In the Left’s Latest Attack Against Trump and Democracy, the Supreme Court Must Quash the Insurrection Argument Once and For All

The Left’s latest attack on democracy, the truth, the Constitution, and the rule of law continues in the form of a series of lawsuits, such as the ones found in Colorado and now Maine, that are being fueled by Democrat-aligned, Soros-funded groups, that have attempted to remove President Donald Trump from the ballot in those states via rogue political actors on alleged Fourteenth Amendment grounds. The Colorado decision witnessed the state’s all-Democrat-appointed Supreme Court split 4-3 on the central issue, remarkably close given how polarized the country is today, especially on matters related to President Trump. Presenting a question that will undoubtedly be taken up by the United States Supreme Court (whose present composition consists of six Republican-appointed justices, including three nominated by President Trump himself, versus only three Democrat ones), the nation’s High Court is bound to return a more even-handed decision. That said, however, it may be argued that the damage has already been done. Shortly after news of the Colorado Supreme Court decision broke, several commentators noted that even if overturned by the Supreme Court (a probable scenario), the Colorado case already set a dangerous precedent to license other bad-faith, rogue actors to take the law unilaterally into their own hands by removing President Trump’s name from the ballot and thereby deny their constituents their fundamental right to vote for whomever they choose.

Lo and behold, days after the Colorado decision was handed down, in Maine, a state that President Trump’s campaign believes can be won in next year’s general election, its Marxist-sympathizing secretary of state, Shenna Bellows, who does not even have a law degree, unilaterally made the determination that the Fourteenth Amendment required her to block President Trump’s name from the ballot. Bellows’ tyrannical decision to remove Trump from the ballot without even consulting her voters may be the most egregious power grab yet committed by the Far Left. And that is saying a lot, for a year that has observed the near wholesale weaponization of the justice system by the Biden regime to persecute its chief political opponent, plunging our once unrivaled system of justice into a banana republic and proving once more that the people who regularly screech about “our democracy” really are democracy’s greatest enemies.

These decisions will require the Supreme Court to involve itself in what the Left and mainstream media will quickly brand a “political decision.” However, critically, it is not the Supreme Court that has forced itself into presidential politics, but a radical Left and its accomplices in the DOJ and various intelligence agencies that have baited the Court into rendering a judgment on a matter that should never have gone before any court in the first place, because removing anyone from the ballot, let alone a duly elected president and frontrunner for the next election, amounts to the most grievous of constitutional violations. For this reason, it is incumbent upon the Supreme Court to not only resolve the legal issue at hand but to permanently quash this nonsense Fourteenth Amendment claim for good. Otherwise, it will risk opening its dockets to the floodgates of leftwing lawfare, of the kind seen in Maine, Colorado, and many other cases, which is well financed and mobilized to continue bringing these lawsuits so long as President Trump remains a viable contender and they meet little opposition.

Thus, the High Court is primed to be the battlefield of last resort. The political stakes are dramatically high in this contest because how the Court inevitably decides on the Fourteenth Amendment issue—whether, for example, it rules decisively on the merits in favor of President Trump, thus defanging the Left’s arsenal, or whether it hedges and rules on procedural grounds only—might well determine the country’s fate, and that is without exaggeration.

There are two ways the Court might put the insurrection issue to rest for good. The Fourteenth Amendment, which was adopted in 1868, three years after the Civil War ended, states, in Section 3, that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office… under the United States… shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Importantly, the amendment excludes the office of President or Vice President and thus only applies to members of Congress and various other elected officials. Because nowhere else in the entire Constitution does the term “insurrection” arise in the context of holding elected office other than Sections 3 and 4 of the Fourteenth Amendment, it is readily conceivable that the so-called crime of “insurrection,” to the extent it even has a statutory analogue, patently does not apply to Presidents, Vice Presidents, or even former Presidents. The logic for this is intuitive: as head of state, it is inconceivable how a president might logically foment insurrection, whatever that term even means outside of the Civil War context, against his own government. The closest analogy in history might have been when King Charles II dissolved Parliament in 1681 to prevent it from declaring itself in charge of the royal succession, a historical analogy that is naturally riven with problems, not the least of which concerns any attempt at drawing parallels between the President of the United States and the King of England.

Certainly, however, no such example, even closely resembling the sort the Left is trying to sell in its ridiculous legal theory of a president fomenting insurrection against his own government, exists in our nation’s history. The closest, of course, would be Aaron Burr’s attempt to overthrow the government after having served as Vice President in the Jefferson administration. But, critically, the Burr case occurred decades before the Fourteenth Amendment was even ratified, so the analogy does not hold. Even still, however, the Supreme Court, presided over by John Marshall, arguably our greatest and most influential Chief Justice in history, acquitted Burr of all charges of seditious conspiracy. Despite Burr having led an actual rebellion against the United States government and even conspiring with foreign actors, such as the Empire of Spain, to help carry out his plot. The clemency Marshall afforded Burr, arguably an actual insurrectionist, and indeed his plot, which bears much more resemblance to the original meaning of the term under the Fourteenth Amendment, should really be the guidebook for how courts handle the Trump case. If someone like Burr, who had both the intent and even took meaningful steps towards armed rebellion and conspiracy against his own government, could be acquitted of all those charges, so too should Donald Trump, who absolutely did none of that, on related grounds.

Therefore, the easiest result, as a matter of law, would be for the Supreme Court to take the insurrection issue off the table entirely as applied to presidents. However, to the extent the Court falls short of that, it should narrowly circumscribe the meaning of the term insurrection to exactly that which its constitutional framers envisioned, namely, armed rebellion. Short of that standard, no presidential candidate (and especially not the frontrunner, one who even occupied that same office) should be denied ballot access for the alleged crime. The Supreme Court might look to the early debates surrounding the Impeachment Clause, Article II, Section 4. While not identical with treason, the constitutional term “insurrection” is related to the former term, which does appear in the relevant clause as follows: “The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The broader context that led to the inclusion of this phrase is noteworthy, particularly given the heated division among the Founding Fathers over the definition of “high crimes and misdemeanors.” Alexander Hamilton, for his part, believed the impeachment power should be limited to treason and bribery only, both of which had very specific, definite meanings. An originalist construction of the relevant clause would thus bear in mind the extremely high standard the Founding Fathers established for all such crimes. Moreover, consideration of the fact that the impeachment and removal remedy was not once, but twice, already invoked—for which Trump was acquitted of all alleged wrongdoing—should lend further support to the correct holding that neither President Trump—nor anyone—engaged in insurrection on January 6, 2021. Thus, to the extent that the Supreme Court does not theoretically take the question of insurrection off the table for Presidents of the United States, it should at the bare minimum rule that the alleged charge does not apply to any of the presidential contenders this cycle, and certainly not Donald Trump. In addition, it must narrowly define “insurrection” to its constitutionally intended (and historical) meaning, namely, cases of armed rebellion against the government only, a definition that is consistent with both the letter and spirit of the law.

The third option the Court might pursue is to prevent illegitimate actors, such as Maine and California’s Secretaries of State or even Colorado’s Supreme Court, from deciding the relevant constitutional question. Instead, the Court can hold that insurrection-related legal issues are either federal questions to be litigated in federal courts only (thus denying state officials the ability to render legal judgments on the issue) or that insurrection is a political question, something that is to be decided by the legislative branch and not the judiciary. By denying judicial actors the ability to render legal judgments on the matter, it would instead place the decision in the hands, not of unelected judges or secretaries of state, but of the American people, where such weighty questions should invariably be decided.

The ultimate authority in a democratic society formed by the consent of the governed is the will of the people. The people’s judgment should be the final arbiter for a question that can truly make or break our constitutional republic. The Supreme Court must bear that in mind when rendering its judgment, understanding that anything short of a categorical ruling, one that permanently knocks the wind out of the sails of the Left, so blatantly involved in political persecution, might well put to ruin what vestiges of these once united states remain.

Paul Ingrassia is a Legal Analyst, two-time Claremont Fellow, and served on President Trump’s National Economic Council. He writes a widely read Substack that is regularly re-truthed by President Trump. His Twitter handle is: @PaulIngrassia.

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About Paul Ingrassia

Paul Ingrassia is a Claremont Publius and John Marshall Fellow and served in President Trump’s National Economic Council. He graduated from Cornell Law School in 2022. His Twitter handle is: @PaulIngrassia.

Photo: WATERLOO, IOWA - DECEMBER 19: Republican presidential candidate and former U.S. President Donald Trump gestures as he wraps up a campaign event on December 19, 2023 in Waterloo, Iowa. Iowa Republicans will be the first to select their party's nomination for the 2024 presidential race, when they go to caucus on January 15, 2024. (Photo by Scott Olson/Getty Images)