The following is a guest post from Travis Crum:

One of the many issues in Trump v. Anderson is whether Section Three of the Fourteenth Amendment applies today or whether it’s “insurrection or rebellion” language was backward looking and thus limited to the Civil War. As Will Baude and Michael Stokes Paulsen point out in their voluminous account of Section Three, the Thirty-Ninth Congress rejected language that would have limited Section Three to the “late insurrection.” The Fifteenth Amendment’s drafting reveals that the Reconstruction Framers confronted a similar question about past vs. future rebellions.

As I canvas in a soon-to-be-published article on the Fifteenth Amendment, when the House first considered the Fifteenth Amendment, Representatives Bingham and Shellabarger each proposed language that would have come tantalizingly close to enfranchising all adult men. Nevertheless, both Bingham’s and Shellabarger’s language permitted disenfranchisement based on insurrection or rebellion, a policy that the First Reconstruction Act had authorized in the Reconstructed South. But there was a critical difference: Bingham’s proposal permitted disenfranchisement for those who “hereafter engage in rebellion or insurrection” whereas Shellabarger’s allowed disenfranchisement of those who “have engaged or my hereafter engage in insurrection or rebellion.” Thus, Bingham’s draft would have enfranchised ex-rebels across the South.

This point did not go unnoticed. Representative Boutwell—the Fifteenth Amendment’s floor manager—commented that, although he was sympathetic to Shellabarger’s view, he did not think it prudent to entrench it into the Constitution. As for Bingham’s more forgiving proposal, Boutwell states that “it is not safe by one swoop … to relieve these men of their disabilities.” Other Republicans shared Boutwell’s opposition to the enfranchisement of ex-rebels.

When Bingham’s and Shellabarger’s proposals came to a vote, they were rejected decisively. Intriguingly, Shellabarger’s lost 61-126 while Bingham’s was defeated 24-160. Given the otherwise similar language in the two proposals, the large gap in support is attributable to the disenfranchisement of ex-rebels. Indeed, Bingham’s draft received support from some Democratic representatives, meaning that his language was even less popular amongst Republicans than it initially appears. Other proposals that would have re-enfranchised ex-rebels met similar opposition.

Turning back to Section Three, this post-ratification evidence reveals a few points. First, the Reconstruction Framers were attuned to the distinction between past and future insurrections/rebellions, and Section Three’s language reflects a temporally unbounded commitment to disqualification. Second, the Reconstruction Framers were comfortable imposing so-called political disabilities on ex-rebels. To be sure, disenfranchisement and disqualification are distinct penalties, as Sections Two and Three of the Fourteenth Amendment demonstrate. But given that the Fifteenth Amendment also deals with political rights and given its temporal proximity to the Fourteenth Amendment, its drafting provides helpful insights into the meaning of Section Three.