By Rachel Suh
Here, in America, we do not have self-executing criminality. That kind of theory belongs in Russia, China, or North Korea. Surely, it does not belong in a country whose government is based in personal freedom and fair representation.
It used to be that, in America, if a person was a criminal that means they broke a law, were charged by the state, and were convicted of such violations by a jury trial, thus afforded the Due Process that every American is supposed to receive when accused of a crime.
At least, this was the process before the Colorado Supreme Court recently decided it wasn’t, forcing a dissenting Justice to opine that he has never seen anything like this in his 33 years in the Justice System.
Unfortunately, with Due Process now being the dissenting opinion of the courts, it appears that punishment for crime can be enforced without any further requirement of conviction through a jury trial.
The Colorado Supreme Court’s ruling has become a national concern because they just ruled a Presidential candidate is an insurrectionist, despite never being charged or convicted with insurrection — which is a Class 5 felony in Colorado, and a federal violation under Title 18 of federal code, making it a criminal act constituting punishment by government for the stated offenses, not a civil redress to make a victim whole.
The politicization of Due Process in our judicial system has caused the entire country to now question whether our courts are legitimate or bouncing around making up political fodder, new procedures for Due Process for crime, and new definitions to words that define a criminal act strictly for political reasons.
Because both current state and federal definitions of insurrection make it a crime, disqualification would require the government bring criminal charges- whether that is through the state of Colorado or the Feds- against Trump and for him to be convicted through a jury trial. One path to conviction is moot because Colorado requires the insurrection to take place within state lines, and if any insurrection took place, it was in Washington D.C. This means that only the Feds can charge Trump with insurrection, and the FBI has already stated there is scant evidence to charge him.
However, the legal precedent the Colorado Supreme whimsically made up is that a clause discussing a criminal act in our Constitution does not require Due Process because the clause is self-executing. To note, “Engage in insurrection,” is legal verbiage that is synonymous with “Participate in a criminal act,” that is then defined as the crime of insurrection.
To understand this in everyday terminology, the Colorado Supreme Court states that someone can be punished for a crime because the clause does not expressly state conviction is required for the crime in criminal court, so finding him guilty is “self-executing” through acting alone. To note, no federal or state law for a criminal act (that I know of) states a person must be convicted explicitly, so this opens up self-executing criminality for almost every offense, meaning once you break the law, Due Process is not necessary for the government to inflict punishment, because the illegal act alone triggers the reaction of government punishment.
This is not a new concept. In fact, the Revolutionary War was fought, in part, because Colonists were not receiving fair trials and were being convicted of crimes without trial. This happens in many other countries across the world today, but we usually think of those countries as despotic or banana republics where the Constitution of those countries have been redefined to the point of uselessness.
This concept is, however, new in America, as this issue was already ruled on in 1869 in the Circuit Courts by Supreme Court Justice Samuel Chase in the case In Re Griffin (1869), where he states that Due Process must exist to determine if someone actually ‘engaged’ in insurrection, and that Congress has sole enforcement authority, as stated in section 5 of the 14th Amendment. Congress agreed, and one year later, they passed the Enforcement Act (1871) that stated that a District Attorney had to disqualify a candidate under grounds of being an insurrectionist through a conviction in federal criminal courts and that their trials had to be heard before all others. This enforcement became moot when Lincoln and Congress pardoned all insurrectionists, and the law was eventually repealed in 1925, due to no living survivors from the Civil War Era.
Congress has chosen not to enforce section 3 since then.
So when the Colorado Supreme Court makes up this new precedent that criminal conduct can be punished through self-execution of the law, it eliminates a founding American Principle that one must be presumed innocent until found guilty beyond a reasonable doubt of the crime by a jury of their peers, the very discussion Samuel Chase had when opining on Section 3 just one year after ratification.
As he stated, and I will emphasize, this should be extremely concerning to every American.
Especially because 14.3 is not self-executing in any way (as Samuel Chase opines) — there is no exception to Due Process in the Constitution for 14.3 — because it is not a severable clause from 14.1 (or the rest of the Constitution), which explicitly codifies procedural Due Process that later extends to the criminal conduct discussed in 14.3, which is solely enforced by Congress, as expressly stated in 14.5, which states that enforcement of the Amendment will be done through appropriate legislation passed by Congress (and Congress can’t suspend Habeas Corpus for political enemies). Samuel Chase’s timely ruling was not appealed to the Supreme Court, as it made sense to everyone of the time, and was consistent with American principles of Due Process and the plain meaning of the words of the 14th Amendment.
I, for one, am not a proponent of Trump. I am, however, a passionate proponent of Constitutional Rights, and find it very concerning that a State Supreme Court has stated we do not need Due Process for self-executing criminality, and that millions of Americans agree with this (coincidentally, the disdain some have for fair trials could be why the Founders ensured Due Process against those who don’t like having to actually convict people they hate of a crime, and it was enshrined in three Amendments in the Bill of Rights).
I have to admit, having witnessed many people be convicted in the court of public opinion to be relegated as actual criminals without a detainment, arrest, charge, or conviction in criminal courts has chilled me to the bone.
While many people in Colorado and across the country state Due Process shouldn’t or doesn’t need to exist to disqualify Trump from the ballot, in reality, not giving him this right damages the true meaning of the Constitution, violates everyone’s rights through whimsical jurisprudence, and turns our judicial system into kangaroo courts while allowing those who run for office to be lied about and now convicted of crimes they’ve never faced a jury for, and allows political expediency into our criminal system that tries to legitimize targeting political opponents through redefining words and blurring procedural Due Process.
Further flying down the path of an illegitimate Judicial System and government by making Due Process a dissenting viewpoint of the courts, the Colorado Supreme Court also set no legal standard or requirement for saying a candidate does not qualify for the ballot in Colorado. There is no need for a conviction, no need to determine true qualification because unilateral powers were granted to a singular person to determine whether a candidate meets their personal standards of qualification for the ballot, just because they have the title of Secretary of State.
Therefore, this issue goes far beyond Trump and destroys the very foundation of American Freedom. The Revolutionary War was fought, in part, because fair trials were not being given to colonists and they did not have the same Rights as those in Britain. If we continue to allow the use of the courts to interfere in free and fair elections, we are no longer America, just simply another failed Republic in the rubble heap of history, where candidates are kept from the ballot based on the redefining of our entire political structure.
Is this what Trump’s opponents want, simply because they hate him?
Rachel Suh lives in Pagosa Springs, and is a Certified SCRUM Master and Strategic Consultant working in facilitation, mentoring, training, and coaching. She has a passionate hobby of Political Activism.
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