Manoj Mate has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:
This essay analyzes how the U.S. constitutional order responds to democratic crisis, by examining how the Supreme Court adjudicated cases related to and arising from the response to the effort to overturn the results of the 2020 election and the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The essay analyzes key weaknesses in the U.S. constitutional framework and how the effort to overturn the 2020 election sought to exploit those vulnerabilities. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, Trump v. Anderson, and Trump v. United States. I analyze how each of these cases reflected distinct models of constitutional structure and modalities or approaches to constitutional interpretation. I argue that application of constitutional structure-based approaches in these cases pose key challenges for the constitutional order’s ability to respond to democratic crises, and trace how the Court utilized structure-based approaches in ways that weakened our capacity to respond to democratic disaster.
I critiques these approaches and suggest considering insights from comparative constitutional law, including the concept of a “basic structure doctrine” to provide support for court enforcement of the disqualification provision in Section Three of the Fourteenth Amendment. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance and to reconceptualize how the 2020 election cases could be analyzes with reference to the basic features of the U.S. Constitution. This approach would go beyond analysis of constitutional structure and the allocation of power, to consider the threats posed by certain actions to core elements and features of U.S. constitutional governance.