A Threat To Democracy?

Editor’s Note: I normally don’t “double up” blog posts in a day, but this is a hot topic deserving a hot take.

The Colorado Supreme Court just "trumped" Donald Trump's bid for the 2024 Presidency by disqualifying him from appearing on the state's primary ballot, on 14th Amendment grounds.

Section 3 of 14A reads:

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.

This is, as you likely know, about the January 6th riot at the Capitol, which was preceded by Trump's rally, and whether Trump's actions, inactions, and agitating qualify as "insurrection."

Some long-time readers may recall that I denounced Trump in the wake of that riot, for at the very minimum failing to calm the crowd and disavow the trespass. Some may also recall a more recent bit, wherein I raised the vital importance of what the law says LINK in this (and all) matters. As Paul Scofield declared in his stupendous portrayal of Sir Thomas More:

I'd give the Devil benefit of law, for my own safety's sake.

And here is where the Colorado Court's ruling gives me the willies. It was based on a civil suit, not a criminal trial, and a bench trial rather than one by jury. The former has a lower threshold for guilt, and the latter elevates the possibility of a politically-informed ruling.

The ruling has been stayed pending appeal, and I figure this matter will eventually end up before the Supremes. Who will be tasked with several decisions, including defining "insurrection" and deciding whether a 14A exclusion would require criminal charges and conviction. While I've seen an argument that the Due Process clause of the Fifth Amendment, which reads:

nor be deprived of life, liberty, or property, without due process of law

isn't applicable to eligibility for a ballot, "due process" has been so broadly applied in the nation's history that this reeks of motivated reasoning, making it suspect. As for insurrection, this, too, is a bit tricky, in that some have argued that Trump genuinely believed he was acting in the country's defense, rather than in opposition to it, and others feel his actions don’t reach that threshold. I'm less inclined to buy the latter argument, but far sharper legal minds than mine will sort that out.

My take, today, is based on the endless bleats that Trump is a "threat to democracy" emanating from the Left (and from some on the right, it should be noted). As usual, this is classic projection. As in, the bleaters are themselves the threat to democracy. Is it "democracy" to endeavor to deny voters their preferred candidate via questionable legal chicanery?

If you don't want the Untethered Orange Id to be President, devote your efforts to supporting your preferred candidate in the primaries and in the general election. Make your case to other voters, donate money and time if you wish, and so forth. But, for all our sakes - including your own in the future - don't undermine the process. Whatever precedent you set now will certainly be used in a way you don't like in the future.

If insurrection is to be used as a disqualifier, Trump should be found guilty of it. By a jury of his peers, under the rules of criminal rather than civil prosecution - or by Congress. Insurrection is, after all, a crime, not a contract dispute. Anything less makes a mockery of the law, serves to make Trump a martyr, and will make many reject the legitimacy of the electoral outcome.

This isn't an "on the margins" issue. This is a monumental action that calls for a strict adherence to law and process. Its consequences will echo forward for decades. If a candidate can be removed under squishy terms, rest assured that the precedent will be used again. Trump may seem "unique," but no one is so unique as to warrant legal creativity in denying the voters their say. People who sounded off in rage at “unelected judges” overturning Roe (and ignoring the fact that the Court actually returned power to the voters via their legislators) should not be cheering unelected judges pre-empting voters.

Even if you hold an existential dread of four more years of Trump, you should fear partisan weaponization of the courts even more. Trump 2.0 would be temporary. The damage to our system would be permanent.