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

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

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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.

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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.

Moreover, on a practical level, repentance was linked to national security: The Republicans who controlled Congress calculated that diehard rebels who refused to concede that the cause was lost were a clear-and-present danger to the peace. If enough Confederates were not willing to join, or work with, or abide the Republican Party, the South would fall back into the hands of secessionists. As Senator Jacob M. Howard of Michigan, one of the drafters of the 14th Amendment, put it, “I am bound, if I cannot have indemnity for the past, to have at least permanent security for the future; and I will knowingly relieve no one of them from his disabilities who still harbors in his heart the spirit of rebellion.”

Longstreet presented Congress with its most difficult case. On the one hand, he boldly and publicly renewed his allegiance to the U.S. in 1867 when he announced in letters published in his hometown of New Orleans that he would support Congress’ program of Reconstruction, which included securing voting rights for Black Americans. On the other hand, as the general of the First Corps in the Army of Northern Virginia, he was the third most prominent ex-rebel, after Confederate President Jefferson Davis and Gen. Robert E. Lee, and thus had a great deal of death and destruction for which to repent. Longstreet could potentially do more good or more harm than any other applicant for Congress’s mercy.

Congressmen opposed to removing the Section Three disqualification from a rebel as prominent as Longstreet questioned whether he had demonstrated sufficient atonement for his “great crime.” Representative Samuel Shellabarger of Ohio asked pointedly “why the authors of the rebellion ought now to be enabled to become our rulers.”

Those who favored absolving Longstreet offered a spirited retort. They argued that he had become “as true a Union man as he was before a true confederate.” He had suffered the “most violent denunciations” and ostracism from ex-Confederates, because his contrition was “known, open, and thorough” and his aide to Reconstruction “diligent and earnest.” Crucially, Longstreet’s supporters in Congress brandished the testimony of Union war hero General U.S. Grant, Longstreet’s old friend and West Point classmate, who vouched for the confederate general’s “thorough repentance.”

In the end, despite the uneasiness of doubters who felt that the long list of Section Three petitioners had not been deeply enough vetted, Congress passed Farnsworth’s bill (H.R. 1059) in June 1868, and Longstreet, along with hundreds of others (the list of pardon seekers grew as the congressional debate played out), was cleared for future officeholding.

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The lessons for our current moment are two-fold. 

The first has to do with accountability. Those congressional Republicans who worried that they did not have sufficient guarantees of Southern loyalty were right to worry. Longstreet himself proved to be a good bet—he ardently defended Reconstruction, and even led Louisiana’s interracial militia in defending the Republican government there against a white supremacist coup in 1874. But he proved to be a rarity.

Most other white Southerners, including many of those who gestured at compliance and contrition, ended up opposing Reconstruction, and bringing it down, in a maelstrom of anti-Black vigilante violence that imposed one-party Democratic rule and Jim Crow segregation on the South.

The second lesson has to do with the politics of repentance. Seen in the context of Congress’s emphasis on contrition, it is clear that Donald Trump is exactly the kind of insurrectionist who Section Three was meant to disqualify: recalcitrant, utterly unregenerate, brazenly threatening retribution and violence, and fomenting division and disorder.

The Republicans of the Reconstruction era would be shocked at our current state of affairs where Americans neither ask nor expect Trump’s repentance. If Section Three cannot stop a remorseless insurrectionist like Trump from seizing the reins of power, then it truly has been drained of whatever meaning and promise it might once have had.

Elizabeth R. Varon is Langbourne M. Williams professor of American history at the University of Virginia. Her new book is Longstreet: The Confederate General Who Defied the South (Simon & Schuster, 2023). Made by History takes readers beyond the headlines with articles written and edited by professional historians. Learn more about Made by History at TIME here.

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