Even as Donald Trump roars and intimidates with ever more violent threats, even as his lawyers warn that kicking him off the ballot in November would “unleash chaos and bedlam,” even as it becomes evident that we are not in the midst of a normal national election but an ongoing coup d’état by a charismatic despot, it is taking a long time for the public to understand the enormity of the events of January 6, 2021, and all that precipitated them.
In the moment, American historians were better equipped to grasp their profound political implications. Less than a week after the attack on the Capitol, Eric Foner, the preeminent authority on Reconstruction, pointed to Section 3 of the Fourteenth Amendment, ratified three years after the end of the Civil War, which bars anyone who has sworn to uphold the Constitution and who has engaged in insurrection from ever holding office again. Plainly, Foner said, then-president Donald Trump, along with other public officials, had sworn “an oath to defend the Constitution and, on Jan. 6, they violated it.” To bar them from public office, as the Constitution mandates, “would be the mildest of punishments” for “an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election.” Upholding the law of the land, Foner remarked, “would be an affirmation of the vitality of our wounded democracy.”
Three years later the Supreme Court will now decide whether to sustain the recent decisions of the Colorado Supreme Court and the Maine secretary of state to follow the Constitution’s mandate, much as Foner suggested. Unsurprisingly, Trump’s lawyers and defenders, when not unsubtly raising the specter of mass violence, have groped for any escape route they can find. George W. Bush’s attorney general Michael B. Mukasey has floated the strange reading that the relevant section of the Fourteenth Amendment covers only persons appointed to office. In its filing contesting the Maine disqualification, Trump’s legal team tries to peddle the claim that the amendment bars persons “from holding specified offices, not from running for them or from being elected to them.”
No less risible, if somewhat more surprising, has been the alarm at Trump’s disqualification expressed by some law school academics and political pundits. By their reasoning, Trump’s misdeeds aside, enforcement of the Fourteenth Amendment poses a greater threat to our wounded democracy than Trump’s candidacy. In the name of defending democracy, they would speciously enable the man who did the wounding and now promises to do much more.