Protecting Democracy From Itself:  Can the Fourteenth Amendment Save the Republic?

Photograph Source: Rawpixel Ltd – CC BY 2.0

Winston Churchill once exclaimed that ” democracy is the worst form of government, except for all those other forms that have been tried from time to time.”  With democracy facing challenges in the US the likes that perhaps not seen since the Civil War, the question is what to do.

This question takes on exceptional salience with the coming 2024 presidential elections and the prospect that Donald Trump could again be re-elected.   This has prompted some to call for some to employ the Fourteenth Amendment to declare Trump an insurrectionist and declare him ineligible for office.  As attractive as this solution may sound, it is a dangerous tool to solve  a pressing problem.

Democracies can produce their own antithesis. The Democratic German Weimar Republic elected Hitler and the Nazis who annihilated the popular government. Across the world we see similar problems in Hungary, Poland, and perhaps Israel.  Our constitutional framers saw this potential too.

Democracy, including that in the US, is an experiment in the people ruling, and it is still not clear if it works.  The American Experiment according to historian James McGregor Burns was that of being the first popular government in history. While one can challenge whether the elite framers who were slaveholders truly were interested  in popular government, let’s assume they were.  For James Madison, perhaps the principal architect of the Constitution and one of the authors of the Federalist Papers the challenge of popular government or what we call representative democracy today is to protect it from majority faction, mob rule, populism, or what others have called the tyranny of the majority.

The fear was that the passions of the people would swell up and produce a majority faction, defined as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The political solution to the problem of  populism was  creating a system placing breaks on the mobilization of power through separation of powers, checks and balances, federalism, staggered political terms, and an electoral college.  Yet somewhere along the line these mechanisms have failed .

Political science research tells  us that democracies need elite and mass support to work.  Yet polls suggest the American public increasingly worries about  our democracy or no longer trusts it, and many elites too have lost confidence in it.  Among those Donald Trump.

No matter how you cut it, Trump is the worst nightmare of our constitutional framers.  He is why we had an electoral college to prevent his selection as president.  But nonetheless, he was elected once due to structural features in the electoral college that have reduced presidential elections down to what a few voters in a few swing states think.  We have a democracy that is not  purely majority rule nor  purely capable of containing the excesses of democracy.  We have a democracy where the wealth of a few drives the agenda.  We have a democracy where wealth inequalities as well as racial, geographic, and partisan polarization divide America.  We have a democracy with institutions designed for the eighteenth century seeking to operate in the twenty-first century.

Simply put, there are many reasons to fear the crisis of a house divided.  There are  many reasons why  the likes of Donald Trump appeal to so many.  Yet what is scary is that his efforts to overturn the 2020 election results  and whether as a result of it he should be considered a viable presidential candidate divide America.  It ought to be a no brainer—What he did on January 6, 2021, was  simply wrong.  He encouraged a storming of the US capitol with the goal of effecting a coup d’état and overturning an  election.

He is an insurrectionist and should be barred from office under Section Three of  the Fourteenth Amendment.  At least this is the conclusion of a forthcoming article co-written by a former professor and colleague of mine Michael Stokes Paulsen.

The Fourteenth Amendment was one of three Post-Civil War Amendments and a host of legislation adopted as part of the Reconstruction.  The relevant part of Section Three states:

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. But Congress may by a vote of two-thirds of each House, remove such disability.

The question is what does this section mean and how does it apply to Trump, if at all?

Central to Paulsen’s argument is a historical analysis of the Amendment with an argument that concludes that the Section Three exclusion was written to address specific circumstances growing out of the Civil War and the need to prevent former Confederacy members from serving in office and impeding Reconstruction.  But one can read Section three more broadly, as is true of Section One with regards to Duer Process and Equal Protection, to still be part of the Constitution and applicable beyond the Civil War and Reconstruction.   We can read it to apply to future events and use it to exclude Trump from future office because of what he did on or around January 6, 2020.

I am not a professional historian—I am trained with a Ph.D. in political science as well as a JD and master’s in law as well as advanced degrees in philosophy and astronomy.  It is possible that Paulsen is correct that Section Three applies beyond the facts of Civil War Reconstruction and it has the meaning  he ascribes to it.  However, I decided to defer to some of the best American legal historians regrading Section Three’s meaning.

Urofsky and Finkelman’s A March of Liberty (volume I, p. 502) describes Section Three as a “severe sanction” to those who  held office before joining the Confederacy.   Kelly, Harbison, and Belz’s  The American Constitution (volume II, p. 333) as originally proposed  “unconditionally  disenfranchised  all participants in the late  rebellion until March 4, 1870.”  But many moderate rebellions objected to the provision as two severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress.

Foner’s The Second Founding (p. 85) dismisses Section Three  in one sentence as “long since faded into history.”  Foner’s masterpiece, Reconstruction:  America’s Unfinished Revolution acknowledges the Fourteenth Amendment can only be understood within the  content of the  1866 (257), the elections that year, and the fear that the present Andrew Johnson would undo efforts to  enfranchise former freed slaves (254).  Finally Maline and Rauch’s Empire for Liberty (volume II, p. 12) effectively ruled out all of the “South’s leaders” and was detested by  Southerners.

At best historical evidence is mixed when it comes to the meaning and interpretation of Section Three.  Most  historians see it as time bound or limited to the circumstances immediately following the Civil War.   Yes, as Paulsen contends, other parts of the Fourteenth Amendment such as Section One may have a life beyond  the Civil War or Reconstruction, but just because one section is not limited by time and historical circumstances does not mean the entire Amendment is.

The task here is not to criticize the historical claims.  One can concede the  history of Section Three and one can also concede that Trump encouraged an insurrection on January 6.  Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

Trump deserves to be punished for what he allegedly did.  This is why we have courts, due process, and rule of law. Let the criminal justice process do its job. Additionally, one has to feel uncomfortable  letting election officials make determinations of ballot access.  While such decisions are subject to judicial review, there is already a problem in the US with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws.  Granted their case is different from Trump’s but we should not empower more discretion in election officials to deny access to the ballot.

Additionally, a generation ago in 2000 the Supreme Court’s Bush v. Gore  was criticized for resolving the election dispute in Florida.  Many said the Court picked the president.  Here if the Insurrection Clause is used to keep Trump off the Ballot,  courts again may determine who is the next president.  This is especially with the likelihood that the Supreme  Court may eventually review any lower court decision.

But there is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics.  In a polarized political environment such as the US is experiencing, keeping a candidate off the ballot does nothing to overcome that.

Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states.

American democracy is in trouble and Trump is trouble for democracy.  He is a symptom of a deeper problem that keeping him off the ballot will not solve.  Short term political mobilization, especially in the critical five or six swing states that will decide the 2024 presidential election, is the solution.   Organize to defeat Trump.  But longer term there are major obstacles regarding race, class, and gender discrimination.  There are problems with election laws unfair to minor parties and candidates.  There is a need to address political disinformation.  The institutions of democracy need to be fixed.  Barring Trump from office will not accomplish that.

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.