Last week, a Colorado judge, in a hearing to decide if Trump should be removed from the presidential ballot in Colorado on the basis of violating the insurrection clause of the Fourteenth Amendment (‘Section Three’), ruled that Trump did commit insurrection, but still should be on the ballot because he is not considered an “Officer.” Needless to say, the actual decision was surprising: finding Trump committed insurrection is harder (the Constitution doesn’t define insurrection), but it’s absolutely clear he’s an officer. Not only is the president referred to as an officer elsewhere in the Constitution*, but, when you consider the obvious intent of the authors of the Fourteenth Amendment, the judge’s ruling is absurd (boldface mine):

…can you seriously imagine that our 19th-century ratifier—an informed, loyal American who had just lived through a brutal war that took more than 600,000 lives for the sole reason that Southern whites would not accept that Abraham Lincoln won the 1860 election—would have understood Section 3 to mean that a traitor couldn’t be a Senator, or a Representative, or a governor, or a state legislator, or for that matter a dog-catcher—but that Robert E. Frickin’ Lee could turn his coat one more time, swear he really would support the Constitution this time, and waltz into the White House?

I cannot. This is what philosophers call “self-stultifying”— so self-contradictory that its very utterance undermines the idea of meaning itself.

There is no way the authors would have thought Robert E. Lee was ineligible to be a member of Congress, but would have been allowed to be the president.

But it’s also clear that the judiciary–and not just this judge–doesn’t want to be the branch that finally, and belatedly, fulfills its duty to the Constitution and the Republic. If you’re a judge and you’ve watched the Department of Justice drag its heels in prosecuting Trump, and the Senate refuse–twice!–to convict Trump, do you really want to be the person who prevents Trump from being on the ballot? Elie Mystal argues no (boldface mine):

It’s the kind of thing you write when you know the right answer but are afraid of the consequences of that answer…

At this point, barring Trump from the ballot feels more like a way for a judge to get impeached by a Republican state legislature than a way to stop Trump from running as a Republican.

…Even if there is some judge out there with the courage to apply the Constitution to a white man from Queens, if you think state court judges are good at finding legal technicalities to avoid uncomfortable decisions, wait till you see how the pros on the Supreme Court do it. There is simply no way on this round Earth that Chief Justice John Roberts is going to put himself and his court in between Trump and a presidential election…

Put simply: Section Three asks too much of judges. It asks them to save democracy (as in preventing traitors to democracy from ever rising to power again) by destroying democracy (as in preventing voters from reelecting traitors if that is their wish). It’s just not a thing judges or courts can do, even if they’re acting in good faith, and not a thing they’re willing to do when they’re acting in bad faith.

Should Trump be on the ballot? No. Will the courts protects us? Also no, so Democrats better win the election.