Counterpoint: Civil War generation knew what protecting democracy required

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Marshall Tanick’s cavalier suggestion that the nation should unite around repeal of Section 3 (”Why we should repeal Section 3,″ Opinion Exchange, Jan. 24) might come as good news to former President Donald Trump, but it does a disservice to America’s political and constitutional history.

For those who ratified the 14th Amendment, it was the political sections — Sections 2 and 3 — that were front of mind. The judgment of the nation at the time of the “second founding” after the Civil War should not be lightly set aside.

In brief, in the aftermath of the Civil War, treasonous leaders of the rebellion, many of whom were pardoned by President Andrew Johnson, returned to public office. Unable or not wishing to punish treason directly, the Republican Congress proposed Section 3 to reform the South and heal the nation by barring designated rebels from holding office (state or federal) until Congress lifted the disability.

Tanick seems to say that a regime founded in political violence is OK if that is “the kind of government [the public] wants, and deserves.” But the collective judgment of those who lived through the nation’s greatest crisis of political violence and who crafted and ratified Section 3 says otherwise. The Klan might have wanted a government of ex-rebels that would oppress the Black population but, at least for a time, the Constitution stood in the way.

A rhetoric of violence has always permeated Trump’s messaging. The shock of Jan. 6, 2021, will live with us forever. Today the greatest internal threat to national security is domestic terrorism, and the nation is awash in military-grade weapons. Section 3 has never been more relevant or more important.

The current hodgepodge of suits to disqualify Trump or others under Section 3 obviously needs to be addressed by federal legislation that defines terms and establishes federal court jurisdiction over suits to declare who is covered by Section 3. The federal courts are more than up to the task.

Rather than abandon the wisdom of the second founders, the nation should embrace it. A significant issue in this and coming elections should be whether candidates for Congress and other offices stand squarely against political violence and support legislation to enforce Section 3.

Let the people decide in this way whether they want to turn away from cat-and-mouse flirtation with fascism.

Let the people also decide whether they want to end the flirtation with state legislatures usurping the right of the people to elect presidential electors. Section 2 of the 14th Amendment mandates the loss of all but three Electoral College votes for any state whose legislature deprives the people of the right to choose presidential electors.

Conservative scholars found recently that both Section 3 and Section 2 are self-executing. It follows that if a legislature usurps the right of popular election, Congress can simply not count more than three electoral votes, without the need for federal legislation.

There is precedent for this remedy. In 1824, Sen. Thomas Hart Benton, a leader of the electoral reform movement, said Congress should not count any electoral votes from usurping states. A close ally of reform was Rufus King, who had been a leading member of the Constitutional Convention and was one of the most respected members of Congress. From 1816 to 1824, with “cordiality and zeal,” Sen. King maintained on the floor and in committee that legislative election is pernicious and was not intended by the framers or by the nation that ratified the Constitution. The records of the convention and the documentary history of the ratification substantiate King’s recollection.

As with Section 3, Congress should pass legislation enforcing Section 2. Whether candidates stand with the nation’s second founders should be an issue in all federal elections.

Mark Bohnhorst, of Minneapolis, is a retired public sector attorney.