Letter: Keep Our Eyes on the Prize

The American Civil War concluded in April 1865, four years and 600,000 deaths after the Battle of Fort Sumter. Eight months later, the Republican Party, acting like the war was still going, preemptively barred southern Congressmen elected under Andrew Johnson’s woefully insufficient Reconstruction plan. If not for this unprecedented act, Republicans wouldn’t have had the two-thirds majority in both houses of Congress necessary to pass the three Reconstruction Amendments.

The Fourteenth Amendment was ratified in 1866 after the internally divided Republicans united to take the exceedingly difficult step of overriding the president’s undemocratic veto power.¹ As Eric Foner describes in The Second Founding, the Amendment had many aims, including to “establish general principles about the rights of the freed people and of all Americans; create a uniform definition of citizenship; outline a way back into the Union for seceded states; limit the political influence of leading Confederates; contribute to the nation-building process catalyzed by the Civil War; and serve as a political platform that would enable the Republican party to retain its hold on power.”² The Fourteenth Amendment was one of the dozens of proposals that inundated Congress after the war, including one to remove the Electoral College and elect the president by direct popular vote, and another requiring each state to provide for the “pursuit of happiness” of all residents regardless of race.³ The Civil War temporarily broke the spell of the Constitution’s infallibility. It infused political discourse with the language of universal and equal rights — a lasting challenge to the Constitution’s denial of universal and equal suffrage in all three branches of government.⁴ 

Recently, the Fourteenth Amendment has gained attention for its lesser-known third section, a provision “meant to prevent the rebirth of… the Slave Power” after the War and one that some now argue disqualifies Donald Trump from running for president.⁵ On Tuesday, the Colorado Supreme Court agreed, ruling that Trump engaged in an insurrection and is therefore “disqualified from holding the office of President” and ineligible to appear on the state’s primary ballot.⁶ This is the first time a presidential candidate has been disqualified under the third section. The Court acknowledged the significance of its ruling, stating that “we do not reach these conclusions lightly” and are traveling into “uncharted territory.”⁷ Colorado’s Supreme Court is appointed through a process controlled by the governor, not directly elected by the voters — an affront to democracy in its own right. In the United States, state supreme courts are decided in five different ways.⁸ It’s worth adding that any democracy would have universal election standards (though universal election standards do not make a democracy). 

The landmark ruling will likely land before the Supreme Court, which must rule before the state’s certification deadline of January 5th to keep Trump off the ballot. Yet again, another monumental decision will be made not by the people of the United States based on the principle of one person, one vote, but by nine unelected judges whose collective popularity has reached a historic low.⁹ As in 2000, will the highest court in the land again decide who becomes the most powerful person on the planet? It’s time to stop relying on the Constitution to solve problems that can only be remedied by opening up the political process to the unchecked opinion of the people. 

The Supreme Court is an undemocratic monstrosity. Four current Justices — Thomas, Gorsuch, Kavanaugh, and Coney Barrett — were confirmed by a Senate majority that collectively won a minority of the popular vote in Senate elections and represented less than half of the population. Clarence Thomas, the subject of recent scandals involving a billionaire collector of Nazi memorabilia, became a lifetime Justice in 1991 with a 52-48 confirmation vote in which the 48 senators voting against him represented 52 percent of the population.¹⁰ The 50 Senators who voted to confirm Kavanaugh represented only 44 percent of the population, and the 52 Senators who confirmed Gorsuch represented only 42 percent.¹¹ A president who lost the popular vote nominated three of the Justices — Gorsuch, Kavanaugh, and Coney Barrett.¹² This is the institution we are supposed to praise for “protecting democracy?” 

Neither the Colorado Supreme Court’s ruling nor a seal of approval from the Supreme Court will stop the Far Right. At least for the next few weeks, the lower court’s decision will likely strengthen the myth that the Constitution can be a saving grace and lend credence to the idea that people must shelve criticism of the Constitution and “defend democracy” in the lead-up to November. But Trumpism will remain because the undemocratic Constitution that empowers minoritarian political agendas will remain. It’s a good thing liberals like Daniel Ziblatt and Steven Levitsky are waking up to the fact that the “guardrails” of the Constitution got us into this mess.¹³ Some socialists are, too. Most people can change, and a volatile political environment has a hell of a way of opening eyes and expanding minds. As I explained in the lead-up to the Democratic Socialist of America’s 2023 convention, outside events will force the DSA to take a stand on the Constitution and the myth of American democracy.¹⁴ This prediction is playing out. 

What about the Democrats? Do Biden’s hopes for a second term hinge on a judicial domino effect, in which a favorable Supreme Court ruling leads to Trump’s removal from ballots in other states? (Exclusion from Colorado alone might not be enough to deny Trump the all-important 270 Electoral College votes). Why can’t Biden soundly defeat Trump without the assurance of a massive judicial intervention? Rank hypocrisy and cynicism don’t help. On the one hand, Biden can say, “Democracy makes all things possible” and “Democracy means the rule of the people, not rule of monarchs, not rule of the monied, not rule of the mighty.”¹⁵ On the other, the Democrats refuse to fight for popular social policies that would improve lives at home and abroad. Most importantly, they refuse to critique the undemocratic Constitution. Biden is relying on people’s belief in business as usual and fear of the unknown at a time when Americans have an “unrelentingly negative” view of the political landscape.¹⁶ 

The Democratic and Republican parties will cut deals, swing clubs, and (maybe) throw a few carrots over the months and years ahead. Come what may, we must stay consistent and keep our eyes on the prize: a democratic Constitution in which sovereignty — supreme law-making power¹⁷ — lies in a single House of Representatives elected through universal and equal suffrage. The demand for a democratic Constitution must be our North Star throughout the journey. There will be many judicial rulings we don’t like and (maybe) some we do. There will be some electoral victories we support and many we don’t. But our job isn’t to quibble over the decisions made within the restrictive confines of the Constitutional playing field.¹⁸ “We the People” must take power into our hands and change the game. The Constitution isn’t undemocratic only on the days the Supreme Court hands down an unpopular ruling, when the Senate filibusters a bill with majority support, or when the president bypasses Congress to fund Israel. The Constitution is undemocratic twenty-four hours a day, three hundred sixty-five days a year. Far from a conclusion, the ruling in Colorado is one more step toward a future that, while uncertain, is ours to shape.

-Luke Pickrell

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1. “The Presidential Veto and Congressional Veto Override Process.” National Archives. https://www.archives.gov/files/legislative/resources/education/veto/background.pdf.
2. Foner, Eric. The Second Founding: How the Civil War and Reconstruction Remade the Constitution. New York: W.W. Norton & Company, 2019. p. 57.
3. Ibid. p. 61.
4. Through the Electoral College and the presidential veto in the Executive branch. Through gerrymandering and the malapportioned Senate in the Legislative branch. Through unelected federal judges and Supreme Court Justices with the (essentially unlimited) power of judicial review in the judicial branch.
5. Foner, Eric. p. 84.
6. Quinn, Melissa. “Colorado Supreme Court rules Trump is disqualified from the presidency for Jan. 6 riot.” CBS News. https://www.cbsnews.com/news/trump-colorado-supreme-court/.
7. Ibid.
8. “How State Supreme Court Justices are Chosen.” Democracy Docket. https://www.democracydocket.com/analysis/how-state-supreme-court-justices-are-selected/.
9. Lin, Katty. “Favorable views of Supreme Court fall to historic low.” Pew Research Center. https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low.
10. Levinson, Sanford. Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It). New York City: Oxford Press, 2001. p. 58.
11. Orts, Eric. “Senate Democracy.” University of Pennsylvania. https://faculty.wharton.upenn.edu/wp-content/uploads/2018/12/Senate.Democracy.1.3.19.really.final_.pdf.
12. Steven Levitsky and Daniel Ziblatt. Tyranny of the Minority: Why American Democracy Reached the Breaking Point. New York City: Crown, 2023. p. 177.
13. Ibid.
14. “Marxist Unity Group Convention Bulletin.” https://drive.google.com/file/d/1lDeNp5m8weOumZ8O_YbdsUFATL3xet0r/view.
15. “Remarks by President Biden Honoring the Legacy of Senator John McCain and the Work We Must Do Together to Strengthen Our Democracy.” The White House. https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/09/28/remarks-by-president-biden-honoring-the-legacy-of-senator-john-mccain-and-the-work-we-must-do-together-to-strengthen-our-democracy/#:~:text=Democracy%20means%20rule%20of%20the,country%20only%20when%20you%20win.
16. “Americans’ Dismal Views of the Nation’s Politics.” Pew Research. https://www.pewresearch.org/politics/2023/09/19/americans-dismal-views-of-the-nations-politics/.
17. Lazare, Daniel. The Velvet Coup: The Constitution, the Supreme Court, and the Decline of American Democracy. London: Verso, 2001. p. 48.
18. Lazare, Daniel. “US Constitution: Hiding in Plain Sight.” Cosmonaut. https://cosmonautmag.com/2020/09/us-constitution-hiding-in-plain-sight/.