Constitutional changes following the American Civil War could be used to bar President Donald Trump from seeking future office, historian Eric Foner said in a virtual lecture hosted by Washington State University on Tuesday.
The measure is tucked inside the 14th Amendment, in a section considered by at least one Democratic U.S. senator prior to trial.
“At that time, it was a way of making sure that ex-Confederates, who had taken an oath before and then joined up with the Confederacy, didn’t get back into public office,” said DeWitt Clinton, professor emeritus of history at Columbia University. “But with impeachment apparently not going anywhere, it has come to the fore lately as a way to deny President Trump the right to hold public office.”
Foner suggested invoking the little-known section of the amendment ensuring due process to all Americans, in an op-ed he wrote for the Washington Post.
The section of the amendment, ratified in 1868, bars from public office any individual who has taken an oath to defend the Constitution and then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Sen. Tim Kaine, the Virginia Democrat who was on the ticket as a vice presidential nominee opposite Trump, suggested applying the standard to the former president in public statements last month.
“It’s an idea that’s out there that I think people are contemplating in the accountability space,” Kaine said before the trial, which ended in Trump’s acquittal last week. It’s been suggested again this month as part of an effort to censure Trump, but top Republicans in the Senate have signaled such efforts would likely be a nonstarter in the chamber.
Foner, considered a leading scholar on American politics in the years known as Reconstruction following the Civil War, listed the discussion of using the amendment as just one of many reverberations of the tumultuous period underscored by the insurrection on Capitol Hill on Jan. 6.
“Key questions facing American society right now are Reconstruction questions,” said Foner, the first to give a series of lectures about the state of American democracy as part of a distinguished speaker series hosted by the Thomas S. Foley Institute for Public Policy and Public Service at WSU that will continue into next month.
“Who is entitled to citizenship? That is being fought out every day on our southern border,” Foner continued. “Who should have the right to vote? That is a highly controversial subject in many of our state Legislatures today. What about domestic terrorism?”
The three Constitutional amendments that followed the Civil War attempted to answer these questions, and in the intervening years the courts and state officials largely walked back the intent of lawmakers seeking to create a post-slavery society, Foner said. That culminated in the election of 1876, a contested presidential race that many historians drew parallels to in the days and weeks leading to the armed occupation of the Capitol by those who sought to overturn the results in Trump’s favor.
The historical insight provided by Foner, who has published several books on 19th century American politics including 2010’s Pulitzer Prize-winning “The Fiery Trial: Abraham Lincoln and American Slavery,” is the goal of the speaker series, said Cornell Clayton, director of the Foley Institute.
“It’s a really opportune time to take a step back and look at what’s happening more broadly, whether or not we’re at a turning point,” Clayton said.
The free events are scheduled during the noon hour Pacific time and can be watched on YouTube for free. Upcoming speakers include Bruce Ackerman, Sterling professor of law and political science at Yale University; Stephen Skowronek, Pelatiah Perit professor of political and social science also at Yale; and Kim Lane Scheppele, Laurance S. Rockefeller professor of sociology and international affairs at Princeton University.
Clayton said he asked each scholar not to provide a formal lecture, but rather “their reflections on where we’re at.”
Lawmakers looking at the 14th Amendment as a possible way to disqualify Trump, and anyone who participated or aided those who stormed the Capitol on Jan. 6, would have an argument to make that the section applied to their behavior because there’s not a lot in the historical record about the thinking that drove its drafters, Foner said. But he called it “a possibility.”
“I’m not a Constitutional lawyer, and whether Congress wants to go down this road, I have no idea,” Foner said. “But it’s in the Constitution. If it’s not there, well then, which other sections of the Constitution are we going to start ignoring?”
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