Does history support removing Donald Trump from the presidential ballot?
STEVE INSKEEP, HOST:
States are making different decisions about allowing Donald Trump's name on the presidential ballot. The Illinois Board of Elections said yesterday it's fine. Maine and Colorado said it's not. And the Supreme Court is deciding if states really have the power.
LEILA FADEL, HOST:
Colorado's Supreme Court said Trump is not qualified for the presidency under the Constitution's 14th Amendment. Section 3 of that amendment says you can't serve in federal office if you once took an oath to support the United States and then engaged in an insurrection or rebellion.
INSKEEP: This happened after the Civil War. Many justices on the court are originalists. They judge things based on the original public meaning of a law. So historians have submitted a friend of the court brief on what it means. They include Jill Lepore and David Blight.
JILL LEPORE: If the court's going to make its decisions based on an originalist interpretation, they do need good history. It does then become a kind of civic obligation of historians to provide the court, you know, the best and most accurate historical evidence.
INSKEEP: There seem to be several questions about the 14th Amendment, and the first is whether it still applies today or was just intended to apply to rebels from the Civil War that had just ended. What does the history tell you?
LEPORE: Yeah, the history on that point is quite clear, and actually, I will say, also moving. People were terrified. We can barely imagine the scale of suffering in a war that had cost 700,000 lives and had lasted for four years, and soon afterward ex-Confederates were being reelected to Congress. So the palpable concern people had that this kind of violence would become a feature of American life, and that the only way to stop that was with Section 3 - the discussion turned to, we need to make sure that this is in place to prevent future insurrections.
INSKEEP: When you look at the discussions, the debates about that language, did anybody address whether it was just for former Confederates or whether it was forever?
LEPORE: Absolutely. Sort of repeatedly people would just sort of read into the record their understanding that what they were agreeing to here was a provision that would apply not only to ex-Confederates, but to future insurrectionists. So a Missouri Republican named John B. Anderson (ph), on the day he cast his vote for the 14th Amendment in the Senate, said the language of this section is so framed as to disenfranchise from office the leaders of the past rebellion, as well as the leaders of any rebellion hereafter to come.
INSKEEP: So there's no doubt in your mind that when we're talking about disqualifying people for insurrection, that means now as well as 1868. That means any other thing as well as the Civil War.
DAVID BLIGHT: Well, they couldn't entirely anticipate what we're going through now, as no one could, but they meant it to be permanent.
INSKEEP: The next controversy that's being discussed today is whether, because of its wording, it applies to all officials except the president, or does it also apply to a president?
LEPORE: So there's a whole lot of legal nitpicking around this, which, from a historian's vantage, is nothing short of bizarre. It defies the record of the drafting. It defies the logic of Section 3. And it also defies what originalists would describe as the public understanding of Section 3. There's an incredible terror about Jefferson Davis in particular, who, you know, unlike Trump, had not been president of the United States. He had been president of the Confederacy. But that he would make a bid for the presidency was a real concern.
BLIGHT: And I'd also add, if they tried - they being the court - to use this idea that because Section 3 doesn't explicitly name the president, they're effectively making up a technicality. Because it says anyone who took an oath and held high office. Now, if the president isn't an officer of the United States, then who is?
INSKEEP: Let's move on to another controversy, which is who gets to decide if someone should be disqualified. In this case, the Colorado State Supreme Court has decided. We have other instances where a secretary of state of a state has decided. What does the history tell you there?
LEPORE: If you look in the congressional petitions database, among the petitions that you find in 1868 and 1869 are many, many, many petitions from ex-Confederates to Congress seeking the removal of their Section 3 disability. None of these people have been convicted of insurrection. It was their understanding, as it was indeed the understanding of those who framed Section 3, that it would be self-executing.
INSKEEP: We have this controversy today over whether various state officials can keep people off the ballot, which gets to the question of who can decide if someone engaged in insurrection if they denied it. Is there any history as to whether almost any random official or any specific official acted on this and said, listen, the facts are what the facts are. You cannot serve.
BLIGHT: Well, there's very little precedent here of any kind. Let's face it - Section 3 had all but vanished from history, and it's just suddenly risen from the dead. And that is why this so quickly went right directly to the Supreme Court. What we tried to focus on, as Jill said, is the actual history beneath why it was done and what it means and what its consequences are.
INSKEEP: Does the attack in the Capitol on January 6, 2021, and the larger effort to overturn Trump's defeat in the 2020 election - does that count as insurrection? Does the history tell you anything about the original public meaning of that word as it existed in the 1860s?
BLIGHT: Well, I would only say, despite the fact that the Confederacy is the largest dissent in American history, they never invaded the U.S. Capitol building. They never got there. In the January 6 case, a mob invaded the U.S. Capitol by violence and force to overturn the count of the Electoral College. And they were openly, vigorously prompted by the president of the United States. If that's not insurrection, then neither was the Confederacy.
INSKEEP: What would you, as citizens, make of one more argument that is less about the law in history than about political wisdom - is it wise to disqualify someone that millions of people apparently want to vote for, rather than defeating him at the ballot box, which is the way that many people would think it ought to work?
LEPORE: He was defeated at the ballot box, and he incited an insurrection.
BLIGHT: Great answer, and I would only add that we all want to believe in this basic principle - it's one of Jefferson's four first principles in the Declaration - of popular sovereignty. The people rule. We have representative democracy. Fine. But we also have laws. And I don't think in this case, a degree of popular will should be the only question in the enforcement of the Constitution, which is itself quite clear.
LEPORE: There is no one who relishes the idea of Section 3 being applied in this case. There is no glee to be had. There is no triumph in striking Trump from a ballot. But this is what the Constitution says. And this is a court that has pledged to abide by the original intention, meaning and public understanding of the Constitution. And it has to come up with an answer to this history.
INSKEEP: The historians who submitted a friend of the court brief to the United States Supreme Court on this question include David Blight and Jill Lepore. Thanks to you both.
LEPORE: Thanks, Steve.
BLIGHT: Thank you, Steve.
INSKEEP: David Blight wrote "Frederick Douglass: Prophet Of Freedom." Jill Lepore wrote "These Truths." Transcript provided by NPR, Copyright NPR.