Colorado goes to the Supreme Court

Today, as expected, Donald Trump asked the Supreme Court to hear his challenge to the Colorado Supreme Court’s decision to remove him from the ballot in that state. The Supreme Court is very likely to take the case. Although the issue is presented here as a matter of Colorado state law (and the case in Maine as a matter of Maine law, and so on), ultimately, it involves who is qualified, under the Constitution, to be president of the United States. That’s a matter of federal law that has to be resolved by the highest court in the land at some point, with Trump running, and there is little point in putting it off. The 14th Amendment is a prohibition against “being” an officer like the president, not merely one of being on the ballot—it is about eligibility to take office if a candidate wins an election.

I’d planned on writing about the details of Trump’s petition tonight, but tomorrow is the first day of (law) school for me this term, and I’m going to call it an early night. But I can’t do that without pointing out the hubris in the opening lines of Trump’s request that the Supreme Court hear his appeal. He writes, “It is a ‘fundamental principle of our representative democracy embodied in the Constitution, that the people should choose whom they please to govern them.’”

Donald Trump, arguing the voters should be able to choose. Irony is dead.

The seminar I’m teaching this semester is titled “Democratic Institutions.” It is about the law, not about politics, but the two tend to intersect on occasion. So we start with this quote from President George W. Bush, describing the critical features of successful democracies in 2003. “Governments,” he said, “respond to the will of the people, and not the will of an elite.”

President Bush proceeded to delineate a set of basic norms shared by democratic societies:

• Successful societies protect freedom with the consistent and impartial rule of law, instead of selectively applying the law to punish political opponents.

• Successful societies allow room for healthy civic institutions—for political parties and labor unions and independent newspapers and broadcast media.

• Successful societies guarantee religious liberty—the right to serve and honor God without fear of persecution.

• Successful societies privatize their economies and secure the rights of property. They prohibit and punish official corruption and invest in the health and education of their people.

• They recognize the rights of women. And instead of directing hatred and resentment against others, successful societies appeal to the hopes of their own people.

Based on President Bush’s standards, we seem to be teetering on the edge. But I continue to take heart in the words of President Obama, from his January 2017 farewell address, where he said, “All of us, regardless of party, should throw ourselves into the task of rebuilding our democratic institutions.” He said that strengthening our democracy “depends on our participation; on each of us accepting the responsibility of citizenship, regardless of which way the pendulum of power swings.”

It’s likely that in that moment he didn’t fully envision how critical the role each of us plays as a private citizen was about to become. But we see it now. We have risen to that challenge once and we can do it again.

We’re in this together,

Joyce