Historians' Filing Amicus Briefs Seems (Mostly) Useless, and Maybe Worse

Maybe the problem with the Court isn't too little interest in the past but too much.

An excellent amicus curiae brief was recently filed in the Supreme Court by the Brennan Center for Justice, on behalf of the historians Gautham Rao, Jane Manners, and Richard John. The case is Relentless v. Department of Commerce, otherwise known as the Chevron case. Petitioners in Relentless want to overturn the 1984 decision in Chevron v. Natural Resources Defense Council and thereby push the country back to what they see as a time when the administrative state was weak, supposedly by constitutional design, and federal courts frequently checked administrative efforts.

The historian amici disagree with the history appealed to by the petitioners—disagree persuasively to me—but that’s not why I like the brief so much. I like this idea, expressed in the brief:

Critically, in taking the full sweep of our nation’s history into account, the Court need not—and should not—treat that history as dispositive.

The petitioners have the history terribly wrong, say the amici, and if the Court is considering that history, it should try to get it right. But even the correct history shouldn’t be treated as legally dispositive just in itself.

That caveat pushes back against a prevailing Court tendency to go sniffing down historical blind alleys while arguing fantastically, tendentiously, and ignorantly about matters better left to scholarly interpretation by historians, who will never agree anyway, and whose job isn’t to render binding decisions. I think judges should get back to thinking about the law and stop woolgathering about their favorite so-called history lessons, but it’s a sad fact of U.S. constitutional law that it offers lawyers and judges a million excuses for thinking about things other than law. Things like the great American past. And how great and American it was.

In questioning an overreliance on invoking history in legal decisions, the Relentless amici put themselves in line with Stephen Breyer, formerly a Supreme Court Justice. Out of patience with all the historicizing, in his dissent from the egregiously silly decision in New York State Rifle and Pistol Assoc. v. Bruen, Breyer wrote:

How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves? The Court does so by purporting to rely nearly exclusively on history. . . . I believe the Court’s near-exclusive reliance on that single tool today goes much too far.

I’ve pursued this history-as-law angle before (really it’s heritage-as-law): you can read up on the BAD HISTORY of gun and abortion jurisprudence any time.

What’s refreshing about the amici in Relentless is that they’re professional historians who, far from promoting their profession’s supposed all-importance to understanding constitutional law, present their corrections in a context of skepticism about history as a guide to legality. That puts them in stark contrast to the recent proliferation of historians seeking to elevate their profession and make it seem politically current by seizing on the Court's excessive interest in the past to offer history lessons in the form of amicus briefs far less useful than the one filed in Relentless.

I'm thinking most immediately of the recent briefs by historians weighing in via the amicus channel on Trump v. Norma Anderson, et al, in which the justices must decide whether Colorado can keep Trump off a primary ballot on the strength of Section Three of the Fourteenth Amendment. That’s the post-Civil War measure, with a bad history of its own, whereby any officer who, like Trump, has sworn an oath to the United States and then committed insurrection is barred from holding any office in the United States. A quick look at one of the briefs in Trump—it was filed on January 29 by the eminent Ivy League historians Jill Lepore, David Blight, Drew Gilpin Faust, and John Fabian Witt—reveals the drastic limitations on usefulness of all such historical briefs.

The four historians are attempting to persuade the Court that the history of Section Three demonstrates that Colorado acted properly in keeping Trump off the ballot. To that end, they present their view both of the framers’ intentions when writing the section and of the general understanding of the section’s purpose and operations in the 19th Century. Their story is told with impressive narrative deftness, even flair. Yet much of it amounts to a lecture on events not relevant to the thesis. And where the brief does seems to argue, the argument falls flat.

The fundamental problem for these amici—in the end, it’s the problem the Court is supposed to be solving—is that if we’re really required to take Section Three seriously, there’s almost no way to argue cogently that it doesn’t apply to Trump. You don’t need to know history to know that. There might seem no pretext for a brief by historians.

But precisely because the only real question is how seriously to take a measure that hasn’t been effective for more than a century, the historians seek to demonstrate dire seriousness by detailing the section’s origins in the aftermath of the Civil War and suggesting not just that the original period’s conflicts are part and parcel of divisions today but that today’s divisions portend the kind of rebellion against the Constitution that the section’s framers feared would follow the Civil War, had prohibitions on office-holding not been established by the section. The historians’ rhetorical strategy seems to be to associate failure to keep Trump off the ballot with white-supremacist actions taken by the post-Civil War white South—actions the historians gesture at warning could now recur—and to associate success in keeping him off the ballot with successes of the victorious U.S. in obstructing those efforts—successes the historians gesture at claiming can now be revived by applying Section Three, as in Colorado.

If you don’t buy the premise, you don’t buy the bit, and I don’t see the Court buying the premise, since even I, who would enjoy having Trump not just off ballots but up in smoke, don't buy it, but who knows. The country might now indeed be courting—not a replay of the Civil War, that’s not the historians’ analogy—but a fostering of conditions resembling racist insurrections that the historians say the section’s framers feared would occur following the Civil War. If so, it’s hard to see how keeping just one asshat, who just happens to fulfill the section’s very strict requirements for disqualification, off electoral ballots will have the slightest impact on that potentially developing situation. I suspect that if the historians’ position were argued, the argument would quickly become circular—and circle around the drain that is Trump—but it’s barely argued, more like analogized and sketched, so for all of the erudition on display, the brief adds up mainly to a mood of dire warning, with an implication that failing to uphold the Colorado disqualification equates with endorsing racist violence.

In making histrionic predictions that might, though only coincidentally, come true, the historians are following in a tradition they cite as if it were self-evidently legitimate. According to the brief, when Section Three was being debated, “Without a disqualification clause that would endure, a Congressional committee warned, 'flagrant rebellion, carried to the extreme of civil war,' would become ‘a pastime.’” That prediction both did and did not come true, and in neither case did the historical events have anything to do with applying or not applying the section, which didn’t, of course, endure effectively anyway: in 1872, by the two-thirds majority required to overcome the ban, Congress gave most of the original Confederate targets a blanket requalification. It’s true, as the historians say, that at first the section kept people out of office. But very quickly civil war didn’t become a pastime, even while illegal white violence against black citizens did become rampant, and those outcomes can't be linked either to applying Section Three or to former Confederates’ being immunized against it.

In the 1870’s, the white North made common cause with the white South (hence, in part, the amnesty). As everyone knows, certainly including these historians, the constitutional rights of black citizens weren’t enforced in the former Confederate states. Some leaders of the Wilmington insurrection and massacre—for one grotesque example—were not only not prosecuted for federal crimes but also welcomed into high positions in the federal government. Really, when the committee warned Congress that southern violations encouraged by not passing Section Three had the potential to trigger an ongoing condition of civil war, the committee wasn’t just wrong; it was thinking wishfully. In the event, the federal government wasn’t going to do anything about white-supremacist insurrection, or about lynching and other forms of murder, let alone disenfranchisement. Segregationists sat on the Supreme Court. They served as president. And we didn't have any further civil-war-like trouble until the 1950’s.

Might I be sniffing, then, in the historians’ brief an underlying counterfactual and even literary wistfulness? as if by sticking with Section Three—by not immunizing its original targets after all—the country might have avoided abdication of federal authority in the South? that the Fourteenth as a whole might have held up against segregation and white-supremacist violence in all those generations? that by now applying the section to Trump, we gain a chance not just to prevent a re-do of that post-Civil War history of “pastime civil wars,” which didn’t actually happen, but redeem ourselves from the bad history that did actually happen, the history that kept those wars from breaking out, the national policy by which the United States chose not to enforce federal law in southern states. . . ?

Nobody would openly espouse such fantastical yearnings when making a logical-sounding case. The mood, however, is the mood. And if something like that is not at work, then a lot of intellectual and emotional intensity is being expended on nothing more elevated than trying to ensure one electoral outcome (fruitlessly, too, probably—because how closely do the historians believe the Court will consider any of this?).

The alt-epic, national-mythopoeic mojo I'm pointing to may explain certain areas of the brief where the only reasonable reaction is “OK, but so what?” The historians want to emphasize, for example, the importance to the U.S. government of loyalty throughout and following the Civil War. On “the outbreak of war in April 1861 . . . Newspaper reporters were required to take loyalty oaths,” they tell the Court. That doesn't sound so great, really, but duly noted: loyalty was part of the original intent of the amendment? long before the amendment was intended? Is that the not-very-relevant point?

The historians also define their originalism in what might be called hyper-originalist terms. They identify key motivations not in the amendment as presented and ratified but in its early, discarded versions. “Its framers intended Section Three . . . to automatically disqualify insurrectionists,” the historians say. But that was the House version. As they're about to tell the Court, the section was ultimately limited to disqualifying only oath-violators, not all insurrectionists, and while I suspect the historians prefer the broader version, it seems unfair to ascribe the broader intent to the framers of what became a more limited measure. Funny, in that context: when they get to the measure as ratified, they frame the limitation as a “sharpening” of the early version, as if the measure gained force rather than lost scope.

A good example of how history can be rendered actively inimical to legal decision-making arises when the historians narrate the framers’ beginning to consider writing the measure. “Precedent existed for disqualifying insurrectionists,” the amici say:

In 1787, in the aftermath of Shays’ Rebellion, an uprising of farmers in western Massachusetts, that state’s legislature had passed a law decreeing that . . . for a period of three years those who had participated in the insurrection “shall not serve as Jurors, be eligible to any Town-Office, or any other Office under the Government of this Commonwealth.”

I don't think the Shays Rebellion even came up in debates over framing the Fourteenth—in which case this is nothing but historians inventing a thought process for the framers—but I'm happy to be corrected if I'm wrong, because the Massachusetts law is more like an anti-precedent for Section Three. In response to insurrection, Massachusetts precisely chose to avoid doing what the framers of Section Three did: it didn’t amend its constitution but passed a statute. If precedent mattered here, the historians would be making their opponents’ case, but precedent doesn't matter here. How would the historical fact, if it is one, that the framers viewed a 1780’s Massachusetts law as precedent for Section Three—viewed it wrongly, at that!—be relevant to whether Colorado has properly applied the section to Trump? Briefs like this all too easily collapse into storytime.

Because there’s actually a pretty notable absence of precedent for Section Three, the historians introduce their Shays reference with “Congress looked to earlier measures but largely devised its own.” Right—the measure is unique, and that’s OK, so why even bring up the idea of precedent? To sound like lawyers?

Even weaker is the historians’ trying to identify an actual constitutional—not statutory—precedent, via this footnote: “60. Some early state constitutions provided for disqualification upon impeachment.” That's what I mean by a so-what fact, and I imagine the clerk assigned to skim this document will think so too. If that kind of thing is all you've got, regarding a matter whose relevance isn't clear anyway, maybe just cut it? (Wouldn’t the amici be likely to make such a suggestion to their dissertation advisees?)

But hold on. Here's something real—even possibly useful. The brief shoots down Edwin Meese, Michael Mukasey, and William Barr’s assertion, in a competing brief, that “historical records” show no concern on the part of the framers or the public that a Confederate leader might become president. The rightists have made the mistake of invoking history, so in this case, the liberal historians’ filing a correction has an actual purpose.

Justice Breyer wasn't saying history never matters. This is a good place for it.

A spasm of focus—almost immediately lapsing to fuzz. The fact that Jefferson Davis, formerly president of the Confederate States, was not prosecuted for treason by the victorious U.S. did no doubt serve as a rationale for Section Three, but “For decades,” the historians go so far as to extrapolate, “Jefferson Davis stood as the cautionary tale through which Congress and the public understood Section Three.” That almost incredibly sweeping characterization is backed up by just one 1871 newspaper quote—so, “for decades” But the quote is only obliquely related to the claim in any case.

And so Jefferson Davis brings the story to its climax. Throughout the brief, the historians have associated objections to Section Three and the whole Fourteenth with the Lost Cause ideology, and sure, why not, but again it's unclear how this association would aid the Court in making a decision, and any attempt at argument now dissolves in a swirl of well-writtenness on that topic so beloved by a certain school of public-facing historians: the toxicity of the myth of a noble white-southern Lost Cause, the myth mythically supposed to explain so much of what’s happened here, to such ruinous effect, during the past thirty years or so. I think a realistic history of Section Three—it would be at least as unhelpful to the Court!—would cover the section’s falling into near-utter disuse; the absence of any resulting “civil war as a pastime”; the white North’s complicity in the Lost Cause story (call it “How the United States Won the Civil War”); the embarrassing failed 1919 effort to revive the section to get a socialist out of office; and the reinstatement, in the 1970s(!), of Jefferson Davis’s eligibility to serve office . . . but that’s not how these amici think. It's how we at BAD HISTORY think, and for some reason we haven’t been asked to file.

I don't know how the Court will rule. I can easily imagine the majority’s abandoning its own version of originalism and deciding that Section Three is nothing but a vestigial organ. If so, does that create an unintended precedent for ignoring the Second Amendment too? Count me in!