There’s a strange idea floating in the political ether.
Everyone from Sen. Ted Cruz (R-Texas) to Gov. Gavin Newsom (D-Calif.) seems to think there is something unseemly about invoking the 14th Amendment to keep Donald Trump off the presidential ballot, and that his electoral fate ought to be left to the voters rather than the courts. Even Maine Sen. Susan Collins, who voted to impeach the former president over his involvement in the events of Jan. 6, 2021, thinks keeping him off the ballot is undemocratic.
It’s a strange idea because none of these people think about any other constitutional provisions in quite the same way.
If former California Gov. Arnold Schwarzenegger wanted to run for president, he simply wouldn’t be allowed on the ballot. No one would argue that not letting him run because he wasn’t born in the U.S. would be “undemocratic” and that we should let the voters decide.
And if Trump were to win and wanted to run for a third term, should we roll our eyes at efforts to block him using the 22nd Amendment that limits presidents to two terms? Think hard about your answer, and don’t imagine for a minute that Trump would not consider doing exactly that.
The Constitution specifies certain eligibility requirements for the presidency. If you have taken an oath of office and you engage in insurrection, you are ineligible to be president, just as you would be if you were born as a Canadian citizen or if you were only 25 years of age. It doesn’t matter how popular you are or how “undemocratic” your supporters think it is to keep you off the ballot. You are simply ineligible.
This idea of picking and choosing which part of the Constitution we’d like to apply — “constitution à la carte” — is extremely dangerous. If we are going to ignore part of the 14th Amendment because Donald Trump is popular, why stop there? Lots of people would like to ignore the Second Amendment and bring in much stricter gun control laws. Even the First Amendment has its detractors these days.
The Constitution is a package deal. We all like some parts more than others, but we must respect all parts equally. There is nothing illegitimate in using the Constitution to challenge overly restrictive gun laws or speech restrictions, no matter how popular they might be. By the same token, there is nothing undemocratic about ensuring presidential candidates meet the constitutional requirements for office.
Anyone who respects the Constitution should fully endorse removing someone from the ballot if they don’t meet those requirements.
As for the claim that keeping Donald Trump off the ballot would be “undemocratic,” well, it is. But so are lots of things in the Constitution. The Electoral College system gives California 54 Electoral College votes while Wyoming gets three. Since California has a population about 68 times larger than Wyoming’s, that makes a vote for president in Wyoming 3.7 times more valuable than a vote for president in California. There are advantages to the Electoral College system, but democratic rigor isn’t one of them.
In another sense, however, the Electoral College is quintessentially democratic because these are the rules we have agreed to use to elect our president. These rules may not be perfect, and we can certainly argue to change them, but until we do, democracy requires that we honor them.
Whether the courts find Trump is ineligible under the 14th Amendment or not, about half of the voters will be upset. But that doesn’t mean that everyone, including the people who are upset, should not respect that decision. The American Constitution is just a bunch of words on parchment unless we take those words seriously — especially when we’d rather not.
Chris Truax is an appellate lawyer in San Diego and a member of the Guardrails of Democracy Project.