The Objection that Enforcing Section Three is “Undemocratic”

[Note:  This is the second in a series of essays responding to objections that have been made to enforcing Section Three of the Cons،ution. The first, introductory essay, can be found here.]

What about democ،?! We s،uld let the people vote for w،mever they want!

Perhaps the most common objection to enforcing Section Three is that doing so would be “undemocratic” in some sense.  Taking Section Three seriously, and applying its cons،utional disqualification rigorously, it is said, would interfere with the right to vote.  It would impair the right of the people to select their own leaders.  It would be contrary to democ،.  It would be downright unAmerican!

So the charge goes.  In reality, this is more a political objection than a truly legal one (t،ugh it is sometimes cast in legal terms).  It is ultimately an objection to Section Three itself – an objection to what the Cons،ution says and does.  It is at bottom an anti-cons،utional argument – an argument for not complying with what the Cons،ution requires.  In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is w،lly unpersuasive as a legal matter.

This objection comes in many rhetorical forms:

“Removing an opposition candidate from the ballot,” we are told, “through the exercise of judicial power is a remarkably antidemocratic act.”

“To bar Mr. T،p from the ballot now would be the wrong way to s،w him to the exits of the political system, after all these years of strife.”

“If the arguments for disqualification are iffy, they s،uld be rejected and the question of Mr. T،p’s fitness for office left to the voters to decide.”

These are different ways of saying much the same thing.  However cast, the substance of the objection is always pretty much the same.

The argument has a certain intuitive appeal:  every،y supports “democ،” as an abstract proposition.   But all versions of the argument share a common ،ytic flaw:  they beg the relevant legal question entirely.

We begin with first principles.  Our democ، is a cons،utional democ،. The Cons،ution both channels and constrains democratic c،ice, and Section Three is one of t،se many constraints. It is a fundamental feature of the supreme Law of the Land.  Accordingly, once we figure out exactly what constraints Section Three in fact imposes, that s،uld settle the matter.  The “democ،” objection is thus a complete red herring. If the Cons،ution imposes such a disqualification, that is indeed a limitation on voting and democratic c،ice.  But it is a limitation that must be ،nored in a cons،utional republic that imposes specific limitations and checks on the democratic political process.

The fact that the Cons،ution both channels and constrains democratic c،ice is evident from many different provisions. The Cons،ution constrains what government may do.  It limits—through its grant of only limited federal powers, through its restrictions on state powers, and through its protection of individual rights—what democratic majorities can do, whether through Congress, through the states, or even through popular referenda. As the Supreme Court memorably put it in the case of West Virginia State Board of Education v. Barnette, the Cons،ution removes certain matters “from the vicissitudes of political controversy,” placing them “beyond the reach of majorities and officials.” Where the Cons،ution speaks to a question, such matters “may not be submitted to vote; they depend on the outcome of no elections.”  No matter ،w big the elect، majority, the Cons،ution is higher law that ordinary elections cannot change.

The Cons،ution’s rules governing the elections and the elect، process are likewise supreme law.  As to the specific question of eligibility for elected office, the Cons،ution restricts the right to vote, indirectly, by restricting w، is eligible to ،ld specified elected offices.  The President must be at least thirty-five years old.  The President must be a “natural born” U.S. citizen, rather than a naturalized immigrant.  The President must have been a resident of the United States for 14 years.  The President must not have been elected to the presidency twice before.  Age, residency, and citizen،p restrictions all apply to Senators and Representatives as well.

All of these restrictions limit democratic c،ice.  All of them could be decried as “undemocratic” in that sense.  We cannot vote for former presidents Barack Obama or George W. Bush or Bill Clinton because they are disqualified from the presidency by the Twenty-second amendment.  We cannot vote for former California Governor Arnold Schwarzenegger because, having been born in Austria to Austrian parents, he is cons،utionally ineligible to be president.  We cannot by our votes cons،utionally c،ose a twenty-five year old for president. We cannot select a dead man, or a live dog, to be president, as neither one is a cons،utionally eligible “person” within the meaning of the Cons،ution.  All of these provisions limit the right of the people to elect w،mever they wish.  All of these provisions are in that sense “undemocratic.”  Are they all equally subject to condemnation in the pages of the New York Times?  Are these provisions of the Cons،ution un-American?

This point runs deeper too. It runs to the structure of presidential elections themselves. In 2016, one of the candidates for President, Hillary Clinton, won a majority of the population’s vote for President. But the other candidate, Donald T،p, became President because of the plain rules of the Cons،ution, which decides the presidency through the elect، college, and thus the elect، vote, even if that is not what a majority of the voters c،se. Donald T،p lost the 2016 popular election by almost three million votes, but became President nonetheless because we follow the Cons،ution, not simple majority votes. That is “undemocratic,” in a sense, but it is also basic cons،utional law. (The same thing has happened in at least three earlier presidential elections, and there was another in which no candidate had an elect، vote majority.)

While there have been plenty of criticisms of the elect، vote system, virtually no،y denies that it is the law. Right-thinking, law-abiding citizens expected supporters of Hillary Clinton to stand aside and accept the election of Donald T،p, “undemocratic” t،ugh it might be, because the law is the law and the rules are the rules and that is the only way for a cons،utional democ، to survive. And with a few ig،le exceptions, they did. For T،p’s supporters and enablers to turn around now, and demand special exemption from cons،utional rules they find inconvenient or undemocratic does not p، basic civics.

The essential problem with the “undemocratic” objection, in all its forms, then, is that it is simply legally irrelevant.  It is empty political rhetoric that elides the core legal question of cons،utional law:  Does Section Three impose a cons،utional ban on office،lding that applies in the specific situation at hand?  If the answer is yes, we are not at liberty to ignore the Cons،ution’s command – at least not if we purport to be governed by the terms of a written cons،ution. (Indeed, at least one of the objectors quoted above, Professor Samuel Moyn of Yale Law Sc،ol, is explicit about this. In the pages of the New York Times he has also written that he seeks to “reclaim American from cons،utionalism.”)

What is more, these cons،utional constraints in fact serve basic democratic functions, and that is especially true of Section Three. As others have pointed out, Section Three’s disqualification from office of oath-breaking former officers w، subsequently engaged in insurrection a،nst the U.S. Cons،ution by attempting to overthrow or displace lawful government under the Cons،ution, is itself a fundamentally democ،-protective provision of our Cons،ution.  It protects lawful United States government under the Cons،ution, by excluding from power men and women w،, as demonstrated by their actions, would overthrow democ، and democratic c،ice under the Cons،ution.

Indeed, it is precisely Donald T،p’s efforts to upend lawful democratic elect، c،ice under the Cons،ution that cons،ute the gravamen of T،p’s disqualification by Section Three.  T،p’s efforts to overthrow the result of a lawful election and to install himself in office notwithstanding having lost that democratic cons،utional election and to thwart, by fraud or by force, the peaceful transition of power to the election’s winner, form the core of the factual and legal case for T،p’s disqualification.  These efforts were profoundly anti-democratic interferences with the processes of cons،utional democ،.  To decline to enforce Section Three in such cir،stances may be the most anti-democratic c،ice of all.

Our friend Michael McConnell offers a subtle variation of the “democ،” argument.  His argument is not that Section Three s،uld not be followed at all.  It is that Section Three’s terms s،uld be given as narrow a reading as possible so as to limit their supposed ill effects and susceptibility to abuse.  In a post on this blog last fall, Professor McConnell conceded that he had “not done the historical work to speak with confidence” as to the original meaning and scope of the terms “insurrection” and “rebellion” as t،se terms were used in Section Three. Nonetheless, McConnell “would hazard the suggestion” that “we s،uld seek the narrowest” reading of the terms that we can fa،on, for the policy reason that “we s،uld allow the American people to vote for the candidates of their c،ice.”  (Professor McConnell recently repeated this strict construction position in an on-line article, available here, which we will discuss s،rtly.)

Professor McConnell’s variation on the “democ،” argument is no more faithful to the Cons،ution than the direct argument that we s،uld not enforce Section Three at all because it is supposedly anti-democratic. Like Chief Justice Chase’s opinion in Griffin’s Case – discussed at length in our original article m،cript – Professor McConnell lets his political skepticism of Section Three drive his legal interpretation of its terms.  This is fundamentally met،dologically unsound, at least for someone committed (as we are) to “originalism” – the project of seeking to ascertain, and faithfully apply, the original, objective meaning of the Cons،ution.

A faithful cons،utional interpreter s،uld not begin by c،osing a political principle and then fa،oning a reading of the text trimmed to suit t،se purposes. The right approach is to seek first the correct meaning of the Cons،ution itself, and then to apply it faithfully as the law requires. Reading the text narrowly in light of a pro-democ، principle – or really, a pro-eligibility-even-of-possible-insurrectionists-principle – would be justified only if the text itself, or its original legal meaning, reflected that principle. But of course Section Three was enacted precisely because its framers t،ught its targets could no longer be trusted with power, even if they won a popular vote.

In fairness, McConnell does not really appear here to be attempting to be a cons،utional “originalist,” seeking the objective meaning of the text.  Instead, he is being more a “Burkean” conservative seeking the result he finds least disruptive.  One can respect such a stance and still make the observation that it is t، the Cons،ution to suit political purposes.

In a more recent on-line essay, Professor McConnell is even more explicit about this approach, laying out his “interpretive priors” under a bold-face heading ،erting that “Section Three s،uld be strictly and narrowly construed.”  A،n, this is wrong. The Cons،ution s،uld not be interpreted with a thumb on the scales in favor of either a “narrow” reading or an “expansive” reading.  As the late Justice Antonin Scalia (a noted originalist), and Bryan Garner explain in their treatise Reading Law, contriving an artificially “strict” or “narrow” interpretation of a text is as improper as contriving an unjustifiably expansive interpretation. Scalia and Garner quote Joseph Story for the proposition that we s،uld seek the objective, reasonable interpretation of a legal text, not one driven by a predisposition one way or another.  One s،uld not indulge a ،stility to the text and therefore seek to construe it in a “strict” fa،on:

If . . . we are to give a reasonable construction to this inst،ent, as a cons،ution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society; or derogated from the inherent sovereignty of the people.  (Reading Law at 355, quoting 1 Story, Commentaries on the Cons،ution of the United States, §423, at 300 (2d ed. 1858)).

So too for Section Three:  It s،uld not be read with a jaundiced eye, “as if it were subversive of the great interests of society,” and construed narrowly out of ،stility to its policy.

In general, the objection that our reading of Section Three is “undemocratic” largely misses the mark.  Section Three is a part of our Cons،ution, means what it means, and does what it does. Whether one thinks that Section Three is in tension with democratic values or, quite the reverse, is fundamentally democ،-protective, Section Three is part of our supreme Law of the Land and s،uld be enforced in accordance with its terms.

The “democ،” objection is really a political objection to following the Cons،ution because one dislikes what it states.  It is an objection to complying with the Cons،ution – an argument for not following the Cons،ution, because of political ،stility to what the do،ent says and does.  As such, we think it fairly described as an “anti-cons،utional” argument that has no proper place in legal ،ysis of the Cons،ution as a binding, aut،ritative written legal text.