Let the courts decide Trump’s fate on the presidential ballot

The opening words of the U.S. Constitution speak in the name of “We the People.”

The phrase boldly proclaims that the document embodies the popular will by creating structures and guarantees designed to enhance the common good and protect and enhance individual liberties.

We the people sent delegates to a convention in Philadelphia in 1787 to write this document and met in special conventions throughout the states to ratify it.

For more than 230 years, the people have exercised their freedom under this Constitution by voting for the president and members of Congress who in turn appoint and confirm judges and justices to interpret it.

Constitution has been amended to enfranchise more and more citizens

Throughout the 19th and 20th centuries, the franchise has included new groups of individuals who continue to express this popular will.

However dissatisfied people are with a president after two years, the Constitution provides only for presidential elections every four years. However much we might favor direct election, current rules channel such votes through an electoral college.

However much we might want to remove a president because we disagree with executive policies, the Constitution limits the grounds for impeachment and removal. The 22nd Amendment limits even a popular president to two terms.

The Colorado Supreme Court recently decided that, as an insurrectionist, Donald Trump is ineligible to appear on that state’s slate of candidates for the Republican primary. Not only did Trump denounce the ruling, which the U.S. Supreme Court could overturn, but so too did some of his primary opponents. They argued that the people should decide who they want to elect and not the courts.

This populist sentiment should be tempered by constitutional restraints that We the People adopted through the arduous and deliberative amending process. After the Civil War, southern states elected candidates who having taken an oath to uphold the U.S. Constitution, had supported the Confederacy.

Many were determined to continue depriving African Americans and former Unionists of their rights. The American people decided that such insurrectionists should not be actively administering the state or national governments. Section 3 of the Fourteenth Amendment accordingly provided that such persons should be banned from office, absent a vote of a two-thirds majority of Congress lifting the ban.

Does the 14th Amendment apply to the Jan. 6 attack on the U.S. Capitol?

After more than 150 years, key issues remain. Did the attack on the Capitol Building on January 6, 2021, constitute an insurrection or rebellion? Was Trump responsible for inciting or giving it aid and comfort? Does the language of the Amendment include former presidents?

Is the provision self-enforcing? Does Congress alone have power to enforce the amendment, or can states also do so? What due process protections are required?

Such serious questions should not be the subject of partisan votes. Judges deal with such issues of constitutional interpretation on a daily basis not as Democrats or Republicans but as individuals sworn to uphold the Constitution that We the People created.

Voters and political candidates typically focus on immediate issues and on individual personalities, but the Constitution embodies enduring principles.

Urging courts to defer to the immediate will of We the People is to undermine this will as embodied in the language and institutions that govern us. Each side should present its case and let the constitutional chips fall where they may!

Dr. John R. Vile is a Professor of Political Science and Dean of the Honors College at MTSU and the author and editor of numerous books on the U.S. Constitution and related topics.