Subscribe to the IHARE Blog

Historians Tackle 14th Amendment Section and Fail (2): Akhil Rees Amar and Vikram David Amar

Remember when the 14th Amendment Section 3 was all the rage? Everywhere you turned there was one talking head after another discussing this amendment and section and guessing what the Supreme Court would do. In my previous blog (Historians Tackle the 14th Amendment Section 3 and Fail: How Come?), I proposed that the Court would not be swayed by the historians’ brief. The Jefferson Davis/Donald Trump and Confederate/MAGA parallels were inadequate. The primary reason was that the Confederates had lost the war. They knew the disqualification applied to them. By contrast despite the chaos in the House of Representatives, the MAGAs have

Stymied aid to Ukraine
Stymied aid to Israel
Stymied aid to the Palestinians
Stymied aid to Taiwan
Failed to secure the southern border
Impeached a Secretary of Homeland Security.

Plus their leader, the former President of the United States has been fined around $464,000,000 (it increases daily). Meanwhile there are criminal and civil cases in New York, Washington, Georgia, and Florida just chomping at the bit to have their turn. These two developments are a reminder that the fields of battle this time are political and legal and not military.


The Amar’s begin their brief with the assertion that this case is “perhaps one of the most important cases in American history” (Page 1). To those who say the removal of “an immensely popular political figure from the ballot is profoundly undemocratic” (Page 1), they counter with:

… what is truly undemocratic is empowering a uniquely dangerous demagogue who already has disobeyed  his solemn Oath and is a genuine threat to recidivate and perhaps end the constitutional republic that now exists (Page 1).

They intend to address this deficiency by focusing on a “key episode, an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned” (Page 2).  They call this incident the First Insurrection. It occurred prior to the Second Insurrection aka the Civil War. It occurred prior to the inauguration of Abraham Lincoln as President in March 1861 (and not January 20 as we do today). During this interim period “high-level executive officials in Washington, DC, violated their solemn constitutional oath as apart of concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln” (Page 3).

As part of their analysis, they counter the key arguments which have been raised against the applicability of Amendment 14 Section 3:

Of course the President is an officer (Pages 17-18)
Of course implementation does not require Congressional action (Pages 21-22)
Of course a person can engage in insurrection with words as well as deeds (Pages 24-25)
Of course an insurrection can begin locally (Pages 25-26).

Their solution is unexpected. They understand the Constitution to provide a fifty-state solution.


Having disposed of these false arguments, they then turn to the little-known story today of John B. Floyd (Pages 6-17). Back in the 1860s he was well-known. He was called the new Benedict Arnold because of his actions during the First Insurrection before the war broke out. He was a Virginia slaveholder serving as Secretary of War from 1857 to December 29, 1860. At that point, he resigned from office over the refusal of President James Buchanan to abandon Fort Sumter.

According to the Amars, Floyd endeavored to thwart a proper transition of power. [Think of Michael Flynn if he had been in office and even out of office.] That effort involved the transfer of multiple southern forts to the rebels from the time South Carolina formally seceded on December 20 until the firing on Fort Sumter in April 1861. Ultimately that effort failed and the Union prevailed over the Confederacy.

When Ulysses S. Grant became President in 1868, he appointed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. Canby decided that Section 3 was self-executing. He prevented disqualified candidates from becoming state legislators unless and until they had been amnestied by Congress as provided for the in amendment. The Amars note that “Canby acted on his own initiative” (Page 14). So it was not self-executing!

They neglect to mention that the military power was the basis for the successful application of Section 3. The Union had it, the Confederacy did not. Obviously that is not the condition which prevails to day in Congress. Quite the contrary, a MAGA is Speaker of the House and the majority of the Republicans in the Senate appear to be MAGA is well.


The Amars suggest the insurrection of 2020-2021 “posed an even more egregious invasion of our democracy than the First Insurrection of 1860-61” (Page 14). They cite the flying of the Confederate flag in the Capitol and the disruption of Electoral College vote to illustrate advances the First Insurrection never attained. That happened as a result of what Donald Trump did and did not do “as recounted in the trial court of this case” (Page 15). That clause is a reminder that the Supreme Court is a decider of law and not facts.

They claim that Section 3 had people like John Floyd in mind when it was written. He was an insurrectionist officer. He had violated his oath just as Donald Trump had done. Putting aside their references to “chutzpah” and the “fictional Professor Mousehole” [I did not know one could write that in Supreme Court briefs!], the decision before the Supreme Court is an obvious one.

What the Amars fail to do is to identify who are the President Grant and Brevet Major General Edward Canby today. No Congressional action may be necessary to effectuate Section 3, but obviously, the military might of the winning side in their Second Insurrection was.


The interesting part comes to the fore at the end of the brief. Once again the Amars contend that the states have wide discretion as decision makers in establishing the laws for conducting elections in the states independent of the Supreme Court. This argument sounds like a hail-Mary after a late night session in the dorm room. Or if you prefer, to throw everything up against the wall and see what sticks.

They also suggest that Congress could refuse to count electoral votes that it deems improper. For me, this suggestion raises fascinating possibilities. Take for example voter suppression. Suppose Congress (not the Vice President) decides not to count the electors from states where voter suppression actions enabled the MAGA candidate to win. This is not a question of alternate electors or fake electors as was tried in the 2020 election, but the exclusion of Electoral College votes from the count from the states that passed voter suppression rules in response to the stolen election which had never really been stolen.

Imagine if the Democrats who bring a plastic spoon to a gun fight and wonder why they lose identified the states where the Electoral College votes would be disqualified due to voter suppression!