March 13, 2024,
A presidential candidate who loses the popular vote in 2016 nonetheless ascends to office via the Electoral College. As president, he then cements a far-right majority on the Supreme Court. Then in 2020, following a defeat in a subsequent election—both popular and in the Electoral College—the same president incites an insurrection, challenging the peaceful transfer of power.
Section 3 of the Fourteenth Amendment says that state and federal government officials who break their oath to uphold the Constitution by committing insurrection or giving aid to enemies are banned from holding such offices in the future. “But” Congress can lift the ban on them by a two-thirds vote of both houses.
This posed a problem not only for the former president but for many other January 6 insurrectionists and big-lie participants who were serving in government at the time and either still are or hope to again.
The Supreme Court solved their problem last week in Trump v. Anderson. The Trump-created majority ruled that the ban has no effect unless and until Congress passes legislation to enforce it.
It may sound impossible to square the Constitution’s statement that the ban applies unless a supermajority of Congress says it doesn’t with the Court’s ruling that the ban doesn’t apply unless Congress says it does. That’s because it is impossible to square.
Insurrectionists are now free to serve as government officials, and in the case of the presidency, of course, an insurrectionist may take office even if most people vote for a different candidate. We don’t have to allow this. Democratism proposes the Democracy Decree, which would end the Electoral College, create proportional representation in Congress, and create a means for ending the tenure of judges appointed by popular vote-losing presidents.