Mar.04

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The Fourteenth Amendment, Part III: Was It Not Real?

As many readers will remember, we produced a pair of pieces on the historical background of the Fourteenth Amendment, and we promised a third. Unfortunately, illness interfered with that plan—we made some mention of this, but we did not reveal how long (Z) was ill, nor how seriously. Truth be told, it was more than 2 months, and on most of those days (basically, mid-November to mid-January), minimum functionality was all that was available. The historical pieces require considerably more than minimum functionality to produce.

We have always intended to complete the set, and with the news out of the Supreme Court (see above), time has run out. It's now or never. And so, we bring it on home. To start, let us remind readers that in the first installment, we covered the context in which the Fourteenth Amendment was written, and the various stakeholders that had input into the text. In the second installment, we covered the very few occasions—six of them—when the Amendment was enforced by the generation that produced it. Recall that the disqualifying elements of the Fourteenth affected thousands of former Confederates that might otherwise have run for (and won) elective office. However, most of them did not try it, because they knew they were disqualified. The point is that one should not take the existence of just six enforcements as a sign that the Fourteenth Amendment was narrow in scope, or that the Civil War generation did not take it seriously, or that it was only applied in very specialized circumstances. None of these things is true.

Moving along, and as we began to introduce in the second piece in the series, the years from 1870 or so to 1900 were a time when "healing" was the order of the day—at least, a healing of the relationship between white Northerners and white Southerners. Some white Americans were weary of the long period of violence that commenced with the Civil War, and continued through the Reconstruction. Others felt a much greater sense of community with white Southerners than with Black people of any sort. Still others, informed in particular by the lessons of both Abraham Lincoln and Jesus of Nazareth, felt that forgiveness was the appropriate course to pursue. And there were also folks in positions of power by the 1880s and 1890s who had little or nothing to do with fighting the Civil War, and so did not see any particular need to safeguard its legacy (or to even think about what that legacy might be).

The result of this was, for lack of a better term, a serious backsliding on the strong measures that were taken immediately after the Civil War to both punish and remake the American South. Undoubtedly, readers will be familiar with the various ways in which racial equality was undermined, from dehumanizing advertisements and theatrical performances (minstrelsy), to lynching, to the re-imposition of Jim Crow laws, to the Supreme Court's giving its blessing to those laws in Plessy v. Ferguson.

Somewhat less known to most students of history, but absolutely the counterpart to the subjugation of Black Southerners (and Black Americans in general) was the redemption of white Southerners. Nearly all of them, with just a very few exceptions like Jefferson Davis, saw their citizenship restored (Davis eventually got his back, too, but it was long after he died). On top of that, Congress passed two Amnesty Acts, one in 1872 and one in 1898 that said that the vast majority of surviving Confederates were no longer disqualified from serving in office. The Fourteenth Amendment, of course, specifically grants Congress the power to remove disqualifications.

Because there was such a widespread reversal of post-Civil War actions, and because the South had much success in rewriting the story of the war to be pro-Confederate, it certainly made things confusing for scholars and other people who knew the history of the war. "Was it not real?" was a question that was asked by many, so much so that the phrase was used as the chapter heading for the very last segment of Ken Burns' Civil War.

This meant that, at the dawn of the twentieth century, there was little sense of the circumstances under which the Insurrection Clause of the Fourteenth Amendment should be applied, or whether it should be applied at all. After all, the folks who had written the legislation were mostly dead by the year 1900, and the people in power at the turn of the century were more interested in national unity (particularly given the need to win the Spanish-American and Philippine Wars) than in score-settling. Consequently, from the end of the Reconstruction to the present day, only two more people have been disqualified from office-holding due to the Insurrection Clause. Here they are:

1. Victor L. Berger: Berger was a newspaper publisher and socialist from Milwaukee (which, in the first several decades of the 20th century, was a hotbed of ultra-left-wing political activity). He was elected to Congress in 1910, and served one term before losing his seat. Then, he returned to his newspaper, which he used to rally opposition to World War I after U.S. entry into that conflict in 1917. In 1918, Berger and several other socialists were indicted for violating the Espionage Act, and in January 1919 they were convicted and sentenced to prison terms. The judge in that case, incidentally, was Kenesaw Mountain Landis, who is better known as the first commissioner of Major League Baseball.
   
   There was one small fly in the ointment here, however. In between his indictment and conviction, Berger was elected to a seat in the U.S. House again. When Berger presented his credentials, several members objected, and the matter was referred to a special committee. The main argument made by Berger's counsel was that the Amnesty Act of 1898 had permanently canceled the Insurrection Clause of the Fourteenth Amendment. This was a pretty weak argument, since if Congress could strike parts of amendments at will, then what is the point of the (very onerous) amendment process? Not surprisingly, the special committee didn't buy it, and its report stated that: "The contention that Section 3 of the Fourteenth Amendment to the Constitution is no longer applicable, is not worthy of serious consideration." Berger therefore lost his case, and was not allowed to take his seat; the House voted 311-1 in favor of that conclusion. A special election was called to fill the vacancy, Berger won election again, and he was rejected by the members of the House once again, this time by a vote of 330-6.
   
   At the same time Berger was squabbling with his would-be colleagues in Washington, he was also challenging his conviction under the Espionage Act. In 1921, the Supreme Court agreed to toss it, because Landis was an outspoken anti-German bigot, and should have recused himself from the case. Berger won yet another election in 1922, and with there being no conviction on his record, was allowed to take his seat. He served three terms, from 1923-29, and then returned to Milwaukee to resume publication of his newspaper.
   
   
2. Couy Griffin: This is the one that might ring a bell for readers, as it's the most recent imposition of the Fourteenth Amendment (and, obviously, the only one in the last 100 years). He was elected in 2019 as a county commissioner for District 2 of Otero County, NM. Griffin is ultra-Trumpy, and earned some amount of notoriety for founding and leading the PAC Cowboys for Trump. The members of the group, including Griffin, ride horses to various Trump campaign events. Seems a little precious to us, but what do we know?
   
   Griffin, as you might guess from knowing he's a Trump fanatic, tried to block certification of the election results from his county. He was joined by two other commissioners, but they backed down when faced with prison time for their defiance. Thereafter, Griffin traveled to Washington, where he was a participant in the events of 1/6. He did not ride a horse that day, which means he failed to really commit to the bit. However, he was quite active, such that it's easy to see him climbing through windows and committing other such illegal acts in footage recorded on that day.
   
   Now, you might want to sit down before you read this next part, but Griffin—surprise!—is not the sharpest knife in the drawer. In case it is not enough that he allowed himself to be filmed committing criminal acts, he also attended a public meeting in his official capacity, and vowed that he would return to Washington for the inauguration of Joe Biden, this time armed to the teeth. The obvious implication was that Griffin intended to "finish the job." All he really did, however, was make it very easy for the FBI to arrest him for his actions on 1/6. He was quickly convicted and sentenced to 14 days in jail. Citizens for Responsibility and Ethics in Washington (CREW) joined with several New Mexico residents to argue, in court, that Griffin was therefore disqualified from holding political office under the terms of the Insurrection Clause. District Court Judge Francis J. Mathew found that Griffin is indeed disqualified, and the New Mexico Supreme Court affirmed that decision. Griffin has appealed to the Supreme Court, which has not made a ruling, but one suspects he's going to get an answer within a few hours of your reading this.

And now, based on this three-part history lesson, let's draw some conclusions, keeping in mind some of the potential "off-ramps" Hasen discusses in his piece (again, see above):

• Enabling Legislation: There is absolutely no evidence for the argument that Congress has to pass special legislation for the Insurrection Clause to take effect. First, they've never done it before, in any of the eight cases where someone was disqualified from office. Second, other portions of the Constitution don't require enabling legislation, unless that necessity is explicitly specified. Third, Congress HAS passed legislation removing the disability from Confederate veterans and officeholders. If enabling legislation was necessary, then those people would not have needed the Amnesty Acts of 1872 and 1889; the members of Congress could have just announced that any representative-elect would be welcomed with open arms.
  
  
• Conviction Required: Of the eight people removed from office under the Insurrection Clause, only two were convicted of an insurrection-related crime (and a third might have been; documentation is scarce). That's five people who were removed from office, and countless hundreds or thousands who didn't bother to run for office in the 1860s and early 1870s, who did not have a conviction on their records. Clearly, a conviction is not necessary.
  
  
• Doesn't Apply to the President: There are actually two, related arguments here. The first is that the Fourteenth Amendment doesn't apply to presidents, because while it mentions "presidential electors" and a bunch of other offices, it does not mention the president. The second is that the Fourteenth only applies to officers of the United States, and the president is not an officer of the United States, he effectively IS the United States, from which the power and authority of his or her officers flow. This notion is not unlike how the King of England does not need a driver's license, since British licenses are issued in the name of the monarch. Ergo, Charles doesn't need permission from Charles to drive a car.
  
  Both of these arguments are pretty easy to put to rest. During the discussions of the Fourteenth Amendment, while Congress was hammering the legislation out, Sen. Reverdy Johnson (D-MD) wondered why the text did not include the president. Sen. Lot Morrill (R-ME) replied: "Let me call the Senator's attention to the words 'or hold any office civil or military under the United States.'" Johnson admitted he was in error, and the question never came up again during the deliberations. Clearly, the men who wrote the Fourteenth Amendment believed that: (1) the president is an officer of the U.S., and (2) the Insurrection Clause applies to presidents. It is also worth noting that these men were familiar with U.S. legal history, especially the history of constitutional law, and that they knew that the Founding Parents referred to the president as an "officer of the United States" all.. the... time.
  
  
• Doesn't Apply to Office-Seekers: This is actually the argument that has the most merit. As we have noted, a lot of people who were covered by the Insurrection Clause did not bother to run for office, since they knew they were wasting their time. And every one of the eight who rolled the dice was not disqualified until after they were already in office.
  
  So, if SCOTUS announces today that Trump can be on any and every ballot in the U.S., but that if he is elected, he is subject to removal, then the justices would be on solid ground when it comes to precedent. However, they would also be creating a constitutional crisis. Trump would obviously stay in the race, and would spend the entire election cycle goading his followers with the observation that "See? They're trying to steal the election from me." Then, if he won and was removed... well, that would certainly create the circumstances necessary for mass violence. We generally don't believe his followers are willing to rebel like that, but if tensions build for months and months and then burst in such a foreordained way, well, it could well get ugly.
  
  
• It Wasn't an Insurrection: The Fourteenth Amendment says that a person is disqualified if they took an oath to uphold the Constitution of the United States, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Obviously, "insurrection" is a squishy term, but there are several things to point out here: (1) Someone, namely Griffin, has already been disqualified on the basis of 1/6 being an insurrection; (2) Someone else, namely Berger, was disqualified solely on the basis of the ideas he expressed; (3) Even if you argue Trump wasn't present at the actual 1/6 insurrection, his words certainly encouraged it (and so the Berger precedent applies), and they also certainly "gave aid and comfort" to the people who DID storm the Capitol.

We haven't the faintest idea what the Supremes will do today, beyond the fact that we find it very unlikely they will end Trump's presidential campaign right now. Whatever happens, however, they are almost certainly going to violate one or both of two doctrines that the right-wingers have previously presented as sacrosanct:

1. Originalism: Clarence Thomas, Samuel Alito and Neil Gorsuch, in particular, have asserted that the intent of the people who wrote the laws is paramount, and nothing else matters. There can be zero question as to the intent of the men who wrote the Fourteenth Amendment. And so, unless the justices disqualify Trump immediately, or they warn he can be disqualified if he wins, then their ruling is not originalist.
   
   
2. Real World Implications: The Court invariably claims that it cannot be concerned with the effects of its decisions, and that it must simply call balls and strikes and let the cards fall where they may. In particular, you saw this argument from them a lot after the Dobbs decision, when the conservative justices said they were not responsible for any fallout that might come. Well, if they just call balls and strikes here, they might well determine the outcome of a presidential election, and could well lay the groundwork for widespread violence. We are not saying that they should ignore these considerations, because we think they are valid areas of concern. What we ARE saying is that previous claims that the Court cannot be bothered to worry about consequences were empty and indefensible, and we imagine SCOTUS is about to prove it.

To the prediction SCOTUS won't boot Trump, we'll add a prediction that somehow the Supremes will find a way to make this Congress' problem. Beyond that, the crystal ball is murky. (Z)