Don’t thwart democracy to save it
Judicial activists on the Colorado Supreme Court overreached in their 4-to-3 ruling removing former President Donald Trump from Colorado's 2024 ballot. While news of the decision excited many on the left, the ruling is the sort of anti-democratic decision that would make Trump proud.
The court concluded that Trump participated in an insurrection against the United States on Jan. 6, 2021, and therefore was disqualified from the presidency under the Fourteenth Amendment.
That amendment, among other things, bars those who “have engaged in insurrection or rebellion against the” country from various federal offices.
“We are mindful of the magnitude and weight of the questions now before us,” the court majority wrote.
“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.”
However, the majority goes on to concede that they “are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression.”
Without wading through the legal weeds, the fundamental error of the court majority is that Trump has yet to be convicted, or even charged, with the crime of insurrection. While the word could certainly fit his disgraceful conduct leading up to and on Jan. 6, 2021, a legal determination of this demands due process. This is America, after all.
Echoing this very point was Justice Carlos Samour in his dissenting opinion: “I recognize the need to defend and protect our democracy
against those who seek to undermine the peaceful transfer of power. And I embrace the judiciary’s solemn role in upholding and applying the law. But that solemn role necessarily includes ensuring our courts afford everyone who comes before them (in criminal and civil proceedings alike) due process of law.”
That’s right.
As Reason Magazine’s
Eric Boehm notes, “there are other, far more democratic ways to prevent dangerous, unfit candidates from becoming president (like, say, by defeating them in open, fair elections)” than simply allowing judges to easily invoke the Fourteenth Amendment to force candidates off the ballot.
What the Colorado Supreme Court has done is give the former president yet another talking point to make his case that the supposedly crooked political establishment is out to get him — him, specifically. While it remains to be seen whether enough Americans actually want to go through another four years of President Trump, the court has inserted itself where it isn’t needed.
The best way for antitrump Americans to stop Trump is to beat him at the ballot box once again. These people tend to drone on, ad nauseum, about how much they love democracy and how everything they do is to save democracy. Their actions should match their words.
Recently, the presidents of Harvard, MIT, and Penn appeared before Congress to address rising concerns about antisemitism on their campuses, a concern intensified by the recent Hamas-israel conflict. In their formal statements and in response to congressional committee questions, they acknowledged the tension between free speech and the legitimate regulation of certain types of provocative rhetoric.
But Rep. Elise Stefanik grew impatient with what she saw as their hesitance in addressing extreme anti-semitic speech. She directly pressed each one of them: “Would calling for the genocide of Jews constitute a violation of the code of conduct at your school, yes or no?” Each of them balked, insisting that it depended upon the context.
The event ignited a torrent of debate, culminating in the resignation of Penn’s president and calls to remove the other two figures involved. For many Republicans, this incident was a prime opportunity to raise grievances against academic institutions, particularly the burgeoning embrace of Palestinian activism within elite liberalism and the proliferation of Diversity, Equity, and Inclusion (DEI) agendas. However, the outrage was bipartisan; Democrats too were appalled. President Joe Biden’s office quickly stated that calls for genocide are “counter to everything this country stands for.”
Many quickly focused on a stark inconsistency: the differing treatments of pro-palestinian student speech and other inflammatory rhetoric. Universities have been vigilant in sanctioning harmful speech, endorsing the idea that “Words are violence.” The presidents’ calls for context seemed to highlight a double standard.
Consider several illustrative examples. In 2017, Harvard revoked admission offers over privately made racist comments. Hamline University terminated a lecturer for displaying an image of the Prophet Muhammad, deemed offensive. A USC professor faced disciplinary action for unintentionally using a Chinese term that resembles a racial slur in English. At Yale, two professors advocating for the right to choose Halloween costumes, a stance in favor of free speech, were effectively ousted. Their position clashed with the prevailing campus ethos favoring “safe spaces.”
Why does the threshold for offensive speech shift when Jews are involved? As Andrew Sullivan pointedly observed, these are not double standards. “There is a single standard: It is fine to malign, abuse and denigrate ‘oppressors’ and forbidden to do so against the ‘oppressed.’”
American universities and corporations increasingly sort people by morally ranked identity groups. The perceived level of a group’s oppression dictates its moral standing. Historically viewed as victims due to centuries of oppression, Jews now often find themselves labeled as White oppressors.
Andrew Sullivan argues that the concept of “merit” is increasingly scorned on campuses, overshadowed by the notion that only power dynamics matter. In this view, those in positions of power are automatically cast as morally inferior oppressors.
DEI initiatives, born from noble intentions, aim to address past oppression. Western civilizations, like most, have pursued power. But the West has been particularly adept at achieving it—often with corresponding greater destruction. Acknowledging this tumultuous past is important and beneficial. However, this reflection often devolves into a nihilistic and performative repudiation of the West. It coincides with a troubling trend of overlooking or self-censoring discussions about intolerance towards Jews and others categorized as oppressors.
The focus on oppressor versus oppressed has led to an era of competitive victimhood, often encouraged by universities. The impulse to support the oppressed over the oppressor is noble yet fraught with complexities. Victimhood, in some cases, has evolved into a sought-after status, a shift from venerating resilience to valorizing vulnerability.
This shift complicates navigating intersectional grievances. How do we balance feminist ideals with trans-rights activism, or the historical suffering of certain religious minorities with LGBT interests?
The answer isn’t further speech restrictions but a commitment from academic institutions to uphold true academic freedom. This requires clear, strong free speech policies, transforming universities into forums for open debate, not cultural or political battlegrounds. Essential measures include forbidding tactics like heckler’s vetoes, disruptive protests, and classroom disruptions. Promoting a range of viewpoints is vital, moving past dominant hard-left, postmodern, or intersectional ideologies that can impede real knowledge and understanding.
Joshua Claybourn is an attorney and historian.
Visit him online at Joshuaclaybourn.com and on X @Joshuaclaybourn.