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This ASU historian says the 14th Amendment covers the office of the president. Here's why

By Lauren Gilger
Published: Wednesday, February 7, 2024 - 12:11pm
Updated: Wednesday, February 7, 2024 - 3:07pm

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The U.S. Supreme Court is set to hear arguments on Thursday to decide if former President Donald Trump should be barred from the ballot in the 2024 election due to what was once a rather obscure Constitutional amendment. 

But now, Section 3 of the 14th Amendment is being widely debated — and not just by historians. This comes after the Colorado Supreme Court ruled that it rendered Trump ineligible to appear on that state’s ballot due to his involvement in the violent Jan. 6 attacks on the capitol.

Now, a group of 25 prominent U.S. historians are weighing in with an amicus brief to the high court that argues two key things: The amendment covers the office of the president and it does not require an act of Congress to keep insurrectionists from office.

Arizona State University Foundation professor of history Brooks Simpson was one of those 25 historians and The Show spoke with him more about the historic context of the 14th Amendment — and why he felt it was important to weigh in now.

Brooks Simpson
Arizona State University
Brooks Simpson

Interview highlights

BROOKS SIMPSON: The origins of the 14th amendment come in the aftermath of the American Civil War. And the question of what to do with white Southerners seeking readmission into the United States — especially who would get to serve in federal offices. After all, there are a lot of white Southerners who had served in the Confederate army or other armed forces.

Well, President Andrew Johnson at that time, having become president upon the assassination of Abraham Lincoln, was willing to welcome most of these former Confederates as possible officeholders. And indeed white southerners — blacks were not allowed to vote in the American South at this time — elected former confederate military personnel and some political personnel to various political offices.

Republicans in Congress, seeing that this was not acceptable, that you don't allow insurrectionists back into the Union, framed an amendment that covered various aspects of Reconstruction. They chose the amendment process in part because that would circumvent the possibility of presidential veto. And they disqualified from holding office those Confederates who had, at one point, taken an oath of allegiance to the United States of America to support the Constitution.

So let's dig into some of the specific language here. At least one of the big questions before the Supreme Court this week will have to do with whether or not the 14th Amendment covers the office of the president. And you and your colleagues in this amicus brief are arguing that it does. Tell us why.

SIMPSON: Because the people at the time recognized that it covered the office of the presidency — including Jefferson Davis, the former Confederate president. He recognized that it covered that. So if we're looking for the original intent of the people who framed this important constitutional amendment, they all agreed that among the offices that they were covering was the office of the president of the United States. As did, by the way, the president at the time, Andrew Johnson, who would later gain some infamy as being the first president to be impeached.

The language specifies many other office holders, people in the Senate, et cetera, but doesn't say specifically the president. But you actually, in this brief, cite the historic record — a debate that happened in Congress at the time, talking about this exact issue. Can you describe that for us?

SIMPSON: Well, someone, you know, referable Johnson of Maryland, started talking about, you know, "Who does this cover?" And Republicans said, "It includes the president." At that point, no one disagreed. The understanding was clear among those who were debating the clauses. Republicans then used the same sort of notion to exclude people from office as early as 1862 with the passage of the second Confiscation Act. So the people at the time understood that the presidency was covered under this constitutional amendment.

Let's talk a little bit about the other big question at hand, which is, is whether or not it would take an additional act of Congress to make this happen. You all are arguing here that it, it would not that this is included in the amendment for a specific reason. Tell us about that.

SIMPSON: People understood what an insurrectionist was at that time, and people in fact did not have to be tried for having committed insurrection. The 14th Amendment was what is called self-executing. And in fact, people even before the amendment was ratified in 1868 acted upon that notion, including the commander of the armies of the United States general-in-chief, Ulysses S. Grant, who in 1867 instructed subordinates that people who had sworn allegiance to the United States and to support the Constitution and then had joined the Confederacy were not eligible to hold office.

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