Part 7 of 9
ConclusionDespite 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 provisions. 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 enforceable 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 Constitution 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 supermajorities of both houses of Congress) remains a valid, valuable, and we think vital precept. 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 elective office or a candidate seeking to represent that state in Congress is constitutionally 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 President, is constitutionally disqualified from office by Section Three, then that disqualification 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 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, arguably itself a breach of one’s constitutional oath of office—to abandon one’s responsibilities 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 narrowly 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 Constitution does, and for serious reasons.452 The Constitution cannot be overruled or disregarded 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 20202021, 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, otherwise 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.
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 president 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 constitutional 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 Constitution’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 Congress; a current or former state legislator or state executive official; or a current or former federal or state court judge, planned, supported, assisted, encouraged, endorsed, 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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Notes: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. Electronic copy available at:
https://ssrn.com/abstract=45327514 Akhil Reed Amar, America’s Constitution: A Biography 377 (2005); see also Eric L. McKitrick, Andrew Johnson and Reconstruction 176179 (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 Howto Guide, Lawfare (Jan. 19, 2021), available at
https://www.lawfareblog.com/disqualifyi ... lshowguide.
6 11 F. Cas. 7, 2227 (C.C.D. Va. 1869) (No. 5,815).
7 Eric Foner, Reconstruction, 18631877, at 260 (1988).
8 Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment, Volume 1 (2023, University Press of Kansas).
9 See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L. J. 1113, 11241148 (2004); Michael Stokes Paulsen, Does the Constitution Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857, 872883 (2009); William Baude & Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U Pa. L. Rev. 609, 624625 (2021); William Baude & Stephen Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 14561460 (2019). For purposes of this article, we can bracket any differences in emphasis between Paulsen’s objectiveoriginalmeaning originalism and Baude’s originallaw originalism.
10 We have used such examples before. Paulsen, Rules for Its Own, supra note 9, at 901902; Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: UnWriting Amar's Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1421 n. 68 (2014); William Baude, Jud Campbell, & Stephen Sachs, General Law and the Fourteenth Amendment (Jan. 31, 2023) at 6768.
11 We have used this example before, too. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839840 (1993); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 23802381 (2015). See also Baude, Campbell, & Sachs, supra note 10, at 66.
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 276768, 2770 2869, 2921; see also Mark A. Graber, Rewarding Loyalty (?) and Punishing Treason Through Disenfranchisement and Bans on Officeholding: Section 3, at 34 (unpublished chapter, forthcoming in The Forgotten Fourteenth 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, 908909 (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 enacting 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 Griffin’s Case).
15 Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457, 14861490 (1997) (discussing privilege against selfincrimination).
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.
20 Act of May 22, 1872, ch. 193, 17 Stat. 142.
21 Act of June 6, 1898, ch. 389, 30 Stat. 432.
22 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 889892 (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 Representatives 55 (1935).
23 The power in general of Congress by twothirds vote of each House to remove Section Three’s disability 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 112120.
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 195201 (2015).
31 Act of June 6, 1898, ch. 389, 30 Stat. 432.
32 For instance, the D.C. Circuit’s recessappointments 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, unadorned 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. 53675419 (1898).
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 exceeding 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 8183.
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/ ... ctionists/. See also Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1314 (N.D. Ga. 2022) (“’Congress has no power whatever to repeal a provision of the Constitution by a mere statute.’”) (quoting 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935), available at
https://www.govinfo.gov/content/pkg/GPO ... df#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 to terminate the provision’s ongoing legal effect.
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)).
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.
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 selfexecuting 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 legislation.”).
51 U.S. Const. amdt XIV, sec. 1, 3. Nothing here turns on it, but Section Four of the Fourteenth Amendment, which repudiates rebel and slave debts while guaranteeing the legal obligation of the national debt, also seems to be selfexecuting. Section Two, which alters Article I, section 2’s rule for how Representatives “shall be apportioned,” presents a more complicated case. Its rule is immediately operative, 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 FiveFifths 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 3031, 6364.
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 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 selfexecuting). Indeed, 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.
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 proponents seemed to share the same understanding. For opponents, see Cong. Globe 39th Cong., 1st Sess., 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.AB. See also Graber, supra note 12, at 2627, 3537 (documenting 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 ... id=4306094 (“Section Three was unprecedented in the sense that prior restrictions on serving in office were brightline 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 1318,
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).
63 Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J. L. Ethics & Pub Pol’y 497, 511512 (2018).
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).
65 To be sure, the centralized, governmentadministered 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 review,” 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, 59 (2023).
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 exercise 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 constitutionally disqualified by Section Three or other constitutional limitation. See also infra n. 96 and accompanying text.
68 Initial Decision, Rowan v. Greene, No. 2222582OSAHSECSTATECE57Beaudrot (Georgia Office of State Administrative Hearings, May 6, 2022).
69 Id. at 56.
70 Id. at 15. The January 3, 2021 cutoff is because that is the date that Representative Greene first took a constitutional oath. The Court also specifically rejected the argument that a Newsmax appearance on January 5, 2021, should be interpreted as a “coded message from Rep. Greene to her coconspirators to go forward with a previously planned incursion into the Capitol.” Id. at 16.
71 Final Decision, Rowan v. Greene, No. 2222582OSAHSECSTATECE57Beaudrot (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, 909910 (11th Cir. 2022).
74 Hansen v. Finchem, No. CV220099AP/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 Disqualification 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 representatives 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 membership of state legislatures.
76 See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458460 (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 ... id=4462807.
77 330 U.S. 386 (1947).
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, 7883, 97105 (2020); Haywood v. Drown, 556 U.S. 729, 74267 (2009) (Thomas, J., dissenting). We bracket those criticisms here.
80 Hansen v. Finchem, No. CV220099AP/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 constitutionally disqualified by Article I, sec. 6. See William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 330, 333334, 355356 (2019).
82 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 914918 (1994) (discussing constitutional responsibility of political branches to enforce constitutional disqualifications from office irrespective of whether they give rise to a judicial case or controversy, and bemoaning the failure of all to enforce the Emoluments Clause); see also Baude, Black, supra note 81, at 355356 (similar); see also Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105 Yale L.J. 549, 562570 (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, 658660 (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, discussed 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 7273 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, D101CV202200473 (1st. Dist. Santa Fe County, Sep. 6, 2022).
86 Id. at 46. The New Mexico Supreme Court dismissed Griffin’s appeal on procedural grounds. NO. S1SC39571 (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 because 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, D101CV202200473, at 2425 (1st. Dist. Santa Fe County, Sep. 6, 2022).
88 Id. at 3538.
89 The availability of a federal quo warranto action is curiously codified in the D.C. Code, §§ 16350102. Courts have generally construed this statute quite narrowly, holding that only the Attorney General 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, 784785 (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. 222464, 2022 WL 16707073, at *2 (3d Cir. Nov. 4, 2022). See also Hill v. Perry, No. 222465, 2023 WL 3336648, at *1 (3d Cir. May 10, 2023) (dismissing similar suits by same plaintiff against Rick Saccone and Scott Perry).
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, 698702 (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 appropriate 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 34647.
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 3637.
93 U.S. Const. art. I, sec. 5, cl. 1.
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 Powell and Related Cases, 17 J. Pub. L. 103, 114115 (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 committed 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.
96 See Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 594598 (2015); see also Cawthorn v. Amalfi, 35 F.4th 245, 267273, 282284 (4th Cir. 2022) (Richardson, J., concurring); Greene v. Sec'y of State for Georgia, 52 F.4th 907, 912916 (11th Cir. 2022) (Branch, J., concurring).
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 273275 (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 qualification not contained in the Constitution. E.g., U.S. Term Limits, 514 U.S. at 784, 787788, 806815. It 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 210212 (recounting arguments on both sides but arguing that it can); Jack Maskell, Congressional Research Service, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 47 (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 expulsion 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, 7677 (2016).
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 599608; see also Muller, Natural Born, supra note 62, at 11001106. 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 579580.
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 Disaster in Chiafolo, Law & Liberty (Aug. 7, 2020),
https://lawliberty.org/theoriginalistdi ... chiafalo/; Michael Stokes Paulsen, The Constitutional Power of the Electoral College, Public Discourse (Nov. 21, 2016),
https://www.thepublicdiscourse.com/2016/11/18283/.
108 We take no position on many further details of this issue, including the relative interplay of the Electoral Count Reform Act, Pub.L. 117328, Div. P, Title I, § 109(a) (Dec. 29, 2022) 136 Stat. 52385239, 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.
110 See infra Part IV.C. for further discussion.
111 For two relevant examples, see NMSA. 1978, sec. 443; W.V. Code sec. 5321. 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. 5322. 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, D101CV202200473 (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/ ... letter.pdf.
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 (forthcoming 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 102108; Magliocca, Foreground, supra note 62, at 914.
117 11 F. Cas. at 22.
118 Id. at 22.
119 Cf. Will Baude, The deadly serious accusation of being a “socalled judge,” Volokh Conspiracy, Wash. Post. (Feb. 4, 2017),
https://www.washingtonpost.com/news/vol ... lledjudge/ (“[T]o call him a ‘socalled’ 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 462466 (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 background 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 Underwood 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 601607; Letter from Chase to Underwood (Nov. 19, 1868) in 5 The Salmon P. Chase Papers 285286 (1998); Letter from Chase to Underwood (Jan. 14, 1869) in id. at 292293.
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 that the supreme court agreed with him as to the decision he rendered in this case.” Griffin’s Case, 11 F. Cas. at 78. 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 Washington, 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.)
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.
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).
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 inconvenience comes from attempting their overthrow.” Opinion of Judge Underwood, supra note 122, at 465.
142 11 F.Cas. at 24.
143 See supra notes 914, 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 restored 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 364380, see especially id. at 376378. 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 Theory 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 378380, and the other of us is inclined in the same direction.
145 11 F.Cas. at 25.
146 Id. at 26.
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).
151 Id. See Magliocca. Amnesty, supra note 5, at 100102; Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis 293300 (2017).
152 Nicoletti suggests—and she is not making this up—that either Chase was gunning for the Democratic 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 293296.
153 11 F. Cas. at 26.
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.
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) (“This practice of Judge 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 ... 801023562; Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 101112 & n.39 (2003); Baude, Judgment Power, 96 Geo. L.J. 1807, 182324 (2008).
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 judge his 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).
164 For many citations, see Griffin’s Case, 11 F. Cas. at 1821 (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. 181334, 181475, 181496, 181514, 1815121) 20190919201613217_181334rbUnitedStates.pdf (supremecourt.gov) at 2747; and Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 34245 (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, 128129 (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 “right to hold the offices cannot be inquired into in a collateral proceeding of this kind,” id. at 267. And People v. Bangs, 24 Ill. 184., 187 (1860) distinguishes a “direct proceeding” from one where the doctrine applied.
168 For statements like this, see 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 appointment.”); see also Note, The De Facto Officer Doctrine, at 918 (discussing Glidden Co. v. Zdanok, 370 U.S. 530 (1962)).
169 But see In re Boyle, cited supra note 167 (distinguishing “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 review and the challenge was constitutional. In the more recent case of Financial Oversight and Management Board for Puerto Rico v. Aurelius, 140 S. Ct. 1649, 1666 (2020), it avoided the issue because it found the appointments lawful.
171 See Opinion of Judge Underwood, supra note 122, at 463466.
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”).
173 See The Federalist No. 78 (I. Kramnick ed. 1987) at 439 (Hamilton). These rules were well-established in American and English law. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 235244 (2000)
174 See The Federalist No. 78, supra note 173, at 439440 (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.”)
175 U.S. Const. art. V.
177 Baude & Sachs, Eleventh Amendment, supra note 9, at 62425; cf. Hans v. Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring).
177 Baude & Sachs, Eleventh Amendment, supra note 9, at 62425; 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).
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 principles 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 Senator Davis 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 2631, 3637 (documenting this history).
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).
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 questions 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 engaging 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).
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 retroactive civil laws too. See Eastern Enterprises v. Apfel, 524 U.S. 498, 53839 (1998) (Thomas, J., concurring). 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 326332; Garland, 71 U.S. at 377368. 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 37880 (arguments of counsel).
198 Id.
199 Id. at 382. See Baude & Sachs, Eleventh Amendment, supra note 9, at 626627.
200 Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565593 (2007); William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 15401547 (2020).