Dan Rodricks: The radical refusal to seat a Md. politician in the Senate resonates today | STAFF COMMENTARY

Jan. 2—By Dan Rodricks — drodricks@baltsun.com

PUBLISHED:January 2, 2024 at 11:48 a.m.| UPDATED:January 2, 2024 at 6:03 p.m.

Once upon a time, the U.S. Senate refused to give a seat to a Maryland politician because he had given his son $100 as the young man went off to war. What looked like a normal paternal gesture was considered an act of rebellion and, as a result, Philip Francis Thomas never got to serve in the Senate.

That might seem like a radical smackdown, but it was grounded in the Constitution, specifically the provision that disqualifies those who engage in insurrection from serving in office. The senators who rejected Thomas believed they had the best interests of the country in mind.

I offer this bit of Maryland history because it relates to the current matter of Donald Trump's status as an insurrectionist running again for president.

With state officials and courts making decisions about Trump's eligibility to be on ballots this year, given his incitement of the mob attack on the U.S. Capitol three years ago this week, here's a contextual footnote from Spring Hill Cemetery, on Maryland's Eastern Shore.

That's where you'll find the grave of Philip Francis Thomas, an Easton attorney, state legislator, congressional representative and one-time governor who seems to have had some seriously mixed-up views about slavery and the Civil War.

Thomas was a Democrat, generally a supporter of the Union who defended slavery in the years before the war. He believed slave states and future states should neither be prohibited from allowing slavery nor hindered in any way because of it. Here's a bit of what Thomas said, from the Maryland archives:

"The institution of slavery is regarded by the constitution as a municipal regulation, and property in slaves is recognized, guaranteed and protected. ... Any regulation intended to exclude the people of the slaveholding States from an equal participation in the enjoyment of territory to be hereafter acquired by the United States would be a palpable violation of the constitution."

Thomas served in various federal roles: as collector of customs for the Port of Baltimore, as commissioner of patents and as secretary of the Treasury. When the Civil War broke out, he went back to his law practice and farm in Talbot County.

But Thomas had a son — one of his 13 children — who wanted to join the Confederate army. When the father's efforts to discourage that failed, Thomas gave his son $100 to buy a horse and some food; he didn't want the lad to starve while fighting for the rights of Southerners to own enslaved people.

After the Civil War, the Maryland legislature selected Thomas to serve in the Senate. (That's how senators were picked prior to 1913.) But Reconstruction Republicans in Washington refused to seat him because they had learned of Thomas' support of his son. And that, according to an excellent history of insurrection by University of Maryland law professor Mark Graber, amounted to "aid and support to the enemies of the United States or [those] engaged in an insurrection against the United States."

At least that's how it was viewed by Republicans, when theirs was the party of Lincoln.

By then, of course, the 14th Amendment had passed. The amendment's now widely discussed Section 3 bans from office anyone who took part in insurrection after having taken an oath to defend the Constitution.

You might consider what the Reconstruction Republicans did to be extreme — punishing a father for giving $100 (the equivalent of about $2,000 in today's dollars) to a son headed to war. But it was war against the Union, and Thomas had taken an oath to support that Union and its Constitution.

If I had been a columnist at the time, writing opinions about the matter, I would have been pro-Union, and I would have had a hard time arguing against what the Senate did. Many families were split during the Civil War but, as historians have pointed out, more Marylanders voted for the three presidential candidates who supported the Union than the Southern Democrat who carried the state in 1860, and four times as many Maryland men fought for the Union than for the Confederacy.

Given all that, against his Southern sympathies, Thomas should never have become senator-elect.

If his ultimate rejection by the U.S. Senate seems radical, it's for good reason. "'Radical Republicans' in Congress after the Civil War were so named because of their commitment to eradicating slavery and its vestiges from American political life," writes Sherrilyn Ifill, the civil rights scholar. "A number had been abolitionists, and all had seen the threat that white supremacist ideology and the spirit of insurrection posed to the survival of the United States as a republic."

Some believe that it is un-American for any state to keep Trump off the ballot, despite the clear language of Section 3. From what I see, those who hold that view fall into two categories — Trump supporters who stick with him no matter what, and those who believe he should be convicted of inciting insurrection before being banned from ballots.

Section 3 says nothing about a conviction being necessary. But there's an in-depth congressional report that provides plenty of evidence that Trump "lit that fire" on Jan. 6.

And then there are our own eyes.

I'm confident most Americans, if they're being honest, know insurrection when they see it. They also understand, radical as it might seem, why, having come through the Civil War, Section 3 was necessary for this nation to long endure.

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