January 5, 2024 - 6:00pm
This week, Joe Biden met with several senior US historians to discuss “American history and its bearing on the present”. The President is giving a speech today, with plans to “sharpen his attacks” on Donald Trump over his role in events three years ago tomorrow. It is a different insurrection, however, which is drawing the attention not just of historians but also of judges — the American Civil War and its aftermath, known as the Reconstruction Era — with important ramifications for the upcoming presidential election.
Reconstruction was inaugurated by President Abraham Lincoln in the final speech of his life, delivered two days after the surrender of General Robert E Lee’s Confederate forces. Lincoln called for the “re-inauguration of national authority – reconstruction”. Four days later, on Good Friday, Lincoln was shot in the back of the head and killed.
The current era is sometimes known as the “Second Reconstruction”, beginning roughly in the 1960s with the gains of the civil rights movement. As I argued in my book The End of the Second Reconstruction, the parallels between these two periods are glaring. Both were characterised by substantial constitutional and legislative civil rights achievements, such as the expansion of minority representation, but uneven economic gains. These advances were undone by a toxic mix of intense partisan polarisation, judicial activism, and sabotage at the ballot box, worsened by political violence.
The keystone of both Reconstructions is the Fourteenth Amendment, which was ratified in 1868 and is unlike any other part of the US Constitution. It affords the federal government profound centralising authority, grants equal protection regardless of race, and has been responsible for the legalisation of abortion, same-sex relationships, and contraception.
The Fourteenth Amendment also had a punitive edge, with potentially very significant consequences in the upcoming presidential election. Section 3 of the Amendment bars anyone who had sworn an oath to the Constitution but then “engaged in insurrection or rebellion against the same” from subsequently holding public office.
Section 3 is controversial because it does not adequately define “engaged in insurrection”. This proved problematic during the First Reconstruction after Congress began issuing thousands of pardons to affected politicians. In 1872, they passed a general Amnesty Act, which removed the disqualification on all but the most senior insurrectionists. Yet by 1898, all insurrectionists were pardoned by Congress.
This is all relevant today because Section 3 has been reinvoked for the first time in over a century to disqualify Trump from the ballots of Colorado and Maine. Other states may follow. The US Supreme Court will need to consider how Section 3 should be applied.
Under one reading, Section 3 is self-enforcing. If Trump so clearly committed an insurrection on 6 January 2021, like Confederate President Jefferson Davis did in the 1860s, then it is purely an administrative decision about whether to leave him off the ballot. Election administrators regularly disqualify ineligible individuals from the ballot if they are, for example, too young or not a citizen.
The more likely reading is that the Supreme Court will either require some kind of conviction of Trump for engaging in insurrection or a request to Congress to pass new enforcement legislation. It is unlikely that either of these will happen before this year’s election, giving Trump a free run for the presidency.
America is caught once again in a moment of intense political polarisation. There may not be another civil war, but trouble lies ahead.
Richard Johnson is a Lecturer in US Politics and Policy at Queen Mary University of London.
richardmarcj
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SubscribeI can think of no better way to delegitimize the 2024 election than to bar Trump from being included on the ballots. Please note that in 1860, it was the pro-slavery southern Democrats who worked to keep Abraham Lincoln off the ballot, and succeeded in ten states.
“I can think of no better way to delegitimize the 2024 election than to bar Trump from being included on the ballots.” Right On!
Joe Biden isn’t worried about civil war. He is worried about his poll numbers, which are in friends and family only territory, and being booted out of office. He likes to stoke division and anger as this the only way he can boost his turnout given the total pig’s ear he has made out of his time in office.
Biden isn’t worried about anything. He doesn’t even know what year it is.
Its three years since he smashed Trump so what year does that make it?
I’m not at all well-informed on the legal status of American primaries but surely they are simply a means to determine who a party puts forward for inclusion on the Presidential ballot. If a party is careless enough to choose as their candidate someone who is ineligible for the office, why is that a matter for intervention by the authorities?
Also, what happened to the presumption of innocence? Insurrection is a very serious crime yet it’s not amongst the numerous offences with which Trump has been charged. If there was even a smidgen of evidence I’m sure one of those politically motivated AGs would have found it.
He was never charged with insurrection. Never.
Was January 6 an insurrection, or just a stupid riot, like all those “mostly peaceful” riots of summer 2020? If it was an insurrection, the insurrectionists didn’t think to supply themselves with firearms, which makes it one of the most badly planned insurrections in history.
Nobody ever said Trump supporters were smart!
Yet that word appears in some shape or form 8 different times in this Trump piece. How strange, or how subliminal, depending on your point of view on modern journalism.
Democrats did a pretty good job of choosing a muppet for office who should have been disqualified under the 25th Amendment. But it worked for them. And no cheating at the ballot box, no, no, no. Biggest election victory in history for Joe Biden and not a sniff of cheating anywhere. Honestly.
Surely you can prove all this cheating, right? I’m sure Rudy Giuliani has all the facts at his fingertips!
That was my first thought too – that chosing your party candidate is no business of the authorities. The States’ obligation is to provide the ballot infrastructure for the private political parties to poll their members, nothing more. Perhaps this will be argued to the Supremes.
He’s too damned thick to be worried about anything.
Pot v kettle, Racist Grandpa!
Don’t call Biden Racist Grandpa, he’s also a pervert and a plagiarist, and pretty useless at anything. Even Obama acknowledged that.
And yet he annihilated your hero, Trump, in 2020!!!!
Mr Biden need not be worried about anything. He can retire with plenty of money, armed guards, and the best medical care.
Again, the far right think that Trump is above the law. He’s not.
Its no great surprise that the braindead right would wish to submit themselves to the cult of personality and mindlessly follow their fuhrer. Its just a bit of a surprise that you have chosen an utter pillock like Trump to be the chosen one!
However bad he is, millions prefer him to the other candidates. That’s all it takes to win. Put up a decent alternative or shut up.
For crying out loud, you’re so stuck in your socialist bubble you can’t see that people like you, spewing “Fuhrer” and “Hitler” and the N word, “Nazi” are rightly seen as idiots. Give it up, no one is listening to you any more. It’s boring and stipid.
I v much doubt Civil war. An extended period of instability, division, distraction, legal agonies and some violence seems almost inevitable unless both Trump and Biden not on the Ballot. And it’s in the US interest neither are.
The former is a total Crook and the second cannot convince he’ll be competent for a further 4yrs. The former at least a casus belli as only way he stays out of prison. Biden suffering a delusion he’s best placed to lead another 4yrs. His LBJ moment seems likely.
Hold on a moment – has Donald Trump actually been convicted of any criminal offences yet ?
Let’s just pause and ask ourselves the same question about some leading European politicians – I raise you Christine Lagarde, Jacques Chirac, Silvio Berlusconi, …
What insurrection? A bunch of people trespassed the Capitol without much opposition and dispersed afterwards. No tanks or artillery were involved. No radio stations were captured. No politicians were strung up. No political change was made under duress.
And it follows that if there was no insurrection then Trump could not be found guilty of inciting it.
By that argument, the 1605 Gunpowder Plotters in the UK should not have been found guilty of treason as they didn’t actually ignite their gunpowder.
They actually managed to smuggle powder into the Houses of Parliament, though. Our insurrectionists didn’t have so much as a firecracker between them.
Vapid comparison.
Lets be honest the capitol was stormed last year by Gaza Rioters, the term Insurrection no longer holds the meaning it used to.
You bring up a valid point concerning the manipulation of language by the left. Definitions of words suffer abuse because the “progressives” can’t win an argument using sentences. Some of the phrases that pop to mind being “woman”, “vaccine”, “insurrection”, “fascist”, and… well, “progressive”.
“Patriarchy”
I would go a step further: I question whether they even ‘trespassed’. That language accepts the premise that property of the state is exclusive to the use of citizens. In fact, the logic of the Republic is that, unless it can be demonstrated otherwise, any member of the public should have access to any part of the Capitol building.
After all, they own that building.
The political crisis we see in the US recently is ‘baked into’ the Constitution.
In an attempt to prevent the rise of a king or dictator, the Founding Fathers separated power between President, House and Senate.
For many years the House/Senate Paralysis has resulted in the president using dictatorial powers in the form of Executive Orders.
It’s a short-term Monarchy or Elective Dictatorship in all but name.
Biden, the guy whose security state collusion with corporations, social media etc.. reached the scale that easily meets Mussolini’s definition of fascism, who is trying to jail his main political opponent, is worried about disctatorship. Of course.
Don’t forget the executive colluding with corporations and institutions of higher learning to censor citizens. We’re now an oligarchy.
Biden isn’t “Worried” about anything except what ice cream flavour he’ll have today. Honestly these journalists pretending he’s still cognizant is pathetic,
Democracy in the balance…What the heck have the Democrats been doing this past three years by moving mountains to stop anyone getting even a chance to vote for Trump? Why not go the whole hog and take ‘Republican’ off the ballot paper en masse? Sorted.