The Coming Constitutional Crisis of 2024

The Colorado Supreme Court has held, in a 4-3 decision, that Donald Trump cannot appear on the Colorado primary ballot pursuant to section 3 of the Fourteenth Amendment.  There are arguments by people I respect on both sides of the question of whether section 3 applies to Donald Trump and what he did or did not do on January 6, 2021.  I’m not going into that question.  I assume this case will be going to the U.S. Supreme Court quite quickly and that they will probably decide the question of the Donald Trump and section 3 of the Fourteenth Amendment. 

Which gets to the title of this post: “The Coming Constitutional Crisis of 2024.”  I give a hat tip to John Cochrane, “The Grumpy Economist,” for this title and the issue.  It comes not from Dr. Cochrane’s blog or his economic work.  Rather it comes from comments he has made on episodes of the “GoodFellows” podcast that he appears on with Lt. Gen. H.R. McMaster and Niall Ferguson. 

Dr. Cochrane is worried about what will happen next year if Donald Trump and Joe Biden run against each other again.  If Trump loses, especially in a close race, his supporters will be even more upset than they were in 2020/21.  On January 6, 2021, some number of them marched on the Capitol.  And some of them got into the building, largely because the Capitol were woefully unprepared.  The Trump supporters (or insurrectionists or whatever you want to call them) shouldn’t have done it.  But the Capitol police should have been ready.  They weren’t.  If Trump loses in 2024, especially in a close election, the march of the Trump supporters in 2025 will make 2021 look like a kindergarten parade.

On the other hand, if Trump wins a close election, or even a not close one, and that seems entirely possible given the polls today, will the progressive left be okay with that?  Will they just sit around and sing “Kumbaya” while he is sworn in?  I don’t think so.  They didn’t accept him in 2017.  Remember the “Russian collusion” and everything else?  They won’t accept a Trump win in 2024.  There will be marches, protests (possibly violent; why not, if democracy is at stake), and refusals to accept his election and authority. 

In other words, if Biden and Trump run, regardless of which one wins, and very possibly regardless of how close the election is, we are in for the very real possibility of the worst situation since 1860-61.

Which gets me back to the Colorado Supreme Court decision.  Two points on that.  First, even though I think a Trump loss at the ballot box in November of 2024 would not be good (see above), not letting Trump on the ballot would be even worse.  If Trump is going to be beaten, it needs to be by the voters, not by keeping him off the ballot on some legal theory that could go either way.

Second, and this relates specifically to any Supreme Court decision: If the Supreme Court says that section 3 of the Fourteenth Amendment does not apply to Donald Trump and January 6 (which I would prefer, given my comment in the prior paragraph), I hope it is not a 6-3 decision along what the public sees as conservative/liberal lines.  It needs to be a unanimous decision (or at least 8-1).  While I understand the Justices are supposed to only care about the law, in the case they have to look, to some extent, beyond the legal arguments and get the decision as close to unanimous as possible.  The country cannot handle a Supreme Court decision on this issue that looks like it is divided on partisan lines.  They just need to figure it out.