A number of politicians, pundits, and even legal scholars are beginning to parrot the claim that the Supreme Court of Colorado and Maine's Secretary of State are anti-democratic due to their finding that Donald Trump is disqualified from holding future office under Section 3 of the 14th Amendment. It is humorously hypocritical for Republicans in particular to decry any anti-democratic policy relating to presidential elections given that they've been unable to capture the popular vote for the presidency more than once in the last eight elections. Even so, they and the others contending that the 14th Amendment exclusion of Trump from the ballot is anti-democratic are correct on this issue. However, while they are technically right in this determination, their argument rests on a surface level conclusion that fails to see how, on balance, excluding Trump from holding a second term would help our democracy far more than it would hurt it.
Democracy is an often poorly understood concept, and it can be exceedingly difficult to study scientifically. However, in the various attempts political scientists have made to measure it, all of the most respected methods have embraced the notion that democracy exists on a spectrum. For example, the V-Dem Institute has developed multiple indices of democracy, all ranging from 0 to 1, while the Polity Project ranks countries from a -10 to a 10. These and other indices look to numerically encapsulate the degree to which a country is democratic or not based on the features of its economic, social, and political systems.
The most democratic of nations in these indices tend to, unsurprisingly, be those that do things like protect the civil liberties of their citizens, possess checks and balances between various branches of government, allow for a free press, and offer equal access to power to all citizens. This last feature, access to power, would be eroded in the United States if Donald Trump were to be denied the chance to run for the presidency again.
This disqualification from office is only something that can be applied to those "engaged in insurrection or rebellion," or "given aid or comfort to the enemies" of the United States as it is spelled out in Section 3 of the 14th Amendment. It is a woefully minor limitation on who can serve in elected office in our country and as such it is not one that could make a notable difference in the above-mentioned democracy scores.
Moreover, in studying democracy, political scientists have also learned a lot about what it takes for countries to become and remain democratic. It is here that we see how democracy, if it is to thrive and survive over the long-term, will at times require anti-democratic action in much the same way that a garden plant will require pruning to reach its maximum potential.
Modern Germany is an excellent example of how modest anti-democratic measures can be used to enhance and preserve a democracy. Article 21 of their constitution empowers their Constitutional Court with the ability to prohibit political parties that it determines are anti-democratic. Their court has only exercised this power twice in several decades, but the fact that it can do so at all is unambiguously anti-democratic in that it forestalls their citizens from forming political parties which seek to undermine the current democratic order. The end result is one in which democracy is nominally curtailed in scope for the benefit of making it more resilient to decay from within.
Germany saw this constitutional provision imposed on it by the United States in thanks to how the Nazi Party initially found success via legitimate democratic electoral victories. While they never captured outright majorities in those elections, they were able to wrest control over the government and then topple it largely in thanks to the foothold these elections allowed them to take in the halls of power.
Donald Trump sought to overcome the will of the American public by staying in power through overtly illegal and anti-democratic means. Allowing such a person to continue participating in our political system would be to invite a self-proclaimed wanna-be dictator to take another try at toppling our democratic order. This is exactly why Section 3 of the 14th Amendment was ratified, to prevent known threats to our government from the chance to take the reins thereof least they drive it into the ground. While I am personally skeptical that the 14th Amendment will ultimately disqualify Trump from future office, the anti-democratic nature of such a prohibition is simply not a legitimate concern.
Nicholas Creel is an assistant professor of business law at Georgia College and State University.
The views expressed in this article are the writer's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
