Tuesday, January 12, 2021

Section Three and Politics by Other Means

Andrew Coan

Section Three of the Fourteenth Amendment is an elegant legal strategy for blocking another serious presidential run by Donald Trump. Unlike impeachment or the 25th Amendment, it requires merely a simple majority in the House and Senate, which Democrats will soon possess. As Joey Fishkin points out, Section Three might also be enforced by other actors, including state legislatures, electoral commissions, and even the Republican Party (if its elites continue to regard Trump as an electoral liability come 2024). To be sure, there is some ambiguity about whether Trump “engaged in insurrection or rebellion against” the Constitution of the United States or gave “aid or comfort to the enemies thereof.” But the case is eminently plausible. Anyway, courts might well be inclined to treat this matter as a political question.

But what about the actual politics of invoking Section Three? One possibility, perhaps the most likely, is that a legal bar on future federal office-holding would prevent a third Trump campaign from ever getting off the ground (assuming he has not already taken care of this himself). But there is another, darker possibility. If Trump wants to run again and retains--or regains--the loyalty of his base, such a bar would effectively foreclose a large and highly motivated segment of the American public from pursuing its goals through electoral politics. That is a momentous and highly fraught step for any democracy to take. It is perilously close to banning one of the two major political parties.  

Other democracies, of course, do ban political parties. And there is an interesting, if inconclusive (so far as I can tell), comparative politics literature analyzing the effects of such bans on the incidence of political violence. But these bans generally involve fringe parties, with popular support in the single digits. Banning the most popular figure in the nation’s second largest political party from seeking the presidency is another thing altogether. 

The closest parallel in U.S. political history is the original application of Section Three to ex-Confederates. (De-nazification after World War II also comes to mind, along with other post-war and post-revolutionary lustration processes.) But that was a very long time ago and differs in many important respects from the present situation, not least that the Confederacy, like the Nazis, had just been soundly routed on the battlefield and remained socially and economically devastated. Nevertheless, it is worth remembering that Section Three originated as a punitive war measure imposed on a vanquished enemy. There are certainly those who would experience it as such today, without the pacifying tonic of recent military defeat.

Trump supporters might sit for this peacefully. But they might not. Recent events do not inspire confidence. Even so, the risk may well be worth taking, given the stakes. But it is not one I have seen mentioned in connection with Section Three thus far, and I believe it merits careful consideration. Disqualification after impeachment poses a similar risk, albeit less acutely because the voting rules make a party-line or near party-line vote almost impossible. Both raise the basic question of coexistence that has haunted the last four years and seems certain to be with us for many more.

As a final twist, the risks of invoking Section Three are likely to be greatest in the possible future where it is most necessary--one in which Trump remains a formidable political force. If he dies or loses interest or his followers lose interest in him, his ineligibility to run in 2024 will be much less likely to excite significant unrest. But it will also matter far less as a practical matter. 

The best case for invoking Section Three is that it may help to bring the second of these possible futures about. But even in the short run, that is not the only possibility. It might instead serve as the sort of ready-to-hand rallying cry that tips recent violence into something significantly worse. 

The broader point is a familiar one. No legal strategy, however apparently decisive, is capable of dissolving the dangers inherent in our deep national divide. The only possible solutions are political, though law is a powerful, if double-edged, tool for reshaping our politics. Section Three is one more example. This is not an argument against its invocation, merely for proceeding with our eyes open.

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