Should Trump Be Removed From The Ballot? Just Look At The History Of The Constitution

Here’s why we joined Civil War historians in the Colorado Ballot Case

T he January 6th attack is part and parcel of the growing movement to harass and threaten elections officials, undermine democracy, and collapse the Constitution under mob rule.

You’d have to be living under a proverbial rock not to be inundated (even if you’re actively avoiding all things Trump for a semblance of psychological well-being) with the flurry of allegations and court cases against the former President.

On top of all of the criminal proceedings aimed at the former President — an impressive 91 felony counts across two state courts and two different federal districts from hush money and racketeering to election subversion — there is an ongoing effort to remove Trump from the ballot because of a lesser-known provision of the U.S. Constitution.

The case is being argued before the U.S. Supreme Court this week, and its outcome could shape the contours of the coming presidential election.

What once seemed unimaginable — criminals don’t become the President of America! — now feels de rigeur. Customary. The strange game politicians play riddled with human pawns. But as ubiquitous as his wrongdoings may be, we can’t normalize it. We can’t be the frogs slow-boiled. That kind of complacency is dangerous.

Public Rights Project served as counsel for four esteemed historians to weigh in on the case and what is at stake.

So What’s In The Brief?

The case concerns whether President Trump is ineligible to hold office again. The case is leveraging the once-overlooked Section 3 of the 14th Amendment which states:

“No person shall … hold any office, civil or military, under the United States…who, having previously taken an oath…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.”

In short? In 1866, the staunch abolitionist John Bingham led the way in constructing Section 3 of the Fourteenth Amendment aiming to prevent ex-Confederate leaders from assuming positions in state and federal governments in the wake of the Civil War.

After all, they had risen up against their own nation. Wasn’t that treason?

“There are men now within these walls who may learn, when it is too late, that the ballot in the hand of the conspirator is more dangerous to the safety of the Republic than the bayonet.”

So Why Did PRP Get Involved?

Here at Public Rights Project, we believe January 6th is just one manifestation of a larger and dangerous problem — the interference with the administration and subsequent results of elections.

This brief is part of our broader efforts to push back against this culture of violence and distrust by calling for accountability.

We also believe that the lead authors on this brief — celebrated historians Jill Lepore and David Blight — are right to provide the Supreme Court (which insists it cares about the originalist public meaning of the Constitution) a definitive history of Section 3. They argue, and have the documented goods to show, that the framers intended Section 3 to accomplish three things:

1. to automatically disqualify insurrectionists
2. to apply not only to the Civil War but also to future insurrections
3. to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States

How Did We Get Here?

Colorado has been in these crosshairs for a few months now; on November 17th Colorado District Judge Sarah Wallace ruled Trump had participated in an insurrection on January 6th but he should remain on the ballot. About a month later the CO Supreme Court declared Trump ineligible for the presidency and removed him from the ballot.

That decision remains “stayed” however — meaning those proceedings have been suspended, and ballots have been printed and distributed with President Trump’s name on them.

A few weeks later, Trump appealed to the U.S. Supreme Court, and they decided to take the case.

And now?

This past Monday we filed the brief — Trump v. Anderson — representing Lepore and Blight as well Drew Gilpin Faust and John Fabian Witt, arguing that the history around Section 3 provides definitive answers to several key questions in the case, arguing that “no one in the United States is above the law, not even the President, and that no republican government can afford to return insurrectionists to office.”

This Feels Pretty Partisan, No?

Actually, the case was brought by Citizens for Responsibility and Ethics in Washington (CREW), a non-profit political watchdog group — fuelled by support from Republicans and Democrats alike — to hold powerful people and organizations accountable.

They argue that enforcing this disqualification isn’t a punishment, it’s meant to enforce the Constitution in the very same way as if a two-term president tried to run a third time or someone under 35 was seeking office.

We cannot pick and choose when we enforce the Constitution, even if politically, it seems like it’s adding fuel to Trump’s “I’m being persecuted” fire. Our country and every one of our lives would look very different if we allowed fear to dictate whether the Constitution should be followed.

This isn’t an opt-in situation, it is the bedrock of how we run our nation.

Against partisan criticism, Bingham himself insisted that the 14th Amendment transcended any political aspiration, it “towers above all party consideration; it touches the life of the Republic, and not the miserable inquiry whether this or that party should be successful in the coming contest.”

Isn’t It More Democratic If Trump Is Beaten On The Ballot?

There are requirements to becoming — and rebecoming — President. There are oaths Trump took and he violated them.

Moreover, the voters had their say in 2020. They chose Biden, but Trump refused to accept that result and arguably incited a riot against the Capitol in response. There is little to no reason to believe that trusting the democratic process will prove any different if he is allowed to remain on the ballot and run.

As Washington Post Columnist E.J. Dionne Jr. humbly points out on why he changed his mind about taking Trump off the ballot, the greatest irony of all is that the very democratic process we seek to protect by letting it take its course is the very same system Trump arguably sought to undermine.

“… 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.”

Yes, This Is a Racial Justice Issue

We cannot speak of the Civil War, its leaders, or the creation of the 14th Amendment in a vacuum; the war was fought over Slavery, over the crushing human collateral of Black lives and the attempt to maintain their enduring subjugation to sustain the American economy.

One of the crucial results of the Civil War was the adoption of the Reconstruction Amendments, which crucially includes the 14th Amendment; it is designed to be an enduring tool enabling our Courts to ensure greater equality.

But right now?

The 14 Amendment’s Equal Protection Clause is being perverted to ban affirmative action and attack voting opportunity districts, systematically disenfranchising Black and brown voters with sweeping redistricting efforts.

And as civil rights lawyer Sherrilyn A. Ifill points out in her scathing amicus brief to SCOTUS in support of removing the former President from the ballot, Trump went to great and explicit lengths to underpin those silencing efforts long before the riot on January 6th.

“President Trump’s effort to overturn the results of the November 2020 election — by targeting the legitimacy of votes cast by Black voters in select ‘urban’ areas that his followers would associate with race, by using racist dog whistles to describe voters in those jurisdictions and those charged with counting the votes, by making relentless and unfounded attacks on Black poll workers, and by leading an assault on the Capitol that featured the Confederate flag parading through its halls — represents precisely the dangers that the 14th Amendment’s framers sought to protect our republic against.”

Supporting the true historical intention of this particular Amendment is supporting the vital anti-racism work our nation must contend with and champion further. We’re in this fight because of this Constitutional violation and the broader assault on our democracy playing out in communities across the country.

We cannot stand idly by and hope that our institutions hold.