As reported by the Guardian, twenty-five civil war historians filed a remarkable amicus brief with the Supreme Court for the Colorado disqualification case to be argued before the Court on February 8. Let us note at the outset that six of the justices are Originalists when it suits them and exhibit an aptitude for rewriting history (when cherry-picking is just not enough). Roe v. Wade was decided by amateur historians doubling as Supreme Court justices. I am hoping the professional historians carry some weight in this case.
There are really two parts to the Guardian article, the first part being a discussion of the amicus brief. The second part is a preview of a forthcoming article to be published in the New York Review of Books written by Princeton historian Sean Wilentz (who is not part of the group that filed the amicus brief). He argues convincingly that our FedSec justices face the choice of repudiating their pretextual Originalism or disqualifying Trump. Although Prof. Wilentz fails to recognize the justices’ third choice–rewriting history (one of Justice Sam-I-Sham’s specialties)—his take on the question is powerful.
Starting with the arguments in the amicus brief (and ticking through a few key points), this is a nice overview:
“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.”
Further addressing the flimsy argument that the 14th Amendment was not intended to include the president, the historians note:
“Senator Reverdy Johnson of Maryland, a Democratic opponent of the 14th amendment, challenged sponsors as to why section three omitted the president. Republican Lot Morrill of Maine … replied, ‘Let me call the senator’s attention to the words “or hold any office civil or military under the United States”.’ Johnson admitted his error; no other senator questioned whether section three covered the president.”
As to the arguments that the Amnesty Acts of 1872 and 1898 excused future insurrectionists and/or that the 14th Amendment was not forward looking, the historians offered this:
“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 concluded: “The court should take cognisance that section three of the 14th amendment covers the present, is forward-looking, and requires no additional acts of Congress for implementation.”
Perhaps more importantly, they pointed out that the legacy of the Amnesty Acts was the election to office of many ex-Confederates “participat[ing] in the imposition of racial discrimination in the south that vitiated the intent of the 14th and 15th amendments. . . .”
Turning to Prof. Wilentz, he says what I have been trying to say in comments and in at least one abandoned story—that we get far worse chaos if we do not disqualify Trump than if we do. not. But I will let Prof. Wilenz speak for himself (through the Guardian):
He also writes: “The conservative majority of the supreme court and the historical legacy of the [Chief Justice John] Roberts court have reached a point of no return. The law, no matter the diversions and claptrap of Trump’s lawyers and the pundits, is crystal clear, on incontestable historical as well as originalist grounds … the conservatives face a choice between disqualifying Trump or shredding the foundation of their judicial methodology.”
If the court does not “honour the original meaning of the 14th amendment and disqualify Donald Trump”, Wilentz writes, “it will trash the constitutional defense of democracy designed following slavery’s abolition; it will guarantee, at a minimum, political chaos no matter what the voters decide in November; and it will quite possibly pave the way for a man who has vowed that he will, if necessary, rescind the constitution in order to impose a dictatorship of revenge.”
I would add that, although Trump’s current behavior does not appear to be part of the record before the Supreme Court—commenters, please correct me if I am wrong on that—I cannot believe that his rants, threats, lies and embrace of chaos in the courtroom, on the courthouse steps and on the campaign trail will be entirely lost on any of the justices (other than, of course, Sam-I-Sham and Thomas). The insurrection appears to be ongoing. Admitting that I am basically an optimist, I think we have a chance to get a win.
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UPDATE:
Irontortoise was kind enough to point out to me in his comment that what I said in the lead-in sentence to the Wilentz quotation was in fact the opposite of what Wilentz said. And that is also the opposite of what I meant to say. Please see my correction with bolding and a strike-out in the text above. Yes, I am a moran.
Thank you, Irontortoise.
