The Amar brothers have filed a very fine amicus brief in the Supreme Court’s review of the Trump disqualification case, styled Trump v. Anderson. The argument is aimed squarely at ‘originalists’ by recovering critical history that shaped Art. 3 of the XIVth Amendment.
Here’s a portion of the summary:
Underlying Section Three of the Fourteenth Amendment, there resides […] an episode known to virtually all Americans in the 1860s and, alas, forgotten by most Americans today, even the learned. The episode has gone almost unmentioned in all previous scholarship on Section Three and in all previous briefing in this case. We believe that this episode is a key that can unlock many of the issues presented by today’s case.
In Part One of what follows, we briefly tell the story of the First Insurrection of the 1860s—the insurrection before the Second Insurrection of the 1860s, typically known today as the Civil War. In that First Insurrection, high-level executive officials in Washington, DC, violated their solemn constitutional oaths as part of a concerted plan not just to hand over southern forts to rebels, but also to prevent the lawful inauguration of the duly elected Abraham Lincoln. The parallels between this insurrection in late December 1860 and January 1861 and the more recent Trump-fueled insurrection of late December 2020 and January 2021 are deeply and decisively relevant to today’s case.
[…]
Today’s facts are remarkably similar to those of the First Insurrection of the 1860s.
(Italics in original.)
President Franklin D. Roosevelt described December 7, 1941 as “a date which will live in infamy” in his speech the day after the Japanese attack on Pearl Harbor. 12/7 was a date seared into the memory of those who lived through it, although I think not nearly as meaningful to those who like me were born considerably later. Even infamy may have a half-life, and I suspect that today most people look at ‘Pearl Harbor Day’ on the calendar and don’t think that much of it.
