Wednesday, January 31, 2024

Historians in the court: professorial advice for the U.S. Supreme Court

The leading historians of the American Civil War, Reconstruction, and nineteenth century constitutional politics are turning up in droves to offer friendly advice to the Supreme Court of the United States in the case Trump v. Anderson. That's the one about Trump's eligibility or ineligibility to be a candidate for the presidency of the United States, in light of his role in an insurrection against it.  

Short version: were it up to the historians, the Trump would be toast. They make very strong arguments in two short readable briefs that the intent of the legislation at issue was very clearly to prevent people who do what Donald Trump did from being eligible to stand for the Presidency or any other elective office of the United States.

One brief comes from Jill Lepore, Drew Gilpin Faust, and David Blight. Based on her pieces in the New Yorker, I'm inclined to believe Lepore is right about just about everything all the time, but she's also a Harvard prof and director of the Amendments Project (which is relevant, Trump v Anderson being all about the meaning and intent of Section Three of the Fourteenth Amendment of the US Constitution.  The other two have solid credentials too.

A second brief comes from twenty-five academic historians, notably James MacPherson, author of Battle Cry of Freedom, first published in 1988 but still taken as an authoritative one-volume survey of Civil War history, and Nell Irvin Painter, Princeton prof and history of The History of White People.  I have not minutely scrutinized the two briefs to see if they have any substantive disagreements.  they look to be broadly in sync.

Law and history are different fields. A lot of historians called as expert witnesses have come out feeling pretty beaten up from the differences in what historians and lawyers think of as "evidence."  But since the issue here is the specific meaning of one particular statute from the 1860s, and since many of the current Supreme Court judges fixate on what the actual meaning and intention of the Constitutional framers was at the time, why should not the expert analysis of a lot of historians who are deeply informed about this exact question be relevant? 

Historians, including these ones, cannot help quoting what politicians said in legislatures about what the legislation in question means. (If you read Canadian constitutional history, you may be amazed how often what John A. Macdonald said in parliament about the BNA Act, 1867 has been treated as if it was the same as the BNA Act, 1867.) Judges like to observe that what matters is the words of the legislation itself, not what people said in trying to sell a bill to their fellows.  

Do the historians fall into this trap? A lot of Supreme Court clerks are probably madly pursuing this very question right now. The historians do quote a lot from the legislative debates, but they must be aware of the trap here and do not fall blindly into it. 

What standing do any of these profs -- presenting as amici curiae, friends of the court -- have to tell the judges what the law is? They do address that (and declare no party to the case assisted them in any way):

Amici’s interest in this appeal arises from the gravity of the case before the Court and the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment. As eminent American historians with expertise in the relevant era, actors, and events, amici are well qualified to assist the Court by establishing the original intent, meaning, and public understanding of the Disqualification Clause. (The Lepore group)
We have professional interests in helping the Court reach its decision by appropriately analyzing probative historical evidence. (The McPherson group)

You can read 'em yourself (see links above). Will Supreme Court judges think like Ha'vid profs?

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