January 5, 2024 - 6:00pm

This week, Joe Biden met with several senior US historians to discuss “American history and its bearing on the present”. The President is giving a speech today, with plans to “sharpen his attacks” on Donald Trump over his role in events three years ago tomorrow. It is a different insurrection, however, which is drawing the attention not just of historians but also of judges — the American Civil War and its aftermath, known as the Reconstruction Era — with important ramifications for the upcoming presidential election.

Reconstruction was inaugurated by President Abraham Lincoln in the final speech of his life, delivered two days after the surrender of General Robert E Lee’s Confederate forces. Lincoln called for the “re-inauguration of national authority – reconstruction”. Four days later, on Good Friday, Lincoln was shot in the back of the head and killed.

The current era is sometimes known as the “Second Reconstruction”, beginning roughly in the 1960s with the gains of the civil rights movement. As I argued in my book The End of the Second Reconstruction, the parallels between these two periods are glaring. Both were characterised by substantial constitutional and legislative civil rights achievements, such as the expansion of minority representation, but uneven economic gains. These advances were undone by a toxic mix of intense partisan polarisation, judicial activism, and sabotage at the ballot box, worsened by political violence. 

The keystone of both Reconstructions is the Fourteenth Amendment, which was ratified in 1868 and is unlike any other part of the US Constitution. It affords the federal government profound centralising authority, grants equal protection regardless of race, and has been responsible for the legalisation of abortion, same-sex relationships, and contraception. 

The Fourteenth Amendment also had a punitive edge, with potentially very significant consequences in the upcoming presidential election. Section 3 of the Amendment bars anyone who had sworn an oath to the Constitution but then “engaged in insurrection or rebellion against the same” from subsequently holding public office. 

Section 3 is controversial because it does not adequately define “engaged in insurrection”. This proved problematic during the First Reconstruction after Congress began issuing thousands of pardons to affected politicians. In 1872, they passed a general Amnesty Act, which removed the disqualification on all but the most senior insurrectionists. Yet by 1898, all insurrectionists were pardoned by Congress. 

This is all relevant today because Section 3 has been reinvoked for the first time in over a century to disqualify Trump from the ballots of Colorado and Maine. Other states may follow. The US Supreme Court will need to consider how Section 3 should be applied. 

Under one reading, Section 3 is self-enforcing. If Trump so clearly committed an insurrection on 6 January 2021, like Confederate President Jefferson Davis did in the 1860s, then it is purely an administrative decision about whether to leave him off the ballot. Election administrators regularly disqualify ineligible individuals from the ballot if they are, for example, too young or not a citizen.

The more likely reading is that the Supreme Court will either require some kind of conviction of Trump for engaging in insurrection or a request to Congress to pass new enforcement legislation. It is unlikely that either of these will happen before this year’s election, giving Trump a free run for the presidency. 

America is caught once again in a moment of intense political polarisation. There may not be another civil war, but trouble lies ahead.

Richard Johnson is a Lecturer in US Politics and Policy at Queen Mary University of London.