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One of the studies cited as important by Baude and Paulsen is “Amnesty and Section Three of the Fourteenth Amendment”, by Gerard N. Magliocca (Constitutional Commentary, University of Minnesota Law School, Spring 2021), Magliocca writes that the Joint Committee on Reconstruction cited this reason for Section Three:
“Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. The tendency of continuing the domination of such a class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result.
Let me change one word, so that this excerpt now reads”
“Capitalism, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. The tendency of continuing the domination of such the capitalist class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result.”
Now note that the Confederates had “exclusive possession of political power” in only some of the recently defeated Confederate states, not in the entire nation. So, the northern Congressmen and Senators were clearly intent on eliminating, or at least blocking, the political power of former Confederate factions in specific states. Which raises the question, does the Congress have the power to intervene politically in the internal affairs of a state of the Union? Magliocca addresses this directly on pages 98-99. After being readmitted to the Union,
…in 1869 Georgia was kicked out of Congress for expelling all of its Black legislators and not its white legislators who were ineligible under Section Three. President Grant asked Congress to takeaction to enforce “the third clause of the fourteenth amendment.” Congress then directed the Governor to summon the state legislature into special session and require all members to swear that they were eligible or were “relieved, by an act of the Congress of the United States, from disability as provided for by section three of the fourteenth amendment to the Constitution of the United States.” Through Section Three, therefore, Congress and the Executive Branch were now deeply involved in internal state politics.
Magliocca mentions the Guarantee Clause of Article IV (“[T]he United States shall guarantee to every State in this Union a Republican Form of Government . . . .”) as one basis for the federal government intervening in the internal affairs of a state. (See Arthur E. Bonfield, “The Guarantee Clause of Article IV, Section 4: A Study in Constitutional Desuetude” (pdf), 46 Minnesota Law Review 513 (May, 1961) ).
Tellingly, Baude and Paulsen do not mention the Guarantee Clause. This makes sense, because Baude and Paulsen are conservatives affiliated with the Cato Institute, and my argument is that conservatives are engaged in tearing down the spirit of republicanism so as to provide as much freedom as possible to the capitalist class.
This, of course, brings up a question most Americans will ask: Well, isn’t the United States supposed to be capitalist? Isn’t that what the Constitution is all about? The answer will surprise most people, and shock many: actually, there is nothing in the Constitution that specifies the national economy be organized on capitalist lines. In fact, almost all mention of economic issues in the Constitution is to create powers for the national government to intervene in and even direct economic affairs.
The best expression of this is Alexander Hamilton’s major papers on the constitutionality of a national bank, and the subject of manufactures. The response of conservatives has been the same as the slave-holders, to argue the exact opposite: that the powers for the national government are strictly limited to those “enumerated” explicitly in the Constitution. This is, of course, the issue of Hamilton’s “implied powers” versus the conservatives’ and slave-holders’ “enumerated powers.” (See The Original Meaning of Enumerated Powers (pdf), by Andrew Coan and David S. Schwartz [Legal Theory Blog]
Just as surprising is that the most direct consideration of this question was undertaken by the conservative American Enterprise Institute in 1982, in a forum and book entitled How Capitalistic Is the Constitution? (pdf), Robert A. Goldwin and William A. Schambra, editors (American Enterprise Institute for Public Policy Research, Washington, D.C., 1982).
In the chapter entitled “The Constitution and Hamiltonian Capitalism” Forrest McDonald wrote,
“the Constitution thus was a benchmark in the evolution of systems of political economy, for it made possible—though not inevitable—the transformation from the old order to the new…. What is more, the very idea of economic growth, with its attendant dangers of luxury and economic inequality, was incompatible with republican principles of political theory, at least in some versions of that theory. Plato, believing that relative equality of property was necessary in a republic, wanted to limit inheritances. Lycurgus, “in the most perfect model of government that was ever framed,” that of Sparta, banished trade entirely. Montesquieu, whom Americans read as the latest word on republicanism, taught that it could be sustained only by virtue, meaning “love of the republic”; frugality, simplicity, and a “mediocrity” of “abilities and fortunes” were necessary to sustain that virtue. Indeed, Montesquieu said that if equality broke down, “the republic will be utterly undone,” and thus it was “absolutely necessary there should be some regulation in respect to … all … forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the fundamental law.”
I have been, for years, putting forward the argument that in fact, the Constitution is more amenable to socialism than it is to capitalism. I have also been arguing that “the left” is committing a major strategic blunder in dismissing the relevance and importance of the Constitution and these Constitutional issues. This blunder flows from belief on “the left” that the Constitution was irretrievably flawed from the beginning because of slavery and lack of universal suffrage. This ideology blinds those on “the left” to the essential character of all American history as a struggle between a faction desiring to build a civic republic, and a faction wanting to build something other than a civic republic. The strategic error of “the left” is not wondering, let alone not investigating, how the United States lost its fundamental hostility to economic inequality.
This essential character of all American history is well captured by Forrest A. Nabors, From Oligarchy to Republicanism: The Great Task of Reconstruction, Columbia, Mo., University of Missouri Press, 2017. Nabors wrote because “Marxists tend to conflate superior wealth with rule, their analysis did not isolate and politicaly distinguish the wealthy Southern planters from wealthy Northern industrialists. Both industrialists and planters were oligarchs in their view. This obscured the different character of the South.” (pp. 19-20.)
Nabors quotes the Republicans senators and representatives debating the legislation to enact Reconstruction after the Civil War, who had to grapple with the slaveholding oligarchy that had arisen on the economic inequality of the South. including describing how the disposition, nature, and behavior of slaveholders became ever more despotic and tyrannical over time. In a section entitled “How Slavery Causes Oligarchy: Effect on the Personal Character of Masters,” Nabors excerpts and paraphrases from Senator Charles Sumner’s dramatic speech upon his return to the Senate in 1860 (after more than three years recuperating and rehabilitating from the attack by South Carolina Congressmen Preston Brooks in 1856).
Slavery reshaped the political society that admitted it, imparted its essential character, barbarism, to that political society, and reorganized it around that central principle. The inner character of slavery corresponded to the inner character of the political regime, which bred men with its corresponding character, American barbarians…. P88
So, to state it again, the central issue was that “Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions…”
Many commenters here have correctly pointed out the severe political consequences of using Article 3 to bar Trump from the November 2024 ballots. The issue they – and everyone else – has yet to address is how Trump, Trump’s supporters, and conservatives in general, have (to paraphrase) “produced a political spirit adverse to republican institutions.” Their beliefs are genuine. But so were the beliefs of the slaveholders. What we have yet to grasp is that the “spirit of republicanism” and its fundamental principles – Justice, and deliberate care to promote the General Welfare – basically require the creation and maintenance of a welfare state. And a welfare state, of course, is the bête noir of conservatives. As such, conservatives will always have to be considered enemies of the republic. No matter how many decades they – and their think tanks, conferences, and noise machine – are allowed to assail the principles of Justice, and the General Welfare. The rest of us must wake up to the importance of these underlying Constitutional issues of philosophy of government.
(For a monumental statement on what a republic ought to be, see the speech by Massachusetts Senator Charles Sumner, “The Equal Rights of All: The Great Guaranty and Present Necessity, for the Sake of Security, and to Maintain a Republican Government. Speech in the Senate, on the proposed Amendment of the Constitution fixing the Basis of Representation, February 5 and 6, 1866.”)
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