An Ohio lawmaker, John Bingham, was the principal writer of the 14th Amendment to the Constitution — the one now determining the political fate of the front-running Republican candidate for president, former President Donald Trump.
The 14th Amendment has been monumental in impact and controversy from its inception. The equal protection clause in Section 1 of the amendment extended the protections in the Bill of Rights to all Americans.
None of the Confederate states would ratify the amendment extending civil rights to former slaves. Congress made ratification of this amendment a requirement for readmission to the United States.
Section 3 of the amendment forbids an officer of the United States from taking office if that person had participated in an insurrection.
Some believe the amendment excludes the president. According to Mr. Bingham’s foremost biographer, Gerard N. Magliocca, Indiana University Law School professor, the historical record says no such thing.
In a response to emailed questions from The Blade Editorial Board, he said he does not believe that Mr. Bingham intended for the president to be exempt from the stern dictates of that amendment.
Americans are divided on whether the riot of Jan. 6, 2021, constituted an insurrection, and notably, Mr. Trump has not been accused of that crime.
There are legal cases in 31 states at some stage of the process attempting to keep Mr. Trump off the ballot through the insurrection clause in the 14th Amendment.
Colorado and Maine have already blocked Mr. Trump’s access to the ballot, and the U.S. Supreme Court has taken up the case that will decide the intent of the 1868 amendment.
Mr. Magliocca has gained national recognition in recent months as an expert on the 14th Amendment because of Mr. Bingham’s principal authorship.
The historic records around the writing of Section 3 of the 14th Amendment have convinced Mr. Magliocca that the president is covered by the provision prohibiting government office to anyone sworn by oath to support the Constitution who engaged in insurrection or rebellion against the Constitution.
The amendment was written with the recently concluded Civil War in mind, and Section 3 of the 14th Amendment was written to keep Confederates out of federal or state office.
However, four years later, Ohio-born President Ulysses S. Grant signed a blanket amnesty restoring the rights of former Confederates to be elected to and serve in political office.
There was clearly violent activity at the Capitol on Jan. 6, 2021, and it fits the definition of insurrection. Indeed, Mr. Trump is charged with four felony counts for his role in attempting to impede the constitutional transfer of power through the riot that overran Congress.
Mr. Trump did not uphold his oath to preserve, protect and defend the Constitution with his action and inaction on Jan. 6th.
As Mr. Bingham explained in 1866 while campaigning for ratification of the 14th Amendment, “if you have violated a trust reposed in you, you should not again sit in our temples of justice.”
Mr. Bingham’s wisdom should not be lost in dusty history books. He served on the government’s three-person team that prosecuted the co-conspirators in the assassination of President Abraham Lincoln in 1865. And he made the closing argument in the impeachment of President Andrew Johnson. The Cadiz, Ohio, congressman was a giant in a turbulent era and has shaped the United States more than a century after his death.
But as President Grant saw at the time, barring individuals from office hardened rather than changed public opinion. Certainly Mr. Trump did no worse crime against the Constitution than the treasonous rebels who made war on the United States.
It’s the expert opinion of Mr. Magliocca that Mr. Trump is covered by the amendment and needs an amnesty provision approved by a two-thirds vote in each house of Congress to legally qualify to hold any office bound by oath.
Congress should make the Supreme Court case a moot issue by proactively extending amnesty to Mr. Trump assuring him ballot access and avoiding the equally bad alternatives of making Mr. Trump a martyr or the Supreme Court an enabler.
Mr. Trump should be pardoned.
The decision to keep Mr. Trump away from the awesome power and responsibilities of the White House should be made by voters.
First Published January 15, 2024, 5:00 a.m.
