15 MONTHS

Mark the date: Election Day 2024 is November 5. That is 447 days, a little less than 15 months, away and a lot can happen in the intervening time that will determine the viability, the intrinsic strength, of the American democracy. Benjamin Franklin was prophetic when, at the conclusion of the Constitutional Convention he was asked “What have you wrought?” and he answered “a Republic if you can keep it”.

The Presidential election of 2024 will be like no other in American history because we now know that the main contender on the part of the Republican Party will have to defend against four separate criminal indictments in addition to three civil cases in which he is the defendant, all of that while campaigning for the Republican nomination at the Republican convention in mid July 2024 in Milwaukee. If he is nominated, there is a realistic chance that he will be convicted of any of the 91 felony charges now levied against him in four different jurisdictions before the voters will be asked to pass their verdict. He may even find himself in jail on Election Day.

Further uncertainty is inserted into the process by the fact that the two most likely contenders for the Presidency will be in their late seventies and early eighties respectively and neither one of them is granted eternal life. It is a whole different matter, but it should concern all of us that American public governance is in the hands of so many politicians who have very little time left to experience for themselves the far-reaching policy decisions they make while in office. We can expect a forceful rejection by the younger voters of the dominance of their grandparents’ generations in Congress and in the race for the White House. Can the same people who have been complicit in building an insurmountable mountain of public debt and have refused to address the nation’s major challenges of climate protection, entitlement reform, gun control, immigration control, inequities in healthcare and education, and, most importantly, voting rights, be trusted with the responsibility to solve these matters for the future?

The voters in the 2024 election now must wake up to the astonishing revelation that no provision in our much-revered Constitution prohibits a convicted felon from ascending to the Presidency of the United States of America. Clearly, it has been beyond the imagination of our founding fathers and the authors of our Constitution that voters would ever elect a convicted criminal to the highest office in the land or even vote for a candidate who is standing trial for conspiracy to defraud the United States. Yet, the Constitution does not leave the people of the United States entirely without protection against the risk of putting an undeserving candidate in the White House (or any other civil or military office of the United States or any State of the nation).

Section 3 of the Fourteenth Amendment of the Constitution bars any person from taking office who, having previously taken an oath to support the Constitution of the United States, has engaged in insurrection or rebellion against the United States.

In the 155-year history of the Fourteenth Amendment, Section 3 has not been invoked against any candidate running for election to the Presidency of the United States. And it is not clear who would have legal standing to sue for disqualification of a candidate on the grounds of having engaged in insurrection or rebellion against the United States. Certainly the U.S. Department of Justice as the guardian of U.S. laws, but also any contenders or the political party they represent? No doubt any pursuit of the applicability of Section 3 to a candidate for the U.S. Presidency will have to be litigated all the way to the Supreme Court. With the four indictments in place against one of the contenders for the 2024 Presidential Election, the first question to come up will be whether any of the alleged charges against the candidate amount to insurrection or rebellion against the United States. It will be intriguing to find out how the current justices on the Supreme Court, three of whom have been nominated to the court by the indicted contender, will answer that pivotal question.

Much as we may be miffed by the fact that no provision of the law, other than Section 3 of the Fourteenth Amendment, prevents a convicted criminal from getting elected to the Presidency, it is even more incredible that public opinion itself does not appear to disqualify the four-time indicted contender. On the contrary, his standing in the polls has gone up with each of the three earlier indictments. As of this writing it is too early to gauge if the fourth indictment will change the polls, but it does not look likely that it will keep the defendant in these indictments from prevailing in the primaries and obtaining the nomination of his Republican Party.

This alone should cause us to pause and reflect. If a good part of our population can live with the prospect of having a person accused of felonies against the republic placed in the White House, it is a good indication that those people vie for an authoritarian approach to public governance, democracy be damned. It confirms our fear and suspicion that the 2024 election will not just be a contest of personalities and parties, but a referendum on the American system of public governance, whether it should be democratic or autocratic. With the evidence we have in hand we have compelling reason to conclude that going into this election cycle we have one ‘democratic’ and one ‘autocratic’ party. As per our Constitution, the choice is up to the People, 447 days from today.

But a lot can change in 15 months. Stay tuned.