A bunch of judges just said Donald Trump can’t run for president?? Shouldn’t they let the voters decide???
So goes a version of the reaction to the Colorado Supreme Court ruling that has disqualified Trump from the ballot: That enforcing the 14th Amendment against him is somehow “antidemocratic.”
That criticism couldn’t be further from the truth, and it’s important to understand why: It amounts to an argument against the Constitution itself.
To be sure, there’s plenty of room for disagreement over how the amendment’s insurrection clause applies, and the U.S. Supreme Court may reach a different conclusion that lets Trump run for office in 2024. But discomfort with applying the amendment at all isn’t a legal argument — it’s a political one.
As former federal judge Michael Luttig explained when we discussed the subject last month, “it’s the conduct that gives rise to disqualification that the Constitution tells us is antidemocratic.” Luttig added: “It is the Constitution itself that provides for disqualification. So there’s no possible way that the Constitution itself can be understood as antidemocratic.”
Of course, anyone dissatisfied with the 14th Amendment could push to further amend the Constitution not to disqualify insurrectionists. There is, after all, a perfectly democratic process for that! But in the meantime, the argument that it’s effectively wrong to use the amendment isn’t worth much. The Constitution doesn’t care about your feelings. So, when the Colorado Supreme Court says Trump is disqualified, there is nothing antidemocratic about that ruling, even if one thinks that ruling is wrong on the law. By the same token, the U.S. Supreme Court wouldn’t be upholding democracy if it reverses the state high court; it would simply be reaching a different legal conclusion. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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