Challenging the Assertion that Enforcing Section Three is “Undemocratic”

This is the second in a series of essays responding to objections to enforcing Section Three of the Constitution. The most common objection to enforcing Section Three is the claim that doing so would be “undemocratic” as it would interfere with the right to vote and impair the right of the people to select their own leaders. However, this is more of a political than a legal objection. It is ultimately an objection to Section Three itself—an argument for not complying with what the Constitution requires. As a matter of legal fact, the objection is unpersuasive. Our democracy is a constitutional democracy, with the Constitution both channeling and constraining democratic choice. Section Three is one of these constraints and must be honored in a constitutional republic that imposes specific limitations on the democratic political process. While the objection has an intuitive appeal, it begs the relevant legal question entirely. The Constitution removes certain matters “from the vicissitudes of political controversy,” ensuring that they do not depend on the outcome of elections. In addition, the Constitution indirectly restricts voting by limiting who is eligible to hold elected offices. The restrictions on eligibility for elected office are “undemocratic” by this sense. Objections to disqualifying insurrectionists are essentially arguments for not following the law and supporting democracy. Disqualifying oath-breaking former officers who have engaged in insurrection is a fundamental democracy-protective provision of the Constitution that safeguards lawful United States government under the Constitution. It prevents individuals who seek to upend lawful democratic electoral choice from seizing power. Therefore, to decline to enforce Section Three in such circumstances may be the most anti-democratic choice of all. Michael McConnell suggests giving Section Three’s terms a narrow interpretation to limit their ill effects and susceptibility to abuse, but this approach is questionable as it conflicts with the intent and purpose of the provision.