When the Constitution Threatens Democracy

Compared to Trump v. Anderson, the notorious case of Bush v. Gore was a straightforward affair: it should not have been heard.

Because elections are administered by the states, the Florida Supreme Court’s 2000 ruling ought to have been the last word. The recount should have continued. Setting aside the noxious optics of a party-line court deciding an election, the Supreme Court’s decision to hear Bush in the first place was unconstitutional.

That view is bipartisan. Sandra Day O’Connor, the justice who cast the tie-breaking vote in the 5-4 decision, eventually conceded she regretted her partisan hackery. The court declined to officially publish Bush so it can never be cited as a precedent, a tacit admission that it made lousy case law. Chief Justice John Roberts, who subsequently spent much of his nearly two decades on the bench trying to restore the court’s tarnished reputation, never wanted his court to hear another election dispute.

With attempts to remove Donald Trump from the ballot on the ground that he’s disqualified under the 14th Amendment’s prohibition against insurrectionists holding high office spreading from Colorado to Maine to dockets in 14 other states, the Roberts court has no choice but to weigh in. States need the guidance of an across-the-board standard issued by the nation’s legal referee.

This train wreck reminds me of how, as late as the 1970s, European beachgoers were occasionally still getting blown up by mines placed during World War II; old and forgotten doesn’t always mean dead and gone. Section 3 of the 14th Amendment should have been repealed 150 years ago. Sadly for the Republic, this legal time-bomb - long hidden in plain sight, is finally going off.

Ratified in 1868 just after the Civil War, the 14th Amendment’s prohibition on citizens who had participated in insurrection or rebellion from holding high office was soon rendered obsolete, a legal version of the human appendix, by the postwar Ulysses Grant Administration’s blanket Amnesty of 1872. In a bid to reunify a fractured nation all former officers of the Southern government, including notorious figures like former Confederate President Jefferson Davis and John C. Breckinridge, the US Vice President from 1857 to 1861 who became the Confederacy’s Secretary of War, received pardons.

The forgiveness was real. Nine former Confederates were elected to Congress, including Alexander Stephens, the former Confederate vice president. President Grant encouraged Breckinridge to reenter politics but he declined.

For all practical purposes, Section 3 died at the age of four. (Which is why there’s no helpful case law.) Yet, like the New York “blue law” that makes it a crime to carry an ice cream cone in your back pocket in public on Sundays, this historical curio has remained on the books since the era of the horse and buggy, forgotten until some enterprising attorneys for some plaintiffs in Colorado resuscitated this legal relic for their novel assault against Trump.

Rep. Jamie Raskin (D-MD), a former constitutional law professor, argues that the 14th Amendment can’t isn’t undemocratic because it’s in the Constitution: “If you think about it, of all of the forms of disqualification that we have, the one that disqualifies people for engaging in insurrection is the most democratic because it’s the one where people choose themselves to be disqualified.” Slavery was in the Constitution, too.

Trump has such a commanding lead in the primaries that he will almost certainly be the Republican presidential nominee. We have a two-party system. You don’t have to be a constitutional scholar to see that knocking one out of two of the major-party presidential candidates—who happens to be ahead in the polls—off the ballot is inherently undemocratic as well as a perfect recipe for political unrest.

The last time a major presidential candidate didn’t appear on some state ballots was Abraham Lincoln in 1860. Trouble ensued.

The plain language of the 14th Amendment does not offer much hope to Trump and the Republicans as they argue before a Supreme Court dominated by originalists. The Colorado Supreme Court was probably correct when they determined that the offices of president and vice president were originally intended to be covered by the provision.

There is a strong argument that January 6, 2021 qualified as an insurrection or rebellion as the amendment’s drafters understood those terms in 1866. Section 3 appears to be intended to be self-executing, meaning that appeals to due process are unlikely to prevail; like it or not, a secretary of state or state supreme court can simply look at Donald Trump and declare: I see an insurrectionist. Section 5, which allows Congress to make such a determination, describes a non-exclusive right.

Theoretically, Congress could solve this dilemma. A two-thirds vote in both the House and the Senate would allow Trump to remain on the ballot. Democrats could declare that they value democracy so much and have so much confidence in American voters to do the right thing in a fair election that they would provide the necessary support. But such an extraordinary gambit would require statesmanship, risk-taking and putting patriotism above party, traits in short supply on Capitol Hill.

We Americans venerate the Constitution. But Section 3 of the 14th Amendment is a nightmare. Given the choice between correctly interpreting the original intent of its Reconstruction-era drafters and allowing the 2024 election to proceed as normally as possible given the advanced ages of both frontrunners and the legal perils faced by Trump, the Supreme Court construct a convoluted rationale for, say, why the presidency isn’t a government office or how the 14th contains an implied right to due process.

The Supreme Court should ignore the Constitution, gin up a BS justification to keep Trump on the ballot and choose democracy.