The qualifications for officeholding are among the
undemocratic, or at least antimajoritarian features of the Constitution of the
United States. Electoral College
majorities are barred from selecting as president a person who is less than
thirty-five years old, not born in the United States, not a citizen of the
United States, not a resident of the United States for at least fourteen years, or, while or after holding
various federal or state offices, participated in an insurrection or rebellion against the United States. Good
reason exists for thinking such qualifications a bad idea. John Seary has an interesting book arguing
that younger Americans ought to be constitutionally permitted to hold various
offices. Sandy Levinson and others think
the constitutional bar on persons born abroad creates second-class
citizens. Perhaps electoral college
majorities ought to decide whether former insurrectionists should hold
office. Section 3 of the Fourteenth
Amendment may be a bad idea whose time has passed if that time ever came. If popular majorities want to keep in office
a police chief who urged the assassination of police officers or elect a president who as president fomented an insurrection in order to
maintain office, the meaning of majoritarianism may be that they should have
their way. Holmes famously said his job
was to lead his fellows to Hell if that was their chosen direction.
The
zeitgeist among some authors seems to be that disqualifying Donald
Trump under Section 3 is the bad idea, not that barring insurrectionists from
office is a bad idea or that qualifications for the presidency are a bad
idea. This claim comes in two
flavors. The first is that disqualification decisions should be made by Congress and certainly not by local election judges or state
secretaries of state. Local decision-making risks minoritarian extremism and checkerboard solutions, where Trump is on the ballot in some states and
not others. The second is that MAGA
forces must be defeated electorally. Disqualification will increase the
possibility of a civil war or at least civil disruption in the United States
initiated by violent members of the far right who perceive that their hero has been treated unfairly.
A congressional statute organizing disqualifying would be nice, but disqualification for insurrection is in legal principle no different from disqualification for being underage or not a citizen. No one clamored for a federal statute preventing lawsuits disqualifying Barack Obama on the alleged ground that he was born in Kenya. No one insists on a federal statute before younger Americans are disqualified. American law at present permits checkerboard solutions, perhaps initiated by political extremists in state offices, respecting whether a candidate is constitutionally qualified for the presidency. No one until recently complained, even though we could easily imagine a national controversy over whether a person had actually resided in the United States for fourteen years or, purely hypothetically, whether a candidate for the presidency was born in Kenya.
There is no law preventing a federal statute from being framed, debated, and passed immediately after our Representatives and Senators read this blog post (all members of Congress read Balkinization regularly). That Congress is gridlocked is hardly a reason to mandate political actors outside of Congress stay their hand. One reason for constitutionalizing the principle
that insurrectionists cannot hold office was the fear that Reconstruction Republicans
might temporarily lose control of Congress and statutes mandating
disqualification (and racial equality) would be repealed. The framers may have assumed legislative primacy, but they did not think all other actors could do was complain when Congress dithered. The
Supreme Court can also swoop in and make a decision creating a rule for the
entire country. Steven Vladeck will be
the first person to tell you that has been known to happen.
The MAGA crowd will be upset if Donald Trump is disqualified in some states. Some may turn to violence. They will be upset if Donald Trump is disqualified in all states by the procedure of your choosing. Some may turn to violence. They will be upset if Donald Trump loses a close election. Etc. They will be upset if Donald Trump loses an election that every expert agrees is not particularly close. Etc., etc. The MAGA crowd would be as upset if Donald Trump was disqualified because unconverted evidence demonstrated, lo and behold, that he was born in Kenya.
We are dealing with the kid in the schoolyard who threw a temper tantrum and yelled “Cheater” whenever he or she lost. The kid yelled "Cheater" when the umpire called a close pitch a strike and when the final score was 15-1. Finding rules that appeased that kid was pointless. The best you could do was apply the rules you thought fair and prepare to deal with the temper tantrum when the kid lost.
That MAGA must be defeated politically in the long run does not debar any short-term solution. Trump will throw variations on the same temper-tantrum if he is disqualified as an insurrectionist in some states, disqualified as an insurrectionist in all states, disqualifying for being born in Kenya, or loses the presidential election from anywhere between one and four billion votes. If you think as a matter of constitutional law or principle people who participate in an insurrection against the government should not hold government office and that Donald Trump participated in an insurrection against the government, you should endorse the Section 3 process and be prepared for the fall out that will occur no matter how MAGA forces are defeated.