We can’t let MAGA ignore the parts of the constitution it finds inconvenient

Former President Donald Trump speaks during a commit to caucus rally, Wednesday, Dec. 13, 2023, in Coralville, Iowa. (AP Photo/Charlie Neibergall, File)

This article was originally posted on Edwin’s Substack newsletter on Dec. 21.

People I respect worry that disqualifying Trump via the insurrection clause of 14th Amendment would be bad for American democracy. They argue that the decision belongs to voters and any intervention by the courts would further rip us apart. It is a fair point. We saw on Jan. 6 what losing an election means to Trump and his supporters. I think people are right to expect even worse if Trump is not allowed to be on the ballot. But that does not mean we should ignore the constitution and permit him to run.

Democracy requires the rule of law. It does not require the rule of perfect law. Our Constitution is certainly not perfect — and tells us so at the top, when it urges us to create a more perfect union, and at the bottom when it tells us how to amend the document. We can have our democracy, and the opportunity to improve it, only while we have the rule of law. Instead of worrying that Trump supporters will feel cheated if the Constitution bars him from office, we should worry that anyone is saying the rule of law is best suspended in this dangerous moment.

The worry today is that a sizable minority of the population will not be allowed to vote for the candidate of their choice. Well, the majority of Americans voted for Al Gore and for Hillary Clinton only to be told that winning the vote didn’t matter. The Electoral College is far more damaging to our democracy than the ban on insurrectionists in the 14th Amendment. Yet, neither Mr. Gore’s nor Mrs. Clinton’s supporters stormed the Capitol. They did not threaten violence. They were deeply disappointed, but remained loyal to the country and the Constitution, and to the rule of law. If Mr. Trump and his supporters would do otherwise, well, that’s an insurrection, isn’t it?

The political battles of the 18th century that forged our nation required trade-offs. One of them, slavery, later plunged the nation into civil war. Another is ripping us apart now. The United States Senate creates an outsized and antidemocratic power in rural America. California holds 12 percent of our population but has the same 4% of the Senate as every other state, including Wyoming, home to less than two-tenths of a percent of the nation. Every voter in California and other populous states is discounted. Every voter in Wyoming and other rural states is over-represented.

The imbalance in the Senate is not just a math problem. It has tilted our democracy in ways that have become dangerous. The Senate is nearly evenly split, yet Democrats represent about 20 million more voters than Republicans. That was the case when the GOP controlled the Senate and confirmed the Supreme Court nominees who overturned Roe and a generations-long consensus that the Constitution was a living document that expanded American freedom. The undemocratic structure of the Senate is a bigger threat to our democracy than the ban on insurrectionists in the 14th Amendment. Yet, those of us in the majority have not torn the country apart because of this abuse of power. Instead, we have organized and campaigned, and worked to make change withing the structure of our democracy, not in opposition to it. If Mr. Trump and supporters would do otherwise because of a Constitutional provision they dislike, that sounds an awful lot like insurrection.

Then there is the prospect that Mr. Trump might actually win the contest if he is on the ballot. He might win, as he did in 2016, by losing the popular vote. He has promised, if he wins, to be a dictator on day one, to build concentration camps, to fill the federal government with partisans, to use the justice system to punish political opponents, and to suspend the Constitution. This would be, as even those worried about using the insurrection clause admit, fatal to our nation.

Are we now to say that the 14th Amendment’s ban on insurrectionists is the one part of the Constitution so dangerous to democracy that we should agree to ignore it? We should not. The flaws in our Constitution have given outsized power to a distinct minority. The majority has tolerated this situation because we believe in the rule of law. Now, a minority whose outsized control of government has contributed to the tearing of our national fabric, wants to ignore parts of the Constitution they find inconvenient to their peculiar view of democracy. Many decent people are worried about the violence that might ensue if we enforce the law. Many more should worry what will happen if we do not.

Edwin Eisendrath hosts “The Big Picture” on WCPT 820 AM every Saturday at 1 p.m. CST. You can follow him on X (formerly Twitter) @eisendrath.

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