Colorado’s brief disturbance in the force of the rule of law

Quite a few candidates vie for the distinction of being the worst opinion ever issued by a supreme court.

Dred Scott v. Sandford, the infamous 1857 holding by the U.S. Supreme Court that Congress did not have the power to bar slavery in the territories, comes to mind immediately. So does Lochner v. New York, the 1905 decision in which the same court determined that no state legislature could mandate maximum hours or minimum wages for workers. And then, of course, who could forget Roe v. Wade, the recently overruled 1973 decision in which the high court found an implied constitutional right to end a pregnancy before fetal viability?

A decision from the Colorado Supreme Court this week — Anderson v. Griswold — now joins this dubious group.

Four of seven justices — all appointed by Democrats — ruled Tuesday that Donald Trump may not appear on the state’s Republican presidential primary ballot because he committed “insurrection” against the United States on January 6, 2021. The Colorado court claimed its decision was dictated by Section 3 of the 14th Amendment to the United States Constitution, which provides, in pertinent part, that:

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.

One has only to read Section 3 to note that while it specifically lists “Senators,” “Representatives,” and “electors” of the “President and Vice President,” it does not specifically mention presidents and vice presidents as persons covered by the provision.

The great legal maxim expressio unius est exclusio alterius (“to name one is to exclude the others”) would seem to apply to settle the question.

Furthermore, an 1869 opinion by one chief justice of the United States makes this precise point in light of the fact that in an earlier draft of the amendment, the office of the president was specifically included, but in the final form of the section, “President” does not appear.

Nevertheless, Colorado’s four-judge majority concluded that the language of the section referring to “any office … under the United States” includes within its terms the president. This is a stretch.

Equally problematic is the court’s conclusion that Trump participated in an “insurrection” when he “incited” his supporters prior to the disturbance at the Capitol on January 6. That declaration is probably a violation of Trump’s right to due process, since no court has found him guilty of an “insurrection,” which is now defined by federal statute and with which he has never been charged, much less tried and convicted in a court of law.

It is true that a congressional committee, consisting of a 7-2 majority of Democrats and allowing very little freedom to mount a defense on the part of the president, claimed that the events of January 6 amounted to an “insurrection.” But given the failure of that body to extend full constitutionally protected rights to Trump to mount a proper defense, reliance on congressional findings by the Colorado court seems highly questionable.

It is hard to believe that the Colorado Supreme Court’s majority didn’t know that what it was doing was suspect, since it actually suspended the effectiveness of its ruling to give Trump time to appeal to the U.S. Supreme Court and expressly provided that if he does appeal to that court, his removal from the ballot is barred unless the Supreme Court orders that it is permissible.

Very few, if any, constitutional law professors have gone on record defending the Colorado Supreme Court. Quite the opposite. Harvard’s Alan Dershowitz called the decision “absurd” and predicted that the Supreme Court would swiftly overrule the Colorado justices.

Dershowitz is correct, and since similar efforts to bar Trump from the ballot in other states are under way, the Supreme Court will likely take the case and rule soon. This Colorado judicial travesty is likely to be overturned by a substantial majority of United States Supreme Court justices (at least six and quite possibly all nine), either because the president is not included within the terms of Section 3, because no court has found him guilty of “insurrection,” or for other procedural reasons expressed by the three dissenters in the Colorado case.

This disturbance in the force of the rule of law will be brief, but it’s a reminder that Trump derangement syndrome’s baleful effect on our legal system continues.