Trump, the Voters and the Constitution – The New York Times
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A clash between constitutional textualism and voter empowerment.
David Leonhardt and
At its core, the Colorado lawsuit trying to keep Donald Trump off the 2024 ballot involves a clash between constitutional textualism and voter empowerment.
If you simply read the 14th Amendment, you will understand the argument that Trump should be disqualified from serving as president again. Section 3 of the amendment states that nobody who has taken an oath to support the Constitution should “hold any office” in the United States if that person has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On Jan. 6, 2021, of course, Trump encouraged a mob that later attacked Congress, and he praised the attackers that day and afterward.
There are important legal technicalities, including a debate over whether the authors of the amendment intended for the word “officer” to describe appointed officials rather than elected ones. But many legal scholars, including some conservatives, have concluded that the amendment applies to Trump. “The ordinary sense of the text” and “the evident design to be comprehensive” indicate that it bars Trump from holding future office, William Baude and Michael Stokes Paulsen, who are members of the conservative Federalist Society, concluded in a recent law review article.
The clearer philosophical argument against the lawsuit is democratic rather than technical: If the American people do not believe Trump is fit to be president, they can vote against him next year. For that matter, the Senate, an elected body of representatives, had the power to convict Trump during the impeachment trial over his Jan. 6 actions and bar him from future office, and it did not do so.
Now, though, the seven justices of the Colorado Supreme Court (in a 4-3 vote, no less) have decided that Trump cannot appear on the state’s primary ballot. Lawyers are asking other courts to make similar decisions (as this Lawfare page tracks). Ultimately, the nine justices of the U.S. Supreme Court are likely to decide the case.
Were they to bar a leading candidate from running for president, it could disenfranchise much of the country. It would in some ways be “a profoundly anti-democratic ruling,” as our colleague Adam Liptak, who covers the Supreme Court, said on “The Daily.” As Adam explained:
Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?
The lawyers making the case against Trump have a response to this. For one thing, the Constitution already restricts the voters’ judgment in other ways, as Ciara Torres-Spelliscy, a law professor at Stetson University, told us. Nobody under the age of 35 can become president, nor can Barack Obama or George W. Bush again, because both have served two terms. And a judge in New Mexico last year barred a county commissioner from holding office because of his role in the Jan. 6 attack.
For another thing, Trump may represent a threat to the national interest that no politician in decades has. He has encouraged violence, described his critics as traitors, lied constantly, used the office of the presidency to enrich himself, promised to target his political rivals for repressions and rejected basic foundations of American democracy. He is, according to this argument, precisely the kind of autocratic figure whom the founders wanted the Constitution to prevent from holding power even if voters felt otherwise in the moment.
These will be the terms of the debate in coming weeks.
“The Colorado Supreme Court just decided that the U.S. Constitution still matters,” John Avlon argues for CNN. “The 14th Amendment was put in place to use in moments like this.”
Anastasia Boden of the Cato Institute calls the Colorado ruling “a good-faith attempt to grapple with a vague constitutional provision.”
Michael Mukasey has argued in The Wall Street Journal that the provision doesn’t apply to Trump. “If Mr. Trump is to be kept from office, it will have to be done the old-fashioned way, the way it was done in 2020 — by defeating him in an election.”
“Section 3 of the 14th Amendment should not be used to prevent Americans from voting to elect the candidate of their choice. The best outcome, for the court and the country, would be for a unanimous court … to clear the way for Trump to run,” Ruth Marcus writes in The Washington Post.
The Supreme Court could have a profound impact on the 2024 election beyond the Colorado case. The justices are already reviewing an obstruction-related case concerning Trump and could rule on his claims of executive immunity. “In this cycle, the Supreme Court is likely to play an even larger role than in Bush v. Gore,” one expert told The Times.
Trump’s rivals in the Republican presidential primary have bemoaned the ruling, Maggie Haberman reports. So far, Trump’s legal troubles have helped him raise money and grow his support.
Legal challenges to Trump’s eligibility are pending in at least 16 other states. Maine’s secretary of state is expected to rule on a challenge there in the coming days.
Democrats are again hoping American institutions can work to stop Trump, Reid Epstein writes.
President Biden said it was “self-evident” that Trump had supported an insurrection, but that it was up to courts to decide whether he should be on the ballot.
Late-night hosts joked about the ruling.
The Israeli military found video and audio of the three hostages mistakenly shot in Gaza from days before they were killed.
The military also said it had found tunnels and offices under Gaza City that were a “center of power” for Hamas.
Despite destroying much of Gaza, Israel has not found the Hamas commanders it has named as its top targets.
The U.N. Security Council is working on a resolution that would call for a pause in fighting in Gaza to move more aid into the territory and free more hostages. Diplomats are moving slowly to ensure that the plan has support from the U.S.
U.S. regulators proposed online privacy safeguards that could limit how apps use and monetize children’s data.
Justice Clarence Thomas threatened to resign years ago unless Congress raised the salaries of Supreme Court justices, according to a memo uncovered by ProPublica.
A federal judge let prosecutors access messages from the seized phone of a Pennsylvania lawmaker who helped Trump try to overturn the 2020 election.
The U.S. freed a close ally of Venezuela’s president in a prisoner swap for 10 jailed Americans.
Representative Dean Phillips, a moderate Minnesota Democrat, is embracing “Medicare for All” in his long-shot primary challenge to Biden.
Trade between China and Russia has boomed, reflecting the countries’ closer ties since the war in Ukraine started.
China is rebuilding a secretive base where it has long conducted underground nuclear weapons testing, satellite images reveal.
The city banned most uses of solitary confinement in jails. But Mayor Eric Adams, a former police officer, has vowed to veto the ban.
The Police Department pledged to end its practice of withholding body-camera footage from civilian investigators, after a ProPublica and Times Magazine investigation.
Harvard found more instances of insufficient citation in scholarly writing by its president, Claudine Gay, after reviewing her 1997 dissertation.
Warner Bros. Discovery is in talks to merge with Paramount.
Heavy rain and possible flooding are expected in Southern California through Friday. See which areas will be hit hardest.
Japan was never judged the same way Germany was during the Nuremberg trials. Its victims’ resentment inspires the disorder in East Asia today, Gary J. Bass writes.
The internet isn’t fun anymore. But that’s because it no longer appeals to the generation that made it, Max Read writes.
Black and Hispanic children spend more time on social media than their white peers. It’s distracting them from activities like reading and sports, Pamela Paul argues.
Want to avoid lulls in your holiday party small talk? Just have a few thought-provoking questions at the ready, Annie-Rose Strasser says.
It was a chaotic political year. Take Gail Collins’s quiz to see how well you followed it.
Office vintage: Once derided as symbols of a commodified work force, cubicles are making a comeback.
Shortest day: Today is the winter solstice. Give thanks: It’s evidence that our planet is specially equipped to harbor life.
A new frontier: Scientists are exploring whether Ozempic could be used to treat other issues, like addiction.
Social Qs: “Can I exclude my scamming sister from our Christmas dinner?”
Royal questioning: How well do you remember “The Crown?” Take a quiz.
Lives Lived: The historian Cari Beauchamp documented the overlooked story of the actresses and female screenwriters in early Hollywood who helped create the film industry. She died at 74.
College football: Georgia has the No. 1 recruiting class once again.
New York Knicks: Center Mitchell Robinson — who had ankle surgery last week — is expected to miss the rest of the season. The team applied for a waiver to sign a replacement.
Michigan: The N.C.A.A. is charging Coach Jim Harbaugh with a Level I violation over claims that he provided false or misleading information in an investigation into recruiting infractions.
Home for the holidays: Rewatch the holiday classic “Home Alone” and you might find yourself distracted from the chaos of a child battling burglars by a nagging question: How did the McCallister family afford their sprawling home? The Times posed that question to economists, who dug into data on housing costs and mortgage rates of the 1990s and found that yes, the McCallisters were wealthy — they would have been in the top 1 percent of households in the Chicago area.
A swag bag given to Golden Globe nominees is worth up to $500,000, The Cut reports.
A judge ordered a “Lord of the Rings” fan to destroy his sequel to the series after finding it violated copyright protections.
Roast a whole squash with chickpeas and tangy yogurt.
Bring ghost stories back to Christmas with this tradition.
Shovel snow without straining your back.
Buy this deep-tissue massager. (It’s rough but effective.)
Here is today’s Spelling Bee. Yesterday’s pangrams are blockable, cookable and lockable.
And here are today’s Mini, Wordle, Sudoku and Connections.
Thanks for spending part of your morning with The Times. See you tomorrow. — David and Ian
P.S. Our colleagues in Games — who make the crossword, Spelling Bee, Connections and more — were recently profiled in Vanity Fair.
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David Leonhardt writes The Morning, The Times’s flagship daily newsletter. He has previously been an Op-Ed columnist, Washington bureau chief, co-host of “The Argument” podcast, founding editor of The Upshot section and a staff writer for The Times Magazine. In 2011, he received the Pulitzer Prize for commentary. More about David Leonhardt
Ian Prasad Philbrick is a writer for The Morning newsletter. More about Ian Prasad Philbrick
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