Anastasia P. Boden
After the last two Supreme Court terms, one might think the court needs a reprieve from high‐profile cases. But so long as the executive and legislative branches continue to push the constitutional envelope, the court must perform its duty of interpreting the Constitution’s limits.
This month, for example, the National Marine Fisheries Service’s broad assertion of power required the court to reconsider a doctrine that has contributed to the explosive growth of the administrative state. Next month, the court will hear two high‐profile cases related to Texas’s and Florida’s attempts to regulate social media companies. In just two weeks the court will hear an enormously important case asking whether Section 3 of the Fourteenth Amendment renders Donald Trump ineligible to be president.
For some background: dozens of individuals across more than thirty states have brought lawsuits arguing that Section 3, which disqualifies former officials who engage in “insurrection” from office, bars Trump from the presidency given his actions on January 6, 2021.
Section 3 is among the least understood provisions of the Fourteenth Amendment, a vastly important constitutional amendment passed in the wake of the Civil War. The amendment’s other sections, including the Due Process, Privileges or Immunities, and Equal Protection Clauses, have been the subject of copious scholarship and are frequently litigated in courts. Section 3, by contrast, has been seldom invoked.
Up until the events of January 6, the provision had not been used to oust someone from office since 1919. In December, the Colorado Supreme Court became the first court to deem Trump ineligible for the presidency. The US Supreme Court then granted expedited review so that the parties could get a definitive answer on Trump’s eligibility before most primaries take place.
Whether Trump is disqualified is an unusually difficult constitutional question. That’s partially because it involves so many subsidiary questions—like whether Section 3 can be applied by courts without Congress passing implementing legislation; whether someone can be deemed disqualified without having been convicted of insurrection in court first; whether Section 3 disqualifies candidates from the ballot (as the Colorado Supreme Court held) or merely from office; whether the provision was intended to apply to presidents (as opposed to other government officials); and what “insurrection” means in the constitutional sense. Each question is difficult in its own right, especially given how rapidly the scholarly landscape is changing: new scholarly articles seem to pop up every day.
I have long favored self‐executing constitutional provisions and judicial review and, for reasons mostly stated by Notre Dame Law Professor Samuel Bray and articulated in the Colorado Supreme Court opinion, I am not persuaded by the argument that Section 3 exempts the presidency (though I also think it’s the court’s most likely escape route). To my mind, the most difficult question is whether Trump’s actions on January 6 rise to the level of “insurrection.”
There are persuasive arguments on both sides. On the one hand, there are good reasons why the Framers of the Fourteenth Amendment might have wanted to disqualify those who attempted to obstruct the peaceful transfer of power. This was a favorite tool of Southerners who sought to end Reconstruction in the South.
In fact, it was a slate of candidates’ refusal to accept Louisiana’s 1872 election results that resulted in the Colfax Massacre, one of the bloodiest examples of political violence in the aftermath of the Civil War. There’s also a reason why the Framers might have wanted to disqualify even those whose attempts are relatively short‐lived and unsuccessful, since the first attempt invites questions about what will happen the next time the candidate seeks office.
On the other hand, there’s good reason to impose a high burden before disqualifying a political candidate. If it’s too easy to deem someone an insurrectionist, political parties can weaponize the Disqualification Clause by lodging disingenuous claims of “insurrection” against their opponents.
But it’s the least persuasive argument against disqualifying Trump that seems to be the most pervasive one. Both legal briefs and the press continue to insist that there should be a presumption against disqualification because it’s “anti‐democratic.” Notwithstanding that it’s ironic for people to suggest that disqualifying someone for violating democratic norms is antidemocratic, and putting aside the fact that any supposed anti‐democratic effect is irrelevant to the text’s meaning, this critique fundamentally misunderstands the nature of the Constitution. Curbing democracy is an essential element of the Constitution’s design. Sure, things like supermajority requirements, the Bill of Rights, and qualifications for public office might be antidemocratic, but the Framers understood that liberty cannot exist in a purely popular democracy.
The American Revolution indeed sought to take power away from the monarchy and place it in the hands of “the people.” But as John Adams observed, the people can be just as dangerous as a single tyrant:
[i]t is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty.
James Madison was similarly preoccupied with the danger of faction, which he defined as “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
In Federalist 10, Madison highlights the danger of a “pure democracy,” and concludes that a “well‐constructed Union,” will “break and control the violence of faction” while also “preserv[ing] the spirit and the form of popular government .…”
One of the ways the Constitution achieves this balance is by requiring a supermajoritarian vote under various circumstances. According to Professors John McGinnis and Michael Rappaport, Madison introduced so many supermajority provisions at the Constitutional Convention that he has been dubbed by at least one modern commentator, “Mr. Supermajority.” Not all of these rules were enacted by the Convention, but many were.
Professors McGinnis and Rappaport have also recognized that even rules that appear majoritarian on their face often have some supermajoritarian aspect. For instance, while most legislation can be passed by a simple majority vote, it still requires a majority vote in both houses, meaning it requires a broader consensus than would be necessary under a unicameral system. And even then, the president retains a counter‐majoritarian veto power, which can only be overcome by a two‐thirds vote in both houses.
In fact, the Constitution is replete with anti‐democratic measures, from enumerated federal powers to the Bill of Rights, to presidential term limits, to minimal qualifications for office. The point is, that the Constitution guarantees that the majority won’t always get what it wants. That’s not something to be lamented; it’s the defining feature.
Notably, Section 3 is one of the Constitution’s few, and relatively modest, restrictions on who can hold office. To be eligible for the presidency, one need only have reached the age of 35, be a natural born citizen, be a US resident for at least fourteen years, not have been elected to more than one prior term, and not have committed insurrection.
Voters therefore retain broad latitude to vote for who they want. They can elect people who cheat on their taxes, defraud banks, commit sexual assaults and other felonies, obstruct justice, threaten their political enemies, and even vow to be a dictator for some portion of their term in office. They can elect octogenarians, cringeworthy gaffe machines, serial plagiarists, abusers of executive power, and heads of multi‐million‐dollar, foreign‐influence‐peddling families. They just can’t elect insurrectionists. That’s a minimal restriction on democracy.
What’s more, from a practical standpoint, any “antidemocratic” effect of enforcing Section 3 is blunted by the fact that our hyper‐partisan, two‐party system has yielded two deeply unpopular front‐runners. Americans’ view of all politicians is pretty dim; just 32 percent express trust in Congress and more Americans now identify as “independent” than as either Democrat or Republican. The percentage of those who identify as independent is approaching the percentage of those who identify as Democrat or Republican combined.
More than 60 percent of the country now expresses support for a third party. According to one study, our political system likely needs “not two or three parties, but at least five parties” to accurately represent the diversity of viewpoints of those surveyed. And yet we’re stuck with two candidates—one from each majority party—both of whom are widely unpopular.
As libertarians perhaps know best, incumbents have structured our political system in a way that systematically disadvantages third parties. Single‐member districts and first‐past‐the‐post rules prevent proportional representation in the legislatures, thereby thwarting third‐party representation. Rules against ranked‐choice or fusion voting prevent third parties from endorsing major candidates and make third‐party voters feel like spoilers. Political gerrymandering, partisan primaries, and government‐created funding disadvantages make third parties uncompetitive. The result has been the spectacular failure of third parties to emerge as serious contenders, especially for the presidency. As Cato adjunct scholar Andy Craig has written:
Since World War II, there have been 14 third‐party or independent presidential bids by governors, senators, congressmen, and in one case a former vice president. (There have been even more if you count the campaigns that ended before November, or the times a politician let a party put his name on the ballot but did not actively campaign.) Of those, seven failed to garner even 1 percent of the vote. Only one broke double digits. Two won states, but both were segregationists appealing to the Jim Crow South, a dynamic thankfully relegated to the ash heap of history. Taken together, the average result of these campaigns is just 2.33 percent.
This was the Founders’ nightmare. In their view, the only thing worse than political parties was a two‐party system. “The alternate domination of one faction over another, sharpened by the spirit of revenge,” said George Washington, is “a frightful despotism.” John Adams warned that “a division of the republic into two great parties … is to be dreaded as the greatest political evil under our Constitution.” And yet that’s exactly what we have.
The upshot today is that one party is poised to nominate a candidate who is facing nearly one hundred felony charges in four separate proceedings and the other will nominate the oldest candidate of all time by a considerable margin. Neither is the top choice for many voters (who, in the last election, comprised just two‐thirds of the voting‐eligible population—and that was an all‐time high). In sum, the supposed anti‐democratic effects of taking Trump off the ballot is blunted by the fact that our system is far from a democratic ideal. Disqualification may actually prevent a minority of a minority (a superminority?) from imposing their preferred candidate on the rest of the population.
Disqualifying Trump under Section 3 might be a bad idea for many reasons; it also might be wrong as a constitutional matter. But it’s neither bad nor wrong merely because of some supposed antidemocratic effect. This is one of the weakest arguments against disqualification, and yet it’s one of the most prevalent.