Special thanks to @mgraber1.bsky.social, @alexfay.bsky.social, and @nwdonahue.bsky.social for early thoughts, and to Michael McConnell for receiving my critiques with generosity. And thanks most of all to Regina, Sophie, and Aidan from the HLR editing team for their hard work getting it out!

The original intent was to work with the reconstructed governments of the South to prevent the resumption of political power by insurrectionists, not to take away the ability of state governments to contribute.

Nothing [the State] has done commends her... more clearly than the fact that she has done precisely by her legislation what we are endeavoring to do by one article in our constitutional amendment—provided that no person shall hold any office under this Government who has [joined] the rebellion.

Instead, the framers of the Amendment expected state enforcement, including for federal office. The Congress of 1866 saw this as the “ark of safety” that would make it “impossible that [rebels] can be represented upon this floor.” As Sen. Benjamin Wade observed regarding Tennessee’s readmission:

I offer new historical evidence against the core reasoning of Trump v. Anderson: that states cannot enforce Section Three’s disqualification of insurrectionists from federal office because the Amendment's assumed overriding purpose was to “expand federal power at the expense of state autonomy.”

State Enforcement of Section Three Disqualification:What McConnell Gets Right on Trump v. Anderson and Why He’s Still Wrong - Harvard Law Review Leading originalist Professor Michael McConnell has written a thoughtful dissection of the Supreme Court’s pivotal decision last term in Trump v. Anderson, which...

My second essay on the Trump disqualification case is live with the Harvard Law Review Blog! harvardlawreview.org/blog/2025/09...

Nothing [the State] has done commends her... more clearly than the fact that she has done precisely by her legislation what we are endeavoring to do by one article in our constitutional amendment—provided that no person shall hold any office under this Government who has [joined] the rebellion.

Instead, the framers of the Amendment expected state enforcement, including for federal office. The Congress of 1866 saw this as the “ark of safety” that would make it “impossible that [rebels] can be represented upon this floor.” As Sen. Benjamin Wade observed regarding Tennessee’s readmission:

I offer new historical evidence against the core reasoning of Trump v. Anderson: that states cannot enforce Section Three’s disqualification of insurrectionists from federal office because the Amendment's assumed overriding purpose was to “expand federal power at the expense of state autonomy.”

3. Compared to liberals, conservatives rarely recruit historians or claim to be historical experts in making their history based arguments, instead relying on a thick network of originalist think takes that eschew a historian's label.

2. Historians' briefs especially get cited by liberal dissenters and by conservatives seeking cover in joining liberal coalitions; and

The lead findings including: 1. historians' briefs have grown rapidly at the Court, with an outsized influence, but have been swamped by originalist briefing since ~2018;

You can find the original study here: repository.law.wisc.edu/s/uwlaw/medi...

As the Supreme Court Focuses on the Past, Historians Turn to Advocacy

My article on history-based briefing was featured by Adam Liptak in the NY Times! www.nytimes.com/2025/08/04/u...