The Courts’ Responsibility—and Ours
The Courts’ Responsibility—and Ours
Do you believe Donald Trump is an insurrectionist? Then vote that way—and persuade others.
THROUGHOUT THE LITIGATION around Donald Trump’s possible disqualification from the presidential election, his critics seemed to presume that the Fourteenth Amendment question would be settled by the Supreme Court—or not at all.
I alluded to this in a Wall Street Journal op-ed on Tuesday, after the Court’s decision in Trump v. Anderson. The Court concluded that state governments cannot unilaterally disqualify a president under the Fourteenth Amendment’s Disqualification Clause, because such decisions can only be made by federal laws enacted by Congress implementing that amendment. And the Court’s analysis seems to foreclose other gambits to delete Trump from the ballot either before or after Election Day—through ad hoc lawsuits in federal court, or by members of Congress attempting to nullify electoral votes for Trump on January 6, 2025.
Absent an actual prosecution and conviction of Trump for insurrection, I wrote, “only the voters can keep him out of office.”
At the risk of being uncharitable, I suspect that this conclusion will be misunderstood in two very different ways.
Among many of Trump’s critics, there seemed to be an assumption that only courts could conclusively settle the question of whether January 6th was an insurrection that disqualifies Trump from the presidency—and that if the courts do not settle the question before November, then it will never really be settled. Trump’s political opponents might now look for it to be settled by governors (refusing to sign the federal certification of their states’ popular votes), or by Congress (refusing to accept his electoral votes, in a replay of John Eastman’s crackpot theory that Congress can judge presidential elections). But one way or another, this sensibility assumes, only the courts or other government officials can settle the issue, either before or after the people vote.
Among many of Trump’s supporters, there seems to be an equally faulty assumption: namely, that if the courts have not disqualified Trump from the ballot, then the voters themselves have no responsibility for taking the insurrection issue seriously, either. By this assumption, there is nothing special about the Fourteenth Amendment issue; it is just one more thing among all the other political or policy issues at stake—and maybe even less than that.
THESE TWO ASSUMPTIONS—that the voters cannot make judgments about the Fourteenth Amendment issue, or that they need not make such judgments—are mirror images.
And they are both profoundly wrong. Trump’s critics would take constitutional responsibility away from voters. Trump’s advocates would have the voters themselves abdicate constitutional responsibility.
The voters bear this burden and we cannot shrug it off. A candidate’s constitutional qualifications are not just another policy issue among many. A voter with genuine fidelity to the Constitution has to put the constitutional question first: Is Donald Trump constitutionally disqualified? Has he “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”? And, for that matter, is the presidency an “office” within the meaning of the Fourteenth Amendment?
That is not to say that each voter must become an amateur law professor. (Mercifully not.) The vast majority of voters may well defer to the advocates whom they find persuasive. And they might well be motivated, underneath it all, by partisan sentiments.
But at the very least, fidelity to the Constitution requires a good-faith effort to think seriously about whether Trump is disqualified from the presidency on Fourteenth Amendment grounds, and only then to move on to non-constitutional issues.
To be sure, the 2024 presidential election will not be a legal “verdict” settling the original meaning of the amendment, or the facts of the January 6th attack on the Capitol. An election is not a courtroom trial, to say the least.
By the same token, even if Trump were prosecuted for and convicted of insurrection, the verdict would not actually settle the constitutional question. It would settle things as a matter of judicial law and fact, and thus it would create a proper legal basis for the courts to hold Trump’s presidency unconstitutional. But the deeper questions of whether January 6th was an anti-constitutional “insurrection,” and whether Donald Trump’s actions made him culpable for it, transcend lawsuits. These are national questions of constitutional self-government, which Americans will debate for years and decades to come.
In that kind of constitutional debate, one cannot simply impose one’s will on the public—even if the public ultimately gets it wrong.
THERE IS NO ESCAPING THE FACT that the Fourteenth Amendment’s words are not crystal clear. At its enactment, it obviously barred Confederates from office. For future generations judging new events—even horrific events—short of outright civil war, the answers are inescapably less clear and obvious.
That is the virtue of the Fourteenth Amendment, as the Court’s per curiam opinion suggests: that in the long run, the Fourteenth Amendment’s meaning has to be upheld by our constitutional system as a whole—through congressional legislation prescribing standards and procedures for determine whether someone is actually an insurrectionist; by the executive branch’s criminal lawsuits brought under that legislation to prove someone’s guilt; and by federal judges and juries applying those standards and delivering verdicts.
Absent all of that—the basic “auxiliary precautions” of constitutional self-government—the constitutional responsibility remains with the people themselves.
And here is the hardest part of the people’s constitutional responsibility: Any one of us can reach very firm conclusions, yet in the end we cannot wish away a contrary opinion. One can believe strongly that January 6th was an unconstitutional insurrection under the Fourteenth Amendment (as I do), and believe that the presidency is an “office” within the meaning of the Amendment (as I also do, if less confidently), and that Donald Trump is therefore disqualified from the presidency (as I do). But if most Americans conclude otherwise and vote accordingly, that does not mean the end of the Fourteenth Amendment, let alone the Constitution. It means that others disagree, and those of us who see it differently are left to keep making the case for the sake of future generations.
THE LONGER THAT THIS DEBATE UNFOLDED—first among law professors and commentators, then among litigators and judges—the more it brought to mind an essay that the great constitutional scholar Alexander Bickel published just before his death, almost exactly fifty years ago, in Commentary.
In “Watergate and the Legal Order,” Bickel warned that President Nixon’s anti-constitutional actions in Watergate were a mirror image of the Warren Court’s own overreaches in the 1960s. Both Nixon and the Warren Court (and their respective supporters) believed that the moment required unprecedented, unconstrained, and ultimately unconstitutional actions. In eventually crossing the Constitution’s lines, neither was willing to practice restraint; the stakes seemed far too high. And the two camps, for progressive judicial assertions and conservative executive assertions, pushed the nation to a breaking point. Bickel warned:
The legal order, after all, is an accommodation. It cannot sustain the continuous assault of moral imperatives, not even the moral imperative of “law-and-order,” which as a moral imperative has only a verbal resemblance to the ends of the legal order. No legal order can sustain such a bombardment, and the less so a federal constitutional order of separated and diffused powers. It is the premise of our legal order that its own complicated arrangements, although subject to evolutionary change, are more important than any momentary objective. This premise must give way at times, of course, to accommodate inevitable change. . . . [But] its fundamental premise is that its own stability is itself a high moral value, in most circumstances the highest. . . .
Watergate is the latest assault . . . in an age of assaultive politics. . . . I don’t know how near a thing Watergate was, but perhaps it will be said that it was too near. We must resume the politics of what Burke called the “computing principle: adding, subtracting, multiplying, and dividing.” The denominations to be computed are very often moral, to be sure. But few if any are absolute, few if any imperative.
In constitutional politics, our best hope is to sustain a Constitution that embodies our great nation’s greatest principles, for the sake of perpetuating, in turn, the hard-earned lessons of our own times.
For us, that means making the January 6th insurrection a constitutional infamy. And it can be achieved not through a longshot lawsuit, but through a constitutional politics that eventually makes future January 6th insurrections unthinkable.
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