Judge Wallace and the Democracy Canon

Another preliminary matter regarding Judge Wallace’s opinion holding that former President Donald Trump was not disqualified under section 3 of the 14th amendment. In finding that the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision, the judge explained that “part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.” Order at 101, ¶ 314. Here, the court is essentially applying a “democracy canon” along the lines suggested by Professors Tillman and Blackman (although it does not cite them). See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 105 & n. 306 (forthcoming 2024) (citing Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009)).

Now the “democracy canon” is not one of the more well-established canons of construction, and I really have no idea whether it would apply here or if it exists at all. For purposes of discussion, however, I am happy to assume that there is a “democracy canon” that calls for ambiguous constitutional and statutory provisions to be construed, if possible, in favor of voter enfranchisement and empowerment. And if that is the case, and if the phrase “any office, civil or military, under the United States” in section 3 was ambiguous with respect to the presidency (it isn’t, but we will get to that in a future post), then the democracy canon could reasonably be applied to argue for a narrow construction of the phrase. In other words, if it was unclear whether the presidency was a banned office under section 3, the democracy canon would argue in favor of excluding the presidency so as not to deprive voters (well, presidential electors, really) of their ability to select the candidate of their choice for that position. Perhaps (the argument would go) the framers of the 14th amendment thought that the right of voters to select a president of their choice was so important that they should be able to vote for an insurrectionist if that is what they wanted.

Applying this canon to the question of disqualification-triggering offices, however, makes absolutely no sense. The effect here would be to preserve the ability of voters to select an insurrectionist for the presidency or any other office so long as the only oath he had violated was that of president (or vice president). But if this candidate had taken any other oath as a federal or state legislator or officeholder, he would still be disqualified. This would be an entirely arbitrary distinction that would apply to only one person in history, Donald J. Trump. The “democracy canon,” if it exists, does not support this result.

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