UPDATED: Rejecting the Politics of the Pitchfork: Why We Must Support Banning Trump and His Confederates from Every Ballot.

UPDATED 1/6/23: I read this opinion article by Jamelle Bouie at the New York Times and found it a very useful amendment to my thinking in this post. I will quote from it at length with highlights and commentary at the bottom of this post.

Dr. Tim Snyder is one of my favorite historians. He is an expert in several periods and regions, but most relevant to America in 2024, he is an expert in authoritarian movements and how they come to power.

I have expressed often that we should seek to ban Trump from the ballot in 2024 (and the rest of his life, along with any others who participated in insurrection on #Jan6) and not consider the political effect or terroristic repercussions of MAGA violence and threats, nor the so-called ‘martyrdom’ of Trump by his supporters, possibly further intensifying Trump’s support among his existing partisans.

My reason is simple: that’s what our Constitution says we should do and we simply MUST follow where the Constitution plainly leads. No one has so clearly laid out the case for WHY doing so is imperative better than Dr. Snyder does in his latest Substack post entitled “The pitchfork ruling’. Also very good and relevant is his immediately prior post, ‘Trump cannot run for office’. I have added some emphases in bold for those wishing to scan quickly, but otherwise this is a simple repost of his Jan 1 post:

Donald Trump cannot be a candidate for any state or federal office in the United States of America.  Section Three of the Fourteenth Amendment of the Constitution makes this plain.  No office-holding insurrectionist can return to office.  The language is clear, and the facts of his case are not in dispute.

The Colorado Supreme Court has ruled to this effect, and the United States Supreme Court is now called upon to review its finding (in Anderson vs. Griswold).  In my last post, I addressed arguments against the Constitution that I heard or read in the Midwest over the holidays.  In this essay, I address the anti-Constitutional discourse that appears in the media: that the Constitution should be displaced by the fears of people who appear on television. 

This form of opposition to the Constitution poses as expertise.  It takes the form of advice to the Court: find some way to allow Trump to be on the ballot, because otherwise people will be upset.  Because we are used to hearing endless conversations about politics on television, where everyone seems to be a political advisor, it can seem normal to reduce sections of the Constitution to talking points.  But we must pause and consider.

In fact, rejecting the legal order in favor of what seems to be politically safe at a given moment is just about the most dangerous move that can be made.  It amounts to advocating that we shift from constitutional government to an insurrectionary regime.  Indeed, it amounts to participating in that shift, while not taking responsibility for doing so.  Let me try to spell this out.

In advising the Court to keep Trump on the ballot, political commentators elevate their own fears about others’ resentment above the Constitution.  But the very reason we have a Constitution is to handle fear and resentment.  To become a public champion of your own own fears and others’ resentments is to support an insurrectionary regime.

The purpose of the insurrection clause of the Constitution (the third section of the Fourteenth Amendment) is not to encourage insurrections!  If we publicly say that that Supreme Court should disregard it because we fear insurrections, we are making insurrections more likely.  We are telling Americans that to undermine constitutional rule they must only intimate that they might be violent.  

To advocate pitchfork rulings is to endorse regime change; to issue pitchfork rulings is to announce regime change. 

Even in the short run, though, it is foolish to imagine that a pitchfork ruling would avoid resentment.  Every time Trump has run for president, including this time, he has signaled that he would not accept the results if he lost.  If he is on the ballot in 2024 and loses, some people will feel resentment.  If he is on the ballot and wins, other people will be upset; and Trump will find reasons to make his own people upset.  So even if the Constitution were just an anger management pamphlet, nothing would be gained by procrastination. 

And much that is very essential would be lost: the rule of law, and the authority of the Supreme Court.  In the scenario in which Trump wins, the fact that he was on the ballot will have already discredited the Supreme Court.  This makes a Trump administration (or anyone else’s in similar circumstances) much more perilous.  The counsel of cowardice — to fear Americans, and to issue judgements on the basis of fear — is bad not just for the idea of constitutional order, but for the institutions that make it possible, and for the Supreme Court in particular.

To see this, we have to recall how constitutional regimes have been defeated in the twentieth and twenty-first centuries.  How does the rule of law become something else?  First comes the acceptance that one person is not subject to the rule of law, for whatever bad reason — that he was in office; that he has violent supporters; that he is charismatic; that we are cowards.  Once that move is made, once that hole is opened, the person so sanctified as a Leader has been empowered to change the regime itself, and will predictably try to do so. 

As that person attempts regime change from a position of executive power, he will (again, utterly predictably) try to discredit the other branches of government, the legislative and the judicial.  This will involve mocking them. 

We can refer to the familiar example of Germany in the 1930s if we wish, but we need not: this is the pattern in authoritarian transitions all around us right now.  The executive (the president, in our system) will claim extensive powers on the basis of existing laws (Trump has already signaled this), and then argue that he personally cannot be restrained by the courts (as Trump’s lawyers have argued in another case).  After a while, the makers and the interpreters of laws will seem irrelevant, because they are.  Checks and balances cease to function, and a constitutional order becomes something else: a dictatorship based on the threat of violence.

The Supreme Court now faces a test.  The Constitution says what it says, and the Colorado Supreme Court has ruled as it has ruled: that Trump may not appear on ballots in the state.  In its ruling, the Colorado Supreme Court relied precisely on the arguments that conservative Supreme Court justices claim to accept, arising from the plain language of the Constitution and the intentions of those who wrote its provisions. 

Because of the clarity of the language and the explicit commitments of the justices, a failure to affirm the Colorado ruling will be seen as extra-legal, by pretty much everyone.

The advocates of a pitchfork ruling, who can be found all over the political spectrum, will nod their heads: yes, the justices of the Supreme Court are just like us; no better and no worse; just people with human failings and fears; ultimately all that matters in life is convenience.  This position, while it seems friendly to the Court, removes all dignity from its justices, and kicks away the foundations of the rule of law. 

There are many Americans on the Left or Center who do not accept that counsel of cowardice, who disagree with textualism and intentionalism as the modes of interpreting the Constitution, but who agree that they are modes of interpreting the Constitution.  Should the justices who have made an ostentatious show of these modes of interpretation reject them utterly in a case of such clarity, such people on the Left and Center will continue to support the rule of law.  But they will find it difficult to believe that the Supreme Court is doing the same. 

There are conservatives who believe in textualism and intentionalism; among them are the legal scholars who have produced the best and clearest arguments in favor of the application of the insurrection clause to Trump.  Should the conservative justices of Supreme Court reject their arguments, such conservatives will find themselves in a similar position: they will continue to support the rule of law, but will find it hard to believe that the Supreme Court is doing so. 

Elsewhere on the Right, there are people knowingly making the bad arguments I discussed in earlier posts; should the Supreme Court endorse those bad arguments, they will assume that their own cynicism is shared by Supreme Court justices.  On the insurrectionist far Right, there is no concern for the rule of law, but rather the belief that everything in the end is a matter of bluster and intimidation.  For them, a pitchfork ruling would just be confirmation that waving pitchforks is the right thing to do.

Should the United States Supreme Court fail to uphold the ruling of Colorado Supreme Court, in other words, there will be no group of Americans who will conclude that it has upheld the law.  Reasoning from different assumptions and different commitments, almost everyone will find their way to a broad American consensus: the Supreme Court acted from convenience and cowardice.  People who are afraid and people who are not afraid; people who threaten and people who do not threaten; people of various legal and political convictions: all would understand such a verdict as a pitchfork ruling. 

And here’s the rub: correctly.

In a regime change towards authoritarianism, the executive mocks the courts.  So it does not help when the courts make themselves laughable.  The Supreme Court, in its consideration of Anderson vs. Griswold, risks making a mockery of itself.  And ridicule can be an element of an overall political transformation. 

The point of sketching out this scenario is not to say that it is inevitable.  It is not.  The justices of the Supreme Court have choices to make.  And our actions matter, no matter what the justices do.  But our actions are informed by our concepts. 

We should be aware of what sort of politics we are practicing, in the service of what kind of regime.  If we think that the Constitution yields to our fears and others’ resentments, we are acting politically, and in a certain direction: we are contributing to an authoritarian transition, where the rule of law is displaced by threats of violence.  If we say that the Constitution has a dignity beyond fear and resentment, we are acting politically, in another direction: towards the maintenance and improvement of the rule of law.

Tim Snyder, Thinking About, Jan 1, 2024

So, this is precisely why – regardless of ANY possible political or security consequences – we MUST support banning Trump’s candidacy through the courts. Doing so upholds the rule of law and the centrality and dignity of our Constitution, the rule of law, and our Courts.

Failing to do so by allowing Trump’s illegal and unconstitutional candidacy to proceed unchallenged due to political expedience, strengthens the MAGA movement’s momentum to carry us further away from the rule of law and closer to a fatal undermining of our constitutional order.

Ultimately, those commentators who say we have to defeat the MAGA movement at the ballot box are correct: we must ALSO do that. And we will. There will be many candidates in the future who will seek to carry the MAGA banner who did not, in fact, participate in the insurrectionary incident on #Jan6.

But neither are mere electoral victories sufficient: we can and must also enforce the plain language and intent of our Constitution and support the rule of law as best we can against insurrectionists who have disqualified themselves from office by their own actions – including most urgently their leader Donald Trump.

Jamelle Bouie’s reflections on the wisdom and political effect of disqualifying Trump under 14A§3 is illuminating:

The real issue with disqualifying Trump is less constitutional than political. Disqualification, goes the argument, would bring American democracy to the breaking point.

In this line of thinking, to deny Americans their choice of presidential candidate would destroy any remaining confidence in the American political system. It would also invite Trump’s allies in the Republican Party to do the same to Democrats, weaponizing Section 3 and disqualifying candidates for any number of reasons. Disqualification would also give far more power to the courts, when the only appropriate venue for the question of Trump is the voting booth.

But these objections rest on a poor foundation. They treat Trump as an ordinary candidate and Jan. 6 as a variation on ordinary politics. But as the House select committee established, Jan. 6 and the events leading up to it were nothing of the sort. And while many Americans still contest the meaning of the attack on the Capitol, many Americans also contested, in the wake of the Civil War, the meaning of secession and rebellion. That those Americans viewed Confederate military and political leaders as heroes did not somehow delegitimize the Republican effort to keep them, as much as possible, out of formal political life.

What unites Trump with the former secessionists under the disqualification clause is that like them, he refused to listen to the voice of the voting public. He rejected the bedrock principle of democratic life, the peaceful transfer of power.

The unspoken assumption behind the idea that Trump should be allowed on the ballot and that the public should have the chance to choose for or against him yet again is that he will respect the voice of the electorate. But we know this isn’t true. It wasn’t true after the 2016 presidential election — when, after winning the Electoral College, he sought to delegitimize the popular vote victory of his opponent as fraud — and it was put into stark relief after the 2020 presidential election.

Trump is not simply a candidate who does not believe in the norms, values and institutions we call American democracy — although that is troubling enough. Trump is all that and a former president who used the power of his office to try to overturn constitutional government in the United States.

Is it antidemocratic to disqualify Trump from office and deny him a place on the ballot? Does it violate the spirit of democratic life to deny voters the choice of a onetime officeholder who tried, under threat of violence, to deny them their right to choose? Does it threaten the constitutional order to use the clear text of the Constitution to hold a former constitutional officer accountable for his efforts to overturn that order? The answer is no, of course not. There is no rule that says democracies must give endless and unlimited grace to those who used the public trust to conspire, for all the world to see, against them. Voters are free to choose a Republican candidate for president; they are free to choose a Republican with Trump’s politics. But if we take the Constitution seriously, then Trump, by dint of his own actions, should be off the board.

Not that he will be. The best odds are that the Supreme Court of the United States will punt the issue of Section 3 in a way that allows Trump to run on every ballot in every state. And while it will be tempting to attribute this outcome to the ideological composition of the court — as well as the fact that Trump appointed three of its nine members — I think it will, if it happens, have as much to do with the zone of exception that exists around the former president.

If Trump has a political superpower, it’s that other people believe he has political superpowers. They believe that any effort to hold him accountable will backfire. They believe that he will always ride a wave of backlash to victory. They believe that challenging him on anything other than his terms will leave him stronger than ever.

Most of this is false. But to the extent that it is true, it has less to do with the missed shots — to borrow an aphorism from professional sports — than it does with the ones not taken in the first place.

Jamelle Bouie

I think that Bouie’s insights are largely correct. Trump should not be allowed to reject the voters’ will twice. He’s signaled ever since his first campaign in 2016 that he would not accept any democratic outcomes in which he did not prevail. We must not allow him another try. If a major faction of the Republican electorate doesn’t like that, well… too fucking bad. I’m willing and ready to deal with those consequences.

I’m NOT willing to deal with the consequences of allowing Trump to run repeatedly and reject any loss for the rest of his life. Does ANYONE think that if Trump is defeated again in 2024 that – if he is still alive – he won’t run again in 2028, and reject any outcome but victory then, too? At some point we have to draw a line, and that line is the Jan6th insurrection.

If Republicans can manage to convince enough of our courts with actual proof that one of our candidates has committed an insurrection, then – by all means! – keep that person off the ballot. The idea that they could possibly achieve such an outcome against Biden is absurd. The GOP’s latest propaganda claiming that Biden’s immigration policies are tantamount to insurrection are facially absurd: they are merely trying to brush us back from disqualifying Trump with a ridiculously false equivalence. Don’t let their nonsense rattle you.