Law or Fear

The Supreme Court Chooses

Trump disqualified himself from office by taking part in an insurrection and thereby seeking to substitute the rule of fear for the rule of law. 

The historian Eric Foner was the first to connect the storming of the Capitol to Section 3 of the Fourteenth Amendment, which bans oath-breaking insurrectionists from holding office.  The legal scholars William Baude and Michael Stokes Paulsen made the case for disqualification, exhaustively and convincingly, in a law review article posted last August.  

Since that dramatic intervention, the discussion of Trump’s disqualification has changed fundamentally, as people have taken in that Section 3 exists, have understood that it defines a qualification for presidential office (lack of oath-breaking insurrection), and have realized that it arose to handle a moment like our own. It is the supreme law of the land, and it could not be more applicable. The issue of Trump’s eligibility for office has now reached the Supreme Court, and oral argument will begin tomorrow (February 8th). 

I have been following this discussion since I first wrote about disqualification six months ago.  In the beginning, few people had given the matter much thought.  Although there were a few legal scholars who had written about Section 3, it was not a familiar subject. So a first impulse was academic, in the narrow sense of the word: we haven't studied that; it must be unimportant.  But Section 3 of the Fourteenth Amendment is, after all, part of the Constitution. It commands attention.

One thing that helped was the realization that Section 3 defines a qualification for the presidency.  The Constitution regulates in various places who may run for president; some rules are in Article 2 of the 1787 Constitution, some are in two amendments.  Altogether the qualifications are: being thirty-five years old or older; having been born in the United States (or as a “natural-born citizen”); having lived in the United States for fourteen years or more; not having already served two terms as president; not having taken an oath to support the Constitution and then taking part in an insurrection.   

Now, one can have views about those various qualifications; whether or not we think they are ideal, they are part of the Constitution.  Some Americans who are disqualified by them would otherwise have a legitimate shot at becoming president: Barack Obama, for example, who is disqualified by the Twenty-Second Amendment since he has served two terms; or Arnold Schwarzenegger, who is disqualified by Article Two since he is not a "natural-born citizen."  About half of the American population is disqualified by the age rule. 

Of all of the qualifications for presidential office, not having been an oath-breaking insurrectionist is, let us say, the least demanding. It is the one most clearly related to one's own choices. And it arose from a moment in American history that we rightly regard as decisive for our republic, the years after the insurrection that became the Civil War. As that context has been understood, as that history has been recalled, Section 3 has come to seem like an appropriate, and indeed necessary, part of our constitutional structure.

When Section 3 was unfamiliar, it seemed like a hindrance, an uncomfortable barrier to our everyday habits, a hard story for media to headline. With time, it has come to seem like a tool, which is what it was meant to be.  When we reflect upon the logic of Section 3, and consider its origins in the 1860s, its constructive character becomes clear.  Indeed, thinking back to the 1860s and to the origins of the Fourteenth Amendment can help us to see our moment for what it is, and help us to stop ourselves from making poor decisions.  The earnestness of the discussions of 1866 is refreshing.  This seriousness comes across in two outstanding amicus briefs by American historians, which I rely upon here.

One way to think about the discomfort to which constitutionality gives rise is to consider what we mean by “normality.” In history, and indeed in the contemporary world, it is normal for democracies to die. When a tyrant emerges who deploys intimidating violence, it is normal (in the sense of typical human weakness) for people to be afraid and to go along. It is normal (in the sense that people will do it) to obey in advance and thereby to betray democratic institutions and commitments. The existence of Section 3 reminds us of another sense of the word “normal”: what we should do. It is abnormal, Section 3 declares unambiguously, to be an oath-breaking insurrectionist. It should be normal, Section 3 firmly instructs us, to react in a decisive way when we face an oath-breaking insurrection.

A Constitution survives not only because it gives remedies but because it recalls principles. It defines a normality in which a republic can endure. Our republic.

The remedy is real, and timely. Although we may not like to see this, we find ourselves in the moment for which the authors of Section 3 prepared us: amidst an oath-breaking insurrection that can become a larger conflict.  Donald Trump violated his oath of office on January 6th, 2021: and that horrible day of insurrection was the peak of a larger pattern of activities that began before the election and continues until the present day.  Trump said in 2020 (as he had said in 2016, and as he also says now) that he would not respect the outcome if he lost. 

When he did lose in 2020, Trump acted much as leaders in places like Belarus and Côte d'Ivoire have recently behaved: he sought to manipulate the vote-counting apparatus and other relevant institutions, and he encouraged violence to upset the the transition of authority.  (These similarities are discussed in an amicus brief I was honored to co-sign).  Trump knowingly lied about the 2020 election, creating the conditions for insurrection; his campaign now is centered on his big lie, which becomes the justification for violence against those who do not believe.  As he threatens judges, prosecutors, and elected officials, he spreads the rule of fear. If Trump is the nominee and loses, he will very likely try another insurrection; if Trump is the nominee and wins, he promises to round up his political enemies and to take other actions that will invite a response from inside and outside the government. This is the arc that Section 3 is meant to halt and redirect.

The authors of the Fourteenth Amendment in 1866 were looking back at a dreadful rebellion. They knew that the horrors of the Civil War had begun as an insurrection, and that some of the insurrectionists (like Trump today) held federal office when they broke their oaths.  In late 1860 and early 1861, before a shot had been fired, high officers of the federal government broke their oaths and took the side of the rebellion. 

Section 3 targeted a very specific group of people: not all insurrectionists, not all oath-breakers, but very precisely oath-breaking insurrectionists.  There is wisdom in this precision, since Section 3 was forward-looking.  Section 3 was meant as an emergency tool to be used to halt an oath-breaking insurrectionist before his actions led to a far worse conflict, or even the end of the republic.  It catches us right where we are, and places the tool that we need in our hands.

Section 3 is bracing, because it shakes us from the wrong sense of normality to the right one, because it shows us how the past instructs the present, and because it gives is a tool to shape a better future.

The people who designed and debated Section 3 were informed by the horrors of the 1860s, but they were also thinking about us.  And that should be a good feeling.  Our warm sentiments about the Constitution can be limited to the provisions we like best.  We don't really expect the Constitution to come bearing gifts.  But that is what Section 3 is: a gift from the past to the present, a measure meant to resolve a special challenge, once which could reappear — as people in 1866 understood. 

Section 3 is constitutional self-defense, enabling us to handle a difficult problem of the twenty-first century: what to do with people who are elected to office and then use that office to destroy the rule of law.  The gift from 1866 is strikingly timely, since such subversion by an elected official or officials is now the normal way that democracies are brought down.  Some constitutions, such as the German one, have provisions for this eventuality.  So does the American one. Those provisions arose from experience.

The main author of the Fourteenth Amendment, John Bingham, was an interesting man.  He was aware that fear was the enemy of law.  He was concerned during the Civil War that American leaders would lose their resolve.  After Lincoln's assassination, Bingham was one of the prosecutors.  Bingham made it clear that Section 3 was an offering to generations to come, to Americans who would live and face challenges after his own “debt to nature was paid.”  He also, incidentally, made clear that Section 3 was supposed to apply to the president of the United States.

If we can look at 2024 from the perspective of 1866, our situation is easy to classify.  We are amidst oath-breaking insurrection and facing something worse.  And so we predictably experience a fear that can make that something worse more likely. Because there was an insurrection, we are afraid.  If Trump's people can storm the Capitol, what else might they do?  And this, of course, is the choice: law or fear.  If we give in to fear again and again, law will eventually yield.

Those who use violence, as Trump did on January 6th, know that they can always threaten more violence.  When that threat is internalized, when it becomes anticipatory obedience, authoritarianism is on the way.  Indeed, when we choose to shy away from the law because we are afraid, we are taking part in that authoritarian transition.  When we make legal arguments to cover our fears, we are actively hastening it.

The saying is that fear is a poor counselor; it is certainly a poor legal counselor.  When we are afraid, we are no longer seeking reasons to make the right decision; we are seeking excuses to do nothing.  This means that standards for what constitutes a legal argument drop precipitously. 

Trump's lawyers (and his supporters in amicus briefs) are banking on fear, and inciting it (Trump and his lawyers threaten “bedlam” if they lose this case). His lawyers (and supporters) depend heavily on the claim that the president of the United States is not an officer of the United States (and therefore not subject to Section 3). 

An argument this bad depends upon fear.  Even in print, it has a wink-wink-nudge-nudge quality -- we know this is a horrible legal argument, and you Justices know that this is a horrible legal argument, but we both know that you are just looking for a way out. So here’s your alibi for ignoring the Constitution.

The argument that the president of the United States is not an officer of the United States is risible.  People will laugh at it. A Supreme Court that rules for Trump on that ground will be ridiculed for as long as our republic lasts, and rightly so. 

The "originalist" argument is that since Section 3 does not explicitly mention the president, he was not intended by the authors of Section 3 to be included.  Section 3 reads (with one ellipsis):

No person shall (...) 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.

From that text it would seem clear that the presidency is one of many federal and state offices.  “No person,” “any office,” “officer of the United States” are not phrases that brook exceptions.

The "originalist" argument hangs not on the omission of the word "president" but on the inclusion of the words "Senator or Representative in Congress, or elector of President and Vice-President," which I left out above.  The claim is that, since electors and senators and representatives are mentioned, the president was meant to be excluded.  But of course that is not really an "originalist" argument: what an originalist would need is a sentence such as "The president is excluded from this provision."  There is no such sentence.  The reason why electors are called out is that they are not a part of the government.  The reason why senators and representatives are mentioned was to clarify that they (as well as members of the executive and judiciary branches) were included.   

In the debate over the Fourteenth Amendment, it was explicitly clarified that the president was included in Section Three.  John Bingham, the chief author of the Fourteenth Amendment, referred to the president as an "officer."  This was routine usage at the time, including by the officers in question, the presidents themselves.  In any event, Bingham also said that Section 3 applied to the president.  In contemporary public discussion of Section 3, it was taken for granted that the president was meant. 

Twenty-five historians who looked into the matter concluded that Section 3 was meant to apply to the president.  Four more historians in a separate brief drew exactly the same conclusion.  These are the leading scholars of the period and the issues.  The conservative legal scholars who began this discussion concluded that the president is an officer.  Antonin Scalia, a figure of some repute in conservative judicial circles, believed that the president was an officer.  In Trump's own legal briefs in other matters he also defines the president as an officer.

I cannot say whether the Supreme Court will re-qualify Trump for office.  I can say, though, that requalifying him on the grounds that the president of the United States is not an officer of the United States is preposterous.  It defies the wording of Section 3, and the intentions of its framers, and the way it was understood by society at the time.  It defies the whole historical experience on which Section 3 was based. And it defies Section 3’s political logic of defending the rule of law.  Section 3 is about stopping an oath-breaking insurrectionist from destroying or damaging the republic.  The most important oath is the president's and the most dangerous insurrection is one led by him. 

The hard part, of course, is that so long as we are within the logic of Section 3, so long as we are amidst the oath-breaking insurrection, we are afraid of the worse conflict that might follow.  We fear the oath-breaker and the oath-breaker plays on our fear. And so we seek the excuses that will allow us not to take responsibility, that will allow us to push the problem forward into the future.  But in the future we may no longer have appropriate constitutional tools. 

And so it is our very fear that is the signal that we must act.  In Section 3, we have an appropriate constitutional tool for the fearful moment. And surely it is encouraging that the authors of the Fourteenth Amendment, in looking ahead, were looking out for us.