Colorado judges don’t get to declare that there was a federal insurrection.
Any legal debate eventually becomes mired in legalisms. Given time and scope, the debate spins out of control and ceases to be about the basic facts and instead becomes tangled in past precedent and defining terms until the cows come home.
In the real world, legislation has fairly clear intent. That’s why originalism is important. Beyond upholding the Constitution, it provides a reality check on debates like these.
The (unconstitutional) Colorado decision barring former President Trump from the ballot has unleashed a wave of debates about whether the 3rd section of the 14th Amendment actually requires conviction, whether it’s meant to be implemented by Congress and other such matters. Is it a criminal matter or a civil matter?
Please. Stop.
To state the obvious, the “insurrection clause” was meant to bar Confederates from holding public office. What an insurrectionist was, was self-explanatory because there had just been a Civil War.
For the “insurrection clause” to apply, there has to be an insurrection. That means there has to be a declaration of insurrection.
Congress and the Lincoln administration both defined and declared an insurrection. There’s been no declaration now which means, legally speaking, there’s no insurrection and therefore no insurrection clause applies.
The 14th is still a legal minefield in this regard and the ability of a president to claim insurrection is in theory an open-ended nightmare. Biden could, for example, hypothetically declare that an insurrection is underway, but he hasn’t so the point is null.
Colorado judges, random uninvolved state legislatures and Uncle Bob do not get to define an insurrection against federal authority. Only federal authorities get to declare an insurrection. Neither Trump nor Biden declared one of those.
New York, for example, could not unilaterally decide that Confederate states were in a state of insurrection. But that is what Colorado is trying to do here. States ought to usurp federal authority more often, but this is a blatantly illegal usurpation.
And the factual forest should not be lost for the legalistic trees.
Article posted with permission from Daniel Greenfield
