Trump Can’t Have It Both Ways

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Donald Trump won the presidency with fewer votes than his opponent?

We’re a republic, not a democracy.

State Republican parties in Wisconsin, North Carolina, and other states gerrymandered themselves into supermajorities?

We’re a republic, not a democracy.

Forty-one senators block laws favored by 59? A single senator blocks promotions across the Defense Department?

We’re a republic, not a democracy.

Florida voters restored voting rights to felons, only to see the reform disregarded by the state legislature?

We’re a republic, not a democracy.

States rule that Trump is an insurrectionist under the terms of the Fourteenth Amendment, barring him from their ballots?

Let the people decide!

There’s not much use in pointing out hypocrisy in the Trump era. Trump and his core supporters are governed only by the Cartman principle—“I do what I want!”—and to that principle, they are always faithful.

Yet even if it changes nothing to understand the game that’s being played, the understanding is still worth having in its own right.

Trump lost the 2020 presidential election. He plotted to overturn that election, first by fraud, then by violence. His scheme to cheat Joe Biden out of the presidency amounted to the single most spectacular effort to defy the will of the voters since the slave states started a civil war rather than accept Abraham Lincoln’s election. Trump’s actions appear both criminal and anti-constitutional. For the alleged crimes, he’s been indicted by both state and federal prosecutors. For the constitutional offense, he now faces disqualification from the ballot in a growing number of states.

Trump was disqualified in Maine yesterday. Colorado also disqualified him, but has for the moment stayed the enforcement of the disqualification. Minnesota ruled that Trump is not disqualified yet but may be in the future.

Will these state disqualifications survive Supreme Court review? Even if they are legal, are they prudentially wise ways to protect American democracy against Donald Trump? We all have our own opinions. (Mine was originally negative, but I am becoming disqualification-curious.)

Trump himself launched his presidential career by arguing that President Barack Obama should not have been able to run for president because Obama was not a natural-born citizen of the United States. In 2016, Trump argued that his rival Ted Cruz should be disqualified as a candidate for the Republican presidential nomination because Cruz was born in Canada. (Unlike Trump’s fantasies about Obama, Trump was right on the facts about Cruz—just wrong on the law.)

In 2020, Trump tried to disqualify voters who’d exercised their right to vote by mail or whose ballots had for any reason not yet been counted by midnight on Election Day.

Trump and his supporters have conjured a series of self-serving rules. Where antique anti-majoritarian devices work for them, the antique anti-majoritarian devices prevail. Where crude gaming of filibusters and gerrymandering works for them, the crude gaming must prevail. Where fraud and violence work for them, fraud and violence must prevail. And where invoking democratic ideas works for them—well, you can complete the sentence.

How should people who are serious about democratic principles respond to this avalanche of bad faith? Democratic ideals don’t cease to be true just because they can be exploited by dishonest actors. Yet democracy also cannot become an optional principle that authoritarians can use when it suits them and then discard without consequences when it becomes an obstacle to their goals. Democratic systems have constitutions and constitutional remedies precisely to protect themselves against those who toggle in this way between breaking inconvenient rules and demanding the benefit of favorable ones.

A key provision of the suddenly famous Section 3 of the Fourteenth Amendment is that it applies only to those who previously swore an oath of office. It’s not a general punishment for revolts against legal authority. It is a highly targeted penalty applied to those who—like Trump—try to play the system both ways, swearing to execute the laws and then rebelling against the laws they swore to enforce.

Maybe prudence genuinely does recommend leaving Trump’s disgraced name on primary and general-election ballots. But remember that old joke about the man who murdered both of his parents and then asked for mercy as an orphan? It needs to be replaced by a new joke about the ex-president who trashed democracy when he had the power, and then pleaded for the protection of democracy so he could have one more chance to trash democracy again.

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Trump Can’t Have It Both Ways

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