With two states (so far) having decided to bar former President Donald Trump from their respective primary ballots, the obvious question is when, and how, the U.S. Supreme Court will get involved.
Given the upcoming slate of primaries and caucuses, the sooner the court has a chance to render a decision on whether states have the power to bar Trump under Section 3 of the 14th Amendment, the better. Some issues are just too important to wait for judicial niceties.
But if the court does have a case ready for argument…what should it do?
That's an open question, for no other reason than no major political party has seen fit to (potentially) nominate a candidate who even comes close to meeting the Section 3 wording.
But that aside, what might a decision look like? The Washington Post's Ruth Marcus – who is no friend of Donald Trump – wrote that the court should, unanimously, overturn the Colorado Supreme Court ruling and allow Trump on the ballot. The reason for doing so finds its roots in the dissents on the Colorado case:
The most interesting came from Justice Carlos Samour Jr., who said barring Trump from the ballot without legislation from Congress implementing Section 3 violates Trump's due process rights, especially because Trump has not been charged with insurrection.
“More broadly, I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” Samour wrote. “Surely, this enlargement of state power is antithetical to the framers' intent.”
Just how much power the authors of the 14th Amendment wanted states to retain is a fascinating question. Excerpts of the congressional debate over the 14th Amendment – and Section 3 in particular note:
Scholar Garrett Epps describes revisions made to Section 3 during the debate in the Senate, changing the penalties for former Confederates:
“The Senate unanimously struck out Section 3, which would have disenfranchised former Confederates from voting until 1870…[Senator] Howard brought forward a new disenfranchisement section, far more lenient than the [previous] House version; it did not limit ex-Confederates' right to vote, but only excluded a small group from holding office: those who had ‘previously taken an oath' to support the U.S. Constitution and then had afterward participated in the Confederate cause.”
In other words, the Section was seen as applying to that particular moment in history. Though again, no one at the time, or since, could have imagined a major party candidate like Donald Trump.
Even so, it should be for voters to decide whether Trump is fit for office – not a court. In 2020, Trump lost by roughly 7 million votes (and 74 Electoral votes). Their verdict was clear. They have every right and reason to expect their verdict will be the only one that matters in 2024.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
