Nope, Still Not Buying It

 In his newsletter, Jon Chait expands upon his argument that banning Trump from the ballot is a cure worse than the disease...or something. He makes this argument about the XIVth Amendment:

Yes, if Trump were 28 years old, he should be disqualified. But describing his illegitimate attempt to secure an unelected second term as “insurrection,” when the term had most recently been used to mean forming a breakaway republic and waging civil war when the amendment was passed, is not as indisputable as a person’s age. There is some wiggle in the joints. And my judgment is that an action as momentous as throwing a former president off the ballot needs a legal basis that is beyond all rational dispute.

This is historically inaccurate. 

The entire logic of both the Civil War and Reconstruction was that secession was illegal and the Confederacy was never a legal entity. This was the crisis at Ft. Sumter, where Lincoln (and even Buchanan) was saying, "It's federal property and I am going to re-supply it." Then the Confederates opened fire and became the aggressor, mobilizing many in the North who would've waived away the Confederacy and hoped for amicable relations later on.

The central idea that secession - being illegal - never legitimately happened was central to Lincoln and many other Republicans' conception of what the war was about. A "breakaway republic" is a war of independence, and that is how it was typically framed in the South. My Grandmother referred to it as the War for Southern Independence. For the men who wrote the XIVth Amendment, the "rebellion" was an "insurrection" precisely because it was illegal and illegitimate and intended to overthrow the Constitution in the states that seceded. 

In this understanding, Trump's actions are also illegal and illegitimate and intended to overthrow the Constitution everywhere. I freaking hate it when students say "Webster's Dictionary defines 'insurrection' as..." but Webster's Dictionary defines 'insurrection' as "an act or instance of revolting against civil authority or established government." 

The casus belli in the South was the election of a president with zero Southern support who threatened to hem slavery into the states where it already existed, and the presumption that the slave holding South had lost its privileged position in electing national leaders. The reason they thought this was the very election of Lincoln in 1860. The casus belli in the North was the illegitimacy of Southern efforts to overthrow the "civil authority or established government." 

When Lincoln said "we here highly resolve that these dead shall not have died in vain...that government of the people, by the people, for the people, shall not perish from the earth" he meant efforts to overthrow America's system of ABIDING BY ELECTIONS EVEN IF YOU DIDN'T LIKE THE RESULT. 

Insurrection does not require a "breakaway republic". In fact, at no point did those fighting to preserve the Union admit that a "breakaway republic" legally existed. Insurrection is about overthrowing the existing order. The insurrection of 1861-5 was about refusing to acknowledge that the election of 1860 held sway over the slaveholding South.