Why Our Supreme Court Should Let the States Disqualify Trump

“Evil triumphs when good men do nothing.” — Modern proverb falsely attributed to Edmund Burke but paraphrasing the words of John Stuart Mill, a key Founder of the Western Enlightenment

“The best lack all conviction, while the worst
Are full of passionate intensity.” — William Butler Yeats, “The Second Coming”

In my most recent post, I analyzed the Disqualification Clause (the “Clause”) in Section 3 of the Fourteenth Amendment from a legal and historical perspective. My primary goals were two. I sought to refute the nonsense memes circulating in the mainstream media that the Clause requires additional legislation for enforcement, or that it doesn’t apply to candidates for president.

I also sought to demonstrate how, in our federal system, in which the several States control and manage both state and federal elections, there can be no one-size-fits-all decision on the subject of disqualification. Not only does disqualification depend on the details State law, electoral rules, procedures and practice. The Supreme Court is not, and can never be, a finder of fact because it is an appellate court, not a trial court. It has to depend on judges and juries in lower courts to find facts and can only (lawfully) overturn their findings for procedural of evidentiary error or for failure to reflect substantial evidence.

But an erstwhile colleagues of mine at the University of Akron School of Law, Professor William Rich, made a key point in a private email. If it so desires, the Supreme Court has a more plausible way of refusing to disqualify Trump.

The Court could interpret Clause’s the legal language to hold that Trump did not “engage in” the Insurrection that took place on January 6, 2021, and thereafter, even though he incited and promoted it. And it can rule that, while Trump may have given “aid and comfort” to the insurrectionists, they were not “enemies” of the United States as the Clause requires. (The Court has to reach both these conclusions in order not to disqualify Trump.) The Court could base the latter conclusion on the idea that the Clause’s two parts focus on different things: “insurrection” as part of domestic treachery, and “aid and comfort” to “enemies” that are foreign or foreign-inspired. Otherwise, it could reason, the two parts would be redundant.

I don’t myself subscribe to this rationale for refusing to disqualify Trump. (Nor do I think Professor Rich does.) I merely point out that this putative ruling would not do violence to the Clause’s language and historical context, at least not as much as the false memes, indulged by our media, that the Clause requires legislation for enforcement and/or does not apply to the presidency.

Eventually, advocates for our democracy will have brought forward evidence of Trump’s inciting, encouraging, and inspiring (if not ordering) the January 6 Insurrection. They will adduce evidence of his failure for hours to stop the violence at the Capitol while it was ongoing, and while he was watching it unfold on TV! They will reveal his efforts for weeks and months afterward to keep the Insurrection alive with his “Stop the Steal” movement, which continues to this day. With all this evidence properly introduced, I believe the better and only proper decision would be to disqualify Trump.

But the Clause’s precise language gives the Court an excuse to take the cowardly way out and hold that the operative language regarding engaging in insurrection doesn’t apply to Trump’s conduct. At least such a holding would not be a self-evident embarrassment to the very notion of impartial judging.

I have no crystal ball and thus no way of knowing whether the Court will take this cowards’ way out. This essay addresses another question entirely: should it? Would the Supreme Court’s decision to let voters decide Trump’s electoral fate best preserve democracy in these United States? Or would such a decision help destroy American democracy forever?

These are not questions of law. They are primarily practical questions. They involve something that judges ought to hold dear but lately seldom do: insight into the practical interplay of cause and effect.

It’s not as if we don’t have historical precedent. We do. Nearly all our species’ recorded history is a dreary succession of kings, monarchs, tyrants, dictators—all male, except for the occasional queen. (The fact that a one of the rare queens—Elizabeth I of England—was one of the best leaders in human history tells a lot about the intrinsic value of alpha-male rule.)

This dismal fact arises from our evolutionary history, in which alpha male apes ruled our small clans of thirty or so individuals with force, personal whim, and individual violence. Today, leadership by a single alpha male is wildly inappropriate to our modern nations of hundreds of millions or billions of individuals, whose proper government requires vast learning and expertise that no single individual can possibly possess.

Yet throughout all of our species’ dismal recorded history, only a single nation had a democracy with power, influence and global scope comparable to ours: ancient Rome. In comparison, the democratic Greek city-states were tiny, minor powers. And even at its height, the British Empire was nothing like the global hegemon that the US has become today, or that Rome was in its heyday.

So can we look to ancient Rome to see our own possible future? Maybe.

Late in its own history as a democracy, Rome endured a demagogue much like our own Donald J. Trump. His name was Julius Caesar. Unlike Trump, Caesar was a conquering military general. He wrote a book about his conquests still read today. But there are nevertheless important parallels between the two men and their times.

In both cases, there was a solid practical basis for the popular discontent that the demagogues reflected, amplified and used to propel their own ambitions. In Trump’s case it was our oligarchs’ sale of our factories and most of our skilled workers’ jobs to China. In Caesar’s it was Rome’s reneging on its promise to give its soldiers an acre of land and peaceful retirement if and after they survived twenty years of service. It’s not at all hard to imagine Caesar saying—in Latin of course—“I am your retribution!”—as he rallied his discontented troops in rebellion.

Both Trump’s and Caesar’s demagoguery arose in times of increasing civic violence. Today we suffer the use of firearms of war (unknown in Caesar’s day) to kill innocent civilians at random, in massacres that last year reached the level of nearly two per day. In Caesar’s time, Rome forced outlaws and political undesirables to fight each other to the death in the Coliseum. It regularly staged “mock” battles, with real blood and death, as public spectacle. And it let early Christians be killed and devoured by hungry lions, also as public “entertainment.” So we can accurately describe both ancient Rome and the US today— albeit in very different ways—as cultures suffering orgies of violence.

But Rome’s democracy was vastly different from ours today. It had nothing like our system of courts, let alone our Supreme Court. Roman courts were minor appendages of government set up to punish and control criminals and renegades.

Ancient Rome also had nothing like our President or our Executive Branch, with all its administrative agencies. What we today call “Executive” power was held in Rome only temporarily, by a “dictator”—yes, that exact word, in Latin!—appointed by the Senate during times of national emergency. (Later, as Rome morphed from a true democracy to an empire, the Emperor assumed that role.)

In ancient Rome, the Senate held all the reins of governmental power in the name of Rome’s people. The government had as it symbol a standard that Roman legions carried in triumphal parades and into battle. It consisted of just four letters, “SPQR,” the initials of the Latin words for the Senate and the People of Rome—the ultimate sources of power in ancient Rome’s democracy.

So of what we today call the “three branches” of government, ancient Rome had only one: the legislative branch. The Roman Senate was the seat of all of Rome’s political power.

So what did it do when Caesar challenged the very foundations of Rome’s democracy and the Senate’s power? It killed him. Or at least some of the more daring Senators did. None of the killers was ever charged with murder or brought to justice.

I hasten to add that I am not advocating anything of the like for Trump. Even if it were moral, legal and wise—all of which it is not—Trump’s assassination would be likely to cause widespread violence in the short term.

In our own nation, today, assassination or other violence is completely unnecessary. All we have to do is use the law the our Second Founders left us after the most terrible war (for us) in our national history.

Unlike ancient Rome, we have an existing Executive and a Supreme Court. Together, they can remove Trump as an existential threat, or let our States do so, and so insure the continuation of our species’ second-ever globe spanning democracy. They can do so through entirely legal means, without violence, simply by doing their jobs.

All the Supreme Court in particular has to do is apply the Disqualifying Clause as its post-Civil-War drafters meant it to be applied. It must save our democratic government from a talented demagogue who incited, aided and abetted a violent insurrection for the purpose of overthrowing the democratic order and prolonging his own personal power.

Here history has another tale to tell. After Caesar’s assassination, ancient Rome muddled along for nearly another half a millennium. Roman Senators killed Caesar in 44 B.C., and Rome survived until Alaric the Hun sacked the “Eternal City” in 410 A.D.

Alaric achieved that feat partly with the aid of once-foreign soldiers, which Rome had “imported” to replace the native ones who had been placated with retirement. The foreign soldiers, with concealed personal loyalty, turned against Rome when given the chance.

Herein lies another history lesson that needs heeding. Whatever the ultimate disposition of Trump’s demagoguery, we as a nation must attend to the real discontent of America’s skilled workers, whom our oligarchs have left to languish and die deaths of despair by selling their factories, jobs and futures abroad for profit.

If we do not assuage that discontent, those millions of displaced workers and their disgruntled descendants will remain as much a threat to our own democracy as the imported foreign soldiers posed to ancient Rome. President Biden is trying, in his own way, to reduce that threat by supporting strong labor unions, strengthening antitrust law, and at least considering reigning in the as yet totally unrestrained economic and political power of our tech monopolies, the anti-progressive equivalents of the railroads, steel and oil monopolies of our First Gilded Age.

But history’s most important lesson is stark and clear. We don’t have a “one-branch” democracy like ancient Rome’s. Ours is much more sophisticated and better developed. We have clear written law that disqualifies insurrectionists and traitors from holding high office. We have an independent Executive and fifty sovereign States to enforce that law, and a large and complex system of courts to apply it, without violence or unrest. Our Executive is doing its job of enforcement admirably. All we need is a Supreme Court that recognizes its historic duty and acts within its clear authority to prevent the worst from happening, without further violence or unrest.

The practical alternative is also stark and clear. If Trump remains on the ballot in all states, he has a good chance of winning the White House again. He will do so, if at all, by winning a few key “battleground” states by small margins, while losing the national popular vote by a margin of millions, just as he did in 2016.

Trump has told us, through his own mouth and in his own words, exactly what he will do in that event. He will use his power as president to wreak vengeance on his political opponents, in the name of justly aggrieved skilled workers thrown out of dignified and well-paid work by “globalization” and its false economic promise. He will pardon all his cronies accused or convicted of federal crimes, including all the participants in the January 6 Insurrection. He will suborn the Department of Justice to prosecute and sue his political enemies and business rivals. He will appoint heads of our military and administrative agencies based primarily on their personal loyalty to him, not their knowledge, previous experience, competence or expertise. He will then use all the concentrated power that results to destroy his political opponents and the so-called “Deep State”—the administrative bureaucracy and the courts that protect our human rights from infringement, our air, soil and water from pollution, our women and many minorities from discrimination, and our planet from runaway heating.

In other words, Trump will use all the power of the presidency and the spell he has cast over a huge minority of our people to destroy all semblance of popular democracy in the United States, and to subject everything and everyone to his mercurial, narcissistic and vengeful personal will. In the process, he will suborn, misuse and ultimately destroy our huge federal bureaucracy, which is the practical embodiment of modern science for day-to-day governing.

Think about that. The Western Enlightenment began when when Martin Luther and his Protestant Reformation released our species from the Catholic Pope’s totalitarian grip on human thinking. It gained speed when Galileo Galilei “invented” modern science with his heliocentric theory of our Solar System. Eventually, the Enlightenment brought us the idea of the freedom and autonomy of each human individual, and democratic parliaments and senates began to restrict and replace kings, emperors, dictators and other tyrants. The result, eventually, was the United States, which took democracy and the distributed governance of scientific expertise as far as they have gone in our species’ history, but which was and is deeply flawed as a result of its foundational dependence on slavery.

Now that entire enterprise is at stake. Just as Caesar put Rome’s democracy at risk with brilliant demagoguery that Roman Senators ended with decisive action, so our own Demagogue has put our species’ second great experiment with a mighty democracy at risk. Along with it, he puts at risk the expertise and wise government of our huge federal bureaucracy, filled with Ph.D.s and other real experts, which he wants to convert into a personal fiefdom of sycophants.

Does anyone, including the Justices, think that our big, powerful, industrial and populous blue states will accept all this meekly, like lambs going to the slaughter? Or will Trump’s attempt to impose his personal whim on a great nation facing existential challenges produce the greatest civil unrest, the most massive protests, and possibly ultimately dissolution by secession or a Second Civil War?

The great Justice Oliver Wendell Holmes once opined that “A man is presumed to intend the natural consequences of his acts.” The good justices had better start thinking hard about natural consequences—cause and effect—before making a decision to duck the last clear chance to use our law to avoid the destruction of our Republic arising out of the Demagogue’s re-election, inevitably by a minority of all our nation’s voters. My next essay in this series will explore these points of possible cause and effect in more detail.


For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

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