Historical Record v. Trump

Harvard historians’ Supreme Court brief 

Supreme Court atop 14th amendment with voting stickers in background


In May 1865, Jefferson Davis, former President of the Confederate States of America, snuck out of his tent wrapped in his wife’s shawl—right into the hands of Union soldiers. During the prior month, Confederate General Robert E. Lee had surrendered, and the Confederacy had effectively dissolved. With Davis detained, Congress had to reckon with a question of monumental importance: to what degree should Confederates be reintegrated into the American government?

Following the Civil War, Congress thrice amended the Constitution. Today, one of those amendments, and the legal saga surrounding Jefferson Davis, are pressingly relevant. On February 8, the Supreme Court will hear former President Donald Trump’s appeal of a Colorado Supreme Court decision about his candidacy. Colorado’s court ruled that the Fourteenth Amendment’s disqualification of people who “have engaged in insurrection” from serving in office applies to Trump, and removed him from the state’s primary ballot. Now, in Trump v. Anderson, the Supreme Court must decide whether the former president can indeed be barred from the ballot—a decision with obvious implications for the 2024 election.

On Monday, a group of distinguished historians filed an amicus curiae brief supporting the Colorado ruling. Written by Kemper professor of history Jill Lepore, with support from president emerita and Porter University Professor Drew Gilpin Faust alongside Yale professors David Blight (history) and John Fabian Witt (law), the brief outlines the historical context of the Fourteenth Amendment. The historians argue that Section Three, the “Disqualification Clause,” was intended to include the presidency, apply to future insurrections, and not require a criminal conviction. The brief is very narrowly written; it does not mention Trump, the January 6, 2021, attack on the U.S. Capitol, or what constitutes an insurrection. Instead, it focuses on events immediately before, during, and after the Civil War.

The historical nature of the brief caters to the Court’s current preferred method of analysis: textual originalism. “All of the justices on the court subscribe to one degree or another to the jurisprudence of originalism,” says Lepore, the idea that “the only proper way to interpret a constitutional provision is to recover and adhere to its original intent.”

In recent years, the Court has expanded gun rights and restricted abortion rights through originalist interpretations of the Fourteenth Amendment that are based on what Lepore calls “generally terrible history that’s not written by historians.” Now, Faust hopes, this brief written by experts will give the justices “pause” and “make it harder for them” to rule in favor of Trump. “They need to follow their own commitments to history by seeing what the real history is,” she adds.

The professors assess the historical context of the Fourteenth Amendment, analyze rejected drafts, and cite contemporaneous newspapers to understand “why Congress put Section Three in the Fourteenth Amendment,” says Lepore, “how did it work, and how does the public understand that.”

The historians identified three main purposes of the Fourteenth Amendment’s Disqualification Clause. First, they write, “to automatically disqualify insurrectionists.” Second, “to apply not only to the Civil War but also to future insurrections.” Third, “to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States.”

To begin, they trace the origins of the clause. Debates about whether to bar secessionists grew heated in the fall of 1865, when six former Confederate Congressmen were elected to U.S. Congress. Initially, the clerk of Congress refused to call the ex-Confederates’ names, and they were never seated. But the nation needed a more permanent solution.

Next, the historians analyze unratified drafts of the Fourteenth Amendment, which help clarify the final text’s meaning. Throughout the revision procession, Congress made punishments for Confederates “more narrowly directed and yet harsher and more enduring,” the historians write. One early version of the Disqualification Clause held that everyone who “voluntarily adhered to the late insurrection” would lose the right to vote until 1870. Instead of disenfranchising insurrectionists, the drafters of Section Three opted to “regulate who was eligible to hold state or federal office,” the historians write, continuing, “They did not place either former presidents or presidential candidates beyond its reach, exceptions that would have defied the logic of Section Three.”

In the end, the Fourteenth Amendment barred anyone who had “previously taken an oath…to support the Constitution” and then “engaged in insurrection…or given aid or comfort” to rebels from later serving in Congress, as an elector, or in “any office, civil or military, under the United States, or under any State.”

The historians then describe the prosecution of ex-Confederate President Davis. Though some amici curiae supporting Trump say that the framers of the Fourteenth Amendment were not concerned about a Confederate leader becoming President, the historians write “These assertions are mistaken.” The Disqualification Clause, Lepore said in an interview with PBS, “was really written for Jefferson Davis.”

Davis never actually faced trial, for complex reasons Lepore laid out in a recent New Yorker article, but both the prosecuting and defending lawyers agreed that the Fourteenth Amendment barred him from serving in American office. His lawyer even said that the disqualification is automatically applied, needing neither legislation by Congress nor a conviction for a crime like treason.

As time passed, Congress relaxed restrictions on Confederates’ subsequent political service. The 1872 Amnesty Act nullified the Disqualification Clause for all Confederates except those who served in Congress immediately before the war, held high U.S. military positions, ran departments, or were foreign ministers. Newspapers noted that without the Disqualification Clause, Davis (who was in Congress right before the war) “might become President of the United States,” implying that people believed the clause did apply to the presidency, even though that position was not specifically named.

Examining the history, the professors argue, shows that the amendment’s framers intended disqualification to apply to all future insurrections, not just the Civil War. When Congress issued a blanket amnesty for past oath violators in 1898, lifting all restrictions on ex-Confederates, it left the Fourteenth Amendment intact. To conclude, the historians quote Senator John Henderson, who said while voting for the Fourteenth Amendment that “this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.”

Faust hopes that people who read the brief will get “a sense of the significance of the moment we’re in,” and see “the parallels between being a nation in crisis in the 1860s and ’70s, and being a nation in crisis [today].”

Some public thinkers believe that the current political crisis should guide the Supreme Court’s thinking. In December, Yale law and history professor Samuel Moyn, J.D. ’01, wrote a New York Times column titled “The Supreme Court Should Overturn the Colorado Ruling Unanimously,” arguing that “The purpose of Section [Three] was to stabilize the country after a civil war, not to cause another one.” But Lepore disagrees with that line of thought, saying “To abandon a constitutional provision…out of fear of political violence is to cede to political violence.”

Now, examining the facts of the case before them, the Supreme Court justices will have to decide how the history guides their ruling in Trump v. Anderson.

Read more articles by Max J. Krupnick

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