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Landry Ayres: Welcome to Zooming In, a project of The UnPopulist. I'm Landry Ayres.
You might notice that I am not in fact Aaron Ross Powell, our usual host for this show. Well, today is a special day because we get to tell you that Zooming In is growing. Aaron is still with us, just not today, but he will be back. He’s still going to be hosting episodes, bringing his unique insights and questions to the best and brightest guests, but we’re also going to be giving you more of this podcast from more of us at The UnPopulist too, starting right now.
Today is our Editor’s Roundtable. I’m joined by my colleagues Shikha Dalmia and Berny Belvedere, as well as Director of Election Policy at the Rainey Center and an adjunct scholar at the Cato Institute, Andy Craig.
A transcript of today’s podcast appears below. It has been edited for flow and clarity.
Landry Ayres: Welcome all.
Berny Belvedere: Great to be here.
Andy Craig: Thanks for having me.
Shikha Dalmia: Glad to be here, Landry. Thanks for doing it. This is your inaugural episode moderating us since you hopped on board full-time with The UnPopulist.
Landry Ayres: Very, very excited to join. Long time listener, few time editor and producer, but first time on the show myself, so I'm very excited.
At the very end of last year, just before the holidays, Donald Trump's presidential campaign hit a large roadblock when the Colorado State Supreme Court ruled he is ineligible for the office under Section 3 of the 14th Amendment, also known as the Insurrection Clause, due to his actions during January 6th. While many of his opponents praised this decision as justice finally taking course, there has of course been backlash.
A major complaint about the decision to take him off the ballot is that doing so would be anti-democratic, a circumvention of the people's will by unelected politicians in robes. Exercising judicial power to remove a candidate who has on occasion been leading in the polls does seem remarkably anti-democratic. Even some liberals have expressed some qualms about such a course like this.
Are they justified in their worries about this?
Shikha Dalmia: It's a good question, Landry. What to me has been super interesting to watch in this age of polarization is that this is the one issue on which at least the pundit class hasn't been polarized along regular partisan lines. There are plenty of, as you mentioned, liberal pundits and even progressive ones who have suggested that it's an extremely bad idea to try and disqualify Trump in this fashion.
Then there are conservative columnists and pundits who've taken the opposite position that we ought to use this provision. Andy Craig, our very own Andy Craig, wrote an excellent piece for The Unpopulist, which is going to be the focal point of our discussion today. Andy, in fact, wrote, not only would it not be anti-democratic, it would be better for democracy if we deployed Section 3.
On the other side, you have Samuel Moyn, who's a progressive professor of law at Yale University, who wrote a very powerful piece in The New York Times saying that it would be a mistake to use Section 3. Jonathan Chait, who's with the New York Magazine, a liberal columnist who's made a similar case. Then you have, of course, Ross Douthat at The New York Times, who's taken their view, too.
You have Charlie Sykes at The Bulwark, who's made as powerful a case as Andy as to why we should use Section 3. It's been actually in some ways heartening to see that this reaction hasn't fallen along typical partisan lines. There's a robust conversation about this going on.
I actually have a few questions for Andy, just to help clarify the situation a little bit. Andy, you wrote this very good column for us where you went over what Section 3 is supposed to do. The argument, the initial argument for using Section 3 was made by William Baude and his co-author.
They're both [conservative] Federalist Society people. They pointed out that this provision was meant specifically to keep out insurrectionists, and it was written after the Civil War. What exactly is this provision? Does this provision entail preventing Trump from serving, assuming office, or does it entail keeping him off the ballot, disqualifying him from the ballot? Because what the Colorado Supreme Court has done, I think to some extent depends upon what exactly that provision allows.
Candidates get kicked off the ballot all the time in the United States, sometimes for very piddly, technical, not very well-justified reasons. That is not unique, but there's this question, do the people have the right to vote for somebody, and then it's up to Congress to decide when they're counting the electoral votes. — Andy Craig
Andy Craig: Section 3, as everybody's familiar with now, was originally after the Civil War, the 14th Amendment was written, adopted in 1868 during Reconstruction. The initial concern was, Southern states as they'd started to be, it was complicated, but readmitted to the Union and electing new members of Congress, there were people like the former vice president of the Confederacy being elected to the Senate. That was seen as very much something we have to prevent.
What Section 3 does is it first defines a group of offices you're being barred from, which is basically everything, member of Congress…There's arguments about this language and if the president's covered by it, but on the face of it, it covers basically any state and federal office. You can't be any of those. If you were somebody who previously held what's basically, but again, there's arguable ambiguity, the same list of offices, and then broke your oath that you were required to take to the Constitution by engaging in insurrection or rebellion.
At the time, everybody knew what this meant. It was obviously about the Civil War and the Confederacy, and there was not much factual ambiguity. There are a number of things that have made it more complicated today than it would have been in 1868. This whole question of ballot access. If you're disqualified from the office, can you still be put on ballots by the state?
That's not how elections worked in 1868. The government didn't print ballots. As much as we take that for granted and obvious today, it was called party tickets. It was basically DIY ballots, any scrap of paper you wanted, but in practice, the parties printed and distributed their ballots, their party tickets. It's where we get the term from, listing their candidates, and that's how you would vote.
There was no opportunity for this question to arise in the pre-election context. Since then, everywhere has adopted. … We have official standard government-printed ballots. We've had that for pretty much everywhere for more than a hundred years now. The government has to make the decisions somehow about who qualifies for that. There's a lot of complicated fights. You'll hear, particularly third-party people, but sometimes Republicans and Democrats, get caught up in it, too.
Candidates get kicked off the ballot all the time in the United States, sometimes for very piddly, technical, not very well-justified reasons. That is not unique, but there's this question, do the people have the right to vote for somebody, and then it's up to Congress to decide when they're counting the electoral votes. The case that states can kick disqualified candidates off the ballot is very strong because there's a long history of doing it.
In a case out of the 10th Circuit out of Colorado written by then-10th Circuit judge, Neil Gorsuch, he upheld kicking a naturalized citizen who was trying to run for president off the ballot who's not eligible because they have to be a natural-born citizen. That is relatively clear. Is Section 3 different, and then does it by its terms apply to Donald Trump in part because he was only ever president and never held any other office in his life, which would have been a thing nobody would have thought about as even possible in 1868? He's literally the only person in American history that's true of.
Then you get into all the fights about what was January 6th, how culpable was he for it, does it count as an insurrection and all that sort of thing. That's where things stand. There is a big huge long litany of issues that the Supreme Court is going to have to take up here. One of the few things we can say with some confidence though is that even if the Supreme Court upholds the Colorado ruling and says, "Yes, Colorado made the right decision they can kick him off the ballot," that does not mean states will have to take him off the ballot.
It will still be up to state law if the state has that as a requirement for appearing on the ballot and has a mechanism for enforcing it and hearing a dispute over it. Most states frankly just don't particularly for president. I mentioned the case of a naturalized citizen. There have been other cases of people who are underage. They're not 35 years old yet. Some states have put them on the ballot, and some states haven't.
There is a bit of caution here because even the best case scenario here, Trump will still be the Republican nominee. He will still be on the ballot, and almost certainly every state he would have won anyway. This is not a silver bullet. I do still think there's a strong case for why this is the correct reading. As you mentioned, the Baude-Paulsen article really kicked this debate off in strongly originalist terms of like what is the plain text of this mean, how would it have been understood at the time. They make a very persuasive case.
Shikha Dalmia: What happens then? You say that the Supreme Court is just likely to, even if it allows Colorado to kick Trump off the ballot, other states can keep him on the ballot. The way it's going to work is that the blue states where he was not going to win anyway may kick him off the ballot although California has refused to do that. And the red states where he would win are going to keep him on the ballot. That would be enough for him to get enough electoral college votes to be elected president, but then can Section 3 prevent him from serving as president if he is determined to be an insurrectionist?
This is where I get super confused that if the Supreme Court says, "Okay, states, do what you want to go by your election rules. Keep him on the ballot or don't keep him on the ballot." Ultimately, if he gets elected, he could be still sued under Section 3 to be prevented from assuming office. What does keeping him off the ballot right now in a few states that are inclined to do so, what purpose does that serve?
Andy Craig: That's right. The Electoral College is the ultimate decider. If they cast a majority of their votes except for then it goes to Congress and then on Jan. 6th…This is always been the usual understanding and the Reformed Electoral Count Act deliberately left this in place, that presidential qualification disputes like this can be decided by Congress during the electoral count. We only have one precedent for that, but in 1872 Horace Greeley, who had lost in a landslide, died between election day and when the Electoral College voted. A few of his electors voted for him anyway.
Congress said, "No, we're not going to count that. A dead person is not eligible to be president." That was an easier call than, “Is somebody an insurrectionist?” It would likely go there. Then afterwards if Congress does not throw out the electoral vote sustain an objection to his eligibility. I'm sure somebody would, a lot of people would, try to sue and say you can't enforce whatever on me because you're not the real president. It is very unlikely that the Supreme Court would challenge Congress's decision on that.
There's a strong background assumption that, push comes to shove, the president is who Congress says the president is. That's going to be the legal inclination, but part of the advantage of having a ruling now is that having that ruling now could influence what Congress does in that situation. This matters not just if he's won. I think if he's lost, we're going to see the objection be made. It has to be co-sponsored by a fifth of each house under the reformed ECA.
This is going to be getting debated on Jan. 6th, 2025 either way. I think the court ruling is going to have a big influence on just the political context going into that. If they've completely shut it down, that's going to heavily weaken the people wanting to object. If they've endorsed it or semi-endorsed it or done something more favorable towards it, that's going to be a green-light stamp of approval implicitly for members of Congress to push harder on it.
The fact that the Supreme Court is even potentially treating this [the Colorado Supreme Court ruling] as legitimate even if they're not necessarily endorsing it, I think, does make a big difference in the same way we've seen some polling evidence that, if he's actually convicted in his criminal trials, that will move some voters. — Andy Craig
Shikha Dalmia: If I understand you correctly, Andy, what you're saying is that if the Supreme Court lets Colorado boot Trump off the ballot because it has looked at the record of his inflammatory statements, his conduct on Jan. 6th and determined that he was an insurrectionist. If it gives Colorado that green light that, okay, you, if your rules, state rules, allow you to kick him off the ballot because you've determined he's an insurrectionist, it subtly then strengthens the argument that he in fact did engage in an insurrection, even though the Supreme Court is not taking a position on that. On the other hand, if it says you have to keep him on the ballot, it undercuts the argument that he was an insurrectionist. Am I understanding this correctly?
Andy Craig: I think that's right. It's not just that it will have an influence on what Congress does at the electoral count. It also sends a message to the voters. I think that also matters in this. The fact that the Supreme Court is even potentially treating this as legitimate even if they're not necessarily endorsing it, I think, does make a big difference in the same way we've seen some polling evidence that at least for now seems to look like, if he's actually convicted in his criminal trials, there are some that will move some voters.
There's no shortcut around ultimately having to win the election even with the unfairness of all the election undermining things he is doing. Including, this was part of the point I made in my article, the effectively ongoing insurrection, the campaign of intimidation and harassment and trying to undermine the legal process and trying to sabotage our ability to have a free and fair election.
Even with all that, ultimately, nothing the court does, nothing any government can do, can stop the Republican Party from saying he's our nominee and telling people to go vote for him and write him in if they have to. This is very important, but it matters on the margins of the political context, not because the Supreme Court is going to definitively decide if Donald Trump can be a candidate for president.
Shikha Dalmia: How terrible would it be if the Supreme Court comes down along partisan lines on this issue? Which would essentially mean that the six conservative Supreme Court justices would tell Colorado to put him back on the ballot and the three liberal justices dissent. How would that play out? What do you expect to happen? What do you expect the Supreme Court to do? I know what we would want it to do. I think we would all want it to unanimously say that, "Colorado, you're allowed to do what you're doing." What can we expect realistically, and what happens if it falls along partisan lines?
Andy Craig: On that first point, this is one of my disagreements I've had with particularly some of the liberal writers you've mentioned who have come out against applying Section 3. That's the legitimacy concern. That cuts both ways. It would be a very serious undermining of legitimacy if it does come down on partisan lines, especially if he then wins. A lot of people are going to say this is like Bush v. Gore. I would say it's a lot worse than Bush v. Gore. No, that's something that needs to be considered, too. This is all focused so much of the discourse on what Trump-supporting voters want and what they're entitled to and everything.
They're not the only voters here who have a stake in this outcome. They're not the only voters who have very strong views about what Donald Trump did and what the consequences should be. In terms of what's likely to happen, oh, gosh, that is always an extremely dangerous game to play with the Supreme Court, even after oral arguments, which we haven't had yet. In this case in particular, it is very hard to say. What I will say is I think there's a wide range of possibilities that are all plausible in that, like I could see it going either way.
I think it's likelier probably that they will overturn Colorado and that they will do so on grounds that specifically don't require them to reach the Section 3 thing. Like the merits of is he an insurrectionist? They'll say there's this theory that Congress has to pass a law to enforce it, and states can't do it. There's this weird nonsense about how the president isn't an officer of the United States. I find that one very frustrating. I would say the median likeliest outcome is that they'll do something like that, but it's a wide distribution of the possibilities here.
Shikha Dalmia: But would you say whichever side the Supreme Court comes out on, it's better it come out close to unanimously rather than breaking down on partisan lines?
Andy Craig: I would say that's right because even if they side with Trump, a unanimous opinion would be the narrowest, least inflammatory. The liberal justices would not sign on to an opinion saying actually January 6 wasn't an insurrection and all that sort of stuff. It's not impossible that we could have maybe not even a unanimous but a potentially like a 7-2 ruling, or that there could be one or two justices who cross sides in terms of which block they're voting with. That's entirely possible. Yes, a six-three decision would probably be the worst thing on party lines.
Berny Belvedere: Just pivoting away a little bit from questions of how the process might look to oppose Trump or to keep him off the ballot or to disqualify him. … In your piece that Shikha alluded to earlier, the one that you published with us on Jan. 4th, you wrote the following, "Insisting Trump be treated as a normal candidate ignores the reality that he isn't one. The argument against disqualification projects a desire for normalcy onto an abnormal situation, a wish-casting denial mechanism."
I wanted to ask a question about this that deals with something you hear a lot from the former president's supporters, especially online. You rightly note that Trump is abnormal. Should we worry at all about what treating a candidate we correctly judged to be abnormal as abnormal could provoke the other side to do? You see this reply all the time, like, "These are the new rules." Like, "This is the new standard. You guys now have to live up to it." The Biden impeachment is an instance of that.
The worrisome idea here just to state it as directly as possible is that a segment of the right is promising to retributively treat candidates across the aisle, candidates that by any objective standard are very much normal and within the normal range of political behavior, as abnormal in response. Is that a worry that we should factor into our calculus? I'll just use one concrete example here just to bring it down to earth a little bit to see how it might look like.
Is there a concern that a Secretary of State from a red state—rather than what Maine’s Secretary of State did—he might, say, strike Kamala Harris from the state ballot if she ran for president in the future on the dubious grounds, obviously, but on the grounds that she's not a natural-born citizen based on her parents being foreign nationals when they had her here in the States? There was that meme that was going around. Should that concern, that kind of approach that the other side now takes to their rivals, worry us at all?
Andy Craig: It is a reasonable thing to consider and to look at this slippery slope, tit-for-tat escalation concern, but this isn't new. They were filing frivolous lawsuits saying Barack Obama wasn't a natural-born citizen. They tried it against Ted Cruz, too, and John McCain. We have to, at some point, have some confidence that the law will be applied as it's written, or at least, within the same ballpark of as it's written. If you're going around disqualifying candidates off the ballot for transparently bogus reasons, that's something that would be flagrantly beyond the bounds of the Constitution allows including past court rulings.
I do think it's the case that when you're talking about these federal qualifications for federal office, that's a federal question that's reviewable by the federal courts, and it has been. These sorts of cases have been reviewed and appealed in federal courts before. The reality is we don't have anything comparable to January 6th. It was such a incredibly unique thing. You hear raised sometimes, well, what about some local politician gave a speech to the Black Lives Matter rally in 2020, and then there was a riot, and then they burned down the courthouse or something. You can start to get close to building an arguable case in those cases, but the factual reality is we just don't have anything that clear-cut.
We do not have a case of a state representative somewhere directly right there inciting a riot, telling people to go march on the building they then ransacked. Even the hardest left most out there with the protesters' politicians who hold these offices, which you have to because Section 3 only covers people who've already taken an oath. It's frivolous. You can't concede to that because then you're effectively conceding, "Well, the law is just meaningless. We're beyond it. We're into the realm of pure power politics." Which might be what they want, but you're really conceding the point then.
The worrisome idea here…is that a segment of the right is promising to retributively treat candidates across the aisle, candidates that by any objective standard are very much normal and within the normal range of political behavior as abnormal in response. Is that a worry that we should factor into our calculus [as to whether to use Section 3 against Trump]? — Berny Belvedere
Shikha Dalmia: A couple of things I wanted to say in response to what you said, Andy, and we want to have a broader conversation about whether or not it is anti-democratic to use anti-democratic means to keep somebody off the ballot. Even in the example of some politician inciting rioters, Black Lives Matter rioters or whoever to go and burn down a courthouse, the crucial difference is what makes this an insurrection is they are not doing it to overturn an election. They are doing it to express their rage or what have you. In this case, Trump was actually engaging in this behavior to stop the peaceful transfer of power and make himself the next president through violence.
The argument for using Section 3 that finally persuaded me was the one that Ilya Somin made that he said, you've got this provision in Section 3 that insurrectionists are disqualified. If you fail to apply it in this case, in Trump's case, which is really the most clear-cut case of insurrection that we have seen, basically, you are nullifying Section 3. You'll never be able to use it again. To me, that's a powerful argument, because then this opens the door to all kinds of future insurrections by other candidates if you're not going to use it or at least attempt to keep Trump out. You're giving up on Section 3.
Andy Craig: Absolutely. The incentives we're setting up by the precedent this sets is a hugely important consideration, and that's why Section 3 exists. That is the whole purpose of it. Even though it's triggered by past wrongdoing, it's forward-looking to protect the constitutional order from future threats, because we know that this past behavior is indicative of somebody who can't be trusted to not do it again, as we've seen in spades from Donald Trump. The other thing about Section 3 that limits it, running down that, what if every riot in the country, does that then become an insurrection, is Section 3 is limited only to insurrections specifically against the U.S. Constitution.
If you're just having a riot because you're mad about the local DA didn't prosecute a cop who killed somebody, that can be all sorts of other crimes. We don't want riots and everything, but that's not trying to overthrow the U.S. Constitution. That's not trying to set up some alternate authority that you say is the supreme law of the land that's not the Constitution. That's really the motive element that is necessary to trigger Section 3. It's what was so different about what Trump did. Absolutely, an unpunished coup attempt is a dress rehearsal.
If you fail to apply Section 3 in Trump's case, which is really the most clear-cut case of insurrection that we have seen, basically, you are nullifying Section 3. —Shikha Dalmia
Landry Ayres: I think I'd like to broaden this out a little bit even more, sort of piggybacking off of what Berny was asking earlier. This is a question I think that is really open to anybody here. Getting to the notion that democracy is about people choosing the way that they want to be governed and that this seems anti-democratic on its face as a move. Some might not care if Trump did something outside the bounds of the Constitution or even directly against it.
We saw in our last episode, the interview with Tom Shull, which if you haven't listened to, you should go back and check out, that based on the findings of our poll, a not insignificant amount of Trump's supporters and indeed even some of Biden's supporters don't mind their preferred candidate going outside or around the law, if it means they get what they want done faster.
The insurrection clause as it's written, functions regardless of people's choice. It can circumvent the democratic process in a way. Why is that valuable to us as a part of the Constitution? Why should we support that if democracy is one of our core values? What values or ideals or institutions do we need in conjunction with this sort of surface level of democracy in order to protect the open society that we value?
Andy Craig: It's absolutely true that Section 3 in that sense is directly anti-democratic. You're kicking a candidate off the ballot. You're saying votes for them don't count. You're saying that person can't take office. It's understandable. The thing to understand is that the question is, will we have a truly free and fair election if they're on the ballot? This is a measure to prevent the disqualified candidates' opponents from having to fight on an unlevel playing field of having to fight with one hand tied behind their back because they're not the ones resorting to fraud and violence and coercion and threats and all the rest of it.
If you don't apply that rule, that's breaking the rules in a way that gets you kicked out of the game, then it will become a slippery slope of escalation. As much as we talk about what if Trump loses and tries to overturn the election again and all the things he's doing. It is something to keep in mind that if he wins the backlash will be immense. I think there will be massive protests. I think there will be much stronger than there was during the second term since that he is illegitimate and that he is not the real proper constitutional president and all the rest of it.
A lot of that may well be correct and justified, but it's the same kind of outcome we want to avoid. When we're talking about will a candidate be kicked off the ballot, it's not just that they betrayed their oath to the Constitution as a whole, it's that they specifically betrayed the premise of the electoral process, which is that we have a free and fair election and the winner wins, and you can you can go home and try again next time.
That's the way elections function to channel what would otherwise be violent social conflict into a peaceful, orderly regular mechanism where the loser doesn't have to feel it's existential, that there's always the next election that you're not going to get thrown in prison for having backed the wrong party because it lost, that the votes will be counted accurately, and there won't be mobs trying to coerce relevant officials into producing fraudulent election results, which is what he tried to do.
The question is, will we have a truly free and fair election if [Trump is] on the ballot? This is a measure to prevent the disqualified candidates' opponents from having to fight on an unlevel playing field, of having to fight with one hand tied behind their back, because they're not the ones resorting to fraud and violence and coercion and threats and all the rest of it. —Andy Craig
If you have an election where all that's running unchecked, even if he loses in spite of it, it's already something less than what we would call a free and fair election. We understand that countries like Russia, and even to some degree countries like Hungary, have elections, but there's something less than free and fair. At the extreme end, they're just total shams, and everybody knows it's fake.
We're not that far gone, but the reason we have this rule is to shut that down before it keeps going, before it does escalate into the situation where, ultimately, we backed away from enforcing Section 3 before during Reconstruction. We passed it in 1868, but then within a very few short years after that, Congress passed sweeping amnesties, federal troops were pulled out of the South. There was the whole failure of Reconstruction, the reestablishment by former confederates and high political office of white supremacist one-party rule for the next century in the South.
That's what happened last time we decided, "Oh, it would be too anti-democratic to follow Section 3." That's directly related to it, all of the violence that was used, all of the terrorism to disenfranchise Black voters in the south. The Klan and all the rest of it was a direct consequence of failure to uphold Section 3.
Berny Belvedere: Yes, and I think to the question of, “What does it take for us to be able to have free and fair elections?,” creating safeguards and implementing them so that we can achieve that might at times take a feature or a rule in place that on its face appears anti-democratic or it's undemocratic, [but] it's in the long-term interest of that democratic project remaining viable.
It's really interesting to me, when other institutions are discussed along these lines. For example, when we debate about whether the Electoral College is democratic or not. The bumper sticker reply from a lot of people on the right in defense of the Electoral College is that we're a republic, not a democracy. They make that distinction there, the idea being that there are limits to our democracy in society, that the shape of American society ought to be seen as partially, not fully, democratic. Then, when it comes to Trump's eligibility, suddenly that distinction that many people make between a constitutional republic and the pure will of the people or whatever gets very selectively flattened. In essence, they ditch the constitutional constraints that the framers or writers of the Constitution and the amendments deliver to us and appeal to the idea that the will of the people should override those constraints. That's what's involved in the acknowledgment that Section 3 of the 14th Amendment exists and that it may even technically apply here, and yet we should argumentatively prioritize the idea that Trump is backed by the will of the people.
I guess with this comment, I would like some consistency here. Either there are limits to an outworking of the pure will of the people, and we can acknowledge what those limits are constitutionally, and we can even debate about whether to make adjustments there. Andy, fact check for me, what's the requirement for a constitutional amendment. Is it two-thirds of Congress and then—two-thirds or three-fourths of the [state] Houses need to ratify or the states?
We passed it [Section 3] in 1868, but then within a very few short years after that, Congress passed sweeping amnesties, federal troops were pulled out of the South. There was the whole failure of Reconstruction, the reestablishment by former confederates and high political office of white supremacist one-party rule for the next century in the South. — Andy Craig
That's what happened last time we decided, "Oh, it would be too anti-democratic to follow Section 3."
Andy Craig: Yes, two-thirds of each House of Congress and three-quarters of the states, so 38 states.
Berny Belvedere: We have a tool in place, if we feel like we need to adjust some constitutional constraint or not. That's something that we need to be a little bit more consistent on. Here's the result of the position that admits of no democratic limits, no democratic constraints. You get Trump back on the ballot, which is the result you wanted, but then you get the elimination of the Electoral College, the Senate's model of representation and other things in place that place limits on our democracy.
Shikha Dalmia: The Bill of Rights.
Berny Belvedere: Absolutely.
When we debate whether the Electoral College is democratic or not, the bumper sticker reply from a lot of people on the right in defense of the Electoral College is that we're a republic, not a democracy… Then when it comes to Trump's eligibility, suddenly that distinction that many people make between a constitutional republic and the pure will of the people or whatever gets very selectively flattened. — Berny Belvedere
Shikha Dalmia: You've got to make a distinction actually between anti-democratic and non-democratic, and Jonah Goldberg has made that distinction. The Bill of Rights is not anti-democratic, it puts some constraints on the power of the majority. You can't, through a majority vote, vote away the First Amendment or free speech or gay marriage, if it's already been duly approved and what have you. You can't simply put it up to a vote, but it is not anti-democratic. I think that distinction is important. If you look at the Founders, they all recognize this distinction, that there have to be some constraints on the power of the majority so that you can have some stability across, like, every time a new government comes, it doesn't just re-write everything and strips people of their freedom and their rights and just decides who it's going to extend the rule of law to and who it is not.
I've actually got a series of quotes over here that Charlie Sykes very helpfully provided from the Founders. John Adams here, what was his opinion about pure majority rule? "Remember," he said, "Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy yet that did not commit suicide. It is in vain to say that democracy is less vain, less proud, less selfish, less avaricious than aristocracy or monarchy."
Then you have James Madison, "Democracies," he wrote in Federalist 10, "have ever been spectacles of turbulence and contention, have ever been incompatible with personal security or rights of property and have in general been as short in their lives as they have been violent in their deaths."
That's if you completely open every decision of the republic to a majority vote, you will have what Andy was saying, a winner-take-all system, where the stakes become existential, and it's imposing one mob's will over the other. That's exactly what we are trying to prevent over here.
Berny Belvedere: Yes, I think this is one of those cases, Shikha, where that linguistic point that you made really helps us understand the broader conceptual point about democracy. I'd like to try to give an example of something that I think is un-democratic or non-democratic like you said, but that is not anti but pro-democracy, and then one that is un-democratic or non-democratic and also anti-democratic.
I think the Senate model of representation, the fact that it assigns the same measure of representation to a California resident and someone from Alaska, this is supposed to be obviously a counter-balance to the House's model of representation, which is based purely on population. The Senate's model is undemocratic or non-democratic, but in my view, it's also anti-democratic because it ultimately cuts against the core idea of democracy that every citizen should have equal representation in government. It's both non-democratic and anti-democratic.
Then if we bring it back to Section 3 but instead of applying it to Trump, talking about the former Confederate officials and soldiers who are barred, that's undemocratic or non-democratic to do that because, of course, these are people, as Andy noted, who could garner a critical mass of support from the people to propel them back into public office. They could do that. But it's also pro-democracy rather than anti because it sends a message that those who engaged in insurrection against the U.S. should never get to hold office in it again. It's very straightforwardly pro-democracy in that you are barring those who tried, and those who might try again, to again bring up Andy's point about its future-facing provision there, to erode our democratic project even though technically you have to tell a bunch of people, "Hey, you can't get your guy in." It's non-democratic, but it's actually pro-democracy in the long run.
Shikha Dalmia: Right. Yes, there's even a simpler analogy to think about it. Like in a game, you have an umpire who is supposed to enforce the rules of the game which actually enhance the game and protect the sport? The Lions are now in the playoffs here in the state of Michigan where I spent three decades of my life. If every time a player kneecaps the player from another team, and you have to take a vote of the fans of that player and that team whether he actually did kneecap that player and should be allowed to stay, you would destroy the sport.
It's something similar over here. If you allow majoritarian rule to decide whether their candidate has played by the rules and is an insurrectionist or not rather than some neutral umpire like the judiciary, you're just going to destroy democracy. These non-majoritarian, non-democratic provisions have in some ways been implemented to protect democracy. I really hate that phrase that opponents of Section 3 have come up with, "Well, here you are using anti-democratic means to save democracy." No, that completely misses the point as far as I'm concerned.
If every time a player kneecaps the player from another team, and you have to take a vote of the fans of that player and that team whether he actually did kneecap that player and should be allowed to stay, you would destroy the sport. — Shikha Dalmia
Andy Craig: Absolutely. A lot of this goes to, if you look at the difference between how we speak of democracy today versus what James Madison and how John Adams were using the term. It's taken for granted. Today we mean liberal democracy. The liberal half of it has its own basket of rules. It means something.
Shikha Dalmia: Exactly.
Andy Craig: We just usually call it democracy shorthand, we understand, but that's part of it. We understand that free speech and the rule of law and constitutional rights and free elections and all of these things go into the basket that we're not talking about just pure unlimited majority rule where 50% plus one you can do whatever you want.
I do find it frustrating when those two senses of you might better call it not democracy but majoritarianism, which is one element among others in the system. We're always balancing those things against each other, and nobody really disputes that premise. This rhetoric often frames it as you're violating this fundamental principle without acknowledging that the whole system is built on some fundamental principles that are sometimes in tension.
Shikha Dalmia: I do have a question, however, which is this I think we are all pretty much in agreement that there's nothing anti-democratic about using Section 3. Is there something unwise about using Section 3? At a time when the courts were a respected institution as they had been in the past but not quite now, and they could function as an umpire, as a neutral umpire whose decisions everybody can live with, it would be one thing.
If the court is seen as politicized and polarized, then how does half of the public have confidence that they've made the correct decision and a nonpartisan and a neutral and a fair-minded decision. If that's the case, if the courts can't serve as that neutral umpire, then is it better to let the politics duke it out? Let Trump be on the ballot? This is Damon Linker's argument, by the way. Half the country is going to consider the Supreme Court's decision illegitimate one way or the other. If there is no neutral institution left, let the people decide.
Andy Craig: That's a reasonable argument. You've seen it in some, Ross Douthat, a piece hit on this and others that have framed this as this is a mistake dumb thing for Biden and the Democrats to do. The reality is Biden and the Democrats and the DNC, et cetera, are not the ones doing this. Nobody could have stopped somebody from going out there and trying it. People were talking about it on January 6th. The idea was obvious.
There's been a lot of fleshing it out since then, and people coming to their positions and the rest of it. It only takes one person to file a lawsuit. There was never a way to keep this question from coming before the courts. It's one thing to say it would be better if this had never come before the courts, and if this just wasn't happening at all. It's another thing to say, conceding that it has, both decisions will have the same bad outcome, then that's a wash. I do think people misunderstand, and this gets conveyed in the coverage that Biden has not said one word in favor of it. The solicitor general has stayed out of the case. They usually weigh in on the important things before the Supreme Court for the administration's position. They've stayed out of it. The DNC has not filed any briefs in support of this whole effort. The plaintiffs themselves are Republicans and in some states, independents, people who can vote in the Republican primaries.
The main advocacy group that's leading the lawsuits themselves is CREW, Citizens for Responsibility and Ethics in Washington. They're a liberal advocacy group. It would be fair to call them Democrats. I'm sure they're not officially but effectively. They don't take orders from anybody. There's nobody who could have sent out the memo, “don't try this.”
Berny Belvedere: One question we might ask when we were talking about majoritarianism, what's at stake if we were to go completely majoritarian? Would it be too dramatic to say, potentially, everything? Just breaking it down for listeners, what would be at stake there?
As far as frustrating and at times, stupid and even corrupt and venal democratic politics can be, it's always worth keeping in mind, it's what we do instead of beating each other's brains out all the time. — Andy Craig
Shikha Dalmia: It's a very good question. Let's say, if you were to try and think this through, what would it mean? It would mean that at every election, you would have no standing rules of the game. The rules for every election would first have to be put to a vote for the majority to decide what those rules are going to be. Those too would be decided by a pure majority, which means that the pure majority would always write the rules to keep itself in power.
Then you would have elections based on rules that the majority has written to privilege itself. How would it work? This pure majoritarianism, maybe it would work in a small city state like Athens where everybody was engaged in a deliberative process, and they could talk to each other and come to some kind of a consensus that everybody could live with. In a large republic like ours, are we going to put the rules of the game [to a vote]…This election we don't have an electoral college because it won't help the majority, but in the next election, maybe we will have an electoral college because it'll help the majority. How would that even work to have pure majoritarianism?
Andy Craig: That gets at what your John Adams quote was saying about pure majoritarianism, it's a thing that can't even exist. It's not sustainable. It commits suicide.
Berny Belvedere: It's too unstable.
Andy Craig: Right. Whoever manages to be in power when the music stops can keep themselves forever.
Shikha Dalmia: That's goes to in the Middle Eastern countries, that was always the slam against them, right? One man, one vote, one time. Then that's it. Then you get into power, and you just write the rules as the majority that has elected you to write them, and it said that we are not going to have elections ever again. Boom, done.
Andy Craig: It's not a hypothetical concern when we're talking about Mr. I'm-Going- To-Be-A-Dictator-On-DayOne and terminate the Constitution and all the rest of it. His attempt to overthrow the election is of a piece with his broader anti-constitutionalism of wanting to be a dictator,.
Shikha Dalmia: Exactly. Not just go after the other party and its enemies. Now, he's turning his ire against Nikki Haley. He's promising to go after her and anybody who funds her.
Berny Belvedere: Donates.
Shikha Dalmia: Donates to her.
Andy Craig: That goes to how that's a fundamentally unfair election. If one side loses, then they all go to jail.
Shikha Dalmia: Yes, that's right. Yes. Which means that we are literally then talking about mob warfare. We are not even talking about winning on the ballot box anymore, right? It is whoever can defeat the other side through blood on the streets gets to rule.
Andy Craig: Yes. That's what we have elections to try to not do. As frustrating and at times, stupid and even corrupt and venal democratic politics can be, it's always worth keeping in mind, it's what we do instead of beating each other's brains out all the time.
Shikha Dalmia: That's right. On that happy note…
Landry Ayres: Thank you for listening to Zooming In, a project of The UnPopulist. If you enjoy this show, please take a moment to review us and Apple Podcasts and also check out ReImagining Liberty, our sister podcast at The UnPopulist, our host Aaron Ross Powell explores the emancipatory and cosmopolitan case for radical social, political, and economic freedom. For more like this, make sure to subscribe, for free at theunpopulist.net. Until next time.
What Do Efforts to Bar Trump From the Ballot Accomplish? A Conversation with Andy Craig