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The Fourteenth Amendment, Part I: The Passage of the Amendment

Lo and behold! As you can see, there actually wasn't that much Donald Trump legal news yesterday. So, we have an opportunity to get to some of the things that have been on the back burner. Although one of those things is the historical background... to Trump's legal problems. Specifically, we thought we'd try to make clear, as best we can, why the Fourteenth Amendment is both very assertive, and yet also very vague, when it comes to disqualifying insurrectionists from political office.

To begin note that, bar none, there is no period of American history that is more difficult to teach than the Reconstruction Era (1865-77). The Colonial Era, the Revolutionary Era, the Jacksonian Era and the Roaring Twenties are no walk in the park, either, but nothing comes close to Reconstruction. There are many, many moving parts; there are a lot of nuances and subtleties that turn out to be very important; and things changed quickly on the ground, such that something that was definitely true in 1866 might be completely untrue by 1870. It's a real mess, and it's somewhat laughable that college professors are expected to teach The Civil War (doable, but also complicated) and Reconstruction in just one quarter or just one semester.

Point is, this isn't terribly easy. We've decided the best way to start is to run down the key considerations that played a role in the promulgation and adoption of the Fourteenth Amendment:

Now that the major considerations have been addressed, let's run down the key players in late-1860s politics:

As a consequence of the considerations outlined in the first list, there was plenty of potential in late-1860s America for broad, transformative legislation of one sort or another. After all, there were plenty of things that needed to be addressed, and the Congress was firmly in control of Republicans (the moderates plus the liberals) who liked the idea of flexing their muscles a bit.

That said, there were a couple of very big obstacles. The first of those was Andrew Johnson, who was more than happy to wield his veto pen, and did so multiple times, most notably for the Civil Rights Act of 1866. His veto was overridden, but that takes a supermajority, of course, and those are not always so easy to put together. Sometimes, but not always.

The second obstacle, meanwhile, was the Supreme Court. The nineteenth century was a time of limited government, and quite a few officeholders had serious scruples about what powers Congress did, and did not, have. And so, even many of the moderates who voted for things like the Civil Rights Act of 1866 wanted the Supreme Court to weigh in and confirm that everything was kosher. And even absent the moderates' concerns, people were nearly as lawsuit-happy back then as they are today. So, any transformative bills passed by Congress, even with a veto override, were likely to end up before the Supreme Court. And, as noted, the Supreme Court was a known unknown in the late 1860s.

There is, however, a workaround available. Or, at least there was from 1865 to 1870, or so. The one thing that a president can't veto, and that a Supreme Court can't strike down, is a constitutional amendment. And the fact that the Southern states had left the union conferred two... opportunities when it came to passing amendments. The first is that the states left with deciding power were Northern states, and more likely to sign off on something pieced together by a bunch of predominantly Northern congressmen. The second is that when Southern states rejoined the country, one of the prices of admission was... they had to sign off on the new amendments. If you were to try to pass, say, an anti-gerrymandering amendment today, then a state like Tennessee would be an automatic "no." Back then, not only was Tennessee not an automatic "no," it was an automatic "yes." The residents literally had no choice if they wanted back in. So, if that vote was needed, all that was required was to wait a little bit.

The direction in which all these threads were pointing was so obvious, particularly after Johnson became veto-happy, that there were more than 70 different variants of the Fourteenth Amendment put before Congress. At the same time, it was clear that the window of opportunity was going to close. First, as memories of the war faded, the taste for transformative change was sure to wane. Second, once Southern states were readmitted, they were no longer required to vote as ordered on amendments. Add it all up, and it's no surprise that the Fourteenth is something of an omnibus amendment that covers a great deal of territory. The Republicans in Congress just weren't sure they'd have another chance. They did ultimately get one more bite at the apple, with the Fifteenth Amendment (1870), but they didn't know that at the time.

The breadth of the Fourteenth is indicated by the vast number of issues in which it's been invoked, from jus soli citizenship (e.g., United States v. Wong Kim Ark), to the right to be represented by appointed counsel if you cannot afford an attorney (e.g., Gideon v. Wainwright), to access to contraceptives (e.g., Griswold v. Connecticut), to abortion rights (e.g., Roe v. Wade; Dobbs v. Jackson Women's Health Organization), to Japanese internment (e.g., Korematsu v. United States) to voting rights (e.g., Shelby County v. Holder).

But now let us return to the main question at hand. Here is the actual passage from the Fourteenth Amendment that might (or might not) apply to Donald Trump and his band of merry co-conspirators:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, 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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

This passage was put into the amendment for two main reasons, both of which we've already mentioned. The first is that there was an actual problem with Confederates being elected to high office. The second is that the members of Congress wanted to be on 100% firm legal ground when they rejected former Confederates who showed up with their certificates of election. Recall that jurisprudence making clear exactly which members Congress can, and cannot, refuse to seat was close to 100 years in the future.

But why is it so imprecise? There are three good answers to that question. The first is that the members did not know what form an insurrection might take in the future. For Americans today, the only true insurrection in U.S. history was the Civil War. But someone living in 1868 might well have living memory of other rebellions that were quite different from the Civil War. They might have thought about Dorr's Rebellion (1841-42), or perhaps one of the slave rebellions, like Nat Turner's Rebellion (1831). They almost certainly were thinking about various acts of resistance undertaken by the Native Americans, like the Sioux Uprising of 1862. They might also have been mindful of incidents from recent European history, like the Revolutions of 1848. The upshot is they had every reason to think that insurrection could take many forms, and it was necessary to cover for them all, as opposed to trying to implement a definition for what does and does not constitute "insurrection."

A second issue is that the courts still had plenty of Democratic appointees left over from the string of Democratic presidents who served prior to Lincoln. Meanwhile, as of 1868, Congress had already acted decisively to eject Confederate members-elect. So, at the moment the amendment was passed, most members undoubtedly preferred to reserve the enforcement of this clause to themselves. That said, they knew that a pretty Democratic and conservative judiciary, and an overwhelmingly Republican Congress, were not states of affairs that would last forever. This is why the Amendment includes no clear directions as to who gets to decide on disqualification, or even if any decision is needed at all. The members had some fairly good reasons to keep it loose, and to neither claim the power solely for themselves nor to assign it to some other entity.

Third, and finally, there were a lot of moving parts when it came to the Fourteenth Amendment, with a lot of different stakeholders needing to be accounted for. And the fact is that the trickiest and most contentious issue was the freedpeople. That's where most of the attention and energy and political capital was expended. As to the Disqualification Clause, it might have been hammered out a bit more in different circumstances, perhaps. But it also might not have passed under different circumstances.

And that, in a nutshell (admittedly, a pretty lengthy nutshell), is how the country ended up with a dictum that is simultaneously assertive and vague. In the next part, we'll talk about how the Disqualification Clause was, and was not, enforced, and why, in the years immediately following the adoption of the Fourteenth Amendment. (Z)

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