The will of the people expressed in free elections and the rule of law upheld by independent courts are two of the pillars of a liberal democracy, or so we were taught at school. Yet these two core principles keep colliding in increasingly polarised societies from Washington to London, Paris to Berlin and Warsaw to Jerusalem, with populist politicians demanding that “the will of the people” override the constitution, treaties or the separation of powers.
It is vital for the long-term health of democracy that the judges prevail. If politicians are able to break or bend fundamental legal principles to suit the mood of the moment, the future of freedom and human rights is in danger.
In the United States, the supreme court will soon rule on whether Donald Trump should be allowed to run again for president after having encouraged and condoned the storming of the Capitol by his supporters on 6 January 2021 in a violent attempt to prevent Congress certifying the election of Joe Biden as his successor. Two states, Colorado and Maine, have barred him from the ballot.
The 14th amendment of the constitution, adopted right after the civil war, states that no person shall “hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath (…) to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”.
If the court applies the constitution literally, it’s hard to see how it can let Trump stand in November’s election, even though he may not be found guilty by a court over the insurrection. However, to deny the runaway favourite for the Republican nomination a chance to regain the White House would ignite a firestorm........