On keeping Trump off the ballot
Jill Lepore and David Blight make a case about the 14th Amendment
It’s a useful time to have a book out about the Civil War era. Differ We Must tells Lincoln’s life story through his meetings with people who differed with him. His political challenges, and his era, constantly relate to the news I cover each day. Sometimes directly so. And that will be the case next week, when the U.S. Supreme Court hears an appeal of a ruling that keeps Donald Trump off the presidential ballot in Colorado.
The state supreme court ruled that Trump is ineligible there because of Section 3 of the Constitution’s 14thAmendment. Enacted in the 1860’s, soon after the Civil War, the amendment bars former officials from returning to office if they “engaged in insurrection or rebellion.” (I’ve put the full text at the end of this post.)
Many people have filed friend-of-the-court briefs in this case; and as the controversy turns in part on the historic context of the law at the time of its ratification, some of the briefs come from historians.
On Morning Edition we spoke with two: Jill Lepore, whose many books include These Truths; A History of the United States, and David Blight, whose books include Frederick Douglass: Prophet of Freedom.
You really should listen for yourself—I have placed a link below. Here, though, is a summary of four big questions I put to them:
Some critics contend the amendment was only intended to relate to former rebels from the Civil War. Does it apply today?
The historians say yes. They say this is shown by the plain language of the text, as we would interpret it now, and as people understood it then (the “original public meaning,” as judicial originalists say). It’s also shown by the statements of the lawmakers who drafted the amendment, which Lepore calls “quite moving.”
Some critics contend that the amendment doesn’t apply to the president, because it applies to “any office, civil or military,” but does not name the presidency. Does it apply to the president?
Lepore says yes, and calls this “nitpicking” and “nothing short of bizarre,” and maintains the “public understanding” at the time was that it applied to the presidency. There was some fear that Jefferson Davis, the onetime president of the Confederacy, would run for the presidency of the reunited United States.
Okay, but critics have warned of chaos if just any official can apply this law. Who gets to decide?
The historians say the law is “self-executing,” meaning that people can follow it as written without further action or clarification by Congress.
Lepore says it’s clear that one need not be convicted of the crime of insurrection to know that you are covered by the amendment. Many former Confederates appealed to Congress to relieve them from this disability, which they knew they had despite being convicted.
But can any state official or election clerk make their own judgment? Blight acknowledges there is “very little precedent of any kind” for the current situation, in which a leader is accused of insurrection and simply denies it.
Does the January 6 attack count as an insurrection?
The historians insist that it does, regardless of how Trump or some of the participants may describe their effort to prevent the counting of electoral votes and overturn Trump’s 2020 electoral defeat.
As a layman, these seem to me to be four essential questions of fact in the case. The Court majority’s ruling may vary depending on their answers to any one of the four.
There are other considerations. Is it really wise to strip someone off the ballot when millions of people in a democracy want to vote for them? Blight answers, “We all want to believe in this basic principle - it's one of Jefferson's four first principles in the Declaration - of popular sovereignty. The people rule. We have representative democracy. Fine. But we also have laws.”
But Lepore adds that the Supreme Court could plausibly choose to apply a concept related to popular sovereignty—saying that disqualifying Trump is essentially a political question, and not one that they should rule on as a matter of law.
Thanks for reading Differ We Must, my companion to the book of the same name. I’ll keep covering the present with as much perspective as I can manage from the past.
Links:
The NPR interview with Jill Lepore and David Blight
Text of Section 3 of the 14th Amendment:
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.
I read this Feb 2 note to compare to the Apr 16 note which has endless comments. My suggestion to Steve for this interview is that he needs to strive for two things, (1) let the interviewees explain their views clearly, and (2) try to address the topic with insight and critical thought.
Here I think he is on track to ask the interviewees what are the weakest part of their case. To me, the excessive use of legal tactics can be counterproductive —- certainly in the long run if this becomes a common “technique”.
I appreciated that interview and the well-informed context it provides. The one key question left unasked is why were some non-presidential offices specifically identified, but the presidency - the office of greatest potential impact - was relegated to a basket category of 'others'? This is especially odd if it's true that Jefferson Davis presented the biggest threat. Is there some contextual, hopefully originalist explanation? Thanks, as always, for any insights.