Can an official of the United States who undertakes insurrection against their country again hold office?

Recently, 25 nationally renowned historians submitted a ‘friend of the court’ brief to help the Supreme Court decide this question. These historians marshal solid historical evidence to conclude that the framers of Section 3 of the 14th Amendment (the ‘insurrection clause’) did include the presidency among the national offices denied insurgents, did design the provision to be ‘self-executing’ (requiring no previous conviction for insurrection), and did intend the clause to protect democracy in the future from a wide range of potential threats.

A little historical background may help explain their conclusions. In April 1865, with the last major Confederate armies having unconditionally surrendered, the Union government sought a speedy, peaceful reconstruction of the nation. Unless something were done, though, those who had led the rebellion would speedily reassume positions in the very government they had destroyed through secession.

How could the rebellious states be restored to the union without restoring to power those who had brought about the war? How could Congress guard the Union from those responsible for the most violent conflict in the history of North America — one that cost the lives of 750,000 people and $6 billion in capital?

Amidst widespread pressure to return to politics as usual by seating representatives from the rebel states, Congress had a small window of time in which to translate the Union’s military success into protections against a resurgence of insurrection. They realized that the Constitution contained within it no provisions for its own demise, nor any for reuniting and protecting the union after a failed attempt to sunder it. Something had to be done.

Congress imposed a range of means to disqualify insurrectionaries from voting or holding political office. Loyalty oaths, for example, restricted the right to vote and hold office to those who could swear they had not supported the rebellion. The most significant attempt to disqualify insurrectionaries was Section 3 of the 14th Amendment. In effect, the clause says that those who had sworn to uphold the Constitution and then fought to negate it could not again be entrusted with the power to govern those who had remained loyal.

During the Reconstruction that followed the Civil War, several former Confederate officials fell victim to Section Three. Since then, it has been the country’s good fortune that it has only rarely been needed.

But the historically unprecedented events of Jan. 6, 2021 have raised questions about Section 3’s applicability. Never before had a candidate for the presidency gone to such lengths to prevent the peaceful transfer of power from one freely and fairly elected president to the next. Never before had a candidate marshaled loyalists inside and outside the halls of power to impede that process, and deny the votes of the majority of the electorate through violence and its threat.

The Supreme Court must now decide if and how the insurrection clause of the Thirteenth Amendment applies. Professional historians may offer objective appraisals of a history that judges and politicians have all too frequently manipulated for their own purposes. So impactful is historical understanding in our public discourse that legislatures in some states have gone so far as to literally ban the teaching of histories they deem discomforting. Good history is in crisis, and this has played no small role in fostering disinformation and mistrust of government.

Historians offer the antidote. They follow principles developed over long centuries of effort. They must consider all relevant evidence, whether it helps their argument or not. Before offering any lessons history may teach, they must dispassionately weigh this evidence in an effort to first understand the past on its own terms. Finally, they must show their work by citing scrupulously, so other scholars can follow the breadcrumbs they leave in their footnotes. Historical methods rarely yield one commanding interpretation of a question, but they offer the best principles for using the past responsibly — in a way that serves not just the interests of individuals and parties, but of democratic society as a whole.

The framers of the Constitution understood this need, for in trying to form ‘a more perfect union’ they themselves studied the history of liberty and tyranny from ancient Athens to the French Revolution. We would do well to recall their admonitions, which apply as much today as they did in 1787.

“Of those men who have overturned the liberties of republics,” warned Alexander Hamilton, “the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” Thomas Jefferson made the case positively, asserting that “wherever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.”

That principle is being tested now. With the integrity of the highest elected office in the land as the prize, the stakes could not be higher.

Patrick Rael is a professor of government at Bowdoin College. 

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