Over the decades, several US supreme court justices have warned that the US constitution is not a suicide pact – in other words, that the constitution shouldn’t be interpreted in ways that jeopardize the survival of our nation and our democracy.
Right now, however, I worry that the supreme court’s rightwing supermajority, in its anticipated rush to prohibit states from kicking Donald Trump off the ballot, will turn the constitution into a suicide pact. By letting an insurrectionist like Trump remain on the ballot – a man who spurned centuries of constitutional tradition by refusing to peacefully turn over the reins of power to the man who defeated him – the supreme court would be putting out a welcome mat to a candidate who has made no secret of his plans to trample all over the constitution and trash our democratic traditions.
Many legal experts worry that the rightwing justices will focus on the wrong issue when the high court takes up the historic Colorado case about whether a state can kick Trump off the ballot – a case in which the court might also decide whether Trump should be disqualified from the ballot in all 50 states.
When the court considers that case, the six conservative justices might focus on their concerns about infuriating rightwing voters, their political soulmates, if they rule that the constitution requires that Trump be disqualified as an insurrectionist. The justices will also no doubt worry that they’ll be seen as taking a high-handed, anti-democratic step if they deny voters the opportunity to vote for Trump, the likely Republican presidential nominee.
But the justices’ job is not to worry about angering the Maga crowd. Their job is to focus on enforcing the text of the constitution and, along with it, preserving our democracy. An insurrectionist candidate who stands a good chance of winning the presidency in November could drive a stake through the heart of America’s democracy.
The Colorado case centers on the 14th amendment, a post-civil war measure that aimed to ensure all citizens – especially formerly enslaved people – the equal protection of the law. Section 3 of that amendment aimed to bar supporters of the Confederacy who had rebelled against the United States and its constitution from holding office: “No person shall be a senator or representative in Congress, or … hold any office, civil or military, under the United States … who, having previously taken an oath … 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.”
One can’t honestly deny that Trump promoted and aided an insurrection. He unarguably gave “aid or comfort” to the January 6 assault on the Capitol, which was essentially a coup attempt that sought to prevent the rightfully elected president, Joe Biden, from taking office. In disqualifying Trump, the Colorado supreme court wrote: “The record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the US government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable definition, this constituted an insurrection.”
The House select committee on January 6 provided a mountain of evidence showing that Trump had planned and backed that insurrection. Trump not only “summoned tens of thousands of supporters to Washington for Jan. 6”, the committee established, but also urged them to march to the Capitol to “take back” the country. Even as rioters stormed the Capitol and assaulted the police, Trump tweeted messages that whipped up the violent crowd’s animus against the then vice-president, Mike Pence.
Trump, the committee wrote, also “refused repeated requests over a multiple-hour period that he instruct his violent supporters to disperse and leave the Capitol”. Trump also refused to call in the national guard or any federal law enforcement to stop the assault on the Capitol.
The Court’s job is to uphold and enforce the Constitution without fear or favor, and it shouldn’t be cowed by anyone, not by Trump’s supporters and certainly not by Trump, who dangerously warned of “big, big trouble” if the justices rule against him in this case.
Constitutional scholars say the Supreme Court might engage in some legal legerdemain and search for some escape clause to keep Trump on the ballot and prohibit states from disqualifying him. Some scholars predict the justices will rule that Trump must first be convicted in court as an insurrectionist before he can be disqualified – even though many supporters of the Confederacy were disqualified from holding office without being convicted in court and even though Section 3 says nothing about requiring convictions.
Some constitutional experts contend that Section 3 doesn’t apply to presidents and that Trump therefore shouldn’t be disqualified under it. Section 3 specifically mentions disqualifying Senators and House members, but it doesn’t mention the presidency. But that’s undoubtedly because Section 3’s authors never dreamed that a past insurrectionist would ever be running for president. There can’t be any doubt that Section 3’s authors would have insisted on disqualifying Jefferson Davis, the president of the Confederacy, if he had become a candidate for the presidency of the United States.
If the supreme court’s six rightwing justices allow Trump to stay on the ballot, they can do so only by turning their backs on the methods of constitutional interpretation that they have repeatedly trumpeted: textualism and originalism. Not only is the text of Section 3 crystal clear about barring insurrectionists, but the Radical Republicans who wrote the 14th amendment would have been repulsed by the idea of letting an insurrectionist like Trump run for the highest office of the land.
Trump of course complains that the push to disqualify him is a leftist plot. But the two constitutional scholars who led the way in arguing that Trump should be disqualified – William Baude and Michael Stokes Paulsen – are highly regarded conservative members of the Federalist Society. Moreover, one of the jurists most respected by conservatives, former federal judge J Michael Luttig, has lauded the Colorado supreme court’s decision as “unassailable”.
In decades past, the US supreme court did not shrink from issuing decisions that offended and angered millions of Americans, whether it was enraging many white southerners by barring school segregation in Brown v Board of Education, or infuriating millions of women by overturning Roe v Wade, or angering a wide swath of Democrats by cutting short the vote count to deliver victory to George W Bush over Al Gore. In the Colorado disqualification case, the justices should not shrink from angering Trump supporters. The justices should do what they’ve taken an oath to do: enforce the letter of the law.
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Notwithstanding what Trump’s defenders say, those who seek to disqualify Trump are not suppressing democracy. They are seeking to enforce the constitution’s clear language against the nation’s most prominent insurrectionist. The person who is seeking to suppress democracy is Trump (along with many of his Maga supporters).
Trump was anti-democratic in seeking to overturn Biden’s legitimate, 51-47% victory in 2020. Trump was anti-democratic when he called for terminating the constitution. Trump has threatened to be a dictator on day one, and someone who threatens to be dictator on his first day in office might not stop there.
Trump has loudly signaled that he will trample all over our constitutional and democratic norms
Moreover, whenever Trump loses – for instance, when he lost the 2016 Iowa caucuses to Ted Cruz – he claims that he was cheated and demands that legitimate democratic results be discarded. Trump’s philosophy is to accept election results only when he wins and never when he loses. What can be more anti-democratic than that? That anti-democratic philosophy fueled the January 6 insurrection.
There’s no denying that on a certain level it would be anti-democratic to bar a popular candidate like Trump from the ballot, and, yes, that could stir up an ugly and perhaps violent and illegal response from the Maga crowd. Yet let’s not forget that much of the constitution is anti-democratic and counter-majoritarian; it, for instance, prohibits a majority of lawmakers from restricting your freedom of speech or your freedom to practice your religion.
Those who warn that it would be anti-democratic to kick Trump off the ballot should realize that Trump’s election as president would be a far graver and longer-lasting risk to our democracy. This is a man who has talked of being a dictator, of terminating the constitution, of using his second presidential term to exact vengeance against his enemies and critics. This is a man who even floated the idea of executing Mark Milley, the general who was chairman of Trump’s joint chiefs of staff.
If the supreme court lets Trump remain on the ballot, history may remember John Roberts and company as the court that gave a bright green light to the election of an insurrectionist who would end our democracy as we know it.
For the nine justices, the bottom line should be not only that Trump was an insurrectionist, but that Trump has loudly signaled that if he’s elected to a second term, he will trample all over our constitutional and democratic norms. If the justices interpret the constitution to let insurrectionist Trump remain on the ballot, the Roberts court may be taking a giant, highly regrettable step toward turning our constitution into a suicide pact for our democracy.