Republicans are still losing their minds about the ruling by the Colorado Supreme Court and the 34-page ruling from Maine’s secretary of state that former president Donald Trump’s name cannot appear on those states’ primary ballots because he engaged in insurrection against the United States.
One of the arguments being made against this by Republicans is that the section of the 14th Amendment that speaks about public servants who have broken their oath of office should apply only to the era in which it was adopted.
Even if you aren’t a so-called originalist or textualist (or, let’s just make a fun new term up: wordualist) in your reading of the Constitution, which all the conservative judges on the Supreme Court more or less are, there’s nothing to the argument that this applies only to the traitorous men, former officers of the United States, who served the Confederacy. It may have been ratified, in the summer of 1868, to account for such actions by public servants, but it was adopted to protect the country and the individual states from such behavior in the future.
Section III of the 14th Amendment says precisely nada about the Confederacy:
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.
No matter how you read it or what your political affiliations may be (or what you say to pollsters), you know that Trump at the very least gave aid and comfort to the mob he had called to Washington, DC. You also know he refused for hours to call them off as they broke through police lines, engaged in vicious hand-to-hand combat with officers of the law, and rampaged in the Capitol.
When Trump finally called off the mob (only when he saw his insurrection had failed), he spoke of his love for them and how “special” they were (even though he reportedly was embarrassed by how low-class and “trashy” they looked as he otherwise thoroughly enjoyed watching the mayhem on television). In sending them home, he made sure to repeat his Big Lie about the election results which, to Trump and his mob, justified the whole thing.
All reasonable people in what is left of our dis-United States and abroad know that Trump, and others at his rally, incited that mob. It was his last-ditch attempt at overturning the 2020 election after each of his other schemes had failed — bringing no evidence of fraud in the scores of lost lawsuits; leaning like a mob boss on state officials of swing states, such as Michigan and Georgia (where he demanded those 11,780 votes be “found”); goading the vice president to not be “a pussy” and then putting his life in real jeopardy to stop the count; creating a bunch of fake electors with phony documents from battleground states.
He reportedly was well aware that many he had called to Washington, DC (“Be there, will be wild!”) were armed with guns and makeshift weapons and insisted that metal detectors be turned off so they could gather close to hear what he had to say about a “stolen” election and going to the Capitol to “fight like hell.”
What did he say about switching off the detectors? “They’re not here to hurt me.”
He’s still praising members of his ragtag insurrectionist army, many of whom are rightly in jail. He calls domestic terrorists “patriots” and says he will pardon them if he becomes president again.
Aid and comfort.
As others have noted, Section 3 of the 14th Amendment is not a penalty but a disqualification. If you have proved yourself to be a danger to the continuation of the country or a state in our union, you can no longer appear on any ballot for any governmental position.
So, all of this is as clear as, say, the facts that — oh, I don’t know; let’s pick some random ones. Like how Trump lost the popular vote to Hillary Clinton by nearly 3 million votes in 2016; how he lost badly to Joe Biden, by more than 7 million votes (and the Electoral College 306-232) in 2020 and didn’t actually “win most of America”; how the attendance at his “American Carnage” inauguration was slight to most observers and reported accurately; and that big boys and girls stay for the inauguration of their successor and don’t fly away, with top-secret documents, in a huff.
But just for the argument’s sake, given that some on the Supreme Court may want to consider it as an “out” for Trump, let’s compare what the ex-president and his many Lackeys of Bad Faith have done, and continue to do in terms of injuring the federal government and many state governments, with the actions taken by the leaders of the Confederacy.
Trumpists may not have officially seceded from the nation to set up their own government with a new capital, but they’ve worked a relentless inside job on our government and sense of national unity, destroying norms of conduct, speaking of political opponents as enemies (and worse, most recently, vermin), calling the free press “the enemy of the people” and insisting on what they like to call “alternative facts” to confuse voters. They and their media cynically push a narrative of victimhood to gin up MAGA.
These people long ago left the rest of the nation. Trump never tried to be president of all the people, just for his “fans.” I suppose historians can point to T-shirts saying “I’d Rather Be A Russian Than A Democrat” or unmasked faces during a deadly pandemic or, say, those fake elector documents as the de facto proclamation of secession.
The leaders of the Confederacy wrote God into their new constitution and proclaimed a new “Christian nation.” With the creeping help of dominionist evangelical leaders pushing “spiritual warfare,” Trump raised his cult army and prodded them to act violently. On Jan. 6, 2021, he sent that already riled-up mob to the Capitol with these dire words:
“We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
It was like he was sending a group out to do a task on “The Apprentice,” except this exercise in teamwork served for him solely, and he knew his minions were armed and ready to explode. And the task was a coup against the government of the United States of America.
Trump regularly sends forth similar lines of incitement, usually typed in all caps on his failed social media platform cynically named for the truth. (As a holly-jolly Christmas message — Christmas being such a crucial holiday to Republicans that they have insisted there’s been some kind of war against it for decades — he wished that our current president and others should “ROT IN HELL.”)
Compared with the ongoing slow-motion coup of Trump and his many enablers, what the leaders of the Confederacy did looks rather forthright and almost gentlemanly (if such a term can be used to describe men whose mansions and foppish lifestyles were utterly dependent on the brutality of owning, working, whipping and trading human beings).
As historian Jill Lepore notes in an essay in The New Yorker, Jefferson Davis gave a farewell speech to his fellow senators in 1861 before he became president of the Confederacy. They were traitors to their country, but they were clear about their intentions, although they also cynically used religious belief and relied on other alternative facts to propagandize their cause.
The Civil War began with the attack on Fort Sumter on April 12, 1861, six days after South Carolina seceded. Trump’s War on America — the concept of the United States as a melting pot of immigrants — can be traced to his racist commentary on the 9/11 attacks and his later racist questioning of the legitimacy of a sitting president. As a politician, he moved on to a systematic degrading of political norms. He then quickly escalated his degraded rhetoric to various calls for violence — from encouraging the beating of protestors at his rallies to calling for attacks on state capitals, the latter that resulted in the attempted takeover of the Michigan Capitol building and the plot to kidnap and execute the governor.
To take the argument a bit further, what was the Confederacy but a distinctly anti-democratic enterprise, one that attempted to enshrine a white patriarchy forever? Sounds completely familiar, except that the current leader of those trying to destroy the country and enshrine minority rule forever has different models of dictators to learn from — such as Adolf Hitler, Vladimir Putin, and Victor Orban. One should not forget that the Nazis sent lawyers to this country to learn from our white supremacist Jim Crow laws. You would not be unjustified to imagine the Confederate battle flag morphing into the swastika.
Trump is a hero to many in the South and many Western states because, cossetted New York rich-boy though he may be, Republican voters see him as a rough-and-ready fellow rebel. Of course, he decried the removal of the many statues of traitors that were erected in the old South by The United Daughters of the Confederacy in the first decades of the 20th century as a public relations sop to the “Lost Cause” myth. Returning to the presidency and finishing the hit job he started on the foundations of democracy is his cause. He has proved himself willing to do or say anything to not lose in this effort.
The motto of the Confederacy was Deo Vindice, Latin for “God will protect, defend or avenge.” Sound familiar?
So is it democratic to remove Trump’s name from the ballot? As others have noted, yes, it is. Courts make decisions all the time, based on the Constitution, that voters have no say in. And the call to “leave it to the voters” means nothing to Trump, given that he disputed the 2016 election results, before and after, and continues his Big Lie about the 2020 election.
As Sabrina Haake, a federal trial attorney with deep expertise in 1st and 14th Amendment cases, writes in Salon:
Orchestration of violence at the U.S. capital on Jan. 6 was, at its core, Trump’s effort to disenfranchise the more than 81 million Americans who voted for Joe Biden, just as secessionists attempted to disenfranchise Lincoln supporters.
The truth is, Jan. 6 was not even the culmination of Trump’s insurrection against our government. He’s still at it, riling up his crowds with the Big Lie and engaging in agitprop against American leaders, critical governmental institutions, individual judges, poll workers, journalists — anyone who dares speak out against him. (His latest proof of the 2020 election being rigged is a 32-page unsigned document that makes unfounded claims that “reference” a bunch of other unfounded claims, sort of like a Russian nesting doll.) Speaking of Russia, as I’ve said before, if he isn’t working directly for Putin, he might as well be. And there is a long list of Trump’s fellow insurrectionists who also should never be allowed to run for any public office again.
So, to the Supreme Court, let me point this out: As much as Trump likes to performatively grope the American flag, he might as well have been wrapped in the Confederate flag on Jan. 6, 2021, and singing Dixie as his violent mob departed from his scene of a thousand crimes and many grievous injuries, some fatal. The 14th Amendment disqualification applies here no matter how you look at it.
No American should ever forget that for the first time in our history, a Confederate flag was carried through the U.S. Capitol by a member of Trump’s mob. (And, yes, the war we still seem to be fighting was about slavery, not states’ rights or “freedoms,” whatever that’s supposed to mean in the context of slavery.) And so, as Peniel E. Joseph writes in The Atlantic, the work of Reconstruction must go on.
Even if the FedSoc-sponsored conservatives on the Supreme Court were to twist themselves in knots to somehow read the disqualification rule in historical context, they’d have to come to the same conclusion (whether or not they rule that way): Trump stands, smirkingly, not only with Russia’s Putin but with the Redemptionist Lost Cause Confederates.
