How US history could impact the US Supreme Court's decision on Trump's ballot eligibility

After the Colorado Supreme Court's ruling that the 14th Amendment excludes former President Donald Trump from the 2024 ballot, historical context might tell a different story.

Section 3 of the 14th Amendment was utilized by the Colorado Supreme Court to reach its decision, but a look into the time period in which it was created has the potential to reverse that decision, according to a U.S. history expert.

What does Section 3 of the 14th Amendment to the US Constitution say?

The clause used to argue why Trump wouldn't be allowed to hold office states:

"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. But Congress may by a vote of two-thirds of each House, remove such disability."

Doug Sheflin, associate teaching professor in the history department at Colorado State University, believes a major factor that will come into play regarding Trump's eligibility to hold office is the historical context behind this Civil War-era clause.

"We have to remember that back then, the United States didn't know where it was going and what it was to become, and now it's a very different context," Sheflin said.

What does the Civil War-era clause actually mean?

"It's interesting because the importance of the 14th Amendment was to create birthright citizenship after the Civil War and that was seemingly the most important thing," Sheflin said.

In recent years, Section 3 has been highlighted because of its language about allowing an insurrectionist to hold office, but Sheflin said that if Americans look deeper into the historical reasoning for this clause, it might not hold water today.

"The Civil War ends in 1865 and thus begins the period we call Reconstruction. It leads to one of the biggest debates regarding the aftermath of the war, which is how insurrectionists should be punished," Sheflin said.

Some wanted revenge on those who fought for the South, whereas others, like former President Abraham Lincoln, were lenient on the insurrectionists, Sheflin said.

"Some want them to pay financially, pay with their honor, pay politically — and ultimately, this section was created as a compromise. So, if you were deemed an insurrectionist, you were not able to run for office to uphold this part of the Constitution, but this is in 1868 so the war was still fresh in their minds," Sheflin said.

In the long run, this didn't end up working out. Sheflin explained that when this clause was practiced fully, it was near impossible to find a Southern political member to join Congress. So, the Amnesty Act of 1872 was adopted to help alleviate parts of the insurrectionist clause.

"If you take the Section 3 at its word, you can't allow anyone who participated in an insurrection to join office, but what actually happened was it wasn't very constructive to build a political system. So, they essentially said, 'If you weren't directly part of the Confederacy, you’re good, you can join,' " Sheflin said.

How could that context impact the US Supreme Court's decision on if Trump is eligibile to be on the ballot?

According to Sheflin, the sticky part is figuring out how Section 3 applies to the modern era.

"The first part is proving what an insurrectionist is, the second part is figuring out if the Amnesty Act comes into play," Sheflin said. "And what kind of role Congress and the court plays comes into debate as well."

One major concern is what happened historically because of the 14th Amendment and if the violence that followed is doomed to repeat itself.

"The Ku Klux Klan started up because they weren't allowed to participate in Congress," Sheflin said. "So, it created this division, and I think that's something that needs to be taken into consideration."

Sheflin explained that this could be one of those historical lessons, because the KKK went away for a while but resurfaced in the 1920s and then again in the 1950s and 1960s during the Civil Rights Movement.

Sheflin doesn't claim to know how violence might intertwine with today's case, but with a close look into how the use of this amendment played out in history, he said it all comes down to how the government handles it now.

"Insurrection was an easy thing to prove back then, but this is different," Sheflin said. "What we know in this world is everything will be litigated until its completion, but back then if you wore a grey uniform it was a pretty obvious line, and now it's quite blurred."

25 states share disapproval over Colorado Supreme Court's decision

Officials from 25 states recently signed an amicus brief that will go to the U.S. Supreme Court ahead of the court's decision.

The brief argues that the decision should be reversed because of "a serious blow to the Constitution's structural separation of powers."

The insurrection clause in the Constitution, as mentioned earlier, states, "Congress may by a vote of two-thirds of each House, remove such disability." The amicus brief utilizes this statement to justify a reversal in the Colorado Supreme Court's decision that bars Trump from the election ballots.

"Only Congress can disqualify a person from holding office under Section 3. At least to this point, Congress has not seen fit to do so as to the events of January 6. The Colorado decision overrides that choice," the brief states.

The brief concludes that Colorado's decision to remove Trump only invites more judicial meddling and loss of confidence in the judiciary.

The Supreme Court has yet to reach a decision on if the historical context of the 14th Amendment applies in 2024.

This article originally appeared on Fort Collins Coloradoan: What to know about the 14th Amendment clause being used against Trump