The Blot on the Fourteenth Amendment
Even if he engaged in insurrection, thwarting Trump via Section Three of the Fourteenth Amendment is a dangerous idea.
The Fourteenth Amendment, designed, as Justice Harlan put it in his dissent in Plessy v. Ferguson, to bar the creation of a government-enforced caste system in America, also meted out punishment to those who had lately rebelled against the federal government. For the benefit of any sleepyheads who haven’t seen it yet, here is the text of the amendment’s Section Three:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.
As one would have anticipated, the Internet has lately spawned scores of instant Section Three experts. I’m not going to join the crowd. The controversies about what an insurrection is, what it means to engage in one, whether the Presidency is one of the offices that an insurrectionist cannot hold, and who gets to decide those questions are fascinating to a lawyer, but it would be hard to say something about them that was interesting, original and true. More importantly, too little attention has been given to the threshold question: Assuming arguendo that Section Three indubitably applies to Donald Trump, would invoking it pass muster under the first test of any political action, namely, prudence? Will the country be chopping off a hand to be rid of a hangnail?
The motive for the enactment of Section Three isn’t hard to discern. Over 600,000 soldiers, a quarter of those who served, were killed in the Civil War, more than in World War II (out of a much smaller population). Many Northerners doubted that former rebels would loyally return to the fold and believed that a strong hand would be necessary to stamp out thoroughly the spirit of rebellion and safeguard the newly freed slave population. The prospect of allowing men who had recently been in arms against the Union, particularly those who had previously taken oaths “to support the Constitution of the United States”, to insinuate themselves back into office at either the state or the federal level seemed suicidal.
In those circumstances, Section Three looked like a sensible prophylaxis. There was no real doubt about who had “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof”. Very quickly, however, the perceived need to disqualify them from office dwindled. Reconstruction wasn’t a smooth and easy process, but the South didn’t become an American Poland, and excluding a large portion of the white Southern population from office holding came to be viewed as an irritant that worked to the advantage of the Ku Klux Klan and other irreconcilables.
Amnesty was on the table before the Fourteenth Amendment was even ratified. In June 1868, Congress enacted legislation to remove Section Three disabilities from about 1,000 men, including a Representative-elect from Tennessee. The Republican Party platform in 1868 stated: “[W]e favor the removal of the disqualifications and restrictions imposed upon the late rebels, in the same measure as the spirit of disloyalty will die out, and as may be consistent with the safety of the loyal people.” Until 1872, Congress relied on private bills to remove Section Three disabilities from thousands of individuals. According to James G. Blaine, the unwritten rule was that “everyone who asked for [amnesty], either through himself or his friends, was freely granted remission of penalty.”
[Gerard N. Magliocca, “Amnesty and Section Three of the Fourteenth Amendment”, 36 Constitutional Commentary 87, 112 (2021)]
In 1872, the scope of Section Three was restricted to pre-war federal officers. In 1898, Congress made amnesty available to all upon request.
All of these measures were approved, as required, by super-majority votes of both Houses. In other words, within six years after Section Three’s passage by Congress and four years after its ratification, the men who had fought against the Confederacy reached a consensus that the sanction against insurrection was largely unnecessary and perhaps undesirable. Symbolic of its evanescence was the seating of Alexander Stephens, former Confederate vice president, in the House of Representatives in December 1873. He served until 1882, when he was elected governor of Georgia.
Nonetheless, Section Three remains in the Constitution, ready, like Beowulf’s magic sword, to be hauled out of storage to confront a new menace. Should it be taken from its repose?
Donald Trump is a widely unpopular figure, as, in my opinion, he ought to be. He does, however, have a base of support that is large enough and loyal enough to make him the overwhelming favorite for the Republican Presidential nomination. That base probably comprises a fifth to a fourth of the population. Polls indicate that many more would vote for him, faute de mieux, against President Biden. Also, counterintuitive as it may seem, the former President’s multiple legal entanglements – four criminal indictments and a host of civil lawsuits – apparently have strengthened the loyalty of his fans.
What would be the reaction to Trump’s removal from the ballot? Do those who believe that “MAGA Republicans” are a threat to “our democracy” also believe that they will quietly accept his being banned from running for office? If Trump entertains any notion of seizing power by force, that scenario is the perfect opportunity. A couple of thousand Trumpists rioted in the Capitol building on January 6, 2021. How large and widespread will the riots be if the “Deep State” invokes Section Three?
And wielding Section Three would not stop with Donald Trump. Lawsuits have been brought to disqualify dozens of candidates for Congress and other federal and state offices. If January 6th was an insurrection, many of the targets of those legal actions engaged in it more directly than did Trump. From his disqualification, it follows, “as the night the day”, that the lesser fry will be thrown off ballots, too, thus reinforcing claims that American elections are being turned into charades with predetermined outcomes.
Let us suppose, though, that MAGA accepts Trump’s removal quietly. The story won’t end there. Section Three, complete with the very broad definitions of “insurrection” and “engaged” that have been deployed against Trump, will be available for future use by all factions. Disruptive protests at state legislatures, almost always left-wing, are not uncommon. Just a few days ago, anti-Israel protestors forced the California State Assembly to adjourn its opening session prematurely. In February and March 2011, tens of thousands of leftists tried to prevent the enactment of alleged “anti-union” legislation by occupying the Wisconsin state capitol. Were those events exercises of the First Amendment right to petition the government for redress of grievances, or were they insurrections? It will be easy to make the case for the latter in the aftermath of widespread Section Three disqualifications this year.
To summarize, removing Donald Trump from the ballot via Section Three carries a high risk, indeed a near certainty, of civil disorder both this year and for years to come. The offsetting benefit is that it would ensure that Trump would not be elected President again. That “benefit” is unneeded unless (i) Trump would otherwise win a Presidential election and (ii) after winning would engage in acts worse than the consequences of preventing him from running. To say that the cost-benefit analysis favors Section Three is speculative, to put it mildly.
Donald Trump is neither immortal nor omnicompetent. He can serve as President for four more years at most. During his first term, he showed no special talent for achieving his political goals, which were often vague or unrealistic. (Where is The Wall? Has Mexico paid for it?) As President, he would not control Congress or the courts, nor even have full control in practice over the armed forces or the bureaucracy (as was illustrated over and over again during his first term). Most likely, his fixation on his 2020 defeat and alienation of a large fraction of the conservative “elite” would render him largely ineffective. At the very worst, he will be a passing storm. A revitalized Section Three will haunt us for decades to come.
In any event, the Democratic Party has a clear and easy course to keeping Trump from regaining the Presidency, one that doesn’t depend on a Constitutional provision that was ineffective at its origin and has been dormant ever since. It can nominate candidates other than Joe Biden or Kamala Harris. Trump’s strength in the polls is purely a reflection of his prospective opponents’ well-earned unpopularity. If he is as dire a threat as the Section Three advocates imagine, surely it is a small sacrifice to send Mr. Biden into graceful retirement in his Delaware mansions and Mrs. Harris back to California, where her talents are better appreciated than on the national stage.
Let me add that Beowulf’s magic sword failed when he put it to use.
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