Professor Blight, is there anything you would like to
add perhaps to the Supreme Court's understanding of the history
that they were wrestling with today?
Oh well, yes, but on the office business,
I'd like to. I'd like to see Justice Gorsuch go
out to LA audience
that is deeply interested in this because they care,
and try to explain to them why he was wasting
so much time on that distinction.
Somebody should challenge him to do that.
There really wasn't much history in today's discussions.
And now that could be blamed partly on the lawyers
who didn't prompt it,
I suppose, but also even when it came up,
it was very strange. The worst example of all,
in fact the most
ill informed, is a nice term for it.
Moment of history was when Justice Thomas
kept asking why weren't there more uses of this Section
3 in the end of Reconstruction and after Reconstruction that
when the redeemers came on on the scene.
Why wasn't this done more in the 19th century?
And the lawyer finally landed on the right answer,
which was because of the Amnesty Act of
1872, for God's sake, they were almost all given amnesty
except the group who had served in Congress from from
1859 to 1863. And that's all the lawyer needed to
say to to to just and.
And the fact that Justice Thomas apparently doesn't even know
that
is appalling. I was also struck,
Lawrence, at the sheer timidity of the justices
to actually take on Section 3 to use it to
try to work with it.
It's as though it's some horrible,
awesome power that just cannot be used.
And what if we end up
through this process, however it plays out and it's not
over,
With Section 3 essentially being erased from the 14th Amendment,
What will that mean? This precious document we live under?
The Constitution forged in that 14th Amendment?
What if you tear out
this section, which is the only way to hold
people responsible who who try to overthrow the government
under law?
Will we be a people of the rule of law
if that part of the Constitution in a in essence
gets erased?
Professor Faust, I was wondering
what literally what you were feeling and what Professor Blight
was feeling.
What historians feel when you're listening to these arguments that
are dabbling in history,
and some of them, they they start to
pretend they've gone deep into history and they are,
they are sifting the details the way professional historians do.
What does that feel like for professional historians to be
listening to that?
Well, it's a little unnerving and actually the
Jonathan Mitchell said at one point.
Law office history. This is not a phrase,
excuse me, that I've heard before,
but it seemed to me a very apartment one
about how you take things from the past and use
them in relationship to a case in the present,
rather than really getting into the heads of those who
were thinking it and say,
all right, what were they up to?
What were their goals? What were their constraints?
What was their their sensibility and putting this forward?
And I think David just made a wonderful point where
he said,
what is the 14th Amendment for?
What was it for? What will we do without it?
And instead, there were these very narrow approaches to how
a little bit of it might be taken in one
way or another.
I'd love to hear David answer this.
There you go, Professor Blight.
Oh, well, Drew, you didn't need to do that.
Well, I'll give you an.
I'll answer with another example.
When Justice Roberts
said, Gee whiz, wasn't the 14th Amendment for the purpose
of increasing federal power?
The answer, of course, is Of course it was.
That's what John Bingham had in mind.
He wanted to federalize the Bill of Rights.
Of course it was, and therefore Roberts was implying,
well you don't want to give this to the States.
Good Lord,
what was he thinking when he led
the the Shelby V Holder case where they simply gave
back to the states control over voting rights instead of
allowing the Voting Rights Act of
1865 to to stay in place?
It is this, I guess what bothers historians the most
is not just that
the knowledge isn't always that deep.
I mean, we can be very arrogant about that,
and we should not be.
It's when people twist it and just cherry pick it
and use it for what frankly are,
even though they may not even be always aware of
it.
Political reasons and political purposes.
There was also a moment,
I think it was Gorsuch,
although I may not have that right.
Maybe it was Alito who said,
can we really get back inside the minds of those
people who are drafting the 14th Amendment?
You bet we can. Our amicus brief that Drew and
I worked with
gets very much inside their heads.
We have endless testimony of them saying what they were
doing,
why they were doing it,
and that it was to be permanent.
The answer is yes, we we can get inside their
minds on that one.
You know, Professor Faust, when I,
when I listen to both of you,
I imagine the framers of the 14th sitting there in
the front row today and just jumping out of their
seats at certain points going,
What do you mean it's completely clear what's the matter
with you?
It couldn't, couldn't be more obvious.
Well, how how would they feel,
Professor Faust?
Well, I often think that way too.
And I
I jam time together and imagine what someone from the
past would be saying in the present.
So I love that question.
And I think they would be really upset.
They would have their minds on insurrection.
This was something that they bled and died to overcome
in in the 19th century.
They saw it tear the country apart and they glued
the country back together.
And they wanted to make sure that,
as David just said, the 14th Amendment was for all
time into the future.
And here we are in the future,
I think, failing to learn the lessons of how our
nation was turned torn apart in the 19th century.