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Historians Tackle 14th Amendment Section 3 and Fail (3): Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt

This blog addresses the third of the three historian briefs submitted to the Supreme Court in support of the decision by the Colorado Supreme Court to disqualify Donald Trump from running for President of the United States under Amendment 14 Section 3.

JILL LEPORE

Before turning to the brief itself, Jill Lepore, one of the historians, wrote an article “What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President (New Yorker, December 4, 2023, online). The subject is Jefferson Davis, the ex-President of the Confederate States of America. Almost the entire article is about the failed effort to try Davis either for treason or under Section 3.

Amidst that recapitulation she raises some questions about today.

Can Donald Trump get a fair trial? Is trying Trump the best thing for the nation? Is the possibility of an acquittal worth the risk?… But the failure to try him is an affront not only to democracy but to decency…

Several times she expresses her awareness that no what verdict is rendered about half the country would not accept it. In these small digressions scattered throughout the article she has touched upon the core truth of the effort to disqualify Trump – the country is too divided for the issue to be resolved legally. Ultimately one should note it is a political problem and fortunately, not yet, a military one.

AMICI CURIAE: LEPORE, BLIGHT, FAUST, WITT

The reason for the filing of the brief is due to its gravity and “the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment” (Page 2). To do so requires “establishing the original intent, meaning, and public under understanding of the Disqualification Clause” (Page 2). Here they are using one of the jargon terms favored by the Trump judges on the Supreme Court.

They state the concern in the aftermath of the Civil War was:

That office-holders who had violated their oaths to the Constitution would reassume positions of authority, destabilize state and federal governments, and suppress freedom of speech. The Republican framers of the Amendment believed that anything short of the disqualification of insurrectionists risked surrendering the government to anti-Constitutionalists rebels (Page 2).

Considering the fact that an election-denier is the Speaker of House, this concern should be applied to a wide swath of people and not just to Donald Trump.

According to these historians, the framers “hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism” (Page 3). Given the actions of Texas on its border with support of 25 governors and the state of Utah ratifying a nullification act, it would seem that banishing one and only one individual from the ballot seems like avoiding the issue. The intention was not that the amendment only would apply to Jefferson Davis and no one else. It was intended to apply to all Confederates including those who had run for the House and Senate.

Much of the remainder of the brief recounts the history leading up to the ratification leading up to the disqualification section. Sometimes they show that the circumstances involving the MAGAs and the Confederates are quite different without saying so. For example:

Northerners undertook to purge Confederate sympathizers from positions of authority both inside and outside of government and, in mass meetings called upon Congress to do the same (Page 6).

No such purge has occurred today. In fact, the exact opposite has occurred. Real Republicans who know the election was not stolen are the ones who have been purged from Congress or chosen to retire. The historians refer to Frederick Douglass who charged that many Confederate sympathizers remained within the federal government (Pages 6-7). In fact that is the exact situation now where the insurrectionists remain in Congress today and do so quite openly.

With this background in mind, the historians move on to the drafting and ratification of Section Three (Pages 15-26).

Lo and behold! Congress discovered continuing hostility in the southern states (Page 15). This realization strengthened the determination of the winning side to prevent representatives from the losing side being elected to office.

Sounds like MAGA.

In testimony before Congress J.W. Alvord of the Freedman’s Bureau was asked about the rebel feeling towards the government of the United States. His reply was:

There is evidently no regret for the rebellion, but rather a defence of it (Page 16).

Sounds like MAGA.

He was then asked about what the Confederates sought to achieve by their readmittance to Congress. He replied:

They seem to suppose that by re-admission they can get political power and obtain again the supremacy which they once had, with the exception of slavery.

Sounds like MAGA.

A tax examiner said:

No. I think they have a stronger aversion and dislike of the Union than when they seceded (Page 17).

Sounds like MAGA.

The initial ratification attempt failed. The Southern states as one might expect, opposed it. This action:

…reflected the emerging ideology of the Lost Cause, a tenet of which was the argument by ex-Confederates that they never had engaged in “rebellion,” should never be considered “rebels,” and had merely exercised legitimate rights of “sovereignty” with secession and war [it was legitimate political discourse] (Page 25).

Sounds like MAGA.

Matters came to a head in March 1867 when over a Presidential veto, Congress passed the Military Reconstruction Act. That Act stipulated that no state could be re-admitted without first ratifying the Fourteenth Amendment (Pages 25-26). In other words, it was the military power of the victorious Union which made the Disqualification section the law of the land.

In the final section, the historians turn to the persistence of Section Three. The story returns to Jefferson Davis and the inability to try him for treason. They call Davis a “cautionary tale” on the danger facing the nation if the leader of an insurrection could run for President (Page 30). They note by 1872, the number of petitioners requesting amnesty under Section 3 at between 15,000 to 16,000 people (Page 31). They also note that ex-Confederates would be elected governor and to other offices across the South (Page 32).

CONCLUSION

These historians have made a very strong case for the applicability of the 14th Amendment Section 3 … only not the one they think they made. They constantly refer to Jefferson Davis and his potential run for President. The implication is that the amendment was designed with someone like Donald Trump in mind.

But they acknowledge the widespread antipathy towards the Union by the defeated Confederates.

They acknowledge that it required the Military Reconstruction Act to implement disqualification in practice.

They acknowledge that thousands of people sought re-instatement from Congress.

As much as they focus on one individual, Jefferson Davis, they actually are making a case why all Confederates were disqualified. The current parallel is that all the MAGA who are election-deniers should be disqualified as well. But they can’t call for such a blanket consolidation because they know the war is not yet over and MAGAs could yet triumph. It is hard to see how this brief would persuade the Supreme Court to remove Donald trump from the ballot.

 

 

A Failure to Communicate: Saying “At the top of the hour” in a Digital World

Michael Fox would be trapped in the past if the world was digital. (Shutterstock_5886092)

Why do newscasters still refer to the “top of the hour” and the “bottom of the hour” in a digital world? Do they think their audiences understand the literal meaning of those terms yet alone their symbolic importance like “above the fold” to people who do not read newspapers? Language lingers even as technology moves on.

Here is a reader letter in response to an article by Drew Gilpin Faust “Gen Z Never Learned to Read Cursive” (The Atlantic, October 2022).

Can you do this? Can your students? Can perps arrested on Blue Bloods?

Drew Gilpin Faust’s article on students’ inability to read cursive reminded me of a similar lack of knowledge that I encountered years ago, when I was teaching at the University of Colorado. I had assigned my students timed presentations. There were no clocks in our classrooms (supposedly too distracting), so I brought in a portable analog clock. To my surprise, none of my students could read it—they only told time on their cellphones.

It seems like an amusing incident worthy of a chuckle rather than a concern. Presumably they can read the analog gas and speed gauges on their cars if they have them so they know when they to stop and refill their car or to slow down to avoid a ticket.

Now think of old people taking their annual Medicare physical. As part of the exam, their mental acuity is tested. They are asked to write on the blank face of clock where the long and short hands would be at a specified time. The question, of course, presupposes that the patient is familiar with analog clocks unlike those students above and can position the hands accordingly. That assumption may be true now, but there may come a time when patients lack such knowledge and look at the medical assistant with a blank face. What then?

Here’s a recent example. Russia is bombing Ukrainian energy facilities to weaponize the cold and darkness. According to a reporter, Ukrainians manage to survive the assaults because to repair vital equipment, engineers are working “round-the-clock” (Ukraine Targets Russian Oil Plants with Drone Attacks,” NYT January 20, 2023). Not “non-stop” or “continually” but “round-the-clock.”

SOS

Now consider the well-known “SOS,” short for “Save our ship” from its maritime origin. Once upon a time in the movies, when people were trapped and needed to communicate with potential rescuers, there was one person in the group who knew Morse code. Through a series of dots and dashes the isolated people could communicate information that directly contributed to their rescue. Today, people could openly use Morse code to communicate secure in the knowledge that no one around save their friends would understand what was being communicated … or that anything was being communicated. They might just think you were playing a drum and not insulting them in code.

Here’s another letter in response to the article by Faust.

Recently, I was scribing gift notes at a retailer in New York City and a teenage boy watched over my soldier curiously as I used an oblique dip pen and inkwell. I was shocked when he asked me what language I was writing in: I realized that to kids who haven’t learned script, I may as well be writing in cuneiform. Perhaps there is a future for me in antiquities translation.

In New York, where I live, that is an archive of Dutch texts in Albany at the State Library. They are in script. They are from the 1600s and 1700s. In other words, few people can decipher those markings and the main person is in his eighties. What happens next?

One final observation by Faust: although she is an inveterate note-writer, she learned that her students cannot read the hand the handwritten comments of their teachers … so they ignore them!

DOOMSDAY CLOCK

Doomsday clock announcement 2023

One final example from a current news item. From the website of the Bulletin of the Atomic Scientists:

The Doomsday Clock is a design that warns the public about how close we are to destroying our world with dangerous technologies of our own making. It is a metaphor, a reminder of the perils we must address if we are to survive on the planet.

When the Doomsday Clock was created in 1947, the greatest danger to humanity came from nuclear weapons, in particular from the prospect that the United States and the Soviet Union were headed for a nuclear arms race. The Bulletin considered possible catastrophic disruptions from climate change in its hand-setting deliberations for the first time in 2007.

In the early days, Bulletin Editor Eugene Rabinowitch decided whether the hand should be moved. A scientist himself, fluent in Russian, and a leader in the international disarmament movement, he was in constant conversation with scientists and experts within and outside governments in many parts of the world. Based on these discussions, he decided where the clock hand should be set and explained his thinking in the Bulletin’s pages.

When Rabinowitch died in 1973, the Bulletin’s Science and Security Board took over the responsibility and has since met twice a year to discuss world events and reset the clock as necessary. The board is made up of scientists and other experts with deep knowledge of nuclear technology and climate science, who often provide expert advice to governments and international agencies. They consult widely with their colleagues across a range of disciplines and also seek the views of the Bulletin’s Board of Sponsors, which includes 10 Nobel laureates.

Once upon a time, the clock stood at 17 minutes to midnight. This was right after the Cold War end with the collapse of the Soviet Union. Now it stands at a mere 90 seconds to midnight. On January 23, 2024, at 10:00 A.M., we will learn where the hands stand on the analog clock. Given the current military actions involving China, Iran, Israel, Pakistan, Russia, the United Kingdom, and the United States, the prospects do not good for setting of the clock. Of course, many people will not understand what moving the hands on the clock means or understand the symbolism of the stroke of midnight.

At least people know how to count backwards from ten!

NEW YEARS

New York City 2024 New Years (Reuters)

America welcomes in the New Year in style! Fireworks explode across the night sky on the East Coast as the clock strikes 12 and brings in 2024 – as Times Square’s iconic ball drop passes without incident despite fears of pro-Palestine protests (The Daily Mail/Reuters)

There is at least one time when people can read the face of an analog clock and know what the hands mean: New Years. Digital clocks don’t strike 12.