The Volokh Conspiracy
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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 Constitution. The first, introductory essay, can be found here.]
What about democracy?! We should let the people vote for whomever 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 constitutional 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 democracy. It would be downright unAmerican!
So the charge goes. In reality, this is more a political objection than a truly legal one (though it is sometimes cast in legal terms). It is ultimately an objection to Section Three itself – an objection to what the Constitution says and does. It is at bottom an anti-constitutional argument – an argument for not complying with what the Constitution requires. In the end, the argument, notwithstanding whatever rhetorical appeal it might have, is wholly unpersuasive as a legal matter.
This objection comes in many rhetorical forms:
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: everybody supports "democracy" as an abstract proposition. But all versions of the argument share a common analytic flaw: they beg the relevant legal question entirely.
We begin with first principles. Our democracy is a constitutional democracy. The Constitution both channels and constrains democratic choice, and Section Three is one of those 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 should settle the matter. The "democracy" objection is thus a complete red herring. If the Constitution imposes such a disqualification, that is indeed a limitation on voting and democratic choice. But it is a limitation that must be honored in a constitutional republic that imposes specific limitations and checks on the democratic political process.
The fact that the Constitution both channels and constrains democratic choice is evident from many different provisions. The Constitution 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 Constitution removes certain matters "from the vicissitudes of political controversy," placing them "beyond the reach of majorities and officials." Where the Constitution speaks to a question, such matters "may not be submitted to vote; they depend on the outcome of no elections." No matter how big the electoral majority, the Constitution is higher law that ordinary elections cannot change.
The Constitution's rules governing the elections and the electoral process are likewise supreme law. As to the specific question of eligibility for elected office, the Constitution restricts the right to vote, indirectly, by restricting who is eligible to hold 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 citizenship restrictions all apply to Senators and Representatives as well.
All of these restrictions limit democratic choice. 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 constitutionally ineligible to be president. We cannot by our votes constitutionally choose 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 constitutionally eligible "person" within the meaning of the Constitution. All of these provisions limit the right of the people to elect whomever 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 Constitution 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 Trump, became President because of the plain rules of the Constitution, which decides the presidency through the electoral college, and thus the electoral vote, even if that is not what a majority of the voters chose. Donald Trump lost the 2016 popular election by almost three million votes, but became President nonetheless because we follow the Constitution, not simple majority votes. That is "undemocratic," in a sense, but it is also basic constitutional law. (The same thing has happened in at least three earlier presidential elections, and there was another in which no candidate had an electoral vote majority.)
While there have been plenty of criticisms of the electoral vote system, virtually nobody 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 Trump, "undemocratic" though it might be, because the law is the law and the rules are the rules and that is the only way for a constitutional democracy to survive. And with a few ignoble exceptions, they did. For Trump's supporters and enablers to turn around now, and demand special exemption from constitutional rules they find inconvenient or undemocratic does not pass 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 constitutional law: Does Section Three impose a constitutional ban on officeholding that applies in the specific situation at hand? If the answer is yes, we are not at liberty to ignore the Constitution's command – at least not if we purport to be governed by the terms of a written constitution. (Indeed, at least one of the objectors quoted above, Professor Samuel Moyn of Yale Law School, is explicit about this. In the pages of the New York Times he has also written that he seeks to "reclaim American from constitutionalism.")
What is more, these constitutional 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 who subsequently engaged in insurrection against the U.S. Constitution by attempting to overthrow or displace lawful government under the Constitution, is itself a fundamentally democracy-protective provision of our Constitution. It protects lawful United States government under the Constitution, by excluding from power men and women who, as demonstrated by their actions, would overthrow democracy and democratic choice under the Constitution.
Indeed, it is precisely Donald Trump's efforts to upend lawful democratic electoral choice under the Constitution that constitute the gravamen of Trump's disqualification by Section Three. Trump's efforts to overthrow the result of a lawful election and to install himself in office notwithstanding having lost that democratic constitutional 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 Trump's disqualification. These efforts were profoundly anti-democratic interferences with the processes of constitutional democracy. To decline to enforce Section Three in such circumstances may be the most anti-democratic choice of all.
Our friend Michael McConnell offers a subtle variation of the "democracy" argument. His argument is not that Section Three should not be followed at all. It is that Section Three's terms should 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 those terms were used in Section Three. Nonetheless, McConnell "would hazard the suggestion" that "we should seek the narrowest" reading of the terms that we can fashion, for the policy reason that "we should allow the American people to vote for the candidates of their choice." (Professor McConnell recently repeated this strict construction position in an on-line article, available here, which we will discuss shortly.)
Professor McConnell's variation on the "democracy" argument is no more faithful to the Constitution than the direct argument that we should 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 manuscript – Professor McConnell lets his political skepticism of Section Three drive his legal interpretation of its terms. This is fundamentally methodologically 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 Constitution.
A faithful constitutional interpreter should not begin by choosing a political principle and then fashioning a reading of the text trimmed to suit those purposes. The right approach is to seek first the correct meaning of the Constitution itself, and then to apply it faithfully as the law requires. Reading the text narrowly in light of a pro-democracy 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 thought 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 constitutional "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 trimming the Constitution 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 asserting that "Section Three should be strictly and narrowly construed." Again, this is wrong. The Constitution should 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 should seek the objective, reasonable interpretation of a legal text, not one driven by a predisposition one way or another. One should not indulge a hostility to the text and therefore seek to construe it in a "strict" fashion:
If . . . we are to give a reasonable construction to this instrument, as a constitution 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 Constitution of the United States, §423, at 300 (2d ed. 1858)).
So too for Section Three: It should not be read with a jaundiced eye, "as if it were subversive of the great interests of society," and construed narrowly out of hostility 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 Constitution, 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 democracy-protective, Section Three is part of our supreme Law of the Land and should be enforced in accordance with its terms.
The "democracy" objection is really a political objection to following the Constitution because one dislikes what it states. It is an objection to complying with the Constitution – an argument for not following the Constitution, because of political hostility to what the document says and does. As such, we think it fairly described as an "anti-constitutional" argument that has no proper place in legal analysis of the Constitution as a binding, authoritative written legal text.
