The thunderous, wondrous, revenge-packed 14th Amendment to the Constitution
With the ruling by the Colorado Supreme Court that Donald J. Trump is ineligible to appear on the ballot of that state because he was found to be an insurrectionist, if the 14th Amendment to the Constitution was a book you had to check out of the library, it would be so tattered and thumbed and smudged and worn it would be unreadable. We’ll get to the relevant part of the 14th, Section 3, in just a moment, but for right now, let us pause to wonder at the amendment itself.
The 14th Amendment is one of the three Reconstruction Amendments proposed and passed in the heat of the end of the Civil War. The United States – that is, the Northern states that had remained in the Union – had just fought and defeated an insurrection of the southern states. The South had seceded from the Union in order to protect themselves from what they knew was coming – a legal mandate ending the institution of slavery, which those states saw as their sovereign right, and which they thought they needed for their economies. The war went on for four years and was the bloodiest conflict this nation has ever fought, costing the lives of more than 600,000 Americans.
Let’s put it this way: the winners, the North, were pissed, and they wanted revenge. The Reconstruction Amendments were aimed directly at the losers in the South. The 13th, 14th and 15th Amendments abolished slavery, awarded citizenship to former slaves, and provided equal protection under the law to them and all other citizens, and prohibited discrimination in the right to vote on the basis of “race, color, or previous condition of servitude.”
The Reconstruction Amendments were the North’s never-again laws, passed to prevent the South from ever fomenting an insurrection again. The wording of their text does not reflect the anger in which they were written, but reading them today, the rage of the North at the insurrection against the United States strikes like a lightning bolt in each of them.
Section 1 of the 14th Amendment is a clear example of the force its framers intended. Having ended and outlawed slavery in the 13th Amendment, Section 1 proceeds to order what the Southern states had refused to do for more than 70 years – it grants citizenship to former slaves and gives them the same rights under the law that any other citizen has, guaranteeing that the “privileges” of citizenship will not be abridged without due process of law. Everything you had been able to do to slaves before, Southerners, you can do no longer.
Section 2 rescinds wholly and completely the so-called “three-fifths compromise” the writers of the Constitution made in order to gain the signatures of the Southern states to the Constitution. It wasn’t a compromise at all; it was rather a death sentence not only to slaves but to the nation under which the Constitution was founded. The three-fifths compromise increased the representation of southern states in the House of Representatives by allowing them to count each slave in their populations as three-fifths of a person, in addition to the number of the full citizens of those states.
Section 2 threw that piece of shit betrayal of Black human beings on the trash heap of history by ordering that representatives would be apportioned according to the count of “the whole number of persons in each State, excluding Indians not taxed.” Let’s leave aside for the moment the awful exclusion of native Americans from the manner of representation and address the other slap against the Southern states in the amendment. The final clause in Section 2 penalizes any state in the allocation of its representatives if it denies or abridges the right to vote of any citizen “except for participation in rebellion, or other crime.” Get it? It’s only okay to deny the right to vote to insurrections and criminals, not other citizens.
Interesting, huh? The North wasn’t going to permit Southern states to give the vote to insurrectionists and rebels without paying a cost. Any Southern State thinking they could reward their Confederate “heroes” and somehow maintain their status in the Union, well, they would suffer the punishment of having their power slashed.
And now we come to the part of the 14th Amendment which may as well hereto forth be called the Trump clause. Section 3 bluntly and forcefully bans from office anyone who “shall have engaged in insurrection or rebellion against the [United States] or given aid or comfort to the enemies thereof.” That includes anyone who has “previously taken an oath…to support the Constitution of the United States.” The meaning is clear: Section 3 bans anyone who betrayed his oath from ever again serving the country he had sworn to defend.
Let’s take a moment to discuss the “given aid or comfort to the enemies” clause. If you betray your oath to the Constitution and commit insurrection against your country, you are, perforce, an enemy of the United States. That’s what they’re talking about here. This isn’t some afterthought in Section 3. It is yet another slap against those who fomented insurrection and sought to overthrow the U.S. government. In the context of Donald Trump, the Colorado Supreme Court has found that he qualifies as an insurrectionist by his own actions, and by the support he gave those he inspired to assault the Capitol in his name. Remember that little video he tweeted out late in the day on January 6 when he told his followers it was time to go home? He made a point to tell them that “we love you.” What’s that you said, Mr. President? He didn’t say, you did a bad thing, you committed crimes, and I’m mad as hell at you. He gave them aid and comfort in clear, unambiguous language.
Section 4 takes yet another shot at former Confederates. It says that “debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” You know who they’re referring to there: former soldiers who served in the Union army. Section 4 says to the South, we’re going to take some of your tax dollars from here on out and use them to pay the pensions of loyal soldiers of the North who lived up to their oaths. Additionally, Section 4 says that the United States will not “pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.” So, take that, insurrectionists. We’re not paying you back for losing your livelihood when you were betraying your country.
Some brave court could find that this clause applies to you-know-who. Trump could be denied his presidential pension because it was during his time in office that he instigated an insurrection against the country and the Constitution to which he swore an oath. He should not benefit from his service in office after that.
Section 5 drives in the final nail: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” It’s the same clause tagged onto the back of the 13th Amendment ending slavery, and onto the tail end of the 15th Amendment, guaranteeing the right to vote and barring any state from abridging it because of race, color, or previous condition of servitude.
The reconstruction amendments were conceived of and ratified in the reflected heat of the Civil War. The Southern states, at which they were aimed, fought their ratification forcefully. When the amendments became part of the Constitution, Southern states instituted what came to be known as “massive resistance” to block them with state laws, violence, arrests, lynchings, the Ku Klux Klan, and everything else they could throw at them. It wasn’t until the Warren Court decided Brown v. Board of Education and the passage of the Civil Rights Act and Voting Rights Act in the mid-1960’s that the massive resistance of the South was penetrated with the force of law.
Today, with the Supreme Court Trump and others have forced on us, we are still fighting for the rights guaranteed by the Reconstruction Amendments. The Voting Rights Act is in peril, and I wouldn’t put it past this court to overturn Brown v. Board of Education.
The 14th Amendment still stands in all its thunderous glory with the word “insurrection” appearing again and again in its text. There is at least a chance that the wisdom of the framers in the mid-1800’s may help to rid us of a an insurrectionist who tried to overturn the results of the 2020 election. Donald Trump held in contempt the oath he took to support and defend the Constitution. Now that oath may bite him in the ass. The words of the 14th Amendment, written 155 years ago, may help to defend our democracy today.
Permit me to add a couple of things here.
First, the 14A is not the only legal authority regarding disqualification from public office for engaging in insurrection. There is a federal statute, originally passed in the 19th century, but passed again in its current form in 1948 (and well supported by the 14A):
18 U.S. Code § 2383 - Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
“Any office” is pretty explicit in terms of not excluding the president. And second, I have not heard a single reason expressed as to why the authors of the 14A would have excluded the president as an object of that constitutional provision. It’s inconceivable that this would have been the intent. And if there is any doubt as to whether the president is an “officer” of the US government, we can refer to that regularly cited, go-to authority on con law, the Federalist Papers:
Federalist 69, ¶13:
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.
For similar usage, also see Federalist 72, ¶2; and Federalist 76, ¶6.
Still waiting for something-- somebody, anything-- to bite t-rump's ass. He's still walking around with his fat ass free, raving on and on to his rallies.