Twenty-five historians have submitted an amicus brief to the Supreme Court in support of Colorado’s decision to bar Donald Trump from the Republican primary ballot. Their filing aims to address legal uncertainties linked to the 14th Amendment, offering historical insights to aid the court’s deliberations.
An amicus brief, authored by individuals or organizations not directly party to the case, serves to provide expertise to assist the court in making informed decisions. Several of US historians who filed the brief have testified extensively in civil and voting rights litigation.
The Colorado Supreme Court sided with a watchdog group called Citizens for Responsibility and Ethics in Washington in a 4-3 decision, removing Trump from the Colorado Republican Primary ballot in December 2023. Trump legal team has responded by urging the US Supreme Court to reverse a judicial decision.
As the legal case unfolds, questions abound regarding Section 3 of the 14th Amendment. Can the disqualification clause extend to a President? Is the 14th Amendment self-executing?
In their amicus brief, historians Orville Vernon Burton, Allan J. Lichtman, Nell Irwin Painter and others try to answer these important questions to assist the Supreme Court in coming to a decision rooted in historical fact.
According to Section 3 of the 14th Amendment, “No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath … as an officer of the United States … 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.”
Can a president be disqualified?
In their amicus brief to the US Supreme Court, the first question addressed by historians revolves around Section 3 of the 14th Amendment: Can a president be disqualified? The constitutional language specifically mentions an “officer of the United States.”
The US Supreme Court brief says that yes, the disqualification clause of Section 3 of the 14th Amendment covers the President of the United States. The historians provide various examples of instances where the terms “officer” and “president” seem to be interchangeable. One of them includes a quote from the principal author of the 14th Amendment, Republican Representative John Bingham of Ohio, during the 1868 impeachment and trial of President Andrew Johnson.
“Did not the gentlemen know that it is written in the Constitution that the President, the Vice President, and every other civil officer of the United States shall be removed from office on impeachment for and conviction of high crimes and misdemeanors,” said Bingham.
Andrew Johnson Presidential Dollar, USA coin a portrait image of ANDREW JOHNSON in God We Trust 17th PRESIDENT 1865 -1869 on $1 United Staten of Amekica, Close Up UNC Uncirculated – Collection [ Editorial credit: Prachaya Roekdeethaweesab/ Shutterstock]
In the summary of their argument, they say that during the President Andrew Johnson impeachment and trial, decision-makers who backed Section 3, explicitly recognized the President as a civil or constitutional officer of the United States.
They note that in presidential proclamations, Andrew Johnson routinely identified himself as the “chief executive officer of the United States.” In many instances, the framers of the original Constitution did not limit the designation of officers to appointed officials, but recognized the President as a national officer.
The amicus brief further cites contemporary evidence from President Andrew Johnson’s proclamations, where he explicitly refers to the presidency as the “chief executive officer of the Republic,” reinforcing the notion that the term “officer” encompasses the president under the 14th Amendment.
Johnson, according to the historians, used “officer” in numerous subsequent proclamations. He continued to term himself the “chief executive officer of the United States” and he referred to the President and Vice President of the Confederacy as “chief executive officers.”
Is Congressional action necessary?
The second question addressed in the US Supreme Court brief concerns the self-execution of Section 3 of the 14th Amendment, debating whether Congressional action is necessary. Historians argue in the amicus brief that since no former Confederate disqualified under Section 3 was subsequently barred by Congress, the provision is self-executing.
“No former Confederates whom Section 3 instantly disqualified from holding office were disqualified by an act of Congress or a criminal conviction for insurrection or rebellion,” the 25 historians wrote in the US Supreme Court brief.
Jefferson Davis, according to the US Supreme Court brief, the former Confederate President, actually used his instant disqualification to try and repeal his indictment for treason. He argued that he was already punished because he was automatically disqualified from holding public office under Section 3, which “executes itself … It needs no legislation on the part of Congress to give it effect,” said Davis.
Another point the historians included in the amicus brief was how Section 3 was very explicit in the action Congress was required to take or not take. For instance, Congress could lift an disqualification for holding office that occurred, but only by a two-thirds vote, but it says nothing about any action needed to be taken to by Congress to disqualify an insurrectionist.
“For all the foregoing reasons, the Court should take cognizance that Section 3 of the 14th Amendment covers the present, is forward-looking, and requires no additional acts of Congress for implementation,” said the 25 historians in the US Supreme Court brief.
Republicans in the US Congress disagree with the Colorado Supreme Court ruling to disqualify their frontrunner from holding office pursuant to Section 3 of the 14th Amendment. They have filed their own amicus brief.
Whatever the outcome, disqualifying Trump through this avenue presents considerable challenges, despite the compelling arguments put forth by twenty five historians. Given Trump’s appointments to one-third of the Supreme Court, a conservative majority might opt for deference, potentially leaving the decision to Congress.
