How 'the resurgence' of civil war-era laws can smack down anti-democratic movements: experts

26 November 2023

As ex-President Donald Trump continues to aim for the 2024 presidency despite facing four indictments, many legal experts across the country are urging judges to utilize Reconstruction-era laws to block the MAGA hopeful's chances at succeeding this time around.

Per The Guardian, "The resurgence of these laws in recent years has surprised some observers, but proponents say they are strong tools to fight back against anti-democratic movements happening today. And there aren't more recent laws that deal directly with insurrection since the last major one happened during the civil war."

Historian Eric Foner told the news outlet "it makes sense to use existing laws from that time period because they haven't been repealed, despite the lack of use in the many decades since then, and reflect similar ideas to what’s happening today. The recent use of them shows just how strong the laws created by the Reconstruction Congress are."

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He says, "It's a political commentary on what is possible politically today. And it's an odd thing because it's considered more possible to resurrect these laws than to pass new ones."

Furthermore, The Guardian notes, "Beyond Trump, too, lawsuits using these Reconstruction-era laws seek to enforce voting rights and prevent discrimination in modern-era elections," as "The laws from this time period were designed, in part, to reintegrate the Confederate states back into the country and ensure that they did not yet again attempt to overthrow the government or pass laws to restrict newly freed Black citizens."

The news outlet points to the fact "section 3 of the 14th amendment, recently making headlines as various lawsuits attempt to use it to keep Trump off the 2024 ballot, makes it illegal for someone who was an officer of the US government to hold office again if they engaged in 'insurrection or rebellion.'"

Former NAACP Legal Defense Fund President Sherrilyn Ifill, who will soon open a center focused on the 14th amendment at Howard University School of Law emphasizes "judges need to show courage to enforce the amendment’'s provisions," saying, "They may not want to do it any more than I wanted to sue a president under the KKK Act, but their job is to apply the law to the facts and issue a ruling that is consistent with what the law demands."

Some judges have shown that courage, according to The Guardian. For example, despite the fact that "14th amendment lawsuits in Colorado, Minnesota, Michigan and Florida have been tossed, though many are still ongoing and those bringing the lawsuits are likely to appeal," a New Mexico judge recently "ruled that a county commissioner who had participated in the January 6 riots couldn't hold office any more because of the 14th amendment."

Protect Democracy lawyer Jessica Marsden said the "Reconstruction Congress created laws that were 'flexible and responsive to modern-day threats', making them applicable today and worth trying to enforce."

Ifill noted, "We have been compelled to use tools that we didn't use in the past or didn't need to use because we didn’t have the kind of threat and the kind of character prepared to break norms as we do now with Mr Trump and his confederates. We are in a moment of democratic crisis. Trump and his agenda and Trumpism is a unique threat to the core of American democracy. And I think that has sent everyone into the space that we have to use all of the tools that are available to us."

The Guardian's full report is here (subscription required).

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