National Archives (document); (Trump)

Be careful what you wish for

We should fear the unintended consequences of the Supreme Court upholding states’ decisions to keep Trump off the ballot based on the language of the 14th Amendment

Rick Holmes is retired and living in Marlboro after a long career in journalism and opinion-writing, mostly at the MetroWest Daily News in Framingham, Mass., where he served as opinion editor.

A persistent question has found its way into the discourse over the last few years: Is the United States a republic or a democracy?

The question typically comes in the context of an argument over voting rights, gerrymandering, or overturning the 2020 election. Liberal complaints about assaults on democracy are greeted by some right-wing wiseguy with "the U.S. isn't a democracy, you know, it's a republic."

The simplest response to this diversion is that the U.S. is both: a constitutional republic and a democracy, in which power resides in the people. In that light, the either/or argument seems irrelevant as well as tedious.

But now comes an issue that makes the distinction between democracy and republic both very real and absolutely relevant.

Should Donald Trump be barred from the presidential ballot under the 14th Amendment's insurrection clause, or should the people be allowed to vote for the candidate of their choice?

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In deciding what to do about Trump, should we prioritize the (small-r) republican value of the rule of law? The Constitution explicitly states those who have engaged in an insurrection in violation of their oath of office cannot be a candidate for federal office, and in a republic, the Constitution reigns supreme.

Or should we prioritize the (small-d) democratic value and let the people decide? Keeping opposite candidates off the ballot is a tactic of authoritarian regimes like Russia and Iran, which often cloak their decisions in legal language. Here, the authority to choose leaders resides in the electorate, or it has until now.

I like Lincoln's definition of democracy: a government "of the people, by the people, and for the people." Democracy is not either/or. It's a continuum defined by how close an institution or action is to the people.

A referendum in which voters make specific policy decisions is more democratic than electing representatives to make policy decisions. The House, where each member represents roughly the same number of constituents, is more democratic than the Senate, which is structured to tilt power toward smaller states with fewer voters.

The Supreme Court, which is neither elected nor accountable to voters - and is explicitly bound by the law, not public opinion - is the least democratic of the branches.

Yet it's the Supreme Court that is poised to rule on whether Trump is disqualified from serving again as president.

If the Court keeps Trump off the ballot, you can call it constitutional. You can call it accountability under the rule of law. You can call it justice. But you can't call it democratic.

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There is a more democratic alternative, clearly specified in the 14th Amendment, that empowers Congress, by a two-thirds vote, to grant amnesty from the insurrection restriction. The fact that Congressional leaders of both parties are ignoring this option is one sign that this issue is a partisan exercise, not a contest of principles.

That's why we must consider the political consequences of keeping Trump off the ballot, not just the legal case against him.

If the Supreme Court disqualifies Trump, it would pour gasoline on our politics at an especially combustible moment. Team Trump would denounce the weaponization of the 14th Amendment and retaliate in kind. Already, Republican secretaries of state are threatening to bar Joe Biden from the ballot. I wouldn't be surprised if some pushed for the amendment's repeal.

Trump and his supporters would be enraged. There would be violence, at levels we haven't seen since the heyday of the Ku Klux Klan.

Voters, who don't tend to be Constitutional purists, would resent the court's interference and buy into Trump's victim narrative.

A defiant Trump might keep campaigning, winning GOP primaries wherever officials leave him on the ballot, right up to what could be a crazy convention. If he's forced to withdraw, other Republican candidates would compete to lead the radical Trumpists, attacking the courts and promising pardons for all insurrectionists. Riding a wave of resentment of the court's power grab, the Republican nominee would be a heavy favorite in November.

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It might be better for everyone if the Supreme Court finds a way to sidestep the question, allowing Trump on the ballot while preserving the 14th Amendment's insurrection clause. A unanimous decision might go down easier, but the Supreme Court's credibility, already hanging by a thread, will take a hit however the justices rule. Popular support for the Constitution and the law will suffer as well.

In other words, be careful what you wish for.

I detest Trump. I lie awake nights worrying about what a second Trump term might bring. But I have a bad feeling about this 14th Amendment challenge. I fear it will leave America both a weaker republic and a more fragile democracy.

This Voices Viewpoint was submitted to The Commons.

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