Rethinking Section Three: The Misnomer of the ‘First Insurrection’

Prof. Kurt Lash (Richmond) passed along a response to an amicus brief by Profs. Akhil Reed Amar (Yale) and Vikram David Amar (Illinois) in Trump v. Anderson. The authors express their delight in publishing the response, which is different from the views expressed by other bloggers on the case. They are glad that the blog provides a forum for competing views. They express their willingness to publish any response to the item provided. The brief claims that Section Three represents the framers’ response to the two insurrections, which include the events of January 6, 2021. These supposed insurrections are analogous to the events of the “First Insurrection” involving John B. Floyd and an attempt in February 1861 to disrupt the counting of electoral votes and prevent the inauguration of Abraham Lincoln. However, Lash argues that the historical evidence does not support the argument made in the brief. First, he states that John B. Floyd’s actions were more inline with the treachery of the Civil War than with any “First Insurrection.” Second, Lash argues that there is no evidence for the existence of any conspiracy to disrupt the counting of electoral votes in 1861. Third, Lash argues that the 1862 Ironclad Oath Act demanded an oath of loyalty from every person elected or appointed to any office of honor or profit under the government of the United States, excepting the President of the United States. This proves that “the President of the United States” was not considered as holding an “office … under the government of the United States.”