Many constitutional scholars and historians make strong legal arguments that Section 3 of the 14th Amendment disqualifies former President Donald Trump from holding public office again. Others argue that if the Supreme Court upholds a Colorado high court ruling removing Trump from the state’s primary ballot, it would compromise the legitimacy of our democratic process. But the real question before the Court is about the legitimacy of America itself.
Since the January 6, 2021, insurrection, there has been speculation about whether America might break apart as it did in 1861. Some even fear that removing Trump from the ballot will ignite a new civil war. But when we describe what happened in the 19th century and what we fear coming now as a “Civil War,” we undermine the legitimacy of the American nation. We put the secessionists then—and the MAGA movement now—on an equal footing with the legitimate American government. By doing so, we not only mislabel the threats that Trump and MAGA represent, but also underestimate their dangers.
The original designation of the military engagement from 1861 through 1865 was the “War of Rebellion.” This wasn’t just the Union’s perspective; the Confederate States understood themselves to be seceding to form an independent “slaveholding republic.” They called themselves “rebels.” It was not a civil war in which combatants fought to control one nation.
The leaders of what I call the Red Nation, which has 10 of the 11 Confederate states at its core, consistently reveal that they do not recognize the legitimacy of the United States. (See the Appendix of my post on “The Two Nations of America” for more on how I define Red Nation.) They continue to be in the same relationship with America today as the Confederate states were before the War of Rebellion—unwilling to accept the legitimacy of the federal government, even if, in most periods, they have acquiesced to its superior force.
When the 14th Amendment was ratified in 1868, it was obvious why Section 3 was included. When a nation cannot disqualify from public office those who have sought to destroy it, it casts doubt on its own legitimacy. That is especially true of the unrepentant Trump. Even Confederate generals admitted they lost by swearing allegiance to the United States. Trump still insists that he didn’t lose. Meanwhile, most Republicans dodge whether President Joe Biden won the election legitimately by grudgingly acknowledging that Biden is president. The MAGA faction is not “conservative,” and even calling it “extremist” misses the point dangerously. Those advocating for conservative and even extreme policies should be welcome in a democratic polity. But those acting in ways that reject legitimately constituted authority are neither conservative nor extreme. They are criminal. Thus, if we hope to be a single America, then we must acknowledge that those who claim that the 2020 election was stolen, decry the prosecution of Trump as a crime, call those convicted for their January 6 crimes “political hostages,” and claim that the Rio Grande is Texas’s to defend and not the federal government’s, do not recognize the legitimacy of the United States. They, like their Confederate ancestors, are not patriots.
Are we one nation or two? The answer has never been self-evident. In “The Words that Remade America” in The Atlantic, Pulitzer Prize-winning author Gary Wills observed, “Up to the Civil War, ‘the United States’ was invariably a plural noun: ‘The United States are a free government.’ After Gettysburg, it became a singular: ‘The United States is a free government.’” Willis argued that this rhetorical shift reflected a shift in the “lived reality of the American tradition” that “the nation preceded the states” instead of the other way around. But this tradition wasn’t universally embraced, then or now. “The United States” remained a plural noun in the South for decades.
When the Constitution was ratified in 1788, the free states saw it as most of us do today—enshrining a government for a unified nation. To the enslaving states, however, the Constitution did not create a single nation. Rather as Texas Governor Gregg Abbott and two dozen other Red States say, it is merely a “compact” among the states. Due to the gravity of threats from abroad (Britain, France, Spain) and at home (Native Americans and enslaved people), the enslaving states agreed to a mutual defense pact (the Constitution) only insofar as they were confident that it protected their “peculiar institution.”
At Appomattox, Virginia, in 1865, the Confederates did not surrender so much as acknowledge that their best hope to preserve their “way of life” was not on the battlefield where they were badly outmatched but in a campaign of terror against Reconstruction. Once the South had made Reconstruction too costly to continue, it enacted Jim Crow Constitutions and updated its forced labor economy. This is a well-told story, for example, in Heather Cox Richardson’s How the South Won the Civil War.
Our devotion to an “America” that strives to be a “government of the people, by the people, for the people” has never been accepted by the Confederate faction, which has always been (and remains) committed to theocracy. We believe that the warrant for government is “the consent of the governed”; they believe its legitimacy is God-given.
Consider Germany, which is rightly credited for taking responsibility for the Holocaust. Last summer, I visited Berlin and saw how robust these efforts have been. For example, the sidewalks in residential neighborhoods have been broken up by Stolpersteine—stumble blocks—which call attention to the homes the Nazis stole from Jews and, where known, the fate of those Jews. But it’s not as if there aren’t similar landmarks commemorating our past, including the Legacy Museum/Lynching Memorial in Montgomery, Alabama, the National Center for Civil and Human Rights in Atlanta, Georgia, and the National Museum of African American History and Culture in Washington, D.C.
No, the real difference is exactly the difference between conceptualizing today’s toxic politics as “civil war” or “polarization” instead of a rebellion. In Germany, the idea that there would be monuments or streets named after Adolf Hitler or his generals is unthinkable. No popular culture there valorizes those who fought for the Führer or waxes nostalgic for a lost way of life. There’s no bawdy comedy, The Dukes of Bavaria.
Contrast that with the rapid incorporation of Lost Cause mythology into American culture. By 1915, The Birth of a Nation was screened in the White House. Gone with the Wind remains the highest-grossing film of all time and ranks sixth on the American Film Institute’s list of the 100 best American movies. Even today, 150 years after Confederates waged war on the United States to preserve their ability to buy, sell, rape, and torture human beings, it remains controversial to remove statues of Confederate generals. We continue to sanitize America’s enslaved labor camps by calling them “plantations.” Plenty of people still have weddings there.
You can think of MAGA as a fascist movement or as the “legitimate” expression of a theocratic Red Nation that is in a cold war with the Blue Nation, or both. (In the 21st century, the Red Nation has been making inroads in the purple states.) Either way, the MAGA movement is an enemy of liberal democracy and has taken over the Republican Party. Its and MAGA’s continued success in building its preferred version of America depends on the political class’s stubborn refusal to call out the Republican Party for what it has become.
No matter how many times the Confederate Faction signals that it does not accept the legitimacy of the American project, we refuse to believe them. We reflexively reinterpret attacks against America as mere disagreements or empty rhetoric aimed at their MAGA base, even as our attackers lack no clarity about their own intentions.
