On Tuesday, the Colorado Supreme Court held that Donald Trump isn’t allowed to appear on state ballots in the 2024 election cycle because the former president engaged in “insurrection,” disqualifying him for office under the 14th Amendment to the US Constitution. Intended to finally write the former president’s political obituary, the decision is just the latest example of liberals helping dig the grave of our democracy.
“The ruling sets up a dangerous new version of an all-too-familiar scenario.”
The ruling sets up a dangerous new version of an all-too-familiar scenario: It transforms what ought to be a national referendum on the future of the country into a national spectacle of how judges will interpret a provision from its past. Doing so might for a moment save liberals—and, if the US Supreme Court goes along, conservatives, too—from their nonnegotiable responsibility to win power by winning elections. But it would do so by putting the very democracy such forces purport to want to save at greater risk and only postpones the need to rule by legitimate means, rather than through legal hijinks.
No matter: Get ready for a lot of liberal pining for justices like Brett Kavanaugh and Neil Gorsuch and John Roberts actually to do the right thing legally—or for the more cynical observers, to save their own Republican Party the trouble of ending the Trump era by successfully opposing him politically.
The 14th Amendment does indeed ban candidates who broke their oath to the Constitution by engaging in insurrection. But there is a long-running debate about whether and when democracies should use provisions like this one to protect democracy from implosion. Equally important, like so much of law, when and how Section 3 of the 14th Amendment actually applies isn’t obvious.
Pretending it might, which just moved from one more parlor game for law professors into an existential national psychodrama, is par for the course of our era. That is why it is essential to focus not on the legal details but on the political and even psychic meaning of allowing ourselves to be embroiled in them.
It has been clear for some time that the defining event of our time was the collapse of Robert Mueller’s investigation of Trump and his associates for Russian “collusion.” Afterward, there were two choices open to those who understandably opposed the president: figuring out how to appeal to enough voters to forge a durable liberal majority—Joe Biden clearly didn’t manage in 2020—or trying again to seek a quick fix or short cut that would save liberals the trouble of winning.
The liberal longing for a magical ending has regularly turned on the fiction of apolitical law in general and of the supposedly redemptive Constitution in particular. Americans could rely on Mueller and the investigatory and prosecutorial apparatus of the American state (once reviled by liberals, but never mind) to shield them from the harsh fact that 60 million people voted a buffoon into power—a figure that rose to more than 70 million four years later, notwithstanding a series of other attempts to do an end run around the obligation of winning power by winning votes.
Impeachment, based on an even older provision to the Constitution, certainly provides an alternative to elections. No one doubts it is available as a remedy; and for all of the legal wrangling around what is required to remove a president that way, no one could doubt it is ultimately a political decision. The trouble in trying it against Trump was that Republicans were too afraid of his popularity to acknowledge his turpitude. But what if we could ask not the Senate, but the Supreme Court, where (some hope) Never Trump Republicans have either less fear of American voters, more votes of their own in deciding cases, or both?
Never Trump conservatives have no way of winning back the GOP anytime soon, so no wonder such an outcome suits them. It is even understandable that so many liberals would prefer to turn to the Constitution and the Supreme Court to save themselves from a reality that the same Constitution helped produce. Only lately, after all, have liberals come around to acknowledging that the trouble with “our democracy” is that it isn’t enough of one by design. Assembling a political constituency to express majority will on the national level would actually demand a supermajority to survive the obstacle course the Constitution sets up, as right-wing minorities continue to choose presidents through the Electoral College, exert outsized influence through the Senate, or seek control of the Supreme Court. If a right-wing Supreme Court might do liberals and progressives a solid by saving them the trouble of extricating themselves from the wreckage of Biden’s polling results, why not get its help?
But as multiple impeachments and indictments since the collapse of Mueller’s investigation have proved, this is actually not an alternative. In democracy as it is and is supposed to be lived, there are no “magic wands,” as even Rachel Maddow—icon of the Resistance desire for an exit from democracy’s responsibilities—called the Colorado attempt.
Of course, the Colorado ruling is likely a flash in the pan for other reasons, since it is so easy for the US Supreme Court to knock it down, on a host of legal grounds. (The disagreement among judges in Colorado, not just its high court’s dissenters, but lower-court judges whom it reversed, makes this plain.) When even Maddow discounts the likelihood of the latest Resistance strategy, which humbly asks Supreme Court Republicans to save a sitting Democratic president, it must be doomed.
One objection to the events that the Colorado decision unleashes is that Trump only benefits from such tactics. After all, earlier talismans against the apparently frightening specter of having to rustle votes against Trump have generally caused him to become yet more terrifying. Pollster Frank Luntz immediately went on CNN Tuesday night, venting fears that the Colorado decision—much like the 91 indictments from various prosecutors across the land—would not kill Trump, but only make him stronger in the polls.
But what if Never Trump fantasies finally came true? That prospect is, in some ways, even scarier than the rut of strategies of opposing the former president in which the country has been stuck, in lieu of freeing ourselves for a different future.
One drawback would be rehabilitating an antidemocratic document and institution, not to mention at least one or two conservative justices whom liberals have so passionately reviled lately. If the Supreme Court is going to save the day, it is going to require “running the table” on a great many distinct legal disputes about the meaning of the Constitution (as New York Times reporter Adam Liptak put it). But the Supreme Court isn’t going to roll dice. It is going to make a political choice. And it is not going to exert power in the name of saying what the Constitution means only in this case.
An equally grave concern is what happens in the short and long run when self-styled democrats refuse the grubbiness of democracy itself. I suspect the backlash to constitutionally disqualifying Trump would be enormous. If that happens, it isn’t clear “our democracy” will survive the storm into which a Colorado court might just have piloted the ship of state. Regardless, it would be a strange way of responding to the most plausible truth—among so many baleful lies—that Trump has stood for: that America’s ongoing crisis is a result of elite failure, which is never going to be addressed so long as popular control of politics is seen as worth circumventing, rather than reclaiming.