Today at La Presse, the French-Canadian online newspaper based in Montreal, is running a short interview I did with them about the Colorado Supreme Court decision that takes Donald Trump off the ballot in that state. Here is an English translation:
The decision of the Colorado Supreme Court to dismiss Donald Trump’s candidacy in the state due to his insurrectionist activities on January 6, 2021 had the effect of a thunderclap on Wednesday. La Presse discussed it with John Fea, professor of United States history at Messiah College, in Pennsylvania, and Stéphane Beaulac, professor at the faculty of law at the University of Montreal and specialist in international law and constitutional law.
Why is the Colorado Supreme Court’s decision significant?
John Fea: It’s a surprise. I don’t think we’ve ever seen a decision like this in American history. What’s significant is how it’s going to play out in the Supreme Court, because Trump has said that’s what he would ask. Essentially, the Supreme Court will have to make a decision on the 3rd article of the 14th amendment to the Constitution. It will formalize this part of the 14th Amendment , namely that Trump is an insurrectionist. We’ll see what they do. What Colorado just told the nation is that Trump is an insurrectionist, so he is disqualified….
What will the Supreme Court justices look at? And will the decision be applicable to all states? Or just in Colorado?
Stéphane Beaulac: The judges will wonder if this question is not more of a political nature. This article 3 does not relate to an objectively verifiable qualification, such as the minimum age requirement (35 years) for candidates. It concerns the question of whether there was participation by an “officer” in insurgent activity, and that the courts would not be empowered to judge that. In short, it should not be a question linked to the qualification of candidates in the same way as other qualification bases. Therefore, Article 3 is an eminently political question which should not be the subject of judicial determination. And therefore, it is not up to a court of law to decide.
John Fea: A possible Supreme Court decision would apply to the entire nation. For example, I can’t imagine that the Supreme Court can decide that Colorado was right to ban Trump, but that other states can decide whatever they want. When the Supreme Court makes a decision, it applies to the entire nation.
What are the political implications of the judgment?
John Fea: This decision is telling. Trump’s Republican rivals could have taken advantage of this to isolate Trump, and claim that he was responsible for the January 6 assault. None have taken this route yet. Rather, they are of the opinion that it is not for the court to decide, but for the voters. They don’t say anything negative about Trump because they need to attract Trump voters. Also, many perhaps see themselves as his next running mate, and therefore do not want to anger him and risk not being chosen.
Will Trump become more popular because of this decision?
John Fea: Every time Trump gets in trouble, every time he gets sued civilly or criminally, his base supports him even more. It maintains the idea that, like them, he is fighting against the system. He’s playing the victim, and that helps him. Trump even launched a fundraiser highlighting the Colorado Supreme Court’s decision.
Read the entire interview here.
It would be disappointing and scandalous if SCOTUS dismissed this as a “political question” that they do not have authority to decide. The Constitution is a legal document, so questions about the meaning and scope of the insurrection clause are inherently legal questions. It is the job of the Supreme Court to rule on these questions and formalize the criteria that states need to use when applying the law. For them to shirk this duty by declaring it “political” would be an abdication of their core function.
It is funny how all the people who say we are not a “democracy” but a “Constitutional republic” are now screaming about democracy and ignoring the fact that the Constitution sometimes curbs the voice of the people.