Why We Should Recoil from the 14th Amendment Strategy against Trump

By Yuval Levin

Thursday, December 21, 2023

 

The question of whether Donald Trump will be allowed to appear on the presidential ballot is now headed to the U.S. Supreme Court, and fast. After courts in Georgia, North Carolina, Minnesota, and elsewhere dismissed or rejected claims pursuing his removal from the ballot on the basis of the 14th Amendment’s bar on individuals who “have engaged in insurrection” against the Constitution, the supreme court of Colorado affirmed such a claim, and the U.S. Supreme Court is now likely to review that decision within weeks.

 

I think the Colorado court was wrong, and that the U.S. Supreme Court will overturn it on the legal merits. But perhaps no less important, I think the pursuit of such a strategy against Trump is wrong, and that citizens who worry about the health of our constitutional order in an era when it has been under profound stress should reject and recoil from that strategy, regardless of what they think of Donald Trump.

 

These are two related but distinct questions, and that’s important to recognize. Our natural inclination in considering the case for Trump’s removal from the ballot is to dive right into the legal technicalities. That’s understandable. This approach has been advanced as a legal claim, and the courts will have to consider it as such.

 

But the rest of us are not judges, we are citizens. We are not constrained to think about the Constitution purely as a legal framework. It is a legal framework, but it is also more than that. The Constitution is, among other things, a political framework in the very highest sense of the political. It sets out the form of the American regime. And when we think about constitutionalism and about our roles as citizens and the roles of various officeholders and officials in the system, we have to think in terms of that broad political form as well as in terms of narrow legal categories.

 

The University of Virginia’s James Ceaser has thought most deeply about this crucial political character of the Constitution. “Political constitutionalism,” he has written, “understands the Constitution as a document that fixes certain ends of government activity, delineates a structure and arrangement of powers, and encourages a certain tone to the operation of the institutions.” Moreover, “by this understanding, it falls mostly to political actors making political decisions to protect and promote constitutional goals.” This isn’t how judges should approach the Constitution — they are charged with guarding the effectuation of the Constitution as law. But it must be part of how the rest of us think about it, because we are charged with the effectuation of the Constitution as a polity’s way of life.

 

It is by this light, and upon consideration of such questions of the proper tone of the operation of our institutions, that we can see some of the dysfunctions of our politics in recent years as constitutional problems. Failures of responsibility that involve constitutional officers behaving like performers or mere seekers of celebrity, for instance, are increasingly common in all of our political institutions. They don’t always involve a violation of formal boundaries, and so they generally can’t be addressed by litigation, but they nonetheless result from fundamental constitutional deformations — derelictions of responsibility and corruptions of political culture. Violations of constitutional norms that are not legally enforceable fall into this category, too. Confronted with such behavior, we have to ask ourselves not only “is this technically permissible?” but also something more like, “Does this belong in our kind of politics?”

 

That’s a question that demands to be answered in terms of the purpose and goals of the Constitution, the sort of government it was aimed to create, and the sort of society it governs. Answers to it will be anchored in the ideals that shape our civic aspirations and in the common historical experiences that have forged us into a nation. They won’t be as precise or confident as answers given by the courts to strictly legal questions, and they may be open to more debate and adjustment. But they are no less crucial for that.

 

Often what is at issue when the political character of the Constitution is at stake is not any one particular provision of the document but its overall tenor — what Montesquieu described as “the spirit of the laws.” As Alexander Hamilton put it in Federalist No. 83, “the truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them.”

 

And it is in this respect above all that our Constitution has been under assault from a variety of directions in recent years, and that we can say that the constitutional system is under dangerous stress.

 

Most of those assaults have been the fault of Donald Trump. He was an unfit president, lacked the character necessary for the job, operated without even a basic sense of (let alone any respect for) our system of government, and repeatedly put that system under intense stress in the service of his thuggish narcissism and pathetic self-pity. His ultimate betrayal of the constitutional order — his refusal to accept the legitimacy of his election defeat in 2020 and his effort to prevent the certification of his opponent’s victory — was the most serious dereliction of the presidential office in the history of our country, and it rendered Trump one of the very worst of our presidents. It’s an utter disgrace that any American voter, let alone one of our major political parties, is even thinking about sending him back to the White House.

 

But most of those offenses against our constitutional order — perhaps even all of them — were not illegal. Some of the legal cases against Trump may end in conviction, and perhaps rightly so, but they don’t really get at his most serious violations of his oath. The attempt to describe his unfitness in purely legalistic terms falls short, and the attempt to defend him from accusations of unfitness in legalistic terms misses the point too. His attacks on our constitutional order become much clearer when we broaden our understanding of our responsibility as citizens in that order.

 

And the same is true of assaults on the constitutional order from some of Trump’s staunchest opponents. Some, for instance, refused to accept the legitimacy of Trump’s original election in 2016, conjuring conspiratorial fantasies about his collusion in foreign intervention or digital disinformation campaigns. They abused some of the powers of law enforcement to try to bring Trump down when Congress declined to do so. Even apart from Trump, some on the left have worked in recent years to delegitimize the courts, the election laws of a number of states, the Electoral College, the Senate, and other key facets of our system of government when those have stood in the way of their policy aims, taking no account of the need to sustain public confidence in that system in this era of mistrust. Most of that, probably all of it, has not been illegal in any way. And yet it has amounted to an attack on the American constitutional order, because that order is more than a legal framework.

 

The attempt to remove Donald Trump from the ballot by recourse to the 14th Amendment is the latest such assault because it amounts to an abuse of the Constitution in search of a shortcut to defeating him. Trump’s actions on January 6, 2021, certainly constituted a violation of his oath to uphold the Constitution. The House of Representatives was right to impeach him for that, and the Senate should have removed him and rendered him ineligible to run for office again. But the Senate did not do that. Republican voters should also respond to his behavior (and to all that they learned about him during his presidency) by refusing to nominate him as their party’s candidate for president again, but they do not seem likely to do that.

 

Those are the ways by which Trump’s desire to run again could be denied within our system. The one additional way that remains to keep him from office if he is nominated by the GOP is to vote against him so that he loses the next general election, as he lost the last one. The idea that the need to do this can be averted because essentially any public official in any state can remove him from the ballot on the premise that his behavior on January 6 was analogous to that of southerners who had fought for the Confederacy in the Civil War is not only highly dubious as a legal matter but also utterly ridiculous as a constitutional matter more broadly.

 

Maybe the best analogy to help us consider it in those terms is precisely Trump’s own attempt to overturn the results of the 2020 election. Then, too, there were some smart lawyers who were crafty enough to imagine a set of arguments that might come close enough to being technically plausible to persuade a judge who was desperate enough to want to accept it. Those arguments, too, would not have ultimately held up as a legal matter, but they were legalistically plausible enough to invite people who are so inclined to dive into the technicalities of the couple of sentences of constitutional and statutory language involved and consider those under a microscope.

 

But to anyone who considered the matter in its fuller scope and terms, not under a microscope and not under the constraints we properly apply to the work of judges, these claims were obviously counter-constitutional and ludicrous. And in fact, this was how Vice President Pence thought about them. When he was pressed to disrupt or overturn the certification of the election, he did talk to his lawyers, but it ultimately wasn’t their technical dissection of the case made by Trump’s lawyers that moved him. As he tells the story, it was simply obvious to him as a public official that this was not his role in this process, and that what he was being asked to do would be a gross distortion of the part assigned to him in our system of government. That was the right conclusion, and the right way to reach it.

 

The idea that a provision of the 14th Amendment intended to keep Confederates out of public office should now be used to keep Trump off the ballot in some blue states (or nationally) is no less obviously just not how our system works. And to pursue it is to undermine our constitutional order — to exacerbate the threats to public confidence in the legitimacy of our system, which have come from all directions in recent years and have done serious damage to American political life.

 

That’s not because it’s undemocratic to deny a place on the ballot to a popular figure. Our system of government balances democratic with republican and liberal imperatives, and there is plenty about it that would deny the voting public things it wants. The entire 14th Amendment, along with the Bill of Rights, and various facets of every one of the institutions that the Constitution created place such constraints on democracy, and rightly so. The problem with the anti-Trump 14th Amendment strategy isn’t that it isn’t democratic, but that it isn’t constitutional — both in the legal sense and in the deepest kind of political sense.

 

The Colorado court’s opinion makes it painfully clear that the majority had to stretch and contort the meaning of essentially every term and concept it needed to consider in order to make it at all plausible and take the position it did. Each contortion might be technically justifiable by itself, but all of them together add up to a gross legal implausibility. The Supreme Court should see it that way, and it likely will. We can hope that more than six justices do so, as a number of judges appointed by Democrats and not just by Republicans in the states (including three in the Colorado decision itself) now have.

 

But for the rest of us, who aren’t thinking about this question as judges but as citizens, it should be even clearer that moving to strike Trump from the ballot, regardless of what you think of him, would be yet another blow to our constitutional order, which has suffered so much abuse of late. In the same sorts of terms in which Trump has most harmed the Constitution, this misbegotten strategy does too.