America’s Constitution, wisely crafted to protect against the tyranny of the majority, has enabled the emergence of tyranny by the minority.
Donald Trump’s ominous political campaign presents many challenges, none more significant than the cases approaching decision by the Supreme Court. Will the high court provide equal justice under the law for the majority of Americans threatened by persistent abuses from the Trumpian minority?
The context, broadly familiar but distorted by polarized media, needs to be framed carefully. Consider:
In 2016, the Electoral College allowed a minority of voters to elect Donald Trump as president.
In 2020, the majority of voters rejected Trump’s candidacy; both the popular vote and the Electoral College gave Joe Biden decisive victories.
In January 2021, after four years of a turbulent presidency that strained constitutional boundaries, members of the House representing a majority of voters impeached Trump for inciting the violent attempt to prevent the lawful transfer of power to his successor.
In February 2021, 57 senators, including seven Republicans, representing a large bipartisan majority of Americans, voted to convict Trump of the impeachment charges against him, affirming both betrayal of his sworn duty to defend the Constitution and his disqualification from holding office in the future. 43 Republican senators, representing a minority of voters — mostly justifying their position on procedural arguments, including that Trump remained vulnerable to trials in the courts — thwarted conviction by preventing the required two-thirds supermajority.
At no point has Donald Trump ever enjoyed majority support among American voters.
Trump has continued to rally his minority with demonstrably false claims that he won the 2020 election, casting doubt on the integrity of U.S. election systems despite his lack of evidence. Facing multiple criminal indictments and civil lawsuits, he has used every conceivable option to deny, delay and dismiss the charges against him. He protests that such procedures are part of yet another conspiracy to interfere with his reelection. He promises to be the agent of revenge for his supporters.
In a key respect, the current political campaign has simplified the judgment the courts must reach. Trump has convicted himself. He describes those found guilty in the hundreds of cases arising from the assault on the Capitol as “hostages” and pledges to pardon them. Could there be any more blatant contempt for the 14th Amendment’s disqualification standard? Lending “aid and comfort” to proven enemies of the Constitution, those convicted of seditious conspiracy and other violence to disrupt the orderly transition of power, is an affront not only to statutory law but to the precise language of the Constitution itself.
Trump’s attorney, Alina Habba, amplifies that affront by declaring that Justice Brett Kavanagh and other Trump appointees should “step up” and rule in her client’s favor. Claiming that Trump “went through hell” to get Kavanagh on the bench, Habba predicts a “slam dunk” in the Supreme Court. That forecast should infuriate, not intimidate, any self-respecting jurist.
In the bizarre politics of 2024, Trump flaunts his disgrace. The saddest reality is that, by doing so, he remains the false prophet to whom millions of our fellow citizens continue to rally. This is the context, social and political, in which the gravest constitutional cases of our time will reach the Supreme Court. It is crucial that the court recognize the unique challenge it confronts.
The fundamental question concerns not the rights of the Trumpian minority but the rights of the majority. Will that majority receive the due process Trump so often claims his minority is being denied? Will the court vindicate the American ambition to be a nation of laws by assuring justice for both majority and minority?
Demanding that only the voters should determine whether Trump is disqualified sounds democratic, but it is profoundly anti-republican. It would ignore the explicit rule in Section Three of the 14th Amendment. And that is the issue of law now moving to the Supreme Court.
On a factual record not seriously rebutted by either judicial or legislative dissents, the Colorado Supreme Court has produced a conclusive legal verdict. The ruling uses an originalist interpretation of the requirement to disqualify a person who has violated a previous oath to support the Constitution. The case arrives at the Supreme Court in an even more dangerous setting, with Trump warning of “big trouble” if the ruling goes against him. That language flirts with civil war.
Will the Supreme Court afford equal protection of the law for the majority of American voters — the majority expressed by the 2020 presidential election and by the 2021 impeachment vote — by enforcing the explicit provision in the 14th Amendment disqualifying Donald Trump? Failure to do so will earn the current court standing with those predecessors who won infamy through such decisions as Dred Scott (denying citizenship to African Americans) and Plessy v. Ferguson (deeming racial segregation constitutional). No court should aspire to those ranks.
Alton Frye, a former Senate staff director and leader of numerous bipartisan coalitions, has published widely on policy and politics; he has also served as president of the Council on Foreign Relations.