The timeless language of the Constitution

And the other stuff

Was the Constitution written for a moment in time or for all eternity? 

The few dozen men who contributed to its writing considered their effort a response to an emergency. America was falling apart not half a decade after winning independence from Britain. Unless something were done, they believed, the thirteen states would fall to bickering and fighting and might be picked off one by one by foreign adversaries. The Constitution they wrote must prevent this dire outcome, and do so quickly.

At the same time, they didn't want to repeat the failure of the Articles of Confederation. Ratified in 1781, the Articles had carried the United States to victory in war but permitted chaos, or something approaching it, in peace. The framers of the Constitution were engaged in overthrowing the Articles; they didn't want their handiwork to have to be overthrown after a similarly brief tenure.

They almost certainly would have been surprised to know we are still living under their Constitution more than two centuries later. They probably would have been flabbergasted to discover that many Americans treat the Constitution as holy writ. This would have puzzled them the more given that within their own lifetimes, substantial parts of the document were junked or simply rendered obsolete.

Some of the obsolescence was predictable, assuming the Constitution didn't self-destruct. Article 2 specifies that a president must be a natural born citizen or a citizen at the time of the adoption of the Constitution. The second half of this condition had a lifespan equal to the lifespan of whoever happened to be alive in 1789. By about the middle of the 19th century, no one gave it a thought. 

Parts that had to be junked included another portion of Article 2, explaining how the president and vice president would be elected. When the original system of electoral voting, in which each elector had two ballots cast without distinction between president and vice president, produced a tie between Thomas Jefferson and Aaron Burr, which led to Federalist intrigues that might have derailed the new government, the 12th Amendment drew a red X through the offending section.

The 13th Amendment made anachronistic the artful language about “other persons” the original Constitution employed to avoid mentioning slavery by name.

The 15th Amendment obviated the convoluted part of the 14th Amendment that was designed to prevent the erstwhile Confederate states from gaining representation in Congress by virtue of the emancipation they had fought to prevent.

Which brings us to Donald Trump and the 14th Amendment (without forgetting that the 21st Amendment stamped “Never mind” on the 18th). Section 3 of the 14th Amendment has been much in the news, as people who would not like to see Trump again president have argued that this section disqualifies him. The section declares, “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.”

Those who would disqualify Trump assert that after taking his oath as president he engaged in insurrection in January 2021 and therefore cannot hold office in the future.

Trump’s defenders say that what he did on January 6 was not insurrection, and certainly has not been found to be by any court of law. Anyway, the presidency is not named as an office from which insurrectionists are barred, where other offices are named. Hence Trump is not disqualified from being president again.

The case has been argued in several states in the context of primary elections there, producing a split decision. The Supreme Court has agreed to take up the matter. The justices will bring their own views to the case and render a verdict.

They will weigh two questions of particular interest to students of of history. First, why did the drafters of the 14th Amendment list senators, representatives and electors but not the president? Second, why did they not define insurrection or instruct Congress to pass supporting legislation for that purpose?

Beyond these two questions is the more general question of whether the framers of this part of the Constitution were writing for the moment or for the ages.

Consider the moment in which they were writing. The rebel states were resuming their places in the Union. They were electing senators, representatives and presidential electors. Absent some kind of bar against ex-Confederates, the same individuals who had tried to destroy the Union might soon wield substantial influence in its government. To those who had stood by the Union in its hour of peril, this was intolerable.

So why was the presidency not listed as an office to which the former rebels could not be elected? And why was insurrection not defined?

If the framers were writing for the ages, these questions are hard to answer. Certainly the framers didn't overlook the presidency. Certainly they didn't consider the president less important than senators, representatives and electors. And it would be bizarre if, having named those three categories of federal officers, they left it for readers to infer inclusion of the president from the catch-all phrase “any office, civil or military.”

Likewise, if the framers of the 14th Amendment were writing for the ages, it would have been negligent in the extreme for them not to define insurrection or instruct Congress to do so. Many of them were lawyers. They knew a fatal loophole when they saw it.

On the other hand, if this part of 14th Amendment was written for the moment, its wording makes perfect sense. The framers didn't include the presidency because they knew there wasn’t a chance in the world any ex-Confederate would be elected to the highest office in the United States. Abraham Lincoln's 1860 election revealed the electoral power of the North and West. As long as the generation that had defeated secession—at great cost—lived, there would be no southerners elected president. (As it turned out, the ban on southerners endured until Lyndon Johnson was elected in 1964.)

Likewise for the lack of definition of insurrection. The framers of the 14th Amendment were thinking not of insurrections future but of the great insurrection just past. And the test for participation in that insurrection was simple: Had the individual fought for the Confederacy or held civil office in the Confederate government or the government of one of the Confederate states?

It's not impossible to argue that the framers of the 14th Amendment were thinking as much about what might happen in the distant future as about what had happened in the recent past. Lawyers torture text and strain credibility every day; that's what they get paid to do. But in this case they'll have to work hard to earn their money. 

They might take another tack. There's more to constitutional interpretation than what the framers intended. Other parts of the 14th Amendment have been stretched far beyond what the words seemed to say in 1868, the year the amendment was ratified. “Due process" became “substantive due process." “Equal protection" erased the boundary between state authority and federal authority.  Corporations were granted personhood. 

Don't expect similar stretching from the present Supreme Court. Members of its conservative majority lean toward original intent as a guide to interpreting the Constitution. Other considerations aside, that lean is almost certain to yield a verdict that if Donald Trump is to be kept from returning to the White House, voters are going to have to do it themselves.