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TODAY'S HEADLINES (click to jump there; use your browser's "Back" button to return here)
      •  White House Thinks U.S. House Is about to Make Two Unforced Errors
      •  This Week in Biden "Dirt"
      •  Today's the Day in Texas
      •  Wisconsin Republicans Hate Democracy
      •  Republicans Have a Scheme to Attract Black Voters
      •  We're In a Polling Desert Right Now
      •  The Fourteenth Amendment, Part II: Let Us Have Peace

White House Thinks U.S. House Is about to Make Two Unforced Errors

Now that Labor Day is in the rear-view mirror, the House of Representatives is back to work. And given the state of affairs with the majority party, there are two concerns of paramount importance: demanding steep budget cuts/shutting down the government if they are not granted, and impeaching Joe Biden.

As things are unfolding, it is looking more and more like the two things will end up linked together. That is to say, there are members of the Freedom Caucus—along with Rep. Marjorie Taylor Greene (R-GA), who was kicked out of the Caucus—who say they won't vote for any government funding, even just a "kick the can down the road" continuing resolution, without a vote to launch an impeachment inquiry into the President. Speaker Kevin McCarthy (R-CA) could theoretically reach across the aisle and round up some Democratic votes, but in that case, the Freedom Caucusers have made clear they will respond by trying to kick McCarthy out of the speakership.

And so, the sausage-making is about to get particularly gruesome. On the whole, the White House thinks that if House Republicans continue along their current course, it will ultimately come back to bite the GOP in the a** (even if it's the Democrats whose symbol is a donkey). There is some historical precedent for this; the biggest self-inflicted GOP wounds of the past 30 years were the sham impeachment of Bill Clinton and the government shutdowns of 2013 and 2018-19. Very, uh, savvy of the House Republicans to somehow find a way to combine both into one tidy package.

That said, the Biden administration is also wary. Given the ongoing propaganda war against him (see below for more), he may be particularly vulnerable to phony charges of malfeasance. Meanwhile, Team Biden is working hard to convince Americans that the economy is doing well, and that it's headed in the right direction. A government shutdown would not help on that front, particularly if the shutdown leads to a stock market downturn or, God forbid, a downgrade of the United States' credit rating.

In short, while House Republicans might be about to cut themselves off at the knees, they are not entirely without leverage here. It's likely going to depend a fair bit on what Senate Republicans do. Needless to say, the Senate GOP does not have enough votes to actually pass anything that might make its way through the House. However, if the non-nutty Senate Republicans (in other words, not Ted Cruz, R-TX, or Mike Lee, R-UT, or Josh Hawley, R-MO, or Rand Paul, R-KY) spend much oxygen talking loudly about the need for budget austerity and/or for an impeachment, then House Republicans might be able to stick their landing. On the other hand, if most Senate Republicans say "Don't ask us what's going on over there," then it will make the House GOP look much more like a rogue band of troublemakers. The potential incapacity of Senate Republican Leader Mitch McConnell (R-KY) may loom large here.

There are enough wildcards here, then, that it's hard to say what will happen. The only thing that's certain is that you should buckle up, because it's going to be a bumpy ride. (Z)

This Week in Biden "Dirt"

We keep an eye on a fairly large number of politics and news sites, so as to keep on top of what's going on in the world of politics as best we can. And of those sites, there may not be any that require more caution than The Hill. A site like Fox or Breitbart, we already know they're in the bag for right wingers, and so we only link to them if the point is "Here's what right wingers are thinking/hearing/seeing." And a site like The Washington Post or The New York Times is almost certain to be OK, as long as you correct for their propensities for bothsidesism.

But The Hill? On one hand, they have a fair number of good, straightforward news pieces that are not behind a paywall, especially if Politico (which is also free) doesn't have the story. The staff there sometimes comes up with something that nobody else has. On the other hand, virtually every page has an auto-play video, which annoys us, and which we don't like to inflict on readers who might click through. The opinion pieces are often right-wing propaganda, but The Hill's editors are better at separating news from opinion than the people at Fox News are. Nevertheless, this is the site that not only put John Solomon on staff, but bestowed a management title upon him (he was executive vice president of digital video until being fired for shoddy "reporting").

We say all of this as preview to our daily The Hill check-in yesterday. Among the features of the site is a column, on the right (probably apropos), that lists the most popular stories of the moment. Many sites have this, of course. Here's what The Hill's looked like around lunchtime yesterday:

The most popular stories; the third one
on the list is 'Biden's use of fake names in email could cost him'

By the time we get to The Hill, we've already looked at a half-dozen (or more) reputable news organizations. We're also aware of the stories we've written or followed in the previous days. What stood out to us on yesterday's list was item #3: "Biden's use of fake names in email could cost him." That is the only item on the list that we had heard nary a word about. When we are talking about The Hill, there is roughly a 98% chance that such a story is right-wing claptrap that has been driven up the "popular" list by sharing and re-sharing on social media by right wingers. However, there is a 2% chance that The Hill has the scoop on something before all the other outlets. And a 2% chance is enough to be worth a click, just to be sure. So, we clicked.

It did not take long to confirm on which side of the 98%/2% divide this piece lives. After the headline, which we already knew, it reads: "BY JONATHAN TURLEY, OPINION CONTRIBUTOR." Done and done. Nonetheless, we kept reading, since it's still useful to know about the latest slings and arrows that the right is preparing to use against Joe Biden. And even by the low standards that Turley has adopted in the current chapter of his career, the piece is an absolute fiasco. The basic argument, though it is made in a manner that would earn a C in an undergrad-level composition course, is rooted in the notion that it's already an established "fact" that Joe Biden engaged in influence peddling before becoming president. After all, as Turley points out (without giving any context), the House has launched investigations. And now, according to the author, it has been uncovered that Biden sent e-mails using an alias. Here's the key passage, which follows the observation that Barack Obama has to decide whether or not to release the e-mails:

Obama is now being asked to bail Biden out from another debacle of his own making, going back to his time in Obama's administration. Various committees and private groups are seeking more than 5,000 emails from Biden in which he used an array of aliases during the Obama administration.

Under the Presidential Records Act, Obama has 30 days to bar the release of the emails and to help shield his former vice president in a growing corruption scandal over the influence-peddling operation run by Biden's son, Hunter.

Recently, it was learned that Joe Biden went by a variety of code names and false names, including Robin Ware, Robert L. Peters, JRB Ware, Celtic and "The Big Guy." House investigators believe that may only be a partial list. For many Americans, it is understandably unnerving to learn that their president has more aliases than Anthony Weiner.

Note that, even in a brief 147-word snippet, Turley deploys numerous sleazy argumentation tricks. For example, the implication that if Obama decides to keep the e-mails secret, he would undoubtedly be doing so to "shield" Biden. Or the casual linking of Biden to sex-scandal-ridden Anthony Weiner.

In any event, having read the whole thing, we have two observations. The first is that the use of e-mail aliases, depending on how loosely you use the term, is generally pretty innocuous, and does not tend to indicate ill intent. For example, between various personal, teaching, and needs, (Z) uses 11 different e-mail accounts. And messages from just 2 of the 11 go out under his real name. Meanwhile, only one of them is used to receive marching orders from the Canadian government.

The second observation is that Turley doesn't actually make clear what fraud Biden ostensibly perpetrated by using these aliases. What he wants you to believe is that Biden was conducting shady business under fake names, so that the messages could not be traced back to their real source. But Turley has no actual, you know, evidence for this. So, he has to utilize innuendo and misdirection, not unlike a conjurer. Or a charlatan. And the theory doesn't actually make a whole lot of sense. If a person was trying to pass themselves off as some other person, would they really use aliases that clearly allude to their real identity (e.g., "JRB Ware") or that have no identity at all (e.g., "The Big Guy")?

We don't love to give oxygen to this sort of nonsense, but we did think readers would want to be aware of the (apparent) latest front in the "corrupt Joe Biden" narrative, especially since the impeachment talk is about to heat up (see above). And, for those who like to peek behind the curtain, this also afforded an opportunity to talk a bit about our process. (Z)

Today's the Day in Texas

And now, we move from alleged sleazy behavior by a Democrat to alleged sleazy behavior by a Republican. In this case, the allegations are rather more credible. Certainly, they were substantive enough to persuade the very Republican Texas state House to impeach very Republican state AG Ken Paxton. He's been suspended from work ever since being impeached in May, but that won't last much longer, as his state Senate trial commences today. Within the month, he should be either permanently restored to his position, or out of a job.

There are a total of 20 articles of impeachment against Paxton, which cover two aspects of Paxton's behavior that were once distinct but nonetheless became closely related. The first of those is his questionable relationship with real estate investor Nate Paul, who certainly appears to have been the beneficiary of all sorts of influence peddling, some of it steering money toward Paul, some of it steering legal scrutiny away from him.

The second is Paxton's numerous extramarital dalliances. Those would be merely impolitic for an alleged God-fearing, Bible-following Christian, if not for the AG's alleged use of state resources to cover his tracks. Further, in a "you scratch my back, I'll scratch yours" kind of situation, Paul apparently helped facilitate the sexcapades by hiring at least one of Paxton's paramours. That is how alleged corrupt behavior Part A and alleged corrupt behavior Part B ended up closely related.

In theory, the influence peddling is worse, and should get the lion's share of the attention. In reality, according to those in the know, it's the salacious stuff that's going to be front and center during the trial. Adding to the drama, and all but guaranteeing that this will become a Lifetime Movie of the Week sometime soon, is that Paxton's wife, state Sen. Angela Paxton (R), will be front and center for the whole thing.

Note that Angela Paxton will not be voting on whether to convict or not; under the rules that were adopted for the proceedings, she is forbidden from casting a ballot. That said, her seat will count for numerical purposes, which means that she is a de facto "abstain" vote, and that 21 of the 30 non-Paxton senators will be needed to convict. That's 70% of the available votes. For what it's worth, in the Texas House, 121 members out of 144 (84%) voted to impeach. On the other hand, the state Senate is understood to be a little more Paxton-friendly, and the presiding officer will be Lt. Gov Dan Patrick (R-TX), who is a Paxton ally. So, both conviction and exoneration are well within the realm of possibility.

Even if Paxton dodges this particular bullet, he's still got a snootful of troubles to deal with. He's under state indictment in two different cases, one for securities fraud and one for influence peddling. He's got whatever troubles at home will arise from his marital freelancing. And if he tries to run for office again, Texas voters are not likely to be happy about what they've seen and heard.

Nationally, Republicans would undoubtedly like to be rid of Paxton. He's an anchor around their necks, and is used as a poster child for GOP corruption/hypocrisy in Texas and in neighboring states as well. National Republicans don't get a vote, per se, but they can certainly make clear to their colleagues in the state Senate how very nice it would be to be rid of this troublesome fellow. All in all, it's going to be quite the Lone Star drama. (Z)

Wisconsin Republicans Hate Democracy

We think it's fair to say that Wisconsin is the most evenly divided state in the country right now, as far as Republicans and Democrats go. Here are the results for the six presidential elections of the 2000s:

Year Dem. Share Rep. Share Margin
2020 49.5% 48.8% D+0.7%
2016 46.5% 47.2% R+0.7%
2012 52.8% 45.9% D+6.9%
2008 56.2% 42.3% D+13.9%
2004 49.7% 49.3% D+0.4%
2000 47.8% 47.6% D+0.2%

Clearly, Wisconsinites loved them some Obama. But if you take those two elections out, then the Democrats have outpaced the Republicans, on average, by 0.15% in the presidential elections of the 2000s. That certainly says "evenly divided, maybe with a very slight Democratic lean" to us. If you include the Obama elections, the Democratic lean gets a bit less slight.

Despite this, Republicans have dominated statewide government for the past couple of decades. Thanks to gerrymandering, the red team has enjoyed a consistent majority, and often supermajority, in the two chambers of the state legislature. It's currently 22-11 in the state Senate and 63-35 (with one vacancy) in the state House. The GOP also managed to maintain a majority on the state Supreme Court for 15 years, from 2008-23. This gave the Republicans enormous power, even during the 9 years in the last 23 that a Democrat was in the governor's mansion.

At the moment, however, the trendlines are not so great for the Wisconsin GOP. We are in the middle of a Democratic gubernatorial term, and the state Supreme Court is 4-3 for the liberals, thanks to the landslide election of Janet Protasiewicz (she won by 11 points, 55%-44%). At the moment, the state legislature is still gerrymandered six ways to Sunday, as is the U.S. House delegation (it's 6R, 2D). But with the new composition of the state Supreme Court, that could soon change. As we've noted a couple of times, a lawsuit to that effect is already underway.

One possible option for the Republican Party would be to, you know, have better ideas than the Democrats. To win elections, and with them political power, because more voters like what the Party is selling. But that's not how it generally works with today's GOP. This is especially true in Wisconsin, where the right-wingers are wedded to a position on abortion that is clearly unpopular, and that is a major reason that Protasiewicz crushed her anti-abortion opponent.

And so, in the absence of being the more appealing party with the more appealing platform, Wisconsin Republicans have decided it's time to reach into the anti-democratic (and anti-Democratic) bag of tricks. To start, they want to fire Wisconsin Elections Commission Administrator Meagan Wolfe. The office is nonpartisan, and Wolfe's own political leanings are unknown, at least to the general public. She was picked by the three Republicans and three Democrats on the board that she chairs, then confirmed by the Republican Senate, which would seem to suggest that she's either fair and balanced or that she's a little right-leaning. By getting rid of her over alleged "election fraud," state Republicans would be able to either replace her with a fire-breathing right-winger, or else with nobody, hampering the ability of the board to ensure the integrity of elections. That is right; in the name of "integrity," Wisconsin's Republicans are taking steps they know full well will result in less integrity.

The current scuttlebutt regarding Protasiewicz is even sleazier. Only one Wisconsin Supreme Court justice has ever been impeached, and that was back in 1853 (and the justice was not convicted). The first problem, in 2023, is that Protasiewicz hasn't done anything remotely impeachable. That can be overcome, but it leads to a second problem: If Protasiewicz is convicted and removed from office, her replacement would be chosen by Gov. Tony Evers (D-WI).

So, if the House does impeach Protasiewicz, Wisconsin Senate Majority Leader Devin LeMahieu (R) has said that his chamber will take no action on the matter. That may sound like a demonstration of decency and of principle, but it isn't. See, as in Texas (see above), once a person is impeached they are suspended from office until they are cleared of the charges. So, if Protasiewicz is impeached and then not tried, the Wisconsin Supreme Court would be 3-3 between liberals and conservatives, and there would be rather less risk that the state's restrictive abortion law will be overturned, or that the gerrymanders will be struck down.

With all of this undemocratic behavior, Wisconsin Republicans are undoubtedly alienating voters, and giving Democrats extra motivation to get to the polls. So, the odds are pretty good that Democrats will have the upper hand in statewide elections for a good while, including presidential, gubernatorial and U.S. Senate races (even if Sen. Ron Johnson, R-WI, once again violates his two-term pledge in 2028). However, if you're in the minority and your grip on power is slipping, apparently you gotta do what you gotta do. Darn that pesky democracy. Things would be so much easier if people couldn't vote. Now that we have brought up the subject, the legislature could write and pass a bill abolishing voting and have all positions filled by the self-perpetuating legislature. Evers would veto it of course, but the Republicans have the votes to override a veto. (Z)

Republicans Have a Scheme to Attract Black Voters

Yesterday, we had an item about Democratic efforts to attract a traditionally Republican constituency (small-government Republicans) with the argument that today's GOP is engaged in wild, anti-civil-liberties overreach on the issue of abortion. Well, for every action, there is an equal and opposite reaction. And so, Republicans have launched an effort to attract a traditionally Democratic constituency (Black voters, particularly Black men), with the argument that immigrants are stealing Black jobs.

To this end, former Trump White House official William W. Chip, who is an outspoken anti-immigration activist, has formed a group called Black America for Immigration Reform. Chip is white, incidentally, and not in any way a part of "Black America." However, he does have Black friends, namely T. Willard Fair and Frank Morris. Chip says he's just doing the legwork, and that Fair and Morris are eventually going to take over, along with three other Black directors, who have yet to be identified/recruited.

If Chip wants to found an anti-immigrant group, why not do it in his own name (and his own race)? He says that when white people complain about immigration, they get called racist. He thinks that won't happen if Black people are running the show. He explained: "And so the feeling was, if we had a legitimate, African-American organization, whose board consisted of prominent African Americans, they might get more credibility."

In particular, Chip believes it is important that Black Americans be made aware of research indicating that the jobs taken by undocumented immigrants tend to be those that otherwise are filled by uneducated people. In other words, he's building his messaging around the notion that Black people are stupid (and thus unable to recognize a sham organization when they see it), and at the same time know they are ignorant (and so understand that they are the victims when "uneducated people" lose jobs).

That level of "sensitivity" is not terribly surprising from someone whose social media is full of messages talking about how the people who need to pay slavery reparations first are African tribes and Muslim traders, how "White Gentiles" are the real victims of Affirmative Action, and how Joe Biden is a bigot because he's used the phrase "Neanderthal thinking." Although we do understand why Chip would be personally offended by slurs against Neanderthals.

We are somewhat skeptical that Democratic efforts to reach libertarian-leaning Republican voters will bear much fruit, but at least it's not impossible. On the other hand, if William W. Chip and his ilk are the best that the GOP can come up with when it comes to making the tent bigger, then the Party is looking at yet another "get as much of the base as is humanly possible to the polls and hope for the best" election for them in 2024. (Z)

We're In a Polling Desert Right Now

We are too far from Election Day 2024 for polls to mean very much. And polls do cost money (or manpower, in the case of university polling centers). If there's some event that might produce something interesting, like the presidential candidates' debate, then maybe. Otherwise, the real pollsters are conserving their resources right now.

Nature abhors a vacuum, and so the lack of legitimate polls creates an... opportunity, of sorts. Actually, two opportunities. The first is that there's a chance for mediocre (often partisan) pollsters like Rasmussen or Trafalgar to lay claim to a little extra attention. The second, which is somewhat related, is that political campaigns can try to shape the narrative by releasing polls that ostensibly have "good news" for that campaign.

You could predict the obvious culprits here without us telling you. The presidential race is the only one worth this kind of attention over a year out, only the Republican nomination is being contested in any sort of meaningful way, and the two leading candidates for that nomination are both very Machiavellian. So, it is not at all surprising that Donald Trump and Gov. Ron DeSantis (R-FL) are currently playing a game of dueling polls. The former, for example, was behind a poll showing DeSantis was making no progress in New Hampshire or Iowa. The latter was behind a poll showing that DeSantis had gained 7 points in Iowa since the debates. There are at least a half-dozen other polls in the last week or so that effectively came from one camp or the other (Vivek Ramaswamy's been playing the game, too).

The most aggressive practitioner of this technique is, as you might guess, DeSantis. He is the more traditional politician, and he's also more desperate to try to gain some traction. The polls do not come from the DeSantis campaign, per se, they are conducted by DeSantis' preferred polling firm, Public Opinion Strategies, and are released by a DeSantis-friendly PAC, Citizen Awareness Project. It all sounds very fair and unbiased, until you start to trace things back to their source.

This helps to explain why we don't bother to track the polls this early in the cycle. First, as every reader knows, the presidential result (and thus our model) is based on the Electoral College. Most polls are national preference polls right now, and those that aren't are usually early primary/caucus states. If we started tracking polls right now, the map would largely tell you that the 2024 results are going to be the same as the 2020 results, since all we would have for most states would be the 2020 results.

Second, we have various steps we take to make certain that a particular pollster is acceptable for inclusion in our database. What it amounts to is that we keep partisan pollsters, and those with poor track records, out. Because pollsters come and because pollsters go, and given that partisan campaigns and PACs tend to hide behind names like "Citizen Awareness Project," it's a little hard right now to separate "limited track record, but probably OK" from "limited track record because they are a front for a campaign." So, no map updates for us until well into next year, certainly not until the nominees are known for sure. (Z)

The Fourteenth Amendment, Part II: Let Us Have Peace

Last week, we had an item on the passage of the Fourteenth Amendment, with a particular emphasis on the question of how the U.S. ended up with something that is simultaneously so firm in the restrictions it imposes and yet so vague about how exactly they are to be imposed. Today we're going to look at the roughly 4-year period after the Fourteenth Amendment was ratified on July 9, 1868.

To start, note that nobody had any doubt whatsoever that Section 3 of the Amendment, the one that prohibits insurrectionists from holding political office, applied to vast swaths of the Southern populace on the day that the Amendment became law. President Andrew Johnson, though largely endowed with a rubber spine, interpreted it that way, and issued orders to that effect to the generals who were governing the former Confederate states under martial law. The Congress, which had written and passed the Fourteenth Amendment, certainly understood its own intent. The members acted consistent with that intent even before the Fourteenth was passed, refusing to seat at least a dozen former Confederate members-elect, and also impeaching and removing from office the pro-Confederate judge West Hughes Humphreys. Perhaps most importantly, the Southern populace well understood the situation. The House Select Committee on Reconstruction, which sat from 1867-71, received over a thousand requests from Southern would-be officeholders, asking for their eligibility to be restored.

The upshot: It was so abundantly clear that anyone who had violated their oath by rebelling against the United States was out of luck, very few people actually put Section 3 to the test. Between 1869 and 1872, there are only six known cases of someone being explicitly disqualified from office under the terms of the Fourteenth Amendment. Here is a rundown:

  1. John H. Christy (1868): Exactly what oath Christy took before the Civil War is not known. It's also not known exactly what he did during the Civil War, as the documentation that is left to us just says he "[gave] aid, countenance, counsel, and encouragement to persons engaged in armed hostility to the United States." Nonetheless, when Christy was elected to the U.S. House of Representatives from Georgia, Gov. Rufus Bullock (R-GA) refused to issue a certificate of election, as he found that Christy was disqualified by the Fourteenth Amendment. The House sustained the Governor, and refused to seat Christy.

    Bullock tried to give the job to the other candidate, John Wimpy, but it turned out that Wimpy did not, in fact, pay people back on Tuesday if they bought him a hamburger today. No wait, wrong Wimpy. This one had likewise taken a pre-war oath and had served in the Confederate Army, so he was not eligible, either. Not terribly long thereafter, thanks to his habit of trying to protect the civil rights of formerly enslaved people, Gov. Bullock was strongly encouraged by men in robes and hoods to leave the state before his term was up, lest he find himself with a neck that was no longer intact. He wisely took their advice.

  2. Kenneth H. Worthy (1869): He was a county sheriff, then served in the Confederate government, and then was reelected as a county sheriff after the war. He was barred from assuming office by a county commissioner in North Carolina, and filed suit in state court to be allowed to assume his post. In Worthy v. Barrett, the state Supreme Court found that it did not matter that Worthy had never engaged in acts of violence against the United States, and it also did not matter that the oath he took as sheriff was not a federal oath, he was clearly disqualified under the terms of the Fourteenth Amendment as he had participated in an insurrection in violation of his oath.

  3. William L. Tate (1869): Tate was a county attorney before the Civil War, then served as an officer in the Confederate Army, then was elected a state solicitor. When he submitted his certificate of election to a judge, in order to be sworn in for his new position, the judge said "no." Tate sued, and in In re Tate, his disqualification was upheld.

  4. J.D. Watkins (1869): Watkins was a district attorney prior to the Civil War, and served in some lost-to-time capacity during the War (though likely not as a soldier, as there would be documentation of that). After the surrender at Appomattox, Watkins was elected a state judge, and a quo warranto action was filed against him by one of his fellow judges. This is a demand that can be filed by any citizen, and that requires someone prove they are qualified for the office they hold. In Watkins' case, the argument was made in State ex rel. Sandlin v. Watkins that he was not qualified, both under the terms of the Fourteenth Amendment and under the terms of a state law meant to allow enforcement of the Fourteenth Amendment. Watkins lost and was removed from the bench; the key finding here was that the restriction is a qualification for office and not a criminal penalty. So, one need not commit a crime, necessarily, to trigger the provision.

  5. A.F. Gregory (1871): This is the case about which the least is known. There is no documentation as to what pre-war post Gregory held, or what he did during the Civil War. However, after he was appointed as a postmaster in Grayson County, VA, the U.S. Postmaster General filed a quo warranto action and Gregory was removed.

  6. Zebulon B. Vance (1872): This is the famous one, at least among historians. Vance was a U.S. Representative before the war. During the war, he was not only a Confederate, he was one of the most prominent Confederate officeholders, serving as governor of one of the South's most populous states, North Carolina. In 1872, he was chosen as a U.S. Senator by the North Carolina legislature, which by then was back under the control of white conservatives. The losing candidate challenged the validity of Vance's election under the terms of the Fourteenth Amendment, and ultimately, the U.S. Senate refused to seat either of them.

Those are the six known contemporaneous enforcements of Section 3 of the Fourteenth Amendment. Not a lot, but the following principles were nonetheless clearly established:

  • Disqualification does not require a crime to have been committed.
  • Disqualification does not require a violent act to have been committed.
  • Disqualification does not require a court hearing or a court finding.
  • That said, a court CAN be the instrument by which someone is disqualified, as can Congress.
  • There is no particular "timeline" for disqualification; a person can be subject to the Fourteenth Amendment even after they've been elected and, in fact, even after they've already assumed office.

So, how come there were only six disqualifications in total, and then they stopped after 1872? That requires another overview of the milieu. Recall how we wrote that things changed rapidly on the ground during the Reconstruction Era? Well, the things on the minds of government officials had evolved a fair bit from 1868:

  • White Resistance: White Southerners were not happy to lose the Civil War. They were even more unhappy to lose their slaves, though they had braced for that eventuality by the time it happened, and they found a pretty good substitute in the form of sharecropping. The white folks were furious when Black Americans were granted citizenship and other protections, and were positively livid when suffrage was extended by the Fifteenth Amendment in 1870.

    In view of these things, white Southerners asserted themselves... aggressively. It was something of a two-pronged approach. The resistance that was ostensibly legal, like electing white conservatives to political office, was done out in the open. The resistance that was not legal, like threatening or committing violence against Black people and their white allies, was done "anonymously," in costume, by the Ku Klux Klan and other vigilante groups. The locals knew who was under those hoods, but it was rather harder (though not impossible) for the feds to track them down. Klansmen in the 1860s and 1870s were disproportionately military veterans and members of law enforcement, whereas today... well, some things don't change.

    During this time, white Southern leaders also undertook a successful whitewashing PR campaign that very effectively rewrote the history of the Civil War and the Reconstruction. Their interpretation, of course, came to be known as the "Lost Cause" view of the Civil War. The attraction of the Lost Cause, including among many Northerners, was due in significant part to the increased speed of industrialization and urbanization in the postbellum era. There are upsides to those things, but also downsides. And for the average person, the downsides—overcrowding, increased crime, increased filth, pollution, ethnic conflict—tended to be more noticeable than the upsides. The antebellum South was romanticized as the counterpoint to "modernization," a time when life was simpler, slower-paced, less crowded, etc. It's an old tendency, dating at least as far back as Marcus Cato the Elder and Livy, and finding expression today in the form of politicians who promise to Make America Great Again.

  • Weariness: The victorious North, through the federal government, spent roughly 15 years trying to impose its will on the South (1861-76). The investment was particularly substantial during the first decade of that period. And the return on investment was... not good. The South barely changed at all, and that is true whether we're talking about politics, culture, economy, or nearly anything else. Nation-building is hard, even when it happens at home. And before you look too askance at the postbellum federal government, and its Northern voters, keep in mind how quickly Americans grew weary of involvement in Korea (≅3 years), Vietnam (≅7 years), or Iraq (≅8 years).

  • Philosophy: There were a fair number of Northerners, including government officials, who regarded themselves as fair-minded. That might even have been a reasonable assessment. And what they increasingly began to think is that white Southerners were fellow citizens, and had paid a pretty serious price for their rebellion, and were ultimately entitled to restoration as the equals of their Northern brethren. The more liberal-minded Northerners hopefully/naively told themselves that Black citizens had been given rights, too, and that everyone in the South would be on equal footing. The less liberal-minded Northerners took the view that, when push comes to shove, the rights of white people (even former rebels) are more important than the rights of Black people (even veterans of the Union Army).

  • Realpolitik: Meanwhile, as we noted in the previous installment, there were some Republican politicians who supported civil rights/suffrage for Black Southerners due to the notion that Black, Republican voters could become a power base for the Republican Party in the South. By the early 1870s, however, two things had become clear: (1) that outcome was not likely, and (2) Republicans would nonetheless be able to dominate national elections based on votes in the North and the West. Both of these suppositions proved to be correct; everyone knows what happened with Black voting in the late nineteenth and early twentieth centuries, while Republicans controlled the White House for 56 out of 72 years between 1860 and 1932. Anyhow, given these realities, those folks who favored Black civil rights for their own selfish/practical purposes tended to lose interest.

  • Let Us Have Peace: For most Americans today, Ulysses S. Grant is famous as a general, and his political career is something of a footnote or a sidebar. In Grant's own time, however, his presidential record was almost as important as his military record. His slogan in 1868, and in 1872, was "Let Us Have Peace." This was important enough to his legacy that it's carved above the entrance to his tomb:

    Grant's Tomb, with cutout that
has 'Let Us Have Peace' carving zoomed in.

    While some slogans are just empty B.S. (ahem, MAGA), Grant really meant it. And, in view of the various trends outlined above, the voting public was ready for it.

Now, as we did last time, let's run down the key players in early 1870s federal politics:

  • Congressional Republicans: The Republican Party still held the reins of power in the Congress, but it was a rather different Republican Party than the one 4 years earlier. The radical faction was all but gone, with members having died off (e.g., Thaddeus Stevens), or having reached the end of their time as power brokers (e.g., Charles Sumner), or having simply been voted out of office (e.g., Benjamin Franklin Wade). By the 1870s, Congressional Republicans were an amalgam of moderates and moderate conservatives, with the (very) occasional liberal mixed in. Think today's Senate Democratic Caucus, and you get the basic idea.

  • Congressional Democrats: The Democratic Party was again a viable concern in the North by the time the 42nd United States Congress took its seats on March 4, 1871. Meanwhile, Southern Democrats had begun to regain some voting power, and thus some representation. The Congress was still dominated by Republicans, but 102 of 241 members of the House (42%) and 14 of the 70 members of the Senate (20%) were Democrats. That meant no more constitutional amendments (the next one was in 1909) and no easy overrides of presidential vetoes.

  • The Supreme Court: By 1872, Republican appointees had a supermajority on the Supreme Court, as the number of seats was back to nine, and there were only two Democratic selections still sitting. That said, it was clear that the liberal chief justice, Salmon Chase, was near the end of the line (he died in 1874). Further, the Republicans seated in the 1860s and 1870s (note that Andrew Johnson made no selections) were of a decidedly conservative Republican bent. One might even say reactionary. By the early 1870s, the pieces were already in place for the civil rights gains of Reconstruction to be significantly dialed back by the Supremes. Keep in mind that Plessy v. Ferguson (1896) was decided by a Court that was 7-2 Republican (including the last remaining Lincoln appointee).

  • Grant: After signing a peace agreement with Robert E. Lee in 1865, Grant sent out an order that said: "The war is over; the rebels are our countrymen again; and the best sign of rejoicing after the victory will be to abstain from all demonstrations in the field." From that day, and for the rest of his life, Grant was committed to treating the defeated Confederates as Americans, and not visiting victors' justice upon them.

    That is not to say that he was a white supremacist, however, because he was not. In fact, by the standards of his day, he was a liberal on race. He knew full well that Black men had served with distinction in his army, and he believed that Black veterans, and Black people, were entitled to citizenship and the privileges therein. He was absolutely willing to flex his muscles—as a postwar military commander, then as Secretary of War, then as president—to see that this was the case.

In short, after the Fifteenth Amendment was added to the Constitution on February 3, 1870, the time for transformative legislation was at an end. That said, the next 2 years did see two important pieces of legislation that, while possibly incongruous to the modern reader, made perfect sense in the context outlined above. The first of these was The Enforcement Act of 1871, which is better known as The Ku Klux Klan Act. The original draft was the work of one of the few remaining congressional radicals (Benjamin Butler), and was revised into passable form by one of the moderates (Samuel Shellabarger). It was requested by Grant, passed the Congress a month later, and used to great effect to destroy the first incarnation of the KKK. Hundreds of Klansmen were identified, put on trial (often with Black juries—can someone say "schadenfreude"?), and imprisoned. Habeas corpus was suspended in nearly a dozen counties. The Klan would not come back to life for nearly 50 years.

The second piece of legislation, also passed at the instigation of Grant, was The Amnesty Act of 1872. It says:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

When Grant applied his signature to the bill, it restored the eligibility for office of nearly 150,000 former Confederates (including the aforementioned Zebulon Vance, who was promptly sent to the U.S. Senate again by his fellow North Carolinians, where he served for 15 years). Consistent with the spirit of the occasion, Grant also pardoned 500 high-ranking Confederates (though the 500 remained ineligible for officeholding).

The thinking here, whether agreeable to the modern reader or not, should be fairly evident. In the 1870s, Northern leadership, including the President, remained willing to protect the rights of the freedmen and freedwomen (although that impulse would fade fairly quickly). At the same time, they had lost enthusiasm for imposing punitive measures on white people, even former Confederates. The country was, on the whole, ready to move on from the Civil War, and bringing an end to these measures was a way to do that.

That is how the country ended up in a situation where there were literally hundreds of thousands of former Confederates subject to Section 3 of the Fourteenth Amendment, and yet only half a dozen who were actually, formally disqualified by it. In part, this was because thousands of Southerners yielded to the Amendment's terms, and did not try to put it to the test. And in part, it was because in the rapidly evolving postwar world, interest in enforcing Section 3 faded quickly. That said, the events of the four-year period from 1868 to 1872 made very clear that Section 3 was meant to be very broadly applicable, and enforceable in a wide variety of ways.

Next Tuesday, we'll take the story from 1872 up to the present, including the only two enforcements of Section 3 of the Fourteenth Amendment in the past 150 years. (Z)

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---The Votemaster and Zenger
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Aug31 There Are Three Republican Parties
Aug31 Giuliani Loses the Lawsuit from Ruby Freeman and Shaye Moss
Aug31 Letitia James Claims that Trump Inflated His Net Worth by $2.2 Billion
Aug31 Frozen Turtle--Again
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Aug30 Trump Has a New Hampshire Problem, Too--And No Guy from Vermont to Solve It
Aug30 The Fourteenth Amendment, Part I: The Passage of the Amendment
Aug30 Democracy Is Not Doing Well in Tennessee
Aug29 Trump Legal News: The Washington Post March
Aug29 The GOP Debate, Part I: Dead Kitten Bounce for Ramaswamy?
Aug29 The GOP Debate, Part II: Of Course DeSantis Was Full of Sh**
Aug29 The GOP Debate, Part III: Reader Assessments
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Aug28 Biden Has a New Hampshire Problem--And a Guy from Vermont Could Solve It
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