The interesting problem here, though, is that arguments for and against disqualifying Trump’s candidacy via the language of Section Three plunge us right back into irresolvable disagreements about our national history. The provision is supposed to be self-executing, in that it applied to former Confederate leaders on the basis not of conviction in court for insurrection but of manifestly insurrectionary behavior—fighting in the Civil War. So now some Democratic Party state attorneys general think they’ve got a constitutional means for keeping Trump off the ballot in their states, “automatically,” without Congress having to do anything.
Based on Section Three, he’s just barred, they say, for insurrection or at the very least for aid and comfort; he can’t run for office. The argument has also been made in lawsuits and law-review articles pressuring various states to take that position.
Obviously an attorney general can’t just randomly say that anybody they don’t like has committed insurrection and is therefore automatically off the ballot. In the likely event of a dispute, you have to show a reason. Section Three thus remains subject—as it was in the beginning—to judicial ruling. Courts will have to decide that absent a conviction for sedition or treason or whatnot (none of Trump’s current indictments allege any of that, shrewdly enough), what happened on January 6, 2021, makes Trump as obviously insurrectionary as those Confederate leaders and officers who had once sworn, as Trump did, to uphold the Constitution, or as obviously insurrectionary, at least, as any earlier American insurrectionists that the framers of the Fourteenth had in mind.
So all the old arguments about what counts as insurrection in U.S. history—arguments that prosecutors with Trump under indictment have avoided having to make— come lurching back into the issue. And almost everything everybody has to say about that subject, in the ongoing discourse among magazine and newspaper opiners and social-media users, is partial to the point of silliness.
That’s the problem with appealing to history. It’s rarely the help you think it is.
If you want Trump out of the race—I’d sure enjoy that—it may seem glaringly obvious to you that Section Three should apply in this case. But the fact is that the section originally responded to the secession of eleven states, five years of civil war, and more than 600,000 dead, which might make those few hours on January 6, awful as they were, look like not so much. . . . Some people arguing for Trump’s automatic disqualification have therefore looked back to the Whiskey Rebellion, a far lesser event than the Civil War. It too “would have” come under Section Three, they say, had Section Three existed in 1794.