There are several current court cases around the country, Colorado being the first, seeking to disqualify Donald Trump from running for president in 2024 based on the clauses of the 14th Amendment, which bar insurrectionists from public office. Regardless of the outcomes, these cases are all headed on appeal to the Supreme Court of the United States. Currently on the court, six justices are conservative Republicans and three justices are liberal Democrats.
Trump will surely win his case.
The late and staunchly conservative Justice Antonin Scalia pioneered a judicial doctrine known as originalism. Scalia proclaimed himself a strict textualist, who based his decisions on a rigid textual reading of the words of the United States Constitution. He asserted in public lectures and in his many conservative decisions that while he didn’t know what was in the minds of the framers he could read their words as they wrote them and apply a historical context to understand what it all meant. He asserted that his decisions reflected the original meaning of the Constitution and its amendments rather than an interpreted juxtaposition of them into the modern world. I have personally heard Scalia say many times that he believed the Constitution is not a “living document” and that it was not designed to be changed except by amendment. Scalia railed against the idea of interpreting the Constitution based on contemporary ideals and norms. Like biblical literalism, originalism is a persuasive argument for conservative minds.
However, the simple truth is Scalia, a lawyer by training and not a historian, manipulated American history to favor conservative political causes. For example, Scalia wrote the majority opinion in the 2008 District of Columbia v. Heller decision which was based upon an arguably manufactured and selectively tailored version of American history (see my opinion “What does the Second Amendment actually amend” in the March 15, 2023, edition of 첥Ƶ).
District of Columbia v. Heller effectively limited gun control by detaching the militia clause from gun ownership. Unfortunately originalism is alive and well in the Supreme Court and it will save Donald Trump’s candidacy.
How would an originalist apply American history to the question of whether Trump should be barred from office based on the 14th Amendment? Keep in mind that the amendment was written in 1867. The operative mechanism of the cases against Trump depends on how one interprets Section 3 of the amendment, which reads, “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” How a judge or justice interprets the words insurrection or rebellion will determine the amendment’s application in court.
The conservative justices on the Supreme Court will certainly apply the doctrine of originalism by asking the question, “What did insurrection, rebellion and giving aid or comfort mean in 1867?” They will not ask, “What do these words mean today?”
They won’t even have to manufacture American history, they only have to consider the American Revolution, Shay’s Rebellion, the Whisky Rebellion, Frie’s Rebellion, Nate Turner’s Slave Rebellion, Native American uprisings, the Utah War, John Brown’s raid, and the American Civil War. This is the historical data field that defined what insurrection or rebellion meant in 1867. Originalists will not consider anything that has happened in America after that date.
The historical common denominator in all cases is the presence of firearms and the use of, or the potential use of, armed force. These people carried guns. Moreover, “giving aid and comfort to the enemies thereof” is a dependent clause linked back to insurrection and rebellion. That’s how an originalist approaches this question.
Whatever one’s opinion is about what happened on Jan. 6, 2021, nobody seems to have carried firearms into the Capitol. While there was almost certainly a conspiracy to halt the counting of electoral ballots so that the vice president could be coerced into advancing slates of false electors, the use of armed force to make that happen remains unproven.
We should also keep in mind that Trump has not yet been convicted in court of insurrection or rebellion. All nine of the justices will weigh the presumption of innocence heavily in Trump’s favor. If you truly believe in the rule of law, in the long run, this is probably a good thing.
The arguments for Trump are easy to make if you are an originalist. The conservative justices on the Supreme Court will have an easy time writing a majority opinion supporting Trump and they may even be joined by a couple of liberal justices, who believe in the principle of innocent until proven guilty. This is not the outcome that I would hope for, but this is the way that things are in America today.
Edward J. Erickson of Macungie is a retired professor of military history from the Marine Corps University in Quantico, Virginia.
