James Roger Sharp is professor emeritus in the Department of History at the Maxwell School of Citizenship and Public Affairs at Syracuse University. Sharp has written extensively about the political history of the early Republic, including the book “The Deadlocked Election of 1800 : Jefferson, Burr, and the Union in the Balance” (University Press of Kansas, 2010).
Recently, the U.S. Supreme Court issued one of its most significant decisions in our nation’s history. It struck down the Colorado Supreme Court’s disqualification of Donald Trump from the state’s ballot because of his role in the insurrection of Jan. 6, 2021. The Colorado Supreme Court had said he violated Section 3 of the 14th Amendment, which bars from office anyone who has engaged “in insurrection or rebellion” against the United States.
All nine justices agreed that to allow states to disqualify federal candidates would cause a dangerous chaos and might be used in the future and pit one state against another in support of their favorite candidates.
In response, Jason Murray, a lawyer seeking Trump’s disqualification, argued that “There’s a reason Section 3 has been dormant for 150 years. And it’s because we haven’t seen anything like January 6th since Reconstruction.”
Long before the Civil War, in the 1780s, fear of rebellion shaped the Constitution.
As Woody Holton contends in his book, “Unruly Americans and the Origins of the Constitution,” the Constitutional Convention “was largely a response to the farmers’ rebellions of the 1780s.”
The 1786 Shay’s Rebellion in western Massachusetts — when angry farmers stormed local courts to prevent foreclosure on their farms for not paying their taxes — was seemingly the last straw for elites. Although the insurrection was put down by the state’s militia, it sent an alarm bell throughout the country.
In a letter to James Madison, George Washington warned that “We are fast verging to anarchy and confusion, thus confirming Great Britain’s arrogant prediction that the union would soon dissolve.”
Our Constitution, written in 1787, thus was the product of this growing fear among the elites of the chaos and local insurrections against public authority in the 1780s.
Reflecting the Founders’ fears of standing armies, chaos and insurrections, the Second Amendment was adopted that holds that “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
In 1792, Congress passed the Militia Act explaining the role of the Second Amendment. Militias would serve to repel foreign invasion and defend against hostile Indian tribes.
And significantly, the militia should be mobilized “whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any state.”
Within a decade of the ratification, there were two insurrections against federal authority in Pennsylvania requiring the mobilization of militia forces.
The Insurrection Act of 1807 was passed to amend the 1792 act and was used, unsuccessfully, to charge the former vice president, Aaron Burr, with treason for illegally organizing a private army in the West to capture New Orleans and invade Spanish Texas.
The Nullification Crisis of 1832-1833 was another challenge to federal authority as South Carolina nullified the tariff acts of 1828 and 1832. Outraged, President Andrew Jackson denounced South Carolina’s action as treason and threatened to hang the nullifiers from the highest tree. Congress passed the Force Act authorizing the use of federal troops to force obedience to the tariff laws. A compromise tariff law, however, was passed that prevented the potential violence.
The Civil War was the most violent in its challenge to the Union and the authority of the federal government as 11 Southern states seceded from the Union in 1860 and 1861 to form the Confederacy. Secession had been the results of their efforts to protect the institution of slavery. It is estimated that all the slaves in the South represented enormous wealth with all slaves at the time of the Civil War worth more than the combined value of all railroads, banks and manufacturing companies.
After the war, the 14th Amendment was part of the nation’s efforts to protect itself from Confederate leaders holding on to power and leading postwar insurrections against the Union. The authors of the amendment wanted to make sure that former Confederates, who had taken an oath to defend the Union and the Constitution, were punished and prohibited from holding future office for violating that oath.
The amendment was self-executing, not requiring Congressional action, as the majority of the Supreme Court has argued. Indeed, the only role for Congress was described in the last sentence in Section 3: “Congress may by a vote of two-thirds of each House, remove such disability.”
The current Supreme Court consists of a number of conservative judges who have claimed in a number of cases that they are “originalists” who decide a case based on their reading of what the country’s Founders had intended.
Historian Sean Wilentz argues that “the law ... is crystal clear, on incontestable historical as well as originalist grounds” that Trump should have been disqualified. The conservatives had faced “a choice between disqualifying Trump or shredding the foundation of their judicial methodology.”
Based upon our country’s history of fearing insurrections, the Supreme Court’s originalists should have disqualified Trump from seeking another presidential term.