Today, SCOTUS will hear oral arguments for Trump v. Anderson– a case that holds appreciably high political and legal stakes. This is not just a big deal, it’s one of the most critical legal issues in the history of our Republic. So buckle your seatbelts, it’s going to be a bumpy ride.

On December 19, the Colorado Supreme Court announced a landmark decision barring ex-president Donald J. Trump from their state’s ballot. Their reason? Section Three of the Fourteenth Amendment. Passed in 1868, Section Three disqualifies all who took an oath to support the constitution and then “engaged in insurrection.” It’s accumulated dust since the postbellum period when it immediately disqualified thousands of oath-breaking Confederates. Now, it’s back.

Colorado found that Donald Trump gave “aid and comfort” to the January 6 insurrection and is thereby disqualified from holding office under Section Three. It was a gigantic and unprecedented decision—no prospective presidential nominee has ever been disqualified by this statute. However, it was almost indisputably the right one.

Yet, since day one, people across the political spectrum have attacked Colorado’s decision on legal and political grounds. Much of that legal reasoning is unsound at best and dishonestly motivated at worst. But from politicians to peers, I have heard many question not only the law’s meaning but its very legitimacy. Wringing their hands, some cry out: our constitution will go too far if we uphold its text sans fear or favor– it might even cause another insurrection!  Following their advice would be disastrous, and I will explain why.

The United States is a constitutional democracy. This means citizens can vote and citizens can exercise free speech, but cannot vote away another’s right to free speech. The Founders imagined the Constitution as a guardrail against the dreaded ‘mobocracy’ (which many equated to ‘kakistocracy,’ a government ruled by our least suitable); thus, it was created to protect not only individual rights but the very system that maintains them. 

Section Three does just that. The drafters considered the opportunity to disqualify millions of Confederate insurrectionists and strip them of their voting rights. But they refrained. Instead, they chose to disqualify from office only the most egregious rebels: those who had formally sworn allegiance to the Constitution and then engaged in insurrection against the very same. By doing this, Section Three’s drafters instituted a basic and proven necessary disqualification on office-holding and one squarely dedicated to the safety of the Republic. Section Three upholds the system our law is built on.

If we choose not to enforce it in fear of its consequences, we will break this system so that MAGA kakistocrats can rest at ease. We cannot ignore laws or reverse-engineer their construction based on inconveniences. The “leave-it-to-the-people” camp not only chooses to disregard Section Three’s history and text, they implicitly argue that history and text are totally irrelevant. If you truly care about the health of American Democracy, you must support the laws designed to uphold it because if we lose those laws, watch all else start to crumble. 

For now, all eyes are on the court.

***If you disagree with me and Colorado on the textual meaning of Section Three, please feel free to reach out at avi.zalkin@mastertersny.org if you want to engage in a civil debate. But, for the love of God, do better than “the president isn’t an officer.”