Trump’s Supreme Court Ballot Argument Posits That Jefferson Davis Wasn’t an Insurrectionist Either

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Republican lawmakers framed and ratified Section 3 of the 14th Amendment after the greatest insurrection in American history. They did not foresee Jan. 6, 2021. They did not predict Donald Trump. But they entrenched the Constitution’s understanding of an insurrection and an insurrectionist. They deliberately settled the question for the future. They would have kicked Trump to the curb when the former president tried to run for office after he fomented an insurrection, on Jan. 6, 2021, against the United States. Nothing has happened between 1866 and 2024 to change the constitutional principle that a person is disqualified to lead the government whose law and election returns he violently resisted.

The central question before the Supreme Court when the justices hear oral arguments in Anderson v. Griswold on Thursday is whether Trump violated his oath of office by inciting, participating, and engaging in an insurrection against the United States. John Yoo, a former Department of Justice official who wrote the infamous “torture memos” during George W. Bush’s presidency, has submitted an amicus brief on Trump’s behalf claiming “the breadth of the term ‘insurrection [against the Constitution]’ … is, in the absence of legislative definition, uncertain and indeterminate.” Trump’s lawyers’ brief insists that “nothing that President Trump did in response to the 2020 election or on January 6, 2021, even remotely qualifies as ‘insurrection.’ ”

Both claims are baseless inventions, easily contradicted by an abundant historical record as well as by the evidence. From the ratification of the Constitution until the end of Reconstruction, the U.S. experienced many violent episodes that were contemporaneously identified as insurrections, from Shays’ Rebellion, in 1786, and the Whiskey Rebellion, in 1794, to the Civil War. The Ku Klux Klan Act of 1871, which specifically incorporated Section 3 of the 14th Amendment, described Klan violence as “insurrections.”

What these insurrections had in common was 1) an assemblage 2) resisting the law 3) by force or intimidation 4) for a public purpose. That understanding was articulated by the Supreme Court, Supreme Court justices riding circuit, other federal judges, state court judges, and the leading legal treatise writers during the period between ratification of the Constitution and Reconstruction. John Marshall, James Wilson, Joseph Story, Benjamin Curtis, and Francis Lieber were among the giants of American constitutional law who concurred over time that these constituted the elements of an insurrection. Congressman George Boutwell, a member of the Joint Committee on Reconstruction responsible for drafting the 14th Amendment, later set this out as the 19th-century consensus in The Constitution of the United States at the End of the First Century.

Americans in the 19th century regarded insurrection as synonymous with “levying war.” “Levying war,” Chief Justice John Marshall noted in United States v. Burr, was a “technical term,” one of the two forms of treason. (The other, giving aid and comfort to enemies of the United States, has been limited largely to supporting foreign efforts to undermine American law and authority.) “Levying war” in the constitutional sense does not require—as Trump’s originalist supporters imagine—an overthrow of the national government, raising massive armies too strong to be resisted by ordinary law enforcement, an invasion, a violent national conflict, or an overt declaration of war. Trump defender Yoo cites not an iota of historical evidence when he insists that the persons responsible for Section 3 were referring to something other than the long-standing conception of an insurrection against the United States.

To the contrary, Story declared, “it is not necessary, that it should be a direct and positive intention entirely to subvert or overthrow the government.” He maintained, “It will be equally treason if the intention is by force to prevent the execution of any one or more general and public laws of the government.”

By the well-established law of the 19th century, Jan. 6 was an insurrection. There was an assemblage: Hundreds of people breached the Capitol building, and thousands trespassed on federal land. There was clear resistance to federal law: The trespassers intended to disrupt the proceedings mandated by the Electoral Count Act. The resistance took the form of force and intimidation by numbers: Many in the mob engaged in crimes of violence or threatened crimes of violence. The insurrectionists had a public purpose: They were violently protesting what they alleged was a stolen election.

Trump’s apologists do not seriously contest these facts. Nor did Trump’s attorneys seriously contest those facts in Trump’s trial for disqualification in Colorado. They have thereby, without understanding as much, assented to what the record shows, that the events of Jan. 6 constituted what the framers of the 14th Amendment would have understood was an insurrection.

Likewise, the groundless lawyerly obfuscation about whether Trump “engaged” in the Jan. 6 insurrection is a sheer distraction. When Section 3 was framed and ratified, what legally counted as engaging in an insurrection was clear. Persons “engage” in an insurrection by knowingly playing any role in an assemblage resisting by force the implementation of any law, for public reasons.

A person need not participate in every element of an insurrection to be an insurrectionist. In Ex parte Bollman, Marshall asserted: “If a body of men be actually assembled for the purpose of effecting by force a treasonable purpose”—which, as Marshall understood it, included insurrection— “all of those who perform any part, however minute or remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” Justices Curtis and Stephen Field agreed that “the law knows no accessories in treason; but that everyone who, if it were a felony, would be an accessory, is, in the law of treason, a principal traitor.” During the Civil War, members of Congress reiterated the principle that a person need not participate in every element of an insurrection to be an insurrectionist.

Those who incite insurrections are insurrectionists. Historically speaking, any person who provided the insurgents with aid and comfort on Jan. 6, much less engaged in incitement, would be easily recognized as an insurrectionist. Curtis maintained that treason or insurrection was committed by “every one who counsels, commands, or procures others to commit an overt act of treason, which is accordingly committed.” Abstract discussion not aimed at instigating action did not provide grounds for prosecution, but words intended to inspire forcible resistance to law were treasonable. Judge John Kane in Pennsylvania condemned as insurrectionists those who “counsel and instigate others to acts of forcible oppugnation to the provisions of a statute.” He concluded: “Successfully to instigate treason is to commit it.”

Sen. Jacob Howard of Michigan, who introduced to the Senate the final version of Section 3 of the 14th Amendment, spoke for the entire Republican Party in maintaining that there was “no distinction between inciting a rebellion or insurrection, setting on foot a rebellion or insurrection, assisting in a rebellion or insurrection, or engaging in a rebellion or insurrection.” If inciting a rebellion differs from engaging in a rebellion, as Trump’s defenders have argued, citing differences in statutory text, then both must differ from committing treason. Under absurd Trumpian principles of legal interpretation, then, Jefferson Davis and Robert E. Lee could prove they did not “engage” in an insurrection because they were traitors, not insurgents nor rebels.

Trump engaged in the Jan. 6 insurrection. He falsely alleged that the election was stolen even before all ballots were counted. When informed that his tweets had inspired violence against election officials, Trump doubled down on his rhetoric. When informed that many in the crowd on Jan. 6 had weapons and were prepared to use violence to prevent the peaceful transition of power, Trump told the potential mob, “When you catch somebody in a fraud, you’re allowed to go by very different rules.” He urged, “We fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” For hours, informed of the assault on the Capitol, which he watched on television, Trump refused to exercise presidential powers as the mob prevented the peaceful transition of presidential power, and he made threatening statements to White House staff about Vice President Mike Pence for not doing his bidding to stop the lawful certification of the Electoral College.

If the originalists on the Supreme Court are true to their principles, they must disqualify Trump from holding office ever again. They must not squirm out of their responsibility to uphold the constitutional definition of an insurrection and an insurrectionist. They must not try to find an escape hatch through gambits over semantics such as finding him—as every Republican who framed Section 3 would have viewed to the contrary—not to have been an “officer of the United States,” or worrying about what oath of office Donald Trump violated. The history of the 14th Amendment, Section 3 is indisputable. And the history of Donald Trump in his attempt, over months leading to Jan. 6, to overthrow a democratic election is undeniable. This Supreme Court’s reputation in history now depends upon its frank and honest ruling on this question.