Why Does It Scare Us to Enforce the Constitution?

The controversy over lawsuits to disqualify Donald Trump from running for president based on his inciting and giving aid and comfort to the well-documented insurrection of January 6, 2021—which aimed to aid Trump’s brazen self-coup that attempted to overturn a free and fair election for him to remain illegally in power—indicates that a large chunk of the American public either doesn’t understand the republic that the Constitution’s framers envisioned or are scared to enforce the document’s clear language.

The document’s 14th Amendment, originally passed after the Civil War to prevent traitorous Confederate soldiers and officials from running for future public office, bluntly states that if any public official who previously took an oath to support the Constitution but then engages in an insurrection or rebellion against the document or gives aid or comfort to its enemies shall not hold federal or state office.

Tellingly, to show that the amendment was erring on the side protecting the Constitution from pro-insurrectionist potential office holders, it requires Congress, by a vote of two-thirds (a supermajority) of each House, to reinstate such eligibility to run for office.

Yet, conservative legal scholars are divided over whether this provision is self-enforcing (similar to disqualifying someone from the presidential ballot for being under 35 years old or not a natural-born citizen) or first requires Congress or the courts to deem that a particular candidate was involved in an insurrection against the Constitution or provided aid or comfort to its enemies before the individual can be disqualified from running for public office.

For the most part, however, states administer elections in the United States, even for federal offices, and state officials, usually the state’s secretary of state, make routine ballot access decisions. If conservatives want courts and the federal government to do less, as they claim, this is a good time to start by letting the proper state officials determine whether Trump is eligible to have access to a state’s ballot as a candidate for president. (Given the present reality, I have no delusion that these officials’ ballot eligibility decisions will not ultimately end up in the courts, but they should fulfill their ballot access duties and at least start any disqualification effort.)

Some analysts say state officials enforcing the Constitution by disqualifying Trump from running would damage democracy and result in future vendettas against political adversaries. Those analysts need to be reminded that the framers’ Constitution—with federalism, three competing federal branches, a bicameral Congress and a Bill of Rights—was decided to temper and channel democracy in a republican system of checks and balances. The strict rules criminal courts use to indict and convict people and take away their freedom, or even execute them, are not warranted to enforce this particular provision of the Constitution because the penalty for the offense is only disqualification from running for public office.

Although once enforced against the unusual and dire threat to the republic that Trump poses, it is possible that this provision could be abused in the future. But so could any provision of the Constitution be warped for political purposes (as some have been in the past), but facts in specific cases do matter, and Trump is exceptionally qualified to be disqualified.

The bipartisan congressional January 6 committee found that Trump laid the predicate for the insurrection by repeating the big lie that a fair election had been stolen; called the insurrectionists to the nation’s capital in his tweet saying “its going to be wild”; incited what he knew to be an armed mob and urged them to march to the U.S. Capitol where the election was being officially ratified; waited till the mob breached the building before tweeting to endanger his vice president’s life after failing to intimidate him to help him illegally overturn the election; failed to send in the National Guard to quell the insurrection and waited hours to call off the mob; and toyed with pardoning the insurrectionists. This behavior certainly aided or comforted the insurrectionists in their effort to aid his attempted self-coup.

Heretofore in American history, failing to enforce clear constitutional provisions has created an unconstitutionally powerful imperial presidency. This usurpation has undermined the framers’ vision of a republic with distributed powers enforced by strong checks and balances, intended even to check the excesses of democracy—which could be in our future due to the 2024 election.