The Fourteenth Amendment Fantasy
The fourteenth amendment won’t save us from Donald Trump.
Eminent jurists are promising that it will. They argue that language in the Fourteenth Amendment, adopted after the Civil War, should debar the coup-plotting ex-president from appearing on a ballot for any office ever again. Their learning is undisputed. Their conclusions are another story. The project to disqualify Trump from running for president is misguided and dangerous. It won’t work. If it somehow could work, it would create problems worse even than Americans already face. In an ideal world, Trump’s fellow Republicans would handle this matter by repudiating his crimes and rejecting his candidacy for their presidential nomination. Failing that—and it certainly seems as if that hope is failing—opponents of Trump must dig deep and beat him at the polls one more time. There is no cheat code to win this game.
To understand what the legal experts are talking about, you need to imagine yourself back in the world of 1866, when the amendment was drafted. (It was ratified in July 1868.)
The North had won the Civil War, but its victory was put in jeopardy by the lax policy of President Andrew Johnson. The successor to the assassinated Abraham Lincoln had been pardoning former secessionists. He had been looking the other way as southern white elites terrorized freed slaves away from voting. As things were going, ex-Confederates were poised to regain power not only at the local level, but also inside the U.S. House and Senate. Union-loyal Republicans faced a terrifying prospect: After so much blood had been spilled, the defeated South might reclaim at the ballot box the political sway it had wielded before the Civil War.
Section 3 of the Fourteenth Amendment was written to prevent that outcome. Anybody who had held federal or state office before 1861, and who had then supported the Confederacy in any way, would be debarred from holding office of any kind, federal or state, civil or military. The power to restore political rights would be removed from the president and awarded to Congress. Congress would have to approve the restoration by a two-thirds vote in each chamber.
Soon enough, the problem addressed by Section 3 receded. Johnson left the presidency after a single term, replaced by Ulysses S. Grant. Republicans won a crushing victory in the House elections of 1866 and consolidated their hold on the Senate. By then, the population of the Union-loyal states was growing so rapidly that Republicans could form national majorities even if they lost every state in the South. The prewar world was not coming back. In 1872, a Republican Congress enacted a general amnesty of former Confederates, restoring the political rights of almost everyone disqualified in 1866. As the Civil War passed into history, Section 3 faded into obscurity.
Now some propose to reactivate it to use against Trump. Here’s where we wander into a minefield of problems.
The least of these problems is the legal one: whether Trump’s scheme to seize the presidency by fraud, then violence, amounts to a “rebellion” or an “insurrection” under the amendment. There will be a lot of disagreement on that point, enough to generate litigation. But let’s suppose that the excluders win in court or that the courts abdicate altogether, kicking the dispute back to the elected branches of government as a “political matter.”
In that case, the use of the section to debar candidates would not stop at Trump. It would become a dangerously convenient tool of partisan politics.
Let’s reconsider the text:
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.
Because Section 3’s meaning seemed so obvious in 1866, a lot of the hard questions about its interpretation and application were shrugged off. I’ll nominate just two examples.
First, the section does not apply only to candidates for president—it does not even mention the president. It mentions senators, House members, electors, and civil and military officers of the United States or any state. The section appears to apply to the presidency only as part of that final catchall category.
Second, that phrase “aid and comfort to the enemies thereof”—what does that mean? The language is copied from Article III, Section 3 of the Constitution. But there, the language was drafted to make it difficult to convict an accused person of crime: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Section 3 of the Fourteenth Amendment strips away all of the 1787 restrictions: the overt act, the two witnesses, the requirement of public confession. The question of what constitutes “aid and comfort” is left to the judgment of … wait—Section 3 gives no clue about how it should be enforced or by whom. Again, that’s understandable. In 1866, none of this looked complicated. But in a modern context, that enforcement question of a reactivated Section 3 will be nasty.
Consider the scenario in which Section 3 is invoked against Trump in 2024. Although he has won the Republican nomination, Democratic secretaries of state in key states refuse to place his name on their ballots, as a person who engaged in insurrection against the United States. With Trump’s name deleted from some swing-state ballots, President Joe Biden is easily reelected.
But only kind of reelected. How in the world are Republicans likely to react to such an outcome? Will any of them regard such a victory as legitimate? The rage and chaos that would follow are beyond imagining.
And then what? If Section 3 can be reactivated in this way, then reactivated it will be. Republicans will hunt for Democrats to disqualify, and not only for president, but for any race where Democrats present someone who said or did something that can be represented as “aid and comfort” to enemies of the United States. Didn’t progressive Representative Ilhan Omar once seemingly equate al-Qaeda with the U.S. military? Do we think that her political enemies will accept that she was making only a stupid rhetorical point? Earlier this year, Tennessee Republicans tossed out of the legislature two Black Democrats for allegedly violating House rules. Might Tennessee Republicans next deem unruly Democrats “rebels” forbidden ever to run for office again?
Where are the federal courts in all this? Do they actually stand aside as local officials exercise veto power over who’s a loyal enough American to be listed on the ballot for county commissioner? Do they really let the “elected branches” decide? And what would that mean in practice? The section transfers an otherwise presidential prerogative, the pardon power, to Congress. If the courts step back, does that not imply that the House and Senate must somehow find a way to wield the power of the section together?
That seems unlikely. But the alternative of judicial decision is fraught with institutional risks too. Imagine a serious effort to block Trump from appearing on ballots in 2024, and then suppose he challenges that block in court—and ultimately wins a ruling in his favor from the Supreme Court, by a margin of 5–4 or even 6–3. Now the rage and chaos would be reversed. A pro-Trump Thomas-Alito-Gorsuch-Barrett-Kavanaugh majority might obliterate whatever deference the Court still commands among Democrats and liberals. Although much is wrong with the present Court, this country will not be in a better or happier place if it loses its last, imperfect arbiter.
The cleanest exit from the Trump predicament depends upon Republican primary voters. They might spare the country the ordeal of renominating an insurrectionist president. Unfortunately, those voters do not seem in a cooperative mood. Trump’s multiple criminal indictments may send him to prison, but they will not exclude him from the ballot. It’s a long-established precedent that an American can run for office while under indictment, or even from prison. If GOP primary voters put Trump on the 2024 presidential ballot, the American majority is going to have to beat him at the polls.
The good news is that a consistent majority of the U.S. electorate has been anti-Trump every day since he declared for president in June 2015. The bad news is that the anti-Trump majority is a narrow one, and disfavored by the Electoral College.
Stopping Trump by electoral means will be a tough and arduous fight. The fancied alternatives are dreams and delusions. Legal process can prosecute and punish crimes. It cannot save a nation from itself. That duty falls instead on each of us.
This summer’s wish for a constitutional anti-Trump magic wand is an unfeasible, unhelpful fantasy. Let it go.