Justice  /  Argument

The Supreme Court Should Get Out of the Insurrection Business

Who is to decide whether Donald Trump must answer for Jan. 6? The Constitution provides the answer.

Section 3 squarely covers oath-breaking insurrectionist presidents seeking to regain presidential power. When Americans debated Section 3 in the mid-1860s, it was widely understood that Section 3 aimed to prevent Confederate leaders like Jefferson Davis from becoming president. No prominent participant is known to have ever said that this provision somehow exempted oath-breaking presidents. Similarly, no one claimed that Section 3 somehow overlooked other leading oath-breakers seeking the presidency. Even Mr. Trump’s own lawyers appear to concede this last point in their recent filings.

But the question remains: Who is to decide, and using what legal procedures, whether Mr. Trump himself must answer for Jan. 6?

The Constitution provides the answer. It structures a 50-state solution in which different states may properly use different procedures and protocols, and different standards of proof, to apply Section 3. Some states, like Colorado, may carefully police ballot access even in primary elections. Others will focus more on the general ballot. Still others may wait until vote tabulation begins. Yet another cluster of states may defer to Congress as the last actor when Electoral College ballots are unsealed. In past elections, Congress has at times refused to count improper electoral votes.

Under the 50-state solution, facts as found by a state trial court in Colorado permit that state to act. But other states using different procedures are free to act differently, or not at all. What happens in Denver stays in Denver, unless other states choose to follow suit. In 1860, Lincoln was not on the ballot in every state; ditto for Ralph Nader in 2000. Welcome to the Electoral College.

But what about democracy? The first-insurrection concept reminds us that those who attack elections cannot justly complain when they are disfavored in later elections. Turnabout is fair play. And the 50-state-solution notion reminds us that Americans have never picked presidents in a single undifferentiated national contest. Eight years ago, constitutional federalism made Mr. Trump president even though Hillary Clinton won millions more votes nationally. This time around, constitutional federalism may well disfavor Mr. Trump.