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The other side of Punta Cana: A crackdown on Haitians

Top White House aide to meet Netanyahu, who is under political pressure

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How Jim Jordan tried to connect the dots on Biden’s $8 million book deal

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Jim Watson

It is annoying when your political judgments come into conflict with what you decide is right. That’s what has happened to me on the question of whether <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> should be barred from <a href="https://www.washingtonpost.com/politics/interactive/presidential-candidates-2024/" target="_blank" class="contextual_link">running for president</a> under Section 3 of the 14th Amendment.

The section disqualifies from office those who took an oath to support the Constitution and then engaged “in insurrection or rebellion against the same” or gave “aid or comfort to the enemies thereof.”

When a narrowly divided Colorado Supreme Court <a href="https://www.washingtonpost.com/politics/2023/12/19/trump-off-colorado-ballot/" target=_blank>threw Trump off the state’s primary ballot</a> in December on the basis of Section 3’s plain language, my initial reaction was, well, political — and skeptical.

Though I agreed that Trump had, indeed, engaged in insurrection, I thought it would be best for the country to have him go down to defeat again in a free and fair election. Keeping him on the ballot so voters could decide was the path to long-term institutional stability and might finally force a reckoning in the Republican Party.

Many people I respect continue to hold versions of this view. But the more I read and listened, the clearer it became that Section 3 was directed against precisely the conduct Trump engaged in. Its purpose is to protect the republic from those who would shred the Constitution and destroy our system of self-government. What Trump did in advance of the attack on the Capitol and on <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, legally disqualifies him from the presidency.

The record is clear that the legislators who wrote and enacted the amendment in the wake of the Civil War were not just thinking of the Confederacy’s leaders but also of “the leaders of any rebellion hereafter to come.”

Those are the words of John B. Henderson, a Republican senator from Missouri, when he cast his vote for the amendment in 1866. They are recorded in a powerful amicus brief filed with the Supreme Court by a distinguished group of historians of the era: Jill Lepore, David Blight, Drew Gilpin Faust and John Fabian Witt.

The amendment’s authors, they argue, “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism.” It was intended “to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States.”

They back up these assertions with a compelling 34-page account of what the framers of the amendment intended and why they wrote it as they did. The essay should encourage conservatives on the Supreme Court, which hears the case on Thursday, to ponder words they love: “originalism” and “textualism.”

Other historically minded briefs made it harder for me to stick with my earlier, prudent view. A <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298895/20240126151819211_23-719%20Brief.pdf" target=_blank>group of 25 historians</a>, including James McPherson, the Civil War’s premier chronicler, and Nell Irvin Painter, a specialist in Black and Southern history, cite the congressional debate on Section 3 to show that it plainly applies to the office of the president. They offer clear evidence that implementing the section “did not require additional acts of Congress,” as some defenders of Trump claim.

Sherrilyn Ifill, a Howard Law School professor and former president of the NAACP Legal Defense Fund, <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299392/20240131142542754_23-719%20Ifill%20Amicus%20Brief.pdf" target=_blank>shows how the clause</a> to disqualify insurrectionists is closely linked to the 14th Amendment’s core purpose, “a bold and expansive promise of citizenship for Black people.” Its framers were preoccupied with the “ongoing resistance to full Black citizenship by southern states” and feared that “Black men who had been loyal to the Union … would be disenfranchised, while disloyal white former Confederates would be rewarded with the vote.”

Trump is a present-day embodiment of their fears, she wrote, having offered “a false narrative discrediting the votes cast in jurisdictions with high concentrations of Black voters,” including Detroit, Philadelphia and Atlanta.

And to argue that barring Trump from the ballot is “antidemocratic,” wrote professors Carol Anderson and Ian Farrell in <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/299268/20240130155608803_Emory_Amicus%20Document%20January%2030%202024%20EFile.pdf" target=_blank>another brief</a>, is “ironic … as he bears by far the most responsibility for attempting to <i>subvert</i> democracy on Jan. 6.” An effort to overthrow constitutional procedures, wrote Ifill, should be distinguished from political protests, even those “accompanied by sporadic acts of violence.” Demonstrators are not the same as a mob trying to hijack the government.

There are paradoxes galore on this matter. Believing Trump should be unable to run, for example, is the <i>opposite </i>of a partisan wish, since he is without question the weakest Republican whom <a href="https://www.washingtonpost.com/elections/candidates/joe-biden-2024/" target="_blank" class="contextual_link">President Biden</a> could face. Another: Even if Colorado was right to block Trump from the ballot, it shouldn’t be allowed to do so on states’ rights grounds alone. This is a national question, and the court should not duck the fundamental issues at stake — though my hunch is that the court might look for a way to punt.

The biggest paradox of all: Throwing Trump off the ballot would seem, on its face, the opposite of democracy. Yet the whole point of Section 3 is to protect constitutional democracy from anyone who has already tried to destroy it. If its provisions don’t apply to Trump, they don’t apply to anyone. The court would not be disqualifying him. He disqualified himself.

Named among the 25 most influential Washington journalists by the National Journal

Member of the American Academy of Arts and Sciences

American Political Science Association’s Carey McWilliams Award, 1996

Empathy Award from the Volunteers of America, 2002

National Human Services Assembly’s Award for Excellence by a Member of the Media, 2004

Hillman Award for Career Achievement from the Sidney Hillman Foundation, 2011

One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate, and the Not-Yet Deported (co-authored with Norman J. Ornstein and Thomas E. Mann)

Why the Right Went Wrong: Conservatism – From Goldwater to Trump and Beyond

Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent

Souled Out: Reclaiming Faith & Politics After the Religious Right

Stand Up Fight Back: Republican Toughs, Democratic Wimps, and the Politics of Revenge

They Only Look Dead: Why Progressives Will Dominate The Next Political Era

Why Americans Hate Politics

We Are the Change We Seek: The Speeches of Barack Obama (co-editor)

One Electorate Under God?: A Dialogue on Religion & American Politics (co-editor)

United We Serve: National Service and the Future of Citizenship (co-editor)

Sacred Places, Civic Purposes: Should Government Help Faith-Based Charity? (co-editor)

Bush v. Gore: The Court Cases and the Commentary (co-editor)

What’s God Got To Do With the American Experiment? (co-editor)

Community Works: The Revival of Civil Society in America (co-editor)

Code Red: How Progressives and Moderates Can Unite to Save Our Country

Oxford University, D.Phil.

Harvard University, BA

E.J. Dionne Jr. writes a twice-weekly column for The Washington Post. He is a professor at the McCourt School of Public Policy at Georgetown University, a senior fellow at the Brookings Institution. His latest book, with Miles Rapoport, is “100% Democracy: The Case for Universal Voting.”

E.J. Dionne

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