Editor’s Note: Manisha Sinha is the Draper Chair in American History at the University of Connecticut. She is the author of multiple works on the history of slavery and abolition, the Civil War and Reconstruction, including the forthcoming “The Rise and Fall of the Second American Republic: A Long History of Reconstruction, 1860-1900.” She signed an amicus brief of historians in Trump v. Anderson. The views expressed here are hers. Read more opinion on CNN.
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As our country confronts another crisis of American republicanism unleashed by former President Donald Trump and his followers’ reluctance to accept the results of the 2020 presidential election, we are rediscovering the importance of the Reconstruction-era 14th Amendment to the Constitution.
Though ratified in 1868, the 14th Amendment laid the foundation of our modern rights in the 20th century and contains provisions to prevent an attempt to overthrow American democracy or compromise democratic governance. The framers of the 14th Amendment meant for it to be binding — if they didn’t, they would not have made it a part of the fundamental law of the country. A constitutional mandate is, most importantly, self-enforcing. It does not require a law or a trial to enforce it.
On Monday, the Supreme Court decided unanimously that Trump is not disqualified from the presidential ballot. The Supreme Court was united on the idea that Trump will remain on the ballot in Colorado and that the state cannot remove him off its ballot. But the justices were divided about how broadly the decision should be construed. A conservative 5-4 majority, usually very respectful of states’ rights, said that no state could remove a federal candidate off any ballot — with four justices, including the court’s three liberal justices, asserting that the court should have limited its opinion.
Although the 14th Amendment was ratified during Reconstruction, the period immediately after the Civil War, its provisions weren’t just for that historical moment in time, but a safeguard for the future. In ruling that Trump should stay on the presidential ballot of 2024, the Supreme Court has delivered a mortal blow to Section 3 that basically eviscerates its power altogether. In doing so, the court is living up to its sorry 19th-century history of emasculating Reconstruction federal civil rights laws and constitutional amendments.
The Colorado Supreme Court, in Trump v. Anderson, had upheld Trump’s disqualification per Section 3 of the 14th Amendment, but the high court baldly rejected that: “Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.” But Section 3 does not call for Congress to enforce disqualification for participating or aiding in an insurrection. It only gives Congress the power to remove that disqualification by a two-thirds majority of each house.
While correctly pointing out that the 14th Amendment restricted state autonomy, the high court again erred in claiming that the “Constitution empowers Congress to prescribe how those determinations should be made.” To argue that the “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency” is tantamount to claiming that the states have no power to uphold the Constitution.
It bears repeating that qualifications to run for president and the constitutional disqualification of Section 3 of the 14th Amendment are self-executing. The Colorado Supreme Court did not enforce that disqualification; it simply upheld Section 3 of the 14th Amendment. In their concurring opinion, the three liberal justices, Justice Elena Kagan, Justice Sonia Sotomayor and Justice Ketanji Brown Jackson, argued against “a chaotic state-by-state patchwork” that the Colorado decision would allegedly unleash, while chiding the majority for its lack of “judicial restraint” in ruling not just in this case, but for all future cases on the need for congressional legislation to enforce Section 3.
While the court’s liberal justices rightly grasped that the majority decision would emasculate the constitutional disqualification for waging and abetting an insurrection against the US government, they wrongly surmised that upholding the Colorado decision would allow each state to go their own way. Just as this decision allows Trump to be on the presidential ballots of all states, upholding the 14th Amendment disqualification would have meant his removal from the presidential ballots of all states. As during Reconstruction, when even Republican-appointed judges went along with undoing federal laws and constitutional amendments, the justices have also left us defenseless against future insurrection attempts. As they conclude, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”
The Supreme Court heard this case on appeal from the decision of the Colorado Supreme Court, which in Trump v. Anderson, a case brought by Colorado voters, ruled that Trump is disqualified from the presidential ballot under Section 3. The secretaries of state of Maine and of Illinois had also evoked this amendment clause in their attempt to remove Trump from the states’ ballots.
While many of the insurrectionists have been tried for their actions during January 6th, Trump is still on trial for this act of supreme betrayal to his oath of office and other alleged criminal misdoings. Trump, of course, vehemently denies this charge and claims executive immunity from all wrongdoing. He is also fast becoming the presumptive Republican candidate for the presidency. In their decision, the Supreme Court made no attempt to decide whether Trump and his followers did engage in an insurrection or not.
The language of Section 3 is clear and unmistakable: Any person who has sworn an oath of office to uphold the Constitution and then participated in or given aid and comfort to a violent insurrection against the government of the United States is barred from holding office unless pardoned by two-thirds of both houses of Congress. The president, like any other federal official who takes such an oath of office on the United States Constitution, is covered by this provision. Trump’s lawyers’ attempts to hold the president of United States above the rule of law and endow him with absolute immunity, even in cases of personal wrongdoing, make a mockery of our republican form of government, a constitutional guarantee and would convert our republic into a monarchy where the king can do no wrong.
The Republican Party of the mid-19th century, the party of former President Abraham Lincoln and big government, sought to safeguard the American republic from all future insurrections after the slaveholders’ rebellion that had precipitated a crisis of the Union and Civil War. Historians and legal scholars, who submitted amicus briefs to SCOTUS in Trump v. Anderson, overwhelmingly agreed on Trump’s disqualification, citing copious amounts of evidence from the framers of the amendment and congressional debates. In the interest of full disclosure, I signed one of the briefs and my book was cited in the other.
For the conservative majority in the Supreme Court to ignore this historical testimony is tantamount to betraying their own principles of constitutional interpretation, originalism that looks to the original intent of the framers of the Constitution. For them, it’s strict construction for thee but not for me. Not to mention that one of them, Justice Clarence Thomas, is highly compromised, given his wife’s involvement in the events that preceded the January insurrection, and should have recused himself from this case.
But even some of the liberal judges, including Kagan and Jackson, put forth a line of questioning that betrayed an outdated adherence to ideas of states’ rights, which should have died on the battlefields of the Civil War, and that has historically allowed the court to ignore the plain meaning of the Reconstruction amendments. If Colorado and Maine can remove Trump from the ballot, why would red states not do the same to President Joe Biden, they mused. But if the Section 3 disqualification had been upheld by the Supreme Court, it would have had a national effect and would not have been confined only to Colorado. Unlike Trump, President Biden faces no such automatic, self-executing constitutional disqualification nationally.
Of course, the Supreme Court has a sorry history of political meddling even as it has sought to wrap around itself the robes of impartial jurisprudence. From the Dred Scott decision of 1857, which sought to outlaw the platform of the newly formed antislavery Republican Party and declare African Americans non-citizens, to Plessy v. Ferguson (1896), which facilitated racial apartheid in the South, the Supreme Court has played an especially abysmal role in undermining democratic governance and equal justice for Black Americans in the 19th century.
The interracial democracy of Reconstruction was overthrown not just by domestic terror in the postwar South perpetrated by the Ku Klux Klan and similar racist groups, but also by a series of reactionary judicial decisions rendered by the Supreme Court in cases such as United States v. Cruikshank (1876) that let the perpetrators of one of the worst racial massacres in the South go scot-free, the Civil Rights Cases (1883) that allowed the rise of racial segregation, and Williams v. Mississippi (1898) that allowed southern states to disfranchise Black men using legal subterfuge in violation of the 15th Amendment.
Using states’ rights reasoning of “state action” and the state’s “police powers,” the Supreme Court left Black Americans to the tender mercies of ex-Confederates, who inaugurated a regime of disenfranchisement, Jim Crow, convict lease labor, debt peonage (which it finally outlawed in 1905) and racial terror. The court also never implemented the provision of the 14th Amendment that would make southern states suffer a loss of representation in Congress for disfranchising Black voters. This is another sleeping giant in the 14th Amendment that can be activated against states with voter suppression laws today.
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Only relatively recently has the Supreme Court upheld the equal protections of the 14thAmendment to dismantle Jim Crow and establish gay marriage and reproductive rights for women. But the right-wing majority in the Supreme Court has been steadily walking back those decisions and acting true to historical form in emasculating voting and reproductive rights. The Supreme Court reversed Roe v. Wade (1973), the right to privacy derived from the 14th Amendment, in Dobbs v. Jackson Women’s Health Organization (2022) and kneecapped the Voting Rights Act of 1965 enforcing the 14th and 15th amendments in Shelby County v. Holder (2013).
It seems the court develops political qualms in enforcing the Constitution only when the fate of American democracy is at stake. With its approval ratings at a historic low, SCOTUS, instead of correcting course, has adhered to the mostly dismal historical record of the Reconstruction-era Supreme Court.
There is not substantial case law regarding Section 3, precisely because the country has not been subject to violent domestic insurrections since the slaveholders’ rebellion. Just as the 14th Amendment’s equal protection clause for freed people was misused by the courts during the Gilded Age to protect corporations from government regulation, the only time Sec3 was implemented was when it was misused against Socialist Party representative Victor Berger, who opposed the First World War.
Berger’s lawyer wrongly argued that Sec 3 had been repealed by the Amnesty Acts of 1872 and 1898 that pardoned all ex-Confederates, as if it were formulated only for them. While Berger was ultimately vindicated and got to serve in the House of Representatives, everyone acknowledges that Section 3 of the 14th Amendment is a binding, enforceable part of the Constitution.
But just as it has gutted the protections and provisions of the 14th Amendment in the past, the Supreme Court has now rendered ineffectual its one provision that could prevent the overthrow of the American republic.
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