On December 22 of last year, Yale Professor Samuel Moyn published a New York Times op ed on efforts to keep Donald Trump off the 2024 ballot, arguing that “The Supreme Court Should Overturn the Colorado Ruling Unanimously.”
Since 2016, Moyn has consistently downplayed the danger to democracy posed by Trumpism. It is impossible to read anything he writes without recalling the way he mocked and indeed pathologized liberal concerns in his co-authored 2017 Times op ed, “Trump Isn’t a Threat to Our Democracy. Hysteria Is.”
On first reading, Moyn’s recent Times piece seems more modulated, offering some sensible warnings about the drawbacks of removing Trump from the presidential ballot via Section 3 of the Fourteenth Amendment. Even here Moyn exaggerates the dangers associated with a Trump disqualification, while continuing to minimize the dangers posed by Trumpism and the seriousness of those liberals concerned with defending the rule of law.
But it is in a companion piece published two days earlier in the Trumpist-edited Compact that Moyn offers his unvarnished interpretation of disqualification, treating it not as a question of legal or political judgment but as an example of a broader political tendency that he describes as “The Liberal Plot Against Democracy.” (Yes, you read that right.) Moyn, in short, treats political liberalism as a conspiracy against democracy, and treats Trump and all of those who support him as victims of liberal power-grabbing. Moyn is an influential writer on the left, though his recent interventions make it hard to figure out exactly who he is trying to reach and why. And so it is important to subject his interventions to the critical scrutiny they deserve.
Moyn’s Argument About Disqualification Lacks Nuance
Moyn maintains that it is dangerous to invoke the Fourteenth Amendment because the situation today is less grave than the situation after the Civil War, but also because “what actually happened on Jan. 6 — and especially Mr. Trump’s exact role beyond months of election denial and entreaties to government officials to side with him — is still too broadly contested.”
Moyn clearly has little regard for the work of the House January 6 Committee, and doubts the very idea that, as retired Judge J. Michael Luttig’s memorably put it before the Committee, since January 6 U.S. democracy “is on a knife’s edge.” He argues that the judicial disqualification of Trump would be unjustified and indeed dangerous, for it would generate enormous resentment and anger among Trump’s base. Such an outcome would be directly contrary, he insists, to the very intent behind the Fourteenth Amendment: “The purpose of Section 3 was to stabilize the country after a civil war, not to cause another one.”
Yet, as Moyn knows, the Reconstruction amendments were less about “stabilizing” the U.S. after a bloody civil war than about reconstructing a still divided country—one that included eleven recently defeated formerly Confederate states determined to resist the federal government–through legal change backed up by the coercive power of the state. Had the Radical Republicans who promoted Reconstruction waited until the meaning of the war was no longer “broadly contested,” the Reconstruction amendments would never have passed, and we would still be waiting to know what all that killing was about (in this regard, Moyn’s historiography strangely echoes that of the infamous William A. Dunning, who regarded Radical Reconstruction as an enormous mistake that muddied up the necessary postwar “restoration”). The very purpose of Section 3 was to prevent treasonous Confederate elites from wielding power in the U.S. government, by making it impossible for them to run for office in situations where recently-liberated Blacks were still dominated and disenfranchised by white supremacist institutions, and white majorities might well vote the seditious slave owners back into office.
Now, it is true that this Reconstruction required a bloody Civil War ended by a decisive Union victory and a humiliating, unconditional Confederate surrender—and also that it faced enormous obstacles that quickly led to its retreat and betrayal. The situation in the U.S. after that Union victory was very different than the situation now. The U.S. has not just experienced a Civil War, and is not in the position of having to subdue a widespread insurrection organized by an insurgent government backed by a substantial army. This difference matters, obviously, in moral, legal, and practical ways.
And it is also true that there are those who surely might wish to begin a new civil war, and they tend to be armed and dangerous Trump supporters who might well be willing to go to the mat for their leader. Such a civil war would be a very bad thing. And Moyn is not wrong to point this out, and to consider it a real drawback of striking Trump from the ballot in 2024.
I do not believe that Trump’s disqualification would be unjust even if it would be controversial.
At the same time, there are enormous costs to not enforcing the many laws that currently have Trump in the cross hairs, even if Trump’s supporters adamantly insist on his innocence and immunity and threaten violence should these laws be enforced. Moyn downplays these costs, and especially the cost to ignoring the Fourteenth Amendment’s Section 3 —which, after all, is a law–whose meaning is pretty plain, and states unequivocally that former federal office holders who have violated their oaths of office in the past have forfeited their right to run for federal office, because they cannot be trusted to refrain from violating their oaths again in the future (I don’t take seriously the question of whether the U.S. president is a “civil officer” of the U.S. government, though I acknowledge that this is a contested issue; it is worth noting that the question of whether the U.S. is any kind of “democracy” is also a contested issue. So too the question of whether Barack Obama is an American citizen . . . ). Furthermore, such enforcement would hardly be the affront to democracy that Moyn suggests, for it would neither disenfranchise Trump’s supporters nor disqualify every other Republican leader or candidate for President from running for office.
Moyn exaggerates the legal gravity of enforcing Section 3. He also exaggerates its danger, and he affords Trump supporters a kind of legal veto power through intimidation that has no legal or moral foundation.
Further, while throwing Trump off the ballot might generate civil unrest, it is also possible that it might not ultimately be that destabilizing. While most Republican leaders will stand by Trump to the end, fearing his retribution, so long as he is a candidate, it is possible that if Trump is disqualified many of those leaders will breathe a sigh of relief, and set about the project of electing a post-Trump Trumpist, one lacking Trump’s fascist tendencies and more astute in the use of the law to disenfranchise Democratic constituencies and to entrench Republican power. (Such a scenario, it is worth noting, might well redound to Republican advantage in the general election.)
There are all kinds of contingencies in play here, and the dangers are not as straightforward as Moyn suggests. On balance I am inclined to agree with Moyn that there are very risky dangers associated with a Section 3 disqualification, an outcome that is in any case completely improbable.
I am virtually certain that this Court will not take the momentous and controversial step of disqualifying Trump.
I do not believe that Trump’s disqualification would be unjust even if it would be controversial. But the effort to press this outcome politically is probably unwise even if legalistically just. Trump must be defeated at the ballot box because he will almost certainly be on the ballot–the current Supreme Court almost certainly will insist on this. And there does not exist the kind of mobilized political power—in the government and in the citizenry at large—that might cause the Court to do otherwise. If during Reconstruction political power, reinforced by a confident and politicized military emboldened by Union victory, supported radical measures that constituted a kind of militant democracy, such a mobilization of bias does not exist today. And I agree with Moyn, along with many others, that to consider the Court a surrogate for such power is foolish both normatively and practically—though I am not sure that any serious Democratic strategist does consider the Court such a surrogate.
I am ambivalent about what the Court should do. But I am virtually certain that this Court will not take the momentous and controversial step of disqualifying Trump. And so to invest much energy or hope in Trump’s disqualification would be foolhardy.
At the same time, contrary to Moyn, the threat to democracy posed by Trump is so great, and the precedent of an insurrectionist former president running again so damning, that it would be a terrible thing if the Court were to rule unanimously for Trump. It would be entirely reasonable for the Court’s liberal justices to dissent from such a ruling and to explain their very strong legal grounds for doing so—for there are very strong legal grounds. But if the liberal Justices ultimately agree that disqualification is too controversial a decision, it is essential that they explain the drawbacks of treating Trump like any other candidate, and write powerful concurring opinions that explain very clearly the danger presented by this decision, which would allow a former President who quite clearly violated his oath of office and sought to overturn an election to remain on the ballot. For the Court to simply and unanimously reject disqualification out of hand would be to ignore the legal and political danger that Trump’s efforts to “Stop the Steal” presented on January 6 and still present today—for Trump has not ceased in his efforts.
Contrary to Moyn, the threat to democracy posed by Trump is so great, and the precedent of an insurrectionist former president running again so damning, that it would be a terrible thing if the Court were to rule unanimously for Trump.
In short, as a liberal democrat, I think the entire matter raises very complex questions, about both the legal outcome and the ways this outcome should be articulated. And if, on balance, I believe that disqualification is no substitute for a broader political strategy of defeating Trumpism, I regard this as a difficult question of political judgment for people very serious about defending liberal democracy by all legal means available.
Moyn Against Liberalism
Moyn, on the other hand, clearly continues to consider those who regard Trumpism as a threat to democracy as “tyrannophobic” liberals themselves possessed of a tyrannical will to power. This hostility to liberal opposition to Trumpism is muted in his Times piece, but not in his “The Liberal Plot Against Democracy.”
Here Moyn describes the Colorado Supreme Court’s decision to disqualify Trump as “just the latest example of liberals helping dig the grave of our democracy.” Indeed, he makes clear that he regards such a move as not simply an error of political judgment, but an act of cynical partisanship designed to provide legal cover for a kind of liberal tyranny. Disqualification, he writes condescendingly, “might for a moment save liberals—and, if the US Supreme Court goes along, conservatives too—from their nonnegotiable responsibility to win power by winning elections. But it would do so by putting the very democracy such forces purport to want to save at greater risk and only postpones the need to rule by legitimate means, rather than by legal hijinks.”
Liberal appeals to the rule of law, and to the procedures that alone make popular elections meaningfully democratic, are thus redescribed by Moyn as efforts to rule by illegitimate means.
That his reasoning perfectly mirrors the claims being made by Trump and his legal team might give a more modest writer pause. But not Moyn. For he seems actually to agree with Trump and his supporters about the situation we are in. How else to read these words, which furnish an overall narrative of American politics since 2017:
It has been clear for some time that the defining event of our time was the collapse of Robert Mueller’s investigation of Trump and his associates of Russian ‘collusion.’ Afterward there were two choices open to those who understandably opposed the president: figuring out how to appeal to enough voters to forge a durable electoral majority—Joe Biden clearly didn’t manage in 2020—or trying again to seek a quick fix or shortcut that would save liberals the trouble of winning.
For Moyn the Mueller investigation was apparently some kind of “deep state” assault on the democratically-elected President, perhaps even a “coup-attempt” (as Trump has maintained for years), and surely a “liberal plot against democracy.”
Moyn ignores everything leading up to the Mueller investigation, which was authorized by the Trump Justice Department after Trump fired the Republican FBI Director for refusing to quash an investigation into some very troubling allegations—many of which turned out to be true even if they did not lead Mueller to recommend criminal prosecution (which he very explicitly abjured out of deference to Justice Department conventions that have no firm basis in law). Moyn also ignores the fact that what he calls “the collapse of the Mueller investigation” could just as easily and more accurately be described as the quashing of the investigation by Trump Attorney General William Barr.
But Moyn’s description of the controversial Mueller investigation is nothing compared to what follows this description. First, he implies that the two impeachments of Trump were about nothing but the effort of Democrats to hold power undemocratically—“quick fix(es) that would save liberals the trouble of winning.” And then he proceeds to the most outrageous claim of all: that Democrats did not seek to forge a durable electoral majority, and that “Joe Biden clearly didn’t manage [one] in 2020.”
If this narrative sounds familiar, it should. Because it is the master narrative of Trumpism.
Have Democrats created a durable electoral majority since 2020? Not yet, obviously. But only a few years have passed, and it is a little early to judge. And in any case the obstacles are pretty substantial. Is the Democratic Party feckless and in need of major rejuvenation? Of course. But how can any serious analyst declare that the Democrats failed in 2020? Joe Biden won the presidency in 2020. He won, as constitutionally prescribed, in the Electoral College. And he won, by over seven million votes, in the popular vote.
We must ask what Moyn means by the word “durable,” and whether it is a stand-in for a different word—legitimate. For he seems to be saying—without actually saying it—that the Democrats did not really win in 2020.
To recap Moyn’s encapsulated narrative: the Democrats lost to Trump in 2016. Then they sought to undermine Trump through the Mueller investigation. When this failed, they impeached him. When this failed, they sought to defeat him at the polls, but there was controversy about the election, which Biden claims to have decisively won even though he did not forge an acceptably definitive electoral majority. Then there was a second Trump impeachment, which failed. And now there is another “liberal plot against democracy.” Simple. No need to even mention either January 6 or the House January 6 Committee Report—neither of which Moyn deigns to mention in his piece.
Liberals, it would appear, are “tyrannophobes” who are in fact a tyrannical “overclass” that seeks to dominate through undemocratic means.
Trump, on the other hand, seeks only to win elections through democratic means.
If this narrative sounds familiar, it should. Because it is the master narrative of Trumpism.
It is also the master narrative of Compact, the venue in which Moyn chose to publish his anti-liberal polemic.
Moyn claims to speak as a defender of democracy... So too does Donald Trump.
Compact’s principal editors, Sohrab Amari and Matthew Schmitz, are major contributors to the intellectual movement known as “national conservatism” that is closely linked to the theme of “American Greatness.” Their journal regularly publishes pro-Trump and anti-liberal diatribes. On September 27, 2022—pretty recently, and long after four years of a Trump presidency and then Trump’s effort to overturn a democratic election—they co-authored a piece entitled “He’s Still the One.” (Ahmari has since seemed to sour on Trump himself; Schmitz, on the other hand, scored his own New York Times op ed a mere few days before Moyn, in which he argued that “The Secret of Trump’s Appeal Isn’t Authoritarianism,” it is Trump’s “moderation.”)
Moyn’s current Compact attack on tyrannical liberals is featured by Compact’s editors alongside these two “Related Articles”: Alan Dershowitz’s “What If Both Trump and his Prosecutors Are Guilty?” and Lee Siegel’s “The Crucifixion of Donald Trump” And the day that Moyn’s piece was published, Compact also featured a piece by its culture critic, Adam Lehrer, on “The Meaning of Trump’s Rally Music,” which culminated in this bit of insight: “I suppose the beauty of a sentiment as precise, simple, and broad as ‘MAGA’ is that it can absorb any manner of aesthetics, affectations, or concepts and put them to use. It’s as big, glorious, contradictory, and idealistic as America itself.”
Life is complicated. We make the choices that we make. Moyn is a celebrated academic. The Henry R. Luce Professor of Jurisprudence at Yale Law School and Professor of History at Yale University, he publishes sober critiques of the liberal commitment to the rule of law in the New York Times, while simultaneously making the same argument, shorn of any sobriety, in a Trumpist journal in which polemics against “liberal plots against democracy” are a regular feature.
Moyn claims to speak as a defender of democracy.
So too does Donald Trump.
Life is complicated.
But some things simply are what they appear to be, and are not very complicated at all.
