The United States Supreme Court has agreed to decide the question of whether former President Trump’s name can be kept off primary and general ballots because he allegedly violated the sedition clause of Amendment 14. No matter what anyone thinks of Trump’s fitness or lack thereof for the presidency, everyone who believes in law, order, and due process should hope the Supreme Court rules as unconstitutional the actions taken by state officials in Colorado and Maine to declare Trump an insurrectionist and thereby ineligible to seek the presidency. Otherwise, America’s devotion to the rule of law will be weakened, and the chances for lawlessness and political chaos will be strengthened.
Section 3 of the 14th Amendment says that, “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. But Congress may by a vote of two-thirds of each House, remove such disability.”
The Colorado Supreme Court and Maine’s Secretary of State have ruled that former President Trump’s conduct on 1/6/21 constituted insurrection, and thereby makes him ineligible for the presidency. Hence they have ruled that his name may not be on Republican primary ballots and will no doubt rule, if allowed to do so, that his name can’t be on general election ballots this fall either.
As I noted two weeks ago, these rulings actually strengthen Trump’s position within the Republican Party and increase his already strong chances to win the GOP’s 2024 presidential nomination. Trump has convinced his followers that the “political elites” hold them in contempt, consider them “deplorable,” and seek to oppress them. He’s the only one standing up for them. Whatever actions are taken against him—impeachments, indictments, and now efforts to keep him off primary and general election ballots—simply strengthen both his claims and his followers’ determination to stick with him come hell or high water.
But the process so far is also an affront to civil liberties, due process, and the rule of law. Officials in Colorado and Maine are, in effect, unilaterally accusing Trump of insurrection despite no finding that he’s actually broken any law prohibiting insurrection.
To be certain, there is a specific law defining insurrection and specifying the penalty: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
(June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.) But Trump has not been convicted of insurrection or even indicted. The officials in Colorado and Maine simply want to declare Trump guilty of insurrection, with no indictment and no conviction, and assess what they consider to be a suitable punishment. How can this possibly be constitutional?????
Even the most dyed-in-the-wool Trump opponents should be able to see the dangers should the Supreme Court uphold the decisions made in Colorado and Maine. Under our federal and state criminal law systems, to punish someone for the commission of a crime requires that he be indicted and convicted following proceedings wherein the prosecution bears the burden of proof while the defendant is entitled to the presumption of innocence until guilt is proven as well as every opportunity to defend himself with the aid of competent counsel. The means by which officials of Colorado and Maine have sought to punish Trump for insurrection involve no such proceedings. Should the Supreme Court uphold their actions, it may set a precedent by which other officials in other cases can take punitive measures without the due process necessary to protect the individual from the otherwise overarching power of the government.
In essence, Trump should not be ruled ineligible for the presidency for insurrection unless he is actually indicted and convicted for insurrection after proceedings in which he was accorded due process and all the rights that come with it. Any penalty assessed against him without due process creates a precedent by which anyone else can also be harmed. Protecting Trump and insisting on due process for him will help preserve due process for our own protection as well.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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