To this day, only footsoldiers have paid a price for the riot at the Capitol last January 6th. Politicians who spurred them on, praised them afterwards, and now incite further hatred with hallucinatory talk of “political prisoners” have remained smugly immune.
This could change in one case: Republican Congressman Madison Cawthorn, who was on the mall that fateful day, implored Trumpists to “fight,” and is now seeking re-election in North Carolina. His candidacy is being challenged on the basis of the 14th Amendment. Passed after the Civil War, it disqualifies from holding office anyone who has sworn allegiance to the Constitution and then engages in insurrection.
Other democracies are comfortable not just with restricting individual rights to run for office, but with banning entire parties suspected of undermining democracy. Americans, by contrast, have been inclined to leave things to sort themselves out in the political process.
But here drastic measures are justified: citizens in a democracy have to accept being governed by politicians they disagree with; they don’t have to put up with politicians who start insurrections when things don’t go their way. Disqualification could have a salutary effect on the Republican Party as such; and it might provide a model for banning Trump from holding office again – something that was on the table during the 2021 impeachment and endorsed by seven Republican senators at the time.
In North Carolina, citizens can challenge a candidate to prove they meet qualifications for Congress. Unlike the House Committee investigating the events of January 6th, the board on elections could force a sitting member of Congress to testify about the role he played before, during, and after the insurrection. In the end, his fate could resemble that of many Confederates after the Civil War: not necessarily criminal punishment, but exclusion from exercising power.
Many American constitutional lawyers feel ambivalent about an approach known elsewhere as “militant democracy”: measures to restrict the rights of people posing a threat to democracy but who have – unlike terrorists, for instance – not done anything criminal. Courts in Germany, Spain, and South Korea ban entire political parties; in the US, even at the height of McCarthyism, the Communist Party was not prohibited. Why, skeptics might ask, not have faith in politics instead of democracies doing something that looks pretty undemocratic? After all, if the people themselves are not able to see dangers to democracy for what they are, democracy might be lost anyway.
That’s not where worries stop. If you go down the path of prohibitions, for example, what would prevent Republicans from McCarthy-style retaliation against figures like AOC? After all, they could argue, she’s a socialist, capitalism’s the American way, and hence she’s obviously engaged in overthrowing our political system. This is not paranoia: in Indiana, Republicans are pushing a school bill which would declare socialism incompatible with the principles on which the US was founded.
As a matter of principle, it seems inconsistent to oppose felon disenfranchisement and yet demand rights restrictions for office-seekers. People ought to be punished for actual criminal behavior, but why also deny them a role in our process of self-government? After all, no democracy should create situations where some people look like second-class citizens not enjoying full use of political freedoms.
Such worries must be taken seriously. A democracy that is trigger-happy about taking individuals or entire groups out of the political game is probably not as democratic as it sees itself to begin with. (In Europe, for example, Turkey holds the record in party bans – and these bans have often been aimed at legitimate advocates for the Kurdish minority.)
But ultimately these worries do not weaken the case for disqualifying pro-insurrectionist Republicans. Constitutional requirements are not something that can be dispensed with ad hoc: you either meet the age, residency, and citizenship requirements for Congress or you don’t. What matters is that the process ascertaining what Cawthorn said and did is fair.
True, anyone disqualified will style themselves a martyr – further proof of Democrats’ tyranny! They will wallow in the culture of victimhood which, in a typical form of projection, the far right always attributes to left-wing proponents of identity politics. Of course, the far right itself relentlessly pushes people to indulge the fantasy of being a persecuted minority: as a result, insurrectionists do not regard themselves as aggressors at all, but as merely engaged in self-defense and saving the Republic.
Since this game is being played no matter what, there are hardly prudential considerations to go easy on pro-insurrection politicians. Plus, if disqualified figures feel that a great injustice was done, they can appeal to Congress, which, with a “two-thirds majority in each House,” can decide to lift restrictions, for instance if politicians stop lying that January 6th was a tourist outing for patriots. Unlike in the case of so many felons, this not a political life sentence.
Of course, there is always a predictable chorus of pundits and politicians lamenting that all this will further “deepen our divisions.” But they should ask themselves whether such disqualifications and demarcations are not the kind of thing that a normal center-right party would not undertake itself: because the Republican Party has become a Trump personality cult, it might actually be in the interest of those too afraid to speak out against the cult to outsource the necessary boundary-drawing to what Cawthorn himself dismisses as “state bureaucrats.” After all, to paraphrase Lyndon Johnson, even strident left-wingers have an interest in a democratic rightwing party that is inside the tent pissing out rather than an anti-democratic, violence-prone one pissing in.
Those crying that disqualifications re-open political wounds and delay national “healing” – often a demand pushed by rightwingers to distract from their complicity in the assault on the Capitol – have to realize that the issue will not go away. Other figures will be challenged as well, and, of course, Trump himself, if he tries to get on state ballots in 2024.
Whether a heavily right-leaning US supreme court will uphold disqualifications is a very open question indeed – but there is every reason to try enforcing them.
Jan-Werner Mueller teaches at Princeton and is a Guardian US columnist. His most recent book is Democracy Rules
