The Pitchfork Ruling

The Trap the Commentariat Sets for the Court

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.