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Constitution

Historians Tackle 14th Amendment Section 3 and Fail (3 of 3): Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt

February 7, 2024
by Peter Feinman

This blog addresses the third of the three historian briefs submitted to the Supreme Court in support of the decision by the Colorado Supreme Court to disqualify Donald Trump from running for President of the United States under Amendment 14 Section 3.

JILL LEPORE

Before turning to the brief itself, Jill Lepore, one of the historians, wrote an article “What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President (New Yorker, December 4, 2023, online). The subject is Jefferson Davis, the ex-President of the Confederate States of America. Almost the entire article is about the failed effort to try Davis either for treason or under Section 3.

Amidst that recapitulation she raises some questions about today.

Can Donald Trump get a fair trial? Is trying Trump the best thing for the nation? Is the possibility of an acquittal worth the risk?… But the failure to try him is an affront not only to democracy but to decency…

Several times she expresses her awareness that no what verdict is rendered about half the country would not accept it. In these small digressions scattered throughout the article she has touched upon the core truth of the effort to disqualify Trump – the country is too divided for the issue to be resolved legally. Ultimately one should note it is a political problem and fortunately, not yet, a military one.

AMICI CURIAE: LEPORE, BLIGHT, FAUST, WITT

The reason for the filing of the brief is due to its gravity and “the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment” (Page 2). To do so requires “establishing the original intent, meaning, and public under understanding of the Disqualification Clause” (Page 2). Here they are using one of the jargon terms favored by the Trump judges on the Supreme Court.

They state the concern in the aftermath of the Civil War was:

That office-holders who had violated their oaths to the Constitution would reassume positions of authority, destabilize state and federal governments, and suppress freedom of speech. The Republican framers of the Amendment believed that anything short of the disqualification of insurrectionists risked surrendering the government to anti-Constitutionalists rebels (Page 2).

Considering the fact that an election-denier is the Speaker of House, this concern should be applied to a wide swath of people and not just to Donald Trump.

According to these historians, the framers “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism” (Page 3). Given the actions of Texas on its border with support of 25 governors and the state of Utah ratifying a nullification act, it would seem that banishing one and only one individual from the ballot seems like avoiding the issue. The intention was not that the amendment only would apply to Jefferson Davis and no one else. It was intended to apply to all Confederates including those who had run for the House and Senate.

Much of the remainder of the brief recounts the history leading up to the ratification leading up to the disqualification section. Sometimes they show that the circumstances involving the MAGAs and the Confederates are quite different without saying so. For example:

Northerners undertook to purge Confederate sympathizers from positions of authority both inside and outside of government and, in mass meetings called upon Congress to do the same (Page 6).

No such purge has occurred today. In fact, the exact opposite has occurred. Real Republicans who know the election was not stolen are the ones who have been purged from Congress or chosen to retire. The historians refer to Frederick Douglass who charged that many Confederate sympathizers remained within the federal government (Pages 6-7). In fact that is the exact situation now where the insurrectionists remain in Congress today and do so quite openly.

With this background in mind, the historians move on to the drafting and ratification of Section Three (Pages 15-26).

Lo and behold! Congress discovered continuing hostility in the southern states (Page 15). This realization strengthened the determination of the winning side to prevent representatives from the losing side being elected to office.

Sounds like MAGA.

In testimony before Congress J.W. Alvord of the Freedman’s Bureau was asked about the rebel feeling towards the government of the United States. His reply was:

There is evidently no regret for the rebellion, but rather a defence of it (Page 16).

Sounds like MAGA.

He was then asked about what the Confederates sought to achieve by their readmittance to Congress. He replied:

They seem to suppose that by re-admission they can get political power and obtain again the supremacy which they once had, with the exception of slavery.

Sounds like MAGA.

A tax examiner said:

No. I think they have a stronger aversion and dislike of the Union than when they seceded (Page 17).

Sounds like MAGA.

The initial ratification attempt failed. The Southern states as one might expect, opposed it. This action:

…reflected the emerging ideology of the Lost Cause, a tenet of which was the argument by ex-Confederates that they never had engaged in “rebellion,” should never be considered “rebels,” and had merely exercised legitimate rights of “sovereignty” with secession and war [it was legitimate political discourse] (Page 25).

Sounds like MAGA.

Matters came to a head in March 1867 when over a Presidential veto, Congress passed the Military Reconstruction Act. That Act stipulated that no state could be re-admitted without first ratifying the Fourteenth Amendment (Pages 25-26). In other words, it was the military power of the victorious Union which made the Disqualification section the law of the land.

In the final section, the historians turn to the persistence of Section Three. The story returns to Jefferson Davis and the inability to try him for treason. They call Davis a “cautionary tale” on the danger facing the nation if the leader of an insurrection could run for President (Page 30). They note by 1872, the number of petitioners requesting amnesty under Section 3 at between 15,000 to 16,000 people (Page 31). They also note that ex-Confederates would be elected governor and to other offices across the South (Page 32).

CONCLUSION

These historians have made a very strong case for the applicability of the 14th Amendment Section 3 … only not the one they think they made. They constantly refer to Jefferson Davis and his potential run for President. The implication is that the amendment was designed with someone like Donald Trump in mind.

But they acknowledge the widespread antipathy towards the Union by the defeated Confederates.

They acknowledge that it required the Military Reconstruction Act to implement disqualification in practice.

They acknowledge that thousands of people sought re-instatement from Congress.

As much as they focus on one individual, Jefferson Davis, they actually are making a case why all Confederates were disqualified. The current parallel is that all the MAGA who are election-deniers should be disqualified as well. But they can’t call for such a blanket consolidation because they know the war is not yet over and MAGAs could yet triumph. It is hard to see how this brief would persuade the Supreme Court to remove Donald trump from the ballot.

 

 

Historians Tackle 14th Amendment Section and Fail (2): Akhil Rees Amar and Vikram David Amar

February 5, 2024
by Peter Feinman

Remember when the 14th Amendment Section 3 was all the rage? Everywhere you turned there was one talking head after another discussing this amendment and section and guessing what the Supreme Court would do. In my previous blog (Historians Tackle the 14th Amendment Section 3 and Fail: How Come?), I proposed that the Court would not be swayed by the historians’ brief. The Jefferson Davis/Donald Trump and Confederate/MAGA parallels were inadequate. The primary reason was that the Confederates had lost the war. They knew the disqualification applied to them. By contrast despite the chaos in the House of Representatives, the MAGAs have

Stymied aid to Ukraine
Stymied aid to Israel
Stymied aid to the Palestinians
Stymied aid to Taiwan
Failed to secure the southern border
Impeached a Secretary of Homeland Security.

Plus their leader, the former President of the United States has been fined around $464,000,000 (it increases daily). Meanwhile there are criminal and civil cases in New York, Washington, Georgia, and Florida just chomping at the bit to have their turn. These two developments are a reminder that the fields of battle this time are political and legal and not military.

AMAR AND AMAR

The Amar’s begin their brief with the assertion that this case is “perhaps one of the most important cases in American history” (Page 1). To those who say the removal of “an immensely popular political figure from the ballot is profoundly undemocratic” (Page 1), they counter with:

… what is truly undemocratic is empowering a uniquely dangerous demagogue who already has disobeyed  his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists (Page 1).

They intend to address this deficiency by focusing on a “key episode, an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned” (Page 2).  They call this incident the First Insurrection. It occurred prior to the Second Insurrection aka the Civil War. It occurred prior to the inauguration of Abraham Lincoln as President in March 1861 (and not January 20 as we do today). During this interim period “high-level executive officials in Washington, DC, violated their solemn constitutional oath as apart of concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln” (Page 3).

As part of their analysis, they counter the key arguments which have been raised against the applicability of Amendment 14 Section 3:

Of course the President is an officer (Pages 17-18)
Of course implementation does not require Congressional action (Pages 21-22)
Of course a person can engage in insurrection with words as well as deeds (Pages 24-25)
Of course an insurrection can begin locally (Pages 25-26).

Their solution is unexpected. They understand the Constitution to provide a fifty-state solution.

JOHN B. FLOYD  

Having disposed of these false arguments, they then turn to the little-known story today of John B. Floyd (Pages 6-17). Back in the 1860s he was well-known. He was called the new Benedict Arnold because of his actions during the First Insurrection before the war broke out. He was a Virginia slaveholder serving as Secretary of War from 1857 to December 29, 1860. At that point, he resigned from office over the refusal of President James Buchanan to abandon Fort Sumter.

According to the Amars, Floyd endeavored to thwart a proper transition of power. [Think of Michael Flynn if he had been in office and even out of office.] That effort involved the transfer of multiple southern forts to the rebels from the time South Carolina formally seceded on December 20 until the firing on Fort Sumter in April 1861. Ultimately that effort failed and the Union prevailed over the Confederacy.

When Ulysses S. Grant became President in 1868, he appointed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. Canby decided that Section 3 was self-executing. He prevented disqualified candidates from becoming state legislators unless and until they had been amnestied by Congress as provided for the in amendment. The Amars note that “Canby acted on his own initiative” (Page 14). So it was not self-executing!

They neglect to mention that the military power was the basis for the successful application of Section 3. The Union had it, the Confederacy did not. Obviously that is not the condition which prevails to day in Congress. Quite the contrary, a MAGA is Speaker of the House and the majority of the Republicans in the Senate appear to be MAGA is well.

JANUARY 6  

The Amars suggest the insurrection of 2020-2021 “posed an even more egregious invasion of our democracy than the First Insurrection of 1860-61” (Page 14). They cite the flying of the Confederate flag in the Capitol and the disruption of Electoral College vote to illustrate advances the First Insurrection never attained. That happened as a result of what Donald Trump did and did not do “as recounted in the trial court of this case” (Page 15). That clause is a reminder that the Supreme Court is a decider of law and not facts.

They claim that Section 3 had people like John Floyd in mind when it was written. He was an insurrectionist officer. He had violated his oath just as Donald Trump had done. Putting aside their references to “chutzpah” and the “fictional Professor Mousehole” [I did not know one could write that in Supreme Court briefs!], the decision before the Supreme Court is an obvious one.

What the Amars fail to do is to identify who are the President Grant and Brevet Major General Edward Canby today. No Congressional action may be necessary to effectuate Section 3, but obviously, the military might of the winning side in their Second Insurrection was.

RESOLUTIONS  

The interesting part comes to the fore at the end of the brief. Once again the Amars contend that the states have wide discretion as decision makers in establishing the laws for conducting elections in the states independent of the Supreme Court. This argument sounds like a hail-Mary after a late night session in the dorm room. Or if you prefer, to throw everything up against the wall and see what sticks.

They also suggest that Congress could refuse to count electoral votes that it deems improper. For me, this suggestion raises fascinating possibilities. Take for example voter suppression. Suppose Congress (not the Vice President) decides not to count the electors from states where voter suppression actions enabled the MAGA candidate to win. This is not a question of alternate electors or fake electors as was tried in the 2020 election, but the exclusion of Electoral College votes from the count from the states that passed voter suppression rules in response to the stolen election which had never really been stolen.

Imagine if the Democrats who bring a plastic spoon to a gun fight and wonder why they lose identified the states where the Electoral College votes would be disqualified due to voter suppression!

 

What Is Our Ceremony of Belonging?

July 8, 2023
by Peter Feinman

What is our ceremony of belonging? As Americans. I am not referring to a ceremony of belonging to a particular religion. Nor am I referring to an initiation ritual into a fraternity or sorority or some other social organization. Nor as part of an Indian nation. Rather I am referring to an initiation ritual as a citizen of the United States.

For naturalized Americans the answer is quite simple. The naturalization ceremony whereby they legally do become citizens of the United States is the obvious answer. The participant will have completed a naturalization class and demonstrated sufficient knowledge about the United States on a test (now under revision). At the ceremony itself the participants are sworn in by a judge and surrounded by family and friends. At the conclusion, people cheer, cry, and wave flags. They may sing. Afterwards they may proudly hang proof of their citizenship on the wall at home.

But what about for native Americans? What about for the only people actually eligible to run for President? As we know, Republicans intend once again to make an issue of birth right citizenship for people who are born in this country. They would even go around the 14th Amendment to the Constitution. They would end that right through an executive order. Another example of people claiming that they have to destroy the Constitution in order to save it. It is another example also of people who do not know how the Constitution operates and think Presidents can do whatever they want as long as they are Republican. Why didn’t Mike Pence just follow orders?

More and more people are voting with their feet. They are moving to states and communities where they feel politically safe. There they can hang the flags they want, voice the opinions they have, and erection the signs of their choosing without fear. More and more states are becoming one-party states where one party controls the governorship and has a supermajority in the legislature. Imagine being a MAGA on a woke college campus or vice versa. There is no “come let us reason together.” Compromise means capitulation to the demon enemy.

In this environment it is all the more important to have a ceremony of belonging as Americans…if we still can, if it is still possible.

I am not referring to a legally-binding ceremony. The Constitution defines citizenship at birth. I am referring what religions know and have known for millennia. There needs to be a ceremony of belonging that signifies that today you are an adult member of the community.

Right now we do not have a “We the People” ceremony. True we do pledge allegiance but that is not enough and not everyone participates. On July 4 and Juneteenth we hear a lot about freedom. Obviously they are part of the American tradition. But we hear very little about “We the People.” We hear very little about anyone being part of We the People. We hear very little about September 17, 1787, when the Constitution was first adopted and with those words.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Where is the ceremony whereby Americans as individuals declare that they are part of something larger than themselves? Yes, the Constitution was a work in progress as even the Founding Fathers knew when they wrote it then amended it with the Bill of Rights. Yes, it should still be amended as challenging as that task appears to be now. But then again, how many countries today have had the same form of government for as long as we have? We should give some credit where credit is due.

Once upon a time high school served a roughly similar function in the American culture as a ceremony of citizenship. There was a class called civics. Upon graduation, surrounded by classmates and family, it served as a de facto sign of becoming an adult citizen along with the high school diploma. Unfortunately those days are over.

More is needed. My father used to tell me when I was growing up that democracy is a hands-on sport. And like any other sport, children needed to be trained in it so they would be ready to participate in democracy when they became adults. By hands-on, I do not mean physically fighting or threatening to as the way democracy operates. I do mean that students learned the skills and watched the adults in action as part of their training.

In elementary school for him, this meant visiting City Hall, sitting in the chairs of the Mayor and trustees, and conducting a mock session.

This process should be repeated as one matures in age and moves up the political food chain to the county, state, and federal level. And yes, for my father that did mean conducting mock sessions on the floor of the real House or Representatives where students debated amendments to the Constitution. Times have changed but the underlying principles have not.

Our government legislative chambers tend to be vacant most of the time. They are an underutilized resource for the civic training of the future voters in this country. It may be too late save the country from a “divorce” following the 2024 election and our country on our 250th  birthday may not be the same country it is today, but just in case we do survive and continue to exist, we need a full-fledged civics program to prepare future voters to be ready for the rights and responsibilities of being an adult citizen in the United States.

Program created by Richard Holman who participated in my father’s program as a high school senior.
Flyer is from last year.

Let the Students Speak: Bring Back Convention II, a High School Civics Program

February 25, 2018
by Peter Feinman
Washington at Constitutional Convention of 1787, signing of U.S. Constitution by Junius Brutus Stearns (teachingamericanhistory.org)

Shortly after the Bicentennial, Bob Feinman, my father, created Convention II. It was a mock constitutional convention run by and for high school students. It was not about laws but about amendments. The students would propose, debate, and sometimes even ratify changes to the Constitution. The 2/3 vote requirement for passage made it difficult but not impossible for a proposed amendment to pass.

Convention II was held in Washington, D.C., in the House of Representatives. The students for and against a given amendment would debate the proposed amendments in the various committee and meeting rooms of the House of Representatives. If the proposed amendment was voted out of committee then it would be debated before the full body of students. That debate occurred on the floor of the House of Representatives, a chamber rarely used on weekends. I am sure the tourists who entered the chamber and looked down were first shocked to find people there, second shocked to find out they were young people, and third shocked to find out that the speakers made sense. Again, for the students from around the country who didn’t know each other to garner support for their favorite amendments during a weekend of no sleep was part of the learning experience.

As reported in the Washington Post “Constitutional Parley Tests Students’ Skills At Lawmaking”:

Convention II, the only outside organization allowed to meet on the floor of the House, where participants wound up the five-day convention on Saturday, is run by Southeastern University’s Center for the Study of Federalism, based in the District.

The program was born eight years ago in the mind of New Rochelle, N.Y., politician and lobbyist Boris Feinman, who “got fed up and annoyed with the stupidity of most people about their form of government and how it works,” he said. He set out to put excitement back into learning the political process.

Feinman said Convention II is “an experience the students will remember for years to come.” It is not only an exercise in governmental procedures, he said, but a lesson in human relationships.

“We’ve got all kinds of people in there, from the coal miner’s kid to the Harvard-Ivy League type. But at the end of a four-day pressure-cooker session here, you’d be surprised at how these kids respond. They’ll sling away verbally at each other. But what comes out is a beautiful understanding of each other based on practical political dealings.”

My father’s hope was that a college in the District of Columbia (or elsewhere) would adopt the program. He did have some brief success with Southeastern University but the financial support wasn’t there and it was unable to sustain the program. My father labored on because for him it was a labor love. He believed democracy was a hands-on sport and the that the future adult citizens in a democratic society needed hands-on training and preparation if they were to be ready for the job as adults.

Over the years, my father had worked at all grade levels to bring students into the political arena where the sausage is made. In New Rochelle, NY, where we lived he brought elementary school students into the city council chambers. The students sat in the chairs of the mayor and council people and debated local issues. He traveled to the county seat in White Plains and the state capital in Albany before taking it to the next step and the floor of the House of Representatives.

One thing you quickly realize along they way is that for the most part these rooms are empty. Our legislators don’t have 9-5 five days a week 52 weeks a year jobs. There is always space available if someone asks and if the legislators are willing. Usually my father would begin the process through his own representative at the local, county, and state level. Working on the Bicentennial helped introduce him to other people at the federal level. For awhile he even was sharing an apartment with multiple Representatives who don’t buy homes in D.C. but room together to minimize expenses. I believe that arrangement still exists today. In any event, it did pay off and my father was able to bring high school students into the House of Representatives where they debated proposed amendments to the Constitution.

I doubt if such access would be possible today. I also wonder if the mock convention would even work. Security procedures have changed since then. The atmosphere is much more contentious now then it was back then – each of the two political parties undoubtedly would want to make sure that the student participants voiced only acceptable positions and didn’t support passage of something crazy. However it would be easier to televise the proceedings and give all Americans a glimpse into the level of discourse of which high school students are capable.

On the other hand, we have just seen that happen in the real world. Right now in a still ongoing process students are taking the lead where adults fear to tread. Death of fellow students has sparked the survivors to action in the adult world. They are seeking change and are politicking the adult legislators to affect such changes. Whether they will succeed or not is not yet known and what any legislated changes might actually pass also remains unknown. Still, this effort is civics in the raw complete with a televised visit to the White House with the President of the United States and appearances on TV news and talk shows. A mock convention this is not.

We also have had the opportunity to observe the reaction by some Americans to the sight and sound of these survivors calling for action so never again would such a massacre occur. We have heard that these outspoken students are not really survivors but actors. We have heard that the students are not expressing their thoughts but are reciting lines they have been coached to speak as if they were carrying cards to remind them of what to say. We have heard that the parents of the survivors who speak out have received death threats. We have heard that the impassioned words, emotional collapses, and call for change are all part of prepackaged show, that trained performers are dispatched at a moments notice to travel to sites of disaster to proclaim their anti-American agenda. We should realize that there is no “come let us reason together” between people who inhabitant alternate universes is possible.

All the more reason for restoring to civics to the k-12 curriculum. If Americans when growing up don’t learn how to talk to each other, then there is little likelihood they will develop that skill as adults. If all debates assume apocalyptic proportion as a cosmic fight for the fate of the universe, then no change for the better is possible. Perhaps watching our kids debate in the halls of power will become as highly watched as some other competitions.

There was a time once before when students, more likely in college than high school, spoke out for change. At that time the death they sought to avoid was their own death over there, in Vietnam, and not here in their own schools. The President responded with a call for more guns in Vietnam. He became a one term President who chose not to risk the wrath of the American voter. This time the President called for more guns in the school. How will the students react this time? How will the voters react?