Intense debate has accompanied the decision by the Supreme Court to review the decision by Colorado’s highest court to bar Donald Trump from the state’s primary ballots based on Section 3 of the 14th Amendment — about the precise meaning of the word “insurrection,” the extent of Mr. Trump’s culpability for the events of Jan. 6 and other legal issues.
I’m not going to predict how the Supreme Court will rule, or whether its ruling will be persuasive to those with a different view of the law. But there’s a critical philosophical question that lies beneath the legal questions in this case. In a representative democracy, the people are sovereign, and they express their sovereignty through representatives of their choice. If the courts presume to pre-emptively reject the people’s choice, then who is truly sovereign?
The question of sovereignty was central to the purpose of the 14th Amendment in the first place. The Civil War — unquestionably an armed insurrection — was fought because of slavery. That was the reason for the war.
But its justification was a dispute over sovereignty, whether it resided primarily with the people of the individual states or with the people of the United States, who had established the Constitution.
The answer was settled on the battlefield, but it was ratified through the 14th Amendment, which defined who is a citizen of the United States and established that the “privileges or immunities” of same supersede any state laws that might abridge them. From now on, there would be no ambiguity: Under the Constitution, the people of the United States are sovereign, and this sovereignty supersedes the sovereignty of the people of the individual states whenever the privileges and immunities of the former are in conflict with the will of the latter.
Section 3 of that amendment was similarly enacted in order to secure federal supremacy. Rebel officers might well have retained strong popular support in the former Confederate states, but Section 3 prevented the rebellion from being continued by electoral means. The people of South Carolina might prefer to be represented by former rebels, but the people of the United States, whose sovereignty trumps South Carolina’s, forbid it.
Whose sovereignty, though, trumps the people as a whole?
Donald Trump is the overwhelming favorite to win the Republican nomination for president and has a close to even-odds chance of winning the general election. That would seem to have no bearing on his eligibility to run. If a majority of the country wanted Barack Obama or Arnold Schwarzenegger or Selena Gomez to be president, it would be out of luck. The Constitution renders them ineligible: Mr. Obama has already been elected twice, Mr. Schwarzenegger was not born a U.S. citizen and Ms. Gomez is under 35 years old.
For that very reason, though, those individuals aren’t likely to run — and if they did try to run, their ineligibility would be manifest, recognized by everyone. Similarly, former Confederate officers and officials, by serving in the Confederacy, had explicitly declared themselves insurrectionists. Congress passed a broad amnesty in 1872 to lift the penalties associated with the involvement of most in insurrection, including that imposed by Section 3 of the 14th Amendment; some individuals not covered by the amnesty petitioned successfully for the restoration of their civil rights, and in other cases the prohibition was simply not enforced. But the essential fact of participation in the insurrection was not in dispute.
The situation with Mr. Trump could not be more different. An overwhelming majority of his party, and apparently about half of the country as a whole, considers him to be eligible to be president again. Moreover, these voters believe this even though, as President Biden said recently, “we saw with our own eyes” what happened on Jan. 6.
I count myself among those who consider Mr. Trump to be manifestly unfit to serve in any office ever again because of his actions on that day, even if he is not held criminally liable. But being unfit is not the same thing as being ineligible. What makes the Colorado Supreme Court — or any court — believe that it has a privileged understanding of those events that is beyond the capacity of the public to discern?
Perhaps the public is misinformed, or refuses to let itself be accurately informed, even at this late date, about what happened. The need for expertise and deliberation is why we have a representative democracy; the people do not act directly to make laws, but act through their representatives.
It’s notable in that regard, then, that impeachment — the remedy the Constitution provides for a president who violates his oath of office — does not involve the courts but the people, acting through their representatives. And the court of the people already had the opportunity to weigh in on Mr. Trump’s culpability for the events of Jan. 6. He was impeached an unprecedented second time by the House of Representatives for his actions on that day. But in the trial that followed in the Senate, Mr. Trump was acquitted.
That does not mean he is innocent. But it does mean that the Colorado Supreme Court has, in effect, declared that it outranks the Senate, and can overrule that body’s decision.
Some Republican senators, including the minority leader, Mitch McConnell, effectively asked the courts to do just that during the impeachment debate. Arguing that they had no authority to try a president whose term had ended, they refused to consider the facts of the case. But this was not a principled view. The Senate had already voted separately on the question of jurisdiction, and a majority determined that they did have the ability to try a president whose term had ended. Once that question was settled by the Senate itself, senators who thought Mr. Trump was guilty, including those who voted the other way on the jurisdictional question, could vote their consciences on the matter at trial.
Since the senators still voted to acquit, it must be because they did not think he was guilty, or did not deserve punishment for his guilt. Or, reflecting gross cowardice, perhaps they did not want the responsibility for convicting him, and preferred the courts to shoulder that responsibility instead.
That’s precisely what the Colorado Supreme Court has decided to do. But in so doing, it has usurped the proper prerogative of the people. It is saying, in so many words, that the people’s representatives got it wrong in the impeachment trial, and the people themselves are incapable of seeing what is in front of their eyes. Therefore the court must save the people from the possibility of making a catastrophically wrong decision.
Democracy cannot be saved in this fashion, not even from the threat of a demagogue with contempt for the rule of law. It can be saved only by democratic means. If the people’s representatives failed to do their duty, as they did in Mr. Trump’s impeachment trial, the last line of democracy’s defense is the sovereign people themselves. At the point that we cannot trust them, democracy is dead already.
Noah Millman writes the newsletter Gideon’s Substack and is the film and theater critic at Modern Age. This article originally appeared in The New York Times.
