The Colorado Court Decision: A Test Case for Arguing Well

Philosophy emphasizes that an intellectual virtue of great importance is the cultivation of excellence at attending to evidence. Such a venture resides at the heart of the rational enterprise, which has as its goal nothing less than truth itself. Truth-seeking and rationality are vital to our humanness, and to practice thinking well is an eminently valuable habit to develop. As we are headed into what promises to be a contentious election year, it may be useful to bring to bear these philosophical insights on a pressing but vexed social issue and to consider how they can support our mission to be salt and light for a world in desperate need of both.

Acknowledging the Challenge

Suppose now that we take up the recent Colorado Supreme Court decision that Donald Trump is unfit for the presidency as a test case for practicing this virtue. I think this a worthwhile effort. The analysis to follow will strive to avoid deriding ideological opponents as perverse, that is, arguments of derision that go after the holders of opinions rather than opinions themselves. It will also assiduously attempt to steer clear of an assortment of other informal logical fallacies, from false equivalences to ad hominems, question begging to non sequiturs, red herrings to straw men, poisoning the well to confirmation bias.

The effort presupposes that it is still possible to have rich intellectual discourse between people of good will who hold strongly opposed convictions, including political convictions. It may not be easy, but it is at least possible. And since sometimes the people we are disagreeing with are family and friends, it’s worth trying to get better at. I say this as one who’s often hit the wrong note, pushed too hard, been needlessly abrasive, and so forth. I’m likely to fall into a few of these traps in this very essay, so forgive me in advance. That the almost lost art of mutually respectful, robust civil discourse remains feasible is something of a tenet of (hopefully principled) faith animating this analysis. Admittedly this belief resides more comfortably within a modern than a postmodern context. Also, and importantly, the approach does not assume that a stance of complete neutrality is necessary, or even possible, but it at least aims for what objectivity is realistically practicable to achieve. It resists the cynical view that there is nothing but subjectivity.

Part of what makes this recent Court decision challenging to use as a test case is that all around it swirls rhetoric about the distorting influence of the worst sort of partisanship. It also involves moral judgment calls, and for those who uphold strict dichotomies between facts and values, invoking categories of morality can seem to some anything but neutral or objective. As one who thinks there are objective moral facts—torturing kids for fun is objectively wrong, for example—I’m not averse to incorporating axiomatic moral convictions into the discussion, and I don’t think doing so compromises objectivity, but rather presupposes it. Truth telling is (at least generally) good. Lying is (at least usually) bad. Kindness is a virtue. Love beats hate. And so on.

As for partisanship, it seems the best course of action is to assess each accusation of warping partisanship on its merits. Not every partisan is a rabid partisan; not every politician or jurist simply follows the script of their preferred political party. On occasion, at least, politicians rise above partisan rancor and attain the status of diplomats and statesmen. Some put their love of country above their political affiliations. The Founding Fathers could foresee the acidulous effects of rabid partisanship, and warned about it from the inception of the nation. They at least hoped it could be held enough in check that it wouldn’t destroy the country. I harbor the same hope. One of the telltale signs of the worst form of partisanship is the inability to conceive of oneself as ever problematically partisan, and a corresponding inability to see political rivals as anything but problematically partisan. This will not be part of my modus operandi.

Laying out the Case

So with all that said, let’s consider the Colorado decision. By a vote of 4 to 3, the finding of the High Court in Colorado was that Donald Trump, for being guilty of insurrection on and before January 6, 2021, is disqualified for public office. The decision was based on a clause in Section 3 of the 14th Amendment to the Constitution that says that people are ineligible to hold any federal or state office if they took an oath to uphold the Constitution in one of various government roles, including as an “officer of the United States,” and then engaged in insurrection or rebellion against the United States or aided its enemies. The Colorado court recognized the significant import of the decision, and included a “stay” that awaits further review by the Supreme Court of the United States. Several other states are considering similar cases, and with the prospect of different states arriving at different conclusions, a Supreme Court adjudication seems both needed and likely.

To begin with, then, there are two conceptually separable issues: (1) whether or not Trump was guilty of insurrection, and (2) even if so, whether the Supreme Court should interpret the Insurrection Clause as applicable to Trump. The lower court decision in Colorado illustrates the potential disconnect between (1) and (2). In that earlier decision, it was accepted that Trump was guilty of insurrection. Nevertheless, questions arose about the applicability of the Clause to Trump. As a result, the case failed, before it was appealed to the State Supreme Court.

Why did the lower court argue that the Clause did not apply to Trump, despite that they thought he had engaged in insurrection? A reading according to which “officer of the United States” did not include the president. Ruth Marcus at the Washington Post rejects that reading as implausible, and affirms the state Supreme Court for rejecting it. She writes, “It defies logic to believe that the framers of the amendment meant to exclude former Confederate soldiers from all offices but the most important and the Colorado Supreme Court was correct to disagree with this interpretation.” The High Court deemed that interpretation inconsistent with the plain language and history of Section Three.

The majority of the State Supreme Court agreed with both (1) and (2). That is, they agreed that Trump engaged in insurrectionist behavior on and before January 6, and that the Clause properly applies to him. As a result, they arrived at their conclusion. The case had been brought to court by a number of conservatives, but all the judges in the case had been appointed by a Democrat, which inevitably raises issues of the role of partisanship in all of this. But what we see from the start is that the picture is a bit messy, since the case was brought by conservatives. And analysis of the decision is also complicated. Whereas many conservatives are likely to disagree with the decision, just as many liberals are likely to support it; even still, no small number of conservatives support the decision, and some liberals resist it.

To offer but a smattering of examples, conservative legal analyst (and strong Never Trumper) Robert George thinks the Supreme Court decision a bad one, while a plethora of liberal legal analysts have chimed in to support the decision. At the same time, though, conservative analyst and former federal judge J. Michael Luttig has supported the Court’s decision, while liberal analyst Ruth Marcus rejects the decision and thinks the Supreme Court should do so as well, and do so unanimously. Generally, though, at least, those of a more conservative political persuasion resist the decision, while those more on the political left accept it.

By way of disclosure, I tend toward the political right on a great many issues. In fact, I voted for Trump twice. Nevertheless, I have come to agree that he is unfit for the office of the presidency, and—though I admit that I am not a trained lawyer—the case that the Insurrectionist Clause applies to Trump seems a good one to me.

Establishing Ground Rules

But if we are to have a fruitful conversation about this question, we cannot and must not simply ask for a person’s political affiliation and then chalk up their stance to that, either for purposes of agreeing or disagreeing. We—all of us—need to insist on looking carefully at the evidence. A real danger lurks here, and many in our contemporary moment are increasingly falling into a perspectivalist trap, where everything becomes irremediably subjective and attributable to (say) one’s prior political convictions. Such a movement toward a relativistic stance spells doom for rich civil discourse and meaningful engagement. As challenging as it may be, we have to do better, and the only way forward is by encouraging a scrupulously honest appraisal of the evidence that we have at our disposal. We all may retain our blind spots, but all the more reason we must learn to really listen to one another. (All the more so when we consider that the animus among at least some in the populace is likely because they feel ignored, discarded, sidelined, trivialized, and the like.)

A move that seems out of bounds right out of the gate is to dismiss the Colorado Supreme Court as motivated by nothing but political partisanship. Perhaps they are, though it seems rather unlikely, but perhaps. Perhaps they are not. Conjectures either way are not particularly evidential. What good reason is there to think that they are problematically partisan? Remember that the case was brought by conservatives. Is that not relevant? Cherry picking evidence is not a good intellectual habit. Nor is casting shade on people’s political motivations without considering the evidence. What good reasons are there for thinking the State Supreme Court in Colorado was politically motivated? That their decision is unpopular among many conservatives is not a good reason. What evidence did they adduce in their majority decision? That is where we need to direct our attention first. Simply to dismiss them and cast aspersions on their motivations is presumptuous, uncharitable, and an instance of ad hominem. In our contentious political moment, we have to do better than that.

The Court appeared soberly aware of the import and potential impact of their decision. The majority wrote, “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.” The charitable move here is to take them at their word, assume their good faith, and examine the case they make and the reasons for their decision. Using their presumed motives to avoid doing so is hardly conducive to civil discourse and borders intellectual dishonesty.

Regarding (2), we already saw that they rejected the lower court judge’s view that the Clause did not apply to Trump. To my thinking, this seems right. I agree with the majority view here and with Ruth Marcus as well. If someone wishes to demur, they should make the case that the presidency is a legitimate exception to the Clause. If the Clause applies to lower offices, it seems logical that it would apply all the more to the highest office of all. Perhaps there is some good reason to reject such a notion, but if so, what is it? And what is the argument for the exception? As for me and my house, I see little reason at this point to be skeptical about applying the Clause to Trump.

Considering the Evidence

Which leads to the bigger question: Was Trump guilty of insurrection? Once more, the way to answer this question is by careful examination of the evidence. I have not, admittedly, read the 800-page report by the January 6 Commission. I did, however, recently read cover to cover Liz Cheney’s 370-page book about January 6 and what happened before and after it, and I found the case for Trump’s insurrection to be strongly compelling.

Once more, by way of anticipation of a knee-jerk response to this disclosure, it is simply out of bounds to dismiss the findings of the Commission by dubbing it as partisan-motivated. Marco Rubio, for example, has repeatedly denounced the insurrection, saying it was “inexcusable,” “disgusting,” “unpatriotic,” and “anti-American anarchy.” However, regarding the Commission, he followed the talking points of several of his conservative colleagues, saying on Face the Nation, “That commission is a scam. I think it's a complete partisan scam. And I think anyone who committed a crime on January 6 should be prosecuted and, if convicted, put in jail.”

Here Rubio’s skepticism about the Commission echoed that of Trump’s and others of his ilk: that the Commission was partisan and cannot be relied on to give an accurate picture of January 6. But of course assertion is not argument. So what is the argument or evidence that the Commission was problematically partisan and thus unreliable? One recurring motif is that, save for Liz Cheney and Adam Kinzinger, all the other Republicans were summarily dismissed from the Committee. Now, I’m no Washington insider and I wasn’t there to witness what happened. But this is a matter that seems easily answered. Did that happen or not? It’s a quite simple empirical question.

Cheney’s account was that Pelosi had the right of refusal for any Republican nominees to the Commission, and she refused two or three, including, not surprisingly, Trump sycophant Jim Jordan. Other Republicans she accepted. Republicans then had the option to replace those who had been rejected. But instead they withdrew altogether, claiming, falsely, that they had been summarily dismissed. I see no reason not to believe Cheney’s account, and a number of reasons to be skeptical of Trump’s. Besides which, the notion that a group made up predominantly of Democrats cannot be trusted to do their job with integrity seems, once more, to be little more than ad hominem. What good reason is there to think that those who would say such a thing are not the ones who are problematically partisan? What were the Republicans afraid the Commission would find? In light of what the Commission did find, I think we know.

If someone has genuine evidence that the Commission was unreliable, they should be forthright with what that evidence is. Positing possibilities isn’t establishing plausibilities. At least be as forthright as the Commission was in painstakingly chronicling the events of that day and what led up to it. Personally, I do not see how anyone can read Cheney’s book and listen to one heartbreaking story after another and not be deeply grieved over what happened. Nor how they could still say with a straight face that Trump did not foment an insurrection designed to reverse a lawful election.

There is a legitimate way to call into question the results of an election in this country. File lawsuits and take it to the courts. No one denied Trump’s freedom to do so, and he did. And he lost. He lost 60 of 61 cases. He lost impressively, spectacularly, and prodigiously. Then, having lost, he resorted to a panoply of efforts to reverse the election illegitimately. Read Cheney’s book and count the ways. Then he enlisted his zealous supporters, having whipped them into a frenzy, to engage in what was sure to devolve into a violent protest at the Capitol, and for more than three hours did nothing to stop it. This despite numerous desperate pleas for help from those on Capitol Hill trying to run for cover. Arguably, he instead threw gasoline on the fire with his infamous tweet calling Pence a coward while knowing the crowd was on the hunt for his Vice President. That there were not more fatalities that day was a grace, and a testament to the bravery of patriots fending off the misguided crowd who thought they were doing Trump’s bidding.

Interestingly, though Trump was free to pursue legal cases to reverse the election results, some are insisting that the Colorado court decision is the move of a “banana republic.” It’s an effort, we’re told, to disenfranchise half the country. This is hyperbolic and simply false. The tactics that Trump has followed, especially around January 6, resemble the machinations of dictators the world over. The Colorado court decision is measured, principled, and based on the rule of law. America is a constitutional republic, and the case is following its constitutional course. How it is adjudicated in the Supreme Court, if they choose to take the case, remains to be seen and is impossible to predict. But just as Trump had every right to challenge the election in court, so too those who brought this civil case in Colorado had the right to have their day in court. A banana republic hardly features a court, with some fear and trembling, offering their decision and admitting they are moving into uncharted waters and that their decision is subject to review by a higher court. Such dismissive rhetoric is laughably hyperbolic.

Whether the Clause will be applicable to Trump or not remains to be seen, but this is the messy way the judiciary in this country works. Cases are brought before judges. Verdicts are issued. Appellate courts can be appealed to. Some cases make it to state Supreme Courts. And some go all the way to the Highest Court in the land. Unlike Trump, though, the plaintiffs in the Colorado case are perfectly willing to abide by the decisions of the Court—whether they agree with them or not.

Examining Counterarguments

Now, some push this line: in order for the Clause to apply to Trump, he needs to have already been convicted of insurrection. From what I understand, this is not true. Either there is an established answer, or it’s a matter that needs further clarification in the law. But again, I am under the impression that the answer is that prior conviction is not necessary. Legal analyst Norm Eisen writes, “The 14A does NOT require a conviction for Trump to be disqualified—it merely asks courts to determine whether he committed insurrection.” So this argument seems to fail.

Another reason some give to think that Trump did not commit insurrection is that, if he had committed it, he would have already been convicted. But of course this is not necessarily so. Whether such a thing happens depends on a great many contingent political factors. Of course Trump has been brought to court for an incredibly high number of alleged offenses, and certain of his cronies have been brought to court for their assistance of him in various nefarious adventures, and several convicted. That Trump has not yet been convicted of insurrection is not good evidence that he shouldn’t be or that he won’t be. This is an ongoing story, and there is good reason to think that he will in fact, at long last, get his just desserts for the way he subverted the Constitution and illegitimately attempted to reverse a legitimate election. Note, too, that the Clause employs a disjunction: insurrection or rebellion against the Constitution. The January 6 Commission, for its part, made the case he did just that. That the DOJ has been slow to follow through is arguably as attributable to wanting to dot all their I’s and cross all their T’s as it is to not having a case. The case can be found in the Commission’s report, many would argue.

And this is exactly why the Colorado decision, to my thinking, is a good thing. It will force the issue. Based on the evidence, which needs to be studied carefully, was Trump guilty of insurrection and/or rebellion, or not? The case that he was has been made quite forcefully. Ignoring the evidence does not make it go away. Intellectual honesty demands attentiveness to the evidence.

Others wring their hands over the Colorado decision for this reason: It’s a problematic move because it carries the risk of disenfranchising half the nation. I have a hard time taking this one seriously, in all honesty, because it was Trump who strove assiduously via every mechanism, judicial and nonjudicial, he could think of to reverse the results of a legitimate election. Trump is the one who tried to disenfranchise. We learn more details of this scheme every day, with a new recording of him pressuring Michigan officials coming to light just today. The Colorado Supreme Court took on a case brought to them by a number of conservatives, looked at the law, and came up with their determinations, knowing they were subject to further review. That’s how it works in this country. That’s how it should work. And then the court decisions need to be abided by, a lesson Trump does not seem to recognize.

If Trump was guilty of insurrection, then the Clause in question says he should not be on the primary ballot. That is a fact. That the preponderance of prospective Republican voters would vote for Trump does not alter that fact. Neither can they vote for someone under 35 or for others outside the scope dictated by the Constitution. Perhaps some might wish to eliminate such clauses, but if so, their beef is less with the Colorado Supreme Court than with the Constitution.

Some are concerned what the effects of a ban on Trump to run in some or all states would look like. They are concerned about potential violence. And surely this is a concern, especially the more we move away from being a nation of laws. The Colorado judges have already been inundated with a barrage of death threats—pretty obviously an appeal to force, yet another fallacious maneuver, and a scary one. The nation may be approaching a crossroads where they need to decide whether capitulation to the mob trumps the rule of law. The most vitriolic and aggressive of Trumpians (hopefully a small minority) have already shown themselves ready and willing to engage in gross violence to support his narrative, irrespective of the paucity of evidence for its truth. Demonization of enemies and toxic rhetoric has considerably changed the complexion of the political landscape. Trump seems to have a knack for tapping into discontent and channeling it to destructive ends.

What the majority in the Colorado Supreme Court found was this: “President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.”

Finally, the vote was 4 to 3, which means there were three dissenting opinions. Some think that, if Trump sees victory in the Supreme Court, one or more of these avenues may be his path to the win.

Analyzing Divergent Perspectives

Ruth Marcus considers this one the most interesting: Justice Carlos Samour Jr. said that barring Trump from the ballot without legislation from Congress implementing Section 3 violates Trump’s due process rights, especially because Trump has not been charged with insurrection. “More broadly, I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” Samour wrote. “Surely, this enlargement of state power is antithetical to the framers’ intent.”

Marcus thinks this a good reason for the Supreme Court to step in. As do I. Somehow, though, she also takes it to be a reason for the Supreme Court to strike down the decision. I do not. The evidence and the evidence alone should determine whether or not the Clause applies to Trump. The Supreme Court can make a decision that ensures state uniformity, but the content of the uniformity should be a function of the evidence alone.

In this connection, Samour raised the question of whether Section 3 is “self-executing.” Here, the justices have the benefit of a decision by Chief Justice Salmon P. Chase in 1869—the year after the 14th Amendment was ratified—that Section 3 requires enabling legislation.

Marcus is of the view that “there is no world in which the justices are going to empower states to throw Trump off their ballots. Given that, the court should keep in mind: This is a moment it should aspire to be the unanimous court of Brown v. Board of Education, not the splintered, party-line body of Bush v. Gore.”

I’m not sure why she’s so convinced that Trump won’t be removed from the ballot. I hope it’s because she thinks the evidence points in that direction, and not capitulation to mob rule. The question seems to be a good one: If Trump is guilty of insurrection, should he be removed from the ballot? Someone might argue the answer is “no,” but I hardly think that’s the obviously right answer. We need arguments to this effect. Either deny for principled reasons that Trump is thus guilty, argue the Constitution should be changed, or admit that, in virtue of his actions, he should be disqualified.

Conservative legal analyst George Conway has a quite different take on this issue of whether Section 3 is self-executing. He admits that this argument comes closest in the dissents to a federal law issue that should give someone pause. Again, it’s the claim that the Clause can’t be enforced unless Congress passes a law detailing how. Conway replies, though, that all one needs to do is what any good originalist or textualist would do and look at the wording of the Clause. Although Section 5 of the Amendment gives Congress the power to enact enforcement legislation, nowhere does the Amendment suggest that such legislation is required. And Conway goes on to give highly counterintuitive implications of insisting on such a requirement.

Conway also debunks Samour’s claim that Trump was deprived of due process by the proceedings in the district court. There was a full-blown, five-day trial with sworn witnesses and lots of documentary exhibits. “And Samour’s suggestion that Trump was denied a fair trial because he didn’t have a jury is almost embarrassing: Any first-year law student who has taken civil procedure could tell you that election cases are not even close to the sort of litigation to which a Seventh Amendment jury-trial right would attach.”

I don’t here presume to be able to adjudicate these finer-grained aspects of jurisprudence. But I do think telling that Conway finds all of the various dissenting arguments weak. Whether the Supreme Court will or not, I have no idea. But why not give them a chance to look at the evidence for themselves and make their determination? I won’t reiterate Conway’s analysis of the other dissenting views, but his conclusion was this: “The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.” If nothing else, this makes me think that casual dismissals of the Colorado Supreme Court’s decision are hasty.

Finally, what is remarkably illuminating and indicting is that not one of the dissenting opinions challenged the district court’s factual finding that Trump had engaged in an insurrection.

So where does that leave us? I hope the Supreme Court chimes in eventually and makes its decisions. Whatever those decisions are, they should be abided by. Not because they are sure to get it right, but because this is what it means to live in a nation of laws. Of course civil disobedience is an option, but the sanguine rapidity with which some make recourse to violence when they do not get their way is a recipe for anarchy like we saw on January 6. It marks a collapse of civil discourse, and it does not bode well.

Moving Forward

Should Cheney’s views be dismissed by conservatives because, after all, she takes a “progressive” stance on some issues? I know that may sound strange, but I’ve heard such an argument, which seems like a non sequitur, ad hominem, and red herring rolled into one. Unless such a stance somehow relates to her work on the Commission, its relevance is unclear. Should we refrain from holding Trump’s feet to the fire because Biden has been allowed to get away with bad mistakes? That seems nothing but an elaborate false equivalency. I am no fan of Biden, but as far as I know, he has not fomented an insurrection that threatened the institutions of our country as Trump has. Is the Colorado decision the first step toward a banana republic? I hardly think so, as it’s a legitimate case brought before a state Supreme Court and the decision is subject to further judicial review. Such overblown rhetoric does nothing to advance the discussion, and teeters at the brink of an unprincipled slippery slope argument. Does the fact that the judges in the case were appointed by a Democrat undermine their authority? Not at all; that’s just poisoning the well and flagrant ad hominem.

I don't claim to have the definitive answer and plenty of people can disagree with me. But I have tried here to clearly map out what my reasoning is, to highlight the evidence I am relying on, and to make plain my priorities and values that have directed my pursuit of the truth of the matter. In doing so, I hope that I have modeled the intellectual and emotional skills necessary for wrangling a complex and charged issue, providing a framework for further engagement, and setting a tone for productive conversations to follow.

Let’s lower the volume, lessen the bombast, reduce the dogmatism, attenuate the demonization of opposing sides, and together let’s be attentive to the evidence. Let’s criticize viewpoints more than people. Let’s cultivate better listening habits. Let’s not take every criticism of our own viewpoint as a personal attack. None of this can guarantee that we’ll resolve every dispute to everyone’s satisfaction, which would be quite a mean feat. But it’s our best bet to think rationally, argue well, follow the evidence, show due regard for the truth, and value those with whom we disagree.

And let’s try to learn as much as we teach. If no amount of evidence can convince someone, that’s a paradigmatic example of patent irrationality—and there’s too much of that already, on both sides of the aisle. We can and should do better.