Who’s Afraid of Militant Democracy, U.S. Style
The United States adopts a different approach than many other constitutional democracies to disqualifying persons from public office. Many constitutional democracies disqualify parties whose platforms are inconsistent with certain fundamental democratic principles. The United States disqualifies persons whose actions are inconsistent with certain fundamental democratic principles. Section Three of the Fourteenth Amendment, framed in 1866 and ratified in 1868, declares:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.
President Abraham Lincoln captured the essence of this provision in his July 4, 1861, message to Congress when he declared, “when ballots have fairly and constitutionally decided there can be no successful appeal back to bullets.” Past and present officeholders in the United States who resort to violence after losing votes may not hold present or future office.
Professor Samuel Issacharoff of New York University Law School, one of the most distinguished professors of comparative and election law in the world, would sharply cabin if not eliminate American-style militant democracy. He notes problems with determining who disqualifies. He asks, “Can it really be that one public official in Maine can remove a national presidential candidate on her say-so?” He worries about interpretation. Section Three, in his view is “a lawyer’s nightmare of distinctions between offices and officers, oaths in specific prior capacities, and even the relance on the uncertain term of insurrection.” Finally, he questions the utility of militant democracy. Professor Issacharoff questions “whether disqualification or exclusion of insincere democrats can really work.
Professor Issacharoff and I, as well as every proponent of disqualification I know of, agree on a basic point. Right-wing populist authoritarianism cannot be defeated by legal decree. In the long run, the political forces that brought such figures as Donald Trump, Benjamin Netanyahu, and Victor Orban into power must be defeated at the ballot box for liberal constitutional democracy to survive. If popular majorities do not favor persons committed to the rules of liberal democracy, liberal democracy becomes a contradiction. Government by the people cannot be maintained by means other than government by the people.
Disqualifying individual candidates who resort to violence when they lose the vote, however, does not raise the difficulties that concern Professor Issacharoff and are consistent with democratic rule. No single person acting alone may keep a presidential candidate off the ballot. The constitutional rules as applied to Donald Trump and the events of January 6 are clear. American style disqualification of individual candidates prevents popular majorities from being de facto disenfranchised while permitting voters to vote for candidates who advocate anti-democratic principles as long as those candidates do not resort to bullets after losing the ballots.
No single official in the middle of nowhere or local institution in the United States can unilaterally disqualify a major party candidate or any candidate for office. Local officials in the United States often initiate controversies as part of their responsibility to implement the law. Persons are sentenced to death only when the local prosecutor decides to pursue capital punishment. People are sanctioned for speech only when a local police officer determines that a speaker is not protected by the Constitution. The convicted are executed and persons jailed for speech only after numerous other officials, including the justices on Supreme Court of the United States, review and affirm the decisions of local officials.
Constitutional disqualification requires the same procedures used when other constitutional provisions are implemented. The Maine Secretary of State made an initial decision to disqualify Trump. Her decision was appealed to the Supreme Court of Maine. The Maine decision may be appealed to the Supreme Court of the United States. At any time, the Maine state legislature and Congress of the United States may pass legislation that forbids or more clearly authorizes the Maine Secretary of State to determine whether candidates are qualified to run for the presidency in that state. Trump or any other candidate can be disqualified for public office only if the Supreme Court of the United States rules that Trump is subject to constitutional disqualification and only if the Congress of the United States does not intervene and establish new procedures for constitutional disqualification. This is a far cry from government officials being disqualified on the say-so of a single individual or local institution.
The structure of constitutional politics prevents to the extent humanly possible “tit-for-tat” strategies. Presumably, the Supreme Court of the United States or some other institution will not let a local official disqualify President Joseph Biden merely because that official disagrees with Biden’s immigration policy, any more than the Supreme Court will allow a red state court to find Biden guilty of financial improprieties as revenge for the New York courts making the same finding with respect to Trump. If courts are willing to allow people to be framed because others have been legitimately sanctioned, the United States is in far more trouble than can be resolved merely by abandoning Section Three.
Claims that Section Three is a “lawyer’s nightmare” are ahistorical. Many Democrats complained bitterly about constitutional disqualification, but none complained that the constitutional provision was vague or hard to interpret. Professor Issacharoff acknowledges that former confederates and their northern supporters knew exactly who was disqualified for what. When opponents of the Fourteenth Amendment cried “vague” their focus was on the privileges and immunities, equal protection, and due process clauses of Section One of the Fourteenth Amendment. If Section Three is unclear, then probably no provision in the Constitution of the United States meets clarify standards.
Historians, as opposed to Trump’s lawyers, uniformly support the interpretation of Section Three advanced by those urging that Trump be disqualified. Every person who submitted an amicus brief in the Trump disqualification case before the Supreme Court who regularly attends meetings of the American Legal History Association and publishes in peer review history journals agreed that Section Three contains relative clear rules for constitutional disqualification. They point out that no one in 1866 thought a former president who had never held any office enjoyed a bizarre exemption from constitutional disqualification. When Republicans summarized Section Three, they declared that anyone who held an office that required an oath of allegiance to the United States who participated in an insurrection was disqualified from holding present and future office. I have a forthcoming essay in which I note numerous Supreme Court decisions, decisions by individual Supreme Court justices acting as lower federal court justices, decisions by lower federal court justices, decisions by state court justices, and legal treatises published between the American Revolution and the end of Reconstruction that agree on a common understanding of insurrection. An insurrection, that consensus declared, consisted of an assemblage resisting by force or violence any law for a public purpose. All persons who knowingly assisted an insurrection were insurrectionists.
The inevitable disputes at the borders of all legal rules have no bearing on whether the events of January 6 were an insurrection or whether Donald Trump participated in that insurrection. There was an assemblage. Hundreds of people breached the Capitol Building and thousands trespassed on federal land. There was clear resistance to federal law. The trespassers intended to disrupt the proceedings mandated by the Electoral Count Act. The resistance made extensive use of force. Many in the mob engaged in crimes of violence or threatened crimes of violence. Calls to “Hang Mike Pence” do not suggest an attempt to achieve goals by rational persuasion. The insurrectionists had a public purpose. They engaged in violence to prevent what they claimed was a stolen election. They were not there to steal congressional furniture that they later planned to sell on the internet.
Trump incited and participated in that insurrection. When told his tweets about a stolen election were inspiring violence against election workers, Trump intensified his rhetoric. When informed that some persons coming to Washington intended violence, Trump told them “to be wild.” Knowing that many in the crowd were armed and planning to invade Congress, Trump on January 6 urged his supporters to “Fight Like Hell.” A reasonable person could conclude from the evidence at various hearings, evidence that Trump barely contested, that January 6 was not the spontaneous outbreak of violence that constitutes a riot, but that Trump from the beginning intended his words and actions to induce and support a violent effort to resist the transition of presidential power.
American disqualification differs from disqualification elsewhere by focusing on persons rather than parties. No one in the United States is disqualified from office because they have urged democratic institutions be abandoned or fomented hate against another group. The rule is simple. The only persons disqualified are those past and present officeholders who after taking an oath of allegiance to the Constitution proceeded to prevent popular majorities from implementing their chosen policy by force and violence. Liberal democracy cannot function when policy is made by force rather than reason. Voting is pointless when violence prevents popular majorities from implementing the policies they think best.
Voters in American-style militant democracy remain free to vote for candidates who promise to implement anti-democratic policies. Past supporters of Trump are free to support candidates who commit themselves to implementing all of Trump’s policies. They may even vote for a candidate who promises to call Trump every day for advice on how to govern and follow that advice without deviation. What matters in the United States is that voters choose the anti-democratic candidate, not that democracy is subverted by the violent activities of the candidate who lost the vote.
Disqualifying Donald Trump is not a panacea for all that ails the United States. Disqualification may even contribute to right-wing politics. Many polls show Nikki Haley, presently the Republican alternative to Trump, running better in the national election against President Biden than Trump. The point is that Haley and Republicans other than Trump have no history of resorting to violence and fraud when they lose the vote. Disqualifying Trump will at a minimum increase the probability that whoever wins the ballots in the 2024 American national election will actually hold the offices. That seems sufficient to justify American-style militant democracy.
