Stop trying to make me feel better about this execrable Colorado supreme court decision! I kid, I kid, because this time I find myself in total agreement with Vivek Ramaswamy. After a 4-3 decision essentially imposed the judicial version of a bill of attainder on Donald Trump, Ramaswamy defended his competitor from “an *actual* attack on democracy.” If Trump’s not on the ballot for the Republican primary in Colorado, then Ramaswamy wants his name off too.

Sounds like a Luther Ingram song, but Ramaswamy deserves credit for standing up against the anti-democratic nature of the state’s high court:

This is what an *actual* attack on democracy looks like: in an un-American, unconstitutional, and *unprecedented* decision, a cabal of Democrat judges are barring Trump from the ballot in Colorado. Having tried every trick in the book to eliminate President Trump from running in…

— Vivek Ramaswamy (@VivekGRamaswamy) December 19, 2023

Ramaswamy went on to maneuver this into an attack on everyone else in the race:

“I pledge to *withdraw* from the Colorado GOP primary unless Trump is also allowed to be on the state’s ballot, and I demand that Ron DeSantis, Chris Christie, and Nikki Haley to do the same immediately – or else they are tacitly endorsing this illegal maneuver which will have disastrous consequences for our country,” he added. “Today’s decision is the latest election interference tactic to silence political opponents and swing the election for whatever puppet the Democrats put up this time by depriving Americans of the right to vote for their candidate of choice.”

It may not come down to that anyway. In the aftermath of the ruling, the Republican Party of Colorado announced that they would end their participation in the state-run primary system, if the Supreme Court does not overturn it. Instead, they will adopt a binding caucus system for the purpose of presidential nominations:

The Colorado Republican Party has announced its decision to withdraw as a party and transition to a pure caucus system, allowing them to independently select their nominee if the ruling to keep former President Trump off the ballot stands.

The party made this groundbreaking announcement on December 20, 2023, in response to the ongoing controversy surrounding the eligibility of former President Trump to run for office. The move to convert to a caucus system is seen as a strategic maneuver to ensure the party’s ability to choose its candidate without external interference. …

A caucus system allows party members to gather at local meetings to discuss and debate the candidates before voting on their preferred nominee. This system has its roots in early American democracy and offers a more direct and participatory approach to selecting candidates. By adopting this system, the Colorado Republican Party hopes to engage its members and give them a stronger voice in the nomination process.

That would cut the state out entirely and allow the party to set its own eligibility requirements. In fact, if the COGOP adopts a “pure” caucus system, the party wouldn’t set those requirements at all; the voters would do that themselves in the caucus meetings. If other states keep attempting this bogus maneuver, caucuses may become popular all over again.

That still leaves Trump and the COGOP with a problem. Theoretically, this would still leave the issue of Trump’s eligibility for the Colorado ballot in the general election. If the Supreme Court doesn’t overturn it, the state court could order Trump’s name off of the final ballot, leaving Joe Biden running all but unopposed. Ramaswamy offers his legal argument for overturning the decision:

The 14th Amendment was part of the “Reconstruction Amendments” that were ratified following the Civil War. It was passed to prohibit former Confederate military and political leaders from holding high federal or state office. These men had clearly taken part in a rebellion against the United States: the Civil War. That makes it all the more absurd that a left-wing group in Colorado is asking a federal court to disqualify the 45th President on the same grounds, equating his speech to rebellion against the United States.

And there’s another legal problem: Trump is not a former “officer of the United States,” as that term is used in the Constitution, meaning Section 3 does not apply. As the Supreme Court explained in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010), an “officer of the United States” is someone appointed by the President to aid him in his duties under Article II, Section 2. The term does not apply to elected officials, and certainly not to the President himself.

Those are pretty good arguments against this use of the 14th Amendment, but the affront in this case is much more basic. Colorado’s supreme court has pronounced a man guilty of a federal crime (insurrection) for which he has not even been charged, a charge that Congress did not bring in Trump’s impeachment (and at which Trump had been acquitted by the Senate anyway). Furthermore, even if “insurrection” is a crime found within Colorado’s statutes, the alleged actions took place 2,000 miles outside of the jurisdiction of Colorado — and remains uncharged in Colorado.

Earlier, I referred to this as a judicial version of a bill of attainder. In England prior to the American Revolution, Parliament issued such bills declaring certain citizens as traitors without benefit of a trial, a defense, or a jury to consider evidence,. These bills stripped people of their liberty, their property, and their political rights, which we see in this case. The framers of the Constitution explicitly barred Congress from bills of Attainder (Article I, Section 9), but also barred the government from all other ways of declaring criminal guilt without due process. Article III, Section 2 expressly forbids the finding of criminal guilt without a jury, and enforces proper jurisdiction too:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

In other words, the Constitution imposes a presumption of innocence on the judiciary in regard to criminal guilt. Judges do not have the power to simply declare people guilty of crimes without a criminal trial in the jurisdiction where the crime allegedly occurred. And that declaration of criminal guilt requires a jury (unless the accused waives that right).

And just in case anyone got confused on this point, the framers added the Fifth Amendment to make this point even more explicit:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In other words, a court can’t even take up a criminal case without an indictment from a grand jury or a presentment by proper prosecutorial authority, let alone continue to a finding of guilt. A lawsuit by political opponents of a candidate does not satisfy any of these conditions. The courts in Colorado had no business determining the criminal guilt of Trump for any alleged actions on January 6th, let alone depriving him of his political rights to access to the ballot as a candidate of his party.

For these reasons, I foresee a fairly quick and rather easy path for the Supreme Court. They don’t need to delve into the history of the 14th Amendment, although perhaps they may want to do so. The court can strike this decision down on its core violations of black-letter constitutional rights for due process and lack of jurisdiction. And they can do that quickly, without argument on other extraneous matters, because the core of this case is: A citizen is presumed innocent of a crime until convicted of it in court by a jury of his peers.

Or has Colorado abandoned the presumption of innocence?

When the dust settles — and I’d bet that it will by the end of next week at the latest — both Trump and Ramaswamy will be on the ballot, along with the rest of the Republican candidates. The voters will get to choose whether they think the events of January 6 should keep Trump from public office, because until he gets charged and convicted for “insurrection,” that’s where the choice lies.