More than two dozen United States historians have filed a brief with the Supreme Court in support of efforts by Colorado and other states to remove Donald Trump from the 2024 ballot, arguing that the Constitution’s insurrection clause applies to the former president and front-runner for the GOP nomination.
The filing was signed by 25 decorated historians whose areas of expertise include “the Civil War, Reconstruction, the Southern ‘redemption,’ and American history more broadly, including politics, voting, and elections.” The group said they “have professional interests in helping” the Supreme Court decide whether a certain provision of the 14th Amendment applies to a president, and whether such implementation would require additional action from Congress, “by appropriately analyzing probative historical evidence.”
“For historians, contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th Amendment is most probative,” the brief states. “Analysis of this evidence demonstrates that decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress.”
In December, the Colorado Supreme Court ruled that Trump should be removed from the state’s ballot because his violation of the 14th Amendment makes him ineligible for office. The amendment ― ratified in 1868 after the Civil War ― states that anyone who has engaged in “insurrection or rebellion” despite swearing an oath to uphold the U.S. Constitution must be prohibited from public office.
According to the historians, the amendment’s provision is “not limited to keeping ex-Confederates from holding federal or state offices.” Rather, they say, Section 3 of the 14th Amendment serves as a “guard against the corruption of government by anyone involved in future insurrections who had taken an oath to support the U.S. Constitution.”
Jose Luis Magana via Associated Press
Colorado’s decision cited Trump’s well-documented role in the deadly attack by his followers on the U.S. Capitol on Jan. 6, 2021. This led to Trump’s second impeachment by Congress, but he was not convicted on insurrection charges. He is currently being investigated for efforts by him and his allies to keep him in office despite losing the 2020 election.
After Colorado’s ruling, Trump’s attorneys asked the U.S. Supreme Court to overturn the state-level decision. The high court has a conservative majority that includes three justices appointed by Trump during his presidency.
On Friday, lawyers leading the fight to keep Trump off the ballot wrote a filing urging the Supreme Court to declare that the former president is ineligible to hold office again because of the attempted Jan. 6 coup. The filing included vivid details of Trump’s actions leading up to the attack.
Until now, Section 3 of the 14th Amendment was considered virtually obsolete, after Congress passed an amnesty in 1872 for most of the former Confederates who were targeted by the provision. Lawmakers at the time concluded that the Amnesty Act did not pardon “future insurrectionists,” though the historians note that giving amnesty to Confederates created “adverse consequences.”
“After amnesty, many former Confederates gained election to leadership positions in southern states,” the historians wrote in their brief to the Supreme Court. “The offices included governorships and other statewide offices, state legislative positions, and local offices. None were elected before amnesty. At least 20 ex-Confederates who had previously sworn an oath to support the U.S. Constitution served as governors of former Confederate states after amnesty.”
“Pardoned former Confederates participated in the imposition of racial discrimination in the South that vitiated the intent of the Reconstruction 14th and 15th Amendments to protect the civil and political rights of the formerly enslaved people,” they continued. “White supremacists who regained power in the 1870s suppressed Black rights through violence and intimidation and during the rest of the century through laws and constitutional provisions that established Jim Crow discrimination.”
Currently, there are legal challenges questioning Trump’s eligibility for office in more than a dozen states. A ruling by the Supreme Court would determine the outcome of those challenges. The court is set to begin hearing arguments in the case on Feb. 8.