1868 and 2024: The Relevance of the Past to the Present

Abstract

The historical circumstances surrounding the presidential election of 1868, the first after the ratification of the Fourteenth Amendment, shed light on a crucial question in the Colorado case pending before the U.S. Supreme Court concerning whether Donald Trump is disqualified by the amendment. The question is whether Congress must enact a statute to enforce the amendment’s disqualification provision before any state legislature may adopt its own statute to provide a procedure to adjudicate whether a presidential candidate is disqualified by the amendment. In considering this question, it is worth reflecting on the possibility that in 1868 the Democratic party might have chosen Clement Vallandigham as its presidential nominee. Vallandigham, a former member of Congress from Ohio and a leader of “peace Democrats” during the Civil War, sought a seat in the U.S. Senate after the war, but his candidacy provoked a debate on whether his conduct during the war disqualified him from serving in office again. If Democrats had nominated him for president in 1868, when there was not yet a federal statute creating procedures for the enforcement of the amendment’s disqualification provision, state legislatures would have had authority under Article II of the Constitution to enact their own statutes to provide for an adjudication of the amendment’s applicability to Vallandigham in order to prevent the presidential electors appointed pursuant to state law from voting for a disqualified presidential candidate.

Keywords: disqualification, section 3, Fourteenth Amendment, Vallandigham, Griffin, Reconstruction, Trump, presidential election