The Amars Have Done it Again

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.)

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7 Responses to The Amars Have Done it Again

  1. Eric says:

    It seems that the moral of the story is that the anti-insurrectionists became insurrectionists themselves the moment they enforced their constitutionally vague provisions against candidates without the requirement of due process.

    Thank the Romans for contra proferentum as a legal tradition we use today.

    • I’m pretty sure that contra proferentum is not, has never been, and should not be, a rule of constitutional interpretation. Would you apply that idea to the 1st and/or 2nd amendments?

      • Eric says:

        The concept behind contra proferentum is a matter of logic itself.

        • But who is the author/proffer? “We the People”? Should we interpret it against ourselves?

          • Eric says:

            The actual drafters of the laws.

            • Even if I may not agree, I get the logic of those who say that amendments should be construed in light of our best reconstruction of the common understanding of the contemporary ratifiers. I completely fail to see the logic, or the desirability, of having constructions turn on what we think specific authors (drafters??? not even the Congress that adopted it???) say they thought. This seems to invite all the worst aspects of the now-disfavored reliance on post- (and pre-) enactment legislative history when it comes to statutes into a realm where that is even less appropriate.

              I have appointments now, so I’ll likely leave it at this.

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