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US HISTORIANS SIGN BRIEF TO SUPPORT COLORADO’S REMOVAL OF TRUMP
FROM BALLOT
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Martin Pengelly
January 28, 2024
Guardian
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_ If the court does not “honour the original meaning of the 14th
amendment and disqualify Donald Trump,” an eminent historian writes,
“it will trash the constitutional defense of democracy designed
following slavery’s abolition” _
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Twenty-five historians of the civil war and Reconstruction filed
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US supreme court brief in support of the attempt by Colorado to remove
Donald Trump from the ballot under the 14th amendment, which bars
insurrectionists from running for office.
“For historians,” the group wrote
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“contemporary evidence from the decision-makers who sponsored,
backed, and voted for the 14th amendment [ratified in 1868] is most
probative. Analysis of this evidence demonstrates that decision-makers
crafted section three to cover the president and to create an enduring
check on insurrection, requiring no additional action from
Congress.”
Lawyers for Trump argue
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the presidency is not an “office” as described in the 14th
amendment, that only congressional action can stop someone from
running, and that Trump did not incite an insurrection.
Trump was impeached in Congress (for the second time) for inciting an
insurrection: the Capitol attack of 6 January 2021, an attempt to
overturn defeat by Joe Biden now linked to nine deaths, more than
1,200 arrests and hundreds of convictions.
Impeached with the support of 10 House Republicans
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only seven Senate Republicans voted to convict, Trump now dominates
his party and its presidential primary, 91 criminal charges (17 for
election subversion), civil trials and ballot challenges
notwithstanding.
Maine has also
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to remove Trump from its ballot, a ruling delayed, like that in
Colorado, while the supreme court considers the issue. Oral arguments
are set for 8 February.
Amicus briefs allow interested parties to make relevant arguments.
Earlier this month, nearly 180 Republicans joined
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brief in support of Trump.
The 25 historians – among them James McPherson
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the pre-eminent civil war scholar – pointed to 1860s congressional
debate.
“Senator Reverdy Johnson of Maryland, a Democratic opponent of the
14th amendment, challenged sponsors as to why section three omitted
the president. Republican Lot Morrill of Maine … replied, ‘Let me
call the senator’s attention to the words “or hold any office
civil or military under the United States”.’ Johnson admitted his
error; no other senator questioned whether section three covered the
president.”
The historians also cited Andrew Johnson, in 1868 the first
president impeached
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referring to himself as “chief executive officer”.
Pointing out that section 3 of the 14th amendment is self-executing,
and that “no former Confederate instantly disqualified from holding
office under section three was disqualified by an act of Congress”,
the historians also noted that Jefferson Davis, the Confederate
president, cited his own disqualification as reason an indictment for
treason should be quashed.
“Contemporary information provides direct evidence of the enduring
reach of the 14th amendment,” the historians wrote. “Congress …
chose to make disqualification permanent through a constitutional
amendment.
“Republican senator Peter Van Winkle of West Virginia said, ‘This
is to go into our constitution and to stand to govern future
insurrection as well as the present.’ To this end, the Amnesty Acts
of 1872 and 1898 did not pardon future insurrectionists.”
The historians also said “adverse consequences followed” amnesty,
many ex-Confederates winning office and “participat[ing] in the
imposition of racial discrimination in the south that vitiated the
intent of the 14th and 15th amendments to protect the civil and
political rights of the formerly enslaved people.”
The historians concluded: “The court should take cognisance that
section three of the 14th amendment covers the present, is
forward-looking, and requires no additional acts of Congress for
implementation.”
Some political and legal observers have suggested Trump should be
allowed to run regardless of the constitution, because to bar him
would be anti-democratic.
In a forthcoming article for the New York Review of Books
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Guardian, Sean Wilentz of Princeton
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historian not part of the supreme court brief – calls such arguments
“risible”.
“By their reasoning,” Wilentz writes, “Trump’s misdeeds aside,
enforcement of the 14th amendment poses a greater threat to our
wounded democracy than Trump’s candidacy. In the name of defending
democracy, they would speciously enable the man who did the wounding
and now promises to do much more.”
Trump and allies including Elise Stefanik of New York, a House
Republican leader, have refused to commit
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certifying the result should Trump lose in November.
Wilentz continues: “Whether motivated by … fear of Trump’s base,
a perverted sense of democratic evenhandedness, a reflexive hostility
toward liberals, or something else, [commentators who say Trump should
stay on the ballot] betray a basic ignorance of the relevant history
and thus a misconception of what the 14th amendment actually meant and
means. That history, meanwhile, has placed the conservative members of
the supreme court in a very tight spot.”
Wilentz says justices who subscribe to originalism, a doctrine that
“purports to divine the original intentions of the framers [of the
constitution] by presenting tendentious renderings of the past as a
kind of scripture”, will in the Colorado case have to contend with
evidence – as presented by the historians’ brief – of what the
framers of the 14th amendment meant.
It isn’t ‘anti-democratic’ to bar Trump from office. It’s
needed to protect democracy
Steven Greenhouse
Recently used to remove the right to abortion and to gut voting
rights, originalism now threatens, Wilentz says, to become a “petard
… exploding in the majority’s face.”
He also writes: “The conservative majority of the supreme court and
the historical legacy of the [Chief Justice John] Roberts court have
reached a point of no return. The law, no matter the diversions and
claptrap of Trump’s lawyers and the pundits, is crystal clear, on
incontestable historical as well as originalist grounds … the
conservatives face a choice between disqualifying Trump or shredding
the foundation of their judicial methodology.”
If the court does not “honour the original meaning of the 14th
amendment and disqualify Donald Trump”, Wilentz writes, “it will
trash the constitutional defense of democracy designed following
slavery’s abolition; it will guarantee, at a minimum, political
chaos no matter what the voters decide in November; and it will quite
possibly pave the way for a man who has vowed that he will, if
necessary, rescind the constitution in order to impose a dictatorship
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revenge.”
_Martin Pengelly is breaking news editor for Guardian US.
Twitter @MartinPengelly. Click here
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Martin's public key_
_Sign up to Trump on Trial free newsletter.
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of Donald Trump’s trials. Guardian staff will send weekly updates
each Thursday – as well as bonus editions on major trial days._
* 14th amendment
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* historians
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* Reconstruction
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* Donald Trump
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