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The Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications

Robert A. Strong, University of Virginia, The Conversation on

Published in Political News

When the Supreme Court ruled on March 4, 2024, that former President Donald Trump could appear on state presidential ballots for the 2024 election, it did not address an idea that seemed simple and compelling when Justice Brett Kavanaugh raised it during the Feb. 8, 2024, oral arguments in the case:

“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?”

In essence, he was asking whether it would be better to let the people, rather than a court or a state official, decide whether a controversial candidate should return to the White House.

Kavanaugh had a point. Under the Constitution, the people can be – and are – trusted to make a great many important decisions.

But Kavanaugh also missed a key point that I learned in years of teaching about the presidency, the Constitution and impeachment. Right from the very beginning of the nation, and persisting until today, there have been rules that limit the ability of the people to choose their leaders.

The drafters of the Constitution already had the discussion Kavanaugh was trying to start during the oral arguments.

 

In July 1787, the delegates to the Constitutional Convention, where the Constitution was written, were discussing impeachment. Gouverneur Morris – a Pennsylvania delegate who wrote the preamble to the Constitution, including its opening phrase, “We the People of the United States” – made an argument Kavanaugh’s question would echo 237 years later.

When discussing whether it should be possible for Congress to remove the president, Morris said no.

The people could decide for themselves, he said. Making the president subject to impeachment, Morris said, “will hold him in such dependence that he will be no check on the Legislature, (nor) a firm guardian of the people and of the public interest.” With regular national elections, Morris said, a flawed chief executive could be removed from office by the voters. Morris added, “In case he should be reelected, that will be sufficient proof of his innocence.”

But George Mason, a Virginia delegate and slaveholder who championed the idea for the Bill of Rights, was ready with a response. Pointing out that true and fair elections were key to the new nation’s success, Mason noted that if criminal conduct by some future president involved corruption of the election process, the people might have trouble deciding the culprit’s fate in a subsequent election:

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