Disqualifying Trump won’t help the crisis of American democracy

Democracy in America is facing challenges perhaps not seen since the Civil War. The question is what to do.

For some, the greatest threat to American democracy is Donald Trump. They argue that his actions encouraging the storming of the Capitol on January 6, 2021, were a form of insurrection. Accordingly, he is an insurrectionist and should be barred from office under the Insurrection Clause located in Section Three of the 14th Amendment. This is the conclusion a forthcoming article cowritten by conservative legal scholars William Baude and Michael Stokes Paulsen.

The 14th Amendment was one of three post–Civil War amendments adopted as part of Reconstruction. The text states, in part, that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office … who, having previously taken an oath, as a member of Congress, or as an officer of the United States … shall have engaged in insurrection or rebellion against the same.”

What does this section mean and how does it apply to Trump, if at all?

Central to Baude and Paulsen’s argument is a historical analysis of the amendment, with an argument concluding that Section Three was written to address specific circumstances growing out of the Civil War and the need to prevent former members of the Confederacy from serving in office and impeding Reconstruction. Yet they argue that Section Three can be read more broadly, as is true with other parts of the 14th Amendment. It can apply to future events and bar Trump from future office because of what he did on or around January 6, 2021.

I am not a professional historian, but I decided to consult the work of some of the best American legal historians regarding Section Three’s meaning.

Hall and Karsten’s “The Magic Mirror: Law in American History” notes that the intent of the 14th Amendment’s framers is “subject to speculation” and has left “interpreters divided.” Their book largely ignores Section Three. Urofsky and Finkelman’s “A March of Liberty” describes Section Three as a “severe sanction” to those who held office before joining the Confederacy. Kelly, Harbison and Belz’s “The American Constitution” states that the 14th Amendment as originally proposed “unconditionally disenfranchised all participants in the late rebellion until March 4, 1870.” But many moderate Republicans objected to the provision as too severe and too temporary and therefore substituted the present language to prevent all those who formerly held office and engaged in rebellion from holding office unless permitted to do so by Congress. Aynes’s analysis of the history of the 14th Amendment and Section Three declares that its purpose was to end the Civil War and guarantee peace for the future.

Foner’s “The Second Founding” dismisses Section Three in one sentence as “long since faded into history.” Foner’s masterpiece, “Reconstruction: America’s Unfinished Revolution,” acknowledges the 14th Amendment can only be understood within the context of the 1866 elections that year, and the fear that President Andrew Johnson would undo efforts to enfranchise former freed slaves. Finally, Malone and Rauch’s “Empire for Liberty” concludes that Section Three effectively ruled out all of the “South’s leaders” and was detested by Southerners.

Historical evidence is at best mixed when it comes to the meaning and interpretation of Section Three. Most historians see it as time bound or limited to the circumstances immediately following the Civil War.

But assume one can apply Section Three to today. One can also concede that Trump encouraged an insurrection on January 6. Yet it may nonetheless be bad policy to use Section Three to bar him from the office.

Trump deserves to be punished for what he allegedly did, if he is convicted. This is why we have courts, due process and the rule of law. Let the criminal justice process do its job. One should feel uncomfortable letting election officials make determinations of ballot access. While such decisions are subject to judicial review, there is already a problem in the U.S. with minor parties and candidates seeking ballot access and having to spend significant amounts of money to fight restrictive laws. Granted, their case is different from Trump’s, but we should not empower more discretion in election officials to deny access to the ballot.

In 2000, the Supreme Court was criticized for resolving the election dispute in Florida. Many said the court picked the president. Here, if the Insurrection Clause is used to keep Trump off the ballot, courts again may determine who the next president is. This is especially so given the likelihood that the Supreme Court will eventually review any lower court decision.

Using Section Three to keep Trump off the ballot only fuels his claim of a stolen election. Even if no state actually proceeds, the damage may already be done, and the efforts may motivate his base to come out and support him in larger numbers than in 2020.

There is also a problem of precedent. Deny Trump access now and Section Three will turn into a partisan tool much in the same way the impeachment has eroded into gotcha politics. Finally, keeping an opposition candidate off the ballot reeks of tactics that governments do in less than democratic states.

American democracy is in trouble and Trump may be trouble for democracy. The institutions of our democracy need to be fixed. Barring Trump from office will not accomplish that.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him @ProfDSchultz.