The Colorado case on Trump’s eligibility to be President highlights one of the recurring challenges of the American political system—the proper roles of the Court and the public in making final determinations of the Constitution’s meanings.
Some argue that the Court should not intervene in such a case, that ultimately the public should have the right to vote for or against Trump, and to let them decide his fate. This includes not just blind Trump partisans (who undoubtedly would not hold to principle if the politician in question was a Democrat), but people who generally are disturbed by the inherently anti-democratic nature of the “nine black robes.”
This is a concern that has a long tradition, going back to the anti-federalists’ arguments against ratifying the Constitution (and the anti-federalists got a lot right, as well as being the stimulus for the Bill of Rights, so only a fool blithely dismisses them).
But ultimately it’s the Constitution itself that is anti-democratic in important ways (and thank God for that!), and people who believe that democratic means can defend an anti-democratic document puzzle me. They seem romantically naïve to me, and dangerously so, as the majority of the demos is often brutally eager to override the rights of the minority.
Anti-federalist Brutus, for example, said that if interpretation of the Constitution was left to legislators, they would have to explain themselves to the public “at their peril.” Balderdash! There is no general public that is committed to defending the Constitution. Look at any contentious Supreme Court ruling, and overwhelmingly the responses to it are based on the policy outcome rather than on the constitutional aspects. To most partisans, the Constitution quite obviously authorizes everything they like and forbids everything they dislike.
Legislators—Democrats and Republicans alike—are rarely, if ever, at peril for advocating Constitution-violating policies.
They know what their own selectorate wants, and far from being criticized for violating constitutional constraints, they will be praised for it, because they are attacking the same constitutional constraints that frustrate their supporters.
Is the all-critical role of a small set of unelected/unaccountable officials problematic? It sure as hell is. But the relevant question, as always, is compared to what?