A liberal judge in Colorado shocked progressives Friday by ordering that Donald Trump be included on presidential primary ballots in the state. District Judge Sarah B. Wallace, who opined that Trump did “engage in insurrection” on Jan. 6, 2021, was widely expected to support the leftist argument that the 14th Amendment automatically restricted Trump from seeking future office. But Wallace disappointed the Trump-haters, making Colorado the third state to reject the ballot exclusion argument.

Section Three of the 14th Amendment barred most Confederate former officeholders or military officers who “engaged in insurrection or rebellion” against the Constitution or who had “given aid or comfort to the enemies thereof” from future such positions of responsibility. But, in practice, this provision kept few former rebels from office. Congress was empowered to “remove such disability” by a vote of two-thirds of each House, and the General Amnesty Act of 1872 did just that for most Confederates. The rest were rehabilitated over time, and, in 1978, even Confederate President Jefferson Davis had his citizenship posthumously restored (with then-Sen. Joe Biden voting yea).

Given that history, using the 14th Amendment to ban Donald Trump from office seems like a bizarre case of constitutional revisionism. But a similar legal maneuver was attempted as soon as the 14th Amendment was adopted. This is recorded in the case Ex parte Cæsar Griffin, in the United States Circuit Court, District of Virginia, June 1869. The decision was written by Supreme Court Chief Justice Salmon P. Chase, acting in his capacity as a federal circuit judge.

The case was brought by attorneys for Griffin, who was convicted of shooting with intent to kill and sentenced to 2 years in prison. The wrinkle was that the judge who presided at the trial, Hugh W. Sheffey, had previously been a member of the Confederate Virginia Legislature. He was appointed a Virginia circuit judge in 1866 by the post–Civil War Virginia government. The plaintiffs argued that the implementation of the 14th Amendment automatically rendered Sheffey ineligible to hold office due to his past Confederate government service. Thus, Griffin’s conviction and sentencing should be rendered null and void. A lower court decided for Griffin, and the circuit court heard the case on appeal.

For contemporary purposes, the most important question Chase addressed was whether the 14th Amendment is self-executing, as former George W. Bush ethics lawyer Richard Painter has argued. But, as Chase noted, automatic exclusion from office would result in “mischief and inconveniences … repugnant to the first principles of justice and right embodied in other provisions of the Constitution.” 

Chase argued that automatically excluding someone from office is “obviously impossible to do this by a simple declaration, whether in the Constitution or in an act of Congress.” He believed that “in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate.” In other words, due process must precede exclusion.

But isn’t that what the various state courts hearing the Trump case are doing — providing due process? Not quite, according to Chase. He wrote that “proceedings, evidence, decisions and enforcement of decisions, more or less formal, are indispensable; and these can only be provided for by Congress.”

For Chase, congressional action was mandated by the 14th Amendment itself in its fifth section, which provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In Chase’s view, this congressional authority was unquestionable. “The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections,” he wrote. And the power to remove disability in the third section also “gives to Congress absolute control of the whole operation of the amendment.” 

So, by this logic, state courts lack standing to decide this important constitutional question, and state judges cannot make the call who gets on the ballot. At least not on 14th Amendment grounds.

Chase speculated that circumstances could arise where someone would be barred from office under the terms of the 14th Amendment, that the election of such a candidate would be “prohibited and invalidated” for not meeting qualifications for office. But, in any such case, Congress would have the final say on the matter.

Ultimately, Griffin stayed in prison and Sheffey was not removed, even though he was a former member of the Confederate Virginia government. In time, hundreds of former Confederate soldiers and politicians served in Congress, including Democratic Rep. Alexander Stephens of Georgia, who had been Jefferson Davis’ vice president. Mike Pence should take note.

The exclusion theory of the 14th Amendment will be tested in other states, but progressives should be careful what they wish for. The exclusion standard of “giving aid and comfort to enemies of the Constitution” is broad — it would be easy for conservative prosecutors to make similar cases against left-wing elected officials for their myriad hyperbolic statements, “mostly peaceful” demonstrations, sit-ins, die-ins, flag burnings, or other performative frivolity they routinely engage in.

Unleashing the “mischief and inconveniences” noted by Chase would take electoral choice away from voters and put it in the hands of activist prosecutors, judges, and pressure groups. The results would be catastrophic. Resurrecting this dormant post–Civil War constitutional provision to deny Donald Trump ballot access, especially when he is poised to win the Republican nomination and, perhaps, even the presidency, is a much greater threat to democracy than anything that transpired on Jan. 6.