US politics continue to be interesting.
As many of you know, the Colorado Supreme Court has recently ruled that Donald Trump should be struck from the ballot in Colorado. Under Section 3 of the 14th Amendment to the US Constitution, if you’ve sworn to support the Constitution, and then engaged in (or “given aid or comfort to”) an insurrection, you are no longer eligible to serve in office. The Colorado Supreme Court applied this law to Trump, citing the Capitol attack of January 6, 2021.
This may be the first official ruling to agree that Trump is disqualified, but the theory has been discussed since the events of January 6, 2021. The theory gained more serious attention and respectability when it was endorsed by conservative legal scholars William Baude and Michael Stokes Paulsen in an explosive law review article, and now, it has finally manifested as an official decision in this ruling.
Opinions about the Opinion#
There are a lot of criticisms of the ruling. As is often the case with complicated political issues, there aren’t just two “sides,” but a grab-bag of more nuanced opinions and observations.
Some people have procedural nitpicks, claiming that state courts don’t have the jurisdiction to evaluate such issues, or that Trump would have to actually be convicted of a crime for the section to apply, perhaps the crime called insurrection.1
Others don’t think the riots on January 6 qualify as an insurrection at all, or they think that Trump didn’t “engage in” it, or they think that his participation is protected under First Amendment free speech rights2. Still others simply think that Trump should win even if an insurrectionist, or that he was the legitimate President-Elect in 2021, or otherwise hold brazenly anti-Democratic views, both in the sense of hating the Democratic Party as well as democracy itself.
But the criticism that I find most interesting is the criticism that the court’s decision is undemocratic. We ought to let Trump run, this criticism goes, because in a democracy, it is better for the voters to decide that someone should not be President, rather than a court. Some of the people who think this also fall into another category: they think this decision is undemocratic and they think January 6 doesn’t reach the standard of the 14th Amendment, or hasn’t been adequately proven to, and that I find less interesting. But some people simply think that even if January 6 was an insurrection, and Trump engaged in it, he should still be on the ballot, and would still legally become President if elected.
That is to say, there are a large number of people who are uncomfortable not with the specifics of this ruling but rather with the fundamental premise of Section 3 of the 14th Amendment. These people might believe that the law has evolved away from what it says, or that it requires implementing legislation. Or, these people might believe that we simply should ignore this constitutional provision, or that we should never have added it to the constitution. In any case, these people believe that even a violent insurrection against the government, by a person who had specifically sworn not to do that, should not be a disqualification to run for office, or at least, to the extent that it is one, it should be a qualification decided on by the voters.
Narrowing the Question#
In this post, I will not try to evaluate whether the events of January 6 counts as an “insurrection.” I will not try to figure out whether the way the Colorado Court proceded was legally correct, nor whether the Supreme Court will overturn it, nor whether it’s a good strategy for defeating Trump or will instead backfire.
Instead, I will think about the underlying theoretical question as if it were not so relevant to today’s news:
Is it undemocratic to disqualify from elections those who have participated in an insurrection?
To help separate this abstract question from the current news, let’s not imagine that this is about Trump. Let’s make up a new scenario in our minds, and let’s imagine instead that the insurrection in question was the Civil War – or some other insurrection that you, as a reader, can feel comfortable wholeheartedly opposing, in favor of explicit Communism or Nazism or racism or whatever other ideology most gets your goat.
Let’s further imagine that the candidate openly admits that they, in fact, did engage in insurrection. In fact, not only do they admit that the insurrection was an insurrection, but they say it was a justified one. They admit – or rather, they proudly announce – they’d do it again. They certainly won’t rule out doing it again if they lose.
But of course, you are not of the opinion that the insurrection was a justified one – you don’t want this person to win at all. And they’re running for President!
So here’s the question: Should this person be allowed to run or not? If you were designing a constitution for your dream country, would you allow the courts or some other mechanism to stop this person from running, or would you hope they simply lost at the polls?
All Qualifications Are Undemocratic#
Any disqualification from office, of course, is undemocratic in a sense. A democratic election for President, in a pure sense, means that whoever gets the most votes for President must win. And if someone who people want to vote for isn’t an available option, well, that makes the election undemocratic.
Everything that detracts from the idealized, pure form of an election takes our country away from being a democracy. Things like the electoral college, to the two-term Presidential term limits, to even the restriction that Presidential candidates must be over 35 and natural-born citizens, can prevent the people from perfectly exercising their will through a Presidential election.
However, very few of the people calling this recent ruling “undemocratic” have any problem with preventing 30 year olds, or foreign-born Americans, from running for President. Even though this sort of discrimination based on age or national origin would be severely frowned upon in hiring3, we have simply gotten used to them. Perhaps, perhaps, one could argue that it is a better show of democracy’s power, a more rational system, to simply allow teenage Presidential candidates to be disqualified not by law but by the people’s collective decision, but no one in practice is interested in changing it. We’re simply used to it.
Ironically, these other qualifications, in my mind, strike me as more undemocratic. If everyone 30 and under had just started being oppressed, what President could genuinely sympathize? Is the natural-born citizen requirement today kept because of concern about national loyalties, or out of racism?
At least excluding insurrectionists has a logical pro-democratic angle. Committing an insurrection against our elected government is fundamentally anti-democratic, and so excluding those who have done so is a move to protect democracy. Unlike requiring people to be 35 or natural-born citizens, this provision has a claim to protecting democracy at the same time as it undermines it.
In other words, even though the 14th Amendment directly hurts democracy, by limiting who people can vote for, it indirectly protects it, by keeping people out of power who might do an insurrection and overthrow democracy. It’s a trade-off: By making this election slightly less democratic, it protects all future elections' existence against the possible insurrectionist’s dictatorship.
The question is then how to evaluate this trade-off.
The Problem of Cheaters#
If you want to find out who the fastest person is, have a race.4 If you want to find out who the best person is at chess, have a chess tournament. And if you want to find out who the most-supported5 person is for President, have an election.
Even if there is no cheating, this can be irregular and unreliable. Sometimes, a person is tired, or ate something that disagrees with them, and that makes them slow of foot. Sometimes, a person has a brain fart and blunders at chess. And sometimes in a modern media-fuelled election, someone says a random gaffe that loses them the election, but not their long-term genuine support, or the election happens right on the wrong news cycle, or their support is concentrated in the wrong specific states or demographics.
But cheating is a deeper threat. If the goal of a race is to find out who is the fastest runner without taking steroids, or (for example) hitching a ride for part of the race, then if someone does that, they will win even if they aren’t the fastest runner. If something isn’t done to prevent people from using steroids, then everyone will have to use drugs just to have a chance, which totally goes against the goal of finding out who the fastest runner is without taking steroids.
So, cheating is a threat to the very concept of a race. How do we stop cheating? Punishment is a viable option, making the behavior of cheating have bad consequences as a deterrent. The punishment of disqualification – from not just the race in which they cheated, but also future races – goes beyond deterrence, however. Not only does it increase the negative consequences of cheating (and therefore discourages it), it decreases the likelihood that someone wins by cheating.
It is true that a one-time cheater might legitimately also be the fastest person, and win a future race legitimately. But it’s also true that if they win a future race, they did so by cheating. They’ve proven themselves willing to cheat. So, if we want to find out who the fastest non-cheater is, excluding past cheaters is a great way to prevent present cheating.
So, excluding past cheaters from a race can actually make the race more fair. Even though the past cheater might be legitimately the fastest person, they should be disqualified, because if they win, what confidence do we have that they won fairly?
Democracy as a Peaceful Replacement for War#
The analogue to democracy is this: Someone willing to do an insurrection is likely to be unwilling to give up power in a peaceful manner, likely to use any power they gain to cheat on future elections, either by influencing them or by simply refusing to acknowledge and act on the results. This is true in general, and it is especially true if the original insurrection directly involves not accepting election results.
After all, the whole point of having a democracy is that we decide who’s in charge based on who has the most support, rather than by having a war about it every time. Everyone agrees that fighting with votes is better than fighting with guns, and as a result, we can have changes in government without mass death and destruction.
This is especially important given the violence and destruction of modern warfare. It is not a coincidence that World War I, far more deadly than any other war that Europe had experienced, also spelled the end of large absolute monarchies in Europe. Warfare has such an unacceptable cost that we’ve all collectively decided we’d rather risk our political enemies winning an election as in a democracy, than have a war every time we need the government to change, which is how monarchy often works in practice.
So, engaging in insurrection is even more undemocratic than other types of election cheating. The principle of democracy is vastly more important than any individual person or party winning, because the alternative is war and therefore mass death. If a candidate doesn’t agree, than that candidate is intrinsically undemocratic, to the point where excluding them is more democratic than allowing them to run.
The Downsides of the Ban#
I know that people might disagree with these arguments. Banning insurrectionists from running has cons as well as pros. Who shall determine who has committed an insurrection? Will an anti-insurrection provision be abused for political purposes dishonestly, where something that is not an insurrection is called one for political gain?
Hopefully, the law would specify the procedures for this disqualification, and indicate who gets to decide. Hopefully, it would choose someone with enough distance from the political process to actually implement it.
But perhaps that isn’t enough. Perhaps the only way to have a democracy is for everyone to be eligible, and for it to be seen for everyone to be eligible. Everything more complicated is up for misinterpretation, and stokes distrust. Provisions written on paper do not necessarily accomplish their obvious goals. No amount of clarity of rules can counteract a dishonest referee, or convince a partisan that the referee is actually honest.
Rule of Law and the United States in Particular#
So, which decision do we make here? Do we have a system for disqualifying insurrectionists, or not? More important than either decision is having a rule for it ahead of time. As a democracy, the way to determine this should be the same as any other determination we make about constitutional decisions. The rule of law is an important principle, so everyone knows what the rules are ahead of time (and knows what referees will be evaluating them). And so, when an insurrection happens, we should ideally follow the law to determine what to do, rather than having an ad hoc discussion then to determine how to handle the situation.
And now, I return from the abstract question to the particulars of the recent decision. The United States has already made this determination, in the 14th Amendment to the Constitution. Unfortunately, it is unclear how it is to be enforced; Congress has defaulted on its duty in Section 5 to “enforce, by appropriate legislation, the provisions of this article.” So, what is clear, is that insurrectionists (who have previously sworn oaths of office) are ineligible for office. What is unclear is the details of how this is accomplished.
To me, this means that the question of whether banning insurrectionists from running for office is already decided. It is not undemocratic to do so, as it is a policy that has pros and cons for a democracy, but the rule of law breaks the tie and so we should follow the 14th Amendment. Questions remain about the details, but that, in our system, are what the courts are for.
So. I do understand (and disagree with) accusations that the Colorado Supreme Court decision is politically motivated. I also sympathize with the claim that Trump should be charged with the crime of insurrection in order for this case to qualify – perhaps that would be a more fair way to determine whether Trump’s behavior on January 6 qualifies as engaging in insurrection. But I thoroughly disagree with those who claim the decision is “undemocratic.” While there are ways in which the 14th Amendment is undemocratic, there are also ways in which the opposite policy is undemocratic. We have already, democratically, made the decision that this disqualification is part of the rules to our democracy. It is too late, for this case, to reconsider now whether that decision was wise.
Appendix: Text of the Section#
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.
- 14th Amendment to the US Constitution, Section 3
Of these, I think the most valid nitpick is that Trump should have to be convicted of the actual federal crime of insurrection for the amendment to be triggered, as that counts as the Congressional implementation of the amendment under Section 5. The least valid nitpick, in my view, is the zany motion that the Presidency is not an “office under the United States” or that the President does not swear to “support the Constitution” because he swears instead to “preserve, protect and defend” the Constitution. Laws are read as documents in natural languages like English, rather than read as computer programs. None of this matters in the slightest to the larger arc of this blog post, which asks, legal technicalities aside, whether the whole idea is fundamentally undemocratic. ↩︎
I feel obligated at this point to point out that since the 14th Amendment comes after the 1st Amendment, technically, free speech might not apply to its provisions, as the 14th Amendment comes more recently and therefore can override the 1st Amendment. ↩︎
Not to mention, they would illegal under various discrimination laws, though in fairness these notions come after the Constitution was written. ↩︎
“Well-supported” in this sense means with some weighting given to total popularity, and some weighting given to being able to dominate in certain states. This is to say, we can mathematically define “well-supported” so as to make the electoral college make sense. Or we could not do that, and say the electoral college is undemocratic, which is a fair position. ↩︎
NewsletterFind out via e-mail when I make new posts!
If you want to send me something privately and anonymously, you can use my admonymous to admonish (or praise) me anonymously.
comments powered by Disqus