When a narrowly divided Colorado Supreme Court threw Trump off the state’s primary ballot in December on the basis of Section 3’s plain language, my initial reaction was, well, political — and skeptical.
While I agreed that Trump had, indeed, engaged in insurrection, I thought it would be best for the country to have him go down to defeat again in a free and fair election. Keeping him on the ballot so voters could decide was the path to long-term institutional stability and might finally force a reckoning in the Republican Party.
Many people I respect continue to hold versions of this view. But the more I read and listened, the clearer it became that Section 3 was directed against precisely the conduct Trump engaged in. Its purpose is to protect the republic from those who would shred the Constitution and destroy our system of self-government. What Trump did in advance of the attack on the Capitol and on Jan. 6, 2021, legally disqualifies him from the presidency.
The record is clear that the legislators who wrote and enacted the amendment in the wake of the Civil War were not just thinking of the Confederacy’s leaders but also of “the leaders of any rebellion hereafter to come.”
Those are the words of John B. Henderson, a Republican senator from Missouri, when he cast his vote for the amendment in 1866. They are recorded in a powerful amicus brief filed with the Supreme Court by a distinguished group of historians of the era: David Blight, Drew Gilpin Faust, Jill Lepore and John Fabian Witt.
The amendment’s authors, they argue, “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism.” It was intended “to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States.”
They back up these assertions with a compelling 34-page account of what the framers of the amendment intended and why they wrote it as they did. The essay should encourage conservatives on the Supreme Court, which hears the case on Thursday, to ponder words they love, “originalism” and “textualism.”
Other historically minded briefs made it harder for me to stick with my earlier, prudent view. A group of 25 historians, including James McPherson, the Civil War’s premier chronicler, and Nell Irvin Painter, a specialist in Black and Southern history, cite the congressional debate on Section 3 to show that it plainly applies to the office of the president. They offer clear evidence that implementing the section “did not require additional acts of Congress,” as some defenders of Trump claim.
Sherrilyn Ifill, a Howard Law School professor and former president of the NAACP Legal Defense Fund, shows how the clause to disqualify insurrectionists is closely linked to the 14th Amendment’s core purpose, “a bold and expansive promise of citizenship for Black people.” Its framers were preoccupied with the “ongoing resistance to full Black citizenship by southern states” and feared that “Black men who had been loyal to the Union … would be disenfranchised, while disloyal white former Confederates would be rewarded with the vote.”
Trump is a present-day embodiment of their fears, she wrote, having offered “a false narrative discrediting the votes cast in jurisdictions with high concentrations of Black voters,” including Detroit, Philadelphia and Atlanta.
And to argue that barring Trump from the ballot is “antidemocratic,” wrote professors Carol Anderson and Ian Farrell in another brief, is “ironic … as he bears by far the most responsibility for attempting to subvert democracy on Jan. 6.” An effort to overthrow constitutional procedures, wrote Ifill, should be distinguished from political protests, even those “accompanied by sporadic acts of violence.” Demonstrators are not the same as a mob trying to hijack the government.
There are paradoxes galore on this matter. Believing Trump should be unable to run, for example, is the opposite of a partisan wish, since he is without question the weakest Republican whom President Biden could face. Another: Even if Colorado was right to block Trump from the ballot, it shouldn’t be allowed to do so on states’ rights grounds alone. This is a national question, and the court should not duck the fundamental issues at stake — though my hunch is that the court might look for a way to punt.
The biggest paradox of all: Throwing Trump off the ballot would seem, on its face, the opposite of democracy. Yet the whole point of Section 3 is to protect constitutional democracy from anyone who has already tried to destroy it. If its provisions don’t apply to Trump, they don’t apply to anyone. The court would not be disqualifying him. He disqualified himself.
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