In my last column, Part One in this series, I argued that while there may be strong arguments against judicial disqualification of Donald Trump under Section 3 of the Fourteenth Amendment for the 2024 presidential race, prominent observers are also making arguments against the application of Section 3 that are quite analytically weak. In this regard, I discussed Professor Larry Lessig’s essay whose basic point was that it would be legally inappropriate for courts to read Section 3 as covering the presidency on the ground that it would be absurd for the presidency not to be covered. As I pointed out, the argument Professor Lessig advanced is irrelevant if the text of Section 3 does indeed cover the presidency (through its reference to people who hold office under the United States), a compelling reading of Section 3 that Professor Lessig does not engage, much less overcome.
In the space below I address a non-legal objection to the application of Section 3, one probably on the minds of many critics and voiced quite clearly in particular by New York Times columnist Ross Douthat last week in his column entitled The Anti-Democratic Quest to Save Democracy from Trump. The nub of the essay is captured by the following passage:
Removing an opposition candidate from the ballot, indeed, a candidate currently leading in some polling averages (pending the economic boom of 2024 that we can all hope is coming), through the exercise of judicial power is a remarkably antidemocratic act. It is more antidemocratic than impeachment, because the impeachers and convicters, representatives and senators, are themselves democratically elected and subject to swift democratic punishment. It is more antidemocratic than putting an opposition politician on trial, because the voters who regard that trial as illegitimate are still allowed to vote for an indicted or convicted politician, as almost a million Americans did for Eugene V. Debs while he languished in prison in 1920.
While this point of view has surface plausibility, it quickly falls apart under careful analysis. For starters, put aside the fact that all the members of the Colorado Supreme Court who ruled against Mr. Trump had in fact been ratified by voters in a judicial retention election. (I put that aside because I don’t think state-court judges that represent the people of a single state should be able to remove candidates for national office under a provision of the U.S. Constitution such as Section 3. But the U.S. Supreme Court, which represents the whole nation and is the final word on federal law, would of course be different in this regard.) Put aside as well that while a criminal prosecution and punishment of a candidate does not formally prevent people from registering their support for and indeed voting for the convicted candidate, it is far from clear that a candidate who is elected but serving a jail term at the time would be able to discharge the powers and duties of the office. Thus, a criminal prosecution might very well prevent the voters from having their will (that a particular person serve as President) fully vindicated.
I put aside these quibbles with Mr. Douthat’s reasoning because there is a much more fundamental flaw in his suggestion that enforcing Section 3 of the Fourteenth Amendment would inevitably be anti-democratic. Enforcement of the Constitution (including Section 3 of the Fourteenth Amendment) is not anti-democratic because We the People adopted the terms of the Constitution (and have not seen fit to change it, either by formal amendment or by less formal but durable majoritarian consensus.) If you had asked Americans in 2019 whether Section 3 of the Fourteenth Amendment and its ban on insurrectionists holding high federal office no longer reflects a basic commitment to the kind of government we desire, I doubt you would have anywhere close to a majority of American adults saying yes.
More generally, if enforcement of Section 3 is anti-democratic, so would enforcement of other requirements for federal office holding. Would it be undemocratic to deny a popular non-citizen access to the presidential ballot because a President must be a natural born citizen? Or would it be anti-democratic to deny a popular 17-year-old rock star access to the presidential ballot because a President must be at least thirty-five years old?
Or, to move away from presidential qualifications, imagine 80% of America wanted to shut down the New York Times and Mr. Douthat’s column. Would it be anti-democratic to prevent such a result because censorship of this kind is forbidden by the First Amendment?
Indeed, if enforcement of all these clear provisions in the Constitution would be anti-democratic, so would all judicial review. To say that because Mr. Trump is popular (and indeed leading in the polls) it would be anti-democratic to prevent him from being eligible for the presidency is simply to ignore the fact that American constitutional democracy—by embodying certain high-minded, deliberate decisions in the Supreme Law of the land—often prevents passionate, temporary majorities from getting their way. Indeed, if this weren’t so, then the presidential-election system Mr. Douthat seems to want to protect, with its odd electoral college apparatus, would itself be anti-democratic and thus (the suggestion from Douthat is) illegitimate. The reason the electoral college, even though it can lead to and has led to candidates with fewer votes than an opponent winning the White House, is democratically legitimate is that it is codified in the Constitution itself, and that codification has not been changed through formal or circumvented through informal legal devices.
Now Mr. Douthat might mean to take on the very idea of the supremacy of the United States Constitution or the institution of judicial review, but if so, he needs to say a lot more. And if he concedes the general legitimacy of judicial enforcement of the Constitution, he needs to explain why Section 3 is somehow an exception to the rule.
Given all this, the question becomes not whether Section 3 is anti-democratic when it is properly triggered, but instead whether the requirements of Section 3 have in fact been satisfied. That is where the analytic action should be. And here Mr. Douthat does make plausible (but not necessarily winning) arguments that Section 3’s triggering conditions have not been met. Indeed, one could build on what Mr. Douthat says here to argue that before we apply Section 3 to an office like the Presidency we should be very clear that its requirements have been met (just as the reasoning behind supermajority rules like the filibuster is that consensus is prudent when certain kinds of important decisions are involved.) But we must be careful to distinguish those kind of prudential arguments from the much more careless “removing an opposition candidate from the ballot, indeed, a candidate currently leading in some polling averages . . . . through the exercise of judicial power is [inherently] a remarkably antidemocratic act” language.
That latter kind of language and reasoning undermines, rather than promotes, what democracy means in America’s distinctive constitutional system.
