Editor's note: John Avlon is a CNN senior political analyst and anchor. He is the author of “Lincoln and the Fight for Peace.” The views expressed in this commentary are his own. View more opinion at CNN.
(CNN) — The Colorado Supreme Court just decided that the US Constitution still matters.
After all, Section 3 of the 14th Amendment is right there in the document — designed to prohibit people who’ve taken an oath to uphold the Constitution and then participated in an insurrection against the United States from holding elected or appointed office. On Tuesday night, the court found that former President Donald Trump should be removed from the state’s ballot because he did just that.
Since the debris was cleaned up after the January 6, 2021, attack on the US Capitol, there has been a debate about whether this post-Civil War amendment could bar Trump and other instigators from holding future office. Good people can disagree, but the answer has always seemed a self-evident yes to me.
Context makes clear that the amendment was designed to be applied to future insurrections and rebellions, not just the Confederacy. As one senator explained at the time, “Being a permanent provision of the Constitution, it is intended to operate as a preventive of treason hereafter … a measure of self-defense.”
The next line of argument is usually whether January 6 can be considered an insurrection. As University of Maryland law professor and noted 14th Amendment scholar Mark Graber told me earlier this year: “From a constitutional perspective, there’s no difference between trying to overturn an election by intimidation, force or violence — all of them fall under insurrection.”
It also may be relevant that a majority of the Senate voted in favor of Trump’s second impeachment on charges of inciting insurrection. And there is at least one other court ruling that has applied the 14th Amendment — a former New Mexico county commissioner, Cuoy Griffin, was ousted from his job and barred from holding future state or federal elected positions in a court case in 2022, stemming from his conviction for trespassing in the Capitol riot.
So there’s modern-day precedent for invoking the 14th Amendment as it applies to the insurrection attempt on January 6.
While Trump didn’t storm the Capitol, I think it’s clear that he incited a riot whose goal was to stop the certification of the election through violence and intimidation (he denies any wrongdoing). The full text of the 14th Amendment states that it applies to anyone who has given “aid or comfort” to an insurrection or rebellion. That’s the least Trump did with his tweets, speeches and encouragement of the overall plot to overturn the election on the back of his lies.
The Colorado Supreme Court’s decision made clear that this was about applying the letter of the law, not partisan wish-fulfillment: “We do not reach these conclusions lightly,” the majority wrote. “We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”
The idea that Section 3 doesn’t apply to the president, as a lower court declared, always seemed absurd to me. It explicitly applies to “to any office, civil or military, under the United States.” This also could open the door to its provisions being applied to any member of Congress who is found to have coordinated with the insurrectionists. And it’s important to note that respected conservative legal scholars, active in the Federalist Society, did a deep dive into whether the 14th Amendment, Section 3, applies to Trump and found that it did.
Now this case will make its way to the US Supreme Court. Given the high court’s conservative tilt, this case is far from a slam dunk. But if philosophical consistency could be expected when it collides with partisan self-interest, any justice who believes in originalism or states’ rights would support this invocation. The court can’t credibly pretend that the Constitution does not say what it clearly says. The principle of equal justice under law means it should apply to presidents if they betray their fundamental oath by engaging in an attempt to overturn our government.
It’s true that these criminal statutes and constitutional prohibitions are rarely invoked. But then insurrections rarely happen in the United States. The 14th Amendment was put in place to use in moments like this. Without accountability, coup attempts are just practice.
Written by John Avlon
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