The Supreme Court hears arguments Thursday to decide whether to disqualify Donald Trump from being president again. The theory pursued by the Colorado Supreme Court is that Trump “engaged in insurrection” within the meaning of Section 3 of the 14th Amendment. The core problem with this theory — even aside from questions of whether and how courts can adjudicate such issues — is that Trump did not engage in the January 6 riot at the Capitol, whether or not that qualifies as an insurrection.

I’ve explained previously at length why that’s my conclusion from reading Myles Lynch’s scholarship on the contemporaneous precedents applying Section 3, as well as from reading the 1867 legal opinions of then-attorney general Henry Stanbery. (Section 3 also has an “aid and comfort to the enemies” of the United States provision, but it wasn’t the basis for the Colorado decision and runs afoul of the narrow definition of “enemies” in use in the 1860s, so I’ll focus here on the “engaged in insurrection” language.)

There are two principal disputes. The first, assuming that the Capitol riot was an insurrection, is whether Trump engaged in it. My view is that he did not. Congress in the immediate aftermath of Section 3’s passage construed it to cover people who aided the Confederate war effort while it was ongoing, but not those who merely helped incite secession by political argument before the fact. Stanbery wrote at the time that “the force of the term to engage carries the idea of active rather than passive conduct.” Trump certainly inspired the riot by his words and actions in advance, but he didn’t engage in rioting if that word is read in its ordinary sense. Once it started, he did almost nothing — just some equivocal tweeting.

The second dispute is whether the riot is the relevant “insurrection.” Recognizing the problem with arguing that Trump engaged in the riot, the much-discussed law journal article by William Baude and Michael Paulsen argues that Trump’s larger campaign to convince various elected officials to overturn the election results amounted to a “bloodless coup d’état” that could qualify as an insurrection even without the riot. (Baude and Paulsen also claimed that Trump could be responsible for the riot on the basis of “culpable inaction,” but the basis in law or evidence for this theory is dubious.)

This is not how the Colorado Supreme Court saw things, ruling that “any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” If the Supreme Court were to apply the “bloodless coup d’état” theory, it would have to either send the case back under a new legal standard or apply that standard itself to the evidence without the input of a lower court.

There has been, moreover, little in the way of contemporaneous historical evidence presented to suggest that anybody in 1866–68 thought Section 3 applied to a “bloodless coup d’état.” Baude and Paulsen cite Abraham Lincoln’s view that secession amounted to rebellion before a shot was fired, but secession aimed to permanently oust the authority of the federal government over sovereign U.S. territory, not just alter the outcome of an election (however corruptly) to determine who wields power within the constitutional system. It’s just not a natural reading of Section 3’s language.

Professors Akhil Reed Amar and Vikram David Amar submitted an amicus brief arguing for an expansive view of what it means to engage in insurrection, focusing largely on the conduct of John Floyd, the secretary of war under James Buchanan. The Amar brief, which Jamelle Bouie of the New York Times cites for support, is full of powerful rhetoric, but it is much lighter on evidence of the original understanding of Section 3.

Floyd was undoubtedly culpable of treason or something close to it: As Southern states began seceding, he managed the armies, munitions, and forts of the United States in a way that materially advantaged the Confederacy in advance of an anticipated war. As Ulysses S. Grant noted, Floyd has “scattered the army so that much of it could be captured when hostilities should commence, and distributed the cannon and small arms from Northern arsenals throughout the South so as to be on hand when treason wanted them.” That’s rather a different and more concrete matter than just giving political speeches. In any event, there was never a test of whether Floyd could be disqualified under Section 3, because he died in 1863. Moreover, it would have been unnecessary to discuss his prewar conduct, because Floyd served as a Confederate general during the war.

The Amar brief buries in a footnote its only vague references to Floyd in the debates over Section 3. The closest is a speech given by Burton Cook of Illinois in the 1868 debates over impeaching Andrew Johnson, which recites a list of the purposes of the 14th Amendment. Referencing Section 3, Cook noted that “persons who had, like Jeff Davis, Floyd and [John] Breckinridge held high office in the government and betrayed and well nigh ruined the government whose Constitution they had solemnly sworn to support, should not again be entrusted with power over loyal men.” Of course, Davis served as Confederate president and Breckenridge and Floyd were both generals in its army, so that’s a pretty thin reed upon which to hang a theory that their conduct prior to the war — let alone prior to secession — was widely understood to be a basis for disqualification.

A more interesting case with more parallels to Trump is that of Emerson Etheridge. I have yet to see any serious effort to engage the question of whether the debates over Section 3 addressed Etheridge’s conduct. Etheridge, a loyal Tennessee Unionist who opposed secession, was nonetheless a supporter of the Democrats who wanted to thwart the emancipation of slaves and other Republican policies for reconstructing the Southern states. In December 1863, Etheridge (a former member of the House) was serving as clerk of the House of Representatives when the House reconvened after the 1862 midterms.

House Republicans did badly in those midterms, with Speaker Galusha Grow losing his seat, but they still had a 15-seat edge on Democrats and could combine with “unionist” members to retain a majority. Still, their margin was not that large. Etheridge hatched a plan to throw the House to the Democrats by rejecting the credentials of a bunch of Republicans. He prepared in advance by warning Democrats to have all their papers in order so he would have a fig leaf of legality to cover excluding Republicans who weren’t similarly prepared. Unfortunately for Etheridge, Republicans got wind of the plot in advance, stopped Etheridge, kept control of the House, and promptly fired him. At the time, Lincoln tamped down talk of punishing him further, quipping that “Emerson ain’t worth more than a squirrel load of powder anyway.”

After the war, Etheridge’s acid criticisms of the governor of Tennessee got him arrested on charges of “attempting to incite the people of Tennessee to reinaugurate revolution and bloodshed, endeavoring to hold up to infamy the chief magistrate of the nation, and even insulting the revered memory of” Lincoln. He was acquitted by a military commission. After failed bids for Congress and the governorship, Etheridge was ultimately elected to the Tennessee senate in 1869, and (so far as I know) seated there without further controversy.

Was Etheridge’s plot as clerk of the House tantamount to “engaging in insurrection?” He engaged in no violence and did not seek to oust the House from sovereign power. He was, however, trying to do something very much like what Trump aimed at: preventing the seating of winners of elections in order to throw power over one of the branches of government from one party to the other. His case, rather than Floyd’s, presents the better historical test of how far Section 3 reaches.