Friday, December 29, 2023

Addressing Purported "Anti-Democratic" Concerns in Barring Trump From the Presidency

Maine has now joined with Colorado to deny former President Donald Trump access to the ballot in the 2024 presidential primary elections, likely affecting his ability to appear on the general election ballot in those two states, too, if he's named the GOP nominee.

This action is entirely justified, and more states, where they're able to do so, should take it. Trump engaged in an insurrection against the United States and the Constitution when, on January 6, 2021, he used incendiary rhetoric and encouraged a mob of his loyalists to go to the U.S. Capitol building, to protest in person the outcome of the 2020 presidential election, which he lost to now-President Joe Biden — that action resulted in the violent breach of the building, threatening the lives of lawmakers inside.

For several hours after the attack, rather than encourage his mob to halt their actions or to order the National Guard to stop them, Trump reportedly watched the situation with glee, while also calling lawmakers in Congress and using the situation to try to convince them to agree to vote against certifying the Electoral College.

There can be no doubt that these actions violated Section 3 of the 14th Amendment. So, too, did the plot to use "fake" electors to disrupt the Electoral College, as the amendment states clearly that an insurrection against the Constitution, too, disqualifies former elected officials from being able to serve again.

But which entities decide who is an insurrectionist or not? And isn't forbidding Trump from being able to appear on the ballot anti-democratic? Let's address both of these questions, one at a time...

Deciding Who Is an Insurrectionist

The 14th Amendment doesn't explicitly state who gets to make the determination of who is an insurrectionist. Here's its full text (parts in bold done for emphasis):

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.

The amendment sets up how to define who is barred from holding office again:

  • A person who has engaged in insurrection against the Constitution, having previously held a position of governmental power and made an oath to that document;

  • And/or a person who has aided or comforted those who have.

It also provides a mechanism for allowing those who have engaged in such actions to have their restrictions removed — by a two-thirds vote of Congress. 

But the amendment doesn't explain how we determine who is an insurrectionist. It's important to look at history, then, to see how the amendment has been applied, but also to look at other parts of the Constitution to see how to do it as well.

The 10th Amendment of the U.S. Constitution — the last amendment of the Bill of Rights — provides an answer to the ambiguity question. It states, as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Notably, no person who has ever been held accountable to the standards of Section 3 of the 14th Amendment needed to be convicted before being barred from running for office

Addressing the "Anti-Democratic" Concerns in Barring Trump From Running

Keeping Trump from running for president indeed takes away an option from voters to select whom they want to run. But the Constitution creates other conditions for the presidency, too, that are similarly "anti-democratic" — no person under the age of 35 can serve as president, for example, and no person not born in the United States can do so, either. 

In the early 2000s, amid his popularity as a governor of California, Republicans considered changing the Constitution to allow Arnold Schwarzenegger to run for president. It didn't really go anywhere, but that's a clear example of how the Constitution is, in some ways, anti-democratic when it comes to who can run for president. Republicans in the mid-1800s, concerned that Confederates who formerly served as lawmakers in the U.S. Congress could run for office again, instituted Section 3 of the 14th Amendment. The language of that amendment made clear that it could be used again, beyond the immediate post-war years of the Civil War, if other lawmakers engaged in similar acts of rebellion or insurrection.

I bring up these two events to make this broader point: The question over whether barring Trump from running is anti-democratic, under Section 3's provisions, is the wrong way to examine the issue — rather, the question should be framed as to whether each individual candidate meets the constitutional criteria or conditions to run. If we look at it that way, any person who violates Section 3 of the 14th Amendment is disqualified. That's the bottom line.

That includes Trump, for the reasons outlined above.

One further point: barring a person who wants to end democratic norms from being able to run for office again is itself a protection of democracy, not an attack on it. Trump engaged in actions, in late 2020/early 2021, that would have disrespected our democratic process. He has promised to engage in anti-democratic actions again if he's elected in 2024. We should take him at his word, and see that promise as a sign that he's not a pro-democracy choice.

The Supreme Court Will Decide — and Create New Precedent

Ultimately, the issue will be decided by the U.S. Supreme Court. Trump has promised to sue both Colorado and Maine over their officials' decisions to bar him from the ballot next year. That's his right to do so, though again, to me it seems pretty straightforward that 1) he engaged in insurrectionist behavior in violation of Section 3 of the 14th Amendment, and 2) the states have the right to determine on their own how to apply qualification standards for presidential candidates.

It is perhaps wrong for a single state official to be entrusted with that power, which is what's happening in Maine specifically. But that state determined for itself that that person should have those powers. Until Maine changes that, or Congress passes stricter standards for how states make these kinds of determinations, the only remedy to overrule states that empower just one official to decide these things is the courts — and that's precisely what's happening.

Put another way, the process is playing out exactly how it should be. 

Given the conservative makeup of the current Supreme Court, it's unlikely those two states' actions will be upheld, which is unfortunate, in my view. Trump, again, clearly is an insurrectionist — and without the mechanisms in place for determining who is or isn't an insurrectionist, the states rightly asserted their powers, through the 10th Amendment, to do so on their own. 

Overturning that standard, without putting in place a new one through judicial review, would be a mistake, too. If the Supreme Court says Trump shouldn't be barred from running, but doesn't say how someone like him could be barred in the future, we're left in limbo until Congress passes a new law. That's a very dangerous place to leave us in — and it allows anti-democratic insurrectionists like Trump to remain options for president, in spite of clearly needing to be disqualified from running under the plain reading of Section 3.

Featured image credit: Gage Skidmore/Flickr
CC BY SA 2.0, with alterations

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