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Banning Trump from retaking presidency

Could a constitutional provision adopted in 1868 really save American democracy in 2024?

A new legal effort to prevent Donald Trump from retaking the presidency next year is afoot. Its backers rely on Section Three of the Fourteenth Amendment of the US Constitution, which bars from office anyone who has “engaged in insurrection or rebellion … or given aid or comfort to the enemies” of the United States.

Numerous lawsuits have been filed arguing that Trump’s participation in an insurrection on January 6, 2021 – either by itself or as part of a larger effort to nullify the 2020 election – disqualifies him. Could a constitutional provision adopted in 1868 really save American democracy in 2024?

Section Three has already been used successfully to remove from office a New Mexico county commissioner named Couy Griffin, the organizer of “Cowboys for Trump,” who helped rally members of the mob that breached the Capitol on January 6. But the effort to remove Trump from the ballot has received further support from a recent article by two distinguished constitutional law professors, William Baude of the University of Chicago Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law, who argue that Section Three does indeed apply.

Baude and Paulsen contend that January 6 obviously was an insurrection, because many of those involved used organized violence to try to prevent the lawful transfer of power. Trump either directly engaged in it or gave “aid or comfort” to participants by refusing to call in the National Guard to halt the violence despite repeated requests over a period of hours.

The article gives special attention to Griffin’s Case, an “appalling opinion” written by Supreme Court Chief Justice Salmon P. Chase in 1869, which will likely play a role in any suit against Trump. Since this was not a Supreme Court opinion, its precedential significance remains unclear. In those days, Supreme Court justices would “sit circuit” and decide certain appeals on their own. Nonetheless, Chase’s opinion matters because he was a Supreme Court justice, a former member of President Abraham Lincoln’s cabinet, and a significant political and legal figure in his own right. It also matters because it tells us how the US once dealt with the problem of wayward government officials.

The case involved an appeal of a ruling issued by a Virginia judge who had been a Virginia state legislator (and thus an officeholder in the Confederacy) during the Civil War. The defendant (Griffin), who had been convicted of a crime, argued that the judge was disqualified under Section Three. But Chase found it impossible to believe that Congress had intended to disqualify everyone who had held any official position in the South, let alone that a run-of-the-mill trial should be voided on those grounds. Under such a literal interpretation of the text, Chase wrote:

“No sentence, no judgement, no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commissioner’s sale – in short no official act – is of the least validity. It is impossible to measure the evils which such a construction would add to the calamities which have already fallen upon the people of these states.”

For Chase, it was unfathomable that the South, already reduced to an economic wasteland, would also be deprived of government and reduced to anarchy in the wake of Lincoln’s talk of reconciliation and reconstruction. That outcome would help freedmen no more than the former rebels. Chase accordingly held that Section Three was not “self-executing.” It instead gave Congress the power to enact legislation to implement it.

Chase’s judicial statesmanship seems to have worked: Congress duly enacted a statute to purge certain southern officeholders. Under the First Ku Klux Klan Act of 1870, Section Three would be enforced only against officeholders who interfered with Reconstruction, not against every recorder of deeds or dogcatcher. Congress then issued a broad amnesty in 1872.

Historians see Section Three as one of many attempts to come to terms with the Civil War. Do we punish the South, reconcile with it, or aim for a little of both? These were hard questions that took decades to resolve – if they were ever resolved at all. Chase saw plainly that, in the immediate aftermath of the war, Congress was in no mood to deliberate carefully, and thus committed the classic blunder of vengeance. As his former boss, Lincoln, understood, reconciliation was a necessary component of reconstruction.

Baude and Paulsen, by contrast, condemn Chase of a technical error of judicial interpretation, committing the “classic blunder” of “swapping in original intent for original meaning” when he interpreted the amendment. They think Chase should have enforced the ill-considered impulses of Congress, come what may. And they think today’s secretaries of state should enforce those same ill-considered, vengeful impulses, as embodied in the text and original understanding in 1868. The implication is that they should disregard the utterly different context – the elimination from the ballot of a former president and Republican Party frontrunner – despite the impact of disenfranchising a huge portion of the electorate in its own eyes. It is hard to think of a better way to discredit both democracy and the rule of law in a single blow.

It is tempting to summon a deus ex machina to rid the country of a man who has done more to undermine American democracy than any person since Jefferson Davis. But would it revive democracy, or weaken it further, to allow the 2024 election to be decided by the electorate of 1868? — Project Syndicate

Eric Posner, a professor at the University of Chicago Law School, is the author of How Antitrust Failed Workers (Oxford University Press, 2021).