Disqualification is Anti-Democratic. Good!
Disqualification is Anti-Democratic. Good!
The Founders loathed democracy. They gave us a constitutional republic instead.
Legal cases often present more than one question. Courts must, by law, resolve those questions in a rigid order: from most boring to most interesting.1 The case deciding whether Donald Trump is disqualified from the 2024 Minnesota ballot will start with so-called “threshold” questions of “ripeness” and “standing,” then get meaty with questions about “self-executing” constitutional provisions and the definition of “officer,” but only becomes must-see TV at the end, when the court will consider whether Donald Trump attempted to overthrow the government by violence—assuming the court can’t get the case thrown out for boring reasons before that.
Bloggers, however, can answer questions in whatever order we damn well please, so I’m going to start with a question so interesting the courts won’t even answer it… even though they’ll all be thinking about it. This question has also prompted more than one frustrated letter to me. To wit:
What the hell do I think I’m doing trying to take Donald Trump off the ballot without giving The People their chance to vote on him?
I’ll let the De Civitate mailbag speak for itself here:
This whole "you can be removed from the ballot for engaging in Insurrection because a judge says so with no due process or democratic input" theory is going to rub a lot of Americans the wrong way, and what happens at that scale is anybody's guess, and a lot of guesses are nowhere I personally want to be, and I'm guessing nowhere an overwhelmingly large number of Americans want to be.
Now I'm no legal scholar, but I hope this very intelligent group would indulge me in considering this modest proposal: The only way to actually defeat Trump is to actually. Defeat. Trump. …The power of the ballot box, when properly and fairly used, and most importantly, TRUSTED, has amazing power to bring about needed change. To short circuit that process is to arrive at a suboptimal result. How about we try to avoid that.
From another good, smart friend of mine:
I bow to no one in my hatred of Trump. You know this. But you have found the one thing that would make me vote for him. If he were blocked from the ballots in any state, and I had a vote, I would be outraged enough to do that. Not for his sake— never. But for his voters, who don't deserve to be disenfranchised, no matter how wrong we think they are. We can't beat Trump with a cheat code. We have to beat him legit, or suck it up.
And another:
I believe that if Trump is duly nominated (which I pray he is not), it is the people and not political officials or judges who should decide.
I don’t think many people actually have very strong opinions on whether or not the Fourteenth Amendment is self-executing, or whether the presidential oath qualifies as an Article VI oath. There are people who really care about that stuff (I’m one of them!), but they are rare.
Rather, I think that many people have a strong belief in the right of the People to decide for themselves, democratically, who should be President, and this belief engenders strong resistance to the idea of disqualifying Donald Trump from the presidency, no matter what the legal arguments are. That’s interesting.
It’s especially interesting because nobody applies this democratic logic to Barack Obama.
Former President Obama, like former President Trump, is disqualified for office by a constitutional amendment. Trump is disqualified by Amendment 14, Section 3, because he engaged in insurrection while under an oath of office.2 Obama is disqualified by Amendment 22, Section 1, because he has already served two terms as president.
If President Obama ran for President for a third time in 2024, and nobody stopped him from appearing on the ballot, let me be perfectly clear: Obama would win. That’s not good, I’m not happy about it, I would fight it vigorously, read my blog archive, but the political reality is that he’d win the electoral college and the popular vote by substantial margins. He (bafflingly) enjoys a +10 favorability rating with the American public, he won two prior presidential elections by wide margins (despite strong headwinds in 2012), his base still worships him, the public is desperate to avoid a Trump-Biden rematch, and, oh yeah, Obama’s only 62 years old!
However, Obama is not running, because the Constitution says he can’t be President. If he did run, I wouldn’t bat an eyelash at disqualifying him. Would you? I have little doubt that every court would politely but firmly inform Mr. Obama that he is not a qualified candidate, and therefore is not eligible to appear on the ballot.
That’s not weird. Lots of people are disqualified. Barack Obama is disqualified by the 22nd Amendment, because he has already served two terms. So are George W. Bush and Bill Clinton. Admittedly, that’s only three people—or fifteen if you count ghosts.
Arnold Schwarzenegger is disqualified by the Natural-Born Citizen Clause, because he was born and raised in Austria, and it doesn’t matter that he’s been a U.S. citizen for forty years. This clause disqualifies about one out of every twenty American citizens from ever being President.
JoJo Siwa, Ben Shapiro, and I are all disqualified by Article 2, Section 1, which requires the President be 35 years old. Siwa is only 20, Shapiro is just 19, and I’ll be 34 on Inauguration Day—close but no cigar!3 Nearly half of Americans are disqualified by this clause.
Because of these disqualifications, Presidential electors who obey the Constitution may not cast electoral votes for Obama, Schwarzenegger, Siwa, or Heaney. How could they? The Constitution says that Obama, Schwarzenegger, Siwa, and Heaney cannot be President. Casting a vote for any of them would be a conscious attempt to cause a violation of the Constitution.
Likewise, Congressmen who obey the Constitution may not certify a presidential election that elects Obama, Schwarzenegger, Siwa, or Heaney. They are bound by their oath of office as firmly as the electors.
Finally, voters who obey the Constitution may not cast votes for Obama, Schwarzenegger, Heaney, or Siwa. That’s right: if you believe that a presidential candidate is disqualified, but you vote for that candidate anyway, you are not making a mere prudential error; you are violating the Constitution.
Nobody’s going to arrest you for this violation. Not every violation of the Constitution is a federal crime. (Just look at President Biden’s unconstitutional student loan scheme, or President Obama’s unconstitutional war in Libya!4) Nevertheless, I believe in the Constitution, and, in general, I consider it a moral duty to obey it, even if I wouldn’t be legally liable for violating it, even if other people believe themselves entitled to do just that.
Donald Trump himself supports the Constitution’s presidential disqualification rules… or, at least, he said he did. In the early 2010s, Trump argued that President Obama may have been born in Kenya, not the United States, which would make him ineligible for the presidency. Trump demanded proof of Obama’s birthplace to avert the constitutional crisis. Obama provided the necessary proof, but the principle was sound: if Obama had turned out to be something other than a natural-born citizen, Obama could not have been re-elected without violating the Constitution.
Since we would have to violate our sacred national pact in order to elect Obama, Schwarzenegger, Siwa, or Heaney, it is worth considering why these rules exist. Our Constitution was not handed down from Mt. Sinai, after all. It was created by men for two purposes: first, to establish a republic where the People could govern themselves democratically; second, to protect that framework, and those People, from the terrible dangers of unfettered democracy. The Founding Fathers were unsparing in their condemnation of democracy without guardrails:
The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. —Elbridge Gerry
It is one of the evils of democratical governments, that the people, not always seeing and frequently misled, must often feel before they can act right—but then evils of this nature seldom fail to work their own cure. —George Washington
Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
—James Madison
The Constitution establishes American democracy in about ten sentences.5 The rest of the Constitution restrains American democracy, confining it within certain boundaries and institutions. Hence the saying, “We live in a republic, not a democracy.”6 Indeed, President Trump only won office in the first place thanks to one of those restraints on democracy: the electoral college exists to moderate and channel the democratic will in certain ways. In 2016, Trump won the republican electoral college, but he lost the democratic popular will by a sizable margin. He was only president because the Founders short-circuited pure democracy!
Likewise, the Presidential Qualifications Clauses are restraints on pure democracy. Their sole purpose is to prevent the American people from electing the candidate of their popular choice. Why would we do this to ourselves?
We imposed the two-term limit on Presidents because, almost a century ago, a supermajority of Americans recognized that we are always tempted to turn our elected servants into kings and queens—and that, under the right circumstances, we would. That’s no smear on Americans. That’s just human nature. Israel demanded a king way back in Bible Times, even after God Himself told them it was a bad idea. Monarchy is the most natural and common system of government. Yet monarchy is what we rebelled against, and it would spell the end of America’s great experiment in constitutional self-government. Therefore, a supermajority of Americans proposed, ratified, and adopted the 22nd Amendment, imposing term limits on the presidency. Our ancestors saw that we would be tempted to make a bad choice, and so they took that choice away from us, because they (correctly) believed that we should not be allowed to make it. Their dead hand continues to protect us today.
The “natural-born citizen” requirement and the “thirty-five years old” requirement both have similar stories.7 The Founding Fathers feared, with some reason, that we would make choices that would undermine the long-term survival of the Republic… and so they took those choices out of our hands.
Donald Trump did not attempt to serve a third term. Nor was he born outside the United States. He did something far worse, something far more fundamentally threatening to the American system of government.
Trump assaulted the Constitution directly in a way and to an extent that no President—not even the fantastically evil and basically lawless Joe Biden—has dared attempt in about a century and a half. I am sorry if putting it so starkly upsets anyone, but you cannot look the facts squarely in the face8 and deny this. We will return in a future post (UPDATE: here it is) to the question of precisely when and why President Trump’s plot to overthrow the Twelfth Amendment and seize power became an “insurrection,” but it suffices for now to observe that Trump attempted to defy both the democratic will (the national popular vote) and the republican rule of law (the electoral college).
The Constitution allows a lot of political disagreement. It has to, because it is premised on the idea of giving the People a voice. The Constitution can’t draw many lines around what the People say or think, because any tool that can be used to disqualify someone bears the potential for abuse. However, about 150 years ago, a supermajority of us recognized that there is an outer limit to what we can actually allow in our system of government if we are to keep the constitutional compact. That supermajority drew one single bright line around political disagreement and elected office: if you swear to uphold the Constitution, and then attack the United States (not in some metaphorical sense, but literally attempt to overthrow the Constitution itself by violence), then you are disqualified and the People do not get any say about it.
The people who proposed and ratified the Fourteenth Amendment were well aware that some or many of us might want to choose an oath-breaking enemy of the Constitution as our leader. We are always tempted to hand the Republic over to a Sulla or a Caesar, just as our Roman forebears did. The framers of the Fourteenth decided that we should not be allowed to make that choice.
They were correct. We shouldn’t. We live in a republic, not a democracy. The democratic will must be held in check by certain minimal rules, or the republic implodes into tyranny. The rule against oath-breaking insurrectionists is one of those bare-minimum rules (and hoo boy is it ever bare-minimum).
Trump’s supporters have recourse, as people always do in a republican system. If they sincerely believe that Trump’s actions should not be held against him, they are free to petition Congress to lift his disqualification. According to the Fourteenth Amendment, a two-thirds vote of both houses of Congress can remove any insurrection-related disqualification. The framers of the Fourteenth built that in so that we would have the power to override the disqualification in cases where it proved inappropriate—but they required a supermajority, so that a bare majority or mere plurality could not install such a dangerous official without broad popular consent. If Congress declines to lift the disqualification, then Trump’s supporters are free to amend the Constitution itself to remove Amendment 14, Section 3. This would require the agreement of only thirty-eight state legislatures (thirty-four to call a constitutional convention under Article V, thirty-eight to ratify) and/or ratifying conventions.
Of course, if Trump’s supporters disagree with me outright on the question of whether Trump engaged in insurrection at all, or have sincere (I emphasize: sincere!) disagreements about whether other parts of the Disqualification Clause truly apply to Trump, then they are free to make their case in a court of law. As I write this, the Minnesota Disqualification Suit proceeds apace. Every expert, on all sides of these questions, should file their briefs.
What none of us can do, whether we support Trump or not, is, by only a bare popular majority, install a president whom we believe to be disqualified. In fact, it could be worse than that: how are we to interpret the “democratic verdict” on Trump’s qualifications if he wins the electoral college again while losing the popular vote? (After all, Trump’s never won more than 47% of the vote.) Can we really invoke the power of “democracy” while allowing a minority to override both the Disqualification Clause and the majority’s apparent verdict on its meaning?
If Trump’s supporters want him back in office, they must either prove Trump is qualified or convince a supermajority to lift the disqualification. There is no “democratic” cheat code to avoid that. Not if you believe in the Constitution.
Nor do the rest of us, who recognize Trump’s disqualification, have any discretion to ignore this part of the Constitution. The Fourteenth Amendment is not optional.
The dedication quote of De Civitate (“And when the last law was down…”) is excerpted from a dialogue in A Man for All Seasons, one of the great masterpieces about the rule of law:
ALICE: Arrest him.
MORE: For what?
MARGARET: Father, that man’s bad!
MORE: There’s no law against that.
ROPER: There is! God’s law!
MORE: Then God can arrest him.
ALICE: While you talk, he’s gone!
MORE: And go he should, if he were the Devil himself until he broke the law!
ROPER: So, now you give the Devil the benefit of law!
MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: Yes, I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down— and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
There’s more than one way to read this passage. For example, Trump’s supporters see me as cutting a road through the law in order to “get” at their guy. They aren’t crazy for thinking that; several overzealous prosecutors have done just exactly that in their lust for indictments against Trump. Moreover, if any of us on the pro-disqualification side are willing to bend or change our honest understanding of the law out of simple animus for Trump, then they’re correct! Even the Devil, indeed even Donald Trump, must have benefit of law… if not for his sake, then for our own.
However, it seems to me that the law in this case is, in fact, clear, and that it disqualifies Mr. Trump. The Devil himself must go free ere he breaks the law, but Mr. Trump has broken it. We therefore have a duty to carry out the prescribed consequences—for our own safety’s sake.
If you disagree with me about the substance of the Disqualification Clause, because you really don’t think it’s self-executing, or you really don’t think January 6 was an insurrection, then fine, let’s have that discussion. But the argument I’m seeing in my mailbag is that it doesn’t matter if Trump is disqualified by the Disqualification Clause, because The People Must Decide, and it would outrage Trump’s supporters too much to take their voice away. I think that argument is the most dangerous of all.
If we cut down the Disqualification Clause to keep Trump’s supporters from feeling disenfranchised (or even rebellious), then why wouldn’t Barack Obama run for a third term in 2028? Why wouldn’t the next angry group demand that we cut down the Free Exercise Clause, or they’ll throw a violent fit? Large portions of the Black Lives Matters crowd vowed revolution if the State’s police power were not sharply curtailed and our legal color-blindness cast aside; some of them went on to engage in insurrection.9 If we sacrifice the law to the feelings of Trump supporters, don’t we need to do the same for Black Lives Matter? Do you really think you or I, conservative dissidents against the Current Year regime, could hope to stand upright in the winds that would blow then?
No sane court would ever want to reach out and interfere with the People’s democratic decision-making process. Courts rightly fear having that kind of power, and even more rightly fear the backlash they’d face for meddling. However, this is a republic. It is the Constitution that has interfered with the People’s democratic decision, and that is exactly what it’s supposed to do. The only role the courts have in this sad saga is to fearlessly face the facts and enforce this unhappy provision against those who have violated it.
Next time on De Civitate, we will begin to show in greater detail exactly why we must conclude that Donald Trump has, in fact, violated it.
(Or I’ll do an installment of Letters to a Growing Catholic and scare off all the new subscribers who are here for legal content.)
ICYMI: On Monday, I posted my first review for paying readers of De Civitate: a review of Barbenheimer, which I saw long after everybody else.
My other writing about the Trump Disqualification Case, covering questions like whether President Trump did an insurrection and whether he is an officer of the United States, can be found here:
UPDATE 29 September 2023: Readers have pointed out two factual errors, which I have corrected.
First, the article originally stated that 21 people are term-limited out of the presidency if you count ghosts. The correct number is 15. The error is due to my carelessness. I searched for the number and didn’t read the source document closely enough before copying a number. 21 people have served more than one term as president, but many of them served partial terms—for example, after an assassination—and would not be term-limited. That leaves sixteen presidents who have served either two full terms or (per the Twenty-Second Amendment) one full term and at least two years of a partial term.
Moreover, the text of the Twenty-Second Amendment strictly exempts “any person holding the office of President when this article was proposed.” As it happens, that’s Harry Truman. Truman served a full term and a two-year partial term, so he would ordinarily be term-limited, but, because of this exemption, which is absolute and eternal by its own terms, Ghost-Truman is eligible to serve as president forever.
The second error is I forgot how old I am. See footnote 3.
This is not how courts themselves would describe their method, but it’s still true.
If you disagree that the Fourteenth Amendment disqualifies Trump, that’s fine. Once we’re past the “meta-question” of whether it’s even allowable for a democracy to disqualify a candidate, we will (in future articles) examine, in much greater detail, how the 14th Amendment has actually operated in former President Trump’s case. What concerns me today is people who concede that Trump has (or may have) participated in an insurrection, but who don’t think we should do anything to actually strike him from the ballot.
Okay, Shapiro’s actually 39, but you believed me for a second, didn’t you?
I often agree with Shapiro, who’s a smart guy, but I have to admit that, in my head, all I can hear is the many, many AI imitations of his voice I’ve heard. He has a remarkably AI-able voice.
UPDATE September 29: A friend of mine, who happens to be my age, read this and wrote to me the following note. “FACT CHECK: You will not be 34 on Inauguration Day.” I sat down, did the math, and, reader, he’s right! I’ll be 35! I can be president this cycle!
I think I owe you a story for getting such an obvious fact wrong. The reason I got this wrong is because, in third grade, me and my friend Tim (who had opposite political opinions on everything) agreed that we would settle our differences the only way third-graders can: be running for President of the United States and whoever wins the election wins our argument. (Remember, this is the 1990s, so the idea of a popular/electoral vote split didn’t occur to us.) We were aware of the thirty-five-years-of-age requirement—or, at least, Tim was; Tim knew a lot, which is why I enjoyed arguing with him—so we calculated the first cycle in which we’d be eligible to run for the presidency. We came up with 2028.
In all the years since, even as Tim and I drifted apart and then back together and then apart again, growing up is hard kids, I have never questioned this. I knew that I would be eligible to run for POTUS in 2028, not before, and that I would have to at least file paperwork with the FCC in 2028 because I loudly promised Tim that I would do so back in the Nativity basement corridor between the Art Room and Mrs. Maslowski’s classroom. (I also thought that Tim should be my running mate and I should be his. Tim pointed out that this is unconstitutional, because the Vice President can’t be from the same state as the President, but I thought this was too stupid a rule to be real and didn’t believe him.)
Alas, I now realize that we got our math wrong! I think we put Inauguration Day in January of the election year, not the following January. I’ve carried that error around ever since. Miss ya, Tim!
In short, unlike JoJo Siwa, 19-year-olds like Ben Shapiro, and former president Trump, I am qualified to be president this time around. Oh, well.
For those who agree with Michael Stokes Paulsen that Donald Trump is disqualified from office (as I do), it would be wise to also take seriously his view that President Obama blatantly violated the Constitution in Libya (and, very nearly, in Syria). It seems to follow from Paulsen’s position that Obama could have been justifiably impeached over the Libyan War. I agree with that, too.
If you think Paulsen is right about Trump but wrong about Obama (or vice versa), that might be a sign that you are looking at these crucial constitutional questions through a partisan lens, not a republican one.
Article I, Section 2, Clause 1; Article IV, Section 4; the Ninth and Tenth Amendments; the Fourteenth Amendment, Section 2; the Fifteenth Amendment; the Nineteenth Amendment; the Twenty-Fourth Amendment, and the (IMHO) 20th-century mistakes: the Seventeenth Amendment (direct election of senators), the Twenty-Third Amendment (electors for D.C.), and the Twenty-Sixth Amendment (youth suffrage).
As Akhil Amar explains in America’s Constitution: A Biography (during his discussion of the Republican Form of Government Clause), the Founding generation itself did not see much of a difference between the words “democratic” and “republican,” and used the terms interchangeably. The Fathers did recognize the dangers of unfettered democracy and the importance of moderating institutions, but this analytic distinction didn’t map onto any semantic distinction between the words “democracy” and “republic” yet.
Today, of course, the distinction is well-established and too useful to put down in most conversations like these: “democracy” refers to the popular will in pure form, and “republic” represents the moderating institutions and rules that keep that popular will from becoming dangerous.
Most people think the age requirement for the presidency is there to ensure the President of the United States has enough wisdom and experience to serve effectively. That doesn’t seem to have been on the Founders’ minds at all. Instead, Akhil Amar argues, the age requirement (like all Qualifications Clause requirements) exist to advance republican values, especially compared to the status quo ante Revolution:
Article I's age limits... would likewise tend to limit the rich and highborn more than the poor and middling classes. Who other than "the haughty heirs of distinguished names" would be famous enough at a tender age to win a seat in the continental House or Senate? Without a minimum-age rule, voters and legislatures in each state might be tempted to send the state's favorite son, such as the governor's scion, to Congress as young as possible. Such a youngster could then begin to make contacts that would give him—and, derivatively, his state—a head start in future contests for federal honors... even the presidency itself. If each state chose such a strategy, an unrepublican race to the bottom might ensue, with family-name recognition elbowing out the actual accomplishments of older candidates. In England, William Pitt the Younger, whose father and namesake had led the British ministry in the mid-1760s, entered Parliament in 1781 at the age of 21. In 1783, this 24-year-old favorite son himself became prime minister, a post that he continued to hold in Britain even as Americans deliberated over [the Constitution].
...Congress did in fact operate as a springboard. ...Several of [America's first 16 presidents] were indeed state favorite sons in a rather literal sense: one was a president's heir and namesake, and 3 were the children of governors. Yet by the time they reached Congress, each of these sons had an extensive political track record of his own, thanks to Article I's age rules. [John Quincy Adams was a leading American diplomat, William Henry Harrison a governor and war hero, John Tyler in state government, and Franklin Pierce had led his state legislature.] Cumulative data from the new Congress's first decade provide further evidence that Article I's age rules probably did tend to dampen intergenerational aristocracy...
—America's Constitution: A Biography, pages 70-71
Yes, the January 6 Committee Report was a largely partisan affair that shaped its narrative in a certain way to cause maximum political harm to Donald Trump. It also reported many undisputed facts about exactly what went down that day, when, and at whose instigation. I defy you to read even the executive summary and come away still thinking, “Oh, Trump was just asking the legal system to thoroughly investigate credible claims of widespread fraud!” He was doing no such thing, and to believe otherwise is to live in a bubble more insular and airtight than that of the most braindead NPR/Deep State zombie.
Also, I was never a fan of the Cheney family, and I never would have considered voting for Liz Cheney in a primary before 2016, but the idea that she’s a “liberal RINO” is crazy-pills nonsense. Only by redefining “conservatism” from “belief in restrained, traditional government” to “personal loyalty to Donald J. Trump” could you possibly call Cheney a RINO. The J6 Committee, then, did have bipartisan representation. It just wasn’t a kind of bipartisanship the Trump wing of the GOP liked, so they pretended it was all just a partisan witch hunt.
We will get more into this in the next piece in this series, dealing with the definition of insurrection, but there’s really no question in my mind that Portland’s violent, months-long siege of a federal courthouse intended to bring about some form of political change constitutes an “insurrection” within the meaning of the Disqualification Clause. If anything, it’s an even clearer case, legally speaking, than the Capitol insurrection of January 6th, even though it was probably less serious in terms of its effects.
Well said. I disagree on some pertinent facts (I'm not convinced the January 6th riot was an insurrection, or that Trump participated in it), but I fully endorse your reasoning here. If the Constitution does disqualify someone, then it should and must be followed.
As a sidenote, I think you're counting the twenty-one disqualified ghosts wrongly. By my counting, only thirteen dead Presidents actually served more than one and a half terms in office - and then we need to leave out Truman, as the Twenty-Second Amendment explicitly exempted him.
(As even more of a sidenote, I was musing over whether the Constitution actually prevents someone who's dead from being President. I don't think he'd be technically disqualified, but under the Twenty-Fifth Amendment, his Vice-President would immediately succeed to the office.)
Constitutional Republic is a tautology. The founders used the term "federal Republic" because saying "constitutional Republic" is like saying "wet water"...
Otherwise, great article. If this topic is one you intend to keep covering, you should look into the role federalism plays in Presidential elections. The Constitution delegates plenary power to the States to make election rules and regulations. You don't need to get to 14th amendment to find the power to do this. Amendments 10 and 12 already delegate our State the right to regulate these issues.