Here is Martin Pengelly at The Guardian:
Twenty-five historians of the civil war and Reconstruction filed a US supreme court brief in support of the attempt by Colorado to remove Donald Trump from the ballot under the 14th amendment, which bars insurrectionists from running for office.
“For historians,” the group wrote, “contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th amendment [ratified in 1868] is most probative. Analysis of this evidence demonstrates that decision-makers crafted section three to cover the president and to create an enduring check on insurrection, requiring no additional action from Congress.”
Lawyers for Trump argue that the presidency is not an “office” as described in the 14th amendment, that only congressional action can stop someone from running, and that Trump did not incite an insurrection.
Trump was impeached in Congress (for the second time) for inciting an insurrection: the Capitol attack of 6 January 2021, an attempt to overturn defeat by Joe Biden now linked to nine deaths, more than 1,200 arrests and hundreds of convictions.
Read the entire piece here.
The signers are: Orville Vernon Burton, Allan J. Lichtman, Nell Irvin Painter, James McPherson, Manisha Sinha, Erik Alexander, Shawn Leigh Alexander, Karen L. Cox, Adam H. Domby, Paul Escott, Terence R. Finnegan, Hilary N. Green, Steve Hahn, Peter C. Hoffer, J. Morgan Kousser, Lawrence McDonald, Scott Nelson, Kenneth W. Noe, Lawrence Powell, George Rable, David Roediger, Brooks D. Simpson, Harry L. Watson, Thomas C. Holt, and Thomas J. Brown.
Here is a summary of the historians’ brief:
We are twenty-five professional Ph.D. historians with appointments as faculty at institutions of higher learning in the United States. 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. 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. We have professional interests in helping the Court reach its decision by appropriately analyzing probative historical evidence.
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. Republican Senator James Flanagan of Texas warned that “Jefferson Davis is living,” and if “the disabilities of Jefferson Davis were removed,” the Democrats in finding “candidates for the Presidency and Vice Presidency … would go no further than Jefferson Davis.”
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. 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.
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 government agreed but opposed quashing his indictment. Supreme Court Chief Justice Salmon Chase, serving as a Circuit Court judge, also agreed. Later, in Griffin’s Case, Chase seemed to take a different position. However, his ruling that Section 3 disqualification required congressional action applied only to officials lawfully in office before the states ratified the 14th Amendment.
Read the entire brief here.
I’d like to hear what Allen Guelzo thinks.
Foner and Blight are noteworthy omissions. Certainly they agree. Perhaps given the court’s disregard for amicus briefs by historians in the Heller case, they see it as a waste of time .