No second chances for insurrectionist presidents
It's hardly anti-democratic to use the 14th Amendment to keep a democracy-destroying candidate off the ballot
The Colorado Supreme Court’s ruling that Donald Trump is ineligible to appear as a presidential candidate in that state’s GOP presidential primary was a dose of unqualifiedly good news (a parallel assessment by the Maine Secretary of State is also heartening, though both rulings are currently on hold as the decisions make their way through the appeals process; the Supreme Court will hear a challenge to the Colorado ruling in early February). The Colorado decision, based on language in Article 3 of the 14th Amendment to the Constitution that “disqualifies people who engage in insurrection against the Constitution after taking an oath to support it,” was the first win by those engaged in a multi-state effort to keep Trump off the ballot for the 2024 election.
Unfortunately, as political scientist Thomas Zimmer writes in a thorough assessment of the ruling and the urgent need to defend American democracy, “the discourse surrounding this decision and its broader implications is a complete mess,” with Zimmer pointing to both right-wing disinformation and centrist muddling of the issues involved. Equally shocking to me, though, is the lack of a unified Democratic Party response that might amplify a key finding by the Colorado judges: that Trump engaged in insurrection against the United States. Whatever the ultimate fate of this decision, this is an obvious cudgel to hammer home the message that Donald Trump engaged in rebellion against the United States, presents an ongoing danger to the republic, and is completely unfit to hold the presidency a second time. This line of attack may fall on deaf ears where hardened GOP partisans are concerned, but it may yet rally more persuadable GOP and centrist voters, as well as energize the Democratic base.
Democrats have an even greater incentive to trumpet this argument in the present moment, given the high probability that the Supreme Court will reverse this decision on some grounds or another, with the likely result that Trump and the GOP will claim that it clears Trump of “false” accusations regarding his acts of insurrection in late 2020 and early 2021. To avoid losing such a potent argument against Trump, Democrats and other defenders of democracy need to make a lot of noise right now regarding this affirming assessment by the Colorado court, with a primary goal of persuading and reminding American voters of Trump’s insurrectionism. Secondarily, in the event of an adverse Supreme Court ruling, this would allow the Democrats to hammer the ruling as nonsensical and reinforce that only a Democratic victory in 2024 can stop Trump. And in the unlikely event that the Supreme Court actually endorses the view that Trump engaged in insurrection, but nonetheless finds a way to keep him on the ballot, it would still benefit Democrats, and defenders of democracy, to shout from the rooftops now that Donald Trump engaged in war against the U.S. — in this latter case, they could then point to how even the Supreme Court agrees with the argument they’d been making all along! If Democrats truly believe Trump engaged in insurrection in 2020-21, then they need to be consistent, and not recoil from constitutional measures that would protect the U.S. from him.
Unfortunately, most Democratic politicians once again seem largely determined to take a hands-off approach to a legal proceeding concerning Trump, even when the issues involved go right to the heart of how to protect American democracy, and when the Republican Party feels no such compunction about trying to sway public opinion. The underlying reality, which many politicos and commentators seem determined to repress, is that Donald Trump is a historically unique danger to the United States because as president he launched a coup to stay in power after an election loss — an action that in a healthy democracy would be universally considered an unforgivable offense, one that at a minimum would disqualify such a politician in the eyes of voters from holding any future office. Alas, such is not the case in the U.S. today, where millions upon millions are either indifferent, in denial, or in open sympathy with the former president’s once and future intentions to tear down American democracy.
This inescapable, overriding reality — that Trump tried to overthrow our government by installing himself as president despite an election loss — is the crucial backdrop to understanding the fallacy of the widespread contention that keeping Trump off the ballot in 2024 would somehow be undemocratic. Republicans have embraced this view; mainstream pundits have embraced this view; even some on the left have embraced this view; and unfortunately, too many Democratic elected officials have embraced it as well.
A news analysis published by the New York Times serves as a decent bellwether for this flawed perspective, and a ripe target for interrogating its tenets. From the start, we’re presented with supposedly objective assertions that don’t hold up to minimum scrutiny, with the piece noting that the Colorado court ruling highlights a tension between “giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law [. . .] If the court’s legal reasoning is correct, obeying the rule of law produces an antidemocratic result.”As others have already pointed out, the notion that democracy and the rule of law are somehow opposed doesn’t really make sense; for most of us, democracy as we experience it in the United States is inseparable from the rule of law. The Times piece asks us to believe that the Colorado court has somehow imposed its judgment abstractly, drawing from this mysterious thing called “the law” that is somehow separate from democracy. This assumption is incorrect as a general idea, and certainly in this case, where the constitutional language in question was added by American legislators who had been elected by their constituents (granted, at a time when many Americans were denied the franchise). That is, the language exists in the constitution because of democracy, not in opposition to it.
You can see this mistaken reasoning operating at full tilt as the piece continues, as it notes that, “under the principle of democracy, the government’s legitimacy stems from the fact that voters decided whom to put in charge. The prospect of unelected judges denying voters the opportunity to make their own decision about Mr. Trump’s political future has given pause even to some of his critics who fervently hope Americans will reject him at the ballot box.” Here, “unelected judges” works to obscure the fact that the judges here are in fact simply applying what is clear language in the 14th Amendment — and even if you disagree in good faith and think there is ambiguity over the term “insurrection,” what the judges did here is what judges do across the spectrum of American law. This is how our government works - matters of constitutional dispute work their way up the judicial system. The “prospect of unelected judges denying voters the opportunity to make their own decision about Mr. Trump’s political future” is hardly an objective description of the situation, but an opinion that, in circular fashion, simply states as supposed fact the opinion of those opposed to the ruling. Similarly, “unelected judges” makes it seem as if judges simply appointed themselves, when in fact judges are generally either appointed by elected officials or directly elected themselves. To say that judge are divorced from our system of democratic elections and accountability is simply not true.
And when we are told that the judgment denies “voters the opportunity to make their own decision about Mr. Trump’s political future,” it ignores the reality that the Constitution already structures and limits our ability to elect our leaders, by providing the rules by which our democracy functions. At the most basic level, the reason we elect a president is because the president is a position identified in the Constitution, along with senators and representatives. And many observers have already reminded us that the Constitution sets other restrictions on who can be president (he or she must be at least 35 years old and born a U.S. citizen), and that the 14th Amendment, Article 3 language is no different a restriction.
The Times goes on to note that, “If the Supreme Court now overturns the Colorado ruling, it will be leaning in the direction of letting voters decide about Mr. Trump; upholding the state court’s ruling would be the opposite.” I think these assertions get to the heart of the matter, for the basic problem is that Donald Trump has already violated the idea that voters decide elections, by launching a coup attempt — an insurrection — to undo the will of the majority of voters (and the Electoral College) in 2020; allowing him to stay on the ballot means enabling him to try yet again to reject the majority’s will, this time potentially successfully. At its core, the 14th Amendment provision would prevent Trump from violating voter choice again.
Most decisive to me, though, is a point that has necessarily been absent from the flimflam critiques of the Colorado ruling found in the Times and in the broader scolding discourse. Arguments that allowing Trump to remain on the ballot represents a triumph of democracy rest on the tacit and false assumption that the man who engaged in insurrection once before to retain office will now simply run for office adhering to democratic norms, and would likewise govern in adherence to these norms. Regarding his new run for the presidency, the two most important norms that come to my mind are a willingness to accept the election results and a commitment to non-violent politics. Trump has already failed to meet either basic threshold. As part of his campaign, he has attempted to incite violence against his political enemies through dehumanizing and inflammatory language. Such inciting language must be given particular weight since he already once attempted to overthrow American democracy, in part by employing similar language.
More critically, though, by continuing to reject the 2020 election results, Trump is very clearly signaling that he will likewise reject the 2024 election results should they not go his way — a point he has also explicitly made. In fact, this preemptive rejection of an adverse 2024 outcome forms a malevolent continuity with his denials around 2020, and should properly be seen as insurrectionary in nature. (And even if Trump were to declare that he will indeed accept the 2024 elections results, even if he loses — well, what reasonable person would assess such a declaration to be in any way believable? As Greg Sargent rightly points out, someone who broke his oath once cannot be trusted to follow his oath of fealty to the Constitution again.) The likelihood, verging on near certainty, that Donald Trump would not hesitate to launch a second insurrection to regain office is the reality that the right and much of mainstream opinion would prefer to keep submerged (such efforts might range from recruiting GOP politicos to distort election results to the full-on deployment of violent resistance). And yet it is a reality that defenders of democracy, including Democrats, must acknowledge when considering how to discuss and support efforts to keep Donald Trump off the ballot for 2024.
Beyond his predictable conduct in the upcoming election, Donald Trump’s stated intention to act in an unconstitutional, dictatorial manner if elected reinforces the applicability of the disqualification clause. It is true that future intent is not mentioned in the 14th Amendment, but when you consider that Trump’s lawless presidency would merely take up where his failed coup left off, you can grasp even more clearly why he should not be allowed on the ballot again.
Whether or not disqualification survives the Supreme Court gauntlet that awaits it, any reasonable sorting through the issues at play opens up a robust discussion of Trump’s insurrectionism and his fundamental disqualification from ever holding office again, even beyond the Constitution’s prohibitory language. From this perspective, such a dialogue is invaluable, and attempts to shut it down should be viewed as deeply suspect and ultimately rooted in a refusal to confront Trump’s insurrectionism in its malign totality.
To reiterate a point that seems to have gained traction in recent days: What was actually anti-democratic was Donald Trump trying to mount a coup to overturn the 2020 election. Failing to reckon with this fact leads critics of the 14th Amendment language to the logically absurd position that it is as anti-democratic to keep a known insurrectionist off the ballot as it is for that candidate to have committed insurrection in the first place. Many who oppose Trump but also question the 14th Amendment remedy tell us that the truly democratic solution is to beat Donald Trump in the 2024 election. But of course we know that Donald Trump can very well legally win the election by undemocratic means — by getting more votes in the Electoral College than in the popular vote. Indeed, this appears to be his most plausible path to victory, just as it turned out to be in 2016. For deeply recondite reasons, though, we are supposed to believe that the Constitution is to be followed if it allows Trump to win undemocratically, but is not to be followed when it “undemocratically” bans him for his insurrectionary acts.
The “disqualification is anti-democratic” angle would have us believe that it’s anti-democratic because millions of Americans would not be able to vote for their choice for president — but people making this case must necessarily ignore the other side of the equation: the ability of people who want to choose someone other than Trump to be able to make their choice as well. As I noted above, the anti-democratic angle requires an assumption that, should Trump lose the election, the other candidate — presumably Joe Biden — would become the president, and democracy will have prevailed in substance as well as procedure. But the notion that Trump would simply concede if the major media call the election for Biden requires ignoring the reality of what happened in 2020 and the obviously authoritarian nature of Trump’s bid for another term in office.
If nothing else, the deliberately obfuscatory public discussion of whether the Constitution says that Trump should be banned from running again reveals the depths of denial regarding the threat of a third Trump candidacy. There can be little doubt that Trump’s campaign, when in full swing, will involve ever more explicit efforts to incite violence, destabilize the U.S. government, and sow doubt about the coming election results — in other words, to perpetuate the insurrection that Trump began in 2020 and which arguably never ended, but only went temporarily underground. Americans, very much including elected officials and those tasked with covering the news, face a stark choice: they can either address this unacceptable reality head on, or pretend either that it is not happening or is a reasonable form of democratic politics. The basic fact of Trump’s insurrectionism needs to be kept front and center as the 2024 campaign progresses; to abandon the discussion of the 14th Amendment’s disqualification provision to those who speak in bad faith or in deep denial of basic facts would be an unforced error on the part of democracy’s defenders.