Welcome to a surprise episode of Our Long National Nightmare because, after months of no one having the guts to do it, the Colorado Supreme Court held today that Donald Trumhop engaged in an insurrection and is ineligible to appear on the presidential ballot in the centennial state. The court’s basis is the Fourteenth Amendment, which may or may not actually say that.
What’s the Fourteenth Amendment?
The Fourteenth Amendment is one of the Reconstruction Amendments, a slew of changes to the Constitution adopted in the aftermath of the American Civil War. The Reconstruction Amendments radically reshaped the government, and were basically the prize to winners of the Civil War and the punishment for the losers.
The Fourteenth Amendment in particular has come up a lot in the years since it was passed, but we’re going to focus on the rarely-seen (in recent years) Section 3.
Section 3. 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.
Section 3 reads that no person shall be a Senator or Representative or elector or hold any office, civil or military, under the United States if they have engaged in insurrection or rebellion against the United States. Congress has the power by a two-thirds vote to remove the restriction; it did so in 1872 by enacting the Amnesty Act, which allowed most former Confederates – except those high up in the rebellion’s government and military – to return to public life. Robert E. Lee himself was even formally relieved of this weight, albeit in 1975 when he was unlikely to run for public office.
Section 5 of the 14th Amendment says “the Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress has enacted a couple laws to bring Section 3 into effect, particularly the Confiscation Act, which remains codified at 18 U.S. Code § 2383.
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.
18 U.S.C. § 2383
Alright, open and shut case, yeah? Donald Trump definitely absolutely engaged in an open insurrection against the United States, so –
Is the presidency an office?
… huh?
… Huh.
Section 3 says it applies to someone who wants to “[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,” which is not an exhaustive list for sure. An insurrectionist can’t be a state senator, or a general in the army. But can an insurrectionist be the president?
After all, the section specifically mentions senators and representatives and electors for president and vice president, but not the president or vice president themselves.
Does the Constitution help? Let’s check the impeachment clause.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors
Art. II Sec. 4
Okay, that doesn’t help at all. Does it mean the president and also officers – meaning the president isn’t one – or the president and other officers?
What about the president’s oath? The president vows to “execute the Office of President of the United States,” which is surely an “office of the United States.”
The Supreme Court isn’t sure. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., the court noted that “The people do not vote for the “Officers of the United States,”” citing … the Constitution again?
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Art. II Sec. 2 cl. 2 (emphasis added)
Okay, “officers of the United States” means ambassadors, ministers, consuls, judges, and anyone else that Congress says it includes, but does not mean the president himself.
Does this matter? No one knows. Remember, Section 3 of the Fourteenth Amendment disqualifies an insurrectionist from holding an office, not from being an officer. These are surely not the same thing. While Free Enter. Fund v. PCAOB says the people do not vote for the Officers of the United States, Section 3 is not limited to officers not voted for; it allows the barring of electors, senators, representatives, and all kinds of state officials.
The Colorado Supreme Court, for what it’s worth, decided to go with the easy answer: of course the president is an officer.
When interpreting the Constitution, we prefer a phrase’s normal and ordinary usage over “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”District of Columbia v. Heller, 554 U.S. 570, 577 (2008). Dictionaries from the time of the Fourteenth Amendment’s ratification define “office” as a “particular duty, charge or trust conferred by public authority, and for a public purpose,” that is “undertaken by . . . authority from government or those who administer it.” Noah Webster, An American Dictionary of the English Language 689 (Chauncey A. Goodrich ed., 1853); see also 5 Johnson’s English Dictionary 646 (J.E. Worcester ed., 1859) (defining “office” as “a publick charge or employment; magistracy”);United States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823) (No. 15,747) (“An office is defined to be ‘a public charge or employment,’ . . . .”). The Presidency falls comfortably within these definitions…..
Anderson v. Griswold, 2023 CO 63
Trump will certainly appeal to the Supreme Court. As The Workprint staff writer Victor Catano noted on Bluesky, it may overturn Colorado on the grounds that, “Harlan Crow gave me a yacht to park my RV on.” Or it may find mundane procedural grounds, or it may take the unusual step of agreeing — after all, the justices aren’t friends of Donald Trump, even if he put an unusually high number of them on the bench.
