Making America’s Civil War Great Again: Donald J. Trump Proves That the Civil War Still Matters

ECW welcomes back guest author Kevin C. Donovan 

The Supreme Court’s recent decision in Trump v. Anderson^[1] that Colorado cannot use the “insurrectionist disqualification” clause (Section 3 of the 14th Amendment to the Constitution) to exclude Donald J. Trump from that state’s presidential ballot is the latest rejoinder to any who claim that the Civil War no longer matters. Yet the common news media’s reporting of the court’s decision as unanimous masks the fact that the high court was in fact deeply divided over a key legal issue that will henceforth drive how the “insurrectionist disqualification” clause can be applied. Indeed, what is being represented as a 9-0 decision is, in a significant aspect of the decision’s analysis and effect, in fact a 5-4, or arguably a 5-3-1 split decision. This split, which again will control how and by whom the “insurrectionist disqualification” clause henceforth will be enforced, arose from the justices’ competing analyses of multiple Civil War and Reconstruction-era laws and actions. Indeed, the court’s perceived need to deeply delve into the Civil War era proves that “America’s Defining Event” still is defining America.

The enduring impact of the Civil War is reflected, first, in the very fact that the Supreme Court found itself interpreting Section 3. This “insurrectionist disqualification” clause was enacted as a measure “designed to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.”^[2] Section 3 came about after the former Confederate states sent multiple ex-rebels to sit in the 39th Congress scheduled to open in December 1865. The newly elected recent insurrectionists included “Alexander Stephens, the Confederate vice president, two Confederate senators, four Confederate congressmen, and several military officers of the Confederate Army.”^[3]

Republicans were both outraged and fearful that the hard-won battlefield victory was about to be lost in the halls of Congress. Their emotions were further fueled by a delicious irony accompanying the defeat of the rebels. With the passage of the 13th Amendment abolishing slavery, the infamous “three-fifths compromise” set forth in the Constitution — under which enslaved persons counted only as 3/5 of a person for the purpose of allocating Congressional seats — was effectively repealed; hence, the former Confederate States stood to gain enhanced power in Congress. For the loyal defenders of the Union, the prospect of the rebels turning defeat into victory was too dire to tolerate. “Treason, defeated in the field, has only to take possession of Congress and the Cabinet,” roared the Republicans.^[4] To prevent this catastrophe, Congress acted. The result was the “insurrectionist disqualification” clause of the 14th Amendment.

Passed by Congress on June 13, 1866 and ratified July 9, 1868 as part of the 14th Amendment,^[5] Section 3 excludes from federal or state office anyone who, after taking an oath to support the Constitution, engaged in “insurrection or rebellion” against the United States. This is the provision that was the subject of the ruling of the Colorado Supreme Court, which applied it to bar former President Trump from its state court ballot as ineligible to hold the office of president. The propriety of this action by the Colorado court was the issue before the U.S. Supreme Court.

The high court held that Section 3 precludes the states from enforcing its terms against any federal office holder or candidate for federal office. As the media has reported, this aspect of the court’s opinion indeed was unanimous.^[6] But that is where the unanimity ceased, and resort to the history of the Civil War era began.

The split arose because five justices concluded that Section 3 may be enforced only through legislation enacted by Congress that is specifically designed to implement the “insurrectionist disqualification” clause, utilizing the power granted by Section 5 of the 14th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”). This ruling of the five-justice majority means that, absent congressional authorization, no private citizen can sue to enforce Section 3 against an alleged “oathbreaking insurrectionist” (the phrase coined by the three members of the court who objected to the majority’s approach). Moreover, this aspect of the majority’s ruling effectively ensures that the federal courts have no independent role in enforcing the clause in any context. This last aspect of the ruling is ironic, in that in the first judicial interpretation of Section 3, Case of Davis, 7 F. Cas. 63, 102 (C.C.D. Va. 1867), then-Chief Justice Salmon P. Chase, sitting as a circuit judge, concluded that Section 3 disqualification was the exclusive punishment for insurrection by a Constitutional oath-taker and thus required the quashing of the indictment for treason against Jefferson Davis.^[7]

In reaching its conclusion that Section 5 mandates that only Congress has the authority to enforce Section 3, the majority in Trump v. Anderson relied in part upon statements made in April 1869 by Radical Republican Lyman Trumbull, who complained that, despite passage of Section 3, “…hundreds of men [were] holding office in violation of its terms,” and stated that Congressional legislation was needed to give effect to the ban on insurrectionists.^[8] The result was the Enforcement Act of 1870, expressly enacted pursuant to the power granted by Section 5 of the 14th Amendment. ^[9] The majority observed that this action reflected what was  recognized at the time, that is, the “indispensable” need for formal and proper “proceedings, evidence, decisions and enforcements of decisions” in order to reach the correct “‘determination” that Section 3 applied to a particular person.’” Section 5 assigned to Congress the duty “to prescribe how those determinations should be made.” All of this, the majority reasoned, established that only Congress may enforce Section 3. ^[10]

In response, a minority of the justices in the Trump v. Anderson decision issued a full-throated denunciation of the majority’s approach. The three-justice minority bloc first chastised the majority for going beyond the single issue of whether Colorado could disqualify Mr. Trump and instead decided the fate of other “challenges that might arise in the future,” as a violation of the principle of judicial restraint.^[11] Curiously, although they did not reference Dred Scott, the minority echoed one of the objections to that infamous case,^[12] that the Taney Court’s decision went well beyond the issue actually presented to them and unnecessarily strayed into opining on the constitutionally charged issue of whether Congress had the authority to ban slavery from the territories.

Both factions of the Trump v. Anderson court applied Civil War and Reconstruction-era laws and actions in their opinions. Each revisited some of the most dramatic events of the era. The minority attacked the majority by pointing out that what are known collectively as the “Reconstruction Amendments” (which include the 14th Amendment) are what is called “self-executing,” meaning that they do not depend on legislation; hence, and contrary to the majority’s insistence, there need be no special legislation to enforce Section 3.^[13] In doing so the minority relied upon the Civil Rights Cases, 109 U.S. 3 (1883), which  — while indeed supporting the minority’s argument on the “self-executing” issue  — unfortunately also saw the Supreme Court striking down the first federal law guaranteeing freedom from racial discrimination in public accommodations (e.g., hotels, street cars, theaters). Such a federal anti-discrimination law would not appear again until the Civil Rights Act of 1964. The minority attacked the majority’s reliance on Griffin’s Case, 11 F. Cas. 7 (CC Va. 1869), in which Chief Justice Chase appeared to change his mind (from the Case of Davis) and decided that Section 3 indeed required enabling legislation for any enforcement. That case arose in the context of Unionist federal judge John C. Underwood’s remarkable post-Civil War campaign to empty Virginia’s jails of those convicted of crime, on the ground that the state court judges overseeing the trials all were Confederates and thus ineligible to hold office per Section 3. Chief Justice Chase stepped in amidst a public panic to halt Underwood’s actions.^[14]

Meanwhile, the majority canvassed the era’s events to support their reasoning for the entirety of their opinion. They recited instances in which ex-rebels at both the national and state levels benefited from congressional legislation under Section 3 to remove their disability from office, even mentioning one by name (Nelson Tift, who built rebel gunboats and served in the Confederate Navy’s supply department, yet was accepted for congressional office).^[15] The majority discussed the Enforcement Act of 1870 and how that law actually made it a crime for someone to attempt to hold office in violation of Section 3. ^[16] They noted that disqualification from federal office as punishment for the crime of insurrection not only predates Section 3, as found in the Confiscation Act of 1862, but that act’s provision remains on the statute books today. ^[17] All of this Congressional activity, the majority insisted, supported its conclusion that the Civil War-era Congress acknowledged its necessary role in enforcing Section 3.^[18]

Regardless of how one personally comes down on the arguments and conclusions reached, this modern day Supreme Court opinion opened a portal to the past, through which our nation’s current justices stepped in order to spar over the meaning for today’s citizens of decisions and events that were taken by the individuals who were actors in what has been called “America’s defining event.” In sum, Trump v. Anderson provides the reader with a fascinating glimpse into both our nation’s history and its present, both as impacted by the Civil War.^[19]

Kevin C. Donovan, Esq., a retired lawyer, now focuses on Civil War research and writing, including on law-related topics such as “How the Civil War Continues to Affect the Law,” published in Litigation, The Journal of the Section of Litigation, of the American Bar Association.  His inaugural ECW blog publication, “A Tale of Two Tombstones,” appeared December 9, 2022 and was ECW’s most popular post of the year on social media. 

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[1] Trump v. Anderson, No. 23-719, 601 U.S. ___ (March 4, 2024), https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf.

[2] Trump v. Anderson, slip opinion, p. 4. “Slip opinion” refers to the pagination of an opinion of the court before it has been bound in an official book of the court’s opinions.

[3] Gerard N. Magliocca, “Amnesty and Section Three Of The Fourteenth Amendment,” 36 Constitutional Commentary, 87, 91 (July 20, 2021),  https://conservancy.umn.edu/bitstream/handle/11299/221946/02%20Magliocca.pdf.

[4] U.S. Congress, House of Representatives, Report of the Joint Committee on Reconstruction, 39th Congress, 1st Session, pp. xi, xiii (1866), https://www.senate.gov/artandhistory/history/resources/pdf/JointCommitteeonReconstruction1866.pdf.

[5] National Archives, 14th Amendment to the U.S. Constitution: Civil Rights (1868), https://www.archives.gov/milestone-documents/14th-amendment#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.

[6] The Court’s opinion supporting this result focused on the fact that federal offices, especially that of President, represent the nation as a whole, and individual states must be prevented from improperly interfering with the choice of the national electorate. Allowing individual state determinations of whether Section 3 disqualified an individual candidate for President would inevitably result in application of a dizzying patchwork of differing procedures, evidentiary standards and results that would fatally undermine the intent that the selection process represent  a national decision. Moreover, the Court noted that the 14^th Amendment reflects a significant encroachment upon State authority to select its own state-level officials, while simultaneously enhancing federal authority to disenfranchise individuals from federal or state office; thus, it would be incongruous to believe that the Amendment implicitly expanded state power to govern the qualification for federal offices (such as President). Trump v. Anderson, slip opinion, at pp. 6-13. Justice Barret expressly joined only in this part of the Court’s opinion. See Barrett, J., Concurring in part and concurring in the judgment. Three Justices concurred only in the judgment, i.e., the bottom-line result, writing separately to object to much of the majority’s opinion. See Justices Sotomayor, Kagan and Jackson, Concurring in the judgment.

[7] Remarkably Chase, in ex parte discussions with Davis’ defense counsel, actually suggested this “exclusivity” legal argument to them, encouraging counsels’ motion to quash. Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis, pp. 294-295, 309-311 (Cambridge University Press, New York, NY 2017).

Despite the 1867 date on the official report, the oral argument and decision occurred in December 1868. Id. at 296-299.

[8] Trump v. Anderson, slip opinion, p. 5.

[9] Trump v. Anderson, slip opinion, pp. 6-7, quoting General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 385 (1982); see 16 Stat. 143-144.

[10] Trump v. Anderson, slip opinion, pp. 5, 6, 12, 13.

[11] Justices Sotomayor, Kagan and Jackson, Concurring in the judgment, their own separate slip opinion, p. 1 (hereafter “SKJ Concurrence”).

[12] Scott v. Sandford, 60 U.S. 393 (1857).

[13] SKJ Concurrence, slip opinion, pp. 4-5.

[14] This incident is described in Secession on Trial, p. 184 & n. 4.

[15] Trump v. Anderson, slip opinion, p. 8 & n. 2; Susan O’Donovan, “Nelson Tift,” New Georgia Encyclopedia, last modified Jul 29, 2013. https://www.georgiaencyclopedia.org/articles/history-archaeology/nelson-tift-1810-1891/; Nelson Tift, Wikipedia, https://en.wikipedia.org/wiki/Nelson_Tift.

[16] Trump v. Anderson, slip opinion, p. 10. That 1870 Act has since been repealed. Id.

[17] Trump v. Anderson, slip opinion, p. 10, citing 18 U.S.C. §2383. Hence, Mr. Trump could in fact be prosecuted and disqualified from federal office if charged and convicted under that existing law.

[18] Trump v. Anderson, slip opinion, pp. 8-10.

[19] See also Kevin C. Donovan, “How the Civil War Continues to Affect the Law,” Litigation, The Journal of the Section of Litigation, p. 10, Fall 2015 (American Bar Association).