But when prominent state officials, in effect, pervert the Constitution and convict former presidents of crimes without the due process protections of criminal trials, it becomes more difficult to believe in the rule of law. Even more troubling, when the Supreme Court inevitably corrects Colorado and Maine’s misguided decisions — as it must — Trump’s critics will attack it as arbitrary and undemocratic.

One can’t help but speculate that the Colorado and Maine decisions might be calculated to undermine the authority of the Supreme Court itself. If the rule of law is to survive, it will be necessary for the court and its defenders to return us to an understanding that our law and Constitution have a clear historical meaning and are based on sound and enduring timeless principles of morality and justice. That work already has begun in the legal academy, and we will soon know if a courageous majority of the Supreme Court is up to the bold task.