When Congress passed the Fourteenth Amendment in 1868, it focused on embedding the civil rights of the formerly enslaved in the Constitution. But the framers of the amendment also included a clause meant to keep those who served the Confederacy from holding public office.
This “insurrection clause” of the U.S. constitution —Section 3 of the Fourteenth Amendment—disqualifies anyone from holding public office who “engaged in insurrection or rebellion” against the United States. It’s this clause that the Colorado Supreme Court invoked to strike Donald Trump’s name from the Republican primary ballot. Not surprisingly, Trump has fought back, taking his case all the way to the federal Supreme Court.
In front of the Supreme Court, the legal team of Donald Trump has tried to argue that the specific language of the clause doesn’t apply to the former president. The clause, Trump’s lawyers argue, refers only to those who took oaths to support the Constitution “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.” Donald Trump was the president of the United States, they say, not an “officer.”
It’s really quite remarkable that the Supreme Court hasn’t laughed this argument out of the courtroom (as a lower court essentially did when Trump’s legal team claimed he had total, king-like immunity from prosecution). The drafters of the Fourteenth Amendment didn’t specify “president” because they couldn’t imagine that the head of the United States would foment a rebellion against those same United States. They were addressing the specific reality of the Civil War, in which President Lincoln was trying to hold together “a house divided.” To put “president” on the list of people barred from holding office would have seemed ridiculous: the president was logically the defender of the nation, not its saboteur.
How the framers of that amendment would have shuddered at the spectacle of January 6.
But plenty of countries in Latin America have faced precisely that scenario, of a leader or former leader who has used force to seize absolute power. And that’s why the Brazilian case is so important. While Americans are debating esoteric clauses of the........