The Supreme Court Can’t Let Fear of Trump Supporters Force Its Hand

On Thursday, the Supreme Court will hear oral arguments in Trump v. Anderson, also known as the 14^th Amendment Disqualification Clause case. When a violent mob stormed the Capitol on Jan. 6, 2021, most of us looked on with frozen horror. But the minds of Civil War historians turned to Section 3 of the 14^th Amendment, designed to bar former Confederates from holding public office during Reconstruction. And while the history is not well known to the majority of us, Section 3 is what the Colorado case hangs on, and it is very well known to the many historians who signed amicus briefs laying all this out.

Professor Manisha Sinha is one of 25 historians who signed on to one such brief. Her work is also cited in a second amicus brief from another group of eminent historians, including Jill Lepore. I spoke with Sinha on a recent episode of Amicus. She is the James L. and Shirley A. Draper Chair in American History at the University of Connecticut, and president-elect of the Society for Historians of the Early American Republic. Her new book, The Rise and Fall of the Second American Republic: Reconstruction, 1860–1920, is forthcoming this March from Liveright, W.W. Norton. Our conversation has been edited for clarity.

Dahlia Lithwick: There’s a whole bunch of things that the court could do without getting to the nut of the issues the historians raised. Sean Wilentz does a pretty masterful job, in the New York Review of Books, knocking down those arguments, but the historical arguments, at least in your brief, center around two buckets of questions. One is whether Section 3 covers the president when it talks about an “officer.” The other is whether Section 3 requires enabling legislation by Congress. So can we start with No. 1, and the historian’s best response to this question of whether the presidency is contemplated as an “office” in Section 3?

Manisha Sinha: I would say nearly all historians who study the period agree that Section 3 covers the presidency, the vice presidency, and that it was meant to cover them, especially because the treason trial against Jefferson Davis had failed. The government just decided not to prosecute it for various reasons, and it just sort of disappeared. Some historians argue they were nervous that Davis would be able to claim secession as a constitutional right, which is what many Southern secessionists claimed, and I don’t think that’s correct. I think the reason they let it go is political. Many people, especially Salmon Chase, who used to be a radical and became the chief justice of the Supreme Court, were very eager to run for the presidency. In those days, many Supreme Court judges actually ran for the presidency, and Chase was very interested in getting the Democratic nomination.

So there were all kinds of political calculations that his trial had failed. By 1868, it’s quite clear that many of these prominent Confederates—those who had held office as Cabinet officers, those who had held office as high military personnel and had defected to the Confederacy—that there was no punishment coming for them. And I think Section 3 was meant to address that. It was not disenfranchising them, which is generous. In most other countries, they would have lost their heads. Right? Think of the French Revolution. For all the whining coming from the South at that time, that this is punitive, too strict—in fact, these were generous terms, and maybe reconciliation was at the back of people’s mind, because they were reconstructing the union. But they did not want to reconstruct the union on the terms of slaveholders. They had just fought a bloody war—in which more Americans died than the Vietnam, Korean War, two World Wars combined—and they were not going to have the union reconstructed on their terms.

So I think Section 3 was meant to visualize a country where slavery was gone, where everyone, regardless of race and previous condition of servitude, is a citizen. And where people who had committed treason will be barred from holding office because they had violated their oath to the U.S. Constitution. In my view, those were very generous terms, but Southerners didn’t like that. They fought for amnesty, and eventually they even got amnesty. But it definitely covered the president of the United States, or any officeholder. The president takes an oath of office to the U.S. Constitution. Section 3 is very clear about that. So if you have taken an oath to the U.S. Constitution at any level, from the presidency to any other federal official, and committed insurrection, you will be disqualified. You don’t need a trial, you don’t need a punishment. I think it sounds kind of nice to say, “Oh, someone’s denied the due process of law,” which is also in the 14th Amendment, right? That sounds nice, but actually on this issue in particular, it’s irrelevant.

The other piece of this you tackle in the brief and that I think gets chummed up with a lot of bad history is that we need implementing legislation. And again, I think this hangs on one decision made by Chief Justice Salmon Chase in In Re Griffin in 1869. It was not a Supreme Court decision. This is known to be a kind of outlier.

The only legislation that Section 3 contemplates—and that’s the way out for Trump—is the amnesty. Win both houses of Congress, get a two-thirds majority of Republicans, and get an amnesty law passed for you. That’s the way a democratic process works, that’s the fundamental law of the country, the Constitution. You can’t invent that there has to be enabling legislation, or a trial, or any of that, because it’s a qualification now to be a federal officer. I think it’s a minimal qualification that you have not committed treason against the United States government.

There’s another historian’s brief, it actually cites to your work, and it makes an argument that the brief you signed makes, but it really puts it on steroids. That brief essentially says: This is not just a backward-looking enterprise; that the drafters of the 14^th Amendment were not just trying to bench secessionists, they were not just trying to just resolve the problem of the Civil War and Reconstruction. They were also staving off future insurrections. And one of the things in that brief is that “five years and 700,000 war deaths later, the Framers of the 14^th Amendment hoped not only to prevent a resurgence of secessionism, but also to protect future generations against insurrectionism.” An early draft of Section 3 had limited the reach to those who had participated in the last insurrection, but was eliminated in favor of language that said we’re looking forward, too. It goes to the heart of the issue you’re raising: There’s no question that the drafters of Section 3 were not just thinking about past insurrections. They were thinking exactly what you were thinking on Jan. 6, which is, “Here we go again.”

I think that brief is really quite brilliant. It’s done a wonderful job just excavating the historical reasoning for the 14^th Amendment [including] the debates in the Congressional Globe, the magazine that literally reprinted everything that people said in Congress, and it’s available online. Your listeners, if they’re really interested, can go back and read those debates, but that brief looks at the Congressional Globe, and it’s clear from those debates that it’s not a short-term stopgap solution to the crisis they are facing, which is the major crisis of the union until that point, a huge insurrection and a war that lasted four years.

They are in fact thinking about the future of American democracy. Because when you write a Constitution and you write a fundamental law of a country, it’s not like a federal law that you are passing to meet the exigencies of the moment. You are writing a part of a document that you hope will be the founding document of the Republic for ages to come. And the people who wrote it are very well aware of that. So the equal rights Protection clause, they actually say this in Congress, they say: Who knows what rights may arise in the future that this clause might cover? So when the gay marriage issue came up, you could actually go back to somebody in the 19^th century saying that we are not aware of rights that might come up, but we are going to use the broadest egalitarian language so that no group of American citizens will ever suffer any disability for any reason, that there’ll be a national standard. Right? Same thing with Section 3.

They were quite aware that even though the Confederates had been defeated, that they had not accepted defeat. There were daily reports of racial massacres coming from the South, and the South was not reconciled, and the North was getting tired of what they call these “annual outrages.” They didn’t have the political will to occupy the South or to de-Confederatize it, if I can invent a word, the way you have de-Nazification in Germany after the Second World War. They don’t have the political will or the military will to do it. So the 14^thAmendment is supposed to take care of that. And it is supposed to visualize the future.

A lot of folks are saying this is just not a good idea because they’re afraid it will foment more dissatisfaction, and more violence, and construct a world in which Trump supporters can say, “Now I really am disenfranchised.” Jonathan Chait has said that to disqualify Trump would be seen forever by tens of millions of Americans as a negation of democracy. That’s the political-slash-pragmatic argument against invoking Section 3. I want to give you a chance, as a historian, to respond. What does history tell us about what happens when you poke the bear? What happens when you call people insurrectionists? What happens when you actually say, “No, you are not fit to serve?”

This is an argument being made by a lot of people who see themselves as moderates, you know, in the mainstream—liberals even. And they don’t want to do anything that will antagonize Trump’s supporters. What is more dangerous, in my opinion, is in a two-party system, to have one party completely taken hostage.

I would ask Chait to listen to the one mainstream moderate anti-slavery politician from the 19^th century. Not an abolitionist, but a mainstream moderate anti-slavery politician, Abraham Lincoln. Now, before Lincoln became president, there was this idea, the controversy that actually led to the Civil War, which was the expansion of slavery into Western territories, which was really Indigenous Nation territories. They were visualizing that they would just dispossess them. But the controversy was not over abolition, it was over the expansion of slavery into these territories. The Southerners, of course, believed slavery should expand everywhere. We should conquer Central America, Cuba. They had these grandiose pro-slavery visions. But Northern Democrats like Stephen Douglas, in the Lincoln–Douglas debates, says: Let’s let the settlers decide. Let the white settlers decide they can vote slavery up or down. That’s the Democratic solution. That’s what he called popular sovereignty. And Lincoln is amazing. He says: That’s not democracy, that’s autocracy. The federal government should prohibit the expansion of slavery. It’s a moral wrong. It should never be put to vote up or down. I think for somebody as dangerous and authoritarian, who says: “When I’m elected president, I will basically dismantle our constitutional republic, I will weaponize the federal government, I will deport people who are even citizens,” take him at his word. I think this is why we have a constitutional democracy.

You can put certain things to a vote. You can put certain people up on the ballot. But they have to meet certain qualifications. And I think in a country based on the rule of law, based on basic ideas of citizenship, human rights, of not allowing a really bad actor to take office, we need to be aware of this. And I would say: Listen to Lincoln’s Lyceum speech from 1838 when he warned that a bad actor or tyrant could take advantage. And that’s when the rule of law should trump any pretended exercise in voting or democracy. And in this particular case, I really think people have gotten it wrong. They’re afraid of the political violence that Trump’s disqualification might incite. I am afraid of the political violence that he would unleash, and then also use the instruments of state to do that. And then you are in a position of no return.