When the Civil War ended in 1865, the 76-year-old Constitution needed an upgrading and those leading the country did indeed dramatically transform it with the passage of the 13th, 14th, and 15th Amendments, known collectively as the Reconstruction Era amendments. The 13th (1865) abolished slavery, while the 15th (1870) gave voting rights to newly freed Black men.
However, it was the 14th Amendment, first drafted in 1866 and ratified in 1868, that would prove the most far-reaching and that today sits all too squarely between Donald Trump and his white nationalist and authoritarian dreams. While much attention has been rightfully focused on its “insurrection” clause (Section 3) and whether, thanks to it, Trump should be allowed to hold office, given his role in the January 6th attempted insurrection at the U.S. Capitol, his actions are also at odds with other key provisions of that amendment.
Trump’s Constitutional Indiscretions
It hardly needs to be said that Donald Trump is no constitutional scholar. At this point, though, there can be little doubt that his instincts are distinctly focused on some version of autocratic rule and white male privilege. No surprise then that, in his adult life, including as president, he’s staked out positions and advocated policies that distinctly conflict with the letter of, and the tone of, the 14th Amendment.
Mind you, he’s brazenly violated other parts of the Constitution as well, including the “emoluments” clause of Article 1, Section 6, and the “appropriations” clause of Article 1, Section 9. The foreign emolument section states that, without congressional assent, neither the president nor other office holders can “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Yet, as the Democrats on the House Oversight Committee documented, “Trump’s businesses received at least $7.8 million in payments from foreign governments and government-backed entities from 20 countries,” in itself adding up to a set of gifts (or do I mean grifts?) of historic proportions. Moreover, that figure is undoubtedly a significant underestimate of what he actually received. According to reporting by Citizens for Responsibility and Ethics in Washington (CREW), Trump’s businesses took in more than $160 million from international sources during his presidency.
He also got away with violating the constitutional authority given only to Congress to appropriate federal spending by stealing funds from the military to try to build his border wall. To be specific, he diverted $2.5 billion from the military’s construction budget to that wall project of his. In June 2020, a federal appeals court found that the administration had acted illegally. By then, however, the money had been spent and Trump’s tenure would soon come to an end.
Preserving the 14th Amendment
Undoubtedly, however, his determination to put the 14th Amendment in the trashcan of history should draw the most concern. The rights that U.S. citizens cherish — from basic civil and human ones to not being ruled by insurrectionists — are most strongly protected by provisions in that amendment. The struggle to constitutionalize equal rights was one of the most important for the Black community after the Civil War. In November 1865, for example, a “54-foot long petition signed by hundreds of men,” organized by the State Convention of Colored People of South Carolina, was submitted to Congress demanding “equal rights before the law,” “an equal voice,” and “the elective franchise.”
The first line of the 14th Amendment states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Known as the “birthright citizenship” statement, it has almost universally been interpreted to mean that anyone born within the territory of the United States is automatically a full citizen. More than 30 countries have the principle of “jus soli” (of the soil) allowing citizenship with no qualifications to, or restrictions on, those born there, regardless of the status of their parents. Among the countries with no restrictions are Brazil, Canada, Cuba, El Salvador, Guyana, Mexico, Tanzania, Tuvalu, and the United States.
That statement was included in the 14th Amendment specifically to revoke the Supreme Court’s pre-Civil War 1857 Dred Scott v. Sanford decision — one of the most egregious it ever made — denying citizenship and any rights to Black people in the United States. Chief Justice Roger B. Taney infamously wrote that Black people and their descendants “had for more than a century been regarded as beings of an inferior order… they had no rights which the white man was bound to respect.”
In the post-Civil War environment, that ruling clearly had to be corrected and so the 14th Amendment’s congressional authors wrote it in such a way as to include not just newly freed slaves but anyone born in the United States. (The one all-too-ironic and shameful exception was Native Americans who weren’t given legal citizenship until 1924 under the Indian Citizenship Act.)
Donald Trump has long expressed a deep opposition to birthright citizenship. He and much of the far right refer to it derogatorily as “birth tourism” and claim that thousands of women are coming to this country just to have children who would automatically become citizens. There should be no doubt that he and his followers are speaking of immigrants of color from the global South. When elected in 2016, he promptly declared that he would abolish birthright citizenship with an executive order. He was then informed that such an order would never stand up legally and only in January 2020 did he finally propose new rules for the State Department that were meant to stop it from issuing visas to visitors coming to this country supposedly for the purpose of birth tourism. It was notable, by the way, that the nations of Western Europe were excluded from those rules, which in any case were so vague as to be impossible to enforce without breaking laws on privacy. Ultimately, the consensus among scholars is that it would take a constitutional amendment to end what is now a constitutional right.
Yet Trump continues to declare that, should he win the presidency in 2024, one of his priorities will indeed be to abolish birthright citizenship. As he put it last year, “As part of my plan to secure the border, on Day One of my new term in office, I will sign an executive order making clear to federal agencies that under the correct interpretation of the law, going forward, the future children of illegal aliens will not receive automatic U.S. citizenship.” His contention that he has a “correct” interpretation of the law is distinctly in conflict with the history of past challenges to that amendment. Previous Supreme Courts, whether dominated by liberals or conservatives, have upheld birthright citizenship on numerous occasions, starting with the 1898 Wong Kim Ark case. Trump, of course, is betting that his three appointments to the court and at least two other conservative justices will finally break with such precedents.
Section 1 of the 14th Amendment also guarantees “due process” and “equal protection under the laws.” That “due process” clause was specifically meant to stop southern whites who returned to power in the post-Civil War era from passing state laws and enacting other policies that would legally treat newly freed Blacks differently. In the immediate aftermath of the war, however, “Black codes” were indeed enacted by pro-slavery whites in southern legislatures. As a result, Congress felt called upon to pass laws, known as the Enforcement Acts, meant to ensure that the 14th and 15th Amendments would be the law of the land and that the rights of Black people would be protected.
In 1896, equal protection for African Americans and other people of color would nonetheless be nearly trampled to death by the Supreme Court’s ruling in Plessy v. Ferguson. That decision, in fact, would sanction racial segregation thanks to a perverse interpretation of the 14th Amendment under the banner of “separate but equal” (which, of course, actually meant separate and distinctly unequal). Almost 60 years of Jim Crow segregation followed until, in 1955, the Supreme Court’s Brown v. Board of Education ruling reinterpreted the equal protection clause to ensure that “separate” could never be interpreted to mean “equal.”
Trump, however, has demonstrated strikingly little fealty to the principle of due process for all. From his 1989 call for the death penalty for five young Black and Brown men before they even had a trial to his threatening insistence that Hillary Clinton and others of his political opponents be jailed based purely on personal grievances and vendettas, he’s never faintly respected the constitutional rights of others. He’s called for protesters to be beaten at his rallies and mused that Black Lives Matter activists should be shot in the legs at demonstrations.
When it came to foreign policy and immigration policy, his administration (with his fervent backing) separated children from their parents in a fierce crackdown on undocumented aliens, while he demanded a “total and complete shutdown of Muslims entering the U.S.” In addition to the racism and cruelty of such policies, they plainly violated the equal protection clause of the 14th Amendment.
For the Civil Rights Movement and, more broadly, all movements for social justice and human rights in the United States, the equal protection clause has proven decisive. The 1964 Civil Rights Act and the 1965 Voting Rights Act were typically passed on the principle of “equal protection.” It was also the basis for ending bans on interracial marriage (Loving v. Virginia), providing abortion rights to women nationally (Roe v. Wade), and allowing same-sex marriage in every state (Obergefell v. Hodges).
As demonstrated by their rulings to end Roe, as well as affirmative action in university admissions (with the exception of military academies like West Point), Trump-appointed Supreme Court justices simply don’t believe in equal protection. For a candidate and party that brand themselves as proponents of “law-and-order” above all else, it’s clear that a reactionary version of “order” is significantly more important than fairness or the equal application of the rule of law to every citizen.
Insurrectionists Can’t Hold Office
Of course, as even certain conservative legal scholars have noted, Trump played a key role in launching the January 6th insurrection and, under the third section of the 14th Amendment, should be ineligible to run again for president. As that section reads, someone — an officer of state — who violates his or her oath “to support the Constitution of the United States” and who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” cannot hold office.
Thanks to Trump, millions of Americans now believe that he won an election he distinctly lost. Although he was told by most of his own experts and in dozens of court decisions that he had done so, he didn’t bother to share that information with his followers. Instead, he continued to foster misinformation and deep anger about that election. Without him, that crowd would never have gathered in Washington to “save America” and “stop the steal.” (“Be there, will be wild!” he tweeted to his followers.) Without him, its participants wouldn’t have gone to the Capitol. Without his exhortations that they needed to “fight like hell,” that crowd he was addressing at the Ellipse in Washington on January 6, 2021, might never have become quite so riled up.
Courts in Colorado and Maine have determined that Trump should not be allowed to stay on the ballot because of Section 3 of the 14th Amendment. In about half of the other states, cases have been filed to remove him due to his role in the insurrection (something on which the Supreme Court will seemingly soon rule).
Most telling, when it came to his cavalier disregard for constitutional rule, has been his claim that, since the oath of office he took as president only required him to “preserve, protect, and defend” the Constitution, he wasn’t obliged (as Section 3 demands) to “support the Constitution” on January 6th, a distinction only someone as venal as Trump would have made. But as CREW noted in response to the petition from Trump’s lawyers in the Colorado case, “The Constitution itself, historical context, and common sense, all make clear that the Fourteenth Amendment’s disqualification clause extends to the President and the Presidency.”
Even conservative lawyers J. Michael Luttig, Peter Keisler, Larry Thompson, Stuart Gerson, and Donald Ayer have argued in their amicus brief in the case that “Trump incited the threat and use of violent force as his last opportunity to stop the peaceful transfer of executive power.” They state unequivocally that he “had the intent that the armed mob, at the very least, threaten physical force on January 6, 2021, in response to his speech on the Ellipse.” And to be clear, as legal scholar and civil rights lawyer Sherrilyn Ifill argues in her brilliant amicus brief, Trump’s insurrection was targeted, in part, against the votes of African Americans.
No Understanding of, or Desire to Understand, the Constitution
In July 2016, as he was about to secure the Republican nomination for president, Trump had a closed-door meeting with House Republicans. In responding to a question about Article 1 of the Constitution that addresses the responsibilities, powers, and limits of the president, Trump stated: “I’m for Article I, I’m for Article II, I’m for Article XII.”
There are, in fact, only seven Articles in the U.S. Constitution.
From the day Donald Trump took office, he had no intention to “preserve, protect, and defend,” no less “support” the Constitution. Instead, he essentially ran roughshod over much of that document. And the issue was never simply his ignorance of the Constitution (though that should be taken for granted), but his outright hostility to it. That he has not yet been held accountable for that should be considered a disgrace in this era and will undoubtedly be seen as such by generations to come. Today, as in the years after its passage to defend the rights of the newly freed, the enforcement of the 14th Amendment remains as much a political question as a legal one.
In a sense, it couldn’t be simpler. President Donald Trump was an officer of the United States who incited and engaged in insurrection and so should be disqualified from ever again holding the office of the presidency. However, based on skeptical questioning by both liberal and conservative Supreme Court justices at the February 8th hearing on the case, it appears that the court will likely not allow Colorado or any other state to bar Trump from the ballot. If so, the Trump danger will continue — for now.
[Clarence Lusane, a TomDispatch regular, is a political science professor and director of the International Affairs program and majors at Howard University, and Independent Expert to the European Commission Against Racism and Intolerance. His latest book is Twenty Dollars and Change: Harriet Tubman and the Ongoing Fight for Racial Justice and Democracy (City Lights).]
Copyright 2024 Clarence Lusane. Cross-posted with permission. May not be reprinted without permission from TomDispatch.
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