There’s really no choice
The Fourteenth Amendment to the US Constitution, adopted on July 9, 1868, was intended to bolster the Reconstruction efforts of the victorious but still fragile Union. The Amendment granted citizenship to all persons born or naturalized in the US — including formerly enslaved people — and guaranteed all citizens “equal protection of the laws.” It has been highly controversial over the years, but it has also formed the basis for many landmark Supreme Court decisions, including decisions regarding racial segregation, abortion, and same-sex marriage.
Critical to the health and strength of the Union, the Amendment also included provisions governing the apportionment of Congressional seats, constraints on the political power of the former Confederate States, and the repudiation of Confederate war debt. The former Confederate States were opposed to the Amendment, as was President Johnson, but the former insurgent states were forced to ratify it in order regain representation in the new Congress.
Broad resistance in the South made it clear that reintegration of the Southern states along with the four million newly-freed people into the US would be difficult. Angered over the passage of restrictive “Black Codes” in these states, Congress overrode Johnson’s veto to pass the Civil Rights Act of 1866 in order to codify enforcement of the newly ratified Thirteenth Amendment, which abolished slavery, and to protect the rights of Black Americans.
Outrage in the North over these codes bolstered the Radical Republicans, the abolitionist wing of the Republican Party, and led to passage of the Reconstruction Act of 1867, under which newly enfranchised Black people gained a voice in government, winning election to Southern state legislatures and even to Congress. But it was clear that more action would be needed to protect these gains, if state and local governments in the South were going to be run by former Confederates. In the words of Pennsylvania Representative Thaddeus Stevens, if Congress is “filled with yelling secessionists and hissing copperheads,” Reconstruction would fail.
Importantly, Section 3 of the Amendment gave Congress the authority to bar public officials who took an oath of allegiance to the US Constitution from holding office if they “engaged in insurrection or rebellion.” Congress was intent on preventing the former leaders of the Confederacy from regaining political power. A two-thirds majority vote in Congress was required to lift this restriction.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. — Section 3, Fourteenth Amendment
In a gesture of reconciliation, Congress passed the Amnesty Act of 1872, lifting most of the restrictions against former Confederates holding office. Within just a few years, however, the Lost Cause ideology took hold and reactionary forces — including the Ku Klux Klan — restored the reign of white supremacy in the South and ushered in the era of Jim Crow.
According to Yale University historian David W. Blight, there have been numerous lost causes in modern history, where a political or wartime loss is glorified by the defeated as a source of pride and shared animosity toward the victors. In the aftermath of the Civil War, Southerners sought to rationalize the Confederacy and restore its legacy with an alternative history and understanding of the war. Similarly, Nazi’s sought to scapegoat Jews, leftists, and others for Germany’s loss in World War I.
Lost Cause ideology in the South posits that the root cause of the war was a Constitutional crisis over states’ rights, not slavery. According to Atlanta History Center’s Confederate Monument Interpretation Guide, the movement claims that slavery was not the central cause of the Civil War. Instead, it says the primary motivations for secession were threats to the Constitution and the principle of states’ rights.
Nikki Haley echoed these beliefs with her comments at a campaign town hall when she claimed, “I think the cause of the civil war was basically how government was going to run, the freedoms and what people could and couldn’t do.” Haley, who has been walking this tightrope for her entire career, was unable in that moment to identify slavery as the central cause of the Civil War. (In the Declaration of Causes of Seceding States, Mississippi states plainly, “Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.” South Carolina’s declaration enumerates explicitly the innumerable ways in which “an increasing hostility on the part of the non-slaveholding States to the institution of slavery” had undermined their “right of property in slaves.”)
In 2015, Haley supported removal of the Confederate flag from the South Carolina capitol building following the murder of nine Black church members by white supremacist and neo-Nazi, Dylann Roof. But on the campaign trail, where she is vying for every MAGA voter she can get, she was unwilling to link the Civil War with slavery. She and the party are complicit in trying to reject these views in the mainstream while still giving aid and comfort to Lost Cause adherents.
It’s not woke to call out the institution of slavery as a blight on our history. It is, in fact, a moral imperative to recognize the inhumanity of slavery and not to suggest that enslaved people were happy or even content in bondage. Even though Ron DeSantis was eager to skewer Haley for her bungled comments, in his own anti-woke education campaign in Florida, he endorsed a curriculum that puts a positive spin on slavery, suggesting that enslaved people “developed skills which, in some instances, could be applied for their personal benefit.”
This rebranding of slavery, so essential to Lost Cause ideology, is the perspective that I learned in my eighth-grade Georgia history class. My teacher actually told us he identified as a “Dixiecrat.” The Dixiecrats, or the States Rights Democratic Party, were a splinter group of white Southern Democrats, formed in 1948, who were upset by the desegregation policies enacted under President Harry Truman. The Dixiecrats nominated South Carolina Governor Strom Thurmond to run against Truman. Despite winning most of the Deep South, the splinter party collapsed after Truman won re-election. Thurmond later became a Republican in the 1960s.
We stand for the segregation of the races and the racial integrity of each race…. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights. — Article 4, Platform of the States Rights Democratic Party
Lost cause narratives can be extremely powerful. The beliefs of the Confederate Lost Cause are obviously not universally accepted in the South, but over the generations, despite the lies and falsehoods at its core, the central mythology of the Lost Cause has become embedded in its culture and identity. In 1979, my history teacher still felt free to champion the virtues of the Dixiecrats. I suspect similar sentiments are expressed in many Southern classrooms today.
Lost Cause adherents have masterfully capitalized on the trauma of defeat and the dishonor of the Reconstruction period, advancing a politics of grievance into retribution and resurgence, replacing the stain of the Confederacy with rose-colored pride and sentimentalism. The Lost Cause focuses on the valor of the fight, ignoring the ignobility of the cause.
Donald Trump has created his own Lost Cause movement, replete with a mythology of miscarried justice and deep state corruption. Victors and villains have been recast. Convicted insurrectionists are now “hostages.” History has carefully been rewritten to prepare for this election and Trump’s resurrection.
In Anderson v. Griswold, the Colorado Supreme Court held that Section 3 of the Fourteenth Amendment prohibits Donald Trump from ever serving again as president of the United States. Among other things, the Court held that the disqualification provision of Section 3 is self-executing; that the events at the US Capitol on January 6, 2021, constituted an “insurrection;” that President Trump “engaged in” that insurrection by his own actions; and that his speech inciting the crowd on that day was not protected by the First Amendment. Accordingly, they concluded, Trump is disqualified from holding the Office of President, and it would therefore be a wrongful act for the State to place him on the ballot.
Writing for The Atlantic, George Conway points out that even the dissenting opinions conceded that the events of January 6th were an insurrection. They also seemed to concede that Trump had engaged in the insurrection. Their arguments instead focused on aspects of jurisdiction, legal process, and state law. Conway observed that the dissents were “gobsmacking — for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.” If this is the best Trump has, he concluded, he had better do better, and fast.
The case is headed to the Supreme Court and will be heard on February 8. Trump’s lawyers will argue that Section 3 does not apply to presidents, that the question of presidential eligibility is reserved to Congress, and that Trump did not participate in an insurrection. These arguments seem no stronger than those of the dissenting Colorado justices.
Emotions are running high in this debate. And even Trump’s most vocal opponents are conflicted about how the Court should rule. Some fear more vitriol and violence from the right. Some believe Biden’s chances of victory are better against Trump than other candidates. “Keeping Mr. Trump off the ballot could put democracy at more risk rather than less,” the law professor Samuel Moyn warned in The New York Times. “To deny the voters the chance to elect the candidate of their choice … would be seen forever by tens of millions of Americans as a negation of democracy,” the New York Magazine columnist Jonathan Chait wrote. But Section 3 clearly deems certain conduct outside the bounds of what’s acceptable for public officials in a democratic society, and the law must apply to Donald Trump as it would to anyone else. And if he’s prepared to bring violence upon the country as a failed presidential candidate, imagine what he’d do with the power of the office behind him.
That Trump’s Lost Cause is fighting this little-known Reconstruction era provision that was itself a defense against the Confederate Lost Cause is beyond ironic. On January 6th, the insurrectionists shrouded themselves in the imagery of the Confederacy, including its flag. What would the man pictured here say the Civil War was fought over? Slavery? States’ rights? Cultural heritage?
I started writing and sharing my essays in late-2020 as a way to cope with the stress and divisiveness of the last election. I have tried in these years to focus on themes of optimism and common sense in my attempts to build bridges. I look for the ways in which we are more alike than different. I believe deeply in the promise of this country and have written regularly about the radical and beautiful ideals upon which this country was founded, even while discussing the ways in which we’ve fallen short of those ideals and can do better. Around some issues, however, there must be a bright line. Protecting our democracy is one of them.
A majority of Americans, it seems, are disappointed at the prospect of another match-up between Trump and Biden. Some don’t want to relive the stress and bitterness of the last election; others say we have two equally bad choices. I can understand the former, but not the latter.
Maybe you are a Democrat who thinks the party should support a competitive primary, maybe you think the country can do better, maybe Biden just isn’t your first choice. All that is reasonable, but regardless, if these are our choices, then the choice is clear — and it’s not a choice between the lesser of two evils. It’s a choice for the future of our liberal democratic republic against a dark lurch into an increasingly illiberal, possibly authoritarian, future.
