Richard A. Morris

Lock Haven

In determining unanimously that the Colorado Supreme Court erred in ruling that Donald Trump was not eligible to appear on the state’s primary ballot for President, the US Supreme Court appears to have departed from its usual practice of giving primacy to the plain text of the Constitution, and overloaded the single sentence of the fifth section of the Fourteenth Amendment with a significance it cannot bear.

Section 3 of the Fourteenth Amendment says that no-one can “be” a Senator or Congressman, nor “hold” any federal or state office, if they have engaged in insurrection. There is nothing in the text that prohibits an insurrectionist from seeking any of those appointments, and on those grounds alone the Colorado decision was constitutionally unsound. No more needed to be said.

The Colorado decision, and others like it, was, of course, an attempt to forestall the possibility that the nation would vote to install as President an insurrectionist, adjudged sexual predator, slanderer and fraudster. We must leave for another day the question of how likely that would be to happen, but let us suppose that Trump did, in fact, win the presidential election, or, at least, sufficient votes in the Electoral College to prevail. That vote would have to be certified, at which point the Vice President would determine that Trump is not eligible to serve, unless both houses of Congress vote by a two thirds majority to overturn the disqualification, as Section 3 of the Fourteenth Amendment provides.

Only if Congress so voted could Trump actually become President. At that point, of course, the world would have gone mad, but at least the insanity would be constitutionally sound, without the Justices of the Supreme Court having to twist themselves into pretzels to make it so.