Disqualifying Trump Is Not Anti-democratic
In the short weeks since the Colorado Supreme Court threw Donald Trump off the ballot on the grounds that he is barred from office for engaging in “insurrection or rebellion” under the Fourteenth Amendment, the apologists for a man who tried to overthrow the constitutional order by fraud and then force have become pious apostles of democracy.
Republicans and conservative media figures have criticized the decision as “an attack on democracy” and “pro-tyranny.” The latter sentiment was also shared on the center-right, where more sober voices such as The New York Times’ Ross Douthat wrote, “Removing an opposition candidate from the ballot, indeed, a candidate currently leading in some polling averages … through the exercise of judicial power is a remarkably antidemocratic act.” A more straightforward summary from the Times legal reporter Charlie Savage described the ruling as pitting “one fundamental value against another: giving voters in a democracy the right to pick their leaders versus ensuring that no one is above the law.” This argument is simple and intuitive: People should get to vote for whomever they want to vote for.
Democracy is not simply voting; it includes limits on how and under what circumstances political power can be disputed and wielded so that democracy itself can survive from generation to generation. For this reason, democratic constitutions have counter-majoritarian limits; in fact, democracies cannot function without durable rules that set guidelines for contesting political power. That is the entire purpose of a written constitution, to place certain rights and principles outside the back-and-forth of normal political competition. Americans generally accept that these rules cannot be altered except through the formal process for doing so—constitutional amendment—and so, until that happens, democratic competition takes place within the lines that have been previously agreed upon. It is not somehow more democratic to pretend those rules don’t exist if they fall out of fashion with one side. The prospect of allowing Trump on the ballot is not itself so dire, but doing so demands disregarding the rule of law on Trump's behalf simply because of who he is.
There is little factual dispute over whether Trump attempted to seize power by fraud—pressuring state and federal officials to alter the election results—and then force, in the form of sending a mob to coerce Congress into reversing the election results. The real question is whether the Fourteenth Amendment’s ban on candidates who have broken an oath to defend the Constitution by engaging in “insurrection or rebellion” should be enforced. Crucially, those qualifications were adopted a century and a half ago in the aftermath of the Civil War, not simply as a means to sanction Trump, and he is among the vanishingly few it could be reasonably applied to.
[Adam Serwer: Who’s afraid of calling Donald Trump an insurrectionist?]
What the people who now want us to ignore the Fourteenth Amendment are arguing is that certain aspects of the Constitution ought to be nullified merely by their unpopularity—not even necessarily among a majority of voters but among a subset of extra-special voters. This is not a standard applied to any other aspect of the American Constitution in any other circumstance. It is an entirely novel standard invented for the benefit of Donald Trump. In effect, they are arguing for a set of unwritten Trump Rules that would exempt the former president from broadly applicable standards.
Consider: Republicans have won the popular vote once since 1988, yet they have secured the presidency with minority support two additional times through the Electoral College, an awkward compromise with slavery and the small states made at the Founding. A majority of Americans, including most Democrats, regard the Electoral College as antidemocratic and want to abolish it, but there has never been a legal challenge that sought to persuade the Supreme Court to do so. The Senate is another counter-majoritarian institution that greatly enhances the political influence of the Republican coalition in less populous rural states; there are no court cases advocating for its abolition on such grounds. The Senate filibuster has become a minority veto, but the Senate sets its own rules, and so the only means to change it is with the support of a majority of senators. Judicial review is nowhere explicitly stated in the Constitution, but expecting the judiciary to abolish its own power would be folly. Americans cannot elect as president anyone younger than 35, or anyone who was not born an American citizen. Barack Obama is barred from running again, and no one of any consequence suggested, at the end of his second term, that he be allowed to ignore that prohibition simply because he might have been popular enough to win.
The Fourteenth Amendment’s ban on insurrectionists is, in a sense, a direct consequence of the Founders’ entanglement with the slave power, the source of many of the Constitution’s most infamous elements. It has lain dormant because Trump is the only American president to try to overthrow the constitutional order by fraud and force. And still it is limited: A Republican candidate who espoused the same beliefs as Trump would not be disqualified unless they were part of that effort and in an oath-sworn office at the time. Those arguing against disqualification are demanding the provision not be heeded in one of the only circumstances it could reasonably apply.
Given that no one is suggesting that the Electoral College or the Supreme Court or the Senate can simply be ignored simply because they are antidemocratic or because many Americans don’t like them, the question is why the Fourteenth Amendment should be ignored. And here, the answer seems to be that Trump and Trump supporters retain a special power of constitutional nullification that no other American constituency possesses.
For example, the liberal writer Jonathan Chait argues that disqualifying Trump “would be seen forever by tens of millions of Americans as a negation of democracy.” Similarly, the Yale Law professor Samuel Moyn has written that “rejecting Mr. Trump’s candidacy could well invite a repeat of the kind of violence that led to the prohibition on insurrectionists in public life in the first place.” What Moyn describes is not democracy but a hostage situation.
If the fear of violence from one political faction is sufficient justification for disregarding the rule of law, then the rule of law cannot be said to exist. Disqualifying Trump would unquestionably spark a perilous backlash. I have outlined the political arguments in favor of keeping him on the ballot before. I agree that the least destabilizing outcome for democracy is a Trump defeat at the ballot box. But those making the argument against disqualification should understand the breadth of the political argument they are making, which is that a political faction capable of credibly leveraging the threat of violence will be allowed to randomly and arbitrarily decide what the law is. That is not democracy; that is domination. As the New York Times columnist David French writes, “Republics are not maintained by cowardice.”
[George T. Conway III: Trump’s Supreme Court blunderbuss]
The purpose of a written Constitution is to delineate the rules for governing society. If political leaders who reach a certain level of popularity—or whose supporters threaten mass violence—can simply ignore the rules, then there are no rules. Restrictions that disqualify potential candidates are not necessary if the candidates don’t have popular support; they are necessary only when that person might reasonably be expected to win if he were on the ballot. Nor do Trump or his supporters believe that qualifications for office are inherently suspect: Trump owes his rise in the GOP to a racist conspiracy theory questioning Obama’s citizenship, a gesture he is now repeating against his Republican rival Nikki Haley.
The argument that Trump cannot be disqualified because it would enrage his supporters applies as much to criminal prosecution and civil sanction as it does to disqualification. Trump himself has threatened “death and destruction” in response to being indicted, and “tens of millions” of his supporters will see a conviction or even defeat as a “negation of democracy” as surely as they would disqualification. This logic ultimately rules out any limits on Trump’s will of any kind, a troubling notion given that Trump’s lawyer yesterday asserted that a president can murder his political rivals without risk of prosecution unless impeached. Chait himself has previously recognized this danger, arguing that the price of ignoring presidential criminality “is simply too high for our country to bear.” As the legal journalist Garrett Epps writes, “To create special rules for Donald Trump would be to perfect the assault he has mounted on American law.” It is a remarkable triumph that one can now read affirmations of the Trump Rules from both the left and right.
Why Trump in particular is entitled to his own laws and his own Constitution remains unclear to me. Despite Trump’s loss of the popular vote in three straight elections, many commentators across the political spectrum regard him implicitly or explicitly as he regards himself, as the unassailable avatar of Real Americans, whose conservative beliefs grant them a superior claim to political legitimacy, one that supersedes the political rights of every other American and the Constitution itself. As another New York Times columnist, Jamelle Bouie, writes, “Trump’s voters are not the only ones who count.”
I do not expect this Supreme Court, among the most partisan in memory, to follow the majority’s originalist pretensions and disqualify Trump, even though that decision could not be caricatured as partisan gameship from this arch-conservative Court. More disturbing is the reasoning from the commentariat in favor of keeping him on the ballot that amounts to a backhanded endorsement of Trump’s belief that he is above the law.
The arguments in favor of obeying the Trump Rules are much broader than they appear: Their proponents are not simply arguing against Trump’s disqualification. They are arguing that neither the Constitution nor the law should apply to a figure popular enough to disregard them. And in this, this logic echoes Trump at his most base and grotesque. Insurrection? When you are a star, they let you do it.