Both Sides Now: The Fourteenth Amendment and Donald Trump

In my last post, I discussed the difference in legal philosophies between letter-of-the-law conservatives and spirit-of-the-law liberals and how it applied to Donald Trump’s claim of blanket immunity.  Those philosophies also apply to the Section 3 arguments, although here they are turned on their heads.

Anyone—or anything—that rises from the dead more than a century and a half after being interred is bound to provoke a good deal of frenzied speculation.  Section 3 of the 14^th Amendment is no exception. 

Prompted by a law journal article by two right-wing professors and then leapt on by legal scholars J. Michael Luttig and Laurence Tribe, Section 3, initially chortled at as a fringe theory, is now being promoted as the constitutional basis for denying Donald Trump a chance to run for re-election.  Two states, Maine and Colorado, have used its prohibition against “insurrectionists” holding public office in ruling Trump off the ballot.

As with virtually every political question in modern day America, those decisions have prompted either cheering or outrage, and, once again, the Supreme Court is sure to be the final arbiter.

Since much of the commentary has involved either yelling and screaming or arcane analysis of minuscule questions of law, it might do to take a step back and see what Section 3 was actually all about.  To do that, it is necessary to examine it not as a stand-alone, but as it was intended, part of an overall strategy by victorious northerners to remake the post-slavery South in their own image.

The three Reconstruction amendments are the best known and most cited of any not in the Bill of Rights.  Still, while the 13^th, which abolished slavery, and the 15^th, which guaranteed that the right to vote could not be denied on the basis of “race, color, or previous condition of servitude,” are brief and to the point, the 14^th, which contains five sections, has wording a good deal more obscure and has spawned furious debate and reams of jurisprudence.

Until very recently, only Section 1 received any attention.  That section granted both national and state citizenship to anyone born in the United States, a clause that, by not excluding the children of parents in the country illegally, has become controversial in its own right.  In what turned out to be even more at issue, Section 1 also forbade states from abridging the “privileges and immunities of citizenship,” or denying any person, not just citizens, due process or equal protection of the law. 

Section 1 was meant to coexist with Sections 2 and 3, which together would redefine the electorate in the states of the defeated Confederacy.  After eliminating the 3/5 clause from congressional apportionment, Section 2 declared that if the right to vote was denied to male inhabitants of any state who are “twenty-one years of age, and citizens of the United States…except for participation in rebellion, or other crime,” the number of representatives the state would be allowed in Congress would be reduced proportionally.  In this way, white southerners could not deny Black citizens the right to vote while gaining a disproportionate share of congressional seats and electoral college votes.

It did not work out that way, of course.  With the full cooperation of the Supreme Court, Black citizens were indeed denied the right to vote and not once in our history was a state’s congressional delegation reduced as a result.  (If anyone is interested in how that occurred, I wrote an entire book on the subject, On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights.)

Section 3, which all the fuss is about, was meant to be the corollary to Section 2.  At the same time that newly enfranchised Black citizens were to be incorporated into government, formerly enfranchised white Confederates were to be shut out of it.  This was to include anyone who had taken an oath to support the Constitution and then “engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”  Interesting here is that those who deny the right of states to keep Donald Trump off the ballot often do so by noting he has not been convicted of a crime.  But not only does the sentence fail to require a criminal conviction, the “aid and comfort” clause could certainly be applied to a man who called the Capitol rioters “beautiful.”

Taken together Sections 2 and 3 were clearly intended to be the means by which southern state legislatures and congressional delegations were to be packed with newly-minted Black citizens and white Union supporters, almost certainly a minority of the defeated Confederacy’s inhabitants. The “New South,” then, was to be no more representative of all its citizens than the Old South had been.

Critics of employing Section 3 to deny Trump access to the ballot have a number of criticisms beyond the lack of a criminal conviction.  First is the broad assertion that the section is an anachronism, which is true, but no more so than the 2^nd Amendment, which was inserted into the Constitution to ensure that militias would be available to a nation with only a tiny standing army.

Next, in parsing Section 3, they point out that the prohibition is restricted to those who had been members of Congress, or “an officer of the United States,” not an “executive officer,” as with state governments.  If this assertion is to be taken seriously, that would mean that a former insurrectionist could not participate in national government, except as president or vice president, when it would be just fine.  Not exactly persuasive.

Another attack on disqualification points to Section 5, which states, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” an indication that only the national government has the right to declare who is an insurrectionist ineligible to hold public office.  But that is not what the text says. If only the national government had that ability, the section would have read “sole power.” 

Whether any of these objections to Maine’s and Colorado’s disqualification of Trump will be upheld will, as noted, be decided by the nine justices of the Supreme Court.  And that is where things will get interesting. 

For those who are guided only by the text, which means the six conservatives, especially the three amigos, Thomas, Alito, and Gorsuch, the language is clear.  Donald Trump either actively or passively—aid and certainly comfort—participated in the January 6, 2021, storming of the United States Capitol, an insurrection if there ever was one.  His candidacy for president, or for any other office, should therefore be annulled. 

For those who look beyond the text, the three liberals, Section 3 was clearly aimed at a specific 1868 population to achieve a specific purpose and its broad wording should not be stretched to allow Trump to, in effect, be convicted without trial.

Therefore, if each justice adheres to his or her legal philosophy, the vote should be 6-3 in favor of removing Trump from the 2024 ballot. 

There might not be sufficient zeroes to set the odds on that occurring.