Robert E. Lee Could Have Been President

Some of Donald Trump’s opponents are seeking to bar him from the presidential ballot in 2024 under the Insurrection Clause, Section 3 of the 14th Amendment, which provides: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, . . . who, having previously taken an oath . . ., to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Commentators have noted that this provision specifically bars such people from serving in Congress or as presidential electors but not from the presidency or vice presidency. The anti-Trump interpretation of the clause assumes that the authors of the amendment expected the two most important offices to be included in the generic term “any office.” That’s implausible—an example of hiding elephants in mouseholes, to borrow a phrase from Justice Antonin Scalia.

But why would the legislators who drafted this amendment allow an erstwhile insurrectionist to become president? Surely they didn’t want a President Robert E. Lee.

There wasn’t much danger of that because elections for president and vice president are national in scope. Electors are chosen in individual states, but the president and vice president are elected only after the votes of electors from every state are tallied together. In contrast, the federal positions specifically listed in the Insurrection Clause—senator, representative, elector—all entail elections limited to individual states.

It was perfectly reasonable to limit barred federal offices to those involving elections in individual states, because in 1868 unreconstructed rebel voters might have constituted majorities in formerly Confederate states. At the national level, the math was different. In the 1860 census, the aggregated populations of the states that remained in the Union was around 23 million, while the future Confederate states had populations of nine million, which included 3.5 million slaves. Roughly 5 out of 6 eligible voters in 1868 would be either freedmen or from Union states.

If Lee had run for president, he would have needed to win the electoral votes of multiple states that had stayed in the Union—and every voter would have known about his role in the Civil War. Given the Unionist majority nationwide, there was no reason to deny voters a free choice. That’s why the Insurrection Clause didn’t bar anyone from serving as president—and still doesn’t.

Mr. Weisberg is a semiretired attorney in Cary, N.C.