[NPR's Steve] INSKEEP: This happened after the Civil War. Many justices on the court are originalists. They judge things based on the original public meaning of a law. So [25] historians have submitted a friend of the court brief on what it means. They include Jill Lepore and David Blight.
[Historian] JILL LEPORE: If the court's going to make its decisions based on an originalist interpretation, they do need good history. It does then become a kind of civic obligation of historians to provide the court, you know, the best and most accurate historical evidence.
INSKEEP: When you look at the discussions, the debates about that language, did anybody address whether it was just for former Confederates or whether it was forever?
LEPORE: Absolutely. Sort of repeatedly people would just sort of read into the record their understanding that what they were agreeing to here was a provision that would apply not only to ex-Confederates, but to future insurrectionists.
INSKEEP: The next controversy that's being discussed today is whether, because of its wording, it applies to all officials except the president, or does it also apply to a president?
LEPORE: So there's a whole lot of legal nitpicking around this, which, from a historian's vantage, is nothing short of bizarre. It defies the record of the drafting. It defies the logic of Section 3. And it also defies what originalists would describe as the public understanding of Section 3.
INSKEEP: Let's move on to another controversy, which is who gets to decide if someone should be disqualified. In this case, the Colorado State Supreme Court has decided. We have other instances where a secretary of state of a state has decided. What does the history tell you there?
LEPORE: If you look in the congressional petitions database, among the petitions that you find in 1868 and 1869 are many, many, many petitions from ex-Confederates to Congress seeking the removal of their Section 3 disability. None of these people have been convicted of insurrection.
INSKEEP: Does the attack in the Capitol on January 6, 2021, and the larger effort to overturn Trump's defeat in the 2020 election - does that count as insurrection? Does the history tell you anything about the original public meaning of that word as it existed in the 1860s?
[Historian David] BLIGHT: Well, I would only say, despite the fact that the Confederacy is the largest dissent in American history, they never invaded the U.S. Capitol building. They never got there. In the January 6 case, a mob invaded the U.S. Capitol by violence and force to overturn the count of the Electoral College. And they were openly, vigorously prompted by the president of the United States. If that's not insurrection, then neither was the Confederacy.
