The Scripture warns: “My people are destroyed for lack of knowledge. … ” A lack of knowledge is ignorance, and the word ignorance has become a pejorative meaning “mentally deficient.” Definitionally speaking, however, that is incorrect. Ignorance has absolutely nothing to do with intellect; it has to do with a lack of exposure, with simply not having received proper instruction on a particular issue.

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We’ve all heard the maxim, “Ignorance of the law is no defense.” But if that applies to ordinary citizens, then it certainly applies to judges as well.

The recent Colorado Supreme Court decision in Anderson v. Griswold disqualified former President Donald Trump from appearing on the ballot in Colorado’s primary. In my estimation, this decision is so fraught with legal error that it can boggle the mind. That this decision can be considered to have legal merit shows us that our contemporary legal education system falls woefully short. Very simply, the law schools are failing to teach the law.

Judicial Decisions: Are They Law?

Typically, a law school’s entire course of study over three years concentrates on what is known as “tertiary law,” and this is itself a legal misnomer. More precisely, students are taught that there are three types of law: primary, secondary, and tertiary. Primary law involves the Constitution itself. Secondary law is statutory — those laws that are legislatively enacted. Tertiary law involves case opinions or “judge-made” law. But under Article III of the Constitution, judges are given no such law-making authority. So how can a judicial decision be labeled “law”? Even more perplexing, why is this the predominant type of “law” that is now taught and studied in the law schools? That can never equip the legal community to preserve our constitutional republic as the Founders intended.

Perhaps these sorts of errors stand out to me because I tend to think from a jurisprudential or legal-philosophy perspective, as opposed to the point of view held by most lawyers or historians. But I believe that pointing out such errors helps make their egregious nature more clear. And that’s important.

First, in the present case, the term primary “election” is something of a misnomer. Primaries do not elect anyone to office. They are merely intra-party nominations. General elections are the only true elections constitutionally afforded to the people. Primaries are the creation of a society that has embraced the factions we call political parties, and this allows those parties to select and put forward a preferred candidate for the general election. Seeing it that way brings up a host of questions and issues. For one, how can Colorado legitimize a statute that enables a complaint concerning an intra-party nomination to be brought forward by nonmember plaintiffs? To any who might argue, “Well, four of the six were,” I would insist that such factual analysis cannot cure the deficiency within the underlying law.

Factions: A Caveat

Ultimately, one has to wonder about the rationale behind any state’s making taxpayers pay the expenses of a private political party nomination. This is especially questionable when we consider the strong warning against such factions made by George Washington in his Farewell Address. He was adamant that embracing such partisanship would foster excessive divisiveness:

“Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally. This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy. … Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.”

This is a harsh rebuke of political parties. But I’m not trying to take a position disdainful of parties, because when properly managed, they serve the important function of assisting voters to know the candidates’ views. Unfortunately, wherever there is (as with the Republican Party) any hesitancy about disallowing party affiliation for those who clearly do not align with the platform (as seen with liberal Sen. Susan Collins), party affiliation tends to lose any meaning and merit it might otherwise afford. In such cases, it serves only to increase polarization. Consequently, governmental engagement in private political party functions is devoid of any legitimate governmental purpose and ultimately fuels divisiveness — using taxpayer dollars. It also opens the door to governmental intrusion into private party and nongovernmental decisions. The actions of the Colorado Supreme Court are a prime example of just this sort of inappropriate governmental overreach.

Statutory Construction: Inclusions and Exclusions

Another misstep by the Colorado Supreme Court is its failure to apply the correct rules of statutory construction. Expressio unius est exclusio alterius is a well-established principle in statutory construction. This Latin phrase means that when one or more things of a class are expressly mentioned, others of that same class are intentionally excluded. The court’s analysis of Section 3 of the 14th Amendment ignored this principle when it cast any and every office into the definition of “officer.” Here is the actual language of Section 3:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

What is odd is to assume that the offices of president and vice president were meant to be included in some mere laundry list of persons, without being listed specifically. To suggest that the drafters chose instead to begin with the lower offices of senator and congressional representative but intended to include president and vice president only within the generic term “officer of the United States” is legally indefensible. Assuredly, I’m not arguing that someone who has truly advocated for the overthrow of the Constitution ought to be qualified to hold the highest office in the nation. But there’s no evidence whatsoever that President Trump committed insurrection. And since the drafters of Section 3 did not include the offices of president or vice president in this plain language of Section 3, they clearly anticipated that such a high position would be protected by the collective knowledge and will of the people in casting their votes.

Wisdom and Knowledge: How We Keep the Republic

Time does not allow me to dive deeper into the substantive errors of the Colorado decision, but highlighting a few of the procedural shortcomings may suffice. We all know the famous quote from Benjamin Franklin that we have been given a republic, if we can keep it. But it seems even more of a challenge to “keep it” when some of the greatest legal minds of the day are oblivious to the basic rules of statutory construction — to the point that this state Supreme Court decision can be rendered and virtually no one references the rule of expressio unius est exclusio alterius. I repeat, ignorance of the law is no defense, and this should be especially true of our legal community.

Again, Hosea 4:6 warns that God’s people are “destroyed for lack of knowledge.” Such a lack of knowledge is surely the very definition of ignorance. Let us, therefore, pray that any spirit of ignorance that opens the door to spirits of confusion and chaos may be exposed and routed. Let us thank the LORD that King Jesus defeated every enemy of the truth at the cross, and that we have authority to stand over our nation and pray for revelation, understanding, order, and unity. Let us hold boldly to the declaration that Jesus is the truth, and that we shall know the truth, and that the truth shall set us free. And let us remember that where the Spirit of the Lord is, there is liberty! Finally, let’s not grow weary in well doing, fully knowing that in due season, we shall reap. May God bless America!

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Cynthia Dunbar is an attorney, an author, a constitutional scholar, a Regent University professor of government, a former law professor at Liberty University, an ordained minister through the Federation of Ministers & Churches International, and an IFA board member. She and IFA President and CEO Dave Kubal co-host Constitutional Corner. Follow Cynthia on X or Instagram; view her videos on Freedom Focus; or schedule her here to speak at your next event. Photo Credit: Gage Skidmore from Peoria, AZ, United States of America – Donald Trump, CC BY-SA 2.0, Wikimedia Commons)