The Supreme Court claims to care about history when interpreting the Constitution. Of course, the justices have applied that approach selectively. But if they take it seriously in Donald Trump’s ballot eligibility case, then a new court filing from historians is a problem for Trump’s appeal.
The amicus brief from 25 professional scholars with expertise in 19th-century American history explains that the 14th Amendment’s disqualification clause in Section 3 covers the president and doesn’t require further congressional action to keep insurrectionists from office. While those aren’t the only issues in the case, they’re big ones that further support upholding the Colorado Supreme Court’s decision disqualifying the former president.
To take one historical example that the brief illuminates, Trump and his supporters have latched on to the fact that the clause doesn’t specifically mention presidents. Section 3 says:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
To explain why the section nonetheless covers presidents, the historians point to congressional debate at the time of the amendment, in which a senator questioned why presidents were being excluded. The historians recalled that an influential backer of the amendment noted that the section incorporated the president, replying: “Let me call the Senator’s attention to the words ‘or hold any office civil or military under the United States.’” The initial senator “admitted his error” and no other senator “questioned whether Section 3 covered the President,” the historians wrote.
The implication, then, is that for the Supreme Court to hold that the clause doesn’t cover the president would contravene the historical record. This wouldn’t be the first time that the court would be doing so, but the brief is a reminder that the court should have to find another avenue if the justices are intent on keeping Trump on the ballot. A convincing avenue for doing so is still unclear ahead of next week’s oral arguments, but the Feb. 8 hearing may signal where the court is headed. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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