Wednesday, August 16, 2023

Not Too Hot, Not Too Cold, and Not At All

Gerard N. Magliocca

One objection to applying Section Three of the Fourteenth Amendment to Donald Trump is that democracy requires that he be permitted to run. I have a draft paper responding to this argument, though I will be revising that in light of Trump's quadruple indictment and the Baude and Paulsen paper. But let me tackle one aspects of that now.

There is no limiting principle to the democracy argument against Section Three. Suppose that Trump was doing poorly in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's no harm in letting him run. Democracy will resolve the issue." Now suppose that he was doing well in the polls. Then people would say: "Oh, he shouldn't be disqualified. There's a harm in not letting him run. Vox populi, Vox Dei." Where, then, is the sweet spot in between where he should be disqualified? The answer is that there is none and there cannot be one under the strong form of the democracy principle.

Some people are candid about this. Alan Dershowitz, for example, has an essay arguing that we should ignore Section Three. There are constitutional precedents for this. They are just bad ones that are almost all about the Reconstruction Amendments. I'm quite unimpressed with the claim that we should not apply the text as written because too many people will be upset. We've seen that tragedy before. 

UPDATE: Here is my latest essay on Section Three, in which I explain why an appropriate state Secretary of State would be acting in a non-partisan way by declaring Trump ineligible now.


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