A recent online exchange has me a little tense about a lot of things.
Here, in short, is the backdrop. Donald John Trump, who was president of the United States for one term, is running for a second non-consecutive term. Trump now holds the distinction of winning more votes than any other candidate in an election except one candidate, who is, of course, Joe Biden. Neither of this reflects voter interest in either man so much as it represents voter dislike for the other; that isn’t to say that neither Trump nor Biden have fans, but that the bulk of voters aren’t particularly passionate about either.
But Trump capped off his first term by trying to overthrow the government of the United States. I’m careful to use this exact terminology when I discuss what many refer to as an “insurrection” or a “riot,” because I want it to be clear that Trump wasn’t just hooting in the streets a-kickin’ up a ruckus. He was attempting to intimidate the national legislature into ignoring the results of a democratic election to secure a second term for himself. He was trying to stage a coup d’etat.
At the end of 2023, two states – Colorado and Maine – decided that this warranted intervention. They blocked Trump from appearing on ballots in the 2024 election, citing the Fourteenth Amendment. The Fourteenth Amendment bars anyone who participated in an insurrection from serving in an official capacity in the U.S. government, and it was enacted after the Civil War to keep ex-confederates out of the government. There’s debate – some genuine, some not – about whether this applies to the presidency and how it should be enforced.
In Maine, for example, news outlets asked all four members of the state’s D.C. delegation what they thought. Only Rep. Chellie Pingree, a Democrat who represents the state’s solidly blue south, said she thought Secretary of State Shenna Bellows was correct to bar Trump from the ballot. Rep. Jared Golden, a Democrat in the state’s more conservative north, and pseudo-independent Sen. Angus King, both said the ballot box should decide.
This is actually a fairly pervasive view. There’s healthy support for disqualifying Trump from the ballot in other states, like Georgia, and just generally Americans favor kicking Trump off the ballot entirely. But some Democrats are wary that kicking Trump off could have ramifications, like giving Republicans ammunition to do the same to Democratic candidates they don’t like.
On Bluesky, Twitter, and newspaper comment threads, you can find Democrats wringing their hands about this problem. Many echo the words of Messrs. Golden and King: let voters decide, not the courts.
But how far does that go? Let’s imagine that Donald Trump wins re-election in 2024, suggesting that voters don’t believe he engaged in an insurrection. And then he runs in 2028. Can someone stop him then?
Of course not. We should let the voters decide if he’s running for a theoretically Constitutionally-prohibited third term. And if he wins re-election in 2028, well, the voters must have decided the Constitution doesn’t bar you from winning more than two terms if they’re not consecutive, maybe? Or his first term didn’t count? When Elon Musk, who is theoretically not eligible for the presidency, runs in 2032, who will disqualify him? Only the voters can do that, at the ballot box! If the voters pick Musk, that must mean that he wasn’t born in South Africa.
First of all, we all know Republicans don’t feel this way. There were piles and piles of attempts to oust Barack Obama from office, using the courts, on the basis that he was disqualified by the Constitution. Disqualifying Trump in the same manner won’t suddenly allow Republicans do to the same to Democrats, because they’ve been doing the same. They’ve tried, and they’ve failed. Donald Trump himself does not believe Mr. Obama was eligible for the presidency.
Second of all, there’s a kind of magical thinking at play. Since the adoption of the Twenty-second Amendment, which limits presidents to two terms, no president has tried to seek a third term (except Harry S. Truman, who was exempt from the term limits, but he was not successful). This has created the impression that the amendment works via the sheer force of will of the Constitution, but it doesn’t. The Constitution bars a third term, and presidents have so far assumed that it would be enforced against them. Presidents Reagan, Clinton, and Obama all opined about a third term, and history suggests all three could have won (sources for: Reagan, Clinton, Obama, although keep in mind it’s very easy to predict that someone would have won a contest they couldn’t have entered, because there’s no great evidence either way; the historical evidence is not favorable to third terms, which only Franklin D. Roosevelt ever secured). The knowledge that the Twenty-second Amendment barred them, and would surely be enforced, kept anyone from trying.
Donald Trump has no such illusion, and neither will anyone else if the response to attempting to enforce the Fourteenth Amendment against him is “we should let the voters decide.” The whole point of a constitutional republic is that sometimes the voters are wrong. We have to be willing to say that out loud. Sometimes the voters are wrong. We protect certain things, we enshrine them as sacred, because even the voters get it wrong sometimes. That’s what the Twenty-second, what the Fourteenth, and above all what the First Amendment tell us. These are the safeguards of the Constitution, and they are not self-enforced. If that means a court needs to make a decision to block someone from the ballot, that is and should be and must be the proper route.
Cover Photo by Darren Halstead on Unsplash
