The Rule of Men Trumped the Rule of Law

in the Colorado Ballot Ruling

A little follow up on the Supreme Court’s decision yesterday…I did not at all expect the Christian Fascist Supreme Court to support Colorado’s bid to keep the fascist insurrectionist Donald “Take Down the Metal Detectors Cuz the Guys with the AR-15s Want to Kill Nancy Pelosi But Like Me” Trump off that state’s 2024 presidential ballot. I doubt that a high court decision on Colorado’s side would actually have hurt Trump’s chillingly strong re-election chances. Such a decision might have sparked some serious right-wing violence and upped the volume and spread of right-wing neo-fascist and neo-nullification civil war talk while sparking 20 or so red states to remove Biden from their presidential ballots.

Still, I did NOT expect a 9-0 ruling that the US Constitution requires Congress to act for an insurrectionist to be kept off a federal election ballot. It does no such thing.

Here is the relevant section of the Constitution — Fourteenth Amendment, Section Three — around which this case revolved:

‘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.’

Notice that the disability (the denial of state or federal office to an insurrectionist) exists prior to any action by Congress. The section says that the Congress can remove the disability but it does not say that Congress must act to enforce the disability.

In legalese, the section is “self-executing.” No positive Congressional action is required. Insurrectionists can’t hold any civil or military office unless a supermajority of both houses of Congress positively say they can.

Please take a look at the amicus brief that was signed by 25 distinguished US historians in support of the Colorado case: https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf

This brief shows clearly, with abundant primary source evidence, that:

‘decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress…implementation of Section 3 did not require additional acts of Congress. No former Confederate instantly disqualified from holding office under Section 3 was disqualified by an act of Congress. In seeking to quash his indictment for treason, Jefferson Davis argued that he was already punished through his automatic disqualification to hold public office under Section 3, which “executes itself … It needs no legislation on the part of Congress to give it effect.” The government agreed but opposed quashing his indictment. Supreme Court Chief Justice Salmon Chase, serving as a Circuit Court judge, also agreed….

The framers did not require any additional actions by Congress to effectuate Section 3. Section 3 was very explicit about what Congress was required to do and not to do: Congress could lift any disqualification for office only by a two-thirds vote. Strikingly, however, the Section did not require any action by Congress to disqualify insurrectionists. Section 3 mirrored other constitutional disqualifications based on age, residence, and birth that did not require any action from Congress.

…No former Confederates whom Section 3 instantly disqualified from holding office were disqualified by an act of Congress or a criminal conviction for insurrection or rebellion. Former Confederate President Jefferson Davis recognized, for example, that Section 3 had automatically disqualified him from holding public office on the day the states ratified the 14th Amendment. Davis argued that he should be immune from prosecution for treason because of the penalty already imposed by this disqualification. Section 3, said Davis’ lawyer, “executes itself, acting proprio vigore. It needs no legislation… Thus, the disqualification “punishment of Mr. Davis commenced upon the date of the adoption of the fourteenth article, and he therefore could not now be punished in any other way.” The government did not dispute the self-executing impact of Section 3 but opposed quashing the indictment. Davis lived freely, although still under disqualification for a presidential run. Statutory disqualifications, during the pendency of the 14th Amendment in the states, did not require congressional action or court order. Yet, they were essential for restoring loyal governments in the South, readmitting rebel states to the Union, and eradicating the [racist southern] Black Codes. As indicated by the memo of the Adjutant General of the War Department on June 20, 1867 cited above, disqualifications, based on the text of Section 3, were enforced summarily by military commanders under the authority of the Reconstruction Act of 1867.’

The Court’s 9-0 ruling is profoundly dangerous. As David French writes in The New York Times:

‘…the Constitution imposes the disability, and only a supermajority of Congress can remove it. But under the Supreme Court’s reasoning, the meaning is inverted: The Constitution merely allows Congress to impose the disability, and if Congress chooses not to enact legislation enforcing the section, then the disability does not exist. The Supreme Court has effectively replaced a very high bar for allowing insurrectionists into federal office — a supermajority vote by Congress — with the lowest bar imaginable: congressional inaction.’

But here’s the thing. The US Constitution is a piece of paper. In and of itself, it doesn’t impose shit. If the majority sitting on the Supreme Court are corrupt and illegitimate right-wing operatives ready, willing, and able to significantly assist the Christian white nationalist/neo-fascist overthrow of previously normative bourgeois electoral and rule of law democracy, then the actual language of the document and the intent of its crafters are quite frankly besides the fascist point.

Fascism is, among other things, the trumping of the rule of law by the rule of right wing men and their revanchist social and political agendas. We have seen this trumping in numerous other rulings from this illegitimate and corrupt high Court, most egregiously in the case of 2022’s horrific anti-abortion/ pro-female enslavement Dobbs v Jackson decision.

Why anybody expected a pro-Colorado ruling from this sick partisan far right Court is a mystery to me, though it is depressingly Weimar to have seen it go 9-0 instead of 6-3.