Does the Constitution permit Donald Trump to be on the 2024 Presidential ballot? The question arises because of a long-neglected part of the 14th Amendment. Section Three provides that no person can hold political office if, having taken an oath to support the Constitution as a state or federal official, they “engaged in insurrection or rebellion.” Section Three was designed to respond to the danger that former Confederate states might (as indeed they did) elect former Confederates to Congress and pursue politics as the continuation of war by other means. But the century and a half after the Civil War, brought no insurrections, and Section Three lay moribund, an object of only historical interest.
January 6, 2021 changed that. At least, it did if you accept the arguments put forward in the University of Pennsylvania law Review by leading conservative originalists William Baude and Michael Stokes Paulsen and in an article by Federalist Society co-founder Steven Calabresi. Trump engaged in insurrection, they argue, and declaring him ineligible for the Presidency is no more than the Constitution demands. “[T]he case is not even close,” Baude and Paulsen declare. “All who are committed to the Constitution should take note and say so.”
The counterargument, offered by another prominent conservative originalist, Michael McConnell, is that excluding Trump from the ballot is extreme, divisive, and anti-democratic. We should read Section Three as narrowly as we can, he says, in order to “allow the American people to vote for the candidates of their choice.”
Both sides appeal to important values. The proponents of disqualification call for fidelity to the Constitution; McConnell offers a plea for democracy. I do believe that some constitutional provisions are anti-democratic (I will discuss some later) and generally I am sympathetic to readings of the Constitution that promote democracy. But there’s an important question that comes first: is it anti-democratic to exclude some people from the political process? The answer, I think, is that it depends on who they are, and history has some things to teach us here.
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The Constitution written in 1787 was not as democratic as you might think. States were allowed to set their own rules for voting, excluding Black people, women, and even white men who didn’t own enough property. Even those who met the qualifications weren’t guaranteed the right to vote for President. The manner of appointing electors was up to the state legislature, and it wasn’t until after the Civil War that every state switched to a popular vote in choosing their electors. The Electoral College, which incorporated the notorious three-fifths compromise, detached the selection of the president further from the popular vote by giving enslavers greater political power.
Reconstruction—the process of rebuilding the nation after the Civil War, with the 13th, 14th, and 15th Amendments—changed that. When we think about Reconstruction now, we often think about individual rights. That’s not wrong. The 13th Amendment gave liberty to the formerly enslaved. The 14th Amendment protected fundamental rights like speech and religious exercise from state infringement, and it guaranteed all people the equal protection of the laws.
But Reconstruction was something more than an expansion of individual rights. It was a new commitment to democracy. That commitment was manifested by some inclusive measures. Black people were guaranteed citizenship by the 14th Amendment, and their right to vote was protected against racial discrimination by the 15th. (But not against sex discrimination; women did not win the right to vote until the 19th Amendment in 1919.) The 14th Amendment also punished states that abridged the right to vote—a state legislature can still take away your right to vote for president, but the state will lose Representatives in Congress, and hence electoral votes.
Reconstruction protected democracy by exclusion, too. Inclusion and exclusion are two sides of the same coin: a political community is defined both by who it lets in and by who it keeps out. When Congress rebuilt the southern states with the Reconstruction Acts, telling their people to write new constitutions and elect new governments, it prescribed that the formerly enslaved could participate and the former confederates could not. Anyone who wanted to vote in these constitutional conventions had to swear that they had never taken an oath to support the Constitution “and afterwards engaged in insurrection.”
The Reconstruction Amendments are the constitutional version of these Acts. They include the formerly enslaved by making them citizens and giving them the right to vote. They exclude the former confederates, some of them. How should we construe these democracy-protecting provisions of our Constitution? As if anticipating McConnell’s concerns, the Reconstruction Act of July 19, 1867 told readers what to do: “all the provisions of [the Reconstruction acts] … shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out.”
That is the first thing history can teach us. We had anti-democratic exclusion before the Civil War. Only a true American, the Founders believed, had the right to participate in American self-governance. “True” for them meant “real,” and it had a racial element. (Forget about holding office or voting; in the Dred Scott decision, the Supreme Court said that Black people could never be United States citizens.) But after the Civil War, the Reconstruction Congress used pro-democratic exclusion. “True” for them meant “loyal,” and the first Black Member of Congress was Hiram Revels of Mississippi, in 1870. Being a true American now is not about the color of your skin but the content of your character.
And this is the larger theme of American constitutionalism, that what unites us is not race or religion or loyalty to a person. It is loyalty to an idea, to the Constitution, and the Constitution is what we swear to support. If you are not loyal—if you are an oathbreaker and an insurrectionist—you are not one of us.
So what should we do with this legacy now? Should we fight for democracy by enforcing the exclusive provisions of the Constitution as well as the inclusive ones, or should we read them narrowly and pursue reconciliation? Everyone agrees the President has to be at least 35 and a natural born citizen; is it less important that he not be an insurrectionist oathbreaker?
History has something to tell us about this, too. We know what happened last time. Restraint and reunion led to the overthrow of Reconstruction, to segregation and Jim Crow. With the compromise of 1876, the North abandoned the integrated Reconstruction governments and welcomed back the defeated insurrectionists. Former Vice President Alexander Stephens represented Georgia in Congress; former General Wade Hampton represented South Carolina.
The period that followed Reconstruction saw former insurrectionists take back power in the South. There are echoes of that moment in the present day, but the question is not regional now; it is national. January 6 was not about one part of the country; it was about the whole thing.
“Fight like hell, or you won’t have a country anymore.” That was Donald Trump on January 6. He might have been right.
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