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…
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