April 12, 2024

but not unqualified

Today’s Events in Historical Perspective                                                                     
America’s Longest-Running Column Founded 1932
Unfit, but not unqualified
By Douglas Cohn and Eleanor Clift         
          WASHINGTON — Four Confederate generals served as generals in the Spanish-American War: Matthew Butler (US Sen. 1877-95) and West Pointers Fitzhugh Lee (Virginia Gov 1886-90), Joe Wheeler (US Rep. 1885-1900), and Thomas Rosser (George Custer’s roommate and best friend).
          Other Confederate officers served in Congress and state houses as well as in the Army, the 14th Amendment notwithstanding. It was not invoked against those former Confederates, although that had been the amendment’s original intent.
          The operative clause: “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. But Congress may by a vote of two-thirds of each House, remove such disability.”
          The granting of amnesty or pardons did not exempt such office-seekers.
          The actual history explains the confusion. Following the Civil War in 1865 the South was under Federal occupation a period known as Reconstruction. During much of this time most former Confederates were indeed foreclosed from public offices. By 1876, South Carolina and Louisiana were still occupied by Federal troops.
          But the presidential election of that year created a sea change. The Republican nominee Rutherford B. Hayes lost the popular vote to Democrat Samuel Tilden, and he faced an electoral vote challenge in four states. Instead of turning to the House of Representatives for a decision, the House created a panel of eight Republicans and seven Democrats to make the decision, and predictably they voted along party lines.
          This resulted in the Compromise of 1877 to withdraw Federal troops from the South in exchange for the presidency, and Hayes was sworn in.
          Thereafter, the 14th Amendment was ignored, and former Confederates reemerged in leadership positions throughout the South.
          Today, former President Donald Trump was deemed ineligible to run for the presidency in Colorado and Maine, and he is being challenged in several other states, all of these under the auspices of the 14th Amendment.
          However, he has not yet been convicted of insurrection or rebellion, and even if he is found guilty on such counts, history is on his side because the unenforced law must remain unenforced lest it be viewed as a political tool. The U.S. Supreme Court, bound by such precedent and already tilted by a 6-3 conservative majority, is going to side with Trump.
          Further, in each of the trials Trump now faces, all of them require unanimous verdicts, a near impossibility when a large portion of the population supports him.
          It may be obvious to anti-Trump voters that he is unfit to serve, but being legally unqualified to serve is another matter, and in the end, his candidacy is going to be decided at the ballot box, not in the courts.
          Eleanor Clift’s latest book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
          Twitter:  @douglas_cohn
          © 2023 U.S. News Syndicate, Inc.
          Distributed by U.S. News Syndicate, Inc.

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