In 1865, when the 39th Congress assembled in Washington, D.C., lawmakers faced an unusual problem: The former Confederate states, decisively defeated on the battlefield and having surrendered, were poised to return to the Union and take it over. They might be even more powerful than they had been before secession. As the stridently pro-slavery Richmond Examiner explained in January of 1866, with “the enumeration of all the blacks in the next census…the political power of the country will pass into the hands of the South.”
Indeed, Democratic newspapers speculated that their party’s strongest presidential nominee in 1868 would be former Confederate General Robert E. Lee.
I thought about Lee when I read that Judge Sarah B. Wallace of a state district court in Denver, Colorado, had found, as a fact, that “[Former President Donald] Trump engaged in an insurrection on January 6, 2021, through incitement, and that the First Amendment does not protect Trump’s speech.” That finding, which came after listening to extensive testimony, implies that Trump cannot run for or be elected president in 2024 because Section 3 of the Fourteenth Amendment requires that anyone 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 . . . engaged in insurrection or rebellion against the same” should be disqualified to hold any office in either state or “under the United States.” However, Wallace ruled that Section Three does not apply to Trump for two reasons: first, the only federal office he held before January 6 was president, and he only aspires to be president. She was “unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase ‘office . . . under the United States.’”
To understand why that conclusion is grievously wrong, go back to December 1865. The Thirteenth Amendment abolishing slavery was ratified on the first day of Congress’s meeting. The politicians of the North suddenly faced a perverse danger created by that ratification.
As we all learn in school, the original Constitution doled out House seats (and votes in the electoral college) by population—all free persons were counted for each state as three-fifths of “other persons.” That term was a prissy euphemism for enslaved Americans in the Southern states. Those states were entitled to representation for their “other persons,” even though they had no votes or rights. As a concession to the North, they didn’t get full representation for “other persons,” but only 60 percent of them. Nonetheless, this system of “slave seats” became a powerful tool in the Southern arsenal and was part of the reason the “slave power” controlled national politics for virtually the entire seven decades before the election of Lincoln.
Now, suddenly, there were no “other persons.” As the Pulitzer Prize-winning historian Eric Foner writes in Reconstruction: America’s Unfinished Revolution, 1863-1877, “Now, as free persons, all would be counted, significantly enhancing Southern power in the House of Representatives and the Electoral College.” And that power would be exercised exclusively by Southern whites. Under President Andrew Johnson’s orders since Lee’s surrender, Southern states confined the ballot to whites.
All five sections of the Fourteenth Amendment can be seen as what must have seemed like a last, desperate attempt to retain power in the hands of the Union and prevent a reborn Confederacy from ruling for the next century. Section Three addressed the prospects of Lee and all those who served the Confederacy. The old Southern leadership, which had enjoyed federal office until 1861, then fought the United States until 1865, was not coming back; it was barred from state or federal office. No court and no president could disturb this proscription—only a two-thirds vote of both houses of Congress could restore the right to public office.
Does that disqualification apply to former President Donald Trump? After 29 pages of close reading and factual findings to establish that Trump incited and engaged in an insurrection, Wallace concludes in nine brisk pages that it doesn’t matter because Section 3 doesn’t apply to former or future presidents. She writes that there is “scant evidence” on the matter and that she is “unpersuaded that the drafters intended to include the highest office in the Country in the catchall phrase ‘office . . . under the United States.’”
At first glance, this seems absurd. There is scholarly discussion about whether the Constitution names the president as a “civil officer” or accords them unique status as the source of appointment of civil officers and commanders of military ones. And since this question has arisen in other contexts, that ambiguity must, the argument runs, apply to Section 3 as well. To reach that conclusion, however, one must pound hard on some rudimentary evidence and disregard powerful evidence in the other direction. The text includes senators and representatives in its disqualification but does not say “President.” Instead, it applies to those who “hold any office, civil or military, under the United States.” It also disqualifies former rebels from serving as electors; thus, the argument runs there was no need to disqualify a former rebel from being president since loyal electors wouldn’t elect him.
The head spins. To begin with, considerations of whether the president is an “officer of the United States” often cite provisions of the Constitution that differentiate between presidents and “officers,” as in Article II Section 2, which gives the president the power to appoint judges, ambassadors, and “all other Officers of the United States,” or the Impeachment Clause, which applies to “The President, Vice President and all civil Officers of the United States.” But they uniformly ignore the text where it undercuts that reading most clearly regarding the president: Article II Section 2, which provides a specific oath the president must take “before he enter on the execution of his office.” The Presidency is referred to as an “office” in Article I § 3 (twice), Article II § 1 (eight times), Amendment XII (once), Amendment XX (six times), and Amendment XXV (ten times). The great Shaker preacher Henry Clay Blinn is supposed to have remarked, “If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing that it is attached to, then you have a legal mind.” I am ashamed to admit that lawyers’ mental training makes it possible, with some effort, to believe that the Constitution creates an office but does not create an “officer” to fill it; that is a discredit to legal education rather than a comment on proper semantics.
This confusion over the straightforward word illustrates, to me, much of the weakness of current discussions of what’s called the “original public meaning” of the Constitution as defining its present application. William Baude and Michael Stokes Paulsen, two conservative legal scholars who turbocharged the Section Three Debate earlier this year with a detailed article entitled “The Force and Sweep of Section 3,” explain how the “officer” reading distorts that methodology: “a reading that renders the document a ‘secret code’ loaded with hidden meanings discernible only by a select priesthood of illuminati is generally an unlikely one.”
If “original public meaning” isn’t just a shell game meaning “whatever the conservative movement needs this month,” the phrase must mean what a theoretical person at that time of ratification would have understood the words to mean—an interesting question that has no answer any court can apply. In the hands of too many judges, it quickly deteriorates into quibbles about secondary definitions in old dictionaries or 13th-century legal treatises—and ignores consideration of what the entire document’s text might have meant at the time. Words without context are gibberish—and context includes not only the other words in a sentence but the words in the document—not to mention the context of history and public debate in which they were written.
And that leads us to the question that, to me, settles the issue.
I spent five years studying the doings of the 39th Congress, and its major figures still have guest quarters in my head. Gentle reader, can you seriously imagine that our 19th-century ratifier—an informed, loyal American who had just lived through a brutal war that took more than 600,000 lives for the sole reason that Southern whites would not accept that Abraham Lincoln won the 1860 election—would have understood Section 3 to mean that a traitor couldn’t be a Senator, or a Representative, or a governor, or a state legislator, or for that matter a dog-catcher—but that Robert E. Frickin’ Lee could turn his coat one more time, swear he really would support the Constitution this time, and waltz into the White House?
I cannot. This is what philosophers call “self-stultifying”— so self-contradictory that its very utterance undermines the idea of meaning itself. And, worse, it seems like an artifact of today’s corrupt political culture imposed unconsciously on the past. In 2023, we live in a nation in which the dim-witted foot soldiers of January 6 are hustled into prison while Trump walks free and may be given the keys to the country a year hence.
Such a paradox can’t be right, in both the sense of being moral and as a reflection of what the authors and ratifiers of the Fourteenth Amendment meant in Section 3. It isn’t a serious constitutional interpretation. I think it is bosh.
And I fear it is bosh that allowed the Colorado court to negate the careful work it did in the earlier parts of the opinion and let Trump off the hook, perhaps on the calculation that the finding of engagement in insurrection might stigmatize him enough that the court need not follow Section 3 on to its end.
I am not prepared to say with certainty that Section Three disqualifies Trump; that question involves many steps I have not worked through for myself. There are reasonable arguments by solid scholars that it does not. Baude and Paulsen must be taken seriously; they are both brilliant students of the Constitution who have done exhaustive research and are genuine conservatives. But if Section Three does not disqualify Trump, it cannot be for the reasons this Colorado opinion cites. After crediting detailed proof of the former president’s treachery to the nation and his contempt for his oath, the court retreats from the clear implications of those facts.
Courts that ignore facts rarely reach the correct result.