In 2024, former President Donald Trump will face some of his greatest challenges: criminal court cases, primary opponents and constitutional challenges to his eligibility to hold the office of president again. The Colorado Supreme Court has pushed that latter piece to the forefront, ruling on Dec. 19, 2023, that Trump cannot appear on Colorado’s 2024 presidential ballot because of his involvement in the Jan. 6, 2021, insurrection.
“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.”
To me as a scholar of constitutional law, each sentence and sentence fragment captures the commitment made by the nation in the wake of the Civil War to govern by constitutional politics. People seeking political and constitutional changes must play by the rules set out in the Constitution. In a democracy, people cannot substitute force, violence or intimidation for persuasion, coalition building and voting.
The power of the ballot
The first words of Section 3 describe various offices that people can only hold if they satisfy the constitutional rules for election or appointment. The Republicans who wrote the amendment repeatedly declared that Section 3 covered all offices established by the Constitution. That included the presidency, a point many participants in framing, ratifying and implementation debates over constitutional disqualification made explicitly, as documented in the records of debate in the 39th Congress, which wrote and passed the amendment.
Senators, representatives and presidential electors are spelled out because some doubt existed when the amendment was debated in 1866 as to whether they were officers of the United States, although they were frequently referred to as such in the course of congressional debates.
No one can hold any of the offices enumerated in Section 3 without the power of the ballot. They can only hold office if they are voted into it – or nominated and confirmed by people who have been voted into office. No office mentioned in the first clause of Section 3 may be achieved by force, violence or intimidation.
A required oath
The next words in Section 3 describe the oath “to support [the] Constitution” that Article 6 of the Constitution requires all office holders in the United States to take.
The people who wrote Section 3 insisted during congressional debates that anyone who took an oath of office, including the president, were subject to Section 3’s rules. The presidential oath’s wordingis slightly different from that of other federal officers, but everyone in the federal government swears to uphold the Constitution before being allowed to take office.
These oaths bind officeholders to follow all the rules in the Constitution. The only legitimate government officers are those who hold their offices under the constitutional rules. Lawmakers must follow the Constitution’s rules for making laws. Officeholders can only recognize laws that were made by following the rules – and they must recognize all such laws as legitimate.
This provision of the amendment ensures that their oaths of office obligate officials to govern by voting rather than violence.
In 2024, former President Donald Trump will face some of his greatest challenges: criminal court cases, primary opponents and constitutional challenges to his eligibility to hold the office of president again. The Colorado Supreme Court has pushed that latter piece to the forefront, ruling on Dec. 19, 2023, that Trump cannot appear on Colorado’s 2024 presidential ballot because of his involvement in the Jan. 6, 2021, insurrection.
“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.”
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