Democracies do not sprout spontaneously, like red poppies in a field. They are established by brave democrats: people who struggle, sometimes paying the ultimate price, against the forces of authoritarianism. This is how democracies survive, too. There is no such thing as the inevitability of democratic rule once it is in place. It has to be defended.
Donald Trump’s post-election maneuvers have, at a minimum, rocked Americans’ faith in their democracy. And rumors abound that the president will seek the position again in 2024, potentially announcing his run during Biden’s inauguration. That possibility requires a proportionate response. Newspapers are teeming with discussions about the wisdom of pursuing criminal prosecutions of Trump after 20 January. But criminal prosecutions are not the only, or even the best mechanism for responding to the Trumpian challenge to self-government. In a society fully committed to democracy, Congress would use this lame-duck period to impeach, convict and disqualify Donald Trump from pursuing public office in the future, as the constitution allows.
This might seem undemocratic. It is not. Joseph Goebbels famously said: “It will always be one of the best jokes of democracy that it gives its deadly enemies the means to destroy it.” But Goebbels was wrong. Well-designed democracies need not turn the other cheek when confronted by aspiring autocrats.
Does Donald Trump really threaten the viability of democracy in the United States? Pundits and scholars have hotly debated the matter over the past four years.
Some have concluded that the president is the classic example of a dog that barks, but does not bite. For instance, Trump called for his political opponents to be jailed, and he referred to journalists as “corrupt” and indeed “criminal”. Yet his attorney general did not prosecute Hillary Clinton, Joe Biden or any members of the press. Trump also floated the idea of becoming president “for life”, but he has often seemed more intent on lowering his golf handicap than seizing power illegitimately. And he has now allowed for the transition to a Biden presidency to begin.
Still, Trump has clearly attempted to subvert the democratic process. He appointed a postmaster general who made it harder for voters to mail in their ballots on time. But his most egregious actions have followed election day, once it was clear that he had lost. Though there has never been any evidence of substantial electoral fraud, he explicitly pushed election officials to subvert the outcome in various states where the race was close. This was an unmistakable, illegitimate effort to stay in power regardless of the election’s result. That he failed does not mean he should be allowed to seek the presidency again.
Many democracies block those who attack self-government from holding office. In France, citizens who undermine the vote can be barred for up to three years by the constitutional court. Delaying or obstructing the Canadian elections can result in the temporary loss of one’s ability to contend for a seat in parliament. And while it has never been deployed, Germany’s constitution (Grundgesetz) gives its high court the power to deny a person liberty to pursue office when she or he attempts to undermine Germany’s constitutional order.
The logic of these policies is plain. Democracy requires that no one be unjustifiably barred from seeking office. One’s race, religion or gender does not matter. It would be an insult to block someone because of the color of their skin. But holding office is a public trust. The decisions made by presidents, senators and representatives impact the basic welfare and rights of many others, including their democratic rights. Accordingly, the liberty to seek election can be reasonably restricted. Age requirements are familiar enough examples.
Democracy-reinforcing eligibility rules follow a similar logic. They may deter participation in anti-democratic plots and keep those who are manifestly unfit from seeking power. The excluded have little warrant to complain. Potential candidates forfeit their right to run when their actions demonstrate they will use that position to assault the democratic rights of others, as Trump has done.
In the United States, eligibility for the presidency is set by the constitution. Only natural born citizens who are 35 and have been resident in the United States for 14 years can hold the office. However, presidents who have been both impeached and convicted can be made ineligible by a majority vote of the Senate. In light of the president’s undemocratic reaction to his defeat, the current lame-duck Congress should use this power to cut off any path to another Trump run.
The Senate, however, has never used this tool. And it is unlikely to do so before 20 January. With no alternative mechanisms in place, penalizing those who assault popular self-rule should be discussed as part of any congressional democracy-reform package. Substantial legal and procedural protections should also be erected, ensuring, to the degree possible, that these mechanisms would be employed wisely. Perhaps the courts would impede Congress from tackling these issues, ruling that such efforts are inconsistent with the eligibility requirements within the constitution. In that case, these reforms might be best advanced by the states or even by the parties themselves, who exercise broader latitude over the primary process.
Past the storm, with our democratic house still standing, it is tempting to think that future storms will not bring the house down, that we are freed from having to expend time and effort to repair the damage to its foundations. Tempting but mistaken. This is the moment to send a clear message that, pace Goebbels, democracy need not supply its enemies with the means to destroy it. Disqualifying those who have assaulted democracy is a first step toward addressing that challenge. It is, however, no substitute for addressing the deeper factors that allow such individuals to become electorally competitive in the first place.
Alexander Kirshner is associate professor of political science at Duke University and author of A Theory of Militant Democracy (Yale University Press). Claudio López-Guerra is associate professor of political science at the University of Richmond and author of Democracy and Disenfranchisement (Oxford University Press)