Confederates in Congress - After the Civil War

The Constitution's 14th Amendment banned Confederates who'd "sworn allegiance" previously to the Union from future public service. Except when it didn't.

It’s funny when Civil War era history comes into vogue again. Courtesy of a woke four-member majority of Colorado’s Supreme Court, they’ve become perhaps the first court in the nation to apply the 14th Amendment’s clause prohibiting insurrectionists from federal public service, written and ratified three years after the Civil War in 1868.

But not against a Confederate soldier who once pledged allegiance to the United States - they’re all long dead, after all - but to former and possibly future President Donald Trump. They became the first court in the nation to invoke the 14th Amendment’s section three, disqualifying anyone involved in a rebellion or insurrection against the federal government, based on the January 6th, 2021, riot at the Capitol. You know, the one where a few hundred yahoos, a few armed with baseball bats (no guns), caused a delay in the certification by Congress of the 2020 Presidential election by several hours.

“Insurrectionist.” Obviously armed and dangerous.

The Department of Justice has spared no expense in detaining, charging, trying, and convicting these hardened criminals, starting with an Indiana grandmother taking selfies with friends and family where they weren’t supposed to be. This in no way diminishes or excuses the actual harm and unlawful destruction of property by rioters. But this was not an “insurrection” despite partisans claiming it was. Insurrection is defined by law (18 US Code 2383):

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

“It does not matter that Trump has never been charged with even incitement or that he called for his supporters to go to the Capitol to protest ‘peacefully,’” wrote Jonathan Turley, a George Washington University law professor.

If Trump were convicted of aiding or inciting an insurrection, the Colorado Supreme Court might have a point. But no rational, intelligent, or knowledgeable person can reasonably associate President Trump’s ill-advised and inflammatory speech of January 6, 2021, with the Civil War. Yet, millions do, including four Colorado Supreme Court Justices and the increasingly impaired 80-year-old incumbent President of the United States. It is delusional.

Colorado’s Supreme Court sleazily cherry-picked some of Trump’s more inflammatory remarks at the January 6th rally. It failed to cite his call for protesters to “peacefully and patriotically” make their voices heard.

Lots of ink has already been spilled about how bad this decision was by genuine Constitutional experts, including radio talker and Chapman University law professor Hugh Hewitt, who labeled the four Colorado justices voting to ban Trump from the ballot as an insurrectionist as “morons.” Turley, a self-identified Democrat who has never voted for Trump, called for the Supreme Court to quickly and unanimously reverse the decision. Even anti-Trump Washington Post associate editor and columnist Ruth Marcus, who still wrongly suggests that the events of January 6th were an “insurrection,” said the Colorado court erred in applying the 14th Amendment and agreed that the US Supreme Court should unanimously overturn the decision.

“The Colorado decision to bar Donald Trump from the ballot will be overturned because it is wrong on the history and the language of the 14th Amendment,” Turley wrote for the New York Post. “The question is whether the US Supreme Court will speak with one voice, including the three liberal justices,” he added, labeling the Colorado court decision as “shockingly anti-democratic theory.” Turley firmly asserts that the events at the Capitol on January 6th were a riot but not an insurrection.

Intelligent jurists take time to understand the context by which laws, especially the Constitution, were written. The Amendment’s ban on insurrectionists from public service was crafted by “Radical Republicans” focused on punishing the southern rebels. It took about seven years for Congress and a new President, U.S. Grant, to enact the broadly-worded Amnesty Act passed by Congress in 1872 that restored political rights denied by the Amendment. It is short and sweet:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), that all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

At least three very high-ranking Confederates, including two who were senior officials in the US Government before the war, returned to public service in several ways. Joseph Eggleston Johnston and Alexander Stephens are two examples. Confederate General James Longstreet is another. I do not associate Donald Trump with these historical figures, but stay with me as I illustrate a point, maybe two.

Only one other time in American history has the 14th Amendment’s ban on insurrectionists in public service been invoked by Congress against a Socialist elected to the US House in Wisconsin, Victor Berger, who had been convicted under the Espionage Act in 1918. Even though the Supreme Court overturned his conviction, the House refused to seat him in 1919 and again after he won a subsequent special election in 1920 over his lack of support for the US war effort during World War I.

Johnston, who graduated in the same West Point class as fellow Virginian Robert E. Lee, was the Quartermaster of the US Army and a brigadier general when the Civil War broke out. Previously, he served in the Mexican-American war. He was a native Virginian. When Virginia seceded from the Union, he was awarded command of the Army of Northern Virginia. He was partly responsible for the Confederates winning the first salvo of the war, the First Battle of Manassas (or Bull Run).

Confederal General and eventually Member of Congress Joseph E. Johnston

Johnston was severely wounded in a subsequent battle, resulting in Lee taking over command of his army. Johnston would eventually command the Army of Tennessee and famously battled the Army led by Gen. William Tecumseh Sherman in his “March to the Sea.” Johnston surrendered to Sherman in North Carolina several days after Lee’s surrender at Appomattox, Virginia, and President Lincoln’s assassination in April 1865.

Johnston died in 1891 after catching pneumonia ten days after serving as a pallbearer at Sherman’s funeral in a driving rainstorm. But before that, he was elected, in 1878, to one term in the US House of Representatives from Virginia. He did not seek reelection. His brother and a nephew also served in the US House. Later, President Grover Cleveland appointed Johnston Commissioner of Railroads.

A statue in the US Capitol’s statuary hall honoring former Confederate Vice President and Member of Congress Alexander Hamilton Stephens, courtesy of the State of Georgia.

He wasn’t alone. Alexander Stephens was also elected to the US House from Georgia in 1848, before the Civil War, and returned in 1873 upon enactment of the Amnesty Act. Stephens was later elected Governor of Georgia before departing this earthly plane in 1883.

Stephens served as the one and only Vice President of the Confederate States of America.

President Grant nominated, and the US Senate confirmed Longstreet as commissioner of customs in New Orleans. He later served as US Marshal for Georgia during the Rutherford B. Hayes administration and finally as Commissioner of Railroads during the William McKinley and Theodore Roosevelt administrations.

Colorado’s Supreme Court majority did not mention these or other former Confederates serving in public office after their rebellion. They said the Constitution’s 14th Amendment, Section Three, is “self-executing.” Remember that Section Five allows Congress, not states or their courts, to enforce it. The Amendment also allows Congress to exempt violators with a two-thirds vote (see: Amnesty Act).

As the three dissenting judges noted, the Colorado court also threw the Constitution’s “due process” doctrine out the window.

The Colorado Court’s election tampering is both alarming and mindlessly undemocratic and threatens to throw our legal system into chaos if allowed to stand. If they paid attention to history - not to mention a proper interpretation of the Constitution - they may have considered the division and harm to our democratic election process they spurred. No doubt, cheering throngs of mindless leftists will congratulate these four justices during holiday parties. They are already being feted by partisan sycophants at MSNBC and elsewhere.

This, at the same time the Biden Administration, at the behest of a bipartisan commission, is removing a reconciliation monument honoring Confederate dead at Arlington National Cemetery.

Instead of further undermining the integrity of, and public confidence in, our justice system, Colorado’s Supreme Court, as we approach Christmas, would be better served to remember what President Andrew Johnson did on Christmas in 1868. He pardoned thousands of former Confederates in a gesture of reconciliation and healing for actions that exceeded those of January 6th by many orders of magnitude. We would be better served by remembering and returning to that spirit of the Season.