Civil War historians and the 14th Amendment

A Liberal Dose


 Last week, the Supreme Court took up the issue of whether Colorado can bar Trump from the presidential ballot based on the 14th amendment and heard oral arguments. It may be several weeks before they release a ruling. Observers and pundits are leaning toward the belief that Colorado’s ruling will be struck down, as all nine justices seemed to express doubts about whether the amendment applies to presidents (since they are not mentioned specifically), whether that section can be executed without Congress passing a specific law to do so, and (mostly) whether it is wise or fair for one state’s decision to affect the outcome of a national election.

However, the outcome is not yet guaranteed. The Supreme Court often issues rulings that do not conform to what it LOOKED like they were thinking during oral arguments. Sometimes when Justices ask hard questions of one side, and even seem dubious about their position, it is to give that side the opportunity to address those points. So (unless a ruling is released between the time I am writing this and the time you read it) it could still go either way, at this point. I think it’ worth pointing out that the questions all nine Justices asked are in line with the arguments John Gottlied made in his column in this paper in response to mine, whereas the arguments made by the Colorado Court align with those I made, so we’ll see which way it falls. I would like to mention, though, the role historians have played in this process.

Whereas it was prominent law scholars (including some conservative ones) who first introduced the question of the 14th Amendment and Trump’s eligibility a few months ago, several of the most prominent and respected living historians of the Civil War and Reconstruction have contributed directly to this case. Two groups of them wrote amicus curiae briefs in favor of Colorado’s position, laying out their arguments in great detail (all of them arguments I have made in previous installments of this column). An amicus curiae, or “friend of the court,” brief is a statement presented to a court in support of one side or the other, usually by experts in the topic at hand. It is something historians often do. In my American Indian Law class, I structure the research paper assignment as an amicus brief in support of the Native American tribe of the student’s choice, in which the student presents themselves as a professional historian and explain the context, history, and current political meaning of a given controversy between that tribe and the federal or state government.

The first of these two briefs was written and signed by four historians, two each from Harvard and Yale. These included Drew Gilpin Faust and David Blight, two of America’s most prominent Civil War historians. The other one was signed by 25 historians, including my mentors Vernon Burton and David Roediger (both of whom were on my dissertation committee and both of whom have justifiably won many accolades for their influential scholarship). Others on that list included James McPherson (probably the most famous living Civil War historian), Steve Hahn, Kenneth Noe, Nell Irvin Painter, and George C. Rable. Even well-read lay-readers with an interest in the Civil War will recognize many of these names. I was initially invited to sign this one, as well, but it was decided that my specialty (Native Americans in the Civil War and Reconstruction) might be too narrow to help the efficacy of the document. It was a huge honor just to be asked, though.

You can easily find the text of both these briefs online, and I encourage you to do so. Even if the Supreme Court decision goes against removing Trump from the ballot, my arguments for doing so did not come out of left field; they are the consensus of professional historians in my field.

--Troy D. Smith, a White County native, is a novelist and a history professor at Tennessee Tech and serves on the executive committee of the Tennessee Democratic Party. His words do not necessarily represent TTU.    


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