Former President Donald Trump is facing a lawsuit in Colorado, where a group of voters are testing an unproven legal theory: that Section 3 of the 14th Amendment bars Trump from holding public office ever again.
The theory has been gaining traction for the last few weeks, fueling speculation that suits would be filed in various states. Now a group in Colorado has taken the plunge, as six Republican and unaffiliated voters are filing with the assistance of Citizens for Responsibility and Ethics (CREW) and representation from law firms Tierney Lawrence Stiles LLC, KBN Law LLC, and Olson Grimsley Kawanabe Hinchcliff & Murray, LLC. The case will be front and center in American politics – while the issue is widely expected to ascend to the Supreme Court
The Insurrection Clause
Section 3 of the 14th Amendment is an obscure bit of constitutional text also known as the insurrection clause. According to CREW, Section 3 “bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” and then has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof,” – which applies to Donald Trump.
“On January 20, 2017,” CREW’s website states, “Donald Trump stood before the nation and took an oath to “preserve, protect and defend the Constitution of the United States.” After losing the 2020 presidential election, Donald Trump violated that oath by recruiting, inciting and encouraging a violent mob that attacked the Capitol on January 6, 2021 in a futile attempt to remain in office.”
Accordingly, in CREW’s view, Trump’s behavior relating to January 6th has triggered his disqualification from office under the 14th Amendment.
“If the very fabric of our democracy is to hold, we must ensure that the Constitution is enforced and the same people who attacked our democratic system not be put in charge of it,” CREW President Noah Bookbinder said. “We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend out republic both today and in the future. While it is unprecedented to bring this type of case against a former president, January 6th was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of. You don’t break the glass unless there’s an emergency.”
Up To the Courts
A growing chorus of citizens are calling for Trump’s disqualification under the 14th Amendment.
But it’s not up to the citizens, it’s up to the judiciary.
And the judiciary will have to consider two big questions. First, the courts will need to interpret the text of the Fourteenth Amendment. Advocates of barring Trump are putting forward their interpretation of the insurrection clause with confidence – and that reading may be correct. But constitutional interpretation has a way of getting murky.
Once the text is parsed through and interpreted, the judiciary will need to decide whether Trump’s behavior violated the behaviors that the judiciary has decided the 14th Amendment prohibits. Again, advocates of barring Trump are putting forward an interpretation of Trump’s behavior that is straight forward: that he recruited, incited, and encouraged a violent mob to disrupt the certification of the 2020 election in an attempt to stay in office. The judiciary may disagree.
Either way, the judiciary is being asked to decide something of extreme consequence. And no matter what the judiciary chooses to do, the decision will likely harm the credibility of the courts in the eyes of a sizeable segment of the American population.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
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