The Fourteenth Amendment’s Section 3 and the Defense of American Democracy

I have felt compelled to delay my wrap-up response until we got through the events of the last week. Readers who, like me, are Americans will understand why. Here we are in Cato Unbound developing our thinking about how a democratic society copes with its antidemocratic factions, while all around us the very conflict we have been contemplating is playing out in real time.

My views are colored by last week’s events. The president of the United States attempted to suborn a state’s officials to negate or change the voting outcomes in their state. (This may have happened in other states as well.) The president then used a public event to call directly for mass action that amounted to an assault on the Congress in the Capitol building on January 6. Some members of his audience took him to mean that the invading throng should not merely attempt to intimidate (or assault) members of the opposition party but also Republican members of Congress who were insufficiently resolved to challenge, delay, or halt the (previously regarded as merely formal) counting of electoral votes—the final step in certifying an election result.

As I write this, we are learning more facts about how close the invaders came to disrupting and damaging this final step in our process of certifying a victor in the presidential election. We’re also learning what the invaders were thinking, what some of them hoped to do (which ranged from merely “being heard” to possible assault, kidnapping, torture, and murder of members of Congress and others). A handful of people died as a result of the president’s call to “patriots” to invade the Capitol.

Not to put too fine a point on it, but this whole series of events underscores how important it is that our tolerance for dissent—including antidemocratic dissent—be generous, in line with freedom of expression values, yet also limited, because an open society requires “ordered liberty,” not the kind of disordered “liberty” that leads to invasions and disruptions of legislatures and elections.

In light of these developments, I’ve been compelled (like many other Americans) to look more closely at Section 3 of the Fourteenth Amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

That’s a remarkably broad provision. If you ever served in any governmental role—whether at the federal or state level—and “engaged in insurrection or rebellion” against the constitutional government of the United States (“or given aid or comfort to the enemies thereof”), you are barred from holding any federal or state office unless each house of Congress votes with a two-thirds majority to remove that bar. Note that this is a distinct penalty from the possible penalties for impeachment—that is to say, it’s broader. A federal officeholder impeached and convicted in Congress may be both removed from office and barred from holding future federal office (as I discussed in my initial response essay). But under the Fourteenth Amendment (and the newer, stronger federal unity that the Civil War Amendments imposed), a person who, while holding federal office, either “engaged in” or gave “aid or comfort” to insurrection is supposed to be barred from holding even state-level elected or appointed government positions. (The Fourteenth Amendment is careful to include not only “any state Legislature” but also any “executive or judicial officer of any State”—at the very least, anyone in charge of decision-making in any of the three branches of government.)

It’s difficult even with the most generous reading of the facts as we have them today, the week after the failed coup attempt, to deny that President Trump gave “aid or comfort” to insurrectionists. He persisted in doing so even after the insurrection failed. By the terms of the Fourteenth Amendment’s Section 3, not to mention the specific federal statutes 18 USC 2383 and 18 USC 2384 taken together, it seems possible that he may face one or more bars to serving in future federal offices, even if he should want to run again for president in 2024.

In other words, our system already contemplates limiting the democratic participation of those who have acted antidemocratically. What’s more, when one is holding an office such as the presidency, in which merely making certain statements (or tweets) may result in pardons or executive orders, the antidemocratic acts may be speech acts. (When the president speaks, it may compel action, or amount to action, in ways that ordinary communicative speech doesn’t.) Our system may reasonably bar antidemocratic actors from holding positions in which their speech may amount to governmental action.

So what I’ve gotten to here, via a circuitous route perhaps, is that I find myself disagreeing with Kogelmann when he says “I think restricting the participation of the antidemocratic is inconsistent with basic democratic principles.” We may want to say the something that cuts in the opposite direction—that when antidemocratic actors use their power to undercut democratic principles, it may be appropriate to restrict their participation, perhaps permanently. Kogelmann explains at one point that “our choice is between the certainty of unequal influence (which happens if we preemptively exclude those we deem antidemocratic) or the possibility of unequal influence (which may or may not happen if the antidemocratic party actually wins election).” But when the certainty of antidemocratic intentions is well-established by past acts—as it clearly has been in President Trump’s case—can we really say we’re uncertain what he will do if he retains governmental power or acquires it again?

What I believe I detect in our system as it stands is an effort to strike Karl Popper’s conception of a tolerance of antidemocratic ideas that is not unlimited tolerance—that properly results in taking steps to stop antidemocratic forces from overrunning democratic institutions.

I find myself strongly in agreement with Jason Kuznicki’s argument that the “problem of democratic exclusion is a subset of a larger problem, namely that of unequal civil rights.” That’s surely true, and, like Kuznicki, I remain unconvinced “that it makes sense to treat the franchise as the prime mover of the set.” Kuznicki spells out how being able to vote doesn’t automatically resolve what a repressive society may be doing to your particular subgroup or demographic. That said, I’m heartened by the recent Senate runoff election in Georgia—not so much because it resulted in Democratic victories in the state’s two Senate races as because it demonstrated an occasion in which the power of the franchise did not merely cause governmental change but also was an issue at the very heart of the election. Georgia’s incumbent officials have labored for years to make it more difficult for its minority citizens to vote. It is satisfying to see the state’s minority voters turn out in force to turn out antidemocratic incumbents.

I find myself in some agreement but also in some disagreement with Kogelmann’s followup response. Let’s take my major disagreement first. Kogelmann writes that “If the system of government is designed properly, then there is no need to restrict the participation rights of the antidemocratic.” Here I think he gives too much credit to design. My view is that governmental systems are analogous in some ways to the mathematical systems described by Kurt Gödel’s incompleteness theorems. That is, even the best-designed governmental systems are, like Gödel’s arithmetical systems, doomed to be incomplete or inconsistent if we try to base them on any basic set of axiomatic principles. Bear with me here—I’m only drawing an analogy—but I think Gödel’s discoveries hint at a fundamental truth, which is that even the best-designed governmental system is subject to being gamed and subverted by actors who exploit its incompleteness or inconsistency.

This has been President Trump’s practice throughout his administration—like the amateur burglar who walks down a neighborhood street trying every front door in the hope of finding one unlocked, President Trump has never encountered a presumed limit on his power that he did not attempt to test to destruction. It may be fairly said that earlier presidents have tested well-accepted norms and principles too—I can hardly deny this—but the testing-to-destruction approach to government seems to be a Trumpian innovation.

This means we can design the best government we can think of, with a Maginot Line of safeguards based on whatever the past abuses have been, but that’s no guarantee that future antidemocratic actors won’t find and seek new weaknesses.

And there always will be new weaknesses. What we have to do in anticipation of that development is try to strengthen individual rights and individual autonomy as much as possible, so that at least the polis has a fighting chance to restore ordered liberty when anti-democratic actors have labored to bring it down. This, I think, is what Kuznicki is getting at in his essay.

Kogelmann further writes, however, that he sees a limit to this approach: “In particular, constitutions designed to protect liberal rights will do so only if a sufficient number of persons populating the government are liberal. If there are not enough persons in government committed to the liberal project, then constitutional guarantees don’t mean much.”

That’s also surely true, and one of the great challenges of democratic governments is finding ways to enforce and revitalize and encourage a general shared commitment to democratic values. It seems clear that we’ve fallen short in the United States in this regard, given that some major fraction of the population believes that when their candidate loses, this in itself is evidence that the election was “rigged.” Kogelmann’s reminder that the Sedition Act of 1798 was breathtakingly antidemocratic is helpful here. Whatever we do to preserve ourselves from antidemocratic actors going forward, we dare not go so far as to suppress and punish dissent in a wholesale way. Better to distinguish between antidemocratic acts, which we can limit, and antidemocratic speech, which is generally allowed—except of course for government officials whose speech is itself a proximate cause of insurrection, sedition, and lawless violence.

Ghorayeb’s “wrap-up” is so generous to my earlier contribution that it feels almost churlish to take issue with her. Still, I must underscore one important difference I have with her view of where we are now. I respect her assessment that other administrations and other governments have lurched in antidemocratic directions from time to time. But she concludes that “by general liberal metrics, Trump was not a huge deviation from the norm when it came to antidemocratic behavior.” And I just can’t see it that way.

To be clear, even at the outset I disagreed with her view that Trump was no real departure from the status quo, although I didn’t draw so much attention to our differences before. But in light of Trump’s recent full-court press to overturn the election that didn’t give him the results he wanted—and to direct his loyalists to break into the Capitol and intimidate the House and Senate out of validating what all the evidence tells us are essentially sound vote counts—I have to say that Trump is, in fact, monstrously, aggressively different in kind as well as in degree from earlier presidents.

If any of dozens, or perhaps hundreds, of variables had been different (if the mob faction seeking to disrupt the Senate hadn’t been lured by the aptly named Officer Goodman away from the Senate chamber, for example), I might not feel entirely safe writing down the words I’m sharing with you today. And, to be frank, I’m not one hundred percent comfortable about it even so.

But what I’ve seen in the events of last week is proof, in my mind, that Popper was right both to support tolerance of antidemocratic ideas and to oppose unlimited tolerance of them. Yes, we need to hear criticism—even antidemocratic criticism—and respond to it when we can with reasoned debate. But the open society absolutely requires that there must be a baseline of democratic resistance to authoritarianism, no matter how tempting allegiance to any particular authoritarian may be.

And I here I must take a moment to praise President Trump’s two primary virtues—to wit, his short attention span and his incompetence at governing. Trump’s virtues saved us this time. But we dare not assume that the next would-be Trump will be quite so virtuous.

Also from this issue

Lead Essay

  • Mila Ghorayeb looks at liberal polities’ use of antidemocratic tactics against illiberal groups. She concludes that it is not necessarily paradoxical to limit political participation with a view to preserving an imperfect democracy, but that whether it is desirable or feasible are different questions.

Response Essays

  • Brian Kogelmann says that a democracy shouldn’t compromise on democratic participation. Allowing antidemocratic groups to participate runs the risk that they might win and restrict the franchise, but restricting their participation creates a new form of political inequality. It is therefore preferable to allow them to participate.

  • Rather than restricting antidemocratic groups, Jason Kuznicki proposes to safeguard democratic and other rights by articulating them in an impersonal way and making it constitutionally difficult for anyone to change them. Under such conditions, open participation by antidemocrats becomes less risky, and persecuted minorities can organize for their own protection.

  • Mike Godwin argues that democracies should tolerate antidemocratic activism—at least as an initial response. Yet democracies’ responses to antidemocratic activism need not end there. He urges the defenders of liberal democracy to better articulate how to respond to antidemocratic critiques. Such critiques need not lead us to abandon democracy, and at times they might even draw attention to genuine shortcomings in a democratic polity.