Americans are about to get an intense history lesson, courtesy of former President Donald Trump and those trying to keep him off the ballot this year under the Constitution’s 14th Amendment.
Written in the wake of the Civil War, the amendment bars from federal office a onetime U.S. official who engaged in insurrection or rebellion or gave aid or comfort to an enemy.
Now, the Supreme Court must decide whether that provision can be harnessed to shut down Mr. Trump’s hopes of winning a second term. It was last used more than a century ago by Congress to unseat a socialist lawmaker accused of supporting Germany in World War I.
The NAACP Legal Defense and Educational Fund told the justices that the insurrection clause applies directly to Mr. Trump and the events of Jan. 6, 2021. It points out that some in the mob that stormed the Capitol and temporarily disrupted the Electoral College count, egged on by Mr. Trump’s claims of a stolen election, carried Confederate flags.
“President Trump’s false claims of voter fraud were targeted at cities with large numbers of Black voters and other voters of color, thereby suggesting that they should not have a full and equal voice in determining the fate of our democracy,” the NAACP told the court.
Section 3 of the 14th Amendment reads: “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.”
A group of historians who support the Colorado voters hoping to bar Mr. Trump’s name from the primary ballot says Section 3 of the 14th Amendment prohibits insurrectionists from becoming president. The amendment was ratified after the Civil War to ban Confederates from holding office.
“Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility,” they wrote. “It remains in place and in force today.”
Kansas Attorney General Kris W. Kobach said in a filing with the justices that lawyers in the 1860s would have known that the phrase “insurrection or rebellion” meant the Civil War or some similar expansive armed conflict, and it didn’t mean an isolated protest or riot.
The proof, he said, is that other laws written during the war and subsequent Reconstruction period used the same phrase.
“Thus, in the mind of Section 3’s drafters and ratifiers, there would have been no doubt that Section 3 was to apply only in those instances that amounted to something comparable to the Civil War,” Mr. Kobach argued.
One major question for the justices is whether Section 3 was meant to cover the presidency.
SEE ALSO: Trump team raises money off Supreme Court arguments in ballot case
Mr. Kobach pointed out that the language doesn’t read that way and said that can’t be a mistake. Those who wrote the article were aware of the presidency and even included the word in an earlier draft but deleted it in the final version.
The fact that the enacted version of Section 3 contains a list of positions throughout the federal, state, civil, and military ranks but does not include the position of President should sound the death knell to Trump’s opponents’ competing interpretation,” he argued.
Not so, said Jeremi Suri, a historian and professor at the University of Texas.
“Any historian would tell you that the office of the presidency was in the intent,” he said of Section 3. “I am not a lawyer … but the history is very clear that the drafters of the amendment expected it would apply to presidents as well as governors.”
He said Section 3 grew out of the Civil Rights Act of 1866 and was meant to protect the new union from Confederates taking charge. One aspect was a move to prevent Jefferson Davis, who served as president of the Confederate States, from running for president of the Union.
He disagreed with Mr. Kobach’s assessment that those who wrote the language wanted more than the events of Jan. 6 to trigger the bar.
“The drafters and those who lived through the Civil War — the Republicans of 1866, 1867 — would have seen January 6 as an insurrection,” Mr. Suri said. “They were very explicit that there should be no public interruption of the process of presidential certification and they prohibited Confederate flags from ever being brought into the Capitol.”
Some legal analysts said the law generally gives power to the president to determine whether an insurrection exists, though Congress can play a role.
Mr. Trump has not been charged with nor convicted of insurrection.
A group of Harvard and Yale professors filed a brief with the justices arguing that the insurrection clause was Congress’ response to President Andrew Johnson, who took a lenient approach to the Confederate leaders and to Southern states’ readmission to the union.
The scholars said what Congress wrote applies beyond the Civil War.
“It remains in place and in force today,” they said.
The NAACP, in its filing, told the justices they carry a special burden to erase the Supreme Court’s troubled history with race and rulings such as Plessy v. Ferguson, the 1896 case that established “separate but equal” and gave legal cover to segregation.
“In case after case, it disregarded the text and design of the Reconstruction Amendments, allowing our system of government to become a mockery of the multi-racial democracy promised by the Reconstruction Congress,” the NAACP said. “This Court now has the chance to learn from that history, and to ensure that our nation does not replicate the grave mistakes of the late 19th and early 20th centuries.”
Mike Davis, president of the Article III Project, which advocates for constitutionalist judges, said what began on Jan. 6 as a lawful protest devolved into a riot, whereas the Civil War almost divided the Republic.
“Fortunately, most Supreme Court justices don’t take the NAACP seriously,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.