The Problem with the Colorado Supreme Court’s Decision Is That It’s Wrong

Since the Colorado supreme court issued its bombshell ruling last night — a ruling that, if upheld by the Supreme Court, would keep Donald Trump off the ballot in Colorado in both the primary and the general election — I’ve seen a lot of people argue that the core problem with the judgment is that it is “undemocratic.” This, no doubt, is an attractive argument to make politically. But it is an incorrect argument — or, at least, it’s an incomplete argument constitutionally. The problem with the Colorado supreme court’s decision is that it’s incorrect. Everything else flows from that.

This isn’t nitpicking. By design, there are many provisions within our Constitution that limit what the public is able to vote for, and sometimes even for whom. Without amending the Constitution, a transient majority of Americans cannot elect a president for a third term, hold midterm elections more than once every two years, abolish elections completely, restrict the freedom of speech, deny the accused their right to a trial, seat Article III judges without the acquiescence of the U.S. Senate, impose taxes without congressional approval, and so on. We have a process for doing things in the United States, and the Constitution sits at the peak of that process. If the Constitution says something, then that something obtains until the Constitution doesn’t say it any more. If, as the Colorado supreme court seems to believe, Article 3 of the 14th Amendment to the Constitution really does bar Donald Trump from political office, then Donald Trump must be barred from political office, and, unless one’s goal is to reject the very idea of constitutional government, complaining about that fact is fruitless.