The decisions of the Colorado Supreme Court and the Secretary of State of Maine to bar Trump (pending appeals to US Supreme Court) from the Republican primary ballot in those states gives practical urgency to abstract debates about the relationship between constitutional principles, the rule of law, and democratic self-determination. On the surface– whatever one thinks of Trump– having judges and a secretary of state (from an opposing party) take pre-emptive steps to remove a candidate from ballots and thus prevent voters from exercising their right to vote for a candidate of their choice seems rather like the ‘election interference’ of which Trump has been accused.

On the other hand, elections are governed by rules and– again, whatever one thinks of those rules and whatever one thinks about how democratic ‘actually existing democracy’ is– there is an argument that Trump has disqualified himself by his actions on January 6th, 2021. The Colorado Supreme Court and the Maine Secretary of State appealed to the 14th Amendment of the US Constitution’s ban on “insurrectionists” running for office as justification for their decision to remove Trump from the ballot. At issue, legally, constitutionally, is whether or not Trump’s actions on January 6th amounted to insurrection. At present, no court has found him criminally guilty of such a charge, which predictably raises suspicions– and not unjustified, within the rules of the American electoral system– that Democratic justices and officials are trying to disrupt the Trump campaign because- as incredible as it might seem– he has a legitimate chance to beat Biden in the general election.

The US Supreme Court will decide the constitutional issues one way or the other, by either refusing to hear the case (and thus letting the decisions stand) or hearing arguments and rendering judgement. Here too partisanship is almost certain to come into play. The 6-3- conservative-liberal split and the fact that three of those 6 were appointed during Trump’s term as President increases the probability that the court would render a verdict favorable to Trump. However, the real issue that these decisions raise is political and goes to the heart of the value that underlies democracy.

The Secretary of State of Maine argued that since “democracy is sacred” she had no choice but to bar Trump from the ballot, for Trump, apparently, is the antithesis of everything democratic. But is he? What makes democracy sacred? And what does “sacred” mean? Setting aside the overtly religious connotations, sacred means, I would argue, something like “not for sale at any price or exchangeable for any superior good.” So, if democracy is sacred, office cannot be bought at any price but must be the function of the choice of the citizens. Moreover, it cannot be sacrificed to any higher good, including, presumably, constitutional principles.

Let us set aside the obvious role that money plays in US federal and elections and focus on the substantive political problem. That problem is: do constitutional principles exist for the sake of democracy or does democracy exist for the sake of constitutional principles? The question has haunted American democracy from the beginning, when the question of how to regulate (tame, subordinate?) the popular energies unleashed by revolution was debated in the Federalist. The problem that Hamilton, Madison, and other founders of the America state faced was the unbridled nature of democratic energy. Popular power is unfocused but must be channeled this way or that. They worried that democratic power would be captured by majoritarian movements that would wield state power against opposed minority interests (especially the minority interest defined by class power rooted in control over wealth and resources).

The debate has raged since Madison’s critique of popular democratic power between supporters of its subordination to constitutional limits and defenders of its essential vitality. Defenders of democracy argue that by its very nature democracy must leave the question of governing principle open: democratic peoples decide fro themselves who will rule them and by what principles they will be ruled. Sheldon Wolin, criticizing Rawls for the anti-political and undemocratic thrust of his theory of justice, makes the general point clearly: Rawls tries to ‘cut democracy to the specifications of constitutionalism” he argued, and “fit ‘democracy’ into an undemocratic social framework.” Rawls’ makes these moves, Wolin contends, because his starting point, “is not democracy, but … ‘stability.”(“The Liberal/Democratic Divide” Fugitive Democracy, 275.)

For Wolin, one cannot have democracy without struggle and contestation over what is and is not a fit matter for public debate and decision. “The problem of the political is not to clear a space from which society is to be kept out but it is to ground power in commonality while reverencing diversity … Diversity cannot be reverenced by bureaucratic modes of decision-making. Diversity is the nightmare of bureaucracy.” (“Democracy and the Political,” 249) The problem of diversity– a problem of which Trump is a paradigm example– is that the forms it takes cannot be predicted in advance. It is a nightmare for bureaucratic thinking precisely because the forms it throws up cannot be regulated in advance. When a movement arises which seems to break the established pattern the response of bureaucracy– as exemplified here by the Colorado Supreme Court and the Secretary of State of Maine– is to try to suppress it, eradicate it under cover of legal or constitutional principle. The result– if Wolin is correct, and I believe that he is– must be undemocratic.

Wolin did not live long enough to see Trump, but Trump is not, in fact, a novelty in US politics but the latest in a long line of right-wing populist iconoclasts. None of these figures scared Wolin away from his affirmation of democracy over its constitutional strangulation, so I doubt that Trump would have either. What Trump’s opponents forget is that democracy is not first and foremost a substantive moral doctrine but a form of distributing power. In a democracy, different groups and movements struggle for power. One side in this struggle cannot cloak itself in the mantle of “democracy” as justification for banning other players from playing. To do so is obviously to try to stack the deck in one’s favour and thus undercut by one’s practice the very value of democracy to which one appeals as theoretical justification.

To support unbridled democratic contestation between rival parties and movements does not mean supporting Trump or other demagogic forces or rejecting the existence of genuine, shared, fundamental interests anchored in basic natural and social needs. What it does mean is that commitment to democratic politics elevates the principle of self-determination above expertocratic, top-down forms of enacting policies to meet those needs. In short, a commitment to democratic self-determination requires that democrats accept risk. Unless one want to be ruled by an expertocracy (like Iran’s Council of Experts that vets candidates for office, or return to the days of Enlightened despotism, or- as technotopians urge– turn our public affairs over to an AI system that will mechanically churn out win-win solutions to all problems– one must accept the possibility that majorities will coalesce around demagogic figures like Trump. That is precisely the reason why Plato believed that democracy will always undermine itself. but he did not appeal to constitutional constraints– because he knew they would not work– but to a plan of rigid social order which allowed the majority no say at all in choosing their rulers or determining the laws they would have to obey.

Are Plato and contemporary Platonic-technotopian critics of democracy correct? Are the hoi poloi (or even the whole human race) too stupid to run their own affairs? If the answer is yes and the solution to turn our affairs over to quasi-divine Philosopher-Kings or machines, then I suggest that our time on the planet is up. We should decide–democratically!– that the human experiment has run its course and failed.

If we are not ready to vote for voluntary extinction or to turn political life over to a computer system, then we must assume that we are mature enough to determine our collective life in accordance with democratic principles. Trump’s opponents want to use constitutional principles like a computer algorithm to select out Trump in advance of democratic contestation. As I noted above, following Wolin, this cuts into the very heart of democracy: one cannot anticipate in advance what sorts of movements democratic power will create and coalesce around. The only democratic antidote to democratically emergent but substantively undemocratic movements like Trumpism is to defeat them, politically, through the force of better arguments and superior mobilizing power around an agenda more demonstrably in people’s shared interests.

As Wolin argues, ‘The mode of action that is consonant with equality and diversity is deliberation. Deliberation means to think carefully.” We must think carefully because what is at stake is the exercise of human power” (249) But Trump is unreasonable! opponents will respond. But is he? He is actually a skilled rhetorician and politician, but in order to understand the logic of his positions, one must think politically and not in abstractly logico-empirical terms. That is, Trump, like all politicians uses speech to moblize power, not to advance truth-claims. Pointing out his “lies’ will never defeat him, because his supporters are not following him because of the abstract truth-value of his assertions, but because they think that his agenda serves their interests. They are worried about jobs, their communities, their traditions, and so they can be mobilized around an anti-immigrant, isolationist, protectionist agenda. An effective response has to acknowledge the legitimacy of people’s fears in ways that opens their ears to counter-argument.

People cannot deliberate when they are afraid or angry, and many of Trump’s supporters– in 2016, 2020, and still today, are afraid and angry. The problem is the social context which makes 77 million people willing to vote for a Trump. I say ‘a’ Trump and not ‘Trump’ because unless the political fight is won with his supporters another right-wing populist will arise to take Trump’s place. Trump is a symbol of unmet social needs: how to channel those who feel those unmet needs in a democratic rather than demagogic direction is the real problem that Trump’s opponents face. Hoping the constitution will save democracy is both in vain and undemocratic.