The Fourteenth Amendment Wasn’t a Creative Writing Exercise
The story of the coward and traitor John B. Floyd.
Two pieces of quick news:
(1) Amanda Carpenter is going to join me on the livestream tomorrow night! ALL CAPS Amanda makes her triumphant return!
(2) We’re leaving this edition unlocked and open for everyone because we think it’s important. If you agree and you’re not a member already, I hope you’ll consider joining Bulwark+.
We’ll give you a month free to decide if you like it. But you’re going to love it.
1. The 14th
I’m a ball of conflicting views on the attempt to use the Fourteenth Amendment to remove Trump from the ballot. One thing I am not terribly conflicted about is the original intent of the Fourteenth Amendment and the extent that it applies extremely well in the case of Donald J. Trump.
Maybe the strongest argument yet made on this score comes from an amicus brief filed by Akhil and Vikram Amar.
You can read it here if you want the original. I’m going to sum it up for you because they tell a long and complicated story about the run-up to the Civil War and the drafting of the Fourteenth Amendment following it.
The Amars begin by noting that many seemingly random provisions in the Constitution were written as counters to specific concerns. For instance, “Article I’s rules for congressional membership were crafted with Englishman John Wilkes in mind.”
The Fourteenth Amendment, the Amars explain, was written in response to two specific events: not just the Civil War, but also the First Insurrection, which took place from December 1860 through January 1861, before the outbreak of the Civil War.
Here’s what happened in the First Insurrection:
John B. Floyd, a slave owner from Virginia, was President James Buchanan’s secretary of war.
Lincoln won the election in November 1860 and became president-elect while Floyd was still President Buchanan’s secretary of war.
During the interval between Lincoln’s election and inauguration, Floyd worked to (a) weaken American forces so that Confederate troops could easily take a number of forts located throughout the South and (b) prevent the peaceful transition of power to Lincoln.
Here is Ulysses Grant’s summary of what Floyd did during that period:
“[He] scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.”
Before serving as secretary of war, Floyd had sworn an oath to uphold and defend the Constitution, as all high officials do. But with Lincoln’s ascent he violated that oath: He became a Confederate brigadier general who commanded Tennessee’s Fort Donelson.
Floyd also participated in an attempt to have violence at the U.S. Capitol prevent the unsealing of electoral votes. His successor in the war department, Joseph Holt, explained what he found upon taking up the office thus:
“[M]en in high political positions here . . . were known to have intimate affiliations with the revolution—if indeed they did not hold its reins in their hands—to the effect that Mr. Lincoln would not, or should not, be inaugurated at Washington.”
I can’t believe I was never taught about this cretin in high school history.1
2. Oaths
The Amars explain that you can’t really use “democracy” as your lodestar when trying to adjudicate the Fourteenth Amendment case regarding Donald Trump’s appearance on presidential ballots:
“[D]emocracy” is on both sides of this case. For some, excluding an immensely popular political figure from the ballot is profoundly undemocratic. But, for others, what is truly undemocratic is empowering a uniquely dangerous demagogue who has already disobeyed his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists. The tension between these two clashing visions can be resolved only by attending to the Constitution’s own specific implementation of “democracy,” which itself was the product of a great democratic process after a series of insurrectionary and democracy-imperiling events in the 1860s.
And that’s the rub.
The Fourteenth Amendment wasn’t a creative writing exercise. It was drafted carefully in response to specific concerns about actions that real men had taken in the real world, just a few years prior.
John B. Floyd was one of those men, and his actions map remarkably well onto Donald Trump’s actions during the period between November 2020 and January 2021.
Section 3 of the Fourteenth Amendment was written expressly to prevent men like Floyd from returning to power because they had violated their oath of office and could not be trusted if administered the oath again.
Section 3. 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.
At the end of the day, the Supreme Court is a political, not a legal, body. Its political judgment will probably be that disqualifying Trump from the presidency will cause too much pain to be palatable.
But in so doing, they will essentially strike down Section 3 of the Fourteenth Amendment. And one more of our guardrails will have been removed.
I am not the first to notice this, but it has been instructive watching the progression of authoritarianism in America. We have a series of guardrails built to deter it and the fortress they created seemed impregnable. Before 2016, it had never occurred to me that authoritarianism was even possible in America, absent some wider cataclysm.
But it turns out that if the authoritarian confronts these guardrails one at a time, then his partisans will say that this particular guardrail must be ignored, because it would be too inconvenient—but not to worry, because the next guardrail is already on the horizon. And that will stop him.
Don’t worry about his nomination, because he’ll lose.
Don’t worry about his election, because the party will keep him in check.
Don’t worry about the party succumbing to him, because he could always be impeached.
Don’t worry about impeaching him, because you can always beat him in the next election.
Don’t worry about his coup attempt, because he can be impeached again.
Don’t worry about the second impeachment, because the criminal courts can try him.
Don’t worry about the criminal cases, because there’s the Fourteenth Amendment.
Don’t worry about the Fourteenth Amendment, because if he wins he’ll be constrained by the Twenty-second Amendment.2
The only guardrails our system is willing to enforce are notional.
Trump’s genius is that he realized this truth long before the rest of us did.
3. Hell’s Bells
Iranian agents hiring an American biker gang to do assassinations sounds like a rejected Burn Notice script. But here we are.
A federal indictment and the sanctions Treasury’s Office of Foreign Assets Control and the United Kingdom target a network of assassins led by Naji Ibrahim Sharifi-Zindashti, an Iranian narcotics trafficker operating on behalf of Iran’s Ministry of Intelligence and Security. The sanctions alleged that the paid-for-hire assassins funded by Iran were sent after regime dissidents and opposition activists across the globe.
American officials say Zindashti’s network has carried out assassinations and kidnappings around the world since 2017 in an attempt to silence critics of the Iranian regime. His network has been linked to murders in the United Arab Emirates, Canada, and Türkiye.
Between December 2020 and March 2021, Zindashti, along with Canadians Damion Patrick John Ryan and Adam Richard Pearson conspired to murder two Maryland residents. The indictment said that one of their targets previously fled to the U.S. after defecting from Iran.
Zindashti used “SkyECC,” an encrypted messaging service to recruit assassins to travel into the U.S., carry out the killings, discuss the identities and locations of the would-be victims, plan logistics of the murders, and negotiate payment, according to the Department of Justice.
Floyd was such a villain that, facing defeat in Tennessee in 1862, he resigned his command in the field so that he could run away and avoid being captured and arrested by Union forces. Jefferson Davis relieved him of command after he made his way to Nashville, because he was such a coward that he was useless to the Confederate cause.
An early keyboard warrior.
I promise you that if Trump is elected and starts making noise about a third term, the first response of Conservatism Inc. will be to wave it away as meaningless. But the minute they realize it’s serious, they’ll say not to worry about it because he’s so old that he wouldn’t make it through another term.
MAGA: Moved All the Goalposts Again
I would argue there were people that warned of this kind of guardrail breaking before Trump but they were often seen as “hair on fire” types and ignored.
As a 64 year old gay person, this version of the Republican Party was quite easy to envision when they embraced the Moral Majority and started using “Religion” as a reason to create legislation and pass laws.