The Sweep and Force of Section Three
by William Baude & Michael Stokes Paulsen
172 U. PA. L. REV. (forthcoming 2024)
8/9/23
* 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, Richard 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.
Abstract: Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences 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First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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, supersedes, 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 participation 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.
Contents:
Introduction
I. Section Three is Legally Operative Today
A. The Generality and Presumptive Perpetuity of Constitutional Language
B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do So If It Wanted To?)
II. Section Three is Legally Self-Executing
A. Section Three as Automatic Legal Disqualification
B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?
1. Seeking Office
a. by election
b. by appointment
2. Holding Office
3. Special Situations
C. The Problem of Griffin’s Case
1. Background
2. Chase on Section Three
a. “The argument from inconveniences, great as these”
b. The argument from “the intention of the people”
c. The argument that Section Three should not be read to depart from the “spirit” of prior constitutional law
d. The argument from the Section Five enforcement power
3. Griffin’s Self-Defeating and Highly Irregular Dictum
III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional Provisions
A. Bills of Attainder
B. Ex Post Facto Laws
C. Due Process of Law
D. The Ominous Question: Section Three and the First Amendment
IV. Section Three’s Substantive Disqualification is Sweeping
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”; “Aid or Comfort” to “Enemies”
1. Working definitions
2. Contemporaneous Dictionary Definitions
3. Intratextualism
4. Contemporaneous Public, Political, Legal Usage
a. President Lincoln
b. Congress
i. The Ironclad Oath
ii. The Second Confiscation Act
c. The Supreme Court’s decision in The Prize Cases
5. Other Extant Statutory Sources and Notorious Examples
a. The Insurrection Acts (and Insurrections Generally)
b. The Congressional Exclusion Debates
6. Legislative History
7. Early Applications of Section Three
B. What Prior Officeholders are Covered? What Future Offices are Barred?
C. The Attempted Overthrow of the 2020 Presidential Election
1. The Question of Coverage: Insurrection and Rebellion
2. The Question of Participation: “Engaged in” and “Aid or Comfort”
a. General Principles Concerning Culpable Participation
b. Section Three Disqualifies Donald Trump from Future Office
c. Beyond Trump
Conclusion
Introduction
“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 relevance 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, under 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 particular 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; they had purported to form the (so-called) “Confederate States of America” in rebellion 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 Washington 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 Confederacy, 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” of the 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 such acts 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, judicial, 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 electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress’s 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 accordance 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 responsibilities 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, supported, encouraged, assisted, incited, or otherwise participated in the events surrounding 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 interact with the rest of the constitutional order—are its subjects protected by constitutional 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 “engaged 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 Constitution 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. Section 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.
Nor has Section Three somehow been “repealed” by Congress’s two major nineteenth-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 prohibition 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 occurred. Section Three is prospective; Congressional amnesty is retrospective.
Second. Section Three is legally self-executing. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is. It follows that Section Three’s disqualification may and should be followed and carried 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 Constitution whose duties present the occasion for applying Section Three’s commands. Section 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 constitutionally 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 provisions 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 Attainder, 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 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 officeholding persons who “engaged in”—an expansive and encompassing 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 constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others. The substantive terms of Section Three’s prohibition are not themselves difficult or inscrutable (even if there might be questions 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 “insurrection or rebellion” against the lawful constitutional order.
I. Section Three is Legally Operative Today
A. The Generality and Presumptive Perpetuity of Constitutional Language
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 circumstances 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 office-holders-turned-rebels was dramatic. Its operation was hugely disruptive of antebellum patterns of elite political leadership, apparently indifferent to inconvenience, and seemingly rather punitive in its consequences. 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 political impulses of the so-called Radical Republican Congress that proposed the Fourteenth 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 governing power completely, to remake Southern political society thoroughly, and to prevent Southern backsliding from the full consequences of Union victory entirely, than to be concerned about such things as seeming harshness, impracticality, or disruptiveness. 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 specific 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 addressing 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 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 colloquially, 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 ascertaining 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 “person” 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 segregated 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 protection of the laws,” not whether the 1866 Congress and subsequent ratifiers had 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 late1860s language and usage, it doesn’t matter one way or the other whether it was intended or expected that governments could enforce certain types of racial discrimination, like enforced racial segregation. 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 meaning.
Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a general rule in Section Three—a disqualification from future officeholding keyed to having 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 officers,12 it is the general rule that matters. That the rule had a particular political purpose 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 aiders 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
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 Congress “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, essentially 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?
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 categories of individuals—all “political disabilities imposed” by Section Three.20 Another (from 1898) further removed “the disability imposed by section three of the Fourteenth 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 for all time. They do not pretend to explode the first sentence of the constitutional provision.
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 removing disqualification from a broad description of persons embraced by Section Three’s prohibition. As Professor Magliocca recounts, the statute reflected a mixture of motives: 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 seventh Congresses, officers in the judicial, military, and naval service 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 effective. That is simply the natural reading, and the natural implication, of the language employed.
Indeed, this is almost exactly what the Fourth Circuit recently said in reversing 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 continued: “[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 removed all of Section 3’s disabilities from all persons whomsoever who were not explicitly 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 whomsoever” language and completely missed the other language that made clear the statute’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 disqualification-removal statute. This one removed the disqualification for everybody, without exception. Its language is even more laconic:
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 Constitution of the United States heretofore incurred is hereby removed.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 (already) “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 “heretofore 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-shal--t-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 Congress’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. Legal drafters might sometimes want to provide for an expiration event or expiration date, even in an enduring Constitution. Article I’s Slave Importation Clause, protecting the international slave trade, exploded after twenty years.34 So too the initial allocation 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 Constitution set baseline rules that Congress has power to modify. Article I, section 4 does that with respect to state legislative power over congressional elections: “Congress 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 default 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 Congress’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 after 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.
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, 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 “remove such disability.” (“But Congress may by a vote of two-thirds of each House, remove 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 disqualification 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 Congress 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 remains 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 written 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 disqualifications 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.
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 disqualification is satisfied, an affected prospective officeholder is disqualified. Automatically. 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 judicial 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 officeholding bar it describes where its rule is satisfied. It lays down a rule by saying what shall 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 automatic. 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 prerequisites for the office of President. And so too for the constitutional qualifications—age, citizenship, state inhabitancy—for members of the House and Senate: “No Person 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 requirements.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 disqualification exists, it simply exists. It is a binding rule of constitutional law.
Again, this kind of binding rule should be no surprise. The Thirteenth Amendment’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, legally, constitutionally gone.49 The Thirteenth Amendment contains a separate section granting Congress the power to enforce the prohibition of slavery.50 But that enforcement 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 position would be ridiculous. The power to enforce adds to the substantive prohibition—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 Fourteenth Amendment, like Section Three states directly operative rules of constitutional 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. Nobody 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 Thirteenth and Fourteenth Amendments’ commands, pursuant to their grants of legislative power.52 Doing so can unlock additional procedural mechanisms, additional deference 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 existence 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 Congress’s choice to trigger additional procedural mechanisms and federal jurisdiction 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 “Congress 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 impeach 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 noticeably different path.59 Section Three does not call for treason trials or the impeachment 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 ratified” 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 resistance to this point often comes instead from some misdirected intuitions. One is the 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 “insurrection” 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.
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 disqualifications 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 nonsequitur. 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 constitutional law. But the meaning of the Constitution comes first. Officials must enforce 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.