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What Civil War History Says About Attempts to Use the Insurrection Clause to Keep Trump From Office

Debates about handling Confederates reveal that the 14th Amendment bars unrepentant insurrectionists from office.

Should Donald Trump be barred from office for his role in the Jan. 6, 2021 insurrection? The lawsuit currently being heard before the U.S. District Court in Denver says yes. History is on trial, as both sides grapple with a key question: How did Congress intend to apply Section Three of the 14th Amendment, which disqualified insurrectionists from future office-holding?

We can gain valuable insights into Congress’s intentions by looking at the case of Confederate General James Longstreet, whose fate hung in the balance in the spring of 1868, as lawmakers staged one of their earliest debates on the application of Section Three. The discussion hinged on whether Longstreet and other Confederates were sufficiently repentant to warrant restoring their right to hold office. Repentance was the prerequisite for removing the barrier to holding office. That thinking indicates that the men who crafted and best understood the purpose of the 14th Amendment intended to bar someone like Trump —a recalcitrant, unrepentant insurrectionist —from holding office.

Anticipating the 14th Amendment’s imminent ratification that summer, Congress considered a bill, proposed by Illinois Republican Representative John Franklin Farnsworth, to preemptively remove the Section Three disability from a long list of Southerners who sought amnesty; they were largely former officeholders, who, having broken their oaths of loyalty to the U.S. Constitution and sided with the Confederacy, sought to renew their allegiance and regain their rights.

One theme, more than any other, dominated the congressional debates: repentance.

Farnsworth and the supporters of his bill insisted that they would only restore the right to hold office to those who had shown “proper repentance since the war.” Ex-Confederates needed to offer evidence of their contrition by renouncing rebelism, promoting peace, obeying the law, upholding the Constitution, and encouraging a spirit of national loyalty in others. Relief from Section Three disabilities was intended, as Farnsworth put it, for one “who now puts his shoulder to the wheel to support the Government.”

Section Three turn on the question of repentance precisely because lawmakers designed the 14th Amendment not just to punish unreconstructed rebels, but to incentivize their return to the national fold. It was one of a series of measures, starting with Lincoln’s wartime amnesty proclamation of December 1863, intended to change Southern hearts and minds and restore bonds of affection that had once held the country together.