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“Section Three and Constitutional Democracy?”

December 27, 2023

Critics of the Colorado Supreme Court’s ruling that former President Donald Trump, under the express terms of Section 3 of the 14th Amendment, is ineligible to appear on the ballot as a Republican presidential candidate, assert that the Disqualification Clause is undemocratic and, therefore, it should not be invoked to deprive voters of the right to decide who their next president will be.

      If the American people want to vote for a candidate for the Office of the Presidency, it is argued, they should not be denied that choice. Some have warned that use of the Disqualification Clause will have disastrous consequences for democracy. Others have argued that courts should not define the boundaries of democracy.

        The Colorado ruling, based on “clear and convincing evidence” that Trump engaged in insurrection on January 6, 2021, does, in fact, limit voters’ choices, but that is true of other constitutional provisions that disqualify various citizens from holding the Office of the Presidency.

      The Framers of the Constitution believed that eligibility requirements for the presidency, which seem to trench on the right of voters to choose their leaders, are sometimes necessary to protect our constitutional democracy. Article II—the executive article—provides that the president must be 35 years old, a natural born citizen and must have lived in the United States for at least 14 years. These electoral checks and constitutional guardrails limit voters’ choices. The age and residency requirements reflect the Framers’ concerns about maturity and knowledge of the nation—its politics, problems and issues. The natural born citizen requirement sought protection from a foreign leader who might impose authority at odds with constitutional principles and republican values. These eligibility requirements met with little opposition since Americans viewed them as serving the higher goals of our constitutional order.

     The Impeachment Clause—Article II, Section 4—reflects yet another constitutional limitation on voters’ rights to choose their president. The Framers’ implementation of an impeachment power to remove a president from office for a variety of offenses against the United States, including treason, bribery and high crimes and misdemeanors, may well counter the wishes of many voters, but was, in the estimation of the Framers, necessary to preserve the constitutional order. The impeachment power includes, moreover, the power of the Senate, if it were to remove a sitting president, to prevent the disgraced officer from ever holding another office under the authority of the United States. That power was intended to prevent the return to power of someone who had engaged in various attacks on our constitutional order, including violation of the oath of office, usurpation of power, violation of the laws of the United States and certainly insurrection and rebellion.

     The concerns that motivated the Framers’ creation of the Impeachment Clause and disqualification from holding future office inspired the 39th Congress to draft section 3 of the 14th Amendment—the Disqualification Clause—which was ratified in 1868. This provision, enforced by the Colorado Supreme Court against Donald Trump, bars the return to power of someone who once took the oath of office and then engaged in, or aided and abetted, insurrection or rebellion against the United States. Like the Framers of the Constitution, the Republicans who controlled the 39th Congress believed electoral checks were sometimes necessary to preserve constitutional democracy.

      The 22nd Amendment, ratified in 1951, likewise imposed electoral guardrails on the presidency. Motivated by President Franklin D. Roosevelt’s election to a fourth term in 1944, Republicans in Congress mobilized support to push through a constitutional amendment to limit the president to two terms. Growing concerns about executive aggrandizement of power linked to longevity in office were sufficiently strong to persuade the American people to once again limit their own voting options when it involved the presidency.

     Opponents of the 22nd Amendment argued that it violated their voting rights, as do current opponents of the invocation of the Disqualification Clause of the 14th Amendment, but the overriding sense that a nation has a right to protect itself by restricting access to office prevailed among the American electorate.

       Some provisions of the original Constitution, including protection for slavery and denial to women of the right to vote, for example, were clearly undemocratic but, over time, were amended out of the Constitution, as the American people came to recognize the cruelty and arbitrariness of those provisions that reflected anachronistic values of another age.     But other provisions that seem undemocratic—Article II criteria for presidential eligibility, the Impeachment Clause, the Disqualification Clause of the 14th Amendment and the 22nd Amendment—because they impose limits on the choices of voters, have retained their vitality and relevance in an age marked by grave constitutional challenges. These voter-limiting provisions serve the greater interest of the nation—the necessity of preserving our constitutional democracy.

-David Adler