First Colorado and now Maine have ruled that Donald Trump is ineligible to run for president, accusing him of “insurrection.” Section 3 of the Fourteenth Amendment does ban some people from federal office if they are insurrectionists. However, it is not clear whether this provision applies to the president, nor is it clear whether a criminal conviction for sedition under federal law must precede a candidate's disqualification.
Still, the Colorado Supreme Court issued a carefully reasoned 34-page decision last month that relied heavily on Colorado's opinion, testimony and submissions from two law professors and the Maine Secretary of State. The court ruled last week (he is not a lawyer) to bar Mr. Trump from the state's Republican primary ballot.
When the Supreme Court inevitably corrects the wrong decisions in Colorado and Maine (as it should), President Trump's critics will attack the court as arbitrary and undemocratic. .
That official, Shena Bellows, was the only person to sign the opinion disqualifying Trump, but it would be distrustful to believe she was the true author of the decision. It would be interesting to know who drafted that document. In its creative interpretation of the Constitution and laws, this is a great example of the fanciful analysis currently prevalent in legal interpretation in this country.
Bellows' opinion remains in effect until the Maine High Court issues an appellate opinion. And, of course, the U.S. Supreme Court will ultimately have to decide the question of whether the 14th Amendment applies to Trump's candidacy. Colorado courts themselves appear to understand this, as they have put their ruling on hold until the Supreme Court decides whether to take the case. In response, Colorado's Secretary of State allowed Trump's name to remain on the primary ballot pending a high court ruling.
Although some in the legal community disagree, most analysts believe that the Supreme Court is similar to the Colorado Supreme Court because the provisions of the Fourteenth Amendment do not apply to the president, or have never applied to the court. I believe it would invalidate the actions of the Maine Secretary of State. Convicted Trump of sedition. The surprising and alarming fact is that four justices on one state's highest court and one secretary of state believe they have the authority to misinterpret the Constitution so egregiously.
Some may dismiss all of this as Trump derangement syndrome, which is why so many are attributing dangerous and unprecedented nefarious motives to the former president. However, there is also an extremely cavalier attitude toward the law and the Constitution itself.
This attitude stems from a fundamental shift in jurisprudence that occurred in the late 19th and early 20th centuries among legal thinkers who pioneered a movement called “legal realism.” “Realists” believe that legal rules are flexible in the hands of judges and, in the words of Oliver Wendell Holmes, Jr., the most important thinker of this school of law, “have a sense of the needs of the times.” He argued that “the legal system” is more important in forming the legal system. It is more a law than a rule written in a law book.
To be fair to Holmes, he was discussing common law, i.e., state court decisions on private law, but in the end his stance changed his stance on many crucial constitutional issues, especially in the mid-to-late 20th century. clarified by a U.S. Supreme Court judge. . “Legal realist” views eventually morphed into what was called “critical jurisprudence” in the loftiest confines of our nation's most elite law schools. Its key insight was that all law, whether constitutional or private law, is essentially political, and that those in power are the ones in power. Societies inevitably rewrite legal rules to suit their own interests.
Although “realist” jurisprudence was essentially a 20th century phenomenon in courts and law schools, the idea that law (or justice) is merely a tool of the powerful has ancient roots dating back at least to Plato's character Thrasymachus. It's a concept. His “Republic”.
The core American idea that our government is a government of laws, not men, rejects this Thrasymachian model. But faith in the rule of law becomes even more difficult when prominent state officials effectively pervert the Constitution and convict a former president of a crime without the due process protections of a criminal court. Even more troubling, when the Supreme Court inevitably corrects the wrong decisions in Colorado and Maine (as it should), Trump's critics have labeled the Supreme Court as arbitrary and undemocratic. If so, it will attack.
One can't help but speculate that the Colorado and Maine decisions were intended to undermine the Supreme Court's own authority. For the rule of law to survive, courts and their defenders must come to an understanding that our laws and constitutions have a clear historical meaning and are based on sound and timeless principles of morality and justice. We will need to bring them back. That work has already begun in the legal community, and we will soon see whether the Supreme Court's courageous majority will take up this bold task.
