[ The Pulitzer-winning historian of the civil war and
Reconstruction considers one way in which some hope the former
president can be stopped from retaking office]
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SEARCHING FOR THE PERFECT REPUBLIC: ERIC FONER ON THE 14TH AMENDMENT
– AND IF IT MIGHT STOP TRUMP  
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Interview by Ted Widmer
November 15, 2023
The Guardian
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_ The Pulitzer-winning historian of the civil war and Reconstruction
considers one way in which some hope the former president can be
stopped from retaking office _

Sunrise illuminates the US Capitol in Washington on 14 January 2021
– eight days after Trump supporters attacked., Photograph: Samuel
Corum/EPA

 

The 14th amendment was passed in 1868, to settle important matters
arising from the civil war, including how we define equality before
the law. Ever since, it has served as the foundation for one landmark
supreme court decision after another, from Brown v Board of Education
(1954), which banned segregation in public schools, to Obergefell v
Hodges (2015), which legalized gay marriage.

In recent times, a little-known feature has come into sharp focus. Six
days after the January 6 Capitol attack, Eric Foner, a historian of
the US civil war and the Reconstruction era, argued
[[link removed]] that
section 3 of the amendment forbids an “officer of the United
States” from holding office if he or she has sworn an oath to the
constitution, then participated in an “insurrection or rebellion”.

That could mean Donald Trump
[[link removed]] is ineligible to
hold public office.

The matter is now before the states. In September, New Hampshire’s
secretary of state refused to intervene. On 8 November, Minnesota’s
supreme court rejected an attempt to prevent Trump from running. On 14
November, a judge in Michigan dismissed a lawsuit that tried to
exclude Trump. But other states will be reckoning with the issue in
the weeks ahead, including Colorado.

To better understand the origin of the 14th amendment, and its ongoing
relevance to 2024, Foner sat down with Ted Widmer, another civil war
historian. The interview has been edited for length and clarity.

TED WIDMER: THE 14TH AMENDMENT HAS BEEN IN THE NEWS A LOT LATELY. CAN
YOU REMIND US WHY THIS PARTICULAR AMENDMENT HOLDS SO MUCH SWAY?

ERIC FONER: The 14th amendment is the most important amendment added
to the constitution since the Bill of Rights in 1791. It’s an
attempt by the victorious north, the Republican party in the aftermath
of the civil war, to put its understanding of that war into the
constitution.

It is also the longest amendment. They tried to deal with everything
that was on the political agenda in 1865, 1866. It deals with many
specific issues, such as ensuring that southern enslavers are not
going to get monetary compensation. Or that – and this is in the
news today – that if you take an oath of allegiance to the
constitution, and then you engage in insurrection, you are barred from
holding political office in the United States.

On the other hand, the 14th amendment also contains the first section,
which is a series of principles arising from the end of slavery,
beginning with birthright citizenship, that all persons born in the US
are automatically citizens of the US. Although there’s an exclusion
of Native Americans, who are still at that point considered citizens
of their tribal nation, not the US. Also in the first section,
“equal protection of the law”, that no state can deny to any
person, not just citizens, the equal protections of the law – this
was a fundamental change in American politics and society.

CAN YOU ELABORATE?

No state gave Black people full equality before the law before the
Reconstruction era and the 14th amendment. What equal protection
actually means in practice is certainly open to debate. And it has
been debated ever since 1868, when the amendment was ratified. There
are key supreme court decisions over the last century – whether
it’s outlawing racial segregation, establishing the right to
terminate a pregnancy, “one man, one vote”, and many others –
[that] have rested on the 14th amendment. My basic point is this: to
borrow a modern phrase, I think the 14th amendment should be seen as a
form of “regime change”. It’s an attempt to change the regime in
the United States. It’s not a minor little change in the political
system. It’s to change a pro-slavery regime, which is what we had
before the civil war, to one based on equality, regardless of race. A
fundamental change.

The civil war destroyed slavery and created a new political system,
which views all persons in the US as entitled to some modicum of
equality

This is what the civil war has accomplished. It has destroyed slavery,
and it has created a new political system, which views all persons in
the US as entitled to some modicum of equality.

WHAT IS THE IMMEDIATE CONTEXT OF THE PASSAGE OF THE 14TH AMENDMENT?
WHAT WERE THEY TRYING TO ADDRESS?

Well, the immediate context was what we call the Reconstruction era,
the period immediately after the civil war, when the country was
trying to come to terms with the consequences of the war, the most
important of which were the destruction of slavery and the unity of
the nation. As I mentioned, there were specific issues, which really
have very little bearing on our political life today, although they
keep popping up. For example, part of the 14th amendment says the
government has to pay its debt: if it borrows money, selling bonds, it
has to pay them off when they become due. This lay there pretty much
unremarked for a long time. But lately with the debates over the debt
ceiling, it’s back in the news again.

But the fundamental issue was: what was going to be the status of the
4 million former slaves, who were now free citizens? Were they going
to enjoy equality, were they going to have the right to vote, which
was critical in a democracy? Were they going to be able to hold public
office? What about economic equality, would they enjoy anything like
that? The 14th amendment tries to deal with that in various ways.
There are five sections, all of them relate back and forth to each
other.

EVEN THOUGH ABRAHAM LINCOLN WAS NO LONGER ALIVE, DOES IT REFLECT HIS
THINKING?

A constitutional amendment is the only legislative measure in which
the president has no role whatsoever. The president cannot veto a
constitutional amendment the way he can veto a piece of normal
legislation. In fact, when the 13th amendment was passed, irrevocably
abolishing slavery in the US, Lincoln worked to get it ratified, and
he signed a copy of it as a symbol of his support. He got a
handwritten copy of the 13th amendment, approved by Congress, and he
signed it, whereupon Congress said, “You can’t sign this,
President Lincoln, because the president has no role in the passage of
the amendment. You’re trampling on our powers.”

DIDN’T KNOW THAT.

Yeah, they got annoyed when he signed it. Signing it didn’t make it
legal or illegal. It becomes part of the constitution when it’s
ratified by Congress and by a sufficient number of states.

But the point is, Lincoln was a mainstream Republican. He was a great
man, a brilliant writer and speaker, but he was also a party man. And
the 14th amendment was approved by almost every Republican in
Congress. There is no question Lincoln would have approved it. Also,
Lincoln did not get into big fights with Congress the way some
presidents have. So I think the basic principle, equality before the
law, Lincoln had come to approve that during the civil war. He
didn’t really hold that view before the civil war. But there’s no
question in my mind that if Lincoln had not been assassinated, and was
still president, he would have happily urged Congress to support the
14th amendment.

IS BIRTHRIGHT CITIZENSHIP A UNIQUELY AMERICAN CONCEPT?

Well, that is another complex and important issue and something that
is back on the political agenda today. Is it uniquely American? No,
it’s not. There are other countries that also automatically make you
a citizen.

But the point of birthright citizenship is it’s very important in
the constitution to have this. It’s basically a statement that
anybody can be a citizen. We are not a country based on a single
religion, we are not a country based on a single political outlook, we
are not a country with an official sort of set of doctrines that you
have to adhere to. We’re not a country with an ethnic identity. A
person of German ancestry born in Russia could automatically be a
citizen of Germany, just by that ethnic identity. But the child of a
guest worker, born in Germany, is not automatically a citizen of
Germany.

So birthright citizenship is an important consequence of the civil
war. And of course, it had been deeply debated before then. Just
before the civil war, in 1857, the supreme court in the Dred Scott
decision ruled that no Black person could be a citizen. There were
half a million free Black people. They were born in the US, most of
them, and they could never be a citizen.

The 14th amendment clears up an ambiguity of the constitution and
establishes a basic principle, equality, as fundamental to American
life

The first section of the 14th amendment abrogates the Dred Scott
decision, and creates a national standard for who is a citizen. The
original constitution mentioned citizens, but it didn’t say who
exactly they are, or what are the qualifications for being a citizen.
So this clears up an ambiguity of the constitution and establishes a
basic principle, equality, as fundamental to American life.

DOES THAT MEAN BETWEEN DRED SCOTT IN 1857 AND THE 14TH AMENDMENT IN
1868 THAT AFRICAN AMERICANS, EVEN IF THEY HAD LIBERATED THEMSELVES AND
FOUGHT IN THE UNION ARMY, WERE NOT CITIZENS?

Well, the Republican party and Lincoln had repudiated the Dred Scott
decision on paper. Even as early as 1862, the attorney general, Edward
Bates, issued a ruling saying Dred Scott was wrong.

But what you said is true, it’s the 14th amendment that creates
Black citizenship as a constitutional principle. The Civil Rights Act
of 1866 established it in national law. By then 200,000 Black men had
fought in the civil war. They were almost universally considered to be
citizens. If you would fight and die for the nation, they’re not
going to say after the war, “You can’t be a citizen.”

Dred Scott destroyed the reputation of the supreme court in the north.
During the secession crisis, nobody said, “Let’s let the supreme
court decide this.”

UNLIKE THE DECLARATION OF INDEPENDENCE, OR THE CONSTITUTION, WHOSE
SIGNERS ARE WELL KNOWN, THE 14TH AMENDMENT IS MORE ANONYMOUS. WHO
WERE THE PRINCIPAL AUTHORS?

It was written by the joint committee on Reconstruction, a 15-member
body set up by Congress to figure out what laws and constitutional
amendments were necessary to enforce the verdict of the civil war.

My book The Second Founding begins by saying exactly what your
question says. People have heard of James Madison, “father of the
constitution”. They have heard of Alexander Hamilton, for reasons we
know nowadays. These are people who were critical in writing the
constitution.

But who remembers John Bingham, the congressman from Ohio, who was
more responsible than anyone else for the first section of the 14th
amendment, about the federal government having the power to prevent
states from denying Americans equality? We don’t remember Thaddeus
Stevens, the great radical Republican from Pennsylvania who was the
floor leader in the House, who did more than anyone else to get the
14th amendment ratified. We don’t remember James Howard, from
Michigan, who got it through the Senate. In other words, the 14th
amendment is not seen as fundamental to our constitutional system,
whereas, of course, the original constitution is.

[Thaddeus Stevens, seen in 1863. Image courtesy of the National
Archives.]

Thaddeus Stevens, seen in 1863. Image courtesy of the National
Archives. Photograph: Smith Collection/Gado/Getty Images

So what I say in my book is, we’ve got to think of these people as
like the founding fathers. This was a refounding of the nation, and
the people who were critical in that deserve to be remembered.

WERE THERE PARTS THAT COULD HAVE BEEN WRITTEN MORE CLEARLY?

The writing was in two modes. One was very clear. If you loaned money
to the Confederacy, it’s never going to be repaid. That’s a highly
specific point. But the language of the first section of the 14th
amendment is much more ambiguous or general. Equal protection of the
law. All citizens are entitled to due process of law. People cannot be
denied life, liberty and property without due process of law.

The language might have been clearer. But John Bingham wanted it to be
ambiguous. What issues relating to the political equality of race
relations would get on to the national agenda in the next 10, 50 or
100 years? He wanted to have a general set of principles which could
be applied when necessary, and in fact, the fifth section, the final
section of the 14th amendment, specifically states, “Congress shall
have the power to enforce” this amendment. What does it mean to
enforce the equal protection of the law? Well, that’s for the courts
and the Congress and others to decide. So the language could have been
clearer, but I’m not sure it would have been better if it were
clearer. They wanted it to be ambiguous to leave room for future
action.

In other words, they thought this was not the end of Reconstruction.
This was just one step toward creating what Thaddeus Stevens called
“the perfect republic”, which they wanted to build on the ashes of
slavery.

LOVE THAT PHRASE.

That’s Stevens’ speech, before the House. You know, the 14th
amendment was a compromise. There were radical Republicans,
conservative Republicans, moderate Republicans. And they hammered out
a series of compromises. But Stevens, who was a real radical, also
knew when you had to compromise. In his final speech before Congress,
before the 14th amendment was ratified, he said, “Yeah, I had always
hoped that when we could get out from under the power of slavery, we
could create this perfect republic that the founders tried to, but
failed to, because they allowed slavery.”

But that dream has vanished, he said. The perfect republic is never
really achieved, in any human endeavor. So, yeah, that’s what they
were trying to do. Erase the mistakes of the founders, when it came to
slavery, and remake the republic.

COULD THE 14TH AMENDMENT HAVE PASSED IF CONGRESS HAD NOT TAKEN A
STRONG STAND AGAINST SEATING SOUTHERNERS?

The passage of the 14th amendment is interesting. Immediately after
the civil war, Congress said, “We’re not letting the southern
states back in quite yet.” They cannot vote on whether to ratify the
three Reconstruction amendments. So the vote in Congress was only
among northerners. If the south had had all the congressmen it
normally did, the 14th amendment would never have been ratified. You
need a two-thirds vote in Congress, and three-quarters of the states.
It’s a very high bar to amend the constitution.

But another aspect of this is, could it have passed the states? When
the 14th amendment is first passed by Congress, President Andrew
Johnson’s plan of Reconstruction is still in effect. Johnson had set
up all-white racist governments in the south. They were still in
power. And they all voted not to ratify the 14th amendment, every one
of the southern states except Tennessee. They did not want Congress
establishing this principle of equality for Black Americans.

For the first time in American history, Black and white men were
sitting in legislatures, voting on laws, holding public office. This
was a radical change in American democracy

Congress got so infuriated that in 1867, they abolished those
governments. They said, “We are going to give Black men the right to
vote.” They hadn’t done that at the beginning of Reconstruction.
They’re going to set up new state governments in the south, and
those governments are going to ratify the 14th amendment. They ordered
them to ratify it. And the way they guaranteed it was to allow Black
men to vote. New governments were set up, biracial governments. For
the first time in American history, Black and white men were sitting
in legislatures, voting on laws, holding public office. This was a
radical change in American democracy. And with those new governments,
in which Black people for the first time had a voice, the southern
states ratified the 14th amendment. So how the 14th amendment was
ratified is irregular compared to most other amendments.

WHY WAS SECTION 3 ADDED?

Section 3 is one part of the amendment that has been almost completely
ignored until the last couple of years. It doesn’t apply to all
southern whites, or even most of them, but to anyone who held an
office before the civil war, who took an oath of allegiance to the
constitution. That would mean people who served in the military or
held some kind of public office. Even a postmaster has to take an oath
to the constitution. The purpose was to eliminate the old ruling class
of the south from public office. It was to create a space where new
governments could come into being which would approve of the
principles of the 14th amendment. They did not deny the right to vote
to ex-Confederate leaders. But they did deny the right to hold office.

It was almost never enforced. There are only a few examples of this
amendment being enforced during Reconstruction. A couple of local
officials were disqualified from office because they had held an
office before the civil war then served in the Confederate army. In
other words, they gave aid to insurrection after having pledged
allegiance to the constitution. I think there were a couple in
Tennessee. But basically, Congress gave an amnesty after a few years
to just about everybody that this covered.

And in the first world war, a socialist member of Congress, Victor
Berger, was convicted under the Espionage Act. If you criticized the
American participation, you could be put in jail. Congress expelled
him under the third clause of the 14th amendment. In other words, he
pledged allegiance to the constitution and was now convicted of what
they called espionage. It wasn’t actually spying, it was really just
opposing the war. But then the supreme court overturned the conviction
and Congress let him back in.

In the last year or two, this has become a major issue in relation to
Donald Trump. Depending on how you analyze it, Trump took an oath to
support the constitution – obviously, when he was sworn in as
president – but gave aid to insurrection. If you consider the events
of 6 January 2021 an insurrection. He tried to overturn a governmental
process, tried to prevent the legitimate election of a president.

There have been lawsuits in a number of states to keep Trump off the
ballot in 2024. Thus far, none has succeeded. Some are pending. A
couple of cases have come up about lesser officials who took part in
the events of January 6. And in fact, a guy in New Mexico, a county
commissioner, was ordered out of office by a court on the grounds that
he was barred by the third section of the 14th amendment.

A congressman in North Carolina, Madison Cawthorn, faced claims that
he could not serve. It became moot because he lost his primary. But
there was a court that did say that it was a legitimate question
whether he could serve if elected, because he had been there taking
part in the events of January 6.

So it’s on the agenda now. But there is no jurisprudence really
related to section 3. Nobody knows what the supreme court would say.
Some people say you would need a judicial ruling. How do you know that
a guy participated? It’s like you’re convicting him without a
trial. But on the other hand, others say, no, this is just a
qualification for office. This is not a criminal trial.

Being barred from office is not a criminal punishment. It’s one of
the qualifications for office. For example, let’s say somebody was
elected president who was under the age of 35. The constitution says
you have to be 35. Let’s say Alexandria Ocasio-Cortez was elected
president. Not likely, but she’s a well-known figure in politics.
Well, she couldn’t serve because she’s under 35. And a court or
somebody would just have to say, “I’m sorry, you don’t meet the
qualifications here.” I am not a law professor. Neither I nor anyone
else knows what the courts would decide. But in actuality the 14th
amendment says it’s Congress that enforces the 14th amendment, not
the supreme court. They didn’t want the court involved because of
Dred Scott.

The final section of the amendment says, “Congress shall have the
power to enforce this amendment by appropriate legislation.” Would
Congress have to declare somebody having participated in insurrection?
I don’t know. But this was brought up including by me about two
years ago, in the op-ed, in the Washington Post, after the
insurrection of January 6.

There was an effort to impeach President Trump, but it didn’t
succeed. But I pointed out you don’t need impeachment, which
requires a two-thirds vote to convict in the Senate. If you really
want to keep Trump out of office because of his actions on January 6,
you could do it through the third section of the 14th amendment.

Certainly, regarding a president, there is no precedent. But the third
section has never been repealed. So there it is.

DID THE 1872 AMNESTY ACT SUPERSEDE SECTION 3?

That’s been brought up. The 14th amendment also says Congress can
eliminate this punishment or disability by a two-thirds vote. In 1872,
in the run-up to the presidential election of that year, Congress did
pass a general Amnesty Act, which saved almost all prominent
Confederates.

Now, some people say that eliminated section 3, and therefore it
can’t be enforced. But that’s not the case. You can let people off
from one punishment, but it didn’t say this section is no longer
applicable. It said that a whole lot of people would no longer be
punished as part of an effort to bring about sectional reconciliation.
The Amnesty Act doesn’t necessarily repeal a previous measure unless
it says the previous measure is automatically repealed.

HOW HAS SECTION 3 BEEN INTERPRETED SINCE RECONSTRUCTION?

It has _barely_ been interpreted. There have been only a handful of
cases. There’s almost no jurisprudence related to it, which is one
of the reasons Congress has been reluctant to enforce it. Joe Biden
has said he doesn’t really want to get into this. It would guarantee
a prolonged legal battle if you tried to enforce section 3 against
Trump. Enforcing it against the county commissioner in New Mexico
probably didn’t raise a lot of animosity. But it has happened. So
there is a bit of jurisprudence, but not enough that a court could
easily say, “Here’s the precedent, this is what we’ve done in
the past.”

IS THE PRESIDENT “AN OFFICER OF THE UNITED STATES”?

Again, because there’s no jurisprudence, it hasn’t been decided. A
couple of prominent conservative law professors wrote an article
saying section 3 is on the books and can be enforced. Then they
changed their mind. And they said the president is not an officer of
the United States. So it does apply to all sorts of other offices. But
not the president.

This has never been exactly determined, but it certainly seems the
normal understanding of the term “officer” is someone holding
office. The president certainly holds office. When the constitution
was ratified, there was no president. The previous constitution, the
Articles of Confederation, didn’t have a president. There was no
executive officer. It was only the Congress. So it’s unclear. They
added the president as someone who could execute the laws. But I
don’t see how you can eliminate the president or exclude the
president from this language. If you take the whole of section 3, I
think it’s pretty clear that they are trying to keep out of office
anybody who committed the acts that section 3 describes. But again,
it’s complicated.

DID THE EVENTS OF JANUARY 6 CONSTITUTE “AN INSURRECTION OR REBELLION
AGAINST THE CONSTITUTION”?

They certainly tried to a halt a constitutional procedure, the
counting of the electoral votes. One of the more bizarre parts of our
constitution, actually, but nonetheless, it’s there.

[Protesters wave American and Confederate flags during clashes with
Capitol police on 6 January 2021.]

Protesters wave American and Confederate flags during clashes with
Capitol police on 6 January 2021. Photograph: Shannon
Stapleton/Reuters

What is your definition of insurrection or rebellion? You know, this
gets into a question we actually haven’t talked about, which is very
important in relation to the 14th amendment, which is the notion that
you can clearly ascertain the original meaning, or the original
intention of a law or a constitutional provision or something like
that, and that the constitution should be interpreted according to the
original meaning of the people who wrote the provision, or the
original intention.

This notion that you can ascertain, clearly, the original intention is
absolutely absurd. No important document in history has one intention,
or one meaning. Particularly the 14th amendment, it was written with
compromises, with 8-7 votes in the joint committee. It was ratified by
hundreds of members of state legislatures. Who can tell us exactly
what the intention is? It is a legitimate historical question to ask,
what were they trying to accomplish? But that’s a little different
than saying what was their intention, at least in the legal realm.

Yes, historians are always trying to figure out, why did they write
and ratify the 14th amendment? In a way, that’s an intention
question.

But to answer that question, unfortunately, justices have a way of
going purely to debates in Congress. They do not look at the general
historical context. The meaning of the 14th amendment was debated and
argued and fought out at all levels of society.

One of my favorite quotations from this period comes from Elizabeth
Cady Stanton, the great advocate of women’s rights. She said, during
Reconstruction, I’m paraphrasing, “The basic principles of our
government were debated at every level of society, in Congress, in the
pulpits, in schools, at every fireside.” I love that. In other
words, even in their homes, people are debating the issues around the
14th amendment. There is no one single intent that you can locate in
that gigantic discussion about constitutional issues, which
accompanied the ratification of the 14th amendment. So I think, as
most historians would say, it’s a pointless test to try to identify
one single intention.

WOULDN’T THE LEGAL CHALLENGES TAKE LONGER THAN THE ELECTION ITSELF?

Yes, the legal challenges would take a long time, and it would be
weird if Trump is elected next fall, then a year into his term of
office he’s evicted because he doesn’t meet the qualifications. We
saw how Trump reacted to actually losing an election. But now, if he
won and then was kicked out of office, that would certainly be a red
flag in front of a bull.

*
_Eric Foner, DeWitt Clinton professor emeritus of history at Columbia
University, is a Pulitzer __prize-winning author whose most recent
book is The Second Founding
[[link removed]]:
How the Civil War and Reconstruction Remade the Constitution_

*
_Ted Widmer is a distinguished lecturer at the Macaulay Honors
College, City University of New York, and a former special assistant
to President Bill Clinton. His most recent book is Lincoln on the
Verge
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Thirteen Days to Washington_

 

* 14th amendment
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* Stop Trump
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* Eric Foner
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