[Prof. Kurt Lash (Richmond), who is a leading legal historian of the Fourteenth Amendment, was kind enough to pass along this response to an amicus brief by Profs. Akhil Reed Amar (Yale) and Vikram David Amar (Illinois) in Trump v. Anderson, and I'm delighted to have it published here. As readers of the blog know, several of our bloggers have expressed their own views on the case, which are quite different from each other, and I'm very glad that the blog provides a forum for those competing views. None of them, of course, is the view of the blog as a whole, or of anyone other than the individual author. I would of course be delighted to publish any response to this item as well. -EV]
Professors Akhil Amar and Vik Amar have submitted an interesting amicus brief in Trump v. Anderson, the case involving Donald Trump's potential disqualification under Section Three of the Fourteenth Amendment. The brief claims that Section Three represents the framers' response to two insurrections, one tall and one small, and that the small one is analogous to the events of January 6, 2021.
The smaller "First Insurrection" (the brief capitalizes the term) supposedly involved an oath breaking cabinet member named John B. Floyd. Floyd, they argue, was a co-conspirator in the First Insurrection(ist) attempt in February 1861 to disrupt the counting of electoral votes and prevent the inauguration of Abraham Lincoln. Since the framers of Section Three intended this small failed First Insurrection to fall within the meaning of the text, they must also have intended to include the similarly small but briefly successful "insurrection" of January 6, 2021.
