Best be careful for what one wishes. That’s our reaction to the case of the judge in New Mexico who disqualified a county commissioner and threw him out of office for his actions on January 6. The judge reckoned it was an insurrection — without so much as “boo” from a jury* — and banned him from office for life under the 14th Amendment. His aim was to achieve from the bench what could not be transacted at the ballot box. 

Few newspapers are covering this, but it strikes us as a moment to mark. For this kind of jackleg constitutionalism, which applies to today’s crisis an amendment enacted in the wake of the Civil War, is a blunt instrument. What’s to prevent a different judge with different politics from disqualifying for public office another local official who, say, participated in a Black Lives Matter riot — or some other protest that turned violent?

We hold no brief for the founder of “Cowboys for Trump,” Couy Griffin, whose behavior around the election was unbefitting of an elected official, or any American. He breached barricades, used a bullhorn to agitate the crowd besieging the Capitol, and all in all acted the clown. Yet the judge avers that the rioters achieved  “what the Confederates never did during the Civil War: They breached the Capitol building and seized the Capitol grounds.” 

We have no desire to understate the seriousness of what happened on January 6. We’ve already expressed ourselves on that head; it was very serious. Comparing January 6 to any of the events of the Civil War, though, strikes us an error of both kind and degree. At Gettysburg alone, there were more than 165,000 armed troops committed and casualties exceeded 50,000, a quarter of those engaged. That’s what the authors of the 14th Amendment feared.

In holding that an insurrection “need not rise to the level of trying to overthrow the government” but merely involve “resisting the government’s authority to execute a single law,” Judge Francis Mathew sets the bar low. In addressing the reality that Mr. Griffin did not commit violence himself, the jurist resorted to such abstruse observations as “every trespasser took up space” as part of an “intimidation by numbers.” 

This case against Mr. Griffin was pushed by Citizens for Responsibility and Ethics in Washington, a group that brags that it sued President Trump “on his first day in office” for violating the Emoluments Clauses. Another group, Free Speech for People, which led the efforts to disqualify Representatives Madison Cawthorn and Marjorie Taylor Greene, is celebrating the expulsion of this cowboy county commissioner.

In looking into the Disqualification Clause and finding it quick with relevance, Judge Mathew has set an example that it’s all too likely others will follow. Already, Free Speech has moved to publicly pressure state attorneys general to preemptively disqualify Mr. Trump. Law’s imprimatur has been given to the narrative of insurrection, hastening the very erosion of democracy that the Disqualification Clause hoped to forestall. 

________

* Mr. Griffin, in a separate proceeding, was convicted of “entering and remaining on restricted grounds” and acquitted of disorderly conduct. Judge Mathew states in his decision that a criminal  conviction “of any kind” is not necessary for disqualification, a civil penalty.