The Daily Populous Sunday January 14th, 2024 day edition
Authored by theatlantic.com and submitted by theatlantic

The second impeachment trial of Donald Trump, concerning his role in the January 6 coup attempt, began on February 9, 2021. Almost exactly three years later, on February 8, 2024, the Supreme Court will hear oral arguments over whether that last, desperate effort to illegally hold on to power might now disqualify Trump from returning to the Oval Office.

Many commentators have argued that the nine justices should overturn the Colorado Supreme Court’s decision barring Trump’s candidacy for reasons of prudence alone. “Keeping Mr. Trump off the ballot could put democracy at more risk rather than less,” the law professor Samuel Moyn warned in The New York Times. “To deny the voters the chance to elect the candidate of their choice … would be seen forever by tens of millions of Americans as a negation of democracy,” the New York columnist Jonathan Chait wrote.

But these arguments ignore that keeping Trump on the ballot is also a choice—one forced by Trump’s own actions—and that just as there are risks to barring him, there are also risks to disregarding the clear command of the Fourteenth Amendment. The section of the Amendment at issue—Section 3—sets certain conduct outside the bounds of what’s acceptable for public officials in a democratic society. Congress made that determination not on a whim, but in the years following a bloody conflict that killed hundreds of thousands of Americans and demonstrated just how serious the implications of violating that boundary can be. As a brutal effort to unlawfully derail the peaceful transfer of power, January 6 falls well within the range of conduct forbidden by Section 3. What message would the Supreme Court send if it closed its eyes to that prohibition—especially in the months before yet another presidential election with the threat of violence hanging over it?

Hiding beneath the surface of many of the arguments against disqualifying Trump is the sneaky suggestion that January 6 wasn’t all that bad—unpleasant, perhaps, but nothing worthy of being called an insurrection. This ignores both the horror of that day and the risk posed by a presidential candidate who continues to insist that he won in 2020, refuses to say that he will accept the results of the 2024 election, and routinely eggs his supporters on to further violence. “I just hope we get fair treatment,” Trump commented after the Colorado Supreme Court’s ruling. “Because if we don’t, our country’s in big, big trouble.” The Fourteenth Amendment establishes that such conduct is unacceptable for a potential president, and it is in the interests of American democracy—unless you define democracy as mob rule—to reaffirm that determination. If the Court balks at this, then Trump will once again take away the message that he can act with impunity.

Just months ago, the idea that the Fourteenth Amendment might have real force as a tool to bar Trump from the ballot seemed outlandish. The question of his disqualification rests on a dense tangle of legal and practical questions, many of them barely touched since Reconstruction. But as The Atlantic’s contributing writer George Conway has argued, once you read through the legal documents and scholarship, it’s hard not to be convinced.

In the century and a half since the end of Reconstruction, Section 3 had become somewhat of a ghost—to the extent that Eric Foner, the prominent historian of the Civil War and Reconstruction, described it in 2019 as having “long since faded into history.” Just days after January 6, 2021, though, Foner argued in The Washington Post that Section 3 offered a viable tool for “dispensing some justice” for Trump’s betrayal of his office.

The path to disqualifying Trump is a thorny one, in part because the text of Section 3 is somewhat confusing to begin with and in part because clever lawyers have recently done their best to make it more so. There’s the question of who has the authority and responsibility to implement Section 3’s ban on insurrectionist officeholders. One argument, buttressed by a poorly reasoned 1869 court opinion known as Griffin’s Case, is that the only entity with such power is Congress—and so Colorado can’t bar Trump from the ballot without the federal legislature indicating explicitly that Section 3 may be enforced by those means. But recent scholarship from the law professors William Baude and Michael Stokes Paulsen—originalists whose methodology is likely to be appealing to the Supreme Court’s conservatives—has cast this view into serious doubt.

Another set of arguments relies on fine-grained distinctions between the specific wording used in Section 3 to exclude former presidents from the onetime officeholders to whom the amendment applies, and possibly also to exclude the presidency from the offices that insurrectionists are barred from holding. This position has the disadvantage of being absurd. Among other things, an enormous body of evidence indicates that contemporary Americans understood Section 3 to bar former Confederate President Jefferson Davis from the Oval Office.

This is only a small selection of the thicket of legal problems surrounding the case. But at the center is a very simple question: Was January 6 an insurrection? And did Donald Trump engage in it?

For all the debate over disqualifying Trump under Section 3, and the hubbub among pundits eager to downplay January 6, the arguments against defining the Capitol insurrection as such remain remarkably feeble. Although three Colorado justices dissented from the state supreme court’s ruling barring Trump from the ballot, none of them did so on the grounds that the majority was wrong in deeming January 6 an insurrection. Even during oral arguments before that court, Trump’s legal team offered only the weakest of rebuttals, at one point suggesting that an insurrection must take place over “longer than three hours” and that the “geographical scope has to be broader than one building.” (Would a riot that took place over four hours and two buildings suffice?)

As the Colorado Supreme Court wrote, January 6 meets the bar for insurrection “under any viable definition” of the term. The legal scholar Mark Graber, who has closely studied the Fourteenth Amendment’s history, argues that “insurrection” should be understood broadly—an act of organized resistance to government authority motivated by a “public purpose.” That certainly describes the Capitol riot, in which a violent mob attacked law enforcement and threatened members of Congress and the vice president in order to block the rightful counting of the electoral vote and illegally secure the victory of the losing candidate. The historical record also suggests that the amendment’s requirement that a prospective officeholder must have “engaged in insurrection” should also be understood broadly—meaning that Trump’s speech on the Ellipse that morning and his encouragement of the rioters while they smashed their way through the Capitol more than fit the bill.

A common objection to the efforts to disqualify Trump—voiced by Moyn in the Times, among others—is that to do so would be antidemocratic, obviating the will of the voters who support his candidacy. But the goal of Section 3 was itself to secure American democracy by preventing those who had already broken their oaths to the Constitution from doing even more damage. It was an early form of what’s now known as “defensive democracy” or “militant democracy,” the practice of imposing rules and strictures to protect democracies from domestic authoritarian threats. Section 3 “is a measure of self-defense,” Senator Waitman Willey argued in 1866—“designed to prevent a repetition of treason” by former Confederates, but also “intended to operate as a preventative of treason hereafter.”

David Frum: The Fourteenth Amendment fantasy

With this in mind, the focus on onetime officeholders turned insurrectionists makes sense. Graber points to the comments of Senator James W. Grimes, who stated during the Senate’s debates on Section 3 that “the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.” Now consider how this reasoning applies to Donald Trump, a person who has already shown himself to be willing to overthrow a free and fair election by means up to and including encouraging his supporters to hang his vice president. Can he really be trusted to keep faith with the Constitution and with American democracy, either as a candidate or as a future president?

The Fourteenth Amendment was a radical document, intended to remake American society. Rejecting its dictates here downplays not only the catastrophe and lasting damage of what happened on January 6, but also the force of what Congress did when it passed Section 3 in 1866—establishing clearly that such events cannot be acceptable in a democracy. One of the most striking images from January 6 remains a photograph of a rioter standing inside the halls of Congress, carrying the Confederate flag.

The clearest rebuttal to the idea that potential chaos should lead the Court to reject the case for Trump’s disqualification can be found in an early ruling on Section 3 by U.S. District Judge John Underwood, shortly after the ratification of the Fourteenth Amendment. Underwood was faced with the question of whether Section 3 disqualified a former secessionist legislator from a postwar position as a Virginia state judge. He found that it did, though his decision was later reversed. “It is contended that great inconvenience will result from the enforcement of the Constitution and the laws,” Underwood wrote. But, he went on, “I think the experience of the last few years shows that much greater inconvenience results from attempting their overthrow.”