Over at his blog, historian William Hogeland reminds us that history can only take us so far in debates like the one currently raging over whether Donald Trump can stay on the ballot in Colorado.
The original intent of Section 3 of the 14th Amendment was to keep former Confederates out of federal office. Good history teachers will explain the meaning of Section 3 in historical context. This is what we are called to do. Historians will talk and teach about 1868 and why it was necessary to add Section 3 to the 14th Amendment. But such historical analysis does not help us decide if Donald Trump was behind the January 6 insurrection. It doesn’t help us decide if January 6, 2021 was an insurrection in the first place. And it doesn’t help us decide if Section 3 should be used to keep Trump off the ballot in Colorado.
Here is Hogeland:
That’s the problem with appealing to history. It’s rarely the help you think it is.
If you want Trump out of the race—I’d sure enjoy that—it may seem glaringly obvious to you that Section Three should apply in this case. But the fact is that the section originally responded to the secession of eleven states, five years of civil war, and more than 600,000 dead, which might make those few hours on January 6, awful as they were, look like not so much. . . . Some people arguing for Trump’s automatic disqualification have therefore looked back to the Whiskey Rebellion, a far lesser event than the Civil War. It too “would have” come under Section Three, they say, had Section Three existed in 1794.
Sure. Maybe. But does that line of thought really help?
Because if you want Trump in the race—I don’t—or believe for other reasons that applying Section Three is a bad idea, the Whiskey Rebellion too can easily be shown to be a whole lot more of an insurrection than January 6. It built up over years, put seven western counties under the sway of a self-created alternative government, flew its own flag, banished citizens from the region, had a shootout with the U.S. Army, and ended only when 12,000 troops marched westward to subject the entire region to military suppression and occupation. (Have I mentioned that I wrote the book about it? Yes. I have.)
The underlying problem for this discussion may be that our precedent insurrections—like the insurrection that made us a country—were secessionist. Despite the Confederate fantasies of some of the jackasses of Jan. 6, secession may be a categorically different thing from entering the Capitol and trying to overturn a presidential election, with the encouragement of the lame-duck president himself and key members of the legislature. If it comes to that—I don’t know—the intentions behind January 6 may be even worse, if the effects less dire, than the intentions behind previous insurrections. It all depends on where you sit, and that doesn’t seem to me to have much to do with whether a long-inert aspect of the Fourteenth Amendment is likely to be effectively applied here.
This is where all the history chitchat gets us: nowhere. Op-ed writers and readers love to take positions based on history. Some historians love to promote their profession and themselves by supposedly informing the public about supposed parallels. Judges love to gab speculatively about the past. But judges also have to decide, and while history has its uses, a clear direction is rarely one of them.
Read the entire piece here.