Bad Arguments and Good Historians

The History of Section 3 and the Future of the Republic

Anyone who can read the Constitution knows that Donald Trump cannot hold office. Section 3 of the Fourteenth Amendment of the United States Constitution forbids anyone who has taken an oath as an "officer of the United States" and then engaged in insurrection from holding office again. 

After the Colorado Supreme Court ruled that Trump could not be on a primary ballot in the state, the United States Supreme Court agreed to consider the following issue: "Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?" Argument begins this coming Thursday.

In public, in media, and now in briefs, those who wish to show that Colorado did err make three bad arguments. They amount to excuses for the Supreme Court not to apply the plain wording of the Constitution.  Here they are:

1.  The president of the United States is not "an officer of the United States."

2.  Trump is disqualified only if convicted of a crime or when Congress passes a law.

3.  Section 3 of the Fourteenth Amendment applies only to the 1860s.

A majority of the members of the Supreme Court advertise themselves as people who attend to the plain wording of the Constitution, or to its meaning as understood by framers, legislators, or people at the time.  

Those arguing for Trump push the plain wording past the breaking point.  It is impossible in good faith to believe that the president of the United States is not an officer of the United States.  But, were there to be any doubt about this or the other issues, the majority of the members of the Supreme Court take the view that the legislative, political, and social context would decide what is meant.

This is where historians come in.  These bad arguments have been met by good history, provided in two amicus briefs signed by two groups of prominent historians with expertise on the issues in question.  The two briefs come to the same conclusions, and I will cite them both.  One is signed by twenty-five historians and the other by five historians; I will cite the Brief of Twenty-Five as "25" and the Brief of Four as "4"  with page numbers.

The first bad argument, that the president of the United States is not an "officer of the United States," might be dismissed on commonsensical grounds. If not the president, then who?

But if there is any doubt, the history resolves it. The Constitution of 1787 describes the president as an officer holding an office.  The president who held office in 1868, at the time of the ratification of the Fourteenth Amendment, called himself an "officer."  The chief drafter of Section 3 of the Fourteenth Amendment, John Bingham, applied the word "officer" to the president.  Bingham explicitly said that his phrasing applied to the presidency. When the issue arose in debate over the Fourteenth Amendment, it was understood that Section 3 applied to the president. (25:4-8).  The five historians in their brief conclude that legislators "did not place presidents or presidential candidates out of reach, exceptions that would have defied the logic of Section Three" (4:24).

Then as now, the central concern was that an insurrectionist would run for president. In 1868, the fear was that Jefferson Davis, the former president of the confederacy, could run for president of the United States (4:12).  In public discussion about Section 3, it was understood that the purpose and consequence of Section 3 was, precisely, to prevent Jefferson Davis from running for president.  Everyone, in other words, knew that Section 3 applied to a candidacy for the office of president of the United States.  This included Jefferson Davis himself, who understood that he had been disqualified by Section 3 from seeking office (4:25-30).

Jefferson Davis's situation is relevant to the second bad argument: that Trump must have been convicted of a crime to trigger Section 3, or that Congress must pass a special law to trigger Section 3.  It was understood at the time that disqualifications instantly ensued, and they did instantly ensue. When Davis was standing trial for treason, everyone involved agreed that he had already been disqualified from office by Section 3 (25:24). Congress was reasonably concerned that it would be difficult to get convictions in high-profile cases such as that of Davis, which is one of the reasons why Section 3 was needed in the first place. In the event, disqualification from office under Section 3 was the penalty that Davis in fact faced.  He was never convicted.

From the people who wrote Section 3 to those who were affected by it: all understood that non-insurrection was a qualification for office (25:25).  As the twenty-five historians conclude, "decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress" (25:2).

The third bad argument is that Section 3 was designed to apply only to the 1860s.  Again, justices who believe in a plain reading of the Constitution would dismiss this argument out of hand: there is nothing in the wording to suggest that only one specific rebellion in the past was meant.  To be sure, the historical context was that of a recent rebellion which shook the republic to its foundations and led to the bloodiest war the United States has ever fought.  Thus the particular concern with leading insurrectionists such as Davis. But it was precisely because legislators had experienced the consequence of one insurrection that they were concerned to prevent others from succeeding.

Legislators could have framed Section 3 to apply only to the 1860s, but they did not.  Indeed, they discussed including language specific to "the late insurrection" and rejected such a framing as too limiting (25:18, 5:3). They had in mind preventing civil war from becoming a recurring "curse" or a "pastime" (5:3,14). Senator John B. Henderson noted that Section 3 applied to "leaders of any rebellion hereafter to come." Senator Peter Van Winkle agreed that Section 3 was to "govern future insurrections as well as the present" (25:18). (5:34). The chief author of Section 3, John Bingham, spoke of its benefits for "generations of men after we have paid the debt of nature" (4:19)

Most discussions of this case, Trump v. Anderson, are about the politics.  Commentators assume that the Court will behave as politicians.  If no one is given credit for doing anything except seeking excuses for what they want to do anyway, then bad arguments get currency.  The purpose of constitutional order, of course, is to provide a framework above politics, one which allows a decent sort of politics to prevail. If no one takes the meaning of the Constitution seriously, then such an order cannot long be sustained. 

John Bingham wrote that Section 3, the Constitution's self-defense, "towers above all party considerations" (4:18), and that should be true of the document as a whole.  In 1868, Bingham and others had seen that the republic could fall, and had experienced the horrors of a war of rebellion.  Their intention was to provide a simple measure to prevent the next insurrection from reaching such a terrifying and existential point.  The words of Section 3 are clear. The history only reaffirms their enormous significance for our present and future.

PS: Full text of Section 3 of the Fourteenth Amendment of the United States Constitution:

"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."

PPS: I should mention that I co-signed another amicus brief, this one by experts on the decline and collapse of contemporary democracies.  It covers very different ground.  Where it makes contact with these arguments, I believe, is the issue of fear.  One reason people seek bad arguments and excuses for the Supreme Court is that they are afraid of Trump and and his followers.  Trump has threatened "bedlam" if his name is not on the ballots.  Aside from proving (if proof were needed) that he is an insurrectionist, this illustrates very clearly what constitutional government cannot allow.  Should the Court yield in advance to the threat of violence, it is no longer a court and this is no longer a rule-of-law state.  The whole point of Section 3 is to allow the Constitution to defend itself against those who would use violence to overturn our constitutional order.

TS 3 February 2024

PPPS: There were four historians, not five! I corrected the nomenclature here to reflect that today. TS 7 February 2024.