We were intrigued by the reactions several days ago by the major Republican candidates for Governor to the Colorado Supreme Court’s 4-3 decision that Donald Trump is ineligible to be on thee Colorado primary ballot. Intrigued but not surprised.
Jay Ashcroft said, “The State of Missouri will reject” the ruling. “The people of this state will make a decision as to who they want to be President of the United States.” There’s a flaw in that proclamation. The ruling is not Missouri’s to reject. In fact there are Missourians who are turning handsprings and hoping it’s upheld. It’s a matter not from a Missouri Court but from a Colorado court and it is for the national justice system to decide on appeals.
Bill Eigel echoed, “Citizens pick presidents, not unelected liberal Justices.” In November, yes. But citizens also can bring lawsuits that might determine who’s on the Missouri ballot in November.
And Mike Kehoe sang from the same hymnal: “Voters have the right to decide who our President is, not unelected liberal judges.
How about unelected CONSERVATIVE judges? Are they the only ones who can make decisions such as these?
Or, maybe, should only ELECTED judges have the right to rule on constitutional questions? If they subscribe to that idea, they favor eliminating the Missouri Supreme Court, which is appointed.
What is it, gentlemen?
And while we’re at it, DID Trump engage in an insurrection on January 6, 2021 when he urged a big crowd to keep the Congress from certifying an election he lost?
Ashcroft, as the state’s top election official, is going to file a friend of the court brief supporting Trump’s candidacy when the case goes to the U.S. Supreme Court, presumably a court these three would endorse because Trump made sure it tilts conservative. A lower Colorado court had ruled that Trump could not be removed from the ballot because the 14th Amendment, the central arguing point for the Keep Trump folks, is vague about whether it covers the President of the United States. The issue is whether “officers of the United States” in the amendment includes the president who is the top officer of the United States. One of the responsibilities of Supreme Courts at the state and federal level is to clarify vague language in the statutes or the constitutions.
But how can a ruling from an unelected U. S. Supreme Court be acceptable regardless of what the ruling is because none of the Justices was elected, even the conservative ones?
Those who favor the concept of originalist interpretation of the Constitution will enjoy this.
Ashcroft also argues that the amendment refers to people who take an oath to “support” the Constitution. But the presidential oath swears to “preserve, protect and defend” the Constitution. It will be interesting to see how the judges in Washington D. C. split that hair. It sounds from our high observation point like a distinction without a difference.
What does that mean?
A check of the logicallyfalacious.com website offers this explanation:
Claim X is made where the truth of the claim requires a distinct difference between A and B.
There is NO distinct difference between A and B.
Therefore, claim X is incorrectly claimed to be true.
Can one “preserve, protect and defend” the Constitution without being in “support” of it? And in the reverse, can one “support” the Constitution without taking steps to “preserve, protect and defend” it?
As far as Ashcroft’s claim that “the people of the state will make a decision as to who they want to be President of the United States,” let’s wait to see if anybody files a lawsuit to keep Trump off the Missouri primary election ballot—-and how those unelected Missouri Supreme Court judges who early in their careers as lawyers had to take this oath:
I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Missouri;
That I will maintain the respect due courts of justice, judicial officers and members of my profession and will at all times conduct myself with dignity becoming of an officer of the court in which I appear;
That I will never seek to mislead the judge or jury by any artifice or false statement of fact or law;
That I will at all times conduct myself in accordance with the Rules of Professional Conduct; and,
That I will practice law to the best of my knowledge and ability and with consideration for the defenseless and oppressed.
So help me God.
The oath allows some latitude. It’s okay to substitute “affirm” for “swear,” and it’s okay to substitute “under the pains and penalties of perjury” instead of saying, “So help me God” at the end.
Someday we’ll discuss the silly argument against “unelected” people. After all, one of the three candidates we’ve just mentioned once was an unelected person serving in one of the state’s highest offices. That defect didn’t seem to limit his effectiveness in carrying out his sworn duties. Just for the record, this is the oath that the Governor and Lieutenant Governor of Missouri take:
I _________ do solemnly swear and affirm that I will support the Constitution of the United States and the Constitution of the State of Missouri and I will faithfully demean myself in the office of Governor (or Lt. Governor) of the State of Missouri.”
It’s different for members of the legislature. The first part is the same but after swearing to support the Constitutions, it continues, “and faithfully perform the duties of my office, and that I will not knowingly receive, directly or indirectly, any money or other valuable thing for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation allowed by law.”
—campaign contributions from those who approve of their voting record or who would benefit from their voting record notwithstanding (that part is not included).
Well, the Colorado case is headed to a bunch of unelected Justices in Washington to interpret a Constitutional Amendment written at the end of the Civil War to keep people like Robert E. Lee or our own Confederate Governor, Thomas C. Reynolds, who had sworn loyalty to the state and federal Constitutions and then tried to wipe out the government they’d sworn to uphold and protect to keep them from ever holding public office again.
University of Maryland law professor Mark Graber provides an almost line-by-line explanation of the amendment. We’ll find out eventually if this is the kind of thinking the Supreme Court will adopt, but his references to the original purpose of the amendment might be helpful to understanding in in its totality.
The unelected Justices have a special oath that actually is two oaths in one, a Judicial Oath and a Constitutional Oath:
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
These judges who have sworn to “support and defend” the Constitution might decide if the oaths they took mean they also “protect and preserve” the Constitution.
(This entry was misdated for January 3, 2023 by mistake but has since been placed in its proper chronological context thanks to the eye of a long-time friend who commented on it two days before it was supposed to appear here. let this be a reminder to all of us that it is now Twenty-twenty-FOUR).
