Ronald Reagan, a former actor and very popular two-term Republican governor of California, was elected president of the United States in 1980.
Arnold Schwarzenegger, a former actor and very popular two-term Republican governor of California, was not elected president of the United States.
What’s the difference?
Ronald Reagan was born in Illinois.
Arnold Schwarzenegger was born in Austria.
Under Section I, Article 2 of the Constitution, Governor Arnold was not a “Natural Born Citizen,” so he was ineligible to be president.
Yale constitutional law professor Akhil Amar wrote that the basis for Article 2 was not, as was conventionally thought, to prevent Alexander Hamilton from becoming president, but rather to prevent the situation where “a foreign earl or duke might cross the Atlantic with immense wealth and a vast retinue, and then use his European riches to buy friends on a scale that no homegrown citizen could match.”
So, from inception, the Constitution has provided that there are individuals who are unsuitable to be president, even if they could command a majority of the votes in the Electoral College.
Similarly, Section 3 of the 14th Amendment states:
“No person shall … hold any office, civil or military, … who, having previously taken an oath … 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.”
The Section 3 prohibition only applies to someone who had “previously taken an oath,” — not a blanket ban on people who had “engaged in insurrection,” — recognizing that if someone engaged in violence after swearing an oath to engage in democratic politics, they were unsuitable to be president.
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Remember that for 2/3rds of the years from the inauguration of President George Washington in 1789 until the South seceded in 1861, the presidency was held by Southern Slaveholders. In 1860, immediately after Abraham Lincoln was elected president with the promise to restrict slavery, the South initiated a succession and insurrection, led by men who had sworn oaths to support the Constitution.
So Section 3 is a very specific and well-grounded bar for office, which presumably those who consider themselves fans of the Constitution or “originalists” would strongly respect.
In President Donald Trump’s brief to the U.S. Supreme Court, his lawyers argue that “bedlam” would ensue if Colorado’s decision stands. Sticking to the plain language of the Constitution is the job, regardless of the consequences.
And which was the first state to join the Union after the adoption of the 14th Amendment?
Colorado.
In our 1875 Enabling Act, the citizens of the Territory of Colorado specifically agreed to “adopt the Constitution of the United States” as it then existed.
Colorado had been formed as a free territory, and part of the South’s motivation in launching the Civil War was to bring slavery to Western territories like Colorado, which had been part of Kansas. The West became the focal point for the battle over the expansion of slavery.
So Colorado is entitled to rely on the language of the Constitution at the time it joined the Union that it not be subject to officers who had previously engaged in insurrection.
There are a variety of technical legal issues that have been raised – “what is the oath?”, “is the presidency a relevant office?” All of these have been attempts to discredit Colorado’s state Supreme Court decision that Trump’s actions had disqualified him from office. But these are obviously trivial and quite non-substantive, so there are really only two relevant questions: 1. Do the events of January 6 constitute an insurrection, and did President Trump engage in it? 2. Who gets to decide?
Much has been written about January 6; suffice to say that Eric Foner, the leading Reconstruction scholar, and Michael Luttig, a leading conservative scholar and former federal judge, have both concluded that it was an insurrection and President Trump “engaged” in it, as have hundreds of other historians and legal scholars.
But even if there were any ambiguity about the events of that day, can there be any doubt that President Trump’s conduct since then, attacking the court system and individual judges, asserting fraud in any situation he didn’t win, constitutes continuing insurrection?
Following its decision, the Colorado Supreme Court received a flurry of death threats.
If the U.S. Supreme Court rules against President Donald Trump, does anyone doubt there will be more violence?
In terms of who gets to decide, there is no specificity in Section 3, just as there is no specificity about who decides whether someone is 35 years old or “natural born” to be eligible to be president.
The normal course of any legal proceeding is that a trial court decides questions of fact. And the District Court in Denver found that Trump had engaged in insurrection.
For those who follow the Supreme Court, many would agree that the high water mark of the modern era was the 1974 Nixon Papers Case, in which the Supreme Court unanimously ruled 8-0 against President Richard Nixon and ordered him to turn over the White House tapes – which he agreed to without any violence.
Included in that unanimous decision were five justices appointed by Republican presidents, of whom Nixon appointed Burger, Blackmun, and Powell.
For many of us, the low water mark was Bush v. Gore, where the Court ruled 5-4 (with several of the justices who had been appointed by then-Governor George W. Bush’s father in the majority) to overturn the decision of the Florida Supreme Court to continue counting ballots.
On today’s Court, the six justices who were appointed by Republican Presidents George H.W. Bush, Geoge W. Bush and Donald Trump all claim to be “originalists,” and the justice with the most natural leadership on this case is Justice Neil Gorsuch from Colorado.
Justice Gorsuch wrote a book – “A Republic, if You Can Keep It” – arguing for originalism: “a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequence.”
It’s hard to see how the Court could rule against either the plain language of the Constitution or the right of the state of Colorado to interpret its own election law.
But if the plain language of the Constitution isn’t persuasive, ask yourself three questions:
1. If Donald Trump is the Republican nominee in 2024, and Joe Biden beats him, will Trump accept the results of the election?
2. If Donald Trump is elected president in 2024 and the 22nd Amendment to the Constitution prohibits him from seeking a 3rd term in 2028, will he accept that?
3. If the Supreme Court rules against President Trump, are the justices willing to go to work the next day without first summoning the Capitol Police and significant reinforcements to guard the Court?
Regardless of the outcome of this case, the Justices will have the US Marshals to protect them from violent Insurrection, as they did on January 6th.
But for the rest of us, fortunately, we can rely on the Constitution.
Paul Lippe is an entrepreneur and lawyer in Colorado. He was formerly chairman of the Colorado Air Quality Control Commission.
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