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We’ve been devoting a lot of focus to the rising activism and legal maneuvering to block Donald Trump from appearing on the presidential ballot because of the 14th Amendment. But should it? Is this a valuable use of time and resources? Will it make a difference? I dig into those questions in today’s edition of The Backchannel.
A Few Thoughts on the 14th Amendment Thing
Originally Published: September 7, 2023 3:27 p.m.
As you can see we’re looking closely at the efforts unfolding around the country to bar Donald Trump from appearing on the 2024 ballot because of his role fomenting and leading an insurrection against the United States government. It’s hardly a crazy idea since Trump did plot to overthrow the constitutional order, i.e., the government of the United States and there’s clear language about this in the US constitution. But I’d like to go on the record suggesting people not get too wrapped up in this morsel of anti-Trump activism as a or the thing that’s going to drive the outcome of this election. We are covering it not rooting for it. At the end of the day, this election is going to come down to whether Democrats can sustain an anti-Trump coalition in the electoral college just like they did in 2020. There’s simply no administrative or courtroom shortcut around that necessity. My own view of this whole issue is one of what I would call benign disinterest.
What do I mean by this? Let’s start with the practicalities. The most probable outcome here is that Trump will be removed from the ballot in blue states he had no shot at winning in the first place. (The Supreme Court probably torpedoes that too for reasons we’ll return to in a moment.) In that case, anti-Trump voters will get some emotional satisfaction and Trump supporters will gain a ripe and succulent new grievance. But it won’t change any reality about the outcome of the race.
The real question is whether this might also happen in a swing state like Michigan or Pennsylvania or a transition state like Arizona. There are various oddball scenarios in which this could happen in a red state, at least momentarily. But if a runaway state Supreme Court allowed this I think we can be certain those justices would be instantly removed from office. There’s simply no way a Trump supporting red state ends up without Trump on the ballot.
So let’s focus on the swing states.
There is an endless range of permutations that could get us there. But all those roads lead eventually to the U.S. Supreme Court and it seems virtually certain that the Court would reject any effort to bar Trump from the ballot anywhere. We know this endlessly corrupt Court will find reasons to rule in the electoral interests of the GOP whenever there’s a colorable argument to do so. In this case they have quite reasonable arguments at the ready. Did Trump commit insurrection or rebellion under the terms of the 14th Amendment? Who says so? He hasn’t been convicted of anything. He was impeached over his actions on January 6th and the Senate did not convict him. Indeed, not only has he not been convicted of anything a federal prosecutor who did indict him for his actions on and leading up to January 6th did not charge him with seditious conspiracy, the crime most proximate to the 14th Amendment’s criteria.
Let’s be clear. These aren’t my arguments. They are simply available arguments against the action. And they’re reasonable arguments. In questions of voting and democracy, we should always decide tie questions in favor of more people being allowed to vote and giving those voters more options. That is a jurisprudence of democratic participation. Republicans don’t agree with that. But I’m sure this crooked Supreme Court will make an exception in this case. I was interested to see JS’s argument here this morning. Because it makes me think the case on the merits is stronger than I may have realized. But that doesn’t change the global calculus that I’m confident the federal Supreme Court won’t let this happen.
I do feel a real sense of discomfort at any effort to take away from almost half the country the chance to vote for the candidate of their choice. But this simply isn’t some crazy novel idea. It’s literally right there in the plain text of the Constitution. And everything about how and why it got there testifies to its grave importance. It’s a mistake to let anyone or anything distract from the fact that this decision is one that no one but Donald Trump himself took when he plotted to overthrow the constitutional order. We need to keep the blame squarely where it rests.
I’ve heard a further argument that this whole gambit is basically a trap. It detracts from the critical effort to sustain an electoral coalition to beat Trump at the ballot box (where the whole thing will be decided) and muddies the question of who’s really for democratic rights and the free choice of the people. It gives Republicans a brand new grievance and gives the Court a free shot at a righteous judgment in Trump’s favor.
I appreciate this argument. But I can’t agree with what I take to be follows from it, which is that people who are committed to barring Trump’s return to the White House need to get these busybodies to stand down and not make anti-Trumpism look bad. Just as a general way of understanding the world I don’t think you win vast and consequential political fights by telling people who basically agree with you to calm down or not seem too excitable. Let a hundred anti-Trump flowers bloom. I don’t think the work of some public interest legal shop is going to drain critical resources or time that could have gone to firing up loosely identified voters to get to the polls and say no to third parties. And at the end of the day this really is in the Constitution. It’s no one’s fault but Trump’s that he’s the only candidate let alone former President to have led an insurrection against the U.S. government. This is just one of the obstacles he created for himself in trying to reclaim the office. It would be no less than bizarre if there were a provision in the constitution which on its face appears to render Trump ineligible to serve as president and no one even tried to enforce it through the courts and various administrative procedures of the states. And there is such a provision. So of course people are going to try. And as people focused on the Constitution and the danger Trump poses to the American Republic I can only wish them the best while also remaining totally focused on the simple fact that the real outcome will be determined at the ballot box.
You simply don’t win big fights by spending time trying to anticipate and manage how your opponents might react to particularly aggressive actions by people who agree with you. As I said, benign disinterest.