The Constitution: Getting Quite a Workout

It's not just Section Three of the 14th. The 13th Amendment is up for discussion again too--and when it comes to the history, less and less sense is being made.

After Maine followed Colorado in upholding the claim that Trump is barred from the Republican primary ballot on the basis of Section Three of the Fourteenth Amendment, a lot of discussion broke out in articles and in social-media responses to articles, not only regarding the possible backfire of using disqualification to block Trump’s reelection (if the Supreme Court slaps the effort down, Trump will get a chance to crow and anti-Trump forces will yet again look silly, humiliated, and desperate) but also regarding what some see as a fatal impact on American democracy, should the thing hold up, of avoiding an electoral contest via a judicial ruling.

That concern reflects an idea that the only enduring way to defeat the antidemocratic ethos, not just of Trump but of Trumpism as a whole, is not via the suppression of a candidacy and its supporters, which is also antidemocratic, but via the ballot box. Others disagree with those criticisms on multiple grounds, and if you haven’t read all about it, you can do so somewhere other than here. Search “Samuel Moyn,” an important legal scholar and historian, along with some relevant keywords, and start down the rabbit-hole.

Here, we have to consider other issues—though they’re related—because I’m certainly no prognosticator or a guide to what’s best for the country. On the one hand, yes, it does seem to me that this whole thing is probably just yet another “Waiting for Godot Mueller Garland Davis” religious drama reflecting a faith indulged in by liberal secularists, and unquenchable by event after event to the contrary, for almost ten years now, that some structural norm or system will ultimately have to kick in and save us from the Monster—that we can’t have been left by our framers so fully exposed to disaster, with the only recourse the stupid American electorate. Big-time, public-facing law profs won’t stop coming up with these hyperconstitutionalist gambits, supposedly designed as slam-dunk obstructions of the likes of Trump. (Remember the emoluments clause? Good times.)

All that brainy opining looks to me like a made-for-cable-news circlejerk of profile enhancement, lacking anything real for helping us get rid of the glaring problems we face.

But hey, maybe this time it’ll work, and in the highly hypothetical event that the Supreme Court upholds Trump’s disqualification by certain states, and if the section is invoked in the general election by states that matter, would it really be, hypothetically, such a terrible threat to American democracy? The iron-clad fact that there will be unintended consequences means that any negative consquences for democracy can’t be predicted any more precisely than anything else. It’s not like democracy is otherwise in such great shape, and in this scenario, at least Trump wouldn’t be president.

It’s also worth noting that the operation of democracy in the United States has never equated solely with elevating electoral majorities at all costs. Both the Constitution and federal legislation protect minority rights and limit eligibility for office. (As the rightists like to say: It’s a republic, not a democracy!)

Anyway, good luck with all that. The issue for BAD HISTORY is the weird way people are now arguing about the Constitution—the unwarranted confidence by many on all sides that the document’s text is fully sensible when fairly interpreted, the general unwillingness to accept what to me seems a strange but possibly not totally devastating fact that there are some things in the Constitution that, at this point, make no sense at all and simply can’t be assessed and applied in any logical way. I think the entire Second Amendment is one of those things, as I’ve tried to show, and to show repeatedly. And repeatedly.

And I think Section Three of the Fourteenth is another one.

Sure, the section looks like it made some sense at one point—for a very few years, a very long time ago. I’ve covered the bad history involved, so I won’t review it here. There are good reasons that the section has been a dead letter for generations.

Still, it’s there in the document, so it could of course still be applied, technically. So let’s pretend we’re Supreme Court justices trying to figure how it might be applied to Trump. What might we conclude?

That’s a fair exercise, by the way, because people excited about barring Trump from office via the section are expressing a certainty that it can be applied, which has to mean, or should, that they’ve got a constitutional theory regarding applicability. Also, as I’ve discussed elsewhere, a lot of Supreme Court argumentation about matters of history, which are certainly involved here, is more like historical fiction than law.

So why not pretend to be experts? Everybody’s doing it! including the justices.

Well, then, if I’m a “just follow the plain words of the Constitution” judge, I’d say that these plain words . . .

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.

. . . do apply to former President Trump (I mean, come on, how could they not).

But I also have no choice but to be wrenched painfully out of my “plain words” mode and wonder why no due process of law seems to be involved in those words—and wonder, really, since it’s now come before me for adjudication, how on earth the thing was ever supposed to be enforced, logistically, since it’s supposedly self-executing?

Happily, I'm a Supreme Court justice. I can get some clerks to study up on the matter while I go to the opera.

I’m back, the clerks have done their job, and now I get it. When the amendment was written, it was quite literally self-executing, in that almost all of the former officers and officials of the Confederacy to whom it applied simply knew, given the amendment and the fait accompli of U.S. victory, that they were disqualified, so they didn’t even try. A lot of them did write letters to government pleading to be requalified. But for the very brief period when the section served a purpose, it was the disqualified people themselves who mainly executed it. In the very rare cases where election officials or others had to intervene to enforce it, and the former Confederates therefore sought relief in court, the plaintiffs failed because, again, there wasn’t going to be any real argument over whether they’d committed or aided insurrection or any question of supposed mistaken identity or whatever. The Civil War had just happened, there was no debate about what it was, and everybody knew everybody. To quote a newspaper article of the day, covering one such case:

“Your Honor, Mr. Johnson served before the war as a justice of the peace of the state of Alabama and claims section three doesn’t apply to him.”

“Then why is he standing in my courtroom wearing a Confederate officer coat proven to have been issued to him in 1861?”

Down went the gavel, and Mr. Johnson not being very bright, the disqualification held.

I didn’t say it was a real article—but you get the idea. There were very few such cases, for obvious reasons.

How, then, is enforcement supposed to work all these years later, with Trump by no means presuming himself disqualified, as most of the original targets did, and with no need for a conviction or action by Congress? Whom, that is, does Section Three charge with carrying out the enforcement?

I find I have no choice but to conclude, from the airy fiat “No person shall be a . . . ,” that literally all people responsible for applying election laws anywhere in the country are not just constitutionally empowered but constitutionally required to bar any candidate whom they may happen to believe has sworn an oath to uphold the Constitution and then engaged in or given and comfort to insurrection. That’s how I read the plain words, and I’d gotten that far in my judicial fantasy when I looked up what some lawyers think, and it turns out, somewhat to my surprise, that they agree with I’d thought might be a pretty outlandish reading (see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751):

Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications.

Hm.

Seems a bit of a weird plan, just logistically. Any election official anywhere? has a duty to invoke the section? on the basis of nothing more than a personal impression of how someone has behaved and an opinion that such behavior rises to the level of insurrection? Plain-words constitutional thinkers are often the same thinkers as “original intent” thinkers, but in this case, if I’m an original-intent type, I have to wonder if we should even consider the words when considering the framers’ intent. There’s obviously no way to believe that the authors of the Fourteenth intended to empower and require every random election official everywhere, in perpetuity, to bar prospective presidential candidates based solely on an official’s belief, or alleged belief, or hunch, that the prospective candidates had sworn an oath to the U.S. and then committed insurrection, with disqualification automatic on the basis merely of that official’s impression. The framers just can't have been thinking that far outside the box of the recent war (whatever they said in in debate on the matter!); if they had been, they would have easily envisioned the court-clogging absurdities inevitably arising from a multitude of motives, partisan or idiotic or both, in applying the section.

The only reason such chaos hasn’t occurred is that after the congressional override following the early use of the section, which ended any efficacy regarding original intent, nobody took the thing seriously, because they took the framers’ limited intent as given. Otherwise the section would have needed amendment or repeal long ago.

Words, creating an unworkable perpetual enforcement requirement, and intent, keeping as many former Confederate officials out of office as possible, have a nonsensical relationship here. As the current revival of the section shows, it’s self-executing only as far as it requires adjudication, ultimately by the Supreme Court, which might even have to involve some sort of opinion on whether Trump is guilty of what prosecutors have been shrewd enough to avoid charging him with: insurrection. And if the Court doesn’t now come up with a ruling effectively nullifying the section, it may be doomed to rule on such matters again and again.

What will the real justices’ opinions be? I don’t know, but they probably won’t make much more sense than the section does. If one of the judges says, “It's impossible to cogently rule, in 2024, on the legitimacy of applying section three,” then I’ll be impressed.

On the larger issue of how people tend to look at the Constitution: It's hard to get people who are so eager to seek remedies in the document to consider certain propositions. Like: It was not smart to include Section Three in the otherwise all-important Fourteenth, and the framers as a group weren't thinking things through. They wanted the section to sound high-flown and structural—constitutional—so they didn’t say what they meant, which wasn’t anything high-flown and structural but an immediate, short-term result, which didn’t work anyway.

Constitutions shouldn’t enshrine language intended to achieve a granular political or administrative effect. It only confuses people about the nature of the underlying law of the land. There's some goofy stuff kicking around in ours, and on the off-chance that this oddball bit were to end up barring Trump from reelection, that wouldn’t be a triumph for the system but just another goofy result, achieved through that great American national pasttime, misconceiving the nature of constitutionality, though it would also be a result I'd very much welcome.

(The Thirteenth is back in the discourse too—now with reference to the horrible history of convict leasing. Another time for that.)