Portside

Twenty-five historians of the civil war and Reconstruction filed a 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, “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 that 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 but acquitted when 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 sought 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 a brief in support of Trump.

The 25 historians – among them James McPherson of Princeton, 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, 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, seen by the Guardian, Sean Wilentz of Princeton – an eminent 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 to 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.

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 of revenge.”

Martin Pengelly is breaking news editor for Guardian US. Twitter @MartinPengelly. Click here for Martin's public key

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