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Section Three

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!