"The Sweep and Force of Section Three": TRUMP disqualified from office without 2/3 vote of Congress. (Wm. Baude & Michael Stokes Paulsen, U. Penn. L. R., 2024)

The Constitution answers Trumpery, flummery,  dupery, nincompoopery, and attempted or actual treason, and 21st century insurrectionism.  Please review our Fourteenth Amendment, section 3: Insurrectionists are disqualified from office without a 2/3 vote of Congress.  

Two conservative legal scholars make a compelling case. 

Please read below.

Who among us would disagree with law Professors William Baude & Michael Stokes Paulsen? 

From University of Pennsylvania Law Review: 

The Sweep and Force of Section Three

172 U. PA. L. REV. (forthcoming 2024) William Baude & Michael Stokes Paulsen

Abstract: Section Three of the Fourteenth Amendment forbids holding office by for- mer office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal conse- quences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, super- sedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participa- tion or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted over- throw of the 2020 presidential election.

Introduction ................................................................................................................ 3 I. Section Three is Legally Operative Today........................................................ 7 A. The Generality and Presumptive Perpetuity of Constitutional Language ........... 7 B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?) ............................................................................................ 11 II. Section Three is Legally Self-Executing ........................................................ 17 A. Section Three as Automatic Legal Disqualification ........................................... 17 B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three? ................. 22 1. Seeking Office ................................................................................................... 23 a. by election...................................................................................................... 23 b. by appointment ............................................................................................. 26 2. Holding Office ................................................................................................... 27 3. Special Situations ............................................................................................. 29 C. The Problem of Griffin’s Case.............................................................................. 35 1. Background ....................................................................................................... 35 2. Chase on Section Three .................................................................................... 37 a. “The argument from inconveniences, great as these” ................................. 37 b. The argument from “the intention of the people” ........................................ 40

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c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law .................................................................... 42 d. The argument from the Section Five enforcement power ........................... 44

3. Griffin’s Self-Defeating and Highly Irregular Dictum.................................... 45 III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions .................................................................................................................. 49

A. Bills of Attainder.................................................................................................. 53 B. Ex Post Facto Laws.............................................................................................. 54 C. Due Process of Law .............................................................................................. 56 D. The Ominous Question: Section Three and the First Amendment..................... 57

IV. Section Three’s Substantive Disqualification is Sweeping ...................... 61 A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies” ................................................................................. 63

1. Working definitions .......................................................................................... 64 2. Contemporaneous Dictionary Definitions ....................................................... 69 3. Intratextualism................................................................................................. 72 4. Contemporaneous Public, Political, Legal Usage............................................ 73

a. President Lincoln .......................................................................................... 74 b. Congress ........................................................................................................ 79 i. The Ironclad Oath ...................................................................................... 79 ii. The Second Confiscation Act .................................................................... 81 c. The Supreme Court’s decision in The Prize Cases ....................................... 84 5. Other Extant Statutory Sources and Notorious Examples ............................ 86 a. The Insurrection Acts (and Insurrections Generally) ................................. 86 b. The Congressional Exclusion Debates ......................................................... 92 6. Legislative History ........................................................................................... 98 7. Early Applications of Section Three ................................................................ 99 B. What Prior Officeholders are Covered? What Future Offices are Barred? ....... 104 C. The Attempted Overthrow of the 2020 Presidential Election ........................... 111 1. The Question of Coverage: Insurrection and Rebellion ................................ 112 2. The Question of Participation: “Engaged in” and “Aid or Comfort” ............. 116 a. General Principles Concerning Culpable Participation ............................ 116 b. Section Three Disqualifies Donald Trump from Future Office ................. 117 c. Beyond Trump ............................................................................................. 121 Conclusion ............................................................................................................... 124

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Introduction

The Sweep and Force of Section Three

172 U. PA. L. REV. (forthcoming 2024) William Baude* & Michael Stokes Paulsen**

“Section 3 has long since faded into history.”

- Eric Foner1

Reports of Section Three’s demise are greatly exaggerated. It turns out that Section Three of the Fourteenth Amendment remains of direct and dramatic rele- vance today—a vital, fully operative rule of constitutional law with potentially far- reaching contemporary real-world consequences. Section Three remains in legal force, and has a broad substantive sweep.

Here is what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, un- der the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.2

This section of the Fourteenth Amendment was designed to address a particu- lar historical situation and acute problem arising in the aftermath of the Civil War. States in the South had purported (unconstitutionally)3 to secede from the Union;

* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
** Distinguished University Chair and Professor of Law, University of St. Thomas Law School. We thank Frank Bowman, Steve Calabresi, Josh Chafetz, John Harrison, Ed Hartnett, Daniel Hemel, Myles Lynch, Gerard Magliocca, Michael McConnell, Derek Muller, Eric Posner, Micah Quigley, Rich- ard Re, Michael Rosin, Stephen Sachs, Greg Sisk, Seth Barrett Tillman, and workshop participants at the University of Chicago Law School and University of St. Thomas Law School for helpful comments on this draft, T.J. Bowman, Nicole Catlin, Connie Gong, Sarah Leitner, James Marmaduke, and Matt Phillips for valuable research assistance, and countless others for background discussions about these issues—though not all of them gave aid or comfort to our conclusions.
1 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 85 (2019).
2 U.S. Const. art. XIV, sec. 3.
3 See infra note 228 and sources cited there.

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they had purported to form the (so-called) “Confederate States of America” in rebel- lion against the authority of the U.S. Constitution; and they had waged a bloody four- year war of rebellion against the United States. Yet even after the rebellion had been defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators and Representatives, men who had notoriously violated previously sworn oaths to support the U.S. Constitution by subsequently engaging in or supporting secession, rebellion, and civil war against the authority of the United States (to say nothing of those now serving again in their state governments). These men who arrived in Wash- ington included several who had held prominent positions in the rebel Confederacy: “four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Con- federacy, Alexander Stephens.”4

The Congress that proposed the Fourteenth Amendment rightly regarded the situation as outrageous—not only morally, but practically. If former Confederates held the levers of federal and state government power, effective “reconstruction” ofthe political order and any hope of extending the full and equal protection of the laws to the newly freed former slaves would be at an end. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the federal or state government prior to the War, sworn required oaths of loyalty to the United States Constitution and subsequently engaged in “insurrection or rebellion” against the U.S. constitutional authority or given “aid or comfort” to persons engaged in suchacts of insurrection or rebellion. Only a two-thirds majority vote of both houses of Congress could remove that sweeping disqualification.

Fast-forward a century and a half. The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judi- cial, and political interest in Section Three of the Fourteenth Amendment.5 The core events are familiar to all—the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States’ selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count elec- toral votes certified and submitted by several States; the efforts of Members of Con- gress to assert a similar power to reject votes lawfully cast votes by electors; the fo- menting and immediate incitement of a mob to attempt to forcibly prevent Congress’s

4 Akhil Reed Amar, America’s Constitution: A Biography 377 (2005); see also Eric L. McKitrick, An- drew Johnson and Reconstruction 176-179 (1960); Allen C. Guelzo, Reconstruction: A Concise History 25 (2018).
5 The most important scholarly articles (to which we are deeply indebted) are Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment.. 87 (2021); Myles S. Lynch, Disloyalty and Disqualification: Reconstructing Section Three of the Fourteenth Amendment, 30 William & Mary Bill of Rights J. 153 (2021), both of which were written before the events of January 6, and Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A How-to Guide, Lawfare (Jan. 19, 2021), available at https://www.lawfareblog.com/disqualifying-insurrectionists-and-rebels-how-guide.

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and the Vice President’s counting of such lawfully cast votes—all in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in ac- cordance with the Constitution.

This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d’etat. These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021—an “insurrection” aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibili- ties to count the votes for President and Vice President in the 2020 election. Several of the people involved in these events—most notably the defeated President, Donald Trump—had previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.

As legal officials and citizens generally have begun to confront the application of Section Three, they have foundered on the most fundamental questions. How does Section Three’s disqualification apply—does it apply—to those who planned, sup- ported, encouraged, assisted, incited, or otherwise participated in the events sur- rounding the attempted overturning of the presidential election of 2020? Does Section Three’s century-and-a-half old disqualification, designed for the aftermath of the Civil War, even remain legally operative in the first place? If so, what must be done to enforce Section Three? Does it require implementing legislation or criminal trials (or impeachments) before its disqualification kicks in? How does Section Three inter- act with the rest of the constitutional order—are its subjects protected by constitu- tional principles of attainder, anti-retroactivity, due process and free speech? And if Section Three does apply—to what and to whom? What actions count as having “en- gaged in insurrection or rebellion” against the Constitution of the United States or having “given aid or comfort to the enemies thereof”? Which officials are covered by Section Three’s exclusions?

This article attempts to answer these questions. It makes four key points (or clusters of points):

First. Section Three remains legally operative. It is no less part of the Consti- tution than the other provisions of the Fourteenth Amendment. It is not a dead letter. The Constitution is a binding, authoritative written text, not a collection of specific historical purposes and intentions. Where the text applies, it applies. Its legal force is not limited to the immediate problem or purpose that prompted its enactment. Sec- tion Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.

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Nor has Section Three somehow been “repealed” by Congress’s two major nine- teenth-century statutes granting amnesty to those covered by Section Three. This is not because it would be impossible for a constitutional provision to expire by its terms after a period of time, or upon the occurrence of a particular event, or upon action taken by future actors. Article I, Section 9, for example, created a constitutional pro- hibition of most congressional regulation of the international slave trade for a period of twenty years—but its prohibition then vanished in 1808. Section Three, however, does not work that way. It imposes a general, prospective, rule of disqualification, which Congress may remove by two-thirds vote of both houses only once it has oc- curred. Section Three is prospective; Congressional amnesty is retrospective.

Second. Section Three is legally self-executing. That is, Section Three’s disqual- ification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the en- actment of the Fourteenth Amendment. Its disqualification, where triggered, just is. It follows that Section Three’s disqualification may and should be followed and car- ried out by all whose duties are affected by it. In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Consti- tution whose duties present the occasion for applying Section Three’s commands. Sec- tion Three is ready for use.

While Section Three’s requirements could be made the subject of enforcement legislation by Congress, under its general power under Section Five of the Fourteenth Amendment “to enforce” the provisions of the amendment, no such legislation is con- stitutionally required as a prerequisite to Section Three doing what Section Three itself does. Chief Justice Salmon P. Chase’s circuit court opinion to the contrary, In re Griffin,6 is simply wrong on this point—full of sleight of hand, motivated reasoning, and self-defeating maneuvers—as we will explain at length. In re Griffin should be hooted down the pages of history, purged from our constitutional understanding of Section Three.

Third. Section Three supersedes (or satisfies) earlier-enacted constitutional pro- visions to the extent of any supposed conflict between them. Section Three, at the time it was adopted as part of the Constitution, imposed a disqualification from office based on an individual’s past conduct. Even if imposition of such a disability might otherwise, if done by statute, have been a forbidden Ex Post Facto law or Bill of At- tainder, Section Three of the Fourteenth Amendment constitutionally supersedes any prior provision conflicting with its terms.

This principle extends to a more unsettling point. To the extent Section Three’s disqualification for having “engaged in insurrection or rebellion” or giving “aid or

6 11 F. Cas. 7, 22-27 (C.C.D. Va. 1869) (No. 5,815). 6

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comfort” to “the enemies” might turn out to be in tension with the First Amendment’s protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three’s terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.

This leads to the article’s fourth and final group of points:

Fourth. Section Three’s disqualification is sweeping in its terms. It disqualifies from future office-holding persons who “engaged in”—an expansive and encompass- ing term connoting many forms of participation in or active support of—a broad swath of activity covered by the terms “insurrection or rebellion” or the giving of “aid or comfort” to “enemies” of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices. Taking Section Three seriously, on its own terms, means taking seriously the enormous sweep of the disqualification it creates. And, we will argue, taking Section Three seriously means that its constitu- tional disqualifications from future state and federal officeholding extend to partici- pants in the attempted overturning of the presidential election of 2020, including for- mer President Donald Trump and others. The substantive terms of Section Three’s prohibition are not themselves difficult or inscrutable (even if there might be ques- tions of application at the outer edges of the text’s meaning). But they are potentially breathtaking in their straightforward consequences.

In what follows, we develop each of these four core points at length.

Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution. It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies. Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of “in- surrection or rebellion” against the lawful constitutional order.

I. Section Three is Legally Operative Today

A. The Generality and Presumptive Perpetuity of Constitutional Language

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The first step in our argument is an easy one, but perhaps not immediately obvious to everyone: Section Three’s disqualification remains an operative rule of the Constitution. The reason this might not be obvious, at least to the uninitiated, is that Section Three plainly was designed for a specific historical situation—the circum- stances of Reconstruction following the end of the Civil War. The implication, in the eyes of some, might be that that historical situation limits the scope of the provision’s operation. We think any such inference badly mistaken. Section Three was prompted by historical circumstances, but that does not in any way detract from its enduring force.

To be sure, Section Three clearly bears the hallmarks of its historical context. It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices that it imposed on former Southern officeholders-turned-rebels was dramatic. Its op- eration was hugely disruptive of antebellum patterns of elite political leadership, ap- parently indifferent to inconvenience, and seemingly rather punitive in its conse- quences. Section Three is harsh. It is categorical. It is insistent. It seems to have been deliberately designed to turn the prior Southern political order upside down. As Eric Foner puts it, “Section 3 aimed to promote a sweeping transformation of Southern public life.”7

In these respects, the disqualification reflects and embodies the distinctive po- litical impulses of the so-called Radical Republican Congress that proposed the Four- teenth Amendment in 1866. If its disqualification had radical policy consequences for the South, so be it.8 It was more important to strip insurrectionists and rebels of gov- erning power completely, to remake Southern political society thoroughly, and to pre- vent Southern backsliding from the full consequences of Union victory entirely, than to be concerned about such things as seeming harshness, impracticality, or disrup- tiveness. Section Three is very much a creation and creature of its day.

Yet it is (or should be) basic constitutional law that it is the enduring text of the Constitution that supplies the governing rule, not the ostensible “purpose” or spe- cific historical situation for which the text was written. Constitutional provisions, written into our fundamental law, live beyond the circumstances that prompted their adoption. And many such constitutional provisions are written in broad, or general, terms that obviously extend beyond the specific situation or situations that led to their enactment. Sometimes this is by design: the text’s drafters wrote a general rule, applicable to a broad class of circumstances, as a more general, “neutral,” way of ad- dressing a class of situations of which the specific problem motivating the writing of the text might be just one instance. The thinking might be that if the principle giving rise to the text is a correct one, it should be correct in like circumstances, not just the one situation that provoked the rule’s adoption. And sometimes a text’s breadth and

7 Eric Foner, Reconstruction, 1863-1877, at 260 (1988).
8 Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment, Volume 1 (2023, University Press of Kansas).

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generality might not reflect conscious design: the text’s drafters wrote a general rule that unintentionally went further than the problem they had in mind. Put colloqui- ally, the text sometimes “overshoots” its drafters’ intended purposes. (A text might undershoot the problem its framers had in mind to address, too—or achieve only part of its intended purpose, perhaps because of political compromise.)

The reason does not really matter. It is the rule as drafted and enacted in the written text that counts, whether it goes further than the purposes supposed to have inspired its adoption, or even whether it falls short of fully achieving those purposes. While evidence of intention, usage, purpose, and political context can assist in ascer- taining the meaning of the enactment, it is that objective meaning that constitutes the law, not the ostensible purposes or motivations that supposedly lay behind it. This is “originalism,” our system’s basic method for interpreting the Constitution and its amendments.9

Consider, for example, Section One of the same Fourteenth Amendment. As a matter of historical purpose, the specific mischief the framers of Section One had in mind was the enactment of “Black Codes” in Southern States that discriminated against the newly freed former slaves. But the words chosen by the drafters to enact the rule embodied in the text command, in general terms, that no state shall abridge the “privileges or immunities of citizens of the United States” nor deny to any “per- son” within its jurisdiction the “equal protection of the laws”—rules not cast in racial terms at all, let alone limited to the immediate situation of former enslaved persons. The rules enacted apply to all persons irrespective of race. So it was entirely plausible for lawyers to argue that Section One also barred the same kind of discrimination against women citizens that it barred against black citizens. It doesn’t matter that the draftsmen of the amendment might not have had women “in mind” if women are covered by the meaning of the words they actually wrote and ratified.10 Similarly, it was entirely plausible to argue that Section One went so far as to ban racially segre- gated schools.11 The answers to each of these questions turn on the objective, original meaning of “privileges or immunities of citizens of the United States” and “equal pro- tection of the laws,” not whether the 1866 Congress and subsequent ratifiers had

9 See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L. J. 1113, 1124-1148 (2004); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857, 872-883 (2009); William Baude & Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U Pa. L. Rev. 609, 624-625 (2021); Wil- liam Baude & Stephen Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1456-1460 (2019). For purposes of this article, we can bracket any differences in emphasis between Paulsen’s objective-orig- inal-meaning originalism and Baude’s original-law originalism.

10 We have used such examples before. Paulsen, Rules for Its Own, supra note 9, at 901-902; Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar's Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1421 n. 68 (2014); William Baude, Jud Camp- bell, & Stephen Sachs, General Law and the Fourteenth Amendment (Jan. 31, 2023) at 67-68.

11 We have used this example before, too. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839-840 (1993); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2380- 2381 (2015). See also Baude, Campbell, & Sachs, supra note 10, at 66.

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thought through the possible radical implications of their own work. If the meaning of the Fourteenth Amendment’s terms forbade racially discriminatory classifications of any and all kinds, as a matter of the rules of late-1860s language and usage, it doesn’t matter one way or the other whether it was intended or expected that govern- ments could enforce certain types of racial discrimination, like enforced racial segre- gation. The rule as adopted might overshoot the purposes, expectations, or desires of those who voted for it. But the rule is the rule; the text’s meaning is the text’s mean- ing.

Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a gen- eral rule in Section Three—a disqualification from future officeholding keyed to hav- ing taken an oath to the Constitution and subsequently engaging in insurrection or rebellion against the United States—rather than a provision that by its terms applied only to the case of former Civil War secessionists and Confederate officials and offic- ers,12 it is the general rule that matters. That the rule had a particular political pur- pose behind it as a matter of history might be an aid to correct interpretation of the language supplying that rule. (We will make such an argument below, concerning the meaning, in context, of the phrase “insurrection or rebellion.”)13 But in the end the question is what rule was enacted. If Section Three’s rule fell short somehow, missing some folks its drafters might have meant to ensnare, those persons are not ensnared. The text might (or might not) be thought deficient in this regard—as having failed to fulfill its full purpose. But the text means what it says. Similarly, if the rule supplied by the objective meaning of the text runs right on past the specific historical purpose for which it was enacted and embraces as well other insurrectionists, rebels, and aid- ers and comforters of enemies, that rule must be given full legal effect as part of the Constitution. The rule’s overbreadth in terms of its perceived purpose, and even its inconvenience as a consequence of such overbreadth, are beside the point.14

12 Indeed, for what it is worth, the legislative history of Section Three confirms that this is what the authors of the Fourteenth Amendment did. Earlier drafts had limited the Section’s application to the “late insurrection.” Later versions dropped this limitation and generalized Section Three’s application to “insurrection” and “rebellion.” See Cong. Globe, 39th Cong., 1st Sess., at 2767-68, 2770 2869, 2921; see also Mark A. Graber, Rewarding Loyalty (?) and Punishing Treason Through Disenfranchisement and Bans on Officeholding: Section 3, at 3-4 (unpublished chapter, forthcoming in The Forgotten Four- teenth Amendment, Volume 2, University Press of Kansas) (documenting this development).

13 Infra Part IV.A.
14 See, e.g., Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 908- 909 (1994) (making this point about the disqualification of some senators and representatives from eligibility for certain appointed offices posed by the Emoluments Clause of Article I, § 6, cl. 2); William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J. L. & Pub. Pol’y (forthcoming 2023) (“Sometimes rules go beyond their reasons; a rule can be overbroad compared to the reasons for enact- ing it. And sometimes rules are underbroad; a rule cannot quite do all the things that you might want to do given the reasons for enacting the rule. Textualism recognizes that when the judge enforces the law, the law’s rule might sometimes be different from what the people who enacted the law would have wanted had they thought about the situation.”). For an extended discussion of the abuse of arguments from inconvenience, see infra Part II.C.2.a (discussing Chief Justice Chase’s appalling opinion in Grif- fin’s Case).

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Finally, we take it as almost too obvious to require stating that constitutional provisions have indefinite life unless and until repealed or amended by subsequent constitutional enactments. The fact that an unrepealed, unamended provision of law is “old” does not in any way weaken its legal force. The First Amendment is old too, as is the entire original Constitution. But both remain in force. This is true even if the purpose for which a constitutional provision was originally written has ceased to be relevant, or even if the constitutional provision at issue might be thought in today’s society to be something of an anachronism.15 There are, of course, some self-identified living constitutionalists who deny this point—who think that old texts have a legal shelf life and lose their potency over time, as “the interest in sovereignty fades.”16 But in our view, this just shows what is wrong with such living constitutionalism.17 The Constitution is not a spice cabinet.

All of this might seem to belabor the obvious. Few interpreters of Section Three explicitly deny that it continues to govern new insurrections and rebellions.18 But sometimes we wonder if this kind of denial is sneaking in to people’s intuitions—subtly infecting and distorting the actual interpretation of Section Three. So let us start from the right first principles: Section Three remains constitutionally fully in force, as alive as the day it was enacted.

B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)

But what about this? The second sentence of Section Three provides that Con- gress “may by vote of two-thirds of each House, remove such disability.”19 Just as the first sentence’s disqualification is not limited specifically to the Civil War, neither is Congress’s power to grant amnesty. Thus, Congress can, by the requisite vote, remove any disqualification that exists by virtue of the operation of Section Three. But just exactly how far does that power reach? Could Congress, by two-thirds majorities, es- sentially extinguish the legally operative effect of Section Three entirely, by removing the disability imposed by Section Three generally, prospectively, and universally? Put more vividly: Can Congress, by two-thirds vote of each house, essentially “explode” Section Three—render it inoperative in the future, for all time?

16 David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 58 (2015); see also Adam M. Samaha, Originalism's Expiration Date, 30 Cardozo L. Rev. 1295 (2008).
17 See Baude & Sachs, Grounding, supra note 9, at 1487 (responding to Strauss).

18 For a rare example, see an argument made and rejected by the House during the exclusion of Victor Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935) (“It was also seriously contended by counsel that section 3 of the fourteenth amendment was an outgrowth of the Civil War and that such a provision cannot possibly apply to the present case”).

19 U.S. Const. amdt. XIV, sec. 3.

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15 Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457, 1486-1490

(1997) (discussing privilege against self-incrimination).

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These questions turn out not to be completely hypothetical. In two statutes enacted in the late nineteenth century, Congress might arguably have done this. One statute (from 1872) removed “from all persons whomsoever”—except designated cat- egories of individuals—all “political disabilities imposed” by Section Three.20 Another (from 1898) further removed “the disability imposed by section three of the Four- teenth Amendment to the Constitution of the United States heretofore incurred.”21 And indeed, in a recent case (brought by then-Representative Madison Cawthorn) a federal judge relied on these statutes to conclude that Section Three was now legally dead.22 Is that right? Do these statutes—can these statutes—grant amnesty to all insurrectionists, past, present and future?23

No. While the argument is not entirely bonkers, it does not withstand more serious scrutiny. It is wrong on both statutory and constitutional grounds. Consider the statutes first. Neither one purports to rescind Section Three’s operative rule forall time. They do not pretend to explode the first sentence of the constitutional provi- sion.

Begin with the 1872 act. In 1872, after a period of case-by-case consideration of amnesty requests, Congress, as mentioned above, enacted a general statute remov- ing disqualification from a broad description of persons embraced by Section Three’s prohibition. As Professor Magliocca recounts, the statute reflected a mixture of mo- tives: genuine mercy and magnanimity; the practical consequences of Section Three in the South; the burdens and biases of case-by-case consideration of private bills; the politics of a presidential election year; and the general but regrettable retreat from aggressive Congressional Reconstruction.24 But what is most important is what it says. The statute reads, in full:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-

20 21

22 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 889-892 (E.D. N.C. 2022) rev’d sub nom Carthorn v. Amalfi, 35 F. 4th 245 (4th Cir. 2022). This argument, too, was made and rejected by the House during the exclusion of Victor Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representa- tives 55 (1935).

23 The power in general of Congress by two-thirds vote of each House to remove Section Three’s disa- bility and the history of its exercise are the central themes of Professor Gerard Magliocca’s excellent article, cited supra note 5.
24 See generally Magliocca, Amnesty, supra note 5, at 112-120.

12

Act of May 22, 1872, ch. 193, 17 Stat. 142.

Act of June 6, 1898, ch. 389, 30 Stat. 432.

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seventh Congresses, officers in the judicial, military, and naval ser- vice of the United States, heads of departments, and foreign ministers of the United States.25

The key words are “imposed” and “[hereby] removed.” The words of the 1872 statute are used in the past tense: the statute removed disqualifications imposed by the Fourteenth Amendment—that is, disabilities that had already become legally ef- fective. That is simply the natural reading, and the natural implication, of the lan- guage employed.

Indeed, this is almost exactly what the Fourth Circuit recently said in revers- ing the district court’s decision in the Cawthorn case: Congress in 1872 employed “the past-tense version” of the verb “impose,” thus “indicating its intent to lift only those disabilities that had by then been ‘imposed.’”26 Moreover, the Fourth Circuit contin- ued: “[t]he operative clause’s principal verb—‘removed’—reinforces this conclusion. In the mid-nineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come.”27

By contrast, the district court had faulted Congress for not being more explicit: Congress “could have limited the Act to remove Section 3’s disabilities from ‘persons currently subject to the disabilities’ or ‘persons against whom the disabilities were lodged’ at the time (i.e., the ‘Confederates’) but did not do so.”28 Therefore, the district court concluded, by the “plain language of Section 3 and the 1872 Act, Congress re- moved all of Section 3’s disabilities from all persons whomsoever who were not ex- plicitly excepted.”29 With all due respect, the district court appears to have been simply hoodwinked by the (for lack of a better word) feel of the “all persons whomso- ever” language and completely missed the other language that made clear the stat- ute’s past tense.

What about the 1898 statute? Does it yield a different result? On the cusp of the Spanish-American War, at a moment of seeming national unity and perhaps a desire to put aside old sectional grievances (and, one might add more cynically, at a time of rising Jim Crow sentiment)30—Congress enacted another general disqualifi- cation-removal statute. This one removed the disqualification for everybody, without exception. Its language is even more laconic:

25 Act of May 22, 1872, ch. 193, 17 Stat. 142.
26 Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022).
27 Id.
28 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 891 (E.D. N.C. 2022) rev’d sub nom Carthorn v. Amalfi, 35 F. 4th 245 (4th Cir. 2022).
29 Id.
30 See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896); Cummings v. Richmond County Bd. of Ed. 175 U.S. 528 (1899). See also Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 195-201 (2015).

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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the disability imposed by section three of the Fourteenth Amendment to the Con- stitution of the United States heretofore incurred is hereby re- moved.31

In one sense, that’s about as categorical, across-the-board a disqualification- removal as one can imagine: the disability imposed by section three is hereby removed. Period. No exceptions. But here it is also even clearer that the 1898 act is backward- looking. Like the 1872 act, the 1898 act uses past-tense language: a disability (al- ready) “imposed” is now being “removed” from its prior legal existence. What’s more, the 1898 says that the Section Three disqualification being removed was one “hereto- fore incurred.” That is unmistakably backward-looking, past-occurrence language.

What might otherwise—that is, but for the clarity of the “heretofore incurred” language—give the 1898 act the feel of a now-and-ever-shalt-be removal, eliminating all future Section Three disqualification as well as any and all extant ones, is the Act’s reference to “the disability” imposed by Section Three. This singular reference might be taken to suggest that Section Three’s disqualification was thought a one- time-only, single-shot, Civil War era occurrence.32 If Section Three was good for one rebellion only, then repealing it in the past tense repeals all that there is. But of course, as we have argued, Section Three is not limited to one rebellion only, and so far as we can tell even the Fifty-fifth Congress did not think that it was33 (nor would it matter if they did).

In any event, though these statutes do not even purport to sunset Section Three for the future, they do prompt us to consider the interesting question of Con- gress’s constitutional power: What if they did purport to sunset Section Three for the future? Is Congress’s constitutional power to remove Section Three’s disqualification general and prospective, letting it remove Section Three’s disqualification once and for all, including for future situations? We think not.

To be clear, we don’t think there’s anything inherently unthinkable or absurd about the idea of an “exploding” or otherwise defeasible constitutional provision. Le- gal drafters might sometimes want to provide for an expiration event or expiration

31 Act of June 6, 1898, ch. 389, 30 Stat. 432.
32 For instance, the D.C. Circuit’s recess-appointments opinion in Noel Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013) aff’d only on alternate grounds, 134 S.Ct. 2550 (2014), leaned heavily on “this difference between the word choice ‘recess’ and ‘the Recess’,” arguing that “[a]s a matter of cold, una- dorned logic, it makes no sense to [say] that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the end it makes all the difference.” Id. But a majority of the Supreme Court did not share this view of the text. NLRB v. Noel Canning, 134 S.Ct. 2550, 2561 (2014).
33 For the brief legislative history of the 1898 act, see 31 Cong. Rec. 5367-5419 (1898).

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date, even in an enduring Constitution. Article I’s Slave Importation Clause, protect- ing the international slave trade, exploded after twenty years.34 So too the initial al- location of representatives to states is written in to the text of the Constitution, even though it was then exploded by the subsequent census.35 Other provisions of the Con- stitution set baseline rules that Congress has power to modify. Article I, section 4 does that with respect to state legislative power over congressional elections: “Con- gress may at any time by Law make or alter such Regulations.”36 Article III, section 2 does that with respect to the Supreme Court’s appellate jurisdiction, setting a de- fault rule subject to “such Exceptions, and under such Regulations as the Congress shall make.”37 The Twentieth Amendment, in Section 2, sets a default date of Con- gress’s annual meeting.38

There’s no reason why the framers of the Fourteenth Amendment could not have similarly drafted Section Three to provide for the provision’s own extinction af- ter a supermajority vote of Congress.39 But that is simply not what Section Three says. The second sentence of Section Three is not a grant of power to explode, or amend, the content of the rule stated in the first sentence. It is a grant of power to remove the consequences of the rule’s operation.

34 U.S. Const. art. I, §9, cl. 1. (“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceed- ing ten dollars for each Person.”) For a scathing critique of the substance and purpose of this proviso, see, e.g., Paulsen & Paulsen, supra note 30, at 81-83.

35 U.S. Const. art. I, § 2, cl.3.
36 U.S. Const. art. I, § 4.
37 U.S. Const. art. III, § 2, cl. 2.
38 U.S. Const. amend. XX, §2.
39 We thus part ways with Professor Magliocca here. Magliocca argues (in addition to versions of the points we make above) that Section Three’s second sentence cannot be read as authorizing Congress to remove future disabilities because this “would mean that Congress basically repealed Section Three of the Fourteenth Amendment in 1872. But Congress cannot repeal a part of the Constitution by itself: only a constitutional amendment can do that.” Gerard N. Magliocca, The January 6th Insurrectionists Do Not Have Amnesty, JURIST – Academic Commentary, April 13, 2022, https://www.jurist.org/commentary/2022/04/gerard-magliocca-january-6-insurrectionists/. See also Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1314 (N.D. Ga. 2022) (“’Congress has no power what- ever to repeal a provision of the Constitution by a mere statute.’”) (quoting 6 Clarence Cannon, Can- non's Precedents of the House of Representatives 55 (1935), available at https://www.govinfo.gov/con- tent/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-HPREC-CANNONS-V6.pdf#page=75)

This strikes us as not quite right: If Section Three in fact authorized prospective removal of disqualifications arising from future acts of insurrection, a statute doing so would not be repealing a constitutional provision but exercising a power conferred by that constitutional provision—a power toterminate the provision’s ongoing legal effect.

15

To see this, break down Section Three into its component parts: Section Three has two sentences. The first one describes at length the disqualification for those who have taken a covered oath and engaged in insurrection or related conduct. Of course,

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those two things must actually have happened for the rule of Section Three’s first sentence to be triggered—for a disqualification to have come into legal effect. The second sentence (the “But” sentence) then gives Congress the power to “re- move such disability.” (“But Congress may by a vote of two-thirds of each House, re- move such disability.”) The “But” sentence explicitly cross-references the first. Thus, the most natural reading of the two sentences in relation to each other is that the second sentence confers an exceptions power that only comes into existence when the conditions specified in the first sentence have occurred. And to belabor the point a moment further, the word “Remove” means (and meant at the time, according to 1864 dictionaries) to displace or take away something that already exists.40 This confirms that Congress’s removal power therefore only comes into being when a legal disqual-

ification has vested by virtue of the operation of Section Three’s first sentence. Section Three’s first sentence is written as a general and prospective rule, not limited to the specific instance of the Civil War. Section Three’s second sentence is written as a continuing power to grant relief from disabilities already imposed by the operation of the first sentence. The power to remove an extant legal disability is not a power to rescind the legal rule that creates that disability. Thus, not only has Con- gress never purported to sunset Section Three, it lacks the power to do so by Section Three’s own terms.

***

All of this is, we submit, basic. But it is also foundational. Section Three re- mains legally operative as part of the U.S. Constitution. Its rule of disqualification is general, not limited to the Civil War era. It states a rule of law embodied in the writ- ten constitutional text as permanent fundamental law. It possesses prospective force and applies to new situations: wherever the rule applies, the rule applies. And while Congress comprehensively relieved insurrectionists of the disability of disqualifica- tions incurred prior to 1898, it did not (and could not) erase Section Three from the Constitution. Section Three remains in force.

Is anything more required, then, before this provision of the Constitution can (and must) be given effect by U.S. political actors whose powers and duties are such as to call for application of Section Three as a rule of law? Put somewhat differently: Is Section Three a self-executing rule of constitutional law, complete in itself? Or does Section Three require implementing legislation by Congress or some other further legal or administrative action before it has legal force? We take up that question next.

40 Dr. Webster’s Complete Dictionary of the English Language 1116 (Chauncy A. Goodrich and Noah Porter, eds. 1864) (defining “remove” as “To cause to change place; to move away from the position occupied; to displace”) (quoted in Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022)).

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II. Section Three is Legally Self-Executing

Our second point is colossally important—a major sticking point for some. But it is a point we think should be obvious: Section Three is self-executing. That is, its disqualifications from office are constitutionally automatic whenever its conditions for disqualification are met. Nothing more needs to be done in order for Section Three’s prohibitions to be legally effective. Section Three requires no implementing legislation by Congress. Its commands are enacted into law by the enactment of the Fourteenth Amendment. Where Section Three’s legal rule of constitutional disquali- fication is satisfied, an affected prospective officeholder is disqualified. Automati- cally. Legally.

In the years immediately after the Fourteenth Amendment was adopted this seemingly obvious reading of Section Three was deemed inconvenient, rejected in the highest quarters, and has since faded from view. We thus give the point considerable attention here. Our analysis here is organized in three steps. First, we take Section Three itself, and explain why it has direct legal effect. Second, we discuss how this legal effect can and must be recognized by all persons and institutions who have the occasion to apply it in the performance of their duties—election officials, state and federal administrators, legislatures, courts. Third, we consider at some length the leading counterargument to our view: the 1869 opinion written by Chief Justice Salmon P. Chase as a circuit court judge in Griffin’s Case. Even if the result in that case is defensible—which is far from clear, and raises grave separation of powers problems of its own—its argument against self-execution is so wrong as to prove our case. Section Three is legally self-executing as operative constitutional law.

A. Section Three as Automatic Legal Disqualification

Before we consider Section Three itself, consider the Constitution as a whole. Though too many constitutional law teachers and casebooks begin their study of the Constitution with questions of judicial review, and cases like Marbury,41 in doing so they put the cart before the horse. The horse is the Constitution, which is itself the “supreme law of the land.”42 Our system is one of constitutional supremacy, not judi- cial supremacy or legislative supremacy. As a general matter, this means that it is the Constitution which states the law, and it is the job of government officials to apply it, not the other way around.

This general truth is no less true of Section Three. Section Three’s language is language of automatic legal effect: “No person shall be” directly enacts the officehold- ing bar it describes where its rule is satisfied. It lays down a rule by saying what shall

41 But not ours! See Paulsen, McConnell, Bray and Baude, The Constitution of the United States (5th ed. 2022).
42 U.S. Const. art. VI.

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be.43 It does not grant a power to Congress (or any other body) to enact or effectuate a rule of disqualification. It enacts the rule itself. Section Three directly adopts a constitutional rule of disqualification from office.

This should be no surprise, as the same thing is true of the Constitution’s other rules of disqualification from office. A person who has not attained to the age of thirty- five is not qualified to be President of the United States. This disqualification is au- tomatic. The Constitution’s rule is self-executing. “No person . . . shall be eligible” to be President who does not satisfy the age requirement.44 The disqualification requires no further legislation or other action, by anybody, to be operative. The disqualification simply is. So too for Article II’s citizenship and length-of-residency eligibility prereq- uisites for the office of President. And so too for the constitutional qualifications— age, citizenship, state inhabitancy—for members of the House and Senate: “No Per- son shall be” a Representative who does not meet Article I, section 2’s requirements.45 “No Person shall be” a U.S. Senator who does not meet Article I, section 3’s require-ments.46 These restrictions on eligibility are legally binding simply by virtue of their presence in the Constitution.

The language of Section Three of the Fourteenth Amendment parallels, even duplicates, the language used in these other provisions to express other constitutional disqualifications from officeholding.47 None of these disqualifications requires any further legal action or legislation to be operative. Where a constitutional legal dis- qualification exists, it simply exists. It is a binding rule of constitutional law.

Again, this kind of binding rule should be no surprise. The Thirteenth Amend- ment’s ban on slavery, enacted a few years earlier, works the same way. Immediately upon adoption of the amendment, slavery was legally extinguished as a matter of constitutional law. “Neither slavery not involuntary servitude . . . shall exist ...,” the Thirteenth Amendment provides.48 The institution of slavery was immediately, le- gally, constitutionally gone.49 The Thirteenth Amendment contains a separate section granting Congress the power to enforce the prohibition of slavery.50 But that enforce- ment power scarcely means that the ban on slavery contained in Section One was inoperative unless and until Congress passed legislation making it operative. Such a

43 We have borrowed this felicitous phrasing from John Harrison. Cf. John Harrison, The Power of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 84 U. Chi. L. Rev. 203, 211 (1997) (“The Vesting Clause is a self-executing enactment; it lays down rules by saying what shall be.”)

44 U.S. Const. art. II, §2, cl. 5 (emphasis added).
45 U.S. Const. art. I, §2, cl. 2(emphasis added).
46 U.S. Const. art. I, §3, cl. 3 (emphasis added).
47 See Josh Chafetz, Democracy’s Privileged Few 168 (2007). 48 U.S. Const. amend. XIII §1 (emphasis added).

49 See Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 48–53 (2004) (documenting reactions of persons learning of their freedom immediately after ratification).
50 U.S. Const. amend. XIII §2 (“Congress shall have power to enforce this article by appropriate legis- lation.”).

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position would be ridiculous. The power to enforce adds to the substantive prohibi- tion—it is not a subtraction from or suspension of it.

And of course, the same is true elsewhere in the Fourteenth Amendment too. We take it as obvious that Section One is self-executing. Section One of the Four- teenth Amendment, like Section Three states directly operative rules of constitu-tional law: “No state shall,” in Section One, and “No person shall” in Section Three.51 Both of these provisions are subject to additional enforcement legislation by Congress under Section Five. Yet it is common ground that Section One is self-executing. No- body thinks (for example) that the prohibitions of Section One are inoperative unless and until Congress enacts legislation pursuant to its Section Five legislative power to bring them to life.

In each instance, Congress certainly can enact legislation “to enforce” the Thir- teenth and Fourteenth Amendments’ commands, pursuant to their grants of legisla- tive power.52 Doing so can unlock additional procedural mechanisms, additional def- erence by courts to Congress’s view of the law, and so on. The Civil Rights Act of 1866, the Ku Klux Klan Act of 1871 and more were designed to enforce Section One of the Thirteenth and Section One of the Fourteenth Amendment. But, to repeat, the exist- ence of an enforcement power does not mean that the Amendment’s specific legal commands lack any independent, self-executing force.53

So too, Congress in fact enacted implementing legislation in 1870 to enforce Section Three, authorizing quo warranto civil suits brought by the United States to remove state officials unconstitutionally holding office in violation of Section Three and imposing criminal penalties for knowing violations of Section Three.54 But Con- gress’s choice to trigger additional procedural mechanisms and federal jurisdiction

51 U.S. Const. amdt XIV, sec. 1, 3. Nothing here turns on it, but Section Four of the Fourteenth Amend- ment, which repudiates rebel and slave debts while guaranteeing the legal obligation of the national debt, also seems to be self-executing. Section Two, which alters Article I, section 2’s rule for how Rep- resentatives “shall be apportioned,” presents a more complicated case. Its rule is immediately opera- tive, like the rest of the Fourteenth Amendment, but its rule operates by changing an apportionment process undertaken by Congress. In practice, Congress has ignored it, see Michael Rosin, The Five- Fifths Rule and the Unconstitutional Presidential Election of 1916, 46 Hist. Meth. 57 (2013); Amar, America’s Constitution, supra note 4, at 395; see also email from John Harrison to Akhil Reed Amar, quoted in id. at 611 n. 96, and it is hard to see how anybody else can realistically enforce it.

52 U.S. Const. amdt. XIII, sec. 2; amdt. XIV, sec. 5.
53 Indeed, Section One was added to an early draft of the Fourteenth Amendment precisely to ensure that state Black Codes would be unenforceable even if there were no federal legislation saying so. Baude, Campbell, & Sachs, supra note 10, at 30-31, 63-64.
54 Act of May 31, 1870 (First Ku Klux Klan Act), ch. 114 §§14, 15, 16 Stat. 140, 143. These provisions were largely repealed during the 1948 positive law codifications of Titles 18 and 28 of the U.S. Code. See Act of June 25, 1948, ch. 646, § 39, 62 Stat. 869, 993; see also Act of June 25, 1948, 62 Stat. 683; Lynch, supra note 5, at 206 n. 365. These codifications were not supposed to make substantive changes to the law, see generally William W. Barron, The Judicial Code, 8 F.R.D. 439 (1949), and so our best guess is that the revisers (mistakenly) believed the provisions to be obsolete. In any event, the 1948

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for Section Three cases does not mean that there was no constitutional prohibition before Congress acted.55 Congress enforced Section Three’s prohibition. Congress was not the one to give it legal effect. Section Three was effective law all along.

Section Three is also noticeably different from other constitutional provisions that deal with misbehavior—provisions that are not self-executing in the same way. Article III, for instance, describes the offense of treason:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.56

Note the contrast. The Treason Clause defines an offense (“Treason . . . shall consist”) but it does not itself convict anybody of treason. Section Three, by contrast, enacts its own disqualification (“No person shall be”). It acts on persons, not offenses. This is driven home by the Treason Clause’s specific procedures and powers: “[C]onvict[ions] of treason” require two witnesses or a public confession; and “Con- gress shall have power to declare the punishment of treason.” Section Three of the Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled in to one.

Similarly, the Constitution’s impeachment provisions say that those who are impeached “shall be removed from Office.”57 But the Constitution does not itself im- peach anybody. Instead, it specifies that somebody else—the House and Senate—must do the impeaching.58 Again, Section Three’s contrast is glaring. The framers of Section Three had the treason clause and impeachment clauses at hand and chose a

codification bills were obviously not intended to preclude any other existing remedies for Section Three.
55 Professor Magliocca concurs. Magliocca, Amnesty, supra note 5, at 106 & n.101 (noting that “enacting enforcement legislation does not imply that legislation is required” and that the existence of Section Five of the Fourteenth Amendment does not imply that the other sections are not self-executing). In- deed, this is especially so because Congress may have been responding to the decision in Griffin’s Case (wrongly) holding that such legislation was required for Section Three to have operative legal effect. See infra Part II.C.

56 U. S. Const. art. III, sec. 3.
57 U.S. Const. art. II, sec. 4.
58 U.S. Const. art I, sec. 3 & sec. 4.

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noticeably different path.59 Section Three does not call for treason trials or the im- peachment of secessionists. It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.

Section Three’s constitutional disqualification, where applicable, just is. It stands on its own as a constitutional rule of law, having come into legal force “as Part of this Constitution,” along with the rest of the Fourteenth Amendment, “when rati- fied” as a constitutional amendment.60 It immediately became “supreme Law of the Land.” 61 Its rule took immediate effect. Section Three is, in that sense, legally self- executing.

Is there any serious textual argument to the contrary? We will address Chief Justice Chase’s conclusion in Griffin’s Case in a moment. But we suspect that re- sistance to this point often comes instead from some misdirected intuitions. One isthe problem of supposed difficulty. It seems easy, perhaps, to apply the constitutional qualifications of age and citizenship.62 It is pretty obvious what these are and obvious what they demand that we do. But who exactly is disqualified by Section Three is, at least to initial appearances, a more difficult, complicated, and fact-specific question. It is a more difficult question of law because we must plumb the meanings of “insur- rection” and “rebellion” and so on—and these meanings are not quite as self-evident as “thirty-five years of age” (at least until this article is widely read and accepted).And it is more difficult in practice, because even once we know what the terms of Section Three mean, we must know what exactly every prior-oath-sworn official did.

59 Indeed, for what it is worth, the legislative history supports this understanding. Section Three’s opponents criticized the proposal for its immediate consequences on former Confederates, and its pro- ponents seemed to share the same understanding. For opponents, see Cong. Globe 39th Cong., 1stSess., at 2900 (Senator Doolittle) (amendment “will have the effect of putting a new punishment, not prescribed by the laws, upon all those persons who are embraced within its provisions”); id. at 2916 (Senator Doolittle); id. at 2940 (Senator Hendricks) (complaining about immediate consequences); for proponents, see id. at 2919 (Senator Willey) (defending the amendment’s immediate effect because those affected had already “forfeited” their claim to participate in government “by their past conduct’); id. (they lost their "citizenship rights when they committed treason"); Cong. Globe 39th Cong., 1st Sess., App., at 228 (Senator Defrees); Cong. Globe, 39th Cong., 1st Sess. at 3036 (Senator Henderson) (defending the immediate effect of Section Three against the charge that it is a bill of attainder or ex post facto law); see generally infra Part III.A-B. See also Graber, supra note 12, at 26-27, 35-37 (docu- menting all of these discussions) .

60 U.S. Const. art. V.
61 U.S. Const. art. VI, cl. 2.
62 See Gerard N. Magliocca, Background as Foreground: Section Three of the Fourteenth Amendment and January 6th, at 14 n.42 (Mar. 2, 2023), https://papers.ssrn.com/sol3/papers.cfm?ab- stract_id=4306094 (“Section Three was unprecedented in the sense that prior restrictions on serving in office were bright-line rules (age and citizenship, for example) instead of standards”). On the other hand, the Constitution’s inhabitancy requirement, has proved far from simple in practice. See Jack Maskell, Congressional Research Service, Qualifications of Members of Congress (Jan 15, 2015) at 13- 18, https://sgp.fas.org/crs/misc/R41946.pdf. And there has been recent litigation about the requirement that the President be a “natural born citizen” as well. See Derek T. Muller, “Natural Born” Disputes in the 2016 Election, 85 Fordham L. Rev. 1097 (2016).

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Not all participation in insurrection or rebellion is open and notorious. More difficult it may be, to interpret and apply the disqualification of Section Three than the dis- qualifications of age, citizenship, and residency. But the fact of difficulty is a non sequitur. The fact that it might be hard for us to know today what a legal rule means (or how it applies) does not mean that it is not the legal rule.63 The Constitution says what it says and we must try to apply it as best we can. To start by asking what is easy for us, and then to assume that the Constitution must mean something that makes our lives easy, is as fallacious as drawing the curve before gathering the data points.64

Resistance might also come from the problem of enforcement. The Constitution is generally self-executing law, but still, somebody has to enforce it. Somebody has to read it, understand it, and ensure that our practices conform to its commands. (Many somebodies, actually, as we discuss shortly.) This is true, but again it is a non-sequi- tur. It is true that government officials must enforce the Constitution, and who does this and how they do it are important questions, maybe the central questions of con- stitutional law. But the meaning of the Constitution comes first. Officials must en- force the Constitution because it is law; it is wrong to think that it only becomes law if they decide to enforce it. Section Three has legal force already.

B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?

As we just said, even though Section Three is a self-executing, immediately applicable constitutional legal rule, someone needs to do the actual applying of that rule to particular situations where its application is called for. Section Three’s consti- tutional disqualification exists of its own force as an abstract matter. But someone needs to bring that legal rule to bear in a concrete situation as a practical matter.

Who has the power and duty to do this? We think the answer is: anybody who possesses legal authority (under relevant state or federal law) to decide whether somebody is eligible for office. This might mean different political or judicial actors, depending on the office involved, and depending on the relevant state or federal law. But in principle: Section Three’s disqualification rule may and must be followed— applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure out whether someone is legally qualified to office, just as with any of the Constitu- tion’s other qualifications.

63 Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J. L. Ethics & Pub Pol’y 497, 511-512 (2018).

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64 Cf. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839 (1993) (mocking constitutional interpretation that engages in “the legal equivalent of the method my lab partner and I used in high school chemistry: first draw the desired curve; then plot the data; if time permits, do the experiment”); Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).

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These actors might include (for example): state election officials; other state executive or administrative officials; state legislatures and governors; the two houses of Congress; the President and subordinate executive branch officers; state and fed- eral judges deciding cases where such legal rules apply; even electors for the offices of president and vice president. We will discuss in detail some of these examples pres- ently. But two points are important to keep clear at the outset: First, all of these bodies or entities may possess, within their sphere, the power and duty to apply Sec- tion Three as governing law. Second, their authority to do so exists as a function of the powers they otherwise possess. No action is necessary to “activate” Section Three as a prerequisite to its application as law by bodies or persons whose responsibilities call for its application. The Constitution’s qualification and disqualification rules ex- ist and possess legal force in their own right, which is what makes them applicable and enforceable by a variety of officials in a variety of contexts.

Consider some illustrations: 1. Seeking Office

a. by election

Anybody who seeks office will at some point need to show that they are entitled to hold that office. At every point that this occurs, Section Three governs. So, for in- stance, state or local election boards, and state Secretaries of State, may possess state- law authority to make at least initial determinations as to eligibility of candidates for elected office in that state or representing that state in Congress (as authorized by Article I, section 4 of the Constitution)—and, thus, whether or not such candidates shall be placed on a primary or general election ballot.65 Those state bodies or officers are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution— to act consistently with the requirements of the Constitution in the discharge of their duties.66 Accordingly, such state actors can and must apply Section Three’s disquali-

65 To be sure, the centralized, government-administered ballot did not come to American until the late Nineteenth Century and so of course states are not constitutionally required to run elections in this way. But if they do, Section Three governs how they carry out their duties.
66 U.S. Const. art. VI, cl.2 (“This Constitution ... shall be the supreme Law of the Land”). See also U.S. Const. art. VI, cl.3 (“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”). The nature of the Constitution as supreme, binding law is of course fundamental to the argument for “judicial re- view,” as it is likewise fundamental to the argument for the obligation of all government officials to adhere to the law supplied by the Constitution and give its commands priority over any other source of law or legal duty. See generally Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003); see also William Baude, Severability First Principles, 109 Va. L. Rev. 1, 5- 9 (2023).

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fication in carrying out their state-law responsibilities—just as they possess the au- thority and duty to comply with and enforce the Constitution’s other qualification- for-office requirements.67

For an example of how this process is supposed to work, consider how the state of Georgia entertained a Section Three challenge to the qualifications of Representa- tive Marjorie Taylor Greene under Georgia law. A state administrative law judge took evidence about Representative Greene’s involvement in the events of January 6, 2021.68 The judge proceeded under the theory that if January 6 was a constitutional “insurrection,” and if Representative Greene had been part of it, she would be barred from office.69 But it concluded that the challengers had failed to meet their burden of proof under state law: “In short, even assuming, arguendo, that the Invasion was an insurrection, Challengers presented no persuasive evidence Rep. Greene took any ac- tion—direct physical efforts, contribution of personal services or capital, issuance of directives or marching orders, transmissions of intelligence, or even statements of encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of State Brad Raffensberger issued a final decision ratifying the hearing officer’s pro- posed findings that day.71

Such determinations about ballot eligibility may also be subject to further ju- dicial review. In state courts, these procedures will of course depend on what review is available under state law. Similarly, federal courts might well possess jurisdiction, subject to the usual federal jurisdiction doctrines (such as standing, ripeness, moot- ness, and abstention), to decide cases of candidate eligibility. Continuing the example, Representative Greene did file a federal lawsuit attempting to enjoin the then-pend- ing state proceedings (mentioned above), and the district court concluded that the case was justiciable and that Younger abstention did not apply, but that Greene’s claims failed on the merits.72 While Greene’s appeal to the Eleventh Circuit was pend- ing, she prevailed in the state proceedings, so the case was dismissed as moot.73 The

67 We note that the determination by state officials that a candidate for election to the U.S. Congress is not disqualified—and may be elected—does not bind the respective houses of Congress, in the exer- cise of their independent Article I, section 5, powers to act as “Judge” of the “Elections, Returns, and Qualifications of its own Members” and refuse to seat prospective members it judges to be constitu- tionally disqualified by Section Three or other constitutional limitation. See also infra n. 96 and ac- companying text.

68 Initial Decision, Rowan v. Greene, No. 2222-582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office of State Administrative Hearings, May 6, 2022).
69 Id. at 5-6.
70 Id. at 15. The January 3, 2021 cut-off is because that is the date that Representative Greene first took a constitutional oath. The Court also specifically rejected the argument that a Newsmax appear- ance on January 5, 2021, should be interpreted as a “coded message from Rep. Greene to her co-con- spirators to go forward with a previously planned incursion into the Capitol.” Id. at 16.

71 Final Decision, Rowan v. Greene, No. 2222-582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office of the Secretary of State, May 6, 2022).
72 Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1320 (N.D. Ga. 2022).
73 Greene v. Sec'y of State for Georgia, 52 F.4th 907, 909-910 (11th Cir. 2022).

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details, of course, will vary from case to case. But where any of these tribunals has jurisdiction they too obviously have the power and duty to apply Section Three as the supreme law of the land.

This is not to say that states must provide any particular procedure for bring- ing a challenge to ballot eligibility qualification or grant a cause of action to particular private individuals to bring such challenges. For instance, in a recent suit seeking to disqualify Arizona Representative Mark Finchem and U.S. Representatives Paul Go- sar and Andy Biggs from the 2022 primary ballot, the Arizona Supreme Court con- cluded that state law did not provide a private cause of action for a disqualification challenge.74 In principle, that could well be right. Whether to provide a cause of action in such cases is largely a question of state law. Section Three slots in to existing pow- ers and procedures without mandating or micromanaging them.

That said, the Arizona Supreme Court’s muddied reasoning in the Finchem- Gosar-Biggs case necessitates a few clarifying points. First, state law can enforce Sec- tion Three, and the Fourteenth Amendment does not place any particular presump- tion against doing so. Unfortunately, the Arizona Supreme Court suggested other- wise, writing that “Section 5 of the Fourteenth Amendment appears to expressly del- egate to Congress the authority to devise the method to enforce the Disqualification Clause . . . which suggests that A.R.S. 16-351(B) does not provide a private right of action to invoke the Disqualification Clause against the Candidates.”75 This inference is mistaken—Congress’s power to enforce federal law, including constitutional law, is not exclusive of the states, and states regularly enforce federal law including con- stitutional law in their own courts.76

Second, in some circumstances state law not only can but must enforce Section Three. Under the rule of Testa v. Katt,77 where a state does open its courts to a cause of action, it must apply federal law evenhandedly to that cause of action. As the unan- imous Court put it: “[T]he Constitution and the laws passed pursuant to it are the supreme laws of the land, binding alike upon states, courts, and the people, ‘any-thing

74 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157 (Ariz. Supreme Ct. May 9, 2022) (nonprecedential disposition).
75 Id. at *1. The court did not cite any authority for this interpretation, but its argument does echo a fallacious argument made by Chief Justice Chase in Griffin’s Case, which we discuss at greater length presently. See infra Part II.C.2.d. The Arizona Supreme Court also made the additional suggestion that Article I, Section 5 gave Congress “exclusive authority to determine whether to enforce the Dis- qualification Clause against its prospective members,” id. We are skeptical of this point as well, see infra n. 96 and accompanying text, but in any event it would have only applied to federal representa- tives Gosar and Biggs, not the lead defendant, state representative Finchem. The individual houses of Congress of course have no Article I, Section 5 power, exclusive or otherwise, to determine the mem- bership of state legislatures.

76 See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-460 (1990); id. at 469- 470 (Scalia, J., concurring); see also Thomas Koenig & Christopher D. Moore, Of State Remedies and Federal Rights (May 29, 2023) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4462807.
77 330 U.S. 386 (1947).

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in the Constitution or Laws of any State to the contrary notwithstanding.”78 And thus “the policy of the federal Act is the prevailing policy in every state.”79 A state cannot treat federal obligations the way it can treat foreign ones.

The Arizona Supreme Court’s decision unfortunately can be read to suggest otherwise. The court cryptically wrote that the state “statute’s scope is limited to challenges based upon ‘qualifications . . . as prescribed by law,’ and does not includethe Disqualification Clause, a legal proscription from holding office.”80 If the court meant to distinguish federal constitutional qualifications from state statutes, it seems to have violated Testa. If the court meant that Section Three’s dis-qualification is not a “qualification,” that seems nonsensical. And if it meant something else, it is hard to figure out what.

In any event, the real question is what procedure is available for determining whether a candidate is qualified to office. That is basically a question of state law, and the correct procedures will likely vary from state to state. But the courts owe state law a full and fair reading, not one slanted by reticence to acknowledge the life in Section Three.

b. by appointment

Now let us turn to appointments. Just as with elected office, anybody who must decide whether an appointee is qualified must comply with Section Three. Tradition- ally this includes at a minimum whoever nominated the officer.81 Thus governors, presidents, and other nominating authorities can and should—indeed, constitution- ally must—decline to nominate and appoint to state or federal offices persons who are constitutionally disqualified by Section Three. And likewise, where nominating au- thority is subject to additional confirmation—by a state senate, the U.S. Senate, or any other body—that body presumably can and should, constitutionally must, decline to consent to the appointment of such constitutionally disqualified nominees.82

78 Id. at 391 (quoting U.S. Const. Art VI, sec. 2).
79 Id. at 393. To be sure, Testa and especially subsequent cases expanding it have been subject to powerful criticisms as a matter of original meaning, see Ann Woolhandler & Michael G. Collins, State Jurisdictional Independence and Federal Supremacy, 72 Fla. L. Rev. 73, 78-83, 97-105 (2020); Hay- wood v. Drown, 556 U.S. 729, 742-67 (2009) (Thomas, J., dissenting). We bracket those criticisms here. 80 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. Supreme Ct. May 9, 2022) (nonprecedential disposition).
81 For instance, both President George Washington and President Franklin Roosevelt felt obligated to consider whether their Supreme Court nominees (Patterson and Black, respectively) were constitu- tionally disqualified by Article I, sec. 6. See William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 330, 333-334, 355-356 (2019).
82 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 914-918 (1994) (discussing constitutional responsibility of political branches to enforce constitutional disqual- ifications from office irrespective of whether they give rise to a judicial case or controversy, and be- moaning the failure of all to enforce the Emoluments Clause); see also Baude, Black, supra note 81, at 355-356 (similar); see also Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105

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In other words, the election and appointment systems, from top to bottom, fre- quently make decisions about a candidate’s eligibility for office. All of those decisions are legally bound by Section Three of the Fourteenth Amendment; and all persons making such decisions are correspondingly bound to faithfully interpret, enforce, and apply Section Three.

2. Holding Office

What about those who already hold office—either because Section Three was not attended to before they gained office, or because their disqualifying conduct hap- pened later?83

Once again, the answer turns in part on what procedures are available under other law. State officials can be subject to a variety of remedies for unlawfully holding office. They might (or might not) be subject to removal, as a matter of state law, by a private suit quo warranto, by the authority of another executive or judicial officer or administrative board, or perhaps even by the state legislature exercising powers of impeachment or recall. In addition, it is possible that the salaries of such rightfully- disqualified officials—and the legal eligibility of such persons for those salaries— might be subject to the authority and determination of some other state official.

We submit that all such officials—administrators, executives, legislatures— possessing legal authority concerning such matters likewise possess the authority (and duty) to interpret, apply, and enforce Section Three’s disqualification in thecourse of exercising that legal authority. And once again: if such determinations are judicially reviewable under state law, the courts likewise possess the authority and duty to interpret, apply, and enforce Section Three.84

For an example of how this process is supposed to work consider how the state of New Mexico removed commissioner Couy Griffin from state office.85 Griffin was an elected commissioner for Otero County, New Mexico, who promoted, assisted, and

Yale L.J. 549, 562-570 (1995) (noting parallel constitutional structural argument for obligation of both the President and the Senate to exercise independent faithful constitutional interpretive judgment in the course of carrying out their respective powers with respect to appointment); Charles L. Black, Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, 658-660 (1970) (similar).

83 Or because Section Three was not yet adopted as law when they were appointed to office but became operative and disqualified them subsequently. This was the situation presented in Griffin’s Case, dis- cussed presently. See infra at II.C.
84 Of course, federal courts, too, might possess jurisdiction, subject to the usual rules and conditions, to decide such lawsuits just as they will for state determinations of election candidate eligibility. See supra notes 72-73 and accompanying text. And when doing so, they have the authority and duty to interpret, apply, and enforce Section Three.

85 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473 (1st. Dist. Santa Fe County, Sep. 6, 2022).

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ultimately joined in the January 6 insurrection against the Capitol. A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered po- sition.86

As a matter of state procedure, the court concluded that the New Mexico quo warranto statute was a remedy for ejecting unlawful office holders.87 It also concluded that quo warranto could be sought by any citizen of New Mexico, without any further showing of injury, because the New Mexico courts are not bound by the same “stand- ing” limitations as the federal courts are. As a matter of federal law, the court had no trouble concluding that the events of January 6. 2021 were a constitutional “insur- rection.” And it had no trouble concluding that Griffin had engaged in that insurrec- tion, both by “voluntarily aid[ing] the insurrectionists’ cause by helping to mobilize and incite” the crowd, and by joining in the invasion of the Capitol itself, even though Griffin himself did not commit a violent act.88 The New Mexico county court correctly recognized both its power and its duty to interpret and apply Section Three of the Fourteenth Amendment.

The same general principle applies to the situations of those who hold federal office. Again, anyone who possesses legal power to decide whether such a person can and should hold (or continue to hold) the office in question must apply Section Three’s disqualification in doing so.89 Here, the specific federal constitutional rules for tenure and removal present some interesting complications, which we address shortly.

86 Id. at 46. The New Mexico Supreme Court dismissed Griffin’s appeal on procedural grounds. NO. S- 1-SC-39571 (N.M. Sup. Ct. Nov. 15, 2022). Meanwhile, the federal courts concluded that they lacked federal jurisdiction over two related claims by Griffin: an attempt to remove the state action to federal court, State ex rel. White v. Griffin, 2022 WL 1707187 (D.N.M. May 27, 2022) (denying removal be- cause of plaintiffs’ lack of Article III standing) and a separate parallel suit attempting to enjoin the state proceedings, Griffin v. White, 2022 WL 2315980 (D.N.M. June 28, 2022) (finding lack of standing, lack of ripeness, and invoking Pullman abstention).

87 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473, at 24-25 (1st. Dist. Santa Fe County, Sep. 6, 2022).
88 Id. at 35-38.
89 The availability of a federal quo warranto action is curiously codified in the D.C. Code, §§ 16-3501- 02. Courts have generally construed this statute quite narrowly, holding that only the Attorney Gen- eral may bring a quo warranto against a public official, and that he has broad discretion not to do so. See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984); Drake v. Obama, 664 F.3d 774, 784-785 (9th Cir. 2011); SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 81 (D.C. Cir. 2015), aff'd, 580 U.S. 288 (2017). The Third Circuit recently dismissed a Section Three quo warranto against former state senator Doug Mastriano on this ground. Hill v. Mastriano, No. 22-2464, 2022 WL 16707073, at *2 (3d Cir. Nov. 4, 2022). See also Hill v. Perry, No. 22-2465, 2023 WL 3336648, at *1 (3d Cir. May 10, 2023) (dismissing similar suits by same plaintiff against Rick Saccone and Scott Perry).

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But in general: wherever anyone possesses the constitutional authority or duty to remove others from office for legal reasons, they can and should remove those barred by Section Three. Presidents—and subordinate executive officers acting at the president’s direction—should remove from office executive officers, civil and military, who are constitutionally disqualified by Section Three. Likewise, the House of Rep- resentatives should impeach, and the Senate convict and thereby remove from office, civil executive officers who become constitutionally disqualified by Section Three.90

Finally and additionally, what happens if all of the above fails? Somebody dis- qualified by Section Three is given office and nobody removes that person from office. What then? Here too there will often still be additional procedures to enforce Section Three. These procedures mirror those available to enforce the Appointments Clause and other constitutional law of appointments. A litigant can move to disqualify a judge whose appointment is improper.91 A regulated entity can challenge the actions of an executive official who holds office improperly.92 Those who cannot constitution- ally hold office cannot constitutionally exercise government power, so the subjects of that power can challenge their acts as ultra vires. While there may be some limits to the available relief in some kinds of suits under the “de facto officer doctrine,” (more on which shortly), in many cases the courts will be called on to decide if an action is ultra vires. Section Three governs those cases.

3. Special Situations

A few federal constitutional offices raise special cases, where the Constitution itself speaks to official tenure or qualifications.

First consider Congress. Each house of Congress has two specific powers with respect to its own membership in which Section Three might come into play. First, each house has power to “Judge of the Elections, Returns, and Qualifications” of “its own Members.”93 Since one of those qualifications is non-disqualification under Sec- tion Three, each house can and must judge whether Section Three forbids the seating of a member. This judgment is conclusive, and it operates as a crucial constitutional

90 An officeholder who has engaged in insurrection or rebellion or given aid and comfort to enemies of the United States has surely committed a “high Crime or Misdemeanor” within the meaning of Article II, section 4’s description of the scope of the impeachment and removal power. See generally Michael Stokes Paulsen, To End a (Republican) Presidency, 132 Harv. L. Rev. 689, 698-702 (2018). Note that military officers are not subject to impeachment; they are subject instead to the President’s removal authority as Commander in Chief. Whether Congress could supplement that authority through appro- priate legislation is an interesting question. See Zachary Price, Congress’s Power Over Military Offices, 99 Tex. L. Rev. 291 (2021).

91 Nguyen v. United States, 539 U.S. 69, 77–79, 81–82 (2003); Baude, Black, supra note 81, at 346-47. 92 Buckley v. Valeo, 424 U.S. 1, 8–9 (1976) (per curiam); Morrison v. Olson, 487 U.S. 654, 668 (1988); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 487–88 (2010); NLRB v. Noel Canning, 134 S. Ct. 2550, 2557 (2014); see also Baude, Severability, supra note 66, at 36-37.

93 U.S. Const. art. I, sec. 5, cl. 1.

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backstop for each house. No state or group of voters can force upon the House or Sen- ate a Member it judges to be constitutionally disqualified. Indeed, even federal courts could not properly do so. While the Supreme Court has held, in Powell v. McCor- mack,94 that Congress cannot create new “Qualifications” and that the federal courts have the power to stop it from doing so, neither Powell nor first principles allow a federal court to second-guess each house’s judgment about whether the existing, con- stitutional, qualifications have been satisfied. 95

Some have argued that each house’s judging power also preempts other early stages of the election process. The argument is that states and state election law have no power to exclude a candidate for Congress because they are constitutionally ineli- gible to office—that instead the state must allow the voters to send up the ineligible candidate, so as not to prejudge the possibility that the House or Senate will find them eligible.96 With respect, we do not agree with this argument. As a logical matter, each house’s right to judge whether an elected candidate can hold office does not give it the power to force states to elect that candidate (or allow them to be elected) in the first place. And as a textual matter, state legislatures have the power to regulate the “manner” of elections, which includes ballot eligibility.97 In our view, the better inter- pretation is that Section Three can be relevant to both the state’s power to regulate the manner of elections and each house’s power to judge the results of those elections.

94 395 U.S. 486 (1969).
95 See Powell, 395 U.S. at 520 n. 41 (reserving the possibility that Section Three disqualification is a qualification); see also P. Allan Dionisopoulos, A Commentary on the Constitutional Issues in the Pow- ell and Related Cases, 17 J. Pub. L. 103, 114-115 (1968) (cited in id. at n.41) (arguing that it is); Powell, 395 U.S. at 521 n.42 (noting that “federal courts might still be barred by the political question doctrine from reviewing the House’s factual determination that a member did not meet one of the standing qualifications”). We emphasize that questions of interpretation and application of Section Three are not in general “political questions” that cannot be decided by federal courts, simply because they have political consequences. Where the Constitution supplies a rule, and the rule’s application is not com- mitted by the text of the Constitution to the judgment of one of the political branches, the courts are not disabled from deciding a case based on that rule. We simply think that the provision committing to each house the power to be the “Judge” of the “Elections, Returns, and Qualifications” of its own Members does not permit judicial review of determinations of each house that properly fall within these constitutional categories.

97 U.S. Const. art. I, sec. 4. The same Clause also gives Congress the power to “make or alter” such regulations by legislation if it wishes. Two relatively recent Supreme Court cases have invalidated state ballot eligibility rules for members of Congress that attempted to impose congressional term limits. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001), and Judge Richardson relies on these cases to argue that states cannot judge the qualifications of congressional candidates, Cawthorn, 35 F.4th at 273-275 (Richardson, J., concurring). Putting aside whether these cases are correct as an original matter, we think they further support our view. The Court rejected term-limit-ballot-access restrictions because they were an attempt to impose a qualifi- cation not contained in the Constitution. E.g., U.S. Term Limits, 514 U.S. at 784, 787-788, 806-815. It

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96 See Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 594-598 (2015); see also Cawthorn v. Amalfi, 35 F.4th 245, 267-273, 282-284 (4th Cir. 2022) (Richardson, J., concur- ring); Greene v. Sec'y of State for Georgia, 52 F.4th 907, 912-916 (11th Cir. 2022) (Branch, J., concur-

ring).

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The second relevant power each house possesses with respect to its own Mem- bers concerns Members already sitting in Congress. Each house also has power to “determine the Rules of its Proceedings, punish its Members for disorderly Behav- iour, and, with the Concurrence of two thirds, expel a Member.”98 So in addition to the initial power to exclude under Section Three, each house could potentially proceed through the expulsion power instead, by two-thirds vote.99 As with the power to ex- clude, the power to expel, where exercised within the scope of the power conferred exclusively on each house, is committed to that house’s discretion.

Federal judges hold their offices during “good Behaviour.”100 What if a sitting federal judge or even a Supreme Court justice has engaged in insurrection or rebellion or given aid or comfort to the nation’s enemies?101 As a matter of substance this is easy. Whether regarded as simply a violation of the Article III tenure condition of “good Behaviour” or as satisfying the impeachment standard of “high Crimes and Misdemeanors,”102 conduct meeting Section Three’s standard disqualifies a federal judge from office.

As a matter of procedure the question is trickier. The conventional wisdom is that Article III allows good behavior to be judged only through the procedure of im- peachment by Congress. An alternative view, with some support in the history, is that Congress could provide other procedures for adjudicating misbehavior (as for instance in the 1791 Crimes Act, which purported to require the immediate removal of any federal official convicted of bribery or other crimes).103 Whichever is the an- swer, the procedures and criteria for judging judges can and must apply Section Three.

follows that ballot access rules that follow the qualifications contained in the Constitution could be treated differently.
98 U.S. Const. art. I, sec. 5, cl. 2.
99 There is some debate whether Congress can expel a member for conduct that occurred before being elected. See Chafetz, Democracy’s Privileged Few, supra note 47, at 210-212 (recounting arguments on both sides but arguing that it can); Jack Maskell, Congressional Research Service, Expulsion, Cen- sure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 4-7 (2016) https://sgp.fas.org/crs/misc/RL31382.pdf (same). At all events, however, continuing to hold office when forbidden to do so by Section Three is ongoing conduct that would seem independently to justify ex- pulsion in the here-and-now.

100 U.S. Const. art. III.
101 Cf. Ex parte Milligan, 71 U.S. 2, 141 (1866) (Chase, C.J., concurring in the judgment) (“In Indiana, the judges and officers of the courts were loyal to the government. But it might have been otherwise. In times of rebellion and civil war, it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies.”).
102 See supra note 90.
103 Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72 (2006). In the interests of full disclosure, one of us was the student lead editor when this piece was published, and continues to think it is probably right, notwithstanding the counterarguments in James E. Pfander, Removing Federal Judges, 74 U. Chi. L. Rev. 1227 (2007). The other of us adheres to the traditional view. Michael Stokes Paulsen, Checking the Court, 10 NYU J. L. & Liberty 18, 76-77 (2016).

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Finally, what about the top of the ticket? What if the President or a presiden- tial candidate (or likewise for Vice President) is constitutionally disqualified?104 Who has the power and duty to enforce Section Three’s legal prohibition? Again, the an- swer depends on whether the supposedly disqualified individual is seeking election to office or already holds it. In the case of a candidate, state election officials and state election law will frequently judge that candidate’s ballot eligibility, applying Section Three as described above, and subject to the usual avenues of judicial review. Thateligibility question can be a part of a state’s Article II election for electors just as much as any other state election.105 Put simply: a state secretary of state (for exam- ple) might well possess state-law authority to determine candidate eligibility for fed- eral elective offices—President and Vice President, U.S. Representatives, U.S. Sena- tors—selected directly or indirectly via state elections; and among those relevant eli- gibility criteria is whether a candidate is disqualified from the office he or she seeks by Section Three of the Fourteenth Amendment.

Additionally, presidential electors have the power (and therefore perhaps the responsibility as well) to enforce Section Three.106

.

If the voter and presidential electors do select a disqualified candidate for the Presidency, we do not believe that Congress (or the Vice President) have the power to reject that candidate when the votes are counted in joint session. Whatever the

104 We are assuming for now that the Presidency and Vice Presidency are covered by Section Three’s language as an “office, civil or military, under the United States.” We think that assumption is correct, and we will return to it in Part IV.B.
105 See Hemel, How-to Guide, supra note 5; Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) (upholding state exclusion from presidential primary ballot of twenty-seven-year-old candidate constitutionally disqualified on grounds of age); Hassan v. Colorado, 495 Fed. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (upholding state exclusion from presidential election ballot of naturalized citizen constitutionally disqualified from office by Natural Born Citizen Clause of Article II); see also Muller, Scrutinizing, supra note 96, at 599-608; see also Muller, Natural Born, supra note 62, at 1100-1106. This is standard practice and law even though the President and Vice President are only indirect candidates, with their electors as direct candidates.

106 See Muller, Scrutinizing, supra note 96, at 579-580.
107 Chiafolo v. Washington, 591 U.S. ___ (2020); see also Muller, supra note 96, at 580. We bracket the serious possibility that Chiafolo was wrongly decided. See, e.g., Mike Rappaport, The Originalist Dis- aster in Chiafolo, Law & Liberty (Aug. 7, 2020), https://lawliberty.org/the-originalist-disaster-in- chiafalo/; Michael Stokes Paulsen, The Constitutional Power of the Electoral College, Public Discourse (Nov. 21, 2016), https://www.thepublicdiscourse.com/2016/11/18283/.

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question is more complicated, because state laws purport to bind the electors in var- ious ways to vote for their party’s candidate rather than making their own determi-

In perhaps half the states, the

nation, and the Supreme Court has recently upheld such laws.

107

But even working

within that paradigm, states and their legislatures have their own duties to uphold the Constitution. That means they have a responsibility to arrange that their electors do not elect a constitutionally disqualified candidate, which should be reflected in

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extent of Congress’s and the Vice President’s authority to count the electoral votes, or determine the authenticity of submitted votes—i.e., was this the act of the electors of the state?—we do not believe that they have the authority to evaluate the decisions or actors of the electors themselves.108 So if a properly selected elector submits a vote for a constitutionally disqualified individual it should still be counted.

Still, once those votes are counted, a disqualified candidate does not become president, even if he has the most votes. This is made explicit by the (self-executing) command of Section Three of the Twentieth Amendment, which sets the constitu- tional terms of a President’s term. It states that at “the time fixed for the beginning of [the President’s] term,” “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”109 The language thus specifically confirms the possibility of a failure to qualify, and specifies the consequences of that failure. If the President-elect is covered by Section Three, he cannot become President—unless Congress chooses (by supermajority votes) to remove Section Three’s disability.

Once the President has taken office, the Constitution provides two paths for involuntary removal from office: impeachment for “high Crimes and Misdemeanors” and removal for being “unable to discharge the powers and duties of his office” under the procedure of the Twenty-fifth Amendment. We think it likely that Section Three would apply to both procedures. The impeachment route is straightforward. As we have discussed, an insurrection against the United States is a paradigm example of a high crime or misdemeanor. It also seems to us possible that a President who is, by operation of the Constitution, legally disqualified from holding his office might be said to be “unable to discharge the powers and duties of his office” within the meaning of the Twenty-fifth Amendment. To be sure, this is doubtless not the paradigm case that the authors of the Twenty-fifth Amendment had in mind. Moreover, “unable” as employed in the Twenty-fifth Amendment would appear, linguistically and structur- ally, akin to “inability” as used in Article II, Section 1, paragraph 6—the provision that the Twenty-fifth Amendment amends in this respect. (Paragraph 5 of Article II addresses questions of eligibility; and paragraph 6 separately addresses questions of inability.) But regardless of intention, the natural import of the words of the Twenty- fifth Amendment is that they broadly include all reasons why a president might be “unable” to perform his or her duties. And it is the meaning of the words enacted, not the subjective intentions or expectations of those who drafted them, that is what makes our constitutional law. The procedures of the Twenty-fifth Amendment are complicated and convoluted, to be sure. But where they are employed, there is a good

108 We take no position on many further details of this issue, including the relative interplay of the Electoral Count Reform Act, Pub.L. 117-328, Div. P, Title I, § 109(a) (Dec. 29, 2022) 136 Stat. 5238- 5239, codified in relevant part at 3 U.S.C. 15(b) & (d)(2)(B)(ii), possible constitutional challenges to it, see Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1805 (2002); see also John Harrison, Nobody for President, 16 J.L & Pol. 699 (2000), interpretations of it, but see Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1538 (2021), or the like.

109 U.S. Const. amdt. XX, sec. 3. Cf, Muller, Regularly Given, supra note 108, at 1538 n.42. 33

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argument that a president’s disqualification from office under Section Three is one of the grounds on which he or she might be judged “unable” to continue in that role.

***

Tying together all of these different procedures and possibilities: consider briefly (and not-so-hypothetically) a violent insurrection on the seat of government, by a mob joined or given aid and comfort by various government officials, from a state representative or commissioner to a U.S. Senator to the President himself.110 From the moment of their participation in the insurrection, those officials would be legally ineligible to hold their offices, thanks to Section Three of the Fourteenth Amendment. How this would play out practically might vary across them. As the state official re- turned home, he would immediately be subject to state law procedures such as a quo warranto suit.111 He might be removed by such a suit,112 or might well choose to resign instead.113 The Senator might choose to brazen it out, counting on the difficulty in getting together a two-thirds vote to expel him. But if he sought re-election the Senate could and should exclude him by a mere majority vote. As for the hypothetical Presi- dent, by right he ought to be immediately subject to impeachment and conviction by Congress, and perhaps also a Twenty-fifth Amendment declaration by the Vice Pres- ident and supported by the cabinet. Even if those things did not happen, if he sought re-election, state election officials around the country would be bound by Section Three in deciding whether to put him on the ballot, even in the primary.

And of course, some of these matters would no doubt promptly find their way into the courts as well. Continuing the example of the presidential candidate, if state officials excluded him from ballot eligibility, he would likely be able to sue in state or federal court to challenge state officials’ determination of ineligibility. And if he was not excluded by state officials, voters (at least in some states) might possess the legal right to challenge his eligibility. Either way, such a challenge would present a classic legal case or controversy. It is not difficult to imagine such suit being resolved by courts. Indeed, given the magnitude of the question and its consequences, it is not difficult to imagine such an important case making its way quickly to the U.S. Su- preme Court. It would then become the province and duty of the Court to determine and apply the meaning of Section Three.

110 See infra Part IV.C. for further discussion.
111 For two relevant examples, see NMSA. 1978, sec. 44-3; W.V. Code sec. 53-2-1. In West Virginia, such a claim may be brought “[w]henever the Attorney General or prosecuting attorney of any county is satisfied that a cause exists therefor he may, at his own instance, or at the relation of any person interested.” Id. 53-2-2. For illustrative applications, see State ex rel. Zickefoose v. West, 145 W. Va. 498, 545 (1960); Wells v. Miller, 237 W. Va. 731 (2016).
112 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473 (1st. Dist. Santa Fe County, Sep. 6, 2022).
113 Resignation letter from West Virginia Delegate Derrick Evans to Governor Jim Justice (Jan. 9, 2021), available at https://s3.documentcloud.org/documents/20447012/derrick-evans-resignation-let- ter.pdf.

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Section Three thus functions as a sort of constitutional immune system, mobi- lizing every official charged with constitutional application to keep those who have fundamentally betrayed the constitutional order from keeping or reassuming power.

C. The Problem of Griffin’s Case

A small problem with our view that Section Three is self-executing and imme- diately operative is that the Chief Justice of the United States said the opposite, al- most immediately after the Fourteenth Amendment was adopted. This was the opin- ion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting as Circuit Justice in 1869, in one of the first cases to interpret any part of the Amendment. In Griffin’s Case, Chief Justice Chase concluded that Section Three is inoperative unless and un- til Congress passes implementing legislation to carry it into effect.114 This precedent continues to cast a shadow over Section Three today.115

But there is a simple response to this small problem. Griffin’s Case is just wrong. It is possible—possible—that its result is correct on an alternate ground, un- der the so-called de facto officer doctrine, which we will discuss. But Chase’s legalreasoning that the Fourteenth Amendment is not self-executing is unsustainable. In- deed, the more one pulls at his opinion, the more it unravels. We examine it in some detail.116

1. Background

Caesar Griffin, a black man, was charged in a Virginia state court with the crime of shooting with the intent to kill. Griffin was tried, convicted, and sentenced to prison. He made no claim that the statute under which he was tried was unconsti- tutional; nor that he had been subjected to discrimination because of his race; nor that the composition of the jury was improper. As Chase put it: Griffin made “no allegation that the trial was not fairly conducted, or that any discrimination was made against him, either in indictment, trial, or sentence, on account of his color.”117 Nor did Griffin allege that the presiding judge—Judge Hugh W. Sheffey—“did not conduct the trial with fairness and uprightness.”118 Griffin raised just one challenge to the validity of his conviction: that Judge Sheffey (or, one might say, so-called Judge

114 In re Griffin (“Griffin’s Case”), 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5,815) (Chase 364).
115 See, e.g., Josh Blackman and S. B. Tillman, Opinion, “Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene,” The New York Times, (Apr. 20, 2022); Tom Ginsburg, Aziz Huq, & David Landau, The Law of Democratic Disqualification, 111 Calif. L. Rev. at 16, 51 (forthcom- ing 2023) at https://ssrn.com/abstract=3938600.
116 For other criticism of Griffin’s Case, insightful as always, see Magliocca, Amnesty, supra note 5, at 102-108; Magliocca, Foreground, supra note 62, at 9-14.
117 11 F. Cas. at 22.
118 Id. at 22.

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Sheffey)119 was legally disqualified by Section Three of the Fourteenth Amendment from serving.

The facts relevant to Judge Sheffey were not disputed either. He had taken the oath: Before the Civil War, Hugh Sheffey had been a member of the Virginia state legislature, as far back as 1849. And he had “engaged in” rebellion: After Virginia purported to secede from the Union, Sheffey continued to serve as a member of Vir- ginia’s secessionist legislature. In that role, in 1862, he “voted for measures to sustain the so-called Confederate States in their war against the United States.”120 Thus “it is admitted,” wrote Chase, that Judge Sheffey “was one of the persons to whom the prohibition to hold office pronounced by the amendment applied.”121

Griffin had petitioned the U.S. district judge, Judge John Underwood, for a writ of habeas corpus challenging the lawfulness of his custody, which Judge Under- wood granted.122 The sheriff appealed to the circuit court, which was held by Chase as circuit justice.123

119 Cf. Will Baude, The deadly serious accusation of being a “so-called judge,” Volokh Conspiracy, Wash. Post. (Feb. 4, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/04/the- deadly-serious-accusation-of-being-a-so-called-judge/ (“[T]o call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue”).

120 11 F. Cas. at 22.
121 Id. at 23.
122 See Opinion of Judge Underwood in Edward McPherson, The Political History of the United States of America During the Period of Reconstruction (from April 15, 1865, to July 15, 1870), at 462-466 (1875). We are indebted to Myles Lynch for locating this source.
123 The procedural posture of this and several related cases are extremely confusing and reflect back- ground machinations by both Judge Underwood and Chief Justice Chase: At the time, habeas was apparently available from the district court, or “at chambers,” or from the circuit court. If Judge Un- derwood issued the writ from the district court or at chambers, he could be reviewed by the circuit court, which would include Chief Justice Chase. But if Chief Justice Chase was not present, Judge Underwood could also sit alone as the circuit court. And thanks to a recent statute designed to strip jurisdiction over the anti-Reconstruction suit of Ex parte McCardle, there would be no appeal if Judge Underwood sat as the circuit court. Underwood took this, the unreviewable route, in another habeas case like Griffin’s brought by Sally Anderson. Chief Justice Chase then wrote to Underwood with a veiled threat, floating the possibility that a recent statute could be interpreted to deprive Underwood of his ability to hold the circuit court at that time, and encouraging Underwood to hear the cases in the district court or at chambers so that Chase could review him. Underwood obliged. Meanwhile, Virginia also sought an original writ in the Supreme Court to put a stop to Underwood’s Section Three docket. The Supreme Court ordered all of the proceedings stayed, and then let Chase go down to the circuit to clean things up, taking no action on the writ. See Charles Fairman, Reconstruction and Reunion at 601-607; Letter from Chase to Underwood (Nov. 19, 1868) in 5 The Salmon P. Chase Papers 285-286 (1998); Letter from Chase to Underwood (Jan. 14, 1869) in id. at 292-293.

This background is briefly alluded to in the synopsis in Griffin’s Case which explains that “[a] motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of prohibition against the district judge, to restrain him from further exercise of such power. The supreme court advised on the motion, and never announced any conclusion, but shortly afterward the chief justice opened the circuit court at Richmond, and immediately called up the appeal in Griffin’s Case. This statement is necessary for a full understanding of the pregnancy of the chief justice’s statement

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2. Chase on Section Three

Chase reversed. Here is how he framed the problem: Everybody agreed that Sheffey had been lawfully appointed as a state judge in February 1866, while Virginia was controlled by military reconstruction and the Fourteenth Amendment did not exist.124 The question was whether ratification of Section Three kicked him out. As Chase put it: “whether upon a sound construction of the amendment, it must be re- garded as operating directly, without any intermediate proceeding whatever, upon all persons within the category of prohibition, and as depriving them at once, and absolutely, of all official authority and power.”125

Chase said no, rejecting this as a “literal construction” 126 of Section Three. There is a lot going on in this opinion. Chase included a number of makeweight ar- guments and asides on topics such as the legal history of West Virginia.127 But his core argument was that surely Section Three cannot mean what it says: It would have bad consequences, can’t possibly have been intended by the ratifiers, and would vio- late the spirit of the Constitution. As we will explain, these arguments are bad ones. Chase then supplemented them with a shocking claim of a secret Supreme Court rul- ing in favor of an alternative approach—which was both generally improper, but also further impeached Chase’s interpretation of Section Three. All in all, Griffin’s Case is a case study in how not to go about the enterprise of faithful constitutional inter- pretation.

a. “The argument from inconveniences, great as these”

that the supreme court agreed with him as to the decision he rendered in this case.” Griffin’s Case, 11 F. Cas. at 7-8. But really, these circumstances are extraordinary. We take them up again below.
124 Id. at 23.
125 Id. at 18.

126 Id. at 24.
127 Chase summarized the intriguing legal history of this Virginia government: When Virginia, by act of its legislature in 1861, purported to secede from the Union, loyal Unionists assembled in convention in Wheeling to organize a new state government. Congress and the Lincoln administration recognized the Wheeling government as the lawful government of Virginia. The Wheeling Virginia government then gave its consent to the creation of a new Wheeling-based state of West Virginia, after which the (Wheeling) Virginia government-in-exile relocated to Alexandria, just across the river from Washing- ton, to serve as the loyal, Union-recognized government of all of what remained as “Virginia.” After Lee’s surrender at Appomattox, Chase’s opinion notes, the “government recognized by the United States was transferred from Alexandria to Richmond” and “became in fact what it was before in law, the government of the whole state.” Id. at 18. Judge Sheffey was appointed under the authority of this government. (For the full story – and full formalist legal defense – of the validity of the legal fiction of “Virginia” giving its consent to the creation of a breakaway state of West Virginia, see Vasan Kesavan and Michael Stokes Paulsen, Is West Virginia Unconstitutional? 90 Calif. L. Rev. 291 (2002) For an argument that this aside was actually relevant to Chase’s argument, see Magliocca, Foreground, supra note 62, at 10 n.30, discussed infra note 154.)

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The core of Chase’s argument was that if Section Three were an immediately operative, self-executing constitutional rule of disqualification, it would have incon- venient consequences in the Reconstruction South. “In the examination of questions of this sort,” Chase wrote, “great attention is properly paid to the argument from inconvenience.”128 And here “the argument from inconveniences” was “great” in Chase’s estimation— it was “of no light weight.”129

In several incompletely reconstructed Southern governments, many offices were in fact held by former oath-breaking rebels.130 If Section Three were automati- cally operative, it would have immediately barred all such men from office. (Indeed.) Yet, Chase argued, many such disqualified persons in fact had not vacated their of- fices but instead continued to exercise authority under those offices notwithstanding the ratification of the Fourteenth Amendment. To give Section Three immediate ef- fect would thus upset the apple cart in a fairly major way. “No sentence, no judgment, no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commis- sioner’s sale—in short no official act—is of the least validity.”131 Chase found this unthinkable: “It is impossible to measure the evils which such a construction wouldadd to the calamities which have already fallen upon the people of these [Southern] states.”132

Chase went on: not only did Section Three impose great “inconveniences” and “calamities,” it was unfairly punitive—ungraciously ousting once-lawfully-appointed officers from their offices—and ostensibly inconsistent with the “spirit” of prior con- stitutional principles, concerning due process, bills of attainder and ex post facto laws.133 And besides, the specific remedy sought—vacating Griffin’s conviction—only worked mischief, because it did not even seek the literal removal of Judge Sheffey from office. Put these things together and you have Chase’s interpretive driver: “Surely,” Chase continued, “a construction which fails to accomplish the main pur- pose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found.”134

128 11 F. Cas. at 24.
129 Id. at 25.
130 Chase also suggested that the problem was not completely limited to the Southern governments. Id. at 25 (observing that “[i]t is well known that many persons, engaged in the late Rebellion, have emigrated to states which adhered to the national government . . .” and that “it is not to be doubted that not a few among them” had previously taken a covered oath, and that “[p]robably some of these persons” had subsequently been elected to office).
131 Id. at 25. Of course, Chase would undercut this conclusion later in the opinion. See infra Part II.C. 132 11 F. Cas. at 25.
133 More on this point presently, Part II.C.2.c, and again Part III.
134 11 F. Cas. at 26.

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Chase tried to funnel these policy arguments into a rule of constitutional con- struction: “the argument from inconvenience.”135 This argument “it is true, can not prevail over plain words or clear reason,” Chase acknowledged.136 “But, on the other hand,” he wrote, “a construction which must necessarily occasion great public and private mischief, must never be preferred to a construction which will occasion nei- ther, or neither in so great a degree, unless the terms of the instrument absolutely require such preference.”137

This is not an unreasonable principle, as interpretive canons go. When con- fronted with two plausible interpretations of genuinely ambiguous, unclear text, one of which would produce manifestly jarring results, the less jarring interpretation is more likely the correct one. As James Madison said in his famous speech against the

national bank: “Where a meaning is clear, the consequences, whatever they may be, are to be admitted—where doubtful, it is fairly triable by its consequences.”138 Or as Chief Justice Marshall said in United States v. Fisher: “where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed.”139 But Chase’s canon was noticeably more aggressive: The supposedly more disruptive read- ing must “never be preferred” unless the text’s terms “absolutely require” such prefer-ence.140 That is putting not just a thumb on the scale, but a whole hand.

But that is not the real problem with Chase’s analysis. The real problem was how Chase applied these principles to Section Three.

First, Chase was too quick—far too quick—to dismiss the “literal” reading of the “terms of the instrument” as meaning exactly what they seem to say. As discussed above, the language of Section Three’s prohibition on office holding is clear and direct; it is hardly doubtful at all. It takes considerable effort to impute any ambiguity to the text and Chase’s opinion does not even undertake that effort. Instead, the opinion assumes its own conclusion—that the text’s language is somehow insufficiently clear to justify applying the “literal” meaning of its words. Indeed, even on Chase’s own hyper-strict standard, the words of Section Three do “absolutely require” the conclu- sion that it, on its own, disqualifies covered rebels from office.

Second, Chase was too ready—far too ready—to find that following the (“lit- eral”) language of the document would produce (what Chase considered to be) great “inconveniences” or “mischief”— indeed, increase “calamities” already visited upon the South. Chase emphasized the breadth of Section Three’s language: it applied in

135 Id. at 24.
136 Id. at 24.
137 Id. at 24.
138 James Madison, Speech on Feb. 2, 1791, reprinted in Legislative and Documentary History of the Bank of the United States 39, 40 (photo. reprint 2008)

139 United States v. Fisher, 2 Cranch (6 U.S.) 358, 386 (1805) 140 11 F. Cas. at 24 (emphasis added).

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all the states, not just the former Confederacy (so?); it applied beyond the context of Civil War but included aiding enemies in a foreign war (so?); it would apply in terms to immediately disqualify men for acts done long ago, for example in the Mexican War (so?); it would apply “to all persons in the category” and “for all time, present and future” (so?). And, taken seriously, this broad rule would, as noted, “annul all official acts” performed by disqualified officers, including judges. (Would it?)

For Chase, all this seemed to border on the shocking—a parade of horribles demanding the search for an alternative construction of Section Three. But why? Be- cause it might have a broad effect? Because it adopted a new rule of constitutional law superseding prior law? Because it would have removed immediately a substantial number of former-oath-swearing-officeholders-turned-rebels from positions of power? Because it could have the effect of invalidating their unauthorized, lawless actions? Chase’s parade of horribles assumes, without argument, the correctness of his ownapparent policy prejudices.141

Now Chase did attempt to groom these prejudices into more plausible legal arguments, which we will get to in a moment. But because these arguments from inconvenience are the heart of Chase’s opinion, and because we still see these kinds of arguments repeated today, we pause to emphasize that this is not how judging is supposed to work, even if it too often does.

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy- consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solu- tion to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Trea- son Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like.

b. The argument from “the intention of the people”

In places, Chase raises the inconvenience argument as an inquiry into the “in- tent” of the Framers: “What was the intention of the people of the United States in adopting the fourteenth amendment? What is the true scope and purpose of the pro- hibition to hold office contained in the third section?”142 This at least sounds kind of like the question a judge should be asking—the original meaning of the constitutional

141 As Judge Underwood had put it: “Whatever inconvenience may result from the maintenance of the Constitution and the laws, I think the experience of the last few years shows that much greater incon- venience comes from attempting their overthrow.” Opinion of Judge Underwood, supra note 122, at 465.

142 11 F.Cas. at 24.

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provision adopted by We The People and binding on those who interpret it. But in fact it conceals still more sleight of hand.

First and foremost, Chase’s framing of the interpretive question commits a classic blunder: swapping in original intent for original meaning. In our constitu- tional system, law is made by enacting texts, not by searching for the unenacted wishes of lawmakers.143 And whatever evidence Chase might have that the conse- quences of Section Three were unintended by some of those who voted for it, he had no evidence that these consequences were not entailed by what they voted for.

Second, however dubious it is to look to original intent over original meaning generally, it is especially dicey to do so in the case of the Fourteenth Amendment. The Fourteenth Amendment was ratified in unusual, exigent circumstances. In Con- gress, the Amendment represented a compromise between different Republican fac- tions, some much more radical than the others. And in the states, where ratification made it law, the Amendment depended on the ratification votes of the southern states, who were pressured—some might say “coerced”—to ratify the Amendment as the price of regaining their representation in Congress.144 Even if one accepts this process as lawful (which we do) it is obvious that it means one must cast a skeptical eye on stories about the supposed “intent” of those who ratified it, especially in the South. It may well be that some of the ratifiers had their fingers crossed behind their backs and intended to give the Amendment as little effect and as little quarter as they could get away with. But so what? What matters is what they did, in one of the high- est-stakes moments of constitutional law making in American history. By diminish- ing the plain scope of the Amendment’s text, Chase was succumbing to this kind of anti-constitutional subversion.

Third and finally, all of Chase’s evidence of this supposed intent just boils down to the inconvenience argument we have just discussed. And as discussed above, this is why one must be especially careful with judges who invoke the supposed “intent” of a written text. When meaning is uncertain, it is permissible to give a slight edge to the interpretation that is more likely to match what its authors were trying to do. But it is easy for a judge to use this principle as an excuse for reading into the text

143 See supra notes 9-14, sources cited there, and accompanying text.

144 See generally, John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L.

Rev. 375, 461 (2001). For arguments that Congress’s requiring states’ ratification as condition of re- stored representation was entirely lawful and appropriate, see id; Kesavan & Paulsen, West Virginia, supra note 127, at 329; Amar, America’s Constitution, supra note 4, at 364-380, see especially id. at 376-378. There is a different argument for ratification, the “loyal denominator” theory, in which the southern states were unnecessary for ratification. See Christopher R. Green, Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications, 13 Duke J. Const. L. & Pub. Pol’y 167, 168 (2017); Christopher R. Green, The History of the Loyal Denominator, 79 La. L. Rev. 47, 48 (2018). One of us has rejected this theory in prior writing, Michael Stokes Paulsen, A General The- ory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 709 (1993); see also Amar, supra note 4, at 378-380, and the other of us is inclined in the same direction.

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his own views of what the law should be. After all, the authors of the provision were reasonable people, trying to do reasonable things, and, I, the judge, am also reasona- ble, so surely if I don’t like this result, they wouldn’t have liked this result, and there- fore it must not be the result. To write it down this way would give up the game, but it is too easy to think it. Chase’s use of original intent is makeweight at best, and a trick at worst.

c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law

The “inconveniences” and “calamities” that, surely, were not intended by the authors of the Fourteenth Amendment were Chase’s main arguments. But he had a bit more to say. There was “another principle, which in determining the construction of this amendment, is entitled to equal consideration.”

Of two constructions, either of which is warranted by the words of an amendment of a public act, that is to be preferred which best harmo- nizes the amendment with the general terms and spirit of the act amended. This principle forbids a construction of the amendment, not clearly required by its terms, which will bring it into conflict or disac- cord with the other provisions of the constitution.145

What was the supposed conflict between Section Three and the rest of the Con- stitution? Chase fretted that Section Three was a penal enactment, imposing punish- ment without trial on secessionists, and thus in tension with the spirit of earlier pro- visions on bills of attainder, ex post facto laws, and due process:

Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once and without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution.146

Thus, Chase concluded, Section Three should not be read as accomplishing disquali- fication of its own force.

145 11 F.Cas. at 25. 146 Id. at 26.

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Now once again, the interpretive rule Chase is formulating here is not totally crazy. But it is a warped version of the real thing. As we discuss at length in the next part: It is true that repeals by implication are disfavored, and this principle applies to constitutional law. But at the same time, constitutional amendments change things, and when an amendment is inconsistent with prior constitutional rules, ulti- mately it is the amendment that controls. If a new provision fairly can be harmonized with prior law—where there is no true conflict—the provisions should be read har- moniously.147 But where new language in fact changes old law, by clear terms or nec- essary logical effect, the greater error is to deny such change out of undue attachment to the former legal regime.

This greater error is exactly what Chase did. Chase leaned very heavily—too heavily—on the rule against implied repeals, ratcheting it up to “forbid[]” readings of a text “not clearly required” by its terms, that would “bring it into conflict or disac- cord” with other provisions of the Constitution.148 Each leaning is wrong. Repeals by implication may be disfavored; but repeals, made in terms or by necessary logical implication, are not presumptively forbidden. Nor does new language changing old provisions require such extraordinary clarity as Chase would have it. The true ques- tion is whether the language and logic of a new provision really does present a conflict with prior law. And the idea that constitutional amendments should presumptively be read so as not to change the Constitution (!)—that they should be construed to avoid conflict or even mere disaccord with prior constitutional law—is indefensible. Of course constitutional amendments change prior constitutional law. That is their purpose and function. Now, that doesn’t warrant reading them to change more than they really do. But a presumption that constitutional amendments should be read to change as little as possible makes no sense.

Finally, this part of Chase’s argument took a puzzling turn that is worth not- ing. In one of many strange asides, Chase noted the possibility that Section Three had implicitly repealed the Treason Clause: “in the judgment of some enlightened ju- rists, the legal effect” of Section Three’s imposition of a new prohibition on officehold- ing for rebels and insurrectionists “was to remit all other punishments” for treason.149 If anything this seemed to hurt Chase’s argument against self-execution, because it emphasized that Section Three could change the pre-existing constitutional rules. And at the same time this supposedly enlightened argument was also bonkers. The enactment of a constitutional rule of disqualification from office does not remotely suggest a supersession or repeal of criminal-law punishment for treason. And if it did it would have the perverse effect of leaving Confederates who had not previously taken a constitutional oath subject to the death penalty, while previous office holders avoided all criminal punishment except the officeholding ban.150

147 See infra, Part III.
148 11 F. Cas. at 25 (emphasis added).
149 Id. at 26.
150 See Case of Davis, 7 F. Cas. 63, 92, 95 (C.C.D. Va. 1867).

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So why did Chase bring it up? Who were these “enlightened jurists” who imag- ined such a thing? The answer is . . . Chase himself! He had asserted precisely this wacky construction of Section Three’s effect on the criminal penalty for treason—and quietly suggested the argument to defense counsel—in the federal criminal treason prosecution of Jefferson Davis just two years earlier.151 Even Davis’s lawyers had been puzzled by the argument, and wondered if it was some sort of trick, and it seems likely that Chase had complex political motivations in proposing it at the time.152 This argument was tendentious then, and weirdly irrelevant in Griffin’s Case. But it is a helpful reminder that Chief Justice Chase was not shooting straight in his applica- tions of Section Three.

d. The argument from the Section Five enforcement power

Having flailed to avoid the natural reading of Section Three, Chase finally of- fered his alternative, “reasonable construction”:

For in the very nature of things, it must be ascertained what particu- lar individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and en- forcement of decisions, more or less formal, are indispensable; and these can only be provided by Congress. Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that ‘congress shall have power to enforce, by appro- priate legislation, the provision[s] of this article.’ [sic] ... The fifth sec- tion qualifies the third to the same extent as it would if the whole amendment consisted of these two sections.153

Section Five “qualifies” Section Three. Of course, this proves too much. Taken seriously, it would suggest that Section Five likewise “qualifies” Section One and ren- ders its commands—birthright citizenship, privileges or immunities, due process, and equal protection—inoperative until enforced by congressional legislation. It would imply that Section One had no self-executing legal effect, which has never been the law. It also proves too little. It is true, perhaps, that carrying a legal prohibition into practical effect in actual situations frequently will involve, necessarily, actions by persons and institutions charged with applying that prohibition as law in the course

151 Id. See Magliocca. Amnesty, supra note 5, at 100-102; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 293-300 (2017).
152 Nicoletti suggests—and she is not making this up—that either Chase was gunning for the Demo- cratic nomination for President, or that this was a bank shot to get southern whites to accept the ratification of the Fourteenth Amendment, by arranging for the Amendment to benefit them. Id. at 293-296.

153 11 F. Cas. at 26.

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of performing their assigned duties. But as noted above there is no reason why “pro- ceedings” and “decisions” and “enforcement” with respect to Section Three’s com- mands may not be conducted and carried out by these various state and federal ac- tors, exercising their usual authority with respect to such matters.154 It is simply not true that “these can only be provided by Congress.” Congress can provide them. But so can many others. Indeed, that is just what Judge Underwood was trying to accom- plish in Griffin’s Case, until Chase stopped him.

Chase’s tendentious construction of Section Three has gone on to a surprisingly serious career as a precedent. But it simply does not hold up as an original matter. But that is not even the weirdest thing about Griffin’s Case.

3. Griffin’s Self-Defeating and Highly Irregular Dictum

Chase concluded his discussion of Section Three this way: “After the most care- ful consideration, therefore, I find myself constrained to the conclusion that Hugh W. Sheffey had not been removed from the office of judge at the time of the trial and sentence of the petitioner; and that the sentence of the circuit court of Rockbridge county was lawful.”155

By Chase’s logic, such as it was, that should have been the final line of his opinion. But strangely, Chase was not actually done. He then launched into the weirdest part of his opinion, a sort of half-dictum, half-advisory opinion that cast fur- ther doubt on all that had come before:

In this view of the case, it becomes unnecessary to determine the question relating to the effect of the sentence of a judge de facto, ex- ercising the office with the color, but without the substance of right. It is proper to say, however, that I should have no difficulty in sus- taining the custody of the sheriff under sentence of a court held by such a judge. . . .

This subject received the consideration of the judges of the supreme court at the last term, with reference to this and kindred cases in this district, and I am authorized to say that they unanimously concur in the opinion that a person convicted by a judge de facto acting under

154 Magliocca also suggests that in the specific situation in Griffin’s Case, state law may have been “unavailable for enforcement” of Section Three because “Virginia was an unreconstructed state and thus lacked the ordinary powers of a state” and “because Virginia did not yet recognize the Fourteenth Amendment’s legitimacy” – in contrast with states such as North Carolina. Magliocca, Foreground, supra note 62, at 10 n.30. We are not sure whether this is giving Chase too much credit or not, but regardless, these points would obviously not hold today, where state law is fully available in every state of the union.

155 11 F. Cas. at 27.

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color of office, though not de jure, and detained in custody in pursu- ance of his sentence, can not be properly discharged upon habeas cor- pus.156

What is going on here? Chase describes an alternate ground for the case—“a judge de facto acting under color of office,” which we would now call the “de facto officer doctrine”—explains that it is unnecessary to decide it, but then also explains that he would “have no difficulty” resolving the case on that alternate ground, and also that the rest of the Supreme Court agrees with him. It is hard to make sense of this part of Chase’s opinion, but the more one digs in to it the more dubious the whole opinion becomes.

First of all, notice that what Chase says here fatally undercuts his earlier ar- guments about Section Three. The heart of Chase’s argument was that a self-execut- ing Section Three would have calamitous consequences that could not possibly have been intended. But here Chase says that even an illegally appointed officer can be a “de facto” officer whose acts are treated as valid for purposes of a habeas claim. If Chase believed this claim about the de facto officer doctrine, then his earlier claim about the consequences was overblown. The de facto officer doctrine would limit or eliminate the supposedly calamitous consequences and allow Section Three to be given its more natural interpretation in other situations. On its own terms, then, this dictum is colossally self-defeating.157

Indeed, if Chase’s extensive dictum about Section Three made it “unnecessary” to resolve the de facto officer doctrine, the same was equally true in reverse. Accepting Chase’s conclusion about the de facto officer doctrine would have made his erroneous disquisition on Section Three completely unnecessary. The criticisms sometimes lev- elled against the chief justices who wrote the famous (or infamous) opinions in Mar- bury v. Madison, and Dred Scott v. Sandford, for having reached out to decide, gra- tuitously, unnecessarily, and improperly, grand questions of constitutional law,158 fall far more heavily upon the head of Chief Justice Chase for his opinion in Griffin’s Case.

Even stranger, Chase represented that the full Supreme Court unanimously agreed with him that on the de facto officer question. “This subject received the con- sideration of the judges of the supreme court at the last term,” Chase asserted, “with

156 11 F. Cas. at 27.
157 Accord, Magliocca, Foreground, supra note 62, at 11 n.25.
158 See, e.g., Letter from Thomas Jefferson to William Johnson (June 12, 1823) (“

Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1011-12 & n.39 (2003); Baude, Judg-

ment Power, 96 Geo. L.J. 1807, 1823-24 (2008).
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Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable.”)

https://founders.archives.gov/documents/Jefferson/98-01-02-3562;

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This practice of Judge

reference to this and kindred cases in this district.”159 The full Court had apparently decided the de facto officer question, in secret, without having announced the fact in any case decision or written opinion,160 in some form of advisory preemptive appellate jurisdiction!?

To be sure, judicial norms were looser back then, but the whole thing was highly irregular even by the standards of the day. Charles Fairman, whose account defends the whole affair as an urgent workaround to stop Judge Underwood, none-theless acknowledges that “[i]t was most unusual to hear a Justice on circuit declare that he was authorized to announce the opinion of the Justices of the Supreme Court on a matter pending in the Circuit Court.”161 Fairman further acknowledges technical problems with this maneuver, because the only issue in front of the full Court was an original writ of prohibition in Ex Parte State of Virginia, where the Court had granted a stay despite manifest procedural flaws.162 Somehow the Court’s non-ruling in a du- bious vehicle became a second-hand advisory opinion on a legal question of great im- portance. The criticisms levelled today at the shenanigans allegedly perpetrated on the Supreme Court’s “shadow docket,”163 fall much more heavily and justifiably on the heads of the Reconstruction justices.

And to return to this point once more, even if we accept this whole problematic advisory opinion, it simultaneously undermines the other part of Chase’s decision— his interpretation of Section Three. As Chase described it, there were two alternative ways to resolve the case—one massive constitutional question, and the other a more modest procedural question. Chase claimed that the whole Supreme Court had au- thorized him to issue a secondhand advisory opinion on the procedural question, an opinion adequate to resolve the Judge Underwood situation. But Chase ignored his colleagues’ apparent preference and resolved the case on massive constitutional grounds instead—grounds that he did not claim were endorsed by the rest of the Court. Is there any justification for his doing so other than a personal power grab?

All of this is without taking a view on the merits of the de facto officer question. This, we think, is not as obvious as Chase (and apparently his colleagues) made it out

159 11 F. Cas. at 27.
160 The Court’s one recorded public statement on the matter was a statement from Justice Nelson in the original writ of prohibition case, Ex Parte State of Virginia, that Chief Justice Chase had “informed the court that before the pending motion for prohibition was made, he signified to the district judgehis dissent” and that Chase was going to “direct that this division of opinion . . . be certified to this court.” Ex parte State of Virginia No. 11, 1868 WL 10951, 19 L. Ed. 153 (1868); Fairman, supra note 123, at 606. That statement did not state the Court’s view on the division, and seemed to anticipate that the Justices would deliberate on the issue later in the more ordinary course – not deputize the Chief Justice to go deliver some secret verdict in their stead.
161 Fairman, supra note 123, at 607.
162 Id.
163 Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023); William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J. L. & Lib. 1 (2015).

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to be. True, American and English history was full of many statements about the valid acts of “de facto” officers and even specifically judges.164 But many of these state- ments could not be taken to their logical extreme in our constitutional system, and indeed, at the founding the Supreme Court had refused to accept the actions of sev- eral de facto judges in the saga surrounding Hayburn’s Case.165

How to reconcile these principles is a difficult question. One possibility, stated in some of the cases, is that an unlawful, but de facto, officer’s acts can be questioned directly, and on direct review, but not “collaterally.”166 On this possibility, maybe the de facto officer doctrine was a defense to claims like habeas—the procedural vehicle in Griffin’s Case—because habeas was a collateral attack.167 Habeas could not be used as a substitute for a writ of error, where the challenge would have been properly raised.

But another possibility is that the de facto officer doctrine protects only tech- nical and ordinary legal defects in an officer’s appointment, not fundamental inability to exercise power, as when that power is forbidden by the Constitution.168 On this possibility, Judge Sheffey’s acts were inherently void, and thus everything he did fell outside of his court’s jurisdiction.169 The de facto officer arguments in Griffin’s Case— and thus the correct legal fate of Caesar Griffin—turn on these technicalities.170 In- deed, these technicalities were argued by the parties and they were the main subject

164 For many citations, see Griffin’s Case, 11 F. Cas. at 18-21 (argument of counsel). For more, see also Reply and Response Brief for the United States, Financial Oversight and Management Board for Puerto Rico v. Aurelius (Nos. 18-1334, 18-1475, 18-1496, 18-1514, 18-15121) 20190919201613217_18- 1334rbUnitedStates.pdf (supremecourt.gov) at 27-47; and Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 342-45 (6th Cir. 2022) (Murphy, J., dissenting).

165 Baude, Severability, supra note 66, at 12 (discussing Yale Todd).
166 For statements like this, see Ball v. United States, 140 U.S. 118, 128-129 (1891) (“was judge de facto if not de jure, and his acts as such are not open to collateral attack."); see also Note, The De Facto Officer Doctrine, 63 Colum. L. Rev. 909, 910, 919 (1963); but see id. at 910 & n. 9 (suggesting that a suit is collateral whenever the officer “is not a party,” including on “writ of error”).
167 All three cases cited by Chase in Griffin’s Case, 11 F. Cas. at 27, can be characterized this way. Taylor v. Skrine, 5 S.C.L. 516, 3 Brev. 516 (1815) deals with a writ of execution and observes that “no objections were made to his authority at the time the decree was given.” State v. Bloom, 17 Wis. 521 (1863) relies entirely on In re Boyle 9 Wis. 264 (1859) which is a habeas case holding that the “

People v. Bangs, 24 Ill. 184., 187 (1860) distinguishes a “direct proceeding” from one where the doctrine applied.
168 For statements like this, see

169 But see In re Boyle, cited supra note 167 (distinguishing “

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right

to hold the offices cannot be inquired into in a collateral proceeding of this kind,” id. at 267. And

McDowell v. United States, 159 U.S. 596, 598 (1895) (“presents a mere

matter of statutory construction . . . . It involves no trespass upon the executive power of appoint- ment.”); see also Note, The De Facto Officer Doctrine, at 918 (discussing Glidden Co. v. Zdanok, 370

U.S. 530 (1962)).

the jurisdiction of the court, which may

always be inquired into; it is an inquiry into the right of the judge to hold his office, which is a

question entirely distinct from that of the jurisdiction of the court over the offence”).

170 In the Supreme Court’s most recent de facto officer doctrine case, Ryder v. United States, 515 U.S. 177 (1995), it split the difference, holding the doctrine inapplicable because the case was on direct

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of Judge Underwood’s opinion below.171 Chief Justice Chase could have turned his considerable powers to them, had he not been busy knee-capping the Fourteenth Amendment instead.

***

There is little to be said in defense of Griffin’s Case, but much to be learned from it. The very weakness of its arguments; the obviously result-oriented nature of its legal analysis; and the inconsistency of its conclusion with Section Three’s lan- guage, end up confirming the core conclusion in this section: Section Three’s disqual- ification of designated persons from office is a self-executing constitutional command that requires nothing more to have immediate legal force.

III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions

Our third proposition is logically and methodologically straightforward but perhaps unsettling in some of its implications: Section Three trumps the earlier parts of the Constitution—to the extent there is a true conflict between them.

As noted above, one of Chief Justice Chase’s arguments against enforcing Sec- tion Three was that it conflicted (he thought) with prior constitutional norms—of due process, prospectivity, fairness, and so on.172 Even for those who do not put the claim in so many words, we suspect that they might share a similar intuition—there is something about Section Three, taken seriously, that seems harsh, unforgiving, un- democratic, unAmerican (?), even . . . unconstitutional(!?). If so, it might seem to fol- low that somebody (judges?) should tame Section Three.

This is an understandable instinct. But it is wrong: dead wrong. We think the conflict with prior constitutional rules is overstated—more feel than real. But to the extent the conflict is real, Section Three wins the face-off.

Constitutional amendments change the Constitution. It thus should be unsur- prising—indeed, it is in the very nature of constitutional amendments—that such new provisions, when added to the Constitution, supersede, displace, qualify, adjust, correct, or simply must be considered to satisfy earlier constitutional rules, to the extent of any actual conflict between them. Simply put: a constitutional amendment

 

review and the challenge was constitutional. In the more recent case of

agement Board for Puerto Rico v. Aurelius,

it found the appointments lawful.

Financial Oversight and Man-

140 S. Ct. 1649, 1666 (2020), it avoided the issue because

171 See Opinion of Judge Underwood, supra note 122, at 463-466.
172 See supra Part III.C.2.c.; see also Ginsburg, Huq, & Fontana, supra note 115, at 18 (suggesting that a self-executing interpretation, “while in harmony with the original operation of Section 3, raises due process and perhaps bill of attainder concerns” and for that reason an “alternative, more plausible construction gives Congress authority to determine how Section 3 is enforced”).

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supersedes prior law precisely to the extent that it departs from the prior rules. This general maxim of interpretation applies to Section Three of the Fourteenth Amend- ment the same as it applies to any other constitutional amendment provision. If the original textual meaning of Section Three’s terms, understood in their natural sense and accounting for any terms of art or specialized usages of words, departs from or alters prior constitutional understandings, that new constitutional language must be given full effect and priority over earlier provisions.

These basic principles of conflicting legal provisions were astutely captured by Alexander Hamilton, writing as Publius in The Federalist Number 78. “It not uncom- monly happens that there are two statutes existing at one time, clashing in whole or in part with each other and neither of them containing any repealing clause or ex- pression,” Hamilton wrote. When this occurs, the courts must determine the “mean- ing and operation” of the two provisions.

Hamilton articulated two principles for doing so, which work as a complemen- tary pair. “So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done”—there’s the first of the pair, but Hamilton’s sentence does not end there, but instead pauses only ever-so-briefly, with a semi-colon, before proceeding to the second rule of the pair: “where this is imprac- ticable, it becomes a matter of necessity to give effect to one in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first.” This was, Hamilton con- tinued, “a mere rule of construction,” but it was an appropriate one, “consonant to truth and propriety,” consistently recognized by courts as interpreters of law: that, as “between the interfering acts of an equal authority that which was the last indication of its will should have the preference.”173

Hamilton went on, more famously, to explain that a different interpretive prin- ciple governed the interfering acts of a superior and a subordinate authority—and proceeded to derive the proposition customarily called “judicial review.”174 But that is not the interpretive question here. Here, the key point is precisely Hamilton’s lead- in proposition: that, as between “interfering” acts of equal legal stature—the para- digm being two statutes, adopted by the same legislature, at different times—the last in time prevails to the extent of any true, irreconcilable conflict. As with statutes adopted by the same legislative authority at different times, so with constitutional provisions adopted by the same authority at different times and possessing the same

173 See The Federalist No. 78 (I. Kramnick ed. 1987) at 439 (Hamilton). These rules were well-estab- lished in American and English law. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 235-244 (2000)
174 See The Federalist No. 78, supra note 173, at 439-440 (Hamilton) (“But in regard to the interfering acts of a superior and subordinate authority of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”)

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legal status: By the terms of Article V, constitutional amendments are “valid to all Intents and Purposes, as Part of this Constitution,” when adopted.175 Thus, where We, the People, have adopted a new constitutional text “interfering” with or departing from prior constitutional provisions, the last-in-time enacted prevails to the extent of any conflict. That is the interpretive principle that governs the relationship between new constitutional language and old language from which it departs.

Actual constitutional examples of these principles abound. The entire Bill of Rights in a sense qualifies, or limits, the original Constitution’s grant of enumerated powers—to the extent of a conflict between those powers and the subsequently enu- merated rights.176 Likewise, the Eleventh Amendment qualifies Article III’s exten- sion of the federal judicial power to various cases and controversies. To the extent the Eleventh Amendment changes what Article III may originally have provided, the amendment supersedes that prior law.177

Much of the time, new amendments can be harmonized with what came before them. Section Five of the Fourteenth Amendment’s grant of “power to enforce, by appropriate legislation, the provisions of this article”178 does not preempt, for exam- ple, the Due Process Clause or the Cruel or Unusual Punishments Clause. It does not allow Congress to punish civil rights violations through summary tortures without trial. Similarly, Section Five does not preempt the Veto Clause; it can and should be read together with Article I, to require “appropriate legislation” to go through the pre- existing lawmaking process.179 A new amendment does not ignore the legal system that it amends.

On the other hand, other parts of the Reconstruction Amendments did conflict sharply with prior constitutional norms, and they displaced them precisely to that extent. Consider the Thirteenth Amendment’s ban on slavery—a dramatic and par- ticularly obvious illustration of the point that new constitutional language supersedes and repudiates old constitutional language, to the extent of any conflict. The Thir- teenth Amendment’s abolition of slavery implicitly but necessarily overrides and ex- tinguishes the Fugitive Slave Clause and any other provision of the original Consti- tution that protected the institution of slavery to the full logical extent of incon- sistency with the amendment’s flat ban. Similarly, Section Two of the Fourteenth Amendment supersedes and displaces the Constitution’s original apportionment

175 U.S. Const. art. V.
177 Baude & Sachs, Eleventh Amendment, supra note 9, at 624-25; cf. Hans v. Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring).
177 Baude & Sachs, Eleventh Amendment, supra note 9, at 624-25; cf. Hans v. Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring).
178 U.S. Const. amdt XIV, sec. 5.
179 See William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 19 (2017) (offering the examples in this paragraph).

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rules including the notorious Three-fifths Clause.180 Because the two rules conflict in substance, the amendment prevails over the Constitution’s original language.

Section Three of the Fourteenth Amendment is in the same family. In most respects, Section Three can be easily harmonized with other parts of the Constitution, such as Article I’s Speech or Debate Clause, Article I and II’s impeachment provi- sions, Article II’s process of presidential selection, Article III’s requirement of a case or controversy, and so on. As we have discussed, Section Three’s new constitutional qualification for office is enforced in the same way as other constitutional qualifica- tions for office, and is easily reconciled with existing constitutional rules.

But there are a few constitutional provisions that have been alleged to conflict with Section Three. If and when this is the case, just as any later-enacted constitu- tional provision supersedes or modifies an earlier-enacted constitutional provisions with which the new provision conflicts, Section Three of the Fourteenth Amendment logically qualifies and, where the language so compels the conclusion, overrides prior constitutional rules.181

Thus, we think all this follows: To the extent of any inconsistency between them, Section Three overrides any limitations otherwise imposed by the Bill of Attainder Clause. To the extent of any inconsistency between them, Section Three also overrides limitations imposed by the Ex post Facto Clause. To the extent of any inconsistency between them, Section Three likewise overrides—or simply satisfies—prior constitu- tional requirements of due process of law.

Finally—and this example might present more difficult questions—to the ex- tent of any inconsistency between them, Section Three overrides, supersedes, or satis- fies the free speech principles reflected in the First Amendment. That is: Whatever the

180 See U.S. Const. amdt. XIV, sec. 2; U.S. Const. art. I, sec. 3. By itself, the Thirteenth Amendment also already rendered the Three-fifths Clause a null set. Section Two then dealt with the injustice of letting the South claim a massive increase in political power for its disenfranchised black population. 181 Indeed, for what it is worth, the legislative history supports this conclusion as well. Opponents of Section Three characterized it as directly imposing retroactive punishment, thus contradicting princi- ples of due process and principles against bills of attainder and ex post facto laws. Cong. Globe, 39th Cong. 1st Sess. at 2915 (Sen. Doolittle) (complaining that Section Three was an “ex post facto provision, a bill of attainder”); id. at 2890 (Sen. Cowen) (bill of attainder); id. at App 241 (Sen. Davis) (Section Three “is in the nature of both a bill of attainder and an ex post facto law”); id. at 2940 (Sen. Hendricks) (ex post facto); id. at 2916; see also id. at 2467 (Rep. Boyer) (criticizing earlier version of Section Three as “a bill of attainder or ex post facto law”). These charges were generally premised on the view – with which proponents of the amendment evidently agreed, see id. at 3036 (Sen. Henderson) – that Section Three would preempt these earlier rules to the extent of a direct conflict. Though at one point SenatorDavis did make the wild suggestion that Section Three might itself exceed Congress’s power to propose amendments to the Constitution. Id. at App. 241 (“The framers of the Constitution did not intend to invest, and have not in fact conferred on Congress the power to initiate alterations of it which would revolutionize the Government formed by it”); see also id. at 3146. See also Graber, supra note 12, at 26-31, 36-37 (documenting this history).

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correct meaning of Section Three as applied to conspiracies, attempts, incitements, and advocacy that meet the description of “engag[ing] in insurrection or rebellion” or of giving of “aid or comfort” to enemies of the constitutional government of the United States, the constitutional meaning of Section Three of the Fourteenth Amendment modifies or qualifies what otherwise might have been thought the dictates of the First Amendment.

In the end, we think that these various prior provisions can mostly be read harmoniously with Section Three. Reason and common sense suggest they should be read consistently with one another to the extent fairly possible; and it is, for the most part, fairly possible to do so. But to the legitimate extent of any conflict or tension, Section Three controls over the Bill of Attainder Clause, the Ex Post Facto Clause, the Due Process Clause, and the First Amendment.

The first three are easy.

A. Bills of Attainder

A bill of attainder is the legislative infliction of punishment on specific people without a trial.182 It is a violation of both the separation of powers and individual rights because it short-circuits the normal adjudication of guilt or innocence. But Sec- tion Three is neither a bill nor an attainder. It is not a “bill”—that is, an enactment of the legislature. Rather, it is an enactment of The People as supreme constitutional law. And it is not an “attainder” either—in that it is not at all clear that it inflicts punishment, because disqualification from office is not necessarily or exclusively a form of punishment. For instance, the Twenty-second Amendment is surely not in- flicting a “punishment” when it precludes the President from running for a third term.183 Moreover, Section Three does not inflict it on specified persons or groups, but rather on anybody who has committed a described course of conduct.

To be sure, Supreme Court precedent has read the Bill of Attainder Clauses more broadly, both in a pair of 20th-century “red scare” cases184 and perhaps more relevantly in a pair of immediate post-Civil War-era loyalty cases: In Cummings v. Missouri185 and Ex Parte Garland,186 the Supreme Court invalidated state and fed- eral oath requirements that required an “Ironclad Oath” from anybody holding a range of positions, both public and private. That oath was really a past-loyalty-re- quirement, requiring people to swear that they had not supported the confederacy or

182 See generally Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63 Stan. L. Rev. 1177 (2011).
183 U.S. Const. amdt. XXII. But see Cummings v. Missouri, 71 U.S. 277, 320 (1866) (“Disqualification from office many be punishment, as in cases of conviction upon impeachment.”).

184 United States v. Brown, 381 U.S. 437 (1965); United States v. Lovett, 328 U.S. 303 (1946).

185 71 U.S. 277 (1866). 186 71 U.S. 333 (1866).

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the like.187 The Court concluded that these requirements were effectively bills of at- tainder—and also ex post facto laws—and held them unconstitutional.

Even if one takes these precedents at face value it does not follow that Section Three would similarly be a bill of attainder. First, the “Ironclad Oath” laws had a broader scope than Section Three: Garland dealt with bar membership, and con-cluded that “exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct.”188 Similarly, the plaintiff in Cummings was a Catholic priest forbidden from preaching.189 Neither case dealt with a more focused exclusion from constitutional office. Indeed, the majority opinion emphasized this fact, explicitly noting that nei- ther case involved qualifications for public office.190 Second, because both cases fo- cused on the retroactive effect of the laws,191 neither case’s reasoning would seemapplicable to Section Three in post-Civil-War insurrections and rebellions—which of course are the only insurrections and rebellions to which Section Three still ap- plies.192

And in any event we doubt that one should take these precedents at face value. First of all, if we had to take sides, we might well be inclined to say that Garland at least may have been wrong, for reasons stated in dissent by Justice Miller (joined by three other justices, including, perhaps somewhat ironically given his later position in Griffin, Chief Justice Chase).193 Second, and more fundamentally, if constitutional amendments can change the Constitution, a fortiori they can change judicial inter- pretations (and misinterpretations) of the Constitution. That is of course what Section One of the Fourteenth Amendment famously did with respect to Dred Scott, what the Eleventh Amendment did with respect to Chisholm, and so on.194 In short, the Court’s interpretation of the Bill of Attainder Clause was a stretch, and regardless, it does not stretch far enough to change or limit the meaning of Section Three.

B. Ex Post Facto Laws

187 For much more detailed discussion of the federal “Ironclad Oath” see infra Part IV.A.4.b.i. 188 Garland, 71 U.S. at 377.
189 Cummings, 71 U.S. at 319.
190 Garland, 71 U.S. at 378.

191 Cummings, 71 U.S. at 327 (“They are aimed at past acts, and not future acts.”); Garland, at 377 (“In the exclusion which the statute adjudges it imposes a punishment for some of the acts specified which were not punishable at the time they were committed”).
192 See supra Part I.B.

193 Garland, 71 U.S. at 382. Cummings presents a trickier case, as it might involve complicating ques- tions of state power to interfere with religious liberty and church autonomy (albeit before ratification of the Fourteenth Amendment) and an especially weak case for the relevance of past loyalty to engag- ing in religious occupation.

194 For a somewhat lighthearted explication of this principle – and a serious treatment of certain of its implications, see Michael Stokes Paulsen, Can a Constitutional Amendment Overrule a Supreme Court Decision? 24 Const. Comm. 285 (2007).

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Article I also forbids both the state and federal governments from enacting an “Ex Post Facto” law.195 An ex post facto law is generally thought to mean a legislative enactment that makes a past act criminal even though it was lawful at the time it was done. Once again, Section Three does not meet this description, being neither a legislative enactment (but rather a new constitutional provision) nor a legislative en- actment defining a criminal offense.196 True, as applied to actions done before 1868, Section Three has retroactive (non-criminal) constitutional legal effect. But as ap- plied to actions done after 1868, the idea that Section Three might depart even from the “spirit” of the ban on ex post facto laws makes precious little sense.

So Section Three no longer produces any conflict—if it ever did—with the Ex Post Facto Clauses or with any Ex Post Facto Spirit that might be supposed to lurk behind them. And even if it did, Section Three would supersede both prior law and lurking spirit.

Indeed, we have this on especially good authority, as this very question has been asked and answered in the past. The Eleventh Amendment, as noted above, had the effect of cutting off jurisdiction previously recognized by Chisholm v. Georgia’s interpretation of Article III. In Hollingsworth v. Virginia, the Court then confronted the question whether the Amendment was retroactive, cutting off suits pending when the Amendment became law. The plaintiffs argued in the U.S. Supreme Court against retroactivity, because “[t]he spirit of the constitution,” forbade “the mischief of an ex post facto Constitution.”197 Indeed, this argument mirrored precisely the arguments for narrow construction we have seen above: “

But the Supreme Court disagreed em- phatically—unanimously ruling the very next day that the Amendment applied ret- roactively, by necessary implication.199 As with the Eleventh, so too for the Four- teenth: Had the Supreme Court ever been called upon to consider the question, the right answer surely is that the Fourteenth Amendment’s rules immediately governed upon ratification and applied “retroactively” to prior actions covered by the revised

constitutional rules.

195 U.S. Const. art. I, §§9 & 10.
196 To be sure, there are revisionist arguments that the Ex Post Facto clause itself extends to retroac- tive civil laws too. See Eastern Enterprises v. Apfel, 524 U.S. 498, 538-39 (1998) (Thomas, J., concur- ring). And as with bills of attainder, in the wake of the Civil War the Supreme Court held that Ironclad Oath requirements were ex post facto laws as well. Cummings, 71 U.S. at 326-332; Garland, 71 U.S. at 377-368. But as discussed in the text, even these principles do not ensnare Section Three going forward, on a non-ex-post-facto basis
197 3 U.S. at 378-80 (arguments of counsel).
198 Id.
199 Id. at 382. See Baude & Sachs, Eleventh Amendment, supra note 9, at 626-627.

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Constitution cannot be controuled by those provisions; and if the words were explicit and positive, to produce the retrospective effect contended for, they must prevail. But the words are doubtful; and, therefore, they ought to be so construed, as to conform

It is true, that an amendment to the

to the general principle of the Constitution.”198

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C. Due Process of Law

The Constitution also forbids the deprivation of “life, liberty, or property with- out due process of law,” which in many circumstances requires judicial process. Does Section Three’s self-executing legal disqualification from office present any incompat- ibility with this requirement? Again, we think the two sets of provisions readily rec- onciled by giving the Due Process Clause no more than its due.

First of all, it is far from clear that the right to hold public office is a form of life, liberty, or property. It is a public privilege, a public trust, to be vested with the power of the people. And though it is a closer case, the same thing may be true even for those who already hold office at the moment that Section Three disqualifies them. Due process protects private vested rights from public deprivation. It does not protect public rights.200 It has been argued that in England, offices were understood as vested rights of property, and occasionally early American courts said so as well.201 But that was not the better rule in America. Treating offices as property did not fit well with republican principles,202 and by 1900 the Supreme Court could rightly state: “The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such.”203

In any event, even if it were otherwise, and those who held offices were de- prived of property by Section Three, what would follow? Nothing. Section Three would prevail. Consider once again the Thirteenth Amendment, which did directly interfere with private property rights—the right recognized in southern states to hold other humans in bondage. The Thirteenth Amendment instantly, self-executingly, elimi- nated those property rights, due process notwithstanding.204 So too would Section Three.

Principles of due process might also animate a different objection—that impos- ing such harsh consequences on individual wrongdoing simply ought to involve fair notice and an opportunity to be heard. Perhaps this instinct motivates the argument against self-execution, as in Griffin’s Case. But in our view this objection is suffi- ciently answered by the terms of Section Three itself. Perhaps the reason that Section

200 Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565-593 (2007); Wil- liam Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540-1547 (2020).
201 Jed Shugerman, Freehold Offices vs. “Despotic Displacement”: Why “Executive Power” Did Not In- clude Removal (July 25, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521119; Hoke v. Henderson, 15 NC 1 (1833).

202 See Jane Manners & Lev Menand, The Three Permissions, 121 Colum. L. Rev. 1, 20 (2021) (“In revolutionary America, the idea of offices as property was roundly rejected”); Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1824 n. 157 (2006) (“A more republican conception of government meant a more republican conception of offices.”).

203 Taylor & Marshall v. Beckham, 178 U.S. 548 (1900). 204 See supra notes 48-50 and accompanying text.

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Three only applies to holding office and not voting, and only applies to prior office- holders, who have previously sworn a constitutional oath—indeed, these limitations are the only ways in which Section Three’s scope was appreciably narrowed during the drafting process—is that we can expect once and future officials and oath-takers to be on particularly strong notice about the basic rules of the constitutional order. Section Three does not ensnare garden-variety crime or miscreance. It ensnares of- fenses against the authority of the system by those who have been and seek to be part of that system.

Similarly, so long as Section Three is applied through the established and cus- tomary procedures for determining qualifications for office, many due process objec- tions would seem to disappear. As discussed above, in many scenarios, Section Three’s disqualification would be enforced through administrative hearings, quo war- ranto suits, state and federal judicial review, congressional adjudications, and so on. Anybody who wishes to argue that his conduct is not covered by the substantive sweep of Section Three is free to litigate that point through all relevant channels.205 Section Three is therefore not in conflict with any requirements of fair notice or an oppor- tunity to be heard.

D. The Ominous Question: Section Three and the First Amendment

With respect to the Constitution’s provisions on bills of attainder, ex post facto laws, and due process, the harmonization of Section Three with prior constitutional law is easy and relatively unproblematic. There is little conflict between the two pro- visions, and to the extent there is, Section Three is plain enough that it must prevail. The interaction of Section Three with the First Amendment presents a more inter- esting, even troubling, question. Does Section Three partially revoke the right to po- litical dissent?

Thinking too hard about this problem yields a morass: What exactly is the re- lationship between Section Three’s language imposing disqualification for having “en- gaged in insurrection or rebellion” and the First Amendment’s protections of the free- doms of speech, press, assembly, and petition? Likewise, what is the relationship be- tween the disqualification for having given “aid or comfort” to insurrectionists, rebels, or other enemies of the United States and the First Amendment? As we have argued, Section Three in principle can supersede, qualify, or modify (or be deemed to “satisfy”) prior constitutional requirements, rendering the provisions of the First Amendment essentially without independent constitutional force as limitations on the scope of Section Three. But how might the prior and important constitutional principles of the First Amendment affect the proper understanding of Section Three’s meaning and scope? What exactly does Section Three effectuate, in relation to the First Amend- ment? Where do the usual protections of the First Amendment leave off and the legal

205 See generally supra Part II.B.

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disabilities imposed by Section Three take over, as a matter of the proper understand- ing of Section Three?

There are, crudely, three possible ways of describing the relationship. The first is to find Section Three (implicitly) limited by the First Amendment. The second is, in contrast, to view Section Three as properly understood as carving out a zone ofexception to, supersession of, or satisfaction of First Amendment principles. The third, which we believe correct, lies somewhere in the middle: Section Three should be con- strued, to the extent fairly possible, consistently with the free speech principles me- morialized in the First Amendment. But to the extent of a true conflict between them, Section Three must control.

To consider a not-so-hypothetical example, suppose that an officeholder cov- ered by Section Three gives a speech to an assembled crowd encouraging them to engage in rebellious or insurrectionary conduct. (And suppose further that the crowd accepts the encouragement, rebelling against members of Congress carrying out a constitutional duty at the seat of government.) We will return to this example206 but for now we consider: how do we judge such an example? Is this only a question of the constitutional definition of “engage in insurrection” and “aid or comfort”—of whether an encouraging speech to an insurrectionary crowd is covered by those terms? Or is it also a question of whether that speech is protected by freedom of speech, and under modern doctrine, that would mean the very stringent test of Brandenburg v. Ohio?207 Or is it somehow both?

To a large extent, we think the conflicts between Section Three and free speech can be minimized—as Hamilton would counsel.208 First, even under modern doctrine, free speech does not protect several categories of speech that overlap with Section Three. Second, Section Three’s terms will not often reach pure speech.

To elaborate on the first point: Modern First Amendment doctrine leaves the government free to punish actual conspiracy and solicitation, direct incitement, and material support of unlawful activities such as insurrection, rebellion, and treason. (There are serious questions about how much modern First Amendment doctrine has exceeded the original protections of freedom of speech and freedom of the press, which we will largely put aside, but the point is that these exceptions are recognized even on today’s liberal understandings.209)

206 See infra Part IV.C.2.
207 395 U.S. 444 (1969).
208 Federalist No. 78, supra note 173, at 173 (“So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done.”)
209 For what it is worth, we do not in general dispute many aspects of modern First Amendment doc- trine, which we believe often captures the original meaning of freedom of speech and freedom of the press, as applied to modern circumstances. See generally Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917, 1919-1922 (2001). To get a sense of how one might construct a truly marvelous proof of this, which this margin is too narrow to contain, see for starters, Adam Griffin,

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The First Amendment has long been held not to protect conspiracy to commit a crime or direct solicitation of unlawful activity, because this is “speech integral to criminal conduct.”210 And while one must use some caution about unduly expanding this category, conspiracy and solicitation are at its core.211 Thus, efforts to steal elec- tions, to pressure state officials to manufacture votes, to pressure other officials (like the Vice President) to violate their constitutional duties in service of a constitutional coup—would all be unprotected by the First Amendment. To the extent those efforts are swept up by Section Three, there would be no conflict.

More familiar may be the modern line of cases concerning “incitement.” Over the course of the twentieth century, judicial doctrine increasingly gave greater pro- tection to speech that could be seen as generally inciting unlawful activity, recogniz- ing that earlier doctrine (such as the famous “clear and present danger” test) had too readily permitted suppression of disfavored political views. The modern rule, stated in Brandenburg v. Ohio in 1969, excludes from First Amendment protection only ad- vocacy or expressive conduct (i) “directed to” (ii) triggering or inciting (iii) “imminent”lawless action (presumably including acts of insurrection or rebellion) and (iv) “likely” to produce such action.212 That is a fairly strict standard, but not one that is impossi- ble to satisfy. Importantly, it does leave open—even under the generous terms of mod- ern First Amendment law—the prospect that some acts of advocacy and expression supporting insurrection or rebellion are simply unprotected by the First Amendment in any event, so that Section Three does not even need to have amended or superseded the First Amendment in order for its terms to be given their full legal effect.

The Supreme Court’s relatively recent decision in Holder v. Humanitarian Law Project213 recognized a further and more controversial limitation on subversive speech: it can be forbidden where it provides “material support” to a foreign organi- zation engaged in or committed to terrorist violence against the nation. The Court concluded that because the “interest in combating terrorism is an urgent objective of the highest order,” the Congress could forbid even speech—such as teaching and training—assisting such organizations, and even though the speech did not directly

First Amendment Originalism: The Original Law and A Theory of Legal Change as Applied to The Freedom of Speech and of The Press, 17 First Amend. L. Rev. 91 (2019); Jud Campbell, Natural Rights and the First Amendment, 117 Yale L. J. 246 (2017); Jud Campbell, The Emergence of Neutrality, 131 Yale L. J. 861 (2022). (We will cease further digression on this point.)

210 United States v. Hansen, 599 U.S. __, at 18-19 (2023); United States v. Williams, 553 U.S. 285, 297 (2008); Giboney v. New Ice Storage, 336 U.S. 490 (1949); Eugene Volokh, The “Speech Integral to Crim- inal Conduct” Exception, 101 Cornell L. Rev. 981, 989-993, 1007-1008 (2016).
211 Volokh, supra note 210, at 1011-1015.

212 395 U.S. at 447; see also Hess v. Indiana, 414 U.S. 105, 108-109 (1973); NAACP v. Claiborne Hard- ware, 458 U.S. 886 (1982)..
213 561 U.S. 1 (2010).

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further terrorist conduct. While this decision is hedged by multiple limiting princi- ples,214 it illustrates another set of circumstances where the First Amendment would create no conflict with potential applications of Section Three.

In sum, while modern First Amendment doctrine is quite generous in its pro- tection of speech, in many cases it would produce no conflict with the coverage of Section Three. We will elaborate on the second point—the scope of Section Three it- self—more fully in Part IV, but for now suffice it to say that the occasions will be rare where speech alone is what qualifies one as having “engaged in insurrection” or pro- vided “aid or comfort” to enemies.

That said, we will concede that the conflict between free speech and Section Three cannot be denied entirely. Consider the Civil War example of Clement Vallan- digham, who was arrested and imprisoned by the military on the theory that “he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the army; and to leave the Rebellion without an adequate military force to sup- press it,”— that he was “warring upon the Military.”215 It is conceivable (though we do not prejudge the point) that Vallandigham’s anti-military efforts could be covered by Section Three. And yet it is also quite plausible that his efforts would be protected by free speech.

Or for a sharper example, even more on point, consider the case of Repre- sentative-elect John Y. Brown, who was excluded from the Fortieth Congress on the grounds that he had given aid and comfort to the Confederacy by writing to the Lou- isville Courier promising to resist the Union army “unto the death” and stating that anybody who volunteered for the Union army “ought and I believe will be shot down before he leaves the State.”216 This exclusion was part of the backdrop of Section Three’s enactment and likely the kind of thing Section Three was intended to cover. But, argues one scholar of the incident, this pre-Section Three exclusion “was en- tirely unconstitutional” and “plainly violative of the First Amendment.”217 If that was so before Section Three’s enactment, does Section Three make it otherwise?218

Finally and perhaps most explosively, consider the 1919 exclusion of socialist newspaper editor Victor Berger from the House. Berger was denounced by members of the House for having given “aid and comfort to the enemies of this country during

214 The Court emphasized that “only material support coordinated with or under the direction of a designated foreign terrorist organization” was banned; “independent advocacy” was “not covered.” Id. at 31-32. Additionally, the law only applied to foreign organizations.
215 President Abraham Lincoln to Erastus Corning and others (June 12, 1863), in Abraham Lincoln, Speeches and Writings, 1859-1965, at 454, 459 (Don Fehrenbacher, ed. 1989). See infra notes 264-272 and accompanying text.

216 See infra notes 265-273, and 338-343 and accompanying text.
217 Lynch, supra note 5, at 197-198.
218 See Lynch, supra note 5, at 198 (“Had Section 3 been ratified by this point, these concerns would be assuaged.”)

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this Great War,” and excluded in part on that basis.219 (Indeed, Berger had also been convicted and sentenced under the Espionage Act, though the charges were overturned by the Supreme Court on grounds of judicial bias.)220 Another scholar of the incident writes that “Under a good reading of the First Amendment, Berger’s speeches and writings could not have been seditious; however under the interpreta- tion prevailing at the time, they probably were.”221 What should we make of such an incident?

In the end, in a case where free speech principles conflict with the best original understanding of “engaged in insurrection” or “aid or comfort,” we think that free speech principles must give way. We stress that we do not think that all or even most disloyal speech will rise to the level of triggering Section Three’s disqualifications.222 But where it does, where “it becomes a matter of necessity to give effect to one in exclusion of the other,” it is the more recent Fourteenth Amendment that “shall be preferred” to the earlier rule.223

For those (like us) who value First Amendment liberties of speech, press, as- sembly, religion, and the right to dissent generally, might Section Three therefore be thought a little dangerous? Might Section Three, in the wrong hands or applied im- properly, be used to suppress dissent in the name of excluding insurrectionists from office? Perhaps. We do not shy away from the point. But the supposed danger of a constitutional provision is not really an argument against its meaning. And the po- tential abuse of a constitutional power, privilege, or disqualification is not really a good legal argument against its existence. Section Three’s exclusion could be thought to pose a danger; but insurrection and rebellion are dangers too—all too real dangers, as recent events have shown. Where exactly that line is drawn by the Constitution, and the extent to which that line changes the prior rules of the First Amendment, are ultimately questions of the meaning of Section Three’s general terms triggering dis- qualification from future office—“insurrection,” “rebellion,” “engaged in,” “given aid or comfort to”—and of who all is included under Section Three’s ban. To that set of important questions we turn next.

IV. Section Three’s Substantive Disqualification is Sweeping

219 Chafetz, supra note 47, at 190; Lynch, supra note 5, at 211-213; 6 Clarence Cannon, Cannon’s Precedents of the House of Representatives 52-63 (1935).
220 Berger v. United States, 255 U.S. 22 (1921). Curiously, after this verdict the House then allowed him to sit in the sixty-eighth through seventieth Congresses. Lynch, supra note 5, at 213.

221 Chafetz, supra note 47, at 191.
222 In our view, for instance, the exclusion of Victor Berger went too far—not because the First Amend- ment makes an exception to Section Three, but because Berger’s advocacy did not satisfy the original meaning of Section Three. See infra note 354.
223 Federalist No. 78, supra note 173, at 439.

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We come at last to the heart of the beast: the substance of Section Three’s pro- hibition. We begin (in Subpart A) with the most interesting and important set of is- sues—the types of misconduct that trigger Section Three. What deeds (and words?) amount to having “engaged in” “insurrection” or “rebellion” against the lawful au- thority of the Constitution and the system of government it establishes? What acts (or words?) amount to having given “aid or comfort” to “enemies” of lawful govern- ment under the Constitution?

These terms to some extent bear a range of meaning and fair construction. The events they describe are often exceptional and to some extent unique. Still, some ap- plications will be clear and virtually indisputable, falling within the terms’ coremeaning—the center of the interpretive bullseye, so to speak. Such scenarios so clearly fall within Section Three that they may be said to be contained within the opposite of a safe harbor—a “sure shipwreck,”224 to borrow Susan Morse’s phrase—of unquestionably disqualifying conduct falling within the core of Section Three’s mean- ing: for example, declared secession from lawful constitutional government; or the taking up of arms against government (as in the waging of the Civil War). At the other end of the continuum, there will be situations that clearly lie in a safe harbor outside the legitimate range of meaning of Section Three’s terms—ordinary expres- sion of political dissent as well as even ordinary law violations. In between these markers, there is a zone of reasonable, fair construction of allowable interpretation and application in which government officials may make judgments that must be conceded to be within the range of what the Constitution permits—and where the decisions and actions of government officials exercising their constitutional powers consequently cannot be considered unlawful and thereby subject to judicial invalida- tion. Within that fair range of meaning, different interpreters legitimately can reach differing conclusions, all in accordance with the Constitution. We address all of these questions in subpart A.

We then turn more briefly (in subpart B) to the questions of what prior-office- holding, oath-taking categories of persons—persons who then subsequently engaged in insurrection or rebellion—are covered by Section Three’s ban and (a similar but distinct question) what future offices are constitutionally barred to such persons. We conclude that Section Three’s disqualification is sweeping, both in the substantive conduct that triggers such disqualification and in the office-holders and offices to which it applies. In particular, contrary to one recent revisionist view, we believe it applies to the Presidency.

Finally (in Subpart C) we will consider the attempted overthrow of the 2020 Presidential election. Did the incumbent president’s willful, deliberate refusal to ac- cept the outcome of the lawful constitutional election resulting in his defeat for re- election and, instead, his (and others’) attempt to overthrow constitutional election results and install or maintain himself in office, by force, by fraud or by attempted de

224 Susan Morse, Safe Harbors, Sure Shipwrecks, 49 U.C. Davis L. Rev. 1385 (2016). 62

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facto political coup d’etat against the regime of lawful constitutional government, constitute engaging in “insurrection or rebellion against the Constitution of the United States”? We think the answer is yes.

Whether called a “rebellion,” an attempted coup d’etat seeking to displace law- ful government authority under the Constitution, or an “insurrection,” instigating, inciting and encouraging a mob to engage in acts of forcible violence directed against the ability of Congress and the Vice President to carry out their constitutional du- ties—and then refusing to intervene—such conduct is covered by Section Three, and is disqualifying. If those are indeed the facts concerning Donald Trump’s (and others’) efforts to overthrow the election—and we think they are—such conduct triggers the disqualification rule of Section Three.

Whether other federal and state officeholders—members of Congress, state legislators, past or present state and federal executive and judicial officers—engaged in conduct constituting “insurrection” or “rebellion” (including meaningful action in deliberate furtherance of an attempted coup against lawful constitutional govern- ment), or gave “aid or comfort” (approval, encouragement, support) to others who did, might sometimes involve more difficult questions of fact and judgment. But they are the questions Section Three compels us to ask, and to answer. Where such evalua- tions and judgments have been made by actors exercising legitimate authority to make them (as discussed in Part II) and fall within the fair range of Section Three’s meaning, those judgments are entitled to full legal effect.

A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies”

What is the proper, original public meaning of “insurrection” and “rebellion” as used in Section Three? Of having “engaged in” such conduct? Of having given “aid or comfort” to “enemies”?

Because the terms are capacious and the evidence is sprawling, we will start by proposing our working definitions for these terms. We then show how they are largely consistent with standard sources for discerning the meaning of constitutional text: contemporaneous definitions of these terms; usage elsewhere in the Constitu- tion; and especially contemporaneous public, political, and legal usage of the terms. This last category, which is especially instructive, includes usages from President Lincoln, legislation adopted and sometimes implemented by the Civil War Congress (both the 1862 “Ironclad” oath and the Second Confiscation Act), and the significant mid-Civil-War decision of the Supreme Court in The Prize Cases. We also consider, albeit in somewhat more abbreviated fashion, statutes and usages leading up to the Civil War, including the Insurrection Act of 1795 as amended, and an important se- ries of exclusions from Congress itself, as well as the relevant legislative history of

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Section Three, and a few scattered post-enactment applications of Section Three it- self.

1. Working definitions

We begin by offering working definitions of the terms insurrection and rebel- lion as used in Section Three and of what might constitute “engaging in” such conduct or giving “aid or comfort” to others who do.

Insurrection is best understood as concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect. The term “insur- rection” connotes something more than mere ordinary lawbreaking. It suggests an affirmative contest with, and active resistance to, the authority of the government. It is in that sense more than just organized resistance to the laws—more than just a protest, even one involving civil disobedience. Rather, it is organized resistance to the government. Insurrection is also more than mere “protest” in that it implies some element of forcible resistance. It is something more than a mere spontaneous, disor- ganized “riot.”225 Insurrection suggests at least some degree of coordinated, concerted action. The term also implies something more than acts of solitary individuals: to qualify as an insurrection the acts in question must involve some form of collective action, even if not an advance plan.

At the same time, insurrection may fall short of outright rebellion—even as the terms overlap and might bleed into each other—in that an insurrection might not seek to overturn, overthrow, or displace the government itself, in whole or in part (as a rebellion does). As the Supreme Court put it in The Prize Cases, in 1863: “Insurrec- tion against a government may or may not culminate in an organized rebellion.”226

Rebellion is thus closely related to insurrection, but perhaps not quite identical in meaning. A rebellion is arguably broader in its reach than an insurrection: rebel- lion implies an effort to overturn or displace lawful government authority by unlawful means. (In the case of secession, or a declaration of independence, the rebellion is an effort to free those engaged in rebellion from the authority of the existing lawful gov- ernment.) Rebellion is something beyond mere resistance to government authority in a particular instance or set of instances. A rebellion seeks to replace the existing re- gime, not just resist its law-executing authority. Rebellion involves repudiation, to some degree or another, of the regime’s authority, legitimacy, or validity. It is a chal- lenge, direct or indirect, to the regime itself. The South’s attempted secession was a species of rebellion—an attempt to overturn the authority of the Constitution and government of the United States by the states asserting the right to secede. Likewise, an attempted coup d’etat is arguably also a species of rebellion—an effort to displace,

225
226 2 Black (67 U.S.) 635, 667 (1863).

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10 Documentary History of the Ratification of the Constitution 1296 (Statement of Madison) (“A

riot did not come within the legal definition of an insurrection”).

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replace, upend, or overthrow the existing lawful regime and substitute different au- thority in its stead.

The term rebellion can also imply a competing claim to legitimacy. “Rebellion” thus seems to carry a stronger political-claim-of-right valence than does “insurrec- tion.”227 Crucially, however, the fact that an insurrection or rebellion claims political or moral legitimacy—as the American Revolution did; indeed, as the South’s seces- sion did—does not make it any the less an insurrection or rebellion. The fact that an attempted coup d’etat, or declaration of independence, or secession, is claimed to be a “vindication” or “restoration” of rightful governmental authority—or asserted to be a pre-emptive effort to thwart some other person’s or group’s alleged wrongful asser- tion of authority—does not immunize such action from the legal characterization of rebellion against the regime. If somebody in fact participates in an attempt to over- throw the government, it makes no difference that he might think himself in the right for doing so, see himself as an agent for preserving lawful government, or view his acts and intention not as “rebellion” but restoration. Mistake of law is no defense to a coup d’etat. The South offered a variety of constitutional legal theories in defense of the supposed lawfulness of secession as an act for the vindication of its believed rights.228 That did not make its acts of rebellion any less acts of rebellion.

As to the overlap and distinction between insurrection and rebellion our work- ing definition is more tentative. It is possible that a rebellion is simply a special case of an insurrection, in the way that a square is a special case of a rectangle. But it is also possible that the term rebellion is not necessarily limited to regime change by

227 Though it is possible that this connotation is anachronistic. See infra note 247.
228 For important accounts and discussion of Southern arguments for the constitutional propriety and validity of secession, on a variety of asserted grounds, see James M. McPherson, Battle Cry of Free- dom: The Civil War Era 234-236 (1988) (summarizing Southern constitutional and political theories); Daniel Farber, Lincoln’s Constitution 57-91 (2003) (emphasizing arguments of states’ rights to inter- position, nullification, and secession generally); Michael Stokes Paulsen, Lincoln and Judicial Author- ity, 83 Notre Dame. L. Rev. 1227, 1270-1277 (2008) (setting forth Southern leaders’ constitutional arguments that Lincoln’s stance against the Dred Scott decision, against judicial supremacy, and against extension of slavery violated the judicially settled constitutional rights of slaveholding persons and states); Kenneth M. Stampp, The Concept of a Perpetual Union, 65 J. Am. Hist. 5-53 (June 1978) (providing detailed history of constitutional and political arguments over the nature of Union and the validity of secession); David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829- 1861, at 228-237 (2005) (discussing and evaluating the constitutional arguments for and against the validity of secession). For the case against the constitutionality of secession, see generally 2 Abraham Lincoln, Speeches & Writings, 1859-1865: Speeches, Letters, Miscellaneous Writings, Presidential Messages & Proclamations, at 217-218 (First Inaugural Address, March 4, 1861); id. at 254-258, 260- 261 (Message to Congress, July 4, 1861); see also Michael Stokes Paulsen, The Civil War as Constitu- tional Interpretation, 71 U Chi. L. Rev. 691, 703-715 (2004) (reviewing Daniel Farber, Lincoln’s Con- stitution) (distilling and building on Lincoln’s arguments); Kesavan & Paulsen, West Virginia, supra note 127, at 303-311 (same). For further background, see generally William W. Freehling, The Road to Disunion: Secessionists at Bay 1776-1854 (1990), and for a comprehensive exposition of the South- ern view, see Alexander M. Stephens, A Constitutional View of the Late War Between the States; Its Causes, Character, Conduct and Results (1867).

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force—and thus may occupy some ground not covered by the word “insurrection” (which, we have suggested, must be forcible). There are such things as “bloodless coups”: actions that effectively displace or upend the prior constitutional order with- out shots being fired, but that nonetheless are in unlawful defiance or repudiation of the existing legal order.229

To illustrate this hypothesized distinction between insurrection and rebellion: Imagine that the Southern attack on Fort Sumter in April 1861 had preceded any declared right to secession. The attack would have been an act of insurrection—an exercise of concerted, forcible defiance of the authority of the Union government—but not necessarily outright rebellion. Conversely, the ordinances of secession adopted by state conventions in the South in 1860 and 1861230 preceded (mostly) any acts of ac- tual forcible resistance to the authority of the United States to execute the laws. The secession ordinances might still immediately constitute acts of “rebellion,” even be- fore any accompanying violence. In short: Sumter without secession would have still been insurrection. Secession without Sumter was already rebellion. Put the two events together—acts of forcible insurrection and declarations of avowed rebellion frequently travel in pairs (as they obviously did with the Civil War)—and it becomes difficult to distinguish “insurrection” from “rebellion.” The overlap of the two terms in theory becomes complete in practice.

In the end, however, we do not wish to make too much of the ways in which the terms differ in shades of color and in their implication. The coverage of the terms overlaps substantially. Sometimes, the terms, occupying much of the same ground, seem capable of being used almost interchangeably. Indeed, the bigger picture point for understanding Section Three is that “insurrection” and “rebellion,” in tandem, cover pretty much the entire terrain of large-scale unlawful resistance to government authority.

So much for our working definitions of “insurrection” and “rebellion.” What does it mean to have “engaged in” such conduct? We believe one has “engaged” in insurrection or rebellion when one has been actively involved in the planning or exe- cution of intentional acts of insurrection or rebellion; or when one has knowingly pro-

229 Indeed, one might characterize the process of adoption of the U.S. Constitution, replacing the re- gime of the Articles of Confederation, as a peaceful political coup d’etat – an act of “rebellion” if judged by the pre-existing law, but morally and politically justified by the failure of the prior regime and Lockean notions of self-governance, and subsequently legalized by its own success. See generally Paulsen & Paulsen, supra note 30, at 3-8, 17-20; Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J. L. & Pub Pol’y 818, 821, 844, 850 (2015).

230 The seceding states adopted their secession resolutions by state “conventions,” purporting to paral- lel the process by which the states ratified the Constitution. See McPherson, supra note 228, at 234- 284 (describing secession actions of the ten states that purported to secede from the Union). The se- cession ordinances of the South were self-consciously styled after the Declaration of Independence, which was obviously an act of formal legal rebellion.

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vided active, meaningful, voluntary, direct support for, material assistance to, or spe- cific encouragement of such actions. Such planning, participation, support, assis- tance, or encouragement may be in the form of either words or deeds, as long as the person who has “engaged in” such activities embraced the objectives of the insurrec- tion or rebellion in question and did things that contributed in a meaningful way to advancing those objectives.231 (There is obvious overlap here with the closely related concept of having given “aid or comfort” to the nation’s enemies, which we discuss presently.)

Of course, there are also important limits to how far the concept of having “en- gaged in” insurrection or rebellion extends. Mere passive acquiescence, resigned ac- ceptance, silence, or inaction is not typically enough to have “engaged in” insurrection or rebellion. An exception to this limitation might exist where a person possesses an affirmative duty to speak or act. Further, mere abstract advocacy of, or theorizing concerning, the desirability of insurrection or rebellion, without more, is not the same as actually engaging in it. We think this is true even though the First Amendment does not formally constrain Section Three: it is simply the best understanding of Sec- tion Three’s terms.

Then there is the related question of what constitutes having given “aid or comfort” to “the enemies thereof.” This reads as a separate, independent ground for disqualification: Section Three is triggered by having engaged in insurrection or re-bellion “or” having given aid or comfort to enemies. This language, of course, closely echoes the earlier constitutional language of the Treason Clause.232

In many cases, giving “aid or comfort” to enemies will be similar to the kind of conduct that counts as having “engaged in” insurrection or rebellion through inten- tional, active assistance. If there is a difference, it is that the term “aid or comfort” reinforces and emphasizes Section Three’s coverage of indirect but material assis- tance. Such material assistance—possibly including expression supporting, encour- aging, counseling, or promoting the enemy—might more naturally fall into Section Three’s “aid or comfort” language, even where it might be debatable whether to char- acterize such conduct as directly “engag[ing] in” insurrection or rebellion.

231 This working definition of having “engaged in” wrongful activity resembles familiar common law understandings of accomplice liability in the area of criminal law, which typically resulted from the combination of (1) assistance to unlawful conduct (with “assistance” including uttering words of en- couragement to, or agreeing not to interfere with, such conduct) and (2) the intention to further such unlawful conduct). Federal criminal law today is to similar effect. 18 U.S.C. § 2(a) (2012) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”). We think it is also generally supported by background mens rea principles. See William Baude & Stephen Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1108 (2017). That said, the lesson of the Civil War also suggests one important limitation: there is no mistake-of-rebellion defense. See text accompanying infra note 420.

232 U.S. Const. art. III, § 3, cl. 1 ( “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”)

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Additionally, while Section Three uses some language paralleling that con- tained in the Treason Clause, Section Three is by no means limited to the constitu- tional crime of treason. “Insurrection” and “rebellion” are their own things, distinct from “treason.” While some acts of insurrection and rebellion might also constitute treason they need not do so in order to be encompassed within Section Three. So even if “aid or comfort” in Section Three connotes the same type of assistance-and-embrace principles as “Aid and Comfort” in Article III’s Treason Clause,233 the relevant con- duct to which such assistance is given might well differ. (And, as noted earlier, it is plain that Section Three requires no prior criminal-law conviction, for treason or any other defined crime, as a prerequisite for its disqualification to apply.)

Finally, aid or comfort to whom? “[T]he enemies thereof.” We believe that “en- emies” as employed in Section Three, embraces enemies both foreign and domestic. That now-familiar phrase (“enemies foreign and domestic”) comes from the “Ironclad Oath,” written into law in 1862, in the midst of the Civil War,234 and it seems clear from the political context of Section Three, enacted in the wake of a domestic civil war, that domestic enemies are enemies. It is almost unthinkable that Confederate rebels would not have been thought “enemies” in the sense employed by the text.235 Given the history and context of Section Three “enemies” seems to include the domes- tic rebels and insurrectionists just described earlier in the sentence.236

Our sense of the whole—of Section Three’s substantive terms triggering dis- qualification for those who have engaged in the conduct described—is that Section Three is quite sweeping, using overlapping terms to cover several different charac- terizations of major collective resistance to the authority of government under the Constitution. Whether it be called “insurrection” or “rebellion”; and whether a cov- ered individual is thought to have “engaged in” such activity or given “aid or comfort” to “enemies” engaging in such activity, Section Three’s disqualification is triggered. The language is not unlimited, to be sure. But the broad and overlapping terms are not intended to be hospitable to loopholes or artful, narrow, technical evasions.

233 See infra note 253.
234 See infra Part IV.A.4.b.ii.
235 What is the referent of “enemies thereof”? Does “thereof” refer to enemies of the United States or enemies of the Constitution of the United States? We think this replicates the question of what “the same” refers to, earlier in the sentence, and presents the same issue of minor and seemingly inconse- quential ambiguity. (Does “insurrection or rebellion against the same” refer to insurrection or rebellion against “the United States”? On balance, we think that it probably makes little practical difference: rebellion against the United States and rebellion against the Constitution of the United States will often amount to the same thing; either one is capable of being considered an instance of the other.) Whatever the answer, it should be the same for both – “against the same” and “thereof” refer to the same thing. And given that the Treason Clause refers to “enemies” of “the United States,” it seemsfairly likely that Section Three does too.
236 See also, e.g., Section Two of the Second Confiscation Act, discussed infra Part IV.A.4.b.ii.

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Finally, let us reiterate one consequence of Section Three’s breadth and capa- ciousness. Because Section Three’s terms possess a range of meaning, both a deter- minate core and a fuzzier periphery, we need a second-order rule concerning the au- thority of decisionmakers to act on the basis of fair interpretations of indefinite terms. We think that the general rule of our constitutional order is that political officials may take actions premised on fair interpretations of indefinite terms, and that when they do so, their actions cannot rightly be held “unconstitutional” by the courts, pre- cisely because they fit within the fair range afforded by the Constitution. Where the Constitution admits of a range of choice, political authorities may exercise choices within that range.

This is foundational to our constitutional law.237 It is the premise of judicial review as set forth in Marbury v. Madison, which justifies setting aside the acts of other branches only because, and only to the extent to, they deviate from the Consti- tution’s meaning. It is classically illustrated by the Court’s reasoning in M‘Culloch v. Maryland,238 which upheld Congress’s power to create the Bank of the United States because a generation of political actors had acted within the fair range of meaning of constitutionally granted powers.

And this principle means, as a practical matter, that the breadth of Section Three’s broad terms cannot be ignored, or artificially limited, by judicial construction. Where those charged with responsibilities that involve applying Section Three’s terms have given that language its full legitimate sweep, that breadth must be hon- ored.

We now canvas—perhaps too briefly and yet at too great a length—some of the evidence supporting these working definitions.

2. Contemporaneous Dictionary Definitions

237 See, e.g., Paulsen, Rules for Its Own, supra note 9, at 858 (arguing that where constitutional lan- guage states a general principle, “actions of government that fall within the scope of judgment or dis- cretion admitted by the breadth with which that principle is expressed do not violate the Constitution, and are thus allowable”); Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J.L. & Pub. Pol’y 991, 995 (2008) (arguing that “textual imprecision or generality often admits of a range of choices” and that the correct constitutional answer in such circumstances “is that the legislature must be permitted to choose from options within that range”; thus, “the more indeterminate or under-deter- minate the range of a constitutional provision, the broader the duty of the courts to defer to what the legislature has enacted”); Kesavan & Paulsen, Secret Drafting History, supra note 9, at 1129-30 n.54 (2003); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 333 (1994); Baude & Sachs, Law of Interpretation, supra note 231, at 1120 (de- scribing “the presumption of constitutionality” as a rule of unwritten law); William Baude, Constitu- tional Liquidation, 71 Stan. L. Rev. 1, 35-36, 44 (2019). Again, we bracket any differences in emphasis between our respective views of the adjudication of ambiguities.

238 17 U.S. (4 Wheat.) 316 (1819),

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As we have said, the task of ascertaining true constitutional meaning consists of seeking out the objective, original meaning of the words and phrases of the text: that is, the meaning Section Three’s terms and structure would have had in the legal system at the time. A starting point for such an inquiry—though not the ending point—is to look at contemporaneous dictionary definitions. (We think that evidence of contemporaneous political and legal usage of words and phrases contained in the constitutional text is actually quite often stronger evidence of original, objective lin- guistic meaning: it can serve as a kind of operational, practical concordance that may “define” terms more precisely in their application than can a cold dictionary defini- tion.)

Nineteenth century dictionaries contain definitions of “insurrection” and “re- bellion” that substantially corroborate our working definitions. Webster defined “in- surrection” as “[a] rising against civil or political authority; the open and active oppo- sition of a number of persons to the execution of law in a city or state.”239 Rebellion was “[a]n open and avowed renunciation of the authority of the government to which one owes allegiance.”240

Importantly, Webster also noted several distinctions between these and other terms. In defining rebellion, he distinguished an insurrection as “a rising in opposi- tion to a particular act or law, without a design to renounce wholly all subjection tothe government,” while a rebellion was a more categorical “attempt to overthrow the government, to establish a different one or to place the country under another juris- diction.”241 And in defining insurrection, Webster noted that insurrection is “equiva- lent to sedition, except that sedition expresses a less extensive rising of citizens.”242 This suggests a spectrum from sedition (not covered by Section Three) to insurrection to rebellion (both covered).

At the same time, Webster also conceded some overlap in these terms, writing that “[i]nsurrection may be, but is not necessarily, rebellion”243 and that despite these technical distinctions, “[i]nsurrection is however used with latitude as to comprehend

239 1 Noah Webster, American Dictionary of the English Language 111 (1828, photoreprint 1993) (“In- surrection”); see also Dr. Webster’s Complete Dictionary of the English Language 702 (Chauncy A. Goodrich and Noah Porter, eds. 1864) (similar); 1 John Boag, A Popular and Complete English Dic- tionary 727 (1850) (similar).

240 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also Webster’s (Porter 1864), supra note 239, at 1094 (similar); 2 Boag, supra note 239, at 319 (similar).
241 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 1 Boag, supra note 239, at 727; 2 id. at 319 (similar).

242 1 Webster (1828), supra note 239, at 111 (“Insurrection”). For comparison, Webster defined “Sedi- tion” as: “A factious commotion of the people, or a tumultuous assembly of men rising in opposition to law or the administration of justice, and in disturbance of the public peace. Sedition is a rising or commotion of less extent than an insurrection, and both are less than rebellion . . .” 2 Webster (1828), supra note 239, at 66 (“Sedition”).

243 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 2 Boag, supra note 239, at 319 (sim- ilar).

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either sedition or rebellion.”244 This suggests a great deal of potential breadth and overlap in these terms.

Along similar lines, a prominent mid-century legal dictionary, John Bouvier’s Law Dictionary in its 1868 edition, contains detailed definitions of insurrection, re- bellion, and aid and comfort. “INSURRECTION” was defined simply as “[a] rebellion of citizens or subjects of a country against its government.”245 “REBELLION” is cor- respondingly defined: “The taking up arms traitorously against the government. The forcible opposition and resistance to the laws and process lawfully issued.”246 Bouvier’s thus treated “insurrection” and “rebellion” as nearly interchangeable terms, both in- volving some degree of concerted and forcible opposition to the authority of the law- fully constituted government but not clearly distinguishing between them.247

Bouvier’s dictionary also offers an instructive definition of “AID AND COM- FORT” as “[h]elp, support, assistance, counsel, encouragement.” The entry adds this discussion, noting the lack of U.S. judicial interpretation at the time but a generally accepted English background understanding of the term:

The constitution of the United States, art. 3, s. 3, declares that adhering to the enemies of the United States, giving them aid and comfort, shall be treason. These words, as they are to be understood in the constitution, have not received a full judicial discussion. They import, however, help, support, assistance, countenance, encouragement. The word aid, which occurs in the stat. Westm. 1, c.14, is explained by Lord Coke (2 Inst. 182) as comprehending all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act ...248

244 1 Webster (1828), supra note 239, at 111. Daniel Hemel argues that “Webster’s definition of ‘insur- rection’ seems implausibly broad for Section 3 purposes.” See Hemel, How-to Guide, supra note 5.
245 “Insurrection” in 1 John Bouvier. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union 729-730 (Philadelphia, G.W. Childs, 12th ed., rev. and enl. 1868).

246 “Rebellion” in 2 Bouvier (1868), supra note 245, at 415 (emphasis added).
247 See also Joseph Worcester, A Dictionary of the English Language 764, 1190 (1860) (generally equat- ing insurrection and rebellion). Elsewhere in this edition, Bouvier drew a distinction in connotation between “REBEL” and “INSURGENT,” suggesting that “rebel is always understood in a bad sense, as one who unjustly opposes the constituted authorities; insurgent may be one who justly opposes the tyranny of constitute authorities,” and thus that “[t]he colonists who opposed the tyranny of the Eng- lish government were insurgents, not rebels.” “Insurgent” and “Rebel” in 1 Bouvier (1868), supra note 245, at 729; 2 id. at 415.

In a much later edition, Bouvier’s drew a distinction between insurrection and rebellion as two different varieties of “actual and open resistance to [government] authority.” Insurrection was “an ac- tual uprising against the government” while rebellion “goes beyond insurrection in aim” and attempts actually to overthrow the government authority in question. “Insurrection” and “Rebellion,” in 2 Bou- vier’s Law Dictionary & Concise Enycl. (Rawles Rev., 1897). Lynch misstates the date of this edition as 1867, and thus mistakenly cites it as “contemporarily authoritative.” Lynch, supra note 5, at 167 n. 80.
248 “Aid and Comfort” in 1 Bouvier (1868), supra note 245, at 107.

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This tends to confirm our broad construction of “aid or comfort” as encompassing many kinds of intentional support, akin to the common law.

3. Intratextualism

In some cases, the Constitution can also serve as its own internal dictionary. The meaning of a constitutional term in one part of the document can inform its meaning in another, either because of the complete (or near) copying of one constitu- tional text by another or by virtue of subtle contrast, refinement, or qualification in a term’s usage. (Professor Akhil Amar has dubbed this method of interpretation “Intra- textualism.”)249 Chief Justice Marshall, for example, famously employed this method in M‘Culloch v. Maryland as part of his argument for the constitutionality of Con- gress’s chartering of a Bank of the United States.250

Might the Constitution’s other usages of terms that also appear in Section Three serve as such markers of meaning for “insurrection” and “rebellion,” and “aid or comfort” to enemies, as those terms are used in Section Three? A quick canvass suggests only limited help.

The word “insurrection” appears in the Militia Clause of Article I, Section 8 of the original Constitution: Congress is given the enumerated power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”251 The word “rebellion” appears in the Writ Suspension Clause of Article I, Section 9: “The Privilege of the Writ of Habeas Corpus shall not be sus- pended, unless when in Cases of Rebellion or invasion the public Safety may require it.”252 In neither instance, however, does the context suggest any particular definition or explication of the term. They are thus of little direct assistance to the task of un- packing the meaning of Section Three.

As noted, the language in Section Three’s alternative trigger—the giving of “aid and comfort” to enemies—borrows the nearly identical language of the Treason Clause of Article III. But once again, the similar language in Article III is not self- defining. Nor was there an established, settled, authoritative judicial interpretation

249 Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999).
250 M‘Culloch, 17 U.S. at 413-414. In construing the scope of the legislative power conferred by the Necessary and Proper Clause, Marshall noted how the word “necessary” was used differently, and subjected to different qualifications, in other parts of the Constitution and found that those differences were useful in interpreting the clause at hand. For discussion of the prominence of intratextual and structural-logic, whole-text arguments in some of Chief Justice Marshall’s most significant Supreme Court opinions, including Marbury and M‘Culloch, see Paulsen, Marbury, supra note 66, at 2711; see also Michael Stokes Paulsen, The Plausibility of Personhood, 74 Ohio St. L. J. 13, 33 n. 72 (2013).
251 U.S. Const. art. I, §8 cl. 15.
252 U.S. Const. art. I, §9 cl. 2.

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of this language that might have been understood specifically to define “aid and com- fort” as a constitutional term-of-art at the time of the framing of the Fourteenth Amendment.253 Moreover, in the 1860s, the pairing of “aid” and/or “comfort” had be- come ubiquitous in legal and public discourse as a general allegation of improper as- sistance, making it still less clear that it was perfectly coterminous with the law of the Treason Clause.254

Finally, the words “insurrection” and “rebellion” also appear elsewhere in the Fourteenth Amendment itself, but again in ways that give little external light on Section Three. A person’s “participation in rebellion” is specified in Section Two as an allowable ground for denying the right to vote that does not trigger a reduction in a state’s representation as a consequence.255 Section Four of the amendment prohibits payment of debts or obligations “incurred in aid of insurrection or rebellion.”256 These neighboring sections use slightly different phrases for the behavior they cover (“par- ticipation” and “engaged in”; “aid or comfort” and “in aid of”), but it is difficult to say if the variations are meaningful.

4. Contemporaneous Public, Political, Legal Usage
Perhaps the best evidence of the public meaning of the terms “insurrection,”

253 Perhaps the most notable U.S. treason case to date was Ex parte Bollman, in which Chief Justice Marshall delivered an opinion for the Court granting habeas to two of the co-conspirators in Aaron Burr’s plot to seize Spanish territory in the American (then-)southwest and attempt to form his own independent nation. Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). The opinion combined a relatively narrow construction of the substantive crime of treason (in part because of Article III’s text (“only in levying war”) with a relatively broad construction of complicity. Thus on one hand: “However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason,” id. at 126, but on the other hand, “if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” Id. Ex parte Bollman was an early and prominent legal landmark supporting some key propositions that would have been familiar to lawyers during the Civil War era: first, that there are such things as conspiracies and plots to “overturn the government,” in whole or in part, that though they might not qualify as treason, remain great and culpable legal wrongs; second, that the crime of treason specifically requires showing the existence of an armed assembly to employ force for a treasonable purpose; third, that one may be said to haveengaged in (or provided “aid and comfort” to) treason where one is in league with the conspiracy and done any act, large or small, or played “any part,” however remote, to further that plot. Whether or not Bollman’s construction was sufficiently established to be read in to Section Three itself, it was cited occasionally in the 1860s Congress. See, e.g., 37th Congress 2nd Session Cong. Globe 414 (1862) (statement of Sen. Sumner) (citing Bollman passage quoted above during the proceedings to expel Senator Jesse Bright for writing a letter to Jefferson Davis).

254 See Harold Holzer, Lincoln and the Power of the Press: The War for Public Opinion 361 (2014) (referring to the phrase “aid and comfort to the enemy” (by the press) as “that catch-basin phrase again.”).
255 U.S. Const. amdt. XIV, sec. 2.

256 U.S. Const. amdt. XIV, sec. 4.

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“rebellion,” and “engaging in,” as they came to be used in Section Three, consists of their common and frequent public, political, and legal usage in the 1860s—the years immediately surrounding the adoption of the Fourteenth Amendment—by a variety of actors: by President Abraham Lincoln, in prominent speeches, messages, public letters, and proclamations; by Congress, in major acts of legislation; and by the Su- preme Court, in the landmark decision in The Prize Cases. The consistent pattern of usage was to treat the actions of the South as being, legally, “insurrection” or “rebel- lion.” A wide range of actions supportive of secession appears to have constituted “en- gaging in” or giving “aid or comfort” to rebellion or insurrection.

This leads us to what we think an obvious “sure shipwreck”257 for understand- ing Section Three’s terms. Whatever else “insurrection or rebellion” might embrace, they certainly embrace the cluster of actions with which Section Three was, histori- cally, immediately and directly concerned: first, the attempted secession from the au- thority of the U.S. Constitution—the effort to displace the lawful authority of the United States in favor of the supposedly “seceded” state governments and their con- federation into the “Confederate States of America”; and second, engaging in forcibleresistance to the authority of the United States to execute the laws of the United States—armed resistance to the Constitution, specifically in the shape of waging civil war against the nation. Conduct participating in, advancing, supporting, or assisting either secession or armed resistance to U.S. authority constituted “engaging in” or giving “aid or comfort to” the Union’s enemies. Section Three encompasses all such actions in support of secession and civil war as included within its substantive trig- ger.

a. President Lincoln

An extremely important contemporaneous source for understanding the public constitutional meaning of “insurrection” and “rebellion” in 1860s public discourse is President Abraham Lincoln. Lincoln looms large in the public understanding of the day concerning the meaning of those terms. Lincoln consistently characterized seces- sion and the Civil War as acts of insurrection or rebellion, avoiding wherever possible treating “secession” as if it were a separate legal category. Secession, for Lincoln, was a Southern euphemism for rebellion and treason. The Confederacy had no valid legal existence: what was going on with the Civil War was properly called insurrection and rebellion—the lawless attempt to overthrow the constitutional processes of the United States and displace lawful government with unlawful governments.

Lincoln was insistent and relentless—and very public and prominent—on this point, consistently so, across a range of contexts. For instance, the Civil War was emphatically not, in Lincoln’s view, a “war” between the United States and another

257 Morse, supra note 224.

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sovereign.258 It was not subject to Congress’s Article I, section 8, clause 11 power to “declare War,” but was rather an illegal rebellion—a “giant insurrection”—to be sup- pressed by executive authority pursuant to Congress’s Article I, section 8, clause 15 power to “provide for calling forth the Militia to execute the Laws of the Union, sup- press Insurrections and repel Invasions.”259

Consider just a few prominent and illustrative statements: In his First Inau- gural Address, on March 4, 1861, Lincoln, after setting forth arguments that “no State upon its own mere motion can lawfully get out of the Union,” concluded that “acts of violence within any State or States against the authority of the United States” are “insurrectionary or revolutionary, according to circumstances.”260 Following the at- tack on Fort Sumter, Lincoln’s April 15, 1861 proclamation calling forth the militia similarly characterized the attack as fitting the statutory definition of insurrection.261And in his July 4, 1861 Message to Congress, Lincoln labelled the South’s purported secession a “giant insurrection” and, vividly, as “rebellion ... sugar coated.” The “so- called ‘Confederate States’” had formed an “insurrectionary government.”262 In the same July 4 Message, Lincoln used the nature of secession as rebellion to justify sus- pension of the writ of habeas corpus as authorized by the terms of Article I, section 9, clause 2 of the Constitution, which used exactly that language of “rebellion.”263 Lin- coln’s use of terms was significant and pulled no punches: efforts to displace lawful government authority with unlawful government—no matter how labelled by their perpetrators, no matter how deluded participants might be as to the lawfulness or propriety of their actions—were insurrectionary; such declarations and actions con- stituted rebellion.

Two years later, at the height of the war, Lincoln returned to the characteriza- tion of the South’s actions as “rebellion” (and the constitutional question of power to suspend habeas corpus) in a notable incident testing the limit of Union military sup- pression of anti-war and disloyal speech. In a June 12, 1863 public letter, nominally addressed to Erastus Corning, Lincoln defended the military arrest of former Ohio

258 On Lincoln’s understanding of secession as unconstitutional and his resulting conception of the Civil War as, legally, a situation of insurrection or rebellion (not declared war) see sources cited in note 228. That does not exclude the existence of full constitutional Commander in Chief Clause powers in the situation of actual civil war, however. Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief Power, 40 Georgia L. Rev. 807, 814-823 (2006).

259 Compare U.S. Const. art. I, §8, cl. 11 (Declare War Clause) with U.S. Const. art. I, §8, cl. 15 (power “to provide for calling forth” the Militia for law execution and to suppress insurrections”). Congress’s exercise of this power – the Insurrection Acts of 1795 and 1807 – is discussed infra Part IV.A.5.a.
260 Abraham Lincoln, First Inaugural Address (March 4, 1861), IV Complete Works of Lincoln (“CWL”) 262, 265.

261 Abraham Lincoln, Proclamation Calling Militia and Convening Congress (April 15, 1861), IV CWL 331, 332.
262 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), IV CWL 421, 427-428, 432-437.

263 Id. at 429-431 (emphasis added).

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Congressman Clement Vallandigham, a notorious racist and prominent “Copper- head” pro-South, anti-Union northerner, who had made a public speech vehemently condemning the Emancipation Proclamation and the propriety of the Union’s war effort.

Lincoln distinguished law enforcement arrests from detentions in cases of re- bellion. Wrote Lincoln: “Ours is a case of Rebellion—so called by the resolutions before me—in fact, a clear, flagrant, and gigantic case of Rebellion.” And that, Lincoln con- cluded, was what allowed suspension of habeas corpus.264 In the course of his argu- ment, Lincoln described rebellion as “sudden and extensive uprisings against the gov- ernment.”265 This is a useful description that supports our working definition: Rebel- lion is an “uprising.” It is something more than mere protest. It is, often, “sudden.” It is “extensive.” It is directed “against the government.” Rebellion is something more than ordinary law violation and that is why it is treated differently by the Constitu- tion.

How did Vallandigham’s actions associate him with the rebellion? Lincoln made a forceful case that even pure speech might constitute assistance to rebellion— if it were advocacy producing direct, material effects benefitting the rebel enemy cause, by tangibly harming the military authority engaged in trying to suppress that rebellion. In the Corning Letter, Lincoln wrote that, “under cover of ’Liberty of speech,’ ‘Liberty of the press,’ and ‘Habeas corpus,’” rebel sympathizers “hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways.”266 Claims of freedom of speech could improperly furnish a shield or cloak for wrongful conduct; they supplied “cover” for, and thus assisted, rebellion and insurrection.

Lincoln expanded these arguments in yet more arresting ways. He suggested that, in some circumstances, a person’s refusal to speak out against rebellion might be tacit support for such rebellion: a “man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood. If not hindered, he is sure to help the enemy.” He also hinted at regret that he had not earlier arrested prominent oath-breaking officers now “occupying the very highest places in the rebel war service,” such as John Breckinridge, Robert E. Lee, Joseph Johnston, and John Magruder: “I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.”267 Lincoln’s position seems clear, if per- haps a bit unsettling: claims of freedom of speech did not invariably prevail over the

264 U.S. Const. art. I, §9, cl. 2.
265 Abraham Lincoln, To Erastus Corning and Others (June 12, 1863), VI CWL 260, 264 (emphasis added).
266 Id. at 263.
267 Id. at 265.

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imperative constitutional necessity of suppressing rebellion; where words fueled in- surrection, or thwarted its suppression, or signaled disloyalty, the speaker was aiding the enemy. Such expression was not necessarily privileged.

This is not exactly an expansive conception of First Amendment rights. Lincoln fully recognized the difficulties with his stance. He did not ignore the tension between his conclusions and peacetime free speech principles but argued that the tension could be reconciled.268 In a colorful metaphor, Lincoln ventured:

I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good food for a well one. Nor am I able to appreciate the danger apprehended by the meeting that the American people will, by means of military arrests during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the Press, the Law of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefi- nite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emet- ics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.269

Lincoln also stressed a distinction between speech directed at criticism of the government’s political policy—fully protected by the freedom of speech—and expres- sion more or less directly aimed at harming the military’s recruitment and war effort. If Vallandigham had been arrested merely because he was “damaging the political prospects of the administration” or “the personal interests of the general,” that would be one thing, Lincoln observed. “[I]f there was no other reason for the arrest, then I concede that the arrest was wrong.” But as Lincoln understood it, the arrest “was made for a very different reason”—that Vallandigham was “laboring, with some ef- fect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it.” Vallandigham

268 In several respects, Lincoln anticipated later judicial free speech doctrines and decisions, such as those distinguishing pure speech from speech linked to prohibited conduct; recognizing limits on speech posing a danger of inciting to crime or lawlessness; recognizing “compelling interest” overrides in exceptional circumstances, including for reasons of national security or military secrecy; finding that government’s motives and purposes for a particular action may matter to its lawfulness; and noting where an incidental limitation on expression leaves open alternative channels for expression of the same message. See Paulsen, Civil War, supra note 228, at 698-702 & n.23 (noting how Lincoln anticipated many of the issues and exceptions contemplated by later judicial doctrine concerning the First Amendment’s freedom of speech).

269 Letter to Corning (June 12, 1863), VI CWL at 267. (Emetics referred to a medicine or substance used to induce vomiting.)

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was, in short, “warring upon the military.” He who “dissuades one man from volun- teering, or induces one soldier to desert, weakens the Union cause as much as he who kills a union soldier in battle.” Desertion was punishable by death, of course. In a famous line, Lincoln asked, rhetorically “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert?”270 Lincoln’s answer was no: “I think that in such a case, to silence the agita- tor, and save the boy, is not only constitutional, but, withal a great mercy.” 271

Lincoln continued: “If I be wrong on this question of constitutional power,” he added, “my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them -- in other words, that the constitution is not in it's application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security.”272

Lincoln thus embraced the view that material assistance to insurrection or re- bellion could in some cases take the form of effective advocacy of unlawful conduct that, if engaged in by substantial numbers, would materially advance the rebel cause or harm the military prospects of the Union. The fact that such assistance to rebellion came in the form of words did not furnish any constitutional privilege to such action. Where rebellion threatens public safety or public security, the Constitution permits restriction on advocacy furthering, supporting, or assisting such rebellion.

To be sure, one might well conclude that Lincoln went too far in his arguments in the Corning Letter or in some of his actions during the war. That is an interesting and difficult question—and not our point here. Our point is that Lincoln’s view was a prominently expressed contemporaneous understanding—and on the issues of insur- rection, rebellion, and complicity, it was consistent with his longstanding and oft- repeated views. This does not directly answer the question whether or to what extent such thinking specifically informed general public understanding of Section Three. But Lincoln’s thinking, articulated in such a public context, may well have informed the potential reach of the terms “insurrection or rebellion,” and what constitutes en- gaging in or aiding such conduct, as those terms came to be employed in Section Three of the Fourteenth Amendment.

At all events, Lincoln made clear and prominent the position that declaring secession, engaging in forcible opposition to the constitutional authority of the Union, and materially assisting others in such conduct, all constituted forms of support for and participation in “insurrection” or “rebellion.” And this stance continued through- out the war, even as the nation began to look to the war’s conclusion and to questions

270 Letter to Corning, VI CWL at 266. 271 Id. at 266-67.
272 Id. at 267.

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of the post-war status of persons who had participation in that rebellion—questions at the core of Section Three of the Fourteenth Amendment.273

b. Congress

President Lincoln was not the only public figure grappling with concepts of insurrection and rebellion during the Civil War. Similar themes can be found in the statements and actions of Congress and the Supreme Court.

Start with Congress: We think two specific enactments of Congress during the Civil War are especially probative of the understandings of “insurrection” and “rebel- lion” and of what conduct was publicly understood to constitute having “engaged in” or given assistance to rebellion. First, there is the so-called “Ironclad Oath,” adopted on July 2, 1862 as the oath one must be able to swear in order to hold federal office.274 Second, there is the “Second Confiscation Act,” adopted that same month, on July 17, 1862, to authorize legal forfeitures of property and slaves, and also to enforce disqual- ifications from federal office, by persons who had engaged in specified activities con- stituting “rebellion” or “insurrection.”275 These two enactments, and their implemen- tation to exclude former insurrectionists and rebels from future office, say much about the terms they employed.

i. The Ironclad Oath

Congress adopted The Ironclad Oath in the thick of the Civil War and it was required of most federal officeholders from 1862 to 1884.276 The text of the Oath sets forth the types of misconduct regarded as disqualifying an individual from eligibility

273 Lincoln’s characterization of Southern secession as rebellion continued throughout the war. His December 8, 1863 Message to Congress referred to the Confederacy as “the rebellion.” Annual Message to Congress (Dec. 8, 1863), VII CWL at 51 In his accompanying offer of amnesty and pardon, in the Amnesty Proclamation of December 8, 1863, Lincoln referred, repeatedly, to the “rebellion” that “now exists whereby the loyal State governments of several States have for a long time been subverted” (id. at 53), to “said rebellion and treason” (id. at 54), to “said rebellion” (id.) and to persons who had pro- vided “aid” to the “rebellion” in various forms. Interestingly, Lincoln excepted from his offer of for- giveness – in language that would seem to presage the similar terms of Section Three – “all who have left judicial stations under the United States to aid the rebellion” and “all who resigned commissions in the army or navy in the United States, and afterwards aided the rebellion.” Id. at 55. Lincoln also left to the respective houses of Congress the exclusive judgment “whether members sent to Congress from any State shall be admitted to seats.”

274 12 Stat. 502.
275 12 Stat. 589 (1862). 12 Stat. 627 (1862).
276 23 Stat. 21 (1884). There was an important exception. In 1868, Congress provided that anybody who had received amnesty from two-thirds of each house of Congress under Section Three was exempt from the Ironclad Oath and need only swear future loyalty, 15 Stat. 85 (1868), and in 1871 it added that anybody “who is not rendered ineligible to office by the provisions of the fourteenth amendment to the Constitution” yet would otherwise “not be able on account of his participation in the late rebel- lion to take” the Ironclad Oath, could take the forward-looking oath instead, 16 Stat. 412 (1871). These two provisions effectively equated the Ironclad Oath to Section Three from 1871 on.

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for federal office because he had been engaged in supporting the rebellion—an inquiry very closely parallel to that contained in Section Three of the Fourteenth Amend- ment, proposed by Congress just a few years later.

The Ironclad Oath required that prospective officeholders swear or affirm that they had not done any of several things. In that sense it did not function like a tradi- tional oath of office—a promise of future behavior—but much more like a disqualifi- cation for past misbehavior.277 It did indirectly what Section Three was soon to do directly. That makes the Ironclad Oath’s list of never-have-I-evers particularly in- structive. Here’s the oath, with its most-relevant-to-Section-Three features and phrases italicized (and with bracketed numbers inserted):

I . . . do solemnly swear (or affirm) that I have never [1] voluntarily borne arms against the United States since I have been a citizen thereof; that I have [2] voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have [3] neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended au- thority in hostility to the United States; that I have [4] not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto.

While not using the words insurrection or rebellion, the Ironclad Oath’s list of never-have-I-evers would seem strongly suggestive of how Section Three’s triggering language likely would have been understood in public usage at the time. The Ironclad Oath is not a definition of Section Three’s constitutional terms, of course. But it would appear an apt descriptive specification of the kinds of misconduct included within those terms. Under the oath, disqualifying behavior included: (1) fighting against the United States; (2) aiding or encouraging such armed hostility; (3) accepting office un- der a hostile authority (or “pretended authority”); and—a highly evocative phrase— (4) “yield[ing]” one’s “voluntary support” to “any pretended government, authority, power or constitution . . . hostile or inimical” to the United States.

The content of this oath’s requirement establishes a useful, historically prom- inent marker for the scope of Section Three: What the Ironclad Oath understood to be disqualifying for federal office, Section Three likely embraced as constitutionally disqualifying conduct for the far broader sweep of offices to which it extended.278

277 For this reason, Lincoln famously wrote: “On principle I dislike an oath which requires a man to swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of repentance. I think it is enough if the man does no wrong hereafter.” Endorsement of Abraham Lincoln in Letter from R.M. Edwards to Edwin Stanton, February 5, 1864, 7 Lincoln Papers 169.

278 The extensive overlap between the meaning of the Ironclad Oath and the Section Three disqualifi- cation is confirmed by Congress’s own interpretation and application of the oath to its own members, during and after the enactment of Section Three. These applications are detailed infra Part IV.A.5.b.

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ii. The Second Confiscation Act

Barely more than two weeks after adopting the Ironclad Oath, the Civil War Congress enacted what is popularly called the “Second Confiscation Act.” Its full title spoke explicitly in terms of insurrection and rebellion: “An Act to suppress Insurrec- tion, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes.”279

This Second Confiscation Act was a very prominent piece of legislation. It im- posed sweeping penalties, forfeitures, and disqualifications on anybody who had en- gaged in or assisted the rebellion.280 The Second Confiscation Act was long and vig- orously debated in Congress, much discussed in the press and in public discourse, objected to by many on constitutional grounds, and nearly vetoed by President Lin- coln.281 Enactment of the Second Confiscation Act gave rise to very public pressure on President Lincoln to take aggressive action against slavery in rebel states—pres- sure that helped spur Lincoln to issue his Emancipation Proclamation as an executive military order. The Second Confiscation Act was a big deal. 282

The Act itself was a complicated and somewhat confusing hodgepodge of dis- tinct provisions, combining property confiscation, emancipation, a new federal crime,

279 12 Stat. 589 (1862). See also 12 Stat. 627 (1862) (“explanatory” joint resolution).
280 An earlier act had provided for forfeiture more specifically of property or slaves actually used in service of rebellion. 12 Stat. 319 (Aug. 6, 1861).
281 See generally David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131, 1185-1195 (2006). Among many noteworthy twists and turns in the road to enactment, President Lincoln came close to vetoing the bill, preparing a veto message with his objections and signing the bill only after Congress passed an “explanatory” joint resolution (which Lincoln signed together with the bill). Lincoln none- theless appended his original draft veto message setting forth his objections. For discussion of the constitutional objections of Lincoln and others to various aspects of the bill, and his unusual course of action in signing it but nonetheless appending his objections, see id. at 1193-1194; Burrus M. Carna- han, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War 105-106 (2007) (noting Lincoln’s initial concern that the act would violate Article III’s limitations on the punishment for trea- son and the objections of others that the act was a bill of attainder); Eric Foner, The Fiery Trial: Abra- ham Lincoln and American Slavery 215-217 (2010). For Lincoln’s July 17, 1862 message to Congress, detailing his objections, see V Complete Works of Lincoln 328-331.
282 A month after the Act had been adopted, Horace Greeley published a scathing editorial titled “The Prayer of Twenty Millions,” in which he demanded that Lincoln “EXECUTE THE LAWS” faithfully with specific reference to the Second Confiscation Act. Greeley condemned Lincoln’s “mistaken defer- ence to Rebel Slavery” and his failure to rebuke his generals for having “habitually disregarded” the Confiscation Act. Lincoln replied to Greeley, equally prominently, within days, in a famous public letter dated August 22, 1862, published in a rival newspaper and “widely reprinted,” defending his course of action. V Complete Works of Lincoln 388-389; see Holzer, supra note 254, at 400-401. One month later, Lincoln issued his Preliminary Emancipation Proclamation of September 22, 1862, in which he noted and quoted provisions of the Second Confiscation Act (without invoking the statute as actual authority for his proclamation). V Complete Works of Lincoln at 434-435 (stating that “attention is hereby called to” provisions of the act but relying for authority on his powers as executive and mili- tary Commander in Chief). See also Foner, Fiery Trial, supra note 281, at 215 (noting that “the Second Confiscation Act embodied a major shift in national policy”).

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and disqualification from office. But the terms it used are especially evocative, visit- ing legal consequences on persons who “engaged in,” “incite[d],” “set on foot,” or “as- sist[ed]” “rebellion” or “insurrection” or who had “given aid or comfort” to rebellion or done acts “aiding and abetting” rebellion. The Act is practically a glossary of the terms used in Section Three of the Fourteenth Amendment proposed by Congress just four years later.

Specifically: Section 2 made it a new crime, distinct from treason, to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof” or to “give aid or comfort thereto” or to “engage in, or give aid and comfort to,” any “existing rebellion or insurrection.”283 It is worth paus- ing to parse the linguistic resemblances to Section Three, and the ways in which like terms are used and explained. Following Lincoln, secession and civil war are equated with “rebellion or insurrection.” Those terms are described as involving acts “against the authority of the United States, or the laws thereof” (a formulation closely con- forming to our working definitions). Section 2 imposes criminal liability on persons who “incite” such acts; who “set on foot” such acts; who “assist” such acts; who in any other way “engage in” such conduct; or who “give aid and comfort to” such conduct. All of these terms have close parallels in Section Three of the Fourteenth Amend- ment.

Section 3 of the Act then imposed a sweeping disqualification from future of- ficeholding—a kind of proto-Section Three of the Fourteenth Amendment: “every per- son guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States.”284 Section 5 directed the Pres- ident to seize rebel property belonging to a long list of confederate officers plus anyone in a loyal state who “shall hereafter assist and give aid and comfort to such rebel- lion.”285 Officeholding in a rebel government or military was per se blameworthy par- ticipation; but general giving of assistance or aid or comfort also qualified as partici- pation in rebellion. Section 6 provided a further authorization for seizure of the prop- erty of any person not already mentioned who, “being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion,” and, after sixty days’ notice issued by the President, did not “cease to aid, counte- nance, and abet such rebellion, and return to his allegiance to the United States.”286

283 12 Stat. 589, 590. (emphasis added). Section 2 provided penalties for conviction, which included confiscation of slaves. A modified version of this provision remains a crime today, and continues to incorporate the Confiscation Act’s disqualification from federal office, id., as well. 18 U.S.C. §2383(“

. Needless to say, a prosecution under Section 2383 of Title 18 is neither a prerequisite to nor preclusive of the self-executing application of Section Three of the Constitution.
284 12 Stat. 589, 590.
285 Id. (emphasis added.)
286 Id. at 591.

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Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority

of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the

United States.”)

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Section 7 and Section 8 provided for in rem proceedings against property “found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto,” in which case it “shall be condemned as enemies’ property.”287 And Section 9 famously emancipated slaves of persons “who shall hereafter be engaged in rebellion” against the Union or who “shall in any way give aid or comfort thereto.”288 Throughout these sections, one can see the recurrent use of terms and concepts, and synonyms for such terms, that would reappear in Section Three of the Fourteenth Amendment: “engaged in,” “rebellion,” “aid or comfort,” “abet,” “countenance,” “enemies.”

Unlike the Ironclad Oath, the Second Confiscation Act did not give rise to many opportunities for immediate application and further interpretation. In part, this was simply due to the exigencies and realities of Civil War at the time. For example, the civil forfeiture provisions contemplated in rem judicial proceedings against persons in the district where property was located. At the time, such property was often lo- cated in areas of rebel control. Often, the federal courts were not even functioning there 289 Similarly, as a practical matter, criminal prosecutions of rebels for treason and insurrection had to await Union military success. (And after success came, Pres- ident Andrew Johnson ultimately pardoned a great many offenders.)290 The Lincoln administration, focused on other matters, showed little interest in bringing legal ac- tions to enforce the Act’s specific policies. The administration, according to one scholar, “chose not to implement the law vigorously.”291 Attorney General Bates “ex- erted no more than a minimal effort to make the first and second confiscation acts work.”292 And the Act’s section authorizing limited military emancipation section was rapidly overtaken—superseded in practical effect—by President Lincoln’s far more comprehensive Emancipation Proclamation, issued pursuant to his constitutional Commander in Chief power.

But in some ways the lack of enforcement cases is beside our point here, which concerns the Act’s prominence in national discussions and its pervasive use of terms, phrases, and concepts—rebellion, insurrection, engage in, aid or comfort—that would

287 Id.
288 Id.
289 See McPherson, supra note 228, at 500 (noting confusing aspects of the Second Confiscation Act and the requirement of “in rem proceedings by district courts that were of course not functioning in the rebellious states”); Foner, Fiery Trial, supra note 281, at 215 (“For most property, [the Act] estab- lished a cumbersome judicial process that helps to explain why little land was actually seized and sold under its provisions.”). See also Silvana R. Siddali, From Property to Person: Slavery and the Confis- cation Acts, 1861-1862, at 238 (2005) (remarking that “[t]he confiscation bill that finally emerged was neither sweeping nor enforceable” though opining that “if the law had not been hobbled by its own internal inconsistencies, it might have affected the lives and property of a large majority of southern- ers.”).
290 See Eric L. McKitrick, Andrew Johnson and Reconstruction 141-152 (1960).
291 John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South 55 (2005).
292 Id. at 72; see also James G. Randall, Constitutional Problems Under Lincoln 288-292 (1926) (de- scribing minimal enforcement of the Second Confiscation Act).

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reappear in only slightly different form in Section Three of the Fourteenth Amend- ment. Like the Ironclad Oath, the Second Confiscation Act employed terminology nearly identical to that employed in Section Three of the Fourteenth Amendment. The usage of the terms in this landmark legislation we think helps explicate the meaning, in public legal context, of the language in the amendment. In the context of 1860s public legal usage, engaging in or giving aid or comfort to rebellion and insur- rection extended to a broad range of activity advancing or furthering efforts to un- lawfully upend the lawful operation of the U.S. constitutional regime. This strongly supports the conclusion that Section Three’s terms can fairly be read quite expan- sively, as embracing a broad range of conduct directed against the authority of gov- ernment under the Constitution.

c. The Supreme Court’s decision in The Prize Cases

The most important constitutional decision of the U.S. Supreme Court during the Civil War was The Prize Cases.293 There, the majority upheld the constitutionality of Lincoln’s unilateral military order, made very early in the Civil War, imposing a blockade on Southern ports. In a truly landmark decision, the Supreme Court held that the President’s war powers (including the power to impose a blockade) were trig- gered immediately, as soon as the South’s rebellion took the form of organized mili- tary resistance to the authority of the U.S. government. The President’s power to wage civil war against rebel forces derived from his delegated statutory power to em- ploy force to suppress rebellion, the Court held. A congressional declaration of war was neither a prerequisite nor legally appropriate for this type of use of force: “Thisgreatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections” but “sprung forth suddenly ... in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name.”294

The Court’s decision in The Prize Cases is today regarded as the leading judi- cial exposition of the Constitution’s allocation of war powers. At the time, the case had other hugely consequential implications: the principles set forth in the decision essentially endorsed in advance (but of course without addressing the question di- rectly) Lincoln’s constitutional justification for the Emancipation Proclamation, which he had issued earlier that year.295 The decision of The Prize Cases was a very big deal indeed.

Of special interest for our purposes is the Court’s usage and explanation—in a highly prominent legal context—of the terms insurrection and rebellion, and their relationship to war and the war powers of the national government: “Insurrection

293 67 U.S. (2 Black) 635 (1863).
294 Id. at 668-669; see also Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J. 149, 177-180 (2004).
295 Paulsen, Emancipation, supra 258, at, 814-823.

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against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government,” the majority said.296 A civil war “becomes such by its accidents—the number, power, and organization of the persons who originate and carry it on.”297 Where a rebellion has come to possess certain military characteristics, the “party in rebellion” might come to be treated as a belligerent for law-of-war purposes, even though a domestic rebellion stands on different constitutional legal ground than war with a foreign na- tion. “It is not the less a civil war, with belligerent parties in hostile array, because it may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels or traitors.”298

In a nutshell: insurrection or rebellion were forms of active resistance to the lawful authority of the government. An insurrection might be something short of out- right rebellion. But an insurrection against government authority sometimes grows into full-on “rebellion.” A rebellion, in turn, need not take the form of civil war in order to be a rebellion. But sometimes it does. At all events, rebellion seems its own distinct, more general legal concept of repudiation or attempted overthrow of the law- ful constitutional regime by unlawful means.

The Prize Cases also held that persons engaged in insurrection or rebellion could be treated as “enemies” (as well as traitors) for legal purposes. Further, the war power, such as imposition of a blockade, could lawfully affect the legal property rights of persons engaged in “commerce” that “supplies” rebels or insurrectionists—and could do so irrespective of the supposed loyalties of the property owner. Even “neu- tral” powers’ shipping could be seized when it violated a blockade: “Whether property be liable to capture as ‘enemies’ property’ does not in any manner depend on the per- sonal allegiance of the owner. ‘It is the illegal traffic that stamps it as “enemies’ prop- erty.”’299

The Prize Cases’ treatment of the concepts of insurrection and rebellion, of who constituted “enemies,” and of what actions constituted support for rebellion, would have been very much part of the legal culture of the day and provides important legal background as to how these terms would have been understood at the time of the

296 67 U.S. at 666 (emphasis added).
297 Id. at 666
298 Id. at 668.
299 Id. at 674 (quoting 3 Wash. C.C.R. 183). That said, the Court also cautioned that “ ‘enemies’ prop- erty” was “a technical phrase peculiar to prize courts, and depends upon principles of public policy, as distinguished from the common law.” Id. at 674. The point that, in a military context, property could be treated as “enemies’ property” irrespective of the allegiance of the owner was important to the law- fulness of the Emancipation Proclamation: even though Lincoln’s proclamation purported to free the slaves of all persons in rebel-controlled territory – including slaves held by persons claiming to be loyal to the Union – such “property” constituted a resource assisting or supplying the rebellion and thus could be declared seized, confiscated, and liberated as a matter of the military law of war. See Paulsen, Emancipation, supra note 258. See generally John Fabian Witt, Lincoln’s Code (2012).

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drafting of Section Three of the Fourteenth Amendment, just a few years later. In- surrection and rebellion involve varying degrees of concerted resistance to “the lawful authority of the Government,” with insurrection being the arguably somewhat lesser form and rebellion the somewhat greater. A rebellion or insurrection need not involve acts tantamount to levying war. (War is sometimes a feature of rebellion but does not define it.) The Civil War was an outgrowth of insurrection or rebellion. But the fun- damental act of rebellion remains the attempt to displace the lawful authority of gov- ernment by unlawful means. And those who give material assistance to the enemy may also suffer legal consequences.

We find the overall evidence of prominent 1860s political and legal usage of the same concepts and language as would soon be employed by Section Three—“insurrec- tion,” “rebellion,” and what it meant to “engage in” or provide “aid or comfort” to the same—highly probative of Section Three’s original public meaning. President Lin- coln, repeatedly and insistently; Congress, pointedly and consistently; and the Su- preme Court, decisively, used these terms in connection with secession, forcible re- sistance to the legal authority of the Constitution, and participation to varying de- grees in efforts to overthrow, subvert, or undermine the authority of lawful govern- ment. These usages were public, prominent, legal, and essentially undisputed within the Union. While the specific circumstances of secession and civil war gave rise to these formulations, they did not define or limit the terms’ meanings, which were more general. Secession, and civil war, were species of insurrection and rebellion—orga- nized, group resistance to the authority of government to execute the laws and at- tempts to substitute an unlawful legal regime for the lawful, constitutional one. But insurrection and rebellion were the broader categories. It is hard to avoid the conclu- sion that these 1860s Civil War usages of terms carried over into the meaning of Section Three.

5. Other Extant Statutory Sources and Notorious Examples a. The Insurrection Acts (and Insurrections Generally)

What about the Insurrection Acts themselves—the statutes that comprised the statutory authority supporting Lincoln’s use of military force to suppress secession? These statutes implemented Congress’s power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” as well as its other war powers over the army and navy. The central statute was enacted in 1795 (superseding a similar enactment in 1792) and was amended in 1807 and 1861. These statutes—the conduct they were understood to reach; the forms and degree of opposition to government authority that were believed to trigger the statutes’ appli- cation; and the circumstances in which they had been invoked and applied in the past—also would have been part of the background understanding of the term “in- surrection” as it came to be incorporated into Section Three.

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The 1795 act explicitly recited that it was enacted in part to carry into execu- tion the power to “suppress insurrections.” But it also applied to repel invasions and to enforce federal law. Together, these were the three circumstances where Congress had the power to provide for calling out the militia.300 Section One of the Act allowed the President to call forth the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,” as well as, upon request of state authorities, “in case of an insurrection in any state against the government thereof.”301 Section Two allowed the President to call forth the militia “whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordi- nary course of judicial proceedings, or by the powers vested in the marshals by this act.”302 Section Two encompasses insurrections against the United States.303 (Section One specifically deals only with insurrections against a state government.)

In 1807, Congress supplemented this power with the power to call out the army and navy in similar circumstances: “in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States as shall be judged necessary ...” The 1807 act thus carried forward and repeated the 1795 act’s understanding of insurrection.304

Finally, on July 29, 1861, Congress amended the trigger again to specifically describe “rebellion.” It allowed the President to call forth the militia “whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become imprac- ticable, in the judgment of the President of the United States, to enforce, by the ordi- nary course of judicial proceedings, the laws of the United States . . .”305

The various versions of the Insurrection Act illustrate a common theme: insur- rection is more than ordinary law violation; it entails “combinations” or “assem-

300 U.S. Const. art. I, sec. 8, cl. 15.
301 2 Stat. 424 (1795), sec. 1.
302 Id. sec. 2. (emphasis added).
303 That said, because Section Two is supported by both Congress’s power to “suppress Insurrections” and its power “to execute the Laws of the Union,” U.S. Const. art. I, sec. 8, cl. 15. it could encompass instances of law enforcement that do not rise to the level of a constitutional “insurrection.”

304 2 Stat. 443 (1807). 305 12 Stat. 281 (1861).

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blages,” acting together, to “oppose[s]” or “obstruct” the ability of government to “ex- ecute” the law, in numbers “too powerful” to be suppressed by the usual means of law enforcement.306

Moreover, several famous instances in which this statutory authority had been (or might have been) invoked provide additional informative context for understand- ing “insurrection” or “rebellion.” Consider just a few.

The “Whiskey Rebellion” was one famous such instance. In 1794, acting under the 1792 predecessor statute, President George Washington personally led militia forces into western Pennsylvania to suppress a large uprising against the government spurred by resistance to the enactment of a federal tax on distilleries. Notably, the Whiskey Rebellion involved armed mobs, organized and employed for the purposes of intimidating and threatening federal officers, keeping them from performing their duties under the law, and preventing others from assuming federal office (or inducing them to renounce their authority).307

We believe the “Whiskey Rebellion” would have been regarded in the nine- teenth century as a classic illustration of what was meant by the terms insurrection and rebellion.308 Indeed, by the time of the drafting of Section Three, it seems to have been regularly referred to in precisely those terms.309 In commonplace usage, as well as in political, and legal discourse, the Whiskey Rebellion was a familiar illustration of an “insurrection” or “rebellion.”

306 Myles Lynch has written that there can exist no insurrection within the meaning of the Insurrection Acts unless the President proclaims that an insurrection exists and, further, that as a consequence, there can exist no insurrection or rebellion within the meaning of Section Three of the Fourteenth Amendment unless the President proclaims that such an insurrection exists. Lynch, supra note 5, at 168, 214-215. This seems plainly wrong. If the Insurrection Act defines insurrection, it is defined as concerted and powerful obstruction of the execution of the laws by government. It is no part of this definition that an insurrection exists only if the President declares it to exist. The President’s procla- mation is a statutory prerequisite to the use of military force, not part of the definition of insurrection. The President can use force if he proclaims that there is an insurrection; but it is not an insurrection only because he proclaims it one.

307 See generally Elkins & McKitrick, The Age of Federalism 461-474 (1993) (detailing actions of orga- nized resistance, intimidation, and threats preventing federal officials from performing their duties – including tarring and feathering, whipping, surrounding of officials’ homes by armed mobs, and kid- napping and coerced repudiation of federal authority); see also Ron Chernow, Alexander Hamilton 468-478 (2004) (similar); Robert W. Coakley, The Role of Federal Military Forces in Domestic Disor- ders, 1789-1878, at 43-68 (1988) (documenting the resistance and military response).

308 To be sure, one scholar of the Acts suggests that “[i]t may have been dubious whether actions of the Whiskey Rebellion farmers truly rose to the level of insurrection,” and that Washington may have treated it as law-obstruction rather than insurrection. Vladeck, at 161 n. 46; see also Coakley, supra note 307, at 67 (suggesting that to “characterize the . . . affair as a ‘riot’ and the participants as ‘rioters’” is “far closer to the truth”). But later sources called it at least an insurrection, see infra note 309.

309 See Townsend Ward, The Insurrection of the Year 1794, in the western counties of Pennsylvania (J.B. Lippincott 1858); H.M. Brackenridge, History of the western insurrection in western Pennsylva- nia: commonly called the whiskey insurrection (W.S. Haven, 1859).

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“Fries Rebellion,” in 1799, was another well-known anti-tax revolt, this time in eastern Pennsylvania.310 President John Adams invoked the 1795 Act to suppress the “insurrection,” as he called it,311 which had involved threats, intimidation, and violence directed at federal tax assessors by organized bands of persons designed to prevent the assessors from performing their duties, and further such acts directed against the ability of the government to arrest tax resisters. In at least one instance, armed opponents of the government successfully freed prisoners from federal custody. The Adam’s administration’s suppression of the insurrection led to widely publicized treason prosecutions312 of leaders and instigators of the unlawful resistance, includ- ing John Fries. As with the Whiskey Rebellion, Fries Rebellion was characterized byconcerted acts of forcible interference with federal officials’ ability to perform their duties under law.313

Nat Turner’s Rebellion, a violent slave revolt in 1831, did not lead to a presi- dential invocation of the Insurrection Act.314 But it surely would have been a classic illustration of at least an “insurrection” and perhaps even a “rebellion”—a concerted uprising seeking forcibly to overturn the legal order and thwart government’s ability to execute the law. A published report of Turner’s own account called it both an in- surrection315 and in one instance an “open rebellion.”316 This example, too, likely would have formed part of the background understanding of the terms insurrection or rebellion at the time they were employed in Section Three.

More broadly, slavery and anti-slavery produced other prominent incidents that would have been classed as small or large insurrections against government— instances that went beyond individual instances of legal disobedience, or of resistance to the laws themselves, and rose to the level of active, concerted, unlawful resistance to the authority of government to execute the laws. Specifically, revolt against the

310 Coakley, supra note 307, 69-77.
311 John Adams, Proclamation on Insurrection in Pennsylvania, 12 March 1799, https://founders.ar- chives.gov/documents/Adams/99-02-02-3377
312 These prosecutions also occasioned a widely-cited jury charge from Circuit Justice Chase, in which he repeatedly discussed “insurrection,” describing it as a “rising of any body of the people” and arguing that it qualified as treason because “an insurrection to resist or prevent, by force, the execution of any statute of the United States, has a direct tendency to dissolve all the bands of society, to destroy all order and all laws, and also all security for the lives, liberties and property of the citizens of the United States.” Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800).
313 But see Elkins & McKitrick at 696-700 (questioning “whether the circumstances really called for military force of any kind”).
314 Federal troops were used to suppress this and other slave rebellions, but “without following the legal procedures laid down in the statutes of 1795 and 1807.” Coakley, supra note 307, at 92-94. Coak- ley suggests that this the failure to go through the Insurrection Acts reflected “the universal dread of slave revolts” at the time and the fact that “t]he slaves had no political constituency.” Id. at 94.
315 See The Confessions of Nat Turner, The Leader of the Late Insurrection in Southampton, VA, as fully and voluntarily made to Thomas R. Gray, at 3, 5, 7, 20, 22 (1831) (calling it “insurrection”); see also Thomas Wentworth Higginson, Nat Turner's Insurrection, 8 Atlantic Monthly 173 (1861)
316 See Turner, supra note 315, at 3 (“The late insurrection . . . is the first instance in our history of an open rebellion of the slaves”) (emphases added).

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Fugitive Slave Act of 1850 sometimes took the form of slave liberation in open defi- ance of government authority. For example, in Boston in 1850 and 1851, a local vigi- lance committee invoked “the ‘higher law’ doctrine” to openly harbor freed slaves to the point that President Millard Fillmore “threatened to send in federal troops.”317 In Christiana, Pennsylvania in 1851, a Quaker community took up arms (!) to defend fugitive slaves, shooting several slaveowners who had arrived from nearby Maryland. This was denounced as an “act of insurrection,” and this time President Fillmore didcall out federal troops.318 In Wisconsin in 1859, resistance to federal authority became so widespread as to prefigure the coming of the Civil War.319 And of course John Brown’s fateful raid on Harper’s Ferry in 1859 was an explicit act of insurrection and rebellion: a quixotic and ill prepared attempt to foment a massive slave insurrection and to overthrow the power of proslavery governments in the South.320 These rebels and insurrectionists were fighting deeply unjust laws, but there is no question that they committed many acts of insurrection nonetheless. Rebellion for a good cause is still rebellion.

Another prominently identified insurrection or rebellion would have been Dorr’s Rebellion, in Rhode Island, in 1841-1842 which led to the Supreme Court’s 1849 decision in Luther v. Borden.321 There, a cabal claiming to constitute the new, lawful government of Rhode Island engaged in forcible resistance to and sought to overturn the authority of the prior, lawful state government (the “charter” govern- ment that traced its authority to Rhode Island’s original colonial charter). The federal government did not invoke the Insurrection Act to intervene, but it well might have. When the Supreme Court ultimately adjudicated the case—through the vehicle of a trespass suit by a member of one faction, against members of the other—the Court held that the question of which government constituted the lawful government of the state was a political question committed to the judgment of Congress and the Presi- dent and that the judiciary lacked authority to interfere with the political branches’ actions (and inactions), which had tacitly supported the charter government. The practical result of the decision—relevant to our inquiry– was that the losing side in the struggle (the faction headed by Mr. Dorr) legally could be treated by the prevail- ing side (the charter government) as having engaged in “insurrection” against the

317 See McPherson, supra note 228, at 81-84; Cf. Coakley, supra note 307, at 130-131 (noting debate about whether this disturbance in Boston was sufficiently great to trigger the insurrection acts).
318 McPherson, supra note 228, at 84-85. See also Thomas Slaughter, Bloody Dawn: The Christian Riot and Racial Violence in the Antebellum North (1991); and cf. id. at ix (“The line between riot and rebel- lion was shifting during the antebellum period.”).

319 See generally H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2006) (describing resistance, in the mid-to-late1850s, in Wisconsin to federal legal authority to execute the Fugitive Slave Act).
320 McPherson, supra note 228, 202-208. Federal troops helped suppress this insurrection and rebellion too. See Coakley, supra note 307, at 193 (“This intervention was, as in the case of Nat Turner’s Rebel- lion, an emergency measure undertaken without the usual formalities.”).

321 Luther v. Borden, 58 U.S. (7 How.) 1 (1849). On Dorr’s Rebellion generally and the federal response, see Coakley, supra note 307, at 119-127.

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rightful state government. The Court noted, and seemingly accepted, the charter gov- ernment’s characterization of plaintiff and others having “assembled in arms . . . for the purpose of overthrowing the government by military force”322 and as having at- tempted “to assert the authority of [the Dorr government] by force,”323 as amounting to having “engaged in the insurrection.”324 The Court also referred to the govern- ment’s actions as having been designed to suppress that “insurrection.”325 The Court appeared to equate with “insurrection” the Dorr group’s attempts to displace or su- persede the existing government and forcibly assert its own claimed authority as a replacement.

Finally, several notable invocations of the Insurrection Act occurred during the period of Reconstruction during the presidency of Ulysses S. Grant.326 While these events occurred after ratification of the Fourteenth Amendment (and thus could not have formed any part of the subjective understanding of the drafters and ratifiers of the meaning of Section Three), they nonetheless deserve mention as roughly contem- poraneous evidence of the objective meaning of “insurrection” as displayed by im- portant usage within a few years of adoption of the Fourteenth Amendment. Briefly summarized: In South Carolina in 1871, Grant twice invoked the Insurrection Act (as well as suspending habeas corpus, among other actions) to secure order in dealing with the Ku Klux Klan.327 In Louisiana, in 1872, a contested gubernatorial election spawned efforts by white supremacists to overthrow the elected pro-Reconstruction Republican government, culminating in the infamous “Colfax Massacre” of April 13, 1873, in which a white mob attacked and massacred perhaps 150 black citizens who had been defending a courthouse in Colfax, Louisiana and, more broadly, the Recon- struction Republican government. President Grant invoked the Insurrection Act as authority to suppress the insurrection that sought to overturn the election result.328 Later, in 1874, Grant again invoked the Insurrection Act in Louisiana, this time to suppress a white supremacist coup d’etat that had overthrown the Republican gover- nor by force.329 Federal troops reinstated the lawful government, but the insurrec- tionists established a rival state government that effectively controlled much of Lou- isiana outside of the capital—New Orleans at the time. (The conflict lasted until 1877,

322 Luther, 58 U.S. (7 How.) at 8. 323 Id. at 37
324 Id. at 46
325 Id. at 45.

326 By this time, the Act had been amended yet again. See 17 Stat. 13, 14-15 (1871), §§ 3-4.
327 Ulysses S. Grant, Proclamation No. 197, Law and Order in the State of South Carolina (Mar. 24, 1871); http://www.presidency.ucsb.edu/ws/?pid=70253; Ulysses S. Grant, Proclamation No. 200, Law and Order in the State of South Carolina (Oct. 12, 1871); for background see Michael Bahar, The Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several States, 5 Harv. Nat'l Sec. J. 537, 613-14 (2014); Lou Falkner Williams, The Great South Carolina Ku Klux Klan Trials, 1871-1872, at 39-49 (1996).
328 Ulysses S. Grant, Proclamation No. 213, Law and Order in the State of Louisiana (May 22, 1873) http://www.presidency.ucsb.edu/ws/index.php?pid=70364
329 Ulysses S. Grant, Proclamation No. 220, Law and Order in the State of Louisiana (Sept. 15, 1874) http://www.presidency.ucsb.edu/ws/index.php?pid=70422

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when Reconstruction was abandoned by the national government and white suprem- acists took full control of the state.) In Mississippi, in 1874, white supremacists fab- ricated criminal charges against the newly elected black sheriff, Peter Crosby, and deposed him by mob action.330 Black citizens organizing an effort to reinstate Crosby were attacked by white mobs, resulting in the massacre of as many as 300 black citi- zens. Again, President Grant invoked the Insurrection Act and sent federal troops to reinstate Crosby and prevent further violence. Also in 1874, in Arkansas, Grant in- voked the Insurrection Act to quell violence in an ongoing dispute over the 1872 gu- bernatorial election results.331 And in 1876, in South Carolina, Grant invoked the Insurrection Act to protect the gubernatorial election process from white supremacist groups.332 Common to each of these instances during the Grant administration was the idea that concerted efforts to overturn lawful popular election results by mob ac- tion, force, violence, and intimidation constituted “insurrection” against government.

It is difficult to evaluate precisely the probative force of all of these incidents, and application of federal authority to suppress “insurrections,” for understanding Section Three. But they were unquestionably part of the picture, contributing to the background for understanding Section Three’s terms. They were very much part of a common historical vocabulary of “insurrection” and “rebellion” and culpable partici- pation in the same, familiar to those who drafted and ratified the Fourteenth Amend- ment: The Whiskey Rebellion, Shay’s Rebellion, Nat Turner’s Rebellion, Dorr’s Re- bellion, the insurrections against the Fugitive Slave Act in the 1850s, John Brown’s raid on Harper’s Ferry in 1859—all of these incidents would have informed the gen- eral understanding of what constitutes “insurrection or rebellion” and what actions amount to having “engaged in” or given “aid or comfort” to such uprisings. They all tend to support our working definitions of Section Three’s terms. Even President Grant’s post-1868 invocations of the Insurrection Act, to combat attempts to over- throw election results or displace lawful state authority, may shine some interpretive light backward on Section Three’s meaning. If an uprising of similar nature to these events were to occur, it seems to us that it likely would have been understood as an insurrection or rebellion within the coverage of Section Three.

b. The Congressional Exclusion Debates

As noted above, the federal Ironclad Oath adopted during the Civil War closely paralleled the requirements and consequences of Section Three. These parallels are drawn more sharply by a series of cases where both houses of Congress enforced the oath to exclude their own prospective members from being seated. As one scholar has

330Ulysses S. Grant, Proclamation No. 223, Law and Order in the State of Mississippi (Dec. 21, 1874), http://www.presidency.ucsb.edu/ws/?pid=70459.
331 Ulysses S. Grant, Proclamation No. 218, Law and Order in the State of Arkansas (May 15, 1874) http://www.presidency.ucsb.edu/ws/?pid=70420.

332 Ulysses S. Grant, Proclamation No. 232, Law and Order in the State of South Carolina (Oct. 17, 1876) http://www.presidency.ucsb.edu/ws/?pid=70542.

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put it, these debates “were littered with relevant concepts, and we can judge the For- tieth Congress’s reception to those similar arguments as indicative of their expecta- tions as to Section 3’s application.”333 Moreover, several of these proceedings occurred right around the time of the proposal and ratification of the Fourteenth Amendment. In some cases after the Fourteenth Amendment was ratified, Congress applied Sec- tion Three itself, further demonstrating continuity and overlap with the Ironclad Oath.

The familiar source compiling the houses’ debates on such matters of internal administration is Hinds’ Precedents, which we rely on here.334

First, Kentucky: In 1867, Kentucky submitted eight members-elect to the House, seven of whom were challenged as ineligible on the ground that they had given aid or comfort to the Confederacy, during the Civil War. The Committee on Elections concluded that “no person who has been engaged in armed hostility to the Govern- ment of the United States, or who has given aid and comfort to its enemies during the late rebellion,” ought to be sworn or seated.335 A subsequent report determined that such charges needed to be “proved by clear and satisfactory testimony” and es- tablish more than mere lack of active support for the Union or passive sympathy for the rebellion but that “the claimant has by act or speech given aid or countenance to the rebellion.”336 Such acts or speech need not rise to the level of constitutional trea- son, but they “must have been so overt and public, and must have been done or said under such circumstances, as fairly to show that they were actually designed to, and in their nature tended to, forward the cause of the rebellion.”337

On this standard, the committee found that four of the challenged members- elect were not proved to have either “engaged in armed hostility” to the Government or provided “aid and comfort” to its adversaries. These four were admitted to their seats. Three others—John Y. Brown, John D. Young, and Lawrence Trimble—posed more serious difficulty, however. The House ultimately refused to seat either Brown or Young but admitted Trimble. The facts of these cases are instructive explorations of the boundaries between free speech and “aid or comfort” to rebellion.

The House addressed the John Y. Brown case first. “This election case,” Hinds’ reports, was “the first of its kind since the formation of the Constitution, and recog- nized by the House as of the highest importance.”338 It also involved an incident of

333 Lynch, supra note 5, at 196. Lynch ably and accurately describes the most important such cases. See id. at 196-201, 207-210. We find little or nothing to disagree with in his account and analysis of these disputes and are indebted to Lynch’s research and analysis.
334 See generally 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States, ch. 14, pp. 431-486 (1907).

335 Id. §448 at 442.
336 Id. at 443 (emphasis added). 337 Id.
338 Id. at 445.

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pure speech as disqualifying a member-elect from office: John Y. Brown had explicitly embraced and advocated violent resistance to the Union in Kentucky. Indeed, he had gone so far as to urge the shooting of any man who volunteered for service in Union forces. Brown’s disqualifying conduct consisted solely of such acts of speech. The com- mittee relied on a letter Brown had written to the Louisville Courier in 1861 in which Brown had gone to great lengths to affirm his support for the rebellion in unequivocal terms:

Editors Louisville Courier:

My attention has been called to the following paragraph, which appeared in your paper of this date:

“JOHN YOUNG BROWN’S POSITION.– This gentleman, in re- ply to some searching interrogatories put to him by Governor Helm, said, in reference to the call of the President for four regiments of volun- teers to march against the South—

‘I would not send one solitary man to aid that Government, and those who volunteer should be shot down in their tracks.’”

This ambiguous report of my remarks has, I find, been misunder- stood by some who have read it, who construe my language to apply to the government of the Confederate States! What I did say was this:

“Not one man or one dollar will Kentucky furnish Lincoln to aid him in his unholy war against the South. If this northern army shall attempt to cross our borders, we will resist it unto the death; and if one man shall be found in our Commonwealth to volunteer to join them he ought and I believe will be shot down before he leaves the State.”

This was not said in reply to any question propounded by ex-Gov- ernor Helm, as you have stated, and is no more than I frequently uttered public and privately prior to my debate with him.

Respectfully,

JOHN YOUNG BROWN.339

The House concluded, on the strength of this letter alone, that Brown had sup- ported the rebellion and therefore voted to exclude him. This became a precedent for the House’s subsequent actions in other cases. The standard applied—whether the facts, “proved by clear and satisfactory testimony,” showed that an individual had, by an “act or speech ... overt and public ... done or said under such circumstances, as fairly to show that they were actually designed to, and in their nature tended to, forward the cause of the rebellion”—had been satisfied by Brown’s letter.340

339 Quoted in id. at §449, p. 445. 340 Id. at §449, pp. 443, 448.

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Similarly, in March 1868, the House excluded John D. Young under this stand- ard. Young’s case also involved speech. The Young case involved numerous expres- sions of support and sympathy for the South and against the Union, and the commit- tee explicitly took the position “that ‘aid and comfort’ may be given to an enemy by words of encouragement, or the expression of an opinion” by a person (like Young, a county judge) in an “influential position.”341 But Young’s case was overdetermined, because there was also testimony that Young had provided material assistance to Confederate troops, by giving them food and provisions and assisting in the capture by Confederate troops of a Union soldier. According to the committee, Young’s “ex- pressions and admissions” of sympathy for the enemy, “taken in connection with the open acts of ‘aid and comfort to the enemies of the United States,’” established that he could not “’honestly and truly take the oath,’”342 and the full House agreed.

The contrasting case of Lawrence Trimble, however, showed that mere political opposition did not establish disloyalty. Aside from some overly vague allegations that he had traded with the enemy, the core of the case against Trimble were his political speeches. Trimble had been the Union candidate for Congress in 1861 and “made Union speeches in that canvass throughout the district.” Trimble opposed Lincoln’s war policies after the Emancipation Proclamation, asserting that the North was wag- ing “an abolition war” and reportedly was opposed to “voting any more men or money to aid in carrying it on.” These views and statements, however, were not materially different from other members’ statements in Congress opposing the administration’s policy. The committee (and House) considered Trimble’s “loyalty unquestioned” and found no case for disqualifying him.343

Next consider Tennessee: Tennessee supplied two interesting membership cases, one in the House and one in the Senate. Both involved undoubtedly pro-Union men who nonetheless had held state office under Tennessee’s secessionist regime and sworn oaths under it, while seemingly using their positions to support Union inter- ests and resist the secession government. This presented a distinct problem under the Ironclad Oath, which required its swearer to disaffirm that he had ever accepted or exercised office under a pretended government hostile to the United States. What to do? In each case—Senator-elect David Patterson, who had served as a state court judge in the eastern region of Tennessee during the Confederate regime; and Repre- sentative-elect R.R. Butler, who had retained his seat in the state legislature during secession, while opposing it—the respective house ultimately admitted the applicant to his seat and permitted him to take a modified oath omitting the never-held-office- under-a-hostile-regime sentence.344

341 Id. at §451, p. 452 (quoting House Report 40-29 (1868)) (emphasis added).
342 Id. at §451, p. 452 (quoting House Report 40-29 (1868)) (emphasis added).
343 Id. at §453, p. 459.
344 Id. at §453, 455, pp. 459-461, 462-465. In Butler’s case, two-thirds of both houses voted him am- nesty. Id. at 464-465. In Patterson’s case, the Senate tried to pass a bill altering the oath for Patterson, but the House tabled it, id. at 46, but perhaps that is okay, if application of the Ironclad Oath, to

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A potentially broad understanding of “aid or comfort” also surfaced in the ex- clusion of Maryland Senator-elect Philip Thomas in 1867.345 What had Thomas done to support the South in its rebellion? Apparently, he had permitted his minor son, a member of his household, to join the Confederate army, and given his son $100 on the way out the door. The Senate debated whether Thomas had done anything more by way of counsel or encouragement of his son’s taking up arms against the United States and it is not clear how the senators evaluated such evidence. Some seemed to have thought Thomas’s treatment of his son disqualifying. Others focused instead on allegations that Thomas had resigned as President Buchanan’s Treasury Secretary because he disagreed with the President’s decision to send federal reinforcements toCharleston Harbor.346 Either theory of Thomas’s exclusion suggests that “aid or com- fort” to rebellion was understood to sweep broadly and possibly include conduct of a somewhat more passive or quiescent nature—allowing one’s son to become a rebel soldier, under circumstances where such permission (and financial assistance) might have been withheld; opposing, or resisting, measures to suppress insurrection and defend national institutions and personnel, and resigning office in protest against such measures.

Cases like these continued in the House and Senate after Section Three of the Fourteenth Amendment had taken effect. By this point, the basic principles were more established, and the cases were sometimes more factbound or less illuminating, but they further confirm the continuity between Section Three and the Ironclad Oath, and illustrate the understanding of Section Three very shortly after its adoption.

To recount them very briefly: In 1868, John Christy had received the most votes for Congress in Georgia’s sixth district, but the House committee found that Christy, by his own admission, had given “aid, countenance, counsel, and encourage- ment” to persons in armed hostility against the Union and therefore, “in accordance with the precedent in the case of John Y. Brown,” was disqualified by the Ironclad Oath, and he was not seated.347 In 1869, the House sat John Rice from Kentucky despite a divided House committee’s conclusion that he was disqualified by Section Three.348 The pages of the Congressional Globe reveal a debate about whether Rice had in fact joined the Confederate Army, which turned on the dubious credibility of

members of Congress, is a function of each house’s separate power to make rules governing its pro- ceedings. U.S. Const. art. I §5.
345 Hinds’ at §§457, 458 at pp. 465-470.
346 Hinds’ at §459, pp. 470 (reporting that Senator Sumner withdrew a resolution focused on Thomas’s son “it being urged that Mr. Thomas’s conduct as a Cabinet officer in 1860 afforded more certain grounds for action.”). See also Cong. Globe 40th Cong. 2nd Sess. at 1260-1262 (Feb. 19, 1868).

347 Hinds’ at §459, pp. 470-472. Interestingly, the Governor of Georgia had concluded that Christy was disqualified under Section Three while the House committee relied on the Ironclad Oath “inde- pendently of any question as to ineligibility under the fourteenth amendment,” id.
348 Hinds’ at §460, pp. 472-473.

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two witnesses.349 In 1870, the House allowed Representative George Booker of Vir- ginia to keep his seat, despite subsequent charges that he had directly supported the militia of the rebel government in his role as justice of the peace. But Booker made an apparently persuasive case that he had been loyal all along, even as he worked within the Confederacy, and as a practical matter he had already been seated. For one reason or the other, the House ultimately voted to table the issue, leaving Booker in office.350 Also in 1870, the House allowed Representative Lewis McKenzie of Vir- ginia to sit, despite various votes he had taken as a member of the Virginia house of delegates in 1861—votes pledging Virginia’s commitment to “unite her destiny with the slaveholding States of the South” should attempts to reconcile differences be- tween North and South fail, supporting Virginia’s willingness to fight, and to provi- sion Virginia fighters. Because all of these votes occurred before voter ratification of Virginia’s secession ordinance on May 23, 1861, and because McKenzie remained “an outspoken Union man” after secession and throughout the war, the House concluded he had neither engaged in rebellion nor given it aid or comfort.

Finally, in 1871, the Senate declined to seat Senator-elect Zebulon Vance from North Carolina.351 The exclusion of Vance was a particularly easy case. After serving in Congress, he had led Confederate troops in battle against the Union and then be- came the wartime governor of Confederate-regime North Carolina.352 If anyone had engaged in rebellion and given aid or comfort to the Union’s enemies, it was Vance. He was clearly barred by both Section Three and by the Ironclad Oath. He could be seated only if Congress chose to exercise amnesty, which it did not do until later.353

These congressional seating challenges suggest some rough lines as to what Congress thought was “aid or comfort” to the Confederacy. On one hand, direct ma- terial support for the rebel cause—providing supplies or working with enemy forces—

349 Congressional Globe, 41st Cong, 2nd Sess. pp. 5442-5447 (July 11, 1870). Rice had also been in the Kentucky legislature and voted for a resolution against the coercion of the southern states; but every- body agreed this was not enough to count as aid or comfort, because it was only in January 1861: “No war exist[ed] at the time” and it was before “the policy of the Government had been announced.” Id. at 5443 (Butler); see also id. at 5445 (Garfield). Nor could Rice be excluded solely because of his politics. See id. at 5445 (“[T]his man was a Democrat. That is a political sin, but it is not a crime under the law. He is a Democrat yet. I think he is very wrong in being that, but yet it is not a crime.”) (Logan).

350 Hinds’ at §461, pp. 474-475.
351 See generally Hinds’ at §463, pp. 478-486.
352 See generally Richard E. Yates, Zebulon B. Vance: as War Governor of North Carolina, 1862-1865, 3 J. Southern Hist. 43 (1937).
353 Vance ultimately had the last laugh. Vance was excluded from the 1872 amnesty statute because he had served in the thirty-sixth Congress, Act of May 22, 1872, ch. 193, 17 Stat. 142; https://bi- oguide.congress.gov/search/bio/V000021. Cf. Franklin Ray Shirley, Zebulon Vance, Tarheel Spokes- man 71 & 152 n. 36 (1962) (claiming that Vance had been waiting for the 1872 amnesty until his opponent Abbott had somehow engineered the amendment to the 1872 act that excluded Vance), but Congress then passed a private bill granting him individual amnesty. 17 Stat. 691 (June 10, 1872). Thanks to Gerard Magliocca for this source. Vance subsequently returned to the North Carolina gov- ernorship, and then to the Senate until his death in 1884. Magliocca, Amnesty, supra note 5, at 111 n. 126.

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was clearly aid or comfort. On the other hand, disfavored political beliefs and pre-war political stances were clearly not. In between lay contested territory. But there was no bright line, for instance, protecting all speech or political activity. In some situa- tions, speech alone could be disqualifying. A sufficiently clear and unequivocal state- ment of disloyalty in the form of proposed active resistance to Union authority or encouragement to violence against Union forces appears generally to have been thought disqualifying. Voluntarily holding confederate office or advocating resistance to the Union also could be enough to disqualify. We do not suggest these individual applications—many of which were contested and complicated—are strictly binding. But they provide useful concrete evidence for how parts of Section Three may well have been understood and thought to work.354

6. Legislative History

There is only a little fruit to be gleaned from the legislative history of the Four- teenth Amendment—the records of the proposing Congress’s debates over its various provisions and of state ratification debates. The Fourteenth Amendment’s legislative history is famously voluminous, and Section Three—like the other “forgotten” sec- tions of the Amendment (Section Two and Section Four)—was much more salient to the debates then than it is to today.355 As briefly noted above, the legislative history supports the key propositions we have advanced earlier in this article—that Section Three was designed to be general and prospective, and not limited to the situation of the Civil War and Reconstruction; that Section Three’s disqualification was seen by proponents and opponents alike to be self-executing and automatic; and that Section Three was understood to supersede (or satisfy) prior constitutional limitations.356

Perhaps somewhat surprisingly, however, we have found relatively few inter- pretive insights about the scope of conduct triggering disqualification under Section Three. What evidence there is generally confirms the understanding that the provi- sion would have sweeping consequences: there appears to have been substantial agreement—by both opponents and proponents—that the provision would cover a broad range of activity supporting or assisting the South’s efforts to throw off the authority of the Union and the Constitution. The original proposal would have ex- cluded all such persons from voting, not just officeholding and, further, would not have been limited in its coverage to former oath-swearing federal and state office- holders. However, the language concerning what conduct triggered disfranchisement (and, as later revised, disqualification from officeholding) was carried forward

354 Finally, though it occurred long after this period, there has been one additional congressional ex- clusion under Section Three: the 1919 exclusion of socialist newspaper editor Victor Berger from the House. See supra notes 219-221 and accompanying text. The Berger episode of course has no probative value about the original meaning of Section Three, since it occurred more than 50 years after Section Three was enacted. In our view, the House’s decision was mistaken—an overzealous reading of the law, the facts, or both.

355 See generally Graber, Volume 1, supra note 8. 356 See supra notes 12, 59, & 181.

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throughout the discussion. Opponents of what eventually became Section Three thought the range of what was included in disability-triggering conduct (that is, when one might be said to have “engaged in” insurrection or rebellion or given “aid or com- fort” to it) was hugely broad in its reach, sweeping in nearly everybody in the rebel South—and viewed the proposal as regrettable on account of such breadth. Signifi- cantly, proponents of the amendment did not disagree with its opponents concerning the breadth of the description of disability-triggering conduct. The proponents simply thought such breadth appropriate, necessary, and valuable.357

As things proceeded, Congress narrowed the provision in two specific respects. Congress backed away from complete disfranchisement to disqualification from hold- ing office. And relatedly, it narrowed Section Three to cover only those who had sworn a prior oath of loyalty to the U.S. Constitution as federal or state officeholders. Rather than disenfranchising pretty much the entire white South, it would disqualify from future office those who had held constitutional office and then rebelled.

But what did not change was the broad description of the conduct that trig- gered disfranchisement (in the earlier proposal) or disqualification from office (in the proposal eventually agreed to).358 As noted, there is not a great deal of explication of what this conduct was, exactly. But the overall tenor of the debates over what became Section Three suggest that all meaningful connection with, support for, or aid to the Confederacy—officeholding, military service (whether voluntary or not), political sup- port or endorsement, provision of material assistance to rebellion or rebel forces— was regarded by the proposing Congress as covered. The legislative history of Section Three—such as it is—supports a broad understanding of the prohibition contained in its language.

7. Early Applications of Section Three

357 See generally Graber Section Three manuscript, supra note 12.
358 Congress also rejected a series of proposed amendments to Section Three that would have narrowed or limited the conduct or persons to which the language would apply – e.g., only to persons who joined the Confederacy while still holding prior office under the U.S. Constitution; only to persons who had sworn oaths to the Constitution since 1851; only to persons who had not received presidential pardons; and only to persons who had voluntarily served the confederacy. Republican defenders of Section Three successfully opposed these proposed limitations on Section Three’s scope, arguing that limiting the ban to persons who still held office under the Constitution when they joined the Confederacy would indulge the pretext that resignation from office before engaging in or assisting rebellion absolved one of any prior duty of loyalty to the United States Constitution. Cong. Globe, 39th Cong. 1st Sess. p. 2770 (statement of Sen. Howard). Republicans likewise rejected the proposed limitation to persons who had “voluntarily” assisted or participated in rebellion, because it would raise unnecessary and difficult proof problems and permit spurious claims of involuntary participation. Indeed, one senator noted that Alexander Stephens, Vice President of the Confederacy, had testified before the Joint Com-mittee on Reconstruction that he “never entered into the rebellion voluntarily”! Cong. Globe, 39th Cong., 1st Sess. p. 2918 (statement of Sen. Willey).

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A final set of evidence comes from the handful of cases applying Section Three shortly after its adoption. Once again, because these examples come after the provi- sion was adopted, they do not provide direct evidence of its original public meaning, but they still can be informative.359 Section Three came up in a range of procedural and institutional situations; each of these situations further confirms Section Three’s broad substantive sweep.360

For instance, the 1867 Military Reconstruction Act—which imposed provi- sional governments on the southern states until they obtained readmission to repre- sentation in Congress by enacting new, republican, Reconstruction-compliant consti- tutions—directly incorporated Section Three of the proposed (but not yet ratified) Fourteenth Amendment as a restriction on those governments. Persons disqualified under Section Three could not hold office under the provisional governments, nor could they serve in—or even vote for those who would serve in—the state’s constitu- tional convention.361

Andrew Johnson’s attorney general, Henry Stanbery, published a two-part opinion in 1867 setting forth his interpretation of the Act and thus, indirectly, of Sec- tion Three.362 Stanberry’s opinion is explicitly slanted toward a narrow constructionof Section Three, because of his concerns that it would be punitive and ex post facto in this context.363 Even so, Stanberry’s opinion found Section Three’s definition of what constituted participation in rebellion to be quite broad:

“All those who, in legislative or other official capacity, were engaged in the furtherance of the common unlawful purpose, or persons who, in their individual capacity, have done any overt act for the purpose of pro- moting the rebellion, may well be said, in the meaning of this law, to have engaged in rebellion.”364

As to individuals, Stanberry also reiterated several times that any voluntary support, even if not violent, was covered and culpable. He found “it to be clear, that in the

359 See, e.g., Baude, Liquidation, supra note 237, at 61-62; Paulsen, Most Dangerous, supra note 237, at 293, 303.
360 Additionally, some of Congress’s application of the Ironclad Oath to its own members also entailed the application of Section Three, see supra Part IV.A.5.b.

361 An Act to provide for the more efficient Government of the Rebel States, 14 Stat. 428, 429, sec. 5-6 (March 2., 1867).
362 Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867); Henry Stanbery, The Re- construction Acts, 12 Op. Att’y Gen. 182 (1867).

363 12 Op. Att’y Gen. at 159-160. But see supra Part III.A-B (explaining why the constitutional ex post facto and attainder principles do not apply to Section Three, especially as applied to new insurrections and rebellions).
364 Id. at 161-162 (emphasis added)

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sense of this law persons may have engaged in rebellion without having actually lev- ied war or taken arms,”365 and added that “wherever an act is done voluntarily in aid of the rebel cause . . . it must work disqualification under this law.”366

Subsequent cases took even broader positions. For instance, in the 1869 deci- sion of Worthy v. Barrett, the North Carolina Supreme Court concluded that a state sheriff was disqualified under Section Three for holding basically the same office as a sheriff when his state was in rebellion. The court’s reasoning on this issue was suc- cinct but clear:

What will amount to having engaged in the rebellion?

That is, the North Carolina Supreme Court embraced Stanberry’s view that almost any voluntary assistance to the rebel cause was a form of engaging in rebel- lion, but also held that holding any office, even an ordinary non-military office far from the front lines, was a form of engaging in rebellion covered by Section Three.368

Shortly after this—and shortly after Chief Justice Chase’s unsound and unfor- tunate decision in Griffin’s Case had held that Section Three required congressional legislation in order to be put into operation – Congress enacted federal procedures to directly enforce Section Three in federal court. The 1870 Enforcement Act, also known as the First Ku Klux Klan Act, authorized district attorneys of the United States to bring quo warranto actions to remove officials holding office “contrary to the provi- sions of the third section of the fourteenth article of amendment of the Constitution” and to bring criminal prosecutions against person who “shall hereafter knowingly accept or hold” office in violation of Section Three.369 In proceedings brought under both enforcement sections of the Act, in the short period between 1870 and 1872, the scope of Section Three’s prohibition was interpreted broadly. (Recall that in 1872 Congress removed Section Three’s disqualification as to most former rebels.)

365 Id. at 161.
366 Id. at 165.
367 Worthy v. Barrett, 63 N.C. 199, 203 (1869). The court also applied the Worthy rule to the even easier case of a county attorney who “took part in th[e] rebellion by serving in the Confederate army, voluntarily.” In Re Tate, 63 N.C. 308 (1869).
368 By contrast, Stanberry had concluded that officers who “discharged official duties not incident to war, but in the preservation of order and the administration of law, are not to be considered as thereby engaging in rebellion.” 12 Op. Att’y Gen. 162.
369 16 Stat. 140, 142-143, sections 14 & 15. See supra note 54.

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(1st.) Holding any of these offices under the Confederate government.

2d Voluntarily aiding the rebellion, by personal service, or by contribu- tions, other than charitable, of any thing that was useful or necessary in the Confederate service.367

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Consider first a notable criminal prosecution under the 1870 Act. In North Carolina again, this time in federal court, the government brought criminal charges against Amos Powell, for accepting an appointment as county sheriff despite being covered by Section Three.370 Powell’s alleged act of rebellion was having “furnished a substitute for himself to the Confederate army,” and Powell’s defense was that this was involuntary, because he was about to be involuntarily conscripted himself.371 This gave the federal court, through Judge Hugh Lennox Bond, occasion to instruct the jury on the relevance of voluntariness to Section Three:

[T]he word “engage” implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellion, and to bring it to a success- ful termination; and unless you find the defendant did that, with which he is charged, voluntarily, and not by compulsion, he is not guilty of the indictment. But it is not every appearance of force nor timid fear that will excuse such actual participation in the Rebellion or Insurrection. De- fendant’s conduct must have been prompted by a well grounded fear of great bodily harm and the result of force, which the defendant was nei- ther able to escape nor resist. And further, the defendant’s action must spring from his want of sympathy with the insurrectionary movement, and not from his repugnance to being in an army, merely.372

In other words, only great duress and pure heart would be a defense if one’s conduct otherwise provided material support to the rebellion. Section Three’s disqualification for having “engaged” in insurrection covered a wide swath of voluntary participatory acts supporting or assisting rebellion, some bordering on near-passive acquiescence.

Meanwhile, in Tennessee. the U.S. Attorney brought dozens of federal enforce- ment actions, including against three members of the Tennessee Supreme Court.373 Many of those charged were unquestionably covered by Section Three because they had fought in the Civil War, for the Confederacy. But some were charged for more remote participation. For instance, Thomas Nelson, one of the Tennessee Justices, had been a unionist during the war, and indeed at one point a prisoner of the Confed- eracy. His participation in the rebellion appears to have been limited to being elected to the U.S. House of Representatives from Tennessee, after Tennessee’s purported

370 United States v. Powell, 27 F. Cas. 605 (C.C.D.N.C 1871).
371 Id. at 607.
372 Id. Additionally, Powell had served as a justice of the peace under the Confederate government, but the federal court held this not to qualify, for reasons similar to those articulated by Attorney General Stanberry. Id.
373 Sam D. Elliott, When the United States Attorney Sued to Remove Half the Tennessee Supreme Court: The Quo Warranto Cases of 1870, 49 Tenn. B.J. 20 (2013); see also Magliocca, Amnesty, supra note 5, at 109-110.

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secession, and traveling to Washington to attempt to represent the state in Con- gress.374 While these Section Three claims were never adjudicated, the fact that they were brought in the first place is consistent with the broad sweep of Section Three.375

The other scattered discussion of Section Three we have found are more am- biguous, but still consistent with these broad interpretations of Section Three’s sub- stantive disqualification—broad interpretations of insurrection, rebellion, “engaged in,” and so on. Recall, for instance, that in Griffin’s Case, it was essentially taken as given that Judge Hugh Sheffey would be disqualified by Section Three (if it applied) because he was “a member of the legislature of Virginia in 1862 during the late Re- bellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States.”376 Other cases are consistent with similarly broad assumptions.377 We have found none that took a substantially narrower view of Section Three, and even if some exist, they would seem to be the minority and inferior construction.

The application of Section Three immediately after its enactment is consistent with what the text, structure, context, and history of Section Three all tell us: to have “engaged] in,” or given “aid or comfort” to, insurrection and rebellion, was understood to embrace an incredibly broad sweep of voluntary conduct that provides support, material assistance, or specific encouragement to such actions.

In the end, essentially all the evidence concerning the original textual meaning of Section Three—contemporaneous dictionary definitions; parallel constitutional use of the same or similar language; the inferences that fairly may be drawn from the legislative history of Section Three’s drafting; the especially strong evidence from 1860s Civil War era political and legal usage of nearly the precise same terms (in prominent presidential statements, congressional enactments and their implementa- tion, and a landmark Supreme Court constitutional decision employing the same terms); the general legal backdrop of eighteenth century Insurrection Acts and the myriad and familiar historical incidents of “insurrection” and “rebellion” to which they applied; and finally early practice enforcing Section Three—points in the same direction: toward a broad understanding of what constitutes insurrection and rebel- lion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.

374 For one fawning account of Nelson, see Oliver P. Temple, Notable Men of Tennessee From 1833 to 1875. at 166-215 (1912).
375 Justice Nelson resigned while these actions were pending, and the rest of the actions were aban- doned with the passage of the 1872 Amnesty Act and a change in the federal attitude towards Section Three. Elliott, supra note 373.

376 In re Griffin, 11 F. Cas. 7, 22 (C.C.D.Va. 1869).
377 Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 873, 885–87 (1872). There is reason to think there were hundreds of other Section Three actions brought during this time period, but few records of the specifics of the cases. Magliocca, Amnesty, supra note 5, at 109-110.

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B. What Prior Officeholders are Covered? What Future Offices are Barred?

The next step in the analysis of Section Three is rather more tedious than dif- ficult. But it is important to get it right: Holders of what prior offices or positions are covered by Section Three’s disqualification from future office if they engaged in in- surrection or rebellion? And from what future offices or positions are they thereby disqualified? The text of Section Three takes up these points in reverse order (and so we shall too) and uses slightly different language for each category.

First, the offices or positions from which a disqualified person is barred:

No person shall be a Senator or Representative in Congress, or an elector of President and Vice President, or hold any office, civil or mil- itary, under the United States or under any State ... 378

Second, the offices or positions previously held, and for which an oath to the Consti- tution was taken, that trigger Section Three’s disqualification:

... who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legis- lature, or as an executive or judicial officer of any State, to support the Constitution of the United States ... 379

We begin with a few observations.

First, the language of these provisions should be read in as straightforward and common-sense a manner as possible. The text must be read precisely, of course, but also sensibly, naturally and in context, without artifice or ingenious invention unwarranted by that context. Some constitutional provisions embody precise terms of art that must be attended to. But a reading that renders the document a “secret code” loaded with hidden meanings discernible only by a select priesthood of illumi- nati is generally an unlikely one.380 Keep this in mind as we proceed: we think readers

378 U.S. Const. amdt. XIV, sec. 3.
379 Id.
380 See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpre- tation: Some Modest Proposals from the Twenty-third Century, 59 Albany L. Rev. 671, 674-76 (1995). For instance, consider the story, passed down from Albert Gallatin to Max Farrand to William Treanor, that Gouverneur Morris slyly attempted to replace a comma with a semicolon in Article I in order to convert the “General Welfare” Clause from a limitation on the tax power into a freestanding power of regulation. William Michael Treanor, The Case of the Dishonest Scrivener: Guverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. Rev. 1, 20-24 (2021). Putting aside whether this story is really true, David S. Schwartz, Framing the Framer: A Commentary on Treanor’s Governeur Morris as Dishonest Scrivener, 120 Mich. L. Rev. 51, 69-73 (2022), a sensible approach to constitutional interpretation should obviously resist such antics. Even if Morris had succeeded in smuggling in the semi-colon, that maneuver should not be decisive in interpreting the Clause. See Kesavan & Paulsen, West Virginia, supra note 127, at 338-339 & n. 151.

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should be wary of any interpretation of Section Three that would impute to the text a hyper-technical set of hidden distinctions not fully warranted by the language. Where the simplest and most plausible explanation of minor textual differences is merely stylistic or accidental variation, that explanation should not lightly be cast aside.

Second, it appears that the list of disqualification-triggering offices tracks closely, but not identically, the listing of positions for which the original Constitution imposed an oath requirement. Article VI of the Constitution dictates that “Senators and Representatives . . . Members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution.”381 Article II, overlapping this general oath mandate, prescribes a specific oath for the President, who swears both that he will “faithfully execute the Office of President of the United States” and “’to the best of my Ability, preserve, protect, and defend the Constitution of the United States.’”382

Section Three’s listing of triggering positions largely tracks the substance (and to some extent even the sequence) of the all-offices-legislative-executive-judicial-fed- eral-and-state oath mandates. Section Three’s list of positions from which a covered person is disqualified builds on this list. All positions that trigger disqualification are disqualified-from. In addition, the disqualified-from list includes, notably, presiden- tial electors, who are not listed in the Constitution as persons required to swear an oath to the Constitution. The wording also appears designed to clarify that the ban extends to “military” offices—including state military offices—whether or not they would be considered “executive” offices under state law or Article VI. Thus, in general: If the original Constitution required an oath for a position, Section Three treats hav- ing held such a position as the trigger for Section Three’s application. And if a person who once held any such position is disqualified under Section Three for engaging in or supporting insurrection, that person is barred (absent congressional relief) from holding any of those same positions plus disqualified from being an elector for Presi- dent and Vice President. That seems to be the basic structure of the provision.

Our third observation is related. It appears to us that the text’s overall project of office-listing, in both clauses, was designed to be reasonably comprehensive, cover- ing the waterfront: both taking care not to accidentally leave out anything considered important—including everybody who was constitutionally required to have sworn an oath—and adding positions where appropriate, as with adding the category of elec- tors to the list of positions from which a covered person is disqualified.

381 U.S. Const. art. VI, cl.3.
382 U.S. Const. art. II, §1, cl. 8. On the Presidential Oath Clause generally, see Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1260-1267 (2004); on “to the best of my Ability,” see William Baude, Signing Unconstitutional Laws, 86 Ind. L.J. 303, 310 (2011).

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With these principles in mind, it appears to us that the two clauses—describing what past positions trigger disqualification and what future positions fall within the scope of that disqualification—can and should be read, together, in a straightforward manner. First, as to the persons to whom the provision applies (the second, “trigger- ing” clause): Section Three’s disqualification attaches to persons who previously swore an oath to support the Constitution as:

[i] a “member” of Congress, or as
[ii] an “officer of” the United States, or as
[iii] a “member” of any State legislature, or as
[iv] an “executive or judicial officer of” any State.383

These four categories are then closely paralleled (with differences noted) in the de- scription of offices from which covered persons are excluded (the first clause). Covered insurrectionists, rebels, and aid-and-comforters are disqualified from being:

[i] “a Senator or Representative” in Congress (paralleling “member,” a seem- ingly purely stylistic variation) or
[ii] an elector for President or Vice President (a new exclusion from a position that is not an oath-required triggering position); or

[iii] holding “any office, civil or military,” “under” either federal or state gov- ernment (paralleling “officer” of the United States or of any State, respectively, in the second and fourth triggering categories above—with the noted clarifica- tion of the inclusion of “military” officers).

The description “civil” office, in the disqualified-from list seems designed to embrace the categories of “executive or judicial” officer in the triggering list. Though somewhat more awkward, we think an elected office in a state legislature also qualifies as a “civil” office within the language and design of Section Three, reading the word “of- fice” in this context in an ordinary, non-technical sense.384

The overall result is a broad list of disqualification-triggering positions cover- ing essentially every major federal or state legislative, executive, and judicial office; and a list of barred-from positions embracing all of the above plus electors for presi-

383 U.S. Const. amdt. XIV, sec. 3.
384 Hemel, How-to Guide, supra note 5 (setting forth arguments why state legislative offices are in- cluded within the general catch-all category of excluded-from “civil” offices.); contra John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 54 (1878). None of this in our view affects the question whether a Member of Congress may properly be designated as an “Officer” to whom the duties of the office of President may devolve upon presidential and vice-presidential death, resignation, or inability, which turns on different considerations. Compare Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995) with John F. Manning, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 Stan. L. Rev. 141 (1995).

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dent and vice president (and clarifying “military”). The legislative positions in ques- tion are the relevant elected offices—members of the legislature, whether a state leg- islature or the federal Congress—and do not embrace unelected staff positions. The executive positions embrace anyone in the executive branches of federal or state gov- ernment who holds an “office” within that branch.

To be sure, there might be ancillary questions concerning what federal execu- tive and judicial positions qualify as an “office,” held by an “officer”—as opposed to non-officer, non-“office”-holding employees. That is: exactly how far down the organ- izational chart does the list of triggering and disqualified-from positions go?385 Like- wise, for the federal judicial branch, Article III judges and justices are plainly cov- ered. (Other officers in the judicial branch, such as the clerks in Ex Parte Hennen,386 are presumably covered as well—as well as perhaps bankruptcy judges, magistrate judges and the like.)387 Non-office-holding employees, again, would not be covered. And of course there might be similar residual questions as to what state government positions constitute state executive “office” held by “officers” (thus, perhaps, the spe- cial need for designation “military,” to be sure state military positions are included), and what state judicial-branch positions constitute a judicial office. But in the main, the description of who all is covered by Section Three and what offices such person, if disqualified, is excluded from holding strikes us as fairly straightforward.

The only challenge anyone has raised concerning this general description is the argument by professors Josh Blackman and Seth Tillman that a person who has served as President (and the same argument is made as to Vice President), whileperhaps having held an office “under” the United States, is not properly classified as an “officer of” the United States.388 On this view, disqualified persons might be barred from being President or Vice President—the authors are somewhat non-committal about this389—but having been President or Vice President, and engaged in insurrec- tion or rebellion, does not trigger disqualification of an individual from anything! On this argument, the President and Vice President—alone among constitutional oath- takers—are exempt from Section Three’s consequences for committing treason to that oath.

386 38 U.S. 230, 258 (1839) (“[T]hat

387 That said, to the extent that one maintains that magistrate judges and bankruptcy judges cannot lawfully exercise judicial power or executive power of their own, see William Baude, Adjudication Out- side Article III 133 Harv. L. Rev. 1511, 1554-56, 1574-75 (2020), one might question whether they are truly “officers” at all. Again, we leave this issue for another day.

388 Josh Blackman & Seth Barrett Tillman, Is The President An “Officer of the United States” For Purposes of Section Three of the Fourteenth Amendment?, 15 N.Y.U. J. L. & Liberty 1 (2021).
389 See, e.g., id. at 6, 17, 21.

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385 Serious scholarship has explored those questions with respect to the Appointments Clause. Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443 (2018). We do not address that somewhat peripheral question here, but leave such issues for another day.

a clerk is one of the inferior officers contemplated by [the Appoint-

ments Clause] cannot be questioned”). To be clear, Hennen dealt with the clerk of court, not what we

would now call a term judicial law clerk.

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We do not buy it, for many reasons: First, it adopts precisely the type of “secret code” hidden-meanings hermeneutic we think should be viewed extremely skepti- cally. Moreover, the code has a facially implausible consequence: an insurrectionist President is not covered by Section Three’s disqualification (though nearly every other federal or state officeholder is); the President is (perhaps?) a disqualified-from office but not a disqualification-triggering office. This makes little sense.390

Second (and relatedly), the argument rather implausibly splits linguistic hairs. No one denies that the President is an executive branch officer holding executive of- fice. At the risk of belaboring the obvious: Article II refers to the “office” of President innumerable times. It specifies the length of term for which the President “holds his Office,” certain minimum qualifications for eligibility “to that Office,” what happens upon the President’s removal “from Office,” or inability to discharge “the Powers and Duties of said Office,” and the oath he shall take before entering “on the Execution of his Office.”391 If the Presidency is not an office, nothing is.

So the argument must rely instead on the fine parsing of prepositional phrases. The President (perhaps?) holds an “office under” the United States but is not an “of- ficer of” the United States? This seems to defy textual common sense. Far more sen- sible and straightforward to conclude, we think, that the officeholder holding the of- fice of President is an officer “of” the United States who holds office under the author- ity of the United States. The minor textual difference between the triggering clause (“officer of”) and the positions-disqualified clause (“office under”)—a choice between prepositions—appears to be of no significant substantive consequence in Section Three, much as other minor textual variations in or among constitutional provisions often do not support differences in meaning.392 Indeed, one far simpler and morestraightforward explanation for the Constitution’s use of “office under” and “officer of” in Section Three and elsewhere is that “office” and “officer” simply take different

390 To be sure, faithful readings of the Constitution sometimes yield counterintuitive outcomes. See Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 Const. Comm. 245 (1997); (sug- gesting the possibility that a straightforward reading of the constitutional text yields the “stupid” – and surely inadvertent – result that the Vice President would be the presiding officer over his own impeachment trial in the Senate and that this is a result to be rectified); Baude & Sachs, Grounding, supra note 9, at 1468. But that does not mean we should close our eyes to plausibility and common sense, especially when the proposed textual reading is such a stretch. See also Paulsen, supra, Nothing But the Text, supra note 10, at 1439-1440 (noting cautions concerning use of the “absurdity” canon to deny plain textual meaning, but noting how the canon is a sometimes useful tool in discerning actual textual meaning.).

391 See generally U.S. Const. Art. II.

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392 For instance, consider the differently phrased, but seemingly identical enforcement clauses of the Reconstruction Amendments. U.S. Const. amdt. XIII, sec. 2 (“Congress shall have power to enforce this article by appropriate legislation.”); id. amdt. XIC, sec. 5 (“The Congress shall have power to en- force, by appropriate legislation, the provisions of this article.”); id. amdt. XV, sec. 2 (“The Congress shall have power to enforce this article by appropriate legislation.”). Or consider the Constitution’s “gratuitous (one could also say strange) punctuation marks.” Kesavan & Paulsen, West Virginia, supra note 127, at 348 (giving examples).

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prepositions: the Constitution uses “of” when referring to an officer and “under” when referring to an office.

Finally, even if a plausible argument can be constructed that the difference might have once been thought capable of sustaining a term-of-art distinction with respect to different prepositional phrases in the original Constitution—surmounting the presumption against “secret code” interpretation—there is no evidence of such a distinction in Section Three and little logic to such a distinction either.393

Third, a variant of the Blackman-Tillman argument was explicitly made and explicitly refuted in the congressional debates proposing Section Three. Senator Reverdy Johnson of Maryland charged that the language employed was defective be- cause the offices of President and Vice President had inadvertently been omitted from Section Three. The amendment “does not go far enough,” Johnson averred.394 “I do not see but that any one of these gentlemen may be elected President or Vice Presi- dent of the United States, and why did you omit to exclude them?”395 Johnson was complaining that these two officers should be included in Section Three and there was no good reason to omit them. Whereupon Senator Morrill of Vermont interrupted: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”396 Senator Johnson promptly, and somewhat sheepishly, retreated: “Perhaps I am wrong as to the exclusion from the presidency; no doubt I am; but I was misled by noticing the special exclusion in the case of Senators and Representatives.”397

The Blackman-Tillman argument is not quite the same, but it is the mirror image of Johnson’s concern. Johnson’s inquiry was whether a covered, insurrectionist nonetheless might become president. The Blackman-Tillman argument is that an in- surrectionist president is not an “officer of” the United States whose prior position

393 One of us has previously complimented Tillman’s prior scholarship that attempts to prove such a systematic term-of-art/secret code in the original Constitution. William Baude, Constitutional Offic- ers: A Very Close Reading, JOTWELL (Jul. 28, 2016) https://conlaw.jotwell.com/constitutional-officers- a-very-close-reading/. But the very pieces of evidence that are most arresting in that context also con- firm extensive linguistic drift or changing understandings in the decades after the founding. Compare id. (foreign gifts to Washington) with Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 190 (2013) (contrary practice by Presidents Van Buren, Tyler, and Jackson); compare Baude, supra this note (Hamilton’s list) with Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated, at 20- 21 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3037107 (describing a scrivener’s “condensed” version of this document likely made “circa 1830” that may reflect a different understanding of the constitutional terms); cf. Blackman & Tillman, supra note 388, at 24-31 (acknowledging, and arguing against, the possibility of linguistic drift). In other words, such secret code (if any) turns out to have been written in disappearing ink.

394 Cong. Globe, 39th Cong., 1st sess. at 2899 (1866) 395 Id.
396 Id.
397 Id.

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triggers Section Three’s restrictions on future office. The Johnson-Morrill colloquy does not specifically address that reverse-image argument. But it certainly suggests that the framers of Section Three were not parsing it as a secret code with facially implausible consequences. The question whether Section Three applied to former Presidents and Vice Presidents does not appear to have been raised again, by any- one.398 Nor did anybody else involved in drafting or ratifying Section Three suggest that the mirror-image question would be any different. Subject to all the usual reser- vations about the use of legislative history (and legislative silence) in determining textual meaning, this further confirms the more natural reading. The only time any- thing like the question was raised, the point was answered by a proponent of Section Three, clearly and unequivocally, and the questioning Senator accepted the answer as correct.

Fourth and finally, in an additional piece of prepositional jujitsu, Blackman and Tillman tellingly equivocate about whether the President holds “office under” the United States as well. (If he does, Section Three stops covered insurrectionists from becoming President, and if not, not.) Blackman and Tillman do not deny this possi- bility, but they do not confirm it either. The difficulty for them is that both answers show the implausibility of their position.

If Blackman and Tillman maintain that the President does not hold “office un- der” the United States, then they must fly in the face of the directly on point discus- sion between Senators Johnson and Morrill. They must claim to understand Section Three better than its framers. This seems unlikely. But if they confirm that the Pres- ident does hold “office under” the United States, then they must maintain a sharp and crucial distinction between “office under” and “officer of.” As Mark Graber has observed, this distinction was also contradicted by Section Three’s framers: “[T]he members of the Congress who framed Section 3 of the 14th Amendment often indi- cated—and sometimes explicitly stated—that all persons who held office ‘under the United States’ were officers ‘of the United States.’ During the debates over Section 3,no representative or senator alluded to the existence of a distinction between ‘of’ and ‘under’. Representatives and senators often described the president as having an ‘of- fice under the United States’ and being an ‘officer of the United States.’”399 If a secret

398 Former President John Tyler of Virginia subsequently sided with the Confederacy and was elected to the Confederate congress (but died before assuming office). And former Vice President John Breckin- ridge subsequently served as a Confederate general and, later, as Confederate Secretary of War. See Blackman & Tillman, supra 388, at 45-46 (acknowledging this). While Tyler and Breckinridge had served in other disqualification-triggering posts, if the text really had failed to include the offices of President and Vice President as triggering disqualification these incidents would have shown that to be a glaring and dangerous omission.

399 Mark Graber Disqualification From Office: Donald Trump v. the 39th Congress, Lawfare (Feb. 24, 2023). Professor Graber notes further that a “unanimous House select committee report issued barely a month after Congress sent the 14th Amendment to the states concluded that ‘a little consideration of this matter will show that ‘officers of’ and ‘officers under’ the United States are ‘indiscriminately used in the Constitution.’’” In addition, “[t]he most comprehensive study of state ratification . . . does not point to a single example of any journalist or participant in a state convention who distinguished

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code was really at work, it was an extraordinarily well-kept secret. The implausibility of both horns of the Blackman-Tillman straddle demonstrates the implausibility of their position.

In short, the ordinary sense of the text; the structure and logic of its provisions; the evident design to be comprehensive; the text’s many references to the office of the Presidency as an “office”; the seeming absurdity of the prospect of exclusion of the offices of President and Vice President from triggering the disqualification fashioned by the Radical Reconstruction Congress that drafted the Fourteenth Amendment; the fact that the only legislative debate over the language discussing whether Section Three inadvertently omitted the offices of President and Vice President rejected anysuch suggestion; and the fact that no one ever suggested that the “under/of” difference meant the presidency was not a covered office triggering Section Three, all convince us that the natural conclusion is the correct one: Section Three includes in its cover- age, or “triggering” language, insurrectionists who once served as President and Vice President. And Section Three excludes disqualified insurrectionists from subse- quently holding the office of either President or Vice President.

C. The Attempted Overthrow of the 2020 Presidential Election

We come finally to the urgent question of the day: How does Section Three apply to the events of 2020-2021—the efforts by Donald Trump (and others) to over- throw the results of the 2020 presidential election and install Trump as president for another term, despite his loss to Joseph Biden?

Consider the overall package of events: the dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for states’ selection of electors for President and VicePresident; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several states; the efforts of Members of Congress to reject votes lawfully cast by electors; and, finally, the foment- ing and incitement of a mob that attempted to forcibly prevent Congress’s and the Vice President’s counting of such lawfully cast votes, culminating in a violent and deadly assault on the Capitol (and Congress and the Vice President) on January 6, 2021.

between ‘officers under’ and ‘officers of’ or who otherwise thought a president who participated in an insurrection could not be disqualified under Section 3.’” John Vlahoplus, Insurrection, Disqualification, and the Presidency, 13 Brit. J. Am. Legal Stud. (forthcoming), https://papers.ssrn.com/sol3/pa- pers.cfm?abstract_id=4440157; see also Lynch, supra note 5, at 158-160 (collecting authorities sup- porting the same point); Magliocca, Foreground, supra note 62, at 16 n. 48 (“My research . . . shows that President Andrew Johnson repeatedly referred to himself as “the chief executive officer of the United States”).

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Taken as a whole, these actions represented an effort to prevent the lawful, regular, termination of President Trump’s term of office in accordance with the Con- stitution. They were an attempt to unlawfully overturn or thwart the lawful out- come of a presidential election and to install, instead, the election loser as president. They constituted a serious attempt to overturn the American constitutional order. Does Section Three cover this conduct? Did these events constitute “insurrection” or “rebellion” within the meaning of the Constitution? And if so, who all might be said to have “engaged in” that conduct, or given “aid or comfort” to those who did? We will consider those questions in turn.

1. The Question of Coverage: Insurrection and Rebellion

We begin with the general legal question whether the attempted overturning of the result of the 2020 presidential election is covered by Section Three in any re- spect. Do such efforts, in part or in whole, qualify as insurrection or rebellion, dis- qualifying prior-oath-swearing persons who participated in such acts from future of- fice? In our view, based on all the foregoing analysis, the answer is yes.

There are multiple arguments for how Section Three would apply to the events of 2020-2021, but let us first focus on the events of January 6, 2021.400 These include first the cluster of actions taken in assembling, encouraging, charging, and inciting an armed (in part) mob, producing the January 6, 2021 attack on the Capitol, Con- gress, and the Vice President. For some, importantly including Trump, these acts would also include subsequent deliberate inaction against the January 6 attack—by persons with duties and capacity to act to suppress, halt, or quell the insurrection in progress—that effectively facilitated, permitted, aided, and encouraged such insur- rectionary violence.

Overall, it seems to us to be quite clear that the specific series of events leading up to and culminating in the January 6, 2021 attack qualifies as an insurrection within the meaning of Section Three: “concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.”401 The large group of people who descended upon, entered, and occupied the U.S. Capitol building used force to prevent a key step in the constitutional transfer of power. The group was in part coordinated, not merely a riot.402 Some members of the group were

400 In describing these events, we rely generally here and throughout on the public record assembled by the House January 6th Committee. Final Report, Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. 117-000 (117th Cong., 2nd Sess.). Of course, to the extent that a potentially disqualified officer wished to prove that this public record was inaccurate or incom- plete as relevant to them, they could attempt to do so in the relevant proceedings and to the relevant decisionmaker. See generally supra Part II.B.

401 Supra Part IV.A.1. The fact that President Trump may have supported the insurrection, see infra II.C.2.b, does not change this. In our system the President is not “the government,” and especially not when Congress is carrying out a constitutionally mandated role in supervising the transfer of power. 402 See, e.g., January 6 Report, supra note 400, at 499-502, 530-531.

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armed,403 and many used force to breach the Capitol, to overpower law enforcement there, and to effectuate their unlawful aim.404

Furthermore, it seems that, as a whole, the group’s goal—to the extent the group had a specific objective in mind—was to disrupt the constitutional transfer of power, by disrupting a necessary formal step in the constitutional process.405 The in- vasion of the Capitol on January 6 was not simply a violation of the law (though it was that of course). It was not merely a protest of a particular legal measure, but a forcible prevention and disruption of it. And it was not the disruption of just any legal measure, but of one that was itself central to the allocation of authority under our Constitution. If this is a fair description of what happened on January 6, then that day was something quite different from more common acts of protest, even disruptive protest. January 6 was an insurrection.

To be sure, the events of January 6 itself—the attack on Congress and the Capitol—did not remotely rival in overall magnitude, or in sheer carnage, the expe- rience of the U.S. Civil War, where more than 600,000 people died. Still, considered as discrete events, it is notable that more people died, and many more were injured, as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries as a result of the attack on Fort Sumter. The events of January 6 match, in their essential elements—concerted resistance to federal authority, serious attempts to frustrate execution of national law, attacks on government officials and facilities, in- timidation and violence—and arguably exceeded in their seriousness, the events of the Whiskey Rebellion, Fries’ Rebellion, and other more limited historical insurrec- tions. And at all events, it is less the magnitude or degree of disruption occasioned by an insurrection than whether it fits within the broad meaning of Section Three, as illuminated by evidence of its original meaning and historical understandings. As thePrize Cases teach, not every insurrection or rebellion ripens into a full-fledged war.406 Most of the time, the authority of the state can nip it in the bud. But it is still an insurrection.407

Our assessment of the events of January 6, specifically, as an “insurrection” confirms the judgment made by public authorities: An act of Congress, to “award four

403 Id. at 640-642.
404 Id. at 646-647, 651-659.
405 Id. at 502-510, 521-530.
406 See supra Part IV.A.4.c.
407 What about other disruptive, disorderly, even violent protests during the same year? For in- stance, the many such events that erupted during the summer of 2020 in the wake of the police kill- ing of George Floyd? So far as we can tell, none of these were covered by Section Three. Of course mere protest is not insurrection. Some of these protests devolved into riots, but even a riot is not nec- essarily an insurrection. And even if some of them went further, amounted to “concerted, forcible re- sistance to the authority of government to execute the laws in at least some significant respect,” and met the definition of insurrection, they would seem to be insurrections against the state govern- ments, not the United States, and thus outside the scope of Section Three. But of course if there were other insurrections against the United States, Section Three applies to them all.

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congressional gold medals to the United States Capitol Police and those who pro- tected the U.S. Capitol on January 6, 2021,”408 found that the events of January 6 constituted an insurrection. The text of the act contains an official finding: “On Jan- uary 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building and congressional office buildings and engaged in acts of vandalism, looting, and vi- olently attacked Capitol Police officers.”409 Another finding noted the historic magni- tude and symbolic importance of that insurrection against democracy: “The desecra- tion of the U.S. Capitol, which is the temple of American Democracy, and the violence targeting Congress are horrors that will forever stain our Nation’s history.”410 The impeachment charges brought against President Trump as a result of January 6 were equally explicit in concluding that the events of January 6 constituted an insurrec- tion. A majority of the House of Representatives approved (232 to 197) an article of impeachment charging then-President Trump with “incitement of insurrection” for the events of January 6th.411 The Senate’s vote to convict Trump of this charge, while falling short of the two-thirds majority required by the Constitution’s impeachment process, constituted a substantial majority (57 to 43) of the Senate endorsing the House’s charge and characterization. Majorities of both houses of Congress thus de- termined—at least twice—that January 6th was an insurrection; and in the impeach- ment proceedings majorities of both houses determined that Trump was responsible for having incited that insurrection.412

Finally, there is an additional possibility that we should see the events of Jan- uary 6, 2021, as just one part of a broader “rebellion” against constitutional govern- ment, much like secession—actions seeking unlawfully to displace or replace the au- thority of lawful constitutional government and substitute a constitutionally unau- thorized governmental authority in its stead.

408 Pub. Law. 117-32 (Aug. 5, 2021), 135 Stat. 322.
409 Id. sec. 1(1). In the state Section Three proceedings against Marjorie Taylor Greene, supra notes 68-73 and accompanying text, the hearing officer cited this statute to conclude “Congress has charac- terized the Invasion as an insurrection.” Initial Decision, Rowan v. Greene, No. 2222-582-OSAH-SEC- STATE-CE-57-Beaudrot, at 9-10 (Georgia Office of State Administrative Hearings, May 6, 2022). The hearing officer found it unnecessary to decide for himself, however, “Whether the Invasion of January 6 amounted to an insurrection.” Id. at 18.
410 Pub. Law. 117-32, sec. 1(4).
411 H. Res. 24 (117th Cong., 1st Sess. Jan 25, 2021).
412 For what it is worth, other scholars have also agreed that January 6th was an insurrection. See Magliocca, Foreground, supra note 62, at 23 n.65 (“January 6th was an insurrection within the mean- ing of Section Three, in part because the mob disrupted a constitutionally required act – the formal counting of the electoral votes under the Twelfth Amendment –and prevent the lawful transfer of authority.”); Vlahoplus, supra note 399, at 1 (referring to “The insurrection of January 6.”); Farah Peterson, Our Constitutionalism of Force, 122 Colum. L. Rev. 1539, 1622-25 (2022); see also Hemel, How-to Guide, supra note 5 (“[T]he constituted government in the United States is not any single individual but the constellation of institutions that facilitate the lawful exercise and peaceful transfer of power. A sitting president who seeks to subvert those institutions through violence is no less an insurrectionist than a lower-level official or private citizen who seeks to do the same.”).

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We acknowledge that applying the term “rebellion” to the events of 2020-2021 goes beyond the Civil War era dictionaries. The attempt to overturn the 2020 election was neither an “

coup d’etat seeking to overthrow the constitutional order— including a so-called "bloodless” coup d’etat (where no force is used) and a successful “self-coup” of the bloodless variety414 (where the existing unlawful regime commands such force that it need not be used). Consider the following chain of logical steps: 1. A military coup d’etat upending lawful government by use of force surely qualifies, constitutionally, as a “rebellion.” It is literally an effort unlawfully to overthrow con- stitutional government, by force. 2. It follows that a military coup d’etat upending lawful government by show or threat of force should be treated the same way, even though force was not used. 3. A military coup d’etat by the existing regime—a “self- coup,” would seem, legally, to be the same thing. In such a case the regime does not seize power, by show or threat of force; it retains power by show or threat of force. But it is logically identical to situations #1 and #2. 4. A “bloodless" self-coup against the lawful regime, where no force is used because none is needed, should be treated the same as #3. Indeed, it seems fair to say that situation #4 is merely an instance of situation #3. 5. The same self-coup attempt, but that styles itself as not renouncing but instead as restoring or maintaining, the constitutional regime—but that in truth seeks to overthrow or defeat that regime—logically should be treated the same as #4. If one accepts this chain of reasoning, one might then fairly conclude that the entirety of the course of conduct attempting dishonestly and unlawfully to overthrow the 2020-2021 election constituted a “rebellion,” even though this might

stretch somewhat the dictionary definitions of the term.415

Calling the events of 2020 and 2021 “insurrection” or potentially even “rebel- lion” might seem to some exaggerated or hyperbolic. It is not. It is simply being legally precise and not shying away from difficult or upsetting consequences that flow from

413 See supra Part IV.A.2.
414 See generally Daniel J. Hemel, Self-Coup and The Constitution, 37 Const. Comm. (forthcoming 2023).
415 In similar fashion, we note that—at least at first—the purported “secession” of a state from the Union was not universally acknowledged to be itself an act constituting “rebellion” as a legal matter It too did not fit perfectly the standard dictionary definition (unless and until force was used or threat- ened). But the logic of the matter led Lincoln—and Congress, and the Supreme Court—to conclude that secession, in practical and legal terms, was a species of “rebellion” and legally to be treated as such. See supra Part IV.A.4. As set forth in the text, the same logic suggests that conduct tantamount to an attempted coup d’etat (including attempting to maintain a defeated incumbent president in of- fice, dishonestly and unlawfully) may fairly be characterized, legally, as “insurrection or rebellion.”

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open and avowed renunciation of the authority of the government,”

as Webster would have it, nor (outside of the insurrection of January 6) “the taking

up of arms” or “forcible opposition” as Bouvier would have it.413 It is not a perfect fit.

Nonetheless, consider the argument that the term “rebellion” could be used

more broadly to describe a

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legal precision. We believe it is important to call the events of 2020 and 2021 by their true legal names, their right names, unshielded by artful euphemism.416

2. The Question of Participation: “Engaged in” and “Aid or Comfort”

This brings us to the rubber-hits-the-road question: Who all, by virtue of their personal, voluntary conduct, can be said to have “engaged in” insurrection or rebellion in connection with the efforts to overthrow the result of the presidential election of 2020 and unlawfully maintain Donald Trump in office as President of the United States? Who, while perhaps not a direct or indirect participant in insurrectionary or rebellious conduct, provided “aid or comfort” to those who did?

As detailed at great—perhaps excruciating—length above, “engaged in” under Section Three is properly understood to embrace a broad range of willful participatory conduct. This includes, certainly, deliberate acts in the nature of planning, promot- ing, encouraging, counseling, supporting, materially assisting, advancing, or facili- tating activity or plots that can fairly be characterized, legally, as “insurrection” or “rebellion.” And, as noted, in certain circumstances it might well include inaction supporting insurrection. Finally, giving “aid or comfort” to insurrection or rebellion arguably expands the range of acts of participation, support, and encouragement that qualify as triggering Section Three’s disqualification.417

Who, then, engaged in such behavior?

a. General Principles Concerning Culpable Participation

Some applications of Section Three are factually straightforward. Others might involve potentially more difficult questions of fact and proof concerning the degree and nature of an individual’s voluntary and intentional participation in (i) the overall plot and concrete efforts to overthrow the election and install Trump as pres- ident re-elect; (ii) the assembly, instigation, and incitement of a mob to attack the Capitol on January 6, 2021 to prevent certification of the election outcome; or (iii) the willful failure to take action to suppress the attack on Congress while it was in pro- gress.

As discussed in Part II, above, judgments concerning the application of the legal standards of Section Three to specific individuals may and must be made by a variety of public actors—all those whose responsibilities call for application of the Constitution’s criteria for eligibility to hold office. The ultimate judgment will rest with different actors and institutions in different circumstances: sometimes by state

416 For the sake of completeness, we add that we think the events of 2020-2021 probably do not rise to the level of “treason” or “levying war” against the United States, though of course it is possible that further investigation will reveal truly treasonous conduct that is not yet on the public record.
417 See generally supra Part IV.A.

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election officials; sometimes by presidential electors; sometimes by state and federal executive branch officials; sometimes by the respective houses of Congress or by state legislatures. In many cases, the judgment ultimately will fall to state and federal courts, including the U.S. Supreme Court. Everybody in such positions is bound to apply Section Three faithfully and enforce its commands rigorously.

That said, from our interpretation of Section Three’s broad sweep, it is clear that at least two purported factual defenses are simply immaterial:

First, it is no defense that an individual might claim that his or her conduct does not constitute having engaged in or supported “insurrection” or “rebellion” be- cause the election was in fact stolen—that is, that Trump in fact won the election— making it legitimate to “stop the steal.” The problem is that the premise is simply false. Decisionmakers can and should act on the well settled factual understanding that Joe Biden won, and Donald Trump lost, the election of 2020.418

Second, it likewise is no defense that an individual believed (even if mistak- enly) that the election had in fact been stolen, or believed that their insurrectionary conduct was somehow lawful. That one may have been deluded or deceived by disin- formation does not excuse acts of insurrection or rebellion. And as the South’s seces- sion and the resulting Civil War illustrate, a bogus and unsuccessful constitutional theory does not excuse them either. In other words, there is no mistake-of-insurrec- tion defense to Section Three.419 Acts intentionally done as part of what is in fact and in law insurrection or rebellion are covered, irrespective of an individual’s wrong subjective belief that no such insurrection or rebellion occurred, or the rea- sons for such wrong belief.420

b. Section Three Disqualifies Donald Trump from Future Office

The most politically explosive application of Section Three to the events of Jan- uary 6, is at the same time the most straightforward. In our view, on the basis of the public record, former President Donald J. Trump is constitutionally disqualified from again being President (or holding any other covered office) because of his role in the

418 See not only the January 6 Report, supra note 400, but also John Danforth, Benjamin Ginsburg, Thomas B. Griffith, David Hoppe, J. Michael Luttig, Michael W. McConnell, Theodore B. Olson & Gordon H. Smith, Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election (2022), https://lostnotstolen.org.

419 This is consistent with principles of mens rea that distinguish knowledge of what one is doing from knowledge of the proper legal characterization of what one is doing. See, e.g., Counterman v. Colorado, 600 U.S. ___, at 4 n.2 (2023).
420 Now what if the shoe were on the other foot? What if Trump had somehow succeeded in unlawfully holding apparent office after January 20, 2021? Would comparable actions by Biden supporters have constituted “insurrection”? We think not. The true facts matter. A rebellion against lawful government is rebellion, but acts of counter-insurgency against an attempted coup d’etat are not.

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attempted overthrow of the 2020 election and the events leading to the January 6 attack.

The case for disqualification is strong. There is abundant evidence that Trump deliberately set out to overturn the result of the 2020 presidential election result, calling it “stolen” and “rigged”;421 that Trump (with the assistance of others) pursued numerous schemes to effectuate this objective; that among these were efforts to alter the vote counts of several states by force, by fraud, or by intended intimidation of state election officials,422 to pressure or persuade state legislatures and/or courts un- lawfully to overturn state election results,423 to assemble and induce others to submit bogus slates of competing state electors,424 to persuade or pressure Congress to refuse to count electors’ votes submitted by several states,425 and finally, to pressure the Vice President unconstitutionally to overturn state election results in his role of pre- siding over the counting of electors’ votes.426

Leading up to January 6, Trump repeatedly solicited, suborned, and pressured Vice President Mike Pence to prevent the counting of the electoral votes in favor of President-elect Biden.427 Not only that: Trump assembled a large crowd to march on the Capitol and intimidate Congress and the Vice President into complying with his wishes and thereby prevent the official counting of the votes of electors confirming Trump’s defeat. Trump had announced on Twitter a protest to be held on January 6, 2021: “Big protest in D.C. on January 6th. Be there, will be wild!”428 According to testimony amassed by the House’s January 6th Commission, Trump’s supporters in- terpreted this as a call to arms, sometimes literally.429

Then there are the events of January 6 specifically. When January 6 arrived, Trump delivered an incendiary address at the White House Ellipse to the crowd of supporters he had effectively summoned to the Capitol to oppose what he had been calling the “steal” of the election. Trump reiterated his false claim that he had in fact won the election—“we won this election and we won it by a landslide”—but that the Democrats and the media had “stolen” the election and “rigged” a false outcome. “They rigged it like they’ve never rigged an election before,” he charged. “Make no mistake, this election was stolen from you, from me and from the country. ... This [is] the most corrupt election in the history, maybe of the world.” The crowd was “gath- ered together in the heart of our nation’s capital for one very, very basic and simple

421 And not that it matters, see supra Part IV.C.2.a, but it also appears that Trump knew that these accusations were false. See January 6 Report, supra note 400, 100-01, 103-04, 203, 213, 789.
422 Id. at 202-203, 263-265; see also id. at 223-231,
423 Id. at 296-300.

424 Id. at 341-354.
425 Id. at 431.
426 Id. at 441-458.
427 Id. at 441-458.
428 Quoted in id. at 499. 429 Id. at 499-540.

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reason: To save our democracy.” Trump called on the crowd to march on the Capitol. “Our country has had enough. We will not take it anymore and that’s what this is all about. ... We will stop the steal.” He urged the assembled mass of thousands, some of whom Trump knew to be armed, to “fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”430

Some might quibble that the speech is ambiguous.431 Not all of Trump’s ram- bling address called literally for the crowd to “fight.” Some of his statements were ambiguous and at one point he remarked that the crowd would be marching “peace- fully and patriotically.”432 He never directly and literally called for attacking the Cap- itol or the Vice President. Much of what might be thought incitement to lawlessness was innuendo. Nonetheless, the general and specific message was that the election had been stolen; that a constitutional fraud of colossal proportions and cataclysmic consequence was in the process of being perpetrated on the nation; that the crowd needed to take “strong” and direct action to protect the country; and that immediate action was necessary to prevent Vice President Pence and Congress from ratifying the unconstitutional election of an illegitimate president and doing irreparable dam- age to the nation.

These ambiguities have given rise to a debate about whether Trump’s speech did or did not cross the strict incitement threshold of Brandenburg v. Ohio.433 It could well be that it did cross the line: Trump had deliberately assembled the mob of sup- porters, steeled them to action, knew that they were ready to take immediate action, and directed them to take it.434 But the most important thing is that the Brandenburg question is beside the point. Section Three of the Fourteenth Amendment does not enact the legal standard of Brandenburg v. Ohio. It enacts the standard of having “engaged] in insurrection,” or given “aid or comfort” to those doing so, and qualifies,

430 For the quotations in this paragraph, see “Transcript of Trump’s Speech at Rally Before US Capitol Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election-2020-joe- biden-donald-trumpcapitol-siege-media-e79eb5164613d6718e9f4502eb471f27. See also id. (“And again, most people would stand there at 9 o’clock in the evening and say, ‘I want to thank you very much,’ and they go off to some other life. But I said something is wrong here, something is really wrong, can’t have happened, and we fight. We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”).

431 See Michael Conklin, Capital Offense: Is Donald Trump Guilty of Inciting a Riot at the Capital?, 15 U. St. Thomas J.L. & Pub. Pol’y 483 (2022); see also Alan Z. Rozenshtein & Jed Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Rule, 37 Const. Comm. at 2- 3, 20-21 (forthcoming 2023).

432 Transcript, supra note 430.
433 395 U.S. 444 (1969); compare Conklin, supra note 431, with Alexander Tsesis, Incitement to Insur- rection and the First Amendment, 57 Wake Forest L. Rev. 971 (2022); see also Rozenshtein & Shugerman, supra note 431, at 3 n.3 (citing these and other sources and describing this disagreement). 434 As Rozenshtein and Shugerman also emphasize, “Trump’s speech was accompanied by several overt acts in furtherance of inciting an attack against the Capitol,” which they argue takes it outside of the Brandenburg framework for that reason. Rozenshtein & Shugerman, supra note 431, at 38.

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modifies, or simply satisfies the First Amendment to the extent of any conflict be- tween these constitutional principles.435 First Amendment or no, the speech was part of Trump’s participation in and support for the insurrection.

Finally, as events unfolded and the violence began, Trump maintained si- lence—and indeed deliberate indifference bordering on tacit encouragement—for what had by that time clearly become a forcible insurrection. For three hours after learning that his supporters had forcibly invaded the Capitol and were disrupting the constitutional process, Trump took no action to urge them to leave, despite being begged to do so by his advisors and despite having a constitutional duty to take care that the laws be faithfully executed.436 During this same period, while the insurrec- tion was in progress and after the Capitol had been breached, he again condemned Vice President Pence for not “

This culpable inaction—failing to intervene to stop an insurrection in progress, declining to act to arrest a violent uprising, despite having both the capacity and responsibility to intervene—is another crucial part of Trump’s responsibility for theJanuary 6 insurrection. Section Three reaches a broad range of conduct providing meaningful assistance to or support for acts of insurrection or rebellion performed by others, even quite passively.440 Sitting by and doing nothing—declining to act to ar- rest a violent uprising, despite possessing the material capacity and legal responsi- bility to intervene—might qualify. Additionally and equally important, Trump’s de- liberate inaction renders his January 6 speech much more incriminating in hindsight, because it makes it even less plausible (if it was ever plausible) that the crowd’s re- action was all a big mistake or misunderstanding.

435 See supra Part III.D (arguing that Section Three is not limited by the free speech principles of the First Amendment).
436 January 6 Report, supra note 400, at 577-606.
437 Donald J. Trump, Tweets of January 6, 2021, available at https://www.presidency.ucsb.edu/docu- ments/tweets-january-6-2021

438 January 6 Report, supra note 400, at 577.
439 Even as he urged peace in a video to the insurrectionists (“we can’t play into the hands of these people. We have to have peace”) he continued to express affection for them (“So go home. We love you. You’re very special.”) and to reiterate that the “election was stolen from us.” Donald J. Trump, Vide- otaped Remarks During the Insurrection at the United States Capitol, at https://www.presi- dency.ucsb.edu/documents/videotaped-remarks-during-the-insurrection-the-united-states-capitol. Later that night he tweeted: “These are the things and events that happen when a sacred landslideelection victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” Trump Tweets, supra note 437.
440 Cf. notes 345-346 and accompanying text (describing the exclusion of Senator-elect Phillip Thomas).

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hav[ing] the courage to do what should have been done

to protect our Country and our Constitution,”437 a statement that the January 6th Commission concluded was “a statement that could only further enrage the mob” and that in fact apparently did so.438 Once Trump finally did – after several hours and with great reluctance—direct his supporters to leave the Capitol, they quickly dis-

persed.439

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Taking these events as a whole, and judging them under the standard of Sec- tion Three, it is unquestionably fair to say that Trump “engaged in” the January 6 insurrection through both his actions and his inaction. Officials—administrators, courts, legislators—whose responsibilities call upon them to apply Section Three properly and lawfully may, indeed must, take action within their powers to preclude Trump from holding future office,

Moreover, if one accepts the broader argument that the entire campaign to overthrow the results of the 2020 election was a form of constitutional rebellion,441 then Trump’s complicity is even more obvious—as the leader, motive force, and chief attempted perpetrator of that rebellion. Indeed, it would not be going too far to say that Trump, having previously sworn a constitutionally required oath to preserve, protect, and defend the Constitution of the United States knowingly attempted to execute what, had it succeeded, would have amounted to a political coup d’etat against the Constitution and its system of elections and overturn the results of the constitutional process, in order to maintain himself in office as President contrary to law. If that itself constitutes “rebellion” against the Constitution, Trump’s overall course of conduct disqualifies him under Section Three, even apart from the specific incitement to storm the Capitol on January 6.

The bottom line is that Donald Trump both “engaged in” “insurrection or re- bellion” and gave “aid or comfort” to others engaging in such conduct, within the orig- inal meaning of those terms as employed in Section Three of the Fourteenth Amend- ment. If the public record is accurate, the case is not even close. He is no longer eligi- ble to the office of Presidency, or any other state or federal office covered by the Con- stitution. All who are committed to the Constitution should take note and say so.

c. Beyond Trump

Donald Trump is at the top of the list of Section Three disqualifications, but the list does not end with him. The public record to date shows many others who are or may be connected to either the insurrection of January 6 or to a possible broader rebellion. These include government lawyers, executive branch officials, state office- holders, and even members of Congress. It is not for us to definitively say who all these may be—that, as we have said, is ultimately the responsibility and judgment of all those whose public duties call upon them to apply the Constitution’s provisions concerning officeholder qualifications. But to see why this responsibility is urgent, consider the following categories:

Consider first those who marched with—who rose up with—the January 6 mob itself. Some of these folks, such as Couy Green of New Mexico, and Derrick Evans of West Virginia, have already been stripped of or resigned from their state offices, as

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Section Three contemplates.442 They present the easiest case of “engag[ing] in . . . insurrection.” Open and shut.

But many more cases follow. Consider those who were not part of the uprising itself, but who provided planning, encouragement, assistance, or other material sup- port to those who rose up on January 6. Recent proceedings against U.S. Represent- atives Biggs, Gosar, and Greene, for instance, raise this as a serious possibility.443 Pennsylvania State Senator Doug Mastriano—who is also a retired military officer and recent gubernatorial candidate—is said to have transported busloads of people to what became the insurrection and “was near the Capitol during the attack.”444 Former New York City Mayor Rudolph Giuliani worked extensively to overturn the election, and likewise riled the mob at the Ellipse on January 6.445 Trump Chief of Staff (and former legislator) Mark Meadows planned and organized parts of the Jan- uary 6 rally and apparently also “directed that [Giuliani] be allowed to speak” to the crowd.446 These current and former officeholders are also subject to serious challenge under Section Three.

And if one entertains the argument that the entire course of conduct to over- throw the 2020 election was a broader rebellion,447 the list just grows longer and longer. According to the public record: Former National Security Advisor General Mi- chael Flynn proposed a plan to seize voting machines, invalidate election results, and rerun the vote in swing states won by Biden.448 Would-be Trump electors (some of whom came from state political offices covered by Section Three) met on December 14 even in states where Biden’s electors had been chosen, thus laying the groundwork for Trump’s schemes.449 Assistant Attorney General Jeffrey Clark sought to use the power and authority of the Department of Justice to fraudulently upend state election results.450 At least one member of Congress pressed for the removal of more senior Department of Justice officials who opposed Clark’s scheme, and lobbied for the ap- pointment of Clark as Acting Attorney General, thus providing aid and comfort.451 These officials, too, would be subject to challenge.

We could go on, but we have made the point: All persons who betrayed their earlier constitutional oaths by subsequently engaging in conduct (in any of a number

442 See supra notes 85-88, 111-113 and accompanying text.
443 See supra notes 68-80 and accompanying text.
444 January 6 Report, supra note 400, at 294. Such a claim was brought against Mastriano in federal court but dismissed on jurisdictional grounds. See supra note 89.
445 January 6 Report, supra note 400, at 536, 577, 581, 593-594, 608; https://www.rev.com/blog/tran- scripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat
446 January 6 Report, supra note 400, at 533, 535-536.
447 See supra notes 413-415 and accompanying text.
448 January 6 Report, supra note 400, 222.
449 January 6 Report, supra note 400, at 352-353. Several of these would-be electors previously held state and local offices, and so are covered by Section Three.
450 January 6 Report, supra note 400, at 50.
451 Id. at 50 (discussing actions of Pennsylvania U.S. Representative Scott Perry).

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of forms) directed at overthrowing the result of a lawful presidential election or sup- porting an attack on Congress and the Capitol, should face serious inquiry under Section Three. If they try to hold, retain, re-obtain, or seek public office, their eligi- bility for such positions should be stringently scrutinized. That inquiry should be con- ducted by every relevant level of government, from state election officials to the halls of Congress, to the courts throughout the country. In many cases we may not yet even know the full extent of the participation and support for acts of insurrection or rebel- lion in 2020-2021. But we must find out.

Taking Section Three seriously as part of our nation’s operative, ongoing fun- damental law means that such inquiries are constitutionally necessary. Indeed, they are constitutionally required. Taking Section Three seriously, as binding constitu- tional law, means faithfully ascertaining and fearlessly applying the objective, origi- nal meaning of its words and phrases, understood in their historical context, whether we like that meaning or not, and tirelessly following the logic of the text’s meaning to its fair conclusions. The upshot of doing so, we think—the consequence of adhering to constitutional principle—may well be the disqualification from public office of a great many more individuals than is generally recognized. In many cases, the inquiry has not yet begun. It is past time to start the reckoning.

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Conclusion

Despite its long slumber, Section Three of the Fourteenth Amendment is alive and in force. It remains fully legally operative. It is constitutionally self-executing— that is, its command is automatically effective, directly enacted by the Constitution itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional pro- visions. It sweeps in a broad range of conduct attacking the authority of the United States. And it sweeps in a broad category of former oath-swearing officeholders turned insurrectionists or aiders and comforters of insurrection or rebellion. It is en- forceable by anybody whose duties provide occasion for judging legal eligibility for office. Indeed, each of these actors has a duty to faithfully apply Section Three. All possess legitimate constitutional interpretive authority to construe and apply this constitutional prohibition, many of them independently of other actors, including courts.

All of this has obvious, important, and immediate legal implications.

We the People should honor and vigorously enforce this important provision of our Constitution. It should not be allowed to become a dead letter from disuse. Its purpose, while inspired by specific historical events, is one of general and continuing importance. The idea that men and women who swore an oath to support the Consti- tution as government officials, but who betrayed that oath by engaging in or abetting acts of insurrection or rebellion against the United States, should be disqualified from important positions of government power in the future (unless forgiven by superma- jorities of both houses of Congress) remains a valid, valuable, and we think vital pre- cept. Disqualifying candidates and official from office is not something to be done lightly, but Section Three was not enacted lightly. Section Three remains part of our Constitution, part of our nation’s fundamental law. If we honor the Constitution, we must honor Section Three of the Fourteenth Amendment.

That means that those who possess the power and duty to apply and enforce Section Three have a constitutional responsibility to do so, fairly but vigorously. If state election boards or secretaries of state determine that a candidate for state elec- tive office or a candidate seeking to represent that state in Congress is constitution- ally disqualified from holding that office, those state authorities should exercise the state-law powers they possess to remove ineligible candidates from the ballot. If the House or Senate determines that a person elected to serve as a member of such body is constitutionally disqualified from holding such a position, they should refuse to seat or expel that person. And if a candidate for President, or an already-elected Pres- ident, is constitutionally disqualified from office by Section Three, then that disqual- ification should be enforced by state election officials, by electors, by Congress through the impeachment process, and by the Vice-President, cabinet and, Congress in carrying out the Twenty-fifth Amendment. In any and all these situations, and more, where the enforcement of Section Three’s constitutional disqualifications is

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properly presented to the judiciary in a case over which a court possesses jurisdiction, it is the constitutional duty, province, and responsibility of federal and state judges exercising the judicial power to faithfully apply and enforce Section Three according to its terms.

No official should shrink from these duties. It would be wrong – indeed, argu- ably itself a breach of one’s constitutional oath of office—to abandon one’s responsi- bilities of faithful interpretation, application, and enforcement of Section Three. It is wrong to shrink on the pretext that some other officials may or should exercise their authority—as if one’s own constitutional obligations cease to exist if others fail to act. And it is wrong to shrink from observing, and enforcing, the Constitution’s commands on the premise that doing so might be unpopular in some quarters, or fuel political anger, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution.

Importantly, it is also wrong to shrink from applying Section Three on grounds of “democracy,” whether on the premise that Section Three should be ignored or nar- rowly construed because it limits who voters may choose, or on the premise that only the voters should enforce Section Three. It is true, as we have said, that limiting democratic choice is not something to be done lightly, but it is something the Consti- tution does, and for serious reasons.452 The Constitution cannot be overruled or dis- regarded by ordinary election results. (And we note that there is particular irony in invoking democracy to shrink from applying Section Three to the insurrectionists of 2020-2021, who refused to abide by election results and instead sought to overthrow them.)453

Finally, we believe it would be wrong for courts to refuse to decide cases, oth- erwise lawfully within their jurisdiction, concerning Section Three on the pretense that such matters are “political questions.” Outside of certain exercises of power to exclude, expel, or impeach and try, committed to each House’s judgment, Section Three is enforceable by the judiciary as well as by other officials.454 Section Three’s terms embody rules and standards, enforceable as any other constitutional provision is enforceable. There is no freestanding judicial power to abstain from enforcing the Constitution whenever doing so might be difficult or controversial.

452 See Magliocca, Foreground, supra note 62, at 14-24 (arguing at length that “the democracy canon in a seductive but mistaken way of reading Section Three of the Fourteenth Amendment,” and that it “elevates a background constitutional principle in a way that is inconsistent with the text, purpose, and history of Section Three”).

453 See William Baude, The Real Enemies of Democracy, 109 Cal. L. Rev. 2407, 2418-20 (2021) (“The real enemies of democracy, at a more fundamental level, are those who try to ignore the rules of the game after they have already lost it. This past election, that means the real enemies of democracy were President Donald Trump and those who fought for him.”).

454 Supra note 95.

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We think that if these constitutional duties are taken seriously, there is a list of candidates and officials who must face judgment under Section Three. Former pres- ident Donald Trump is at the top of that list, but he is not the end of it. As we have said, it is not for us to say who all is disqualified by virtue of Section Three’s consti- tutional rule. That is the duty and responsibility of many officials, administrators, legislators, and judges throughout the country. Where they are called on to decide eligibility to office, they are called on to enforce Section Three, applying the Consti- tution’s legal standard to the facts before them in a given instance. Our point is to emphasize Section Three’s continuing force, and broad sweep.

At all events, if a President or former President of the United States; a current or former officer of the federal executive branch; a Member or former Member of Con- gress; a current or former state legislator or state executive official; or a current or former federal or state court judge, planned, supported, assisted, encouraged, en- dorsed, or aided in a material way those who engaged in the insurrection of January 6, or otherwise knowingly and willfully participated in a broader rebellion against the constitutional system, such persons are constitutionally disqualified from office. In such situations, Section Three’s constitutional disqualifications can, should, and must be carried out.

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