Recently filed, in Trump v. United States (the Supreme Court's pending presidential immunity case), Brief of Amici Curiae Scholars of the Founding Era in Support of Respondent. From the summary of argument:
Former President Trump is charged with conspiring to thwart the peaceful transfer of power following the 2020 election. In his defense, he asserts that a doctrine of permanent immunity from criminal liability for a President’s official acts, while not expressly provided by the Constitution, must be inferred. To justify this radical assertion, he contends that the original meaning of the Constitution demands it. But no plausible historical case supports his claim.
The Constitution does not expressly confer any presidential immunity, even though it does for members of Congress in limited cases. The Court must discern whether that silence indicates that permanent presidential immunity was so integral as to need no description (as Petitioner contends), or whether it reflects an intention not to confer immunity. That inquiry, in turn, would benefit from an examination of the historical record, including the Framers’ own statements and evidence of their views on accountability, the rule of law, and democracy. While “a page of history” may not always be “worth a volume of logic,” history provides valuable insight into the meaning and context of the words and principles at issue in Petitioner’s claim.
Sometimes history speaks ambiguously. But here, it speaks with surpassing clarity: The principle that a President may be prosecuted—which informed President Nixon’s 1974 pardon and President Clinton’s 2001 plea bargain—began in the beginning. As James Iredell, one of this Court’s inaugural justices, explained, “If [the President] commits any crime, he is punishable by the laws of his country.” …
This historical record creates a heavy presumption against Presidential immunity. There is no evidence that any Framer intended for a President (much less a former President) to be immune from prosecution. The motivations, experiences, and statements of the Framers and ratifiers all support an understanding that the President would, unlike a king, be subject to the law. …
The brief is signed by Holly Brewer, Rosemarie Zagarri, Jack N. Rakove, Jonathan Gienapp, Jane Manners, Gautham Rao, Saul Cornell, Alexander Keyssar, Jane E. Calvert, Joanne Freeman, David Konig, Jill Lepore, Peter S. Onuf, Michael A. Ross, and Alan Taylor.
(Via Legal History Blog.)
I mostly agree. More importantly, it's notable that these distinguished historians think history can (sometimes) provide definite answers to currently contested constitutional questions (a core claim of originalism). It's often said that the Constitution's original meaning is too ambiguous or too remote to provide such answers, and in support it's often said that historians dispute the central premise of originalist inquiry. But to the contrary, the brief's signers conclude that, as to the issues in this important case, history "speaks with surpassing clarity." Perhaps we can now retire the contention that historians don't believe originalism is possible.
Posted at 6:01 AM