Twenty-five historians have filed a “Friend of the Court” (amicus curiae) brief with the Supreme Court giving the history of the 14th Amendment’s “Insurrection Clause” which Colorado has used to bar former-President Donald Trump from appearing on its ballot. James McPherson, Manisha Sinha, Karen L. Cox, Adam H. Domby, Hilary N. Green, Kenneth W. Noe, George C. Rable, Brooks D. Simpson and seventeen other professors of history have combined to give their analysis. The historians summed up their expertise:
Most of us have many decades of experience as researchers and teachers and are current or emeritus faculty with endowed chairs and positions as distinguished professors, the highest academic ranking. Several of us have testified extensively in civil and voting rights litigation. Our more than one hundred books have won numerous national prizes. Among other positions, some of us have served as President of the American Historical Association, the Organization of American Historians, the Southern Historical Association, the Society for Historians of the Early American Republic,
and the Alabama Historical Association.
Our expertise encompasses the Civil War and Reconstruction, the Southern “redemption,” and American history more broadly, including politics, voting, and elections.
The historians said that their expertise helps resolve two questions currently before the Court:
We understand that assessing historical precedent is crucial for resolving whether 1) Section 3 of the 14th Amendment covers the president and 2) whether its implementation requires an additional act of Congress.
In its “Summary of the Argument,” the historians say that:
For historians, contemporary evidence from the
decision-makers who sponsored, backed, and voted for
the 14th Amendment is most probative. Analysis of this
evidence demonstrates that decision-makers crafted
Section 3 to cover the President and to create an enduring
check on insurrection, requiring no additional action from
Congress.
During the congressional debates, Senator Reverdy
Johnson of Maryland, a Democratic opponent of the 14th
Amendment, challenged sponsors as to why Section
3 omitted the President. Republican Senator Lot
Morrill of Maine, an influential backer of congressional
Reconstruction and the 14th Amendment, corrected the
Senator. Morrill replied, “Let me call the Senator’s
attention to the words ‘or hold any office civil or military
under the United States.’” Senator Johnson admitted his
error; no other Senator questioned whether Section 3
covered the President.
Similarly, debates over the Amnesty Act of 1872
demonstrate that decision-makers understood that
Section 3 barred former Confederate President Jefferson
Davis from running for President of the United States, a
disqualification that amnesty would remove.
During the Andrew Johnson impeachment and
trial, decision-makers who backed Section 3, explicitly
recognized the President as a civil or constitutional officer
of the U.S. In presidential proclamations, Andrew Johnson
routinely identified himself as the “chief executive officer
of the United States.” In many instances, the framers of
the original U.S. Constitution did not limit the designation
of officers to appointed officials, but recognized the
President as a national officer.
The historians were explicit that the Insurrection Clause was not only designed to apply to those participating in the Confederate insurrection, but that it would apply to future insurrections:
Contemporary information provides direct evidence of
the enduring reach of the 14th Amendment. Congress had
previously enacted disqualifying statutes but now chose to
make disqualification permanent through a constitutional
amendment. Republican Senator Peter Van Winkle of
West Virginia said, “This is to go into our Constitution
and to stand to govern future insurrection as well as the
present…” To this end, the Amnesty Acts of 1872 and 1898
did not pardon future insurrectionists.
The historians said that Congress did not need to pass any enabling legislation for the 14th Amendment to be effective in blocking insurrectionists from office:
Other evidence demonstrates that implementation
of Section 3 did not require additional acts of Congress.
No former Confederate instantly disqualified from
holding office under Section 3 was disqualified by an
act of Congress. In seeking to quash his indictment for
treason, Jefferson Davis argued that he was already
punished through his automatic disqualification to hold
public office under Section 3, which “executes itself …
It needs no legislation on the part of Congress to give it
effect.”
The historians looked at the amnesties passed during Reconstruction amnestying certain Americans barred from holding office:
In 1872 and 1898, Congress enacted amnesty laws
under Section 3. These laws were backward, not forwardlooking.
They pardoned persons previously disqualified
under Section 3 but did not vitiate this provision of the
Constitution by exempting future insurrectionists or
rebels from its coverage.20 The 1872 law reads as follows:
“Be it enacted by the Senate and House
of Representatives of the United States of
America in Congress assembled (two-thirds
of each house concurring therein), That all
political disabilities imposed by the third section
of the fourteenth article of amendments of the
Constitution of the United States are hereby
removed from all persons whomsoever, except
Senators and Representatives of the thirtysixth and thirty-seventh Congresses, officers
in the judicial, military, and naval service of
the United States, heads of departments, and
foreign ministers of the United States.”21
The plain meaning of this statute shows that it applies
to persons previously disqualified from holding office.
It does not constitute a blanket exemption for all those
who might fall under the rubric of Section 3 in future
insurrections or rebellions. It refers in the past tense to
“disabilities imposed.” (emphasis added) Second, even for
those already disqualified from holding office, the statute
is not a comprehensive amnesty but includes exceptions.
Our study of the records of Congress demonstrates
that debates centered on amnesty for those involved
in the Southern Rebellion, not on amnesty for future
insurrectionists.
The historians also warned that the amnesty of Confederates had dire consequences for Blacks in the South:
After amnesty, many former Confederates gained
election to leadership positions in southern states. The
offices included governorships and other statewide offices,
state legislative positions, and local offices. None were
elected before amnesty. At least 20 ex-Confederates
who had previously sworn an oath to support the U.S.
Constitution served as governors of former Confederate
states after amnesty.
Pardoned former Confederates participated in the
imposition of racial discrimination in the South that
vitiated the intent of the Reconstruction 14th and 15th
Amendments to protect the civil and political rights of
the formerly enslaved people. White supremacists who
regained power in the 1870s suppressed Black rights
through violence and intimidation and during the rest of
the century through laws and constitutional provisions
that established Jim Crow discrimination. Ironically, the
former Confederates under amnesty, who had the freedom
to vote and hold office, participated in snuffing out Black
voting in the South, first through intimidation and then
through mechanisms such as literacy tests, poll taxes,
and white primaries.
Some states enacted “Grandfather Clauses” that
exempted from literacy tests persons whose ancestors had
previously voted, essentially ruling in former Confederates
and ruling out Black people. A study by J. Morgan Kousser
found that although state-sanctioned and sponsored
violence and intimidation had reduced Black suffrage in
elections before legal disfranchisement, it declined more
steeply after that. Another study by Kent Redding and
David R. James found that Black presidential turnout in
the eleven former Confederate states tumbled from an
average of 61 percent in 1880 to but 2 percent in 1912.
Amicus curiae
The very idea that any President of the United States of America could come up with the idea that she or he could overturn a legitimate election by inciting a riot is absurd. Even by Trump’s own lawyers admissions of the fact that January 6th was a riot most certainly removes any claim to Presidential immunity for inciting a violent riot. Any first year student of law as well as the court of worldwide opinion has already seen the outcome of the deaths and injuries that occurred from the riots. For SCOTUS not to make a timely decision based on the 14th amendment in itself could be seen as insurrection by the court. I follow the laws of Justice not the absurdity of Trumpian illogical nonsense.
Exactly.