The Objection: "But He Hasn't Been Convicted Of Anything"

[Note:  This is the fourth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first three essays can be found here, here, and here.]

Some critics have made the argument that Section Three cannot or should not be used to constitutionally disqualify a person from office for having engaged in insurrection or rebellion without that person first having been charged and convicted of the statutory federal crime of insurrection, under 18 U.S.C. §2383.

Professor Michael McConnell appears to have been the first to make this argument, in a post on this blog shortly after we first posted our draft article on SSRN in August, 2023.  As McConnell put it:

Congress has enacted a statute, 18 U.S.C. §2383, which covers participation in rebellion or insurrection, and which provides that those found guilty "shall be incapable of holding any office under the United States."  This mode of enforcement has been enacted by the entity entrusted with responsibility to enforce the Fourteenth Amendment; it proceeds through the ordinary course of prosecution by the executive, trial by a court, decision by a jury, and appeal to appellate courts, with due process at every step.  It is significant that the Department of Justice has prosecuted hundreds of persons for their involvement in the January 6 incursion at the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.

Others have echoed this suggestion. The Wall Street Journal in September 2023 editorialized against applying Section Three to disqualify Trump, saying that "[i]t is surely relevant that Mr. Trump hasn't been charged with insurrection under 18 U.S.C. Section 2383."  Trump's brief on the merits in the Supreme Court in Trump v. Anderson asserts (pp. 38-40) that Section Three can only be enforced following a criminal conviction under 18 U.S.C. §2383. At least two amicus briefs supporting Trump make the same claim.

With all due respect, the argument is legally meritless, top to bottom. It is wrong as a matter of the text, history, and structure of Section Three. But it also is wrong on the details of §2383 itself.

Begin with Section Three. The text of Section Three nowhere contains or references any requirement of criminal-law conviction as a prerequisite to, or condition of, Section Three's operation. To read such a requirement into Section Three is to make up something that is not there. Rather, as we put it in our original article, Section Three's "disqualification, where triggered, just is." It parallels the Constitution's other qualifications for office, such as age, residency, and citizenship, none of which of course requires a criminal trial.

The history of Section Three nowhere reflects a need for criminal trials. Indeed, Section Three was enacted as an alternative to widespread prosecutions for treason or other crimes – prosecutions that were thought both practically difficult and needlessly punitive. After Section Three was enacted it immediately disqualified many former Confederate officials from holding office; none of these people was ever criminally prosecuted (let alone convicted) of the federal crime of insurrection, even though the offense was on the books at the time. Early reported state judicial cases holding former Confederate rebels disqualified from office did not require or suggest the need for prior criminal-law conviction.  And even Chief Justice Chase, in Griffin's Case, who did quite wrongly suggest that only Congress could enforce Section Three, never suggested that the enforcement must take the form of criminal prosecutions and criminal trials. If this argument had been thought non-frivolous at the time, surely Chase would have been among the first to make it.

And the structure and logic of the Constitution confirms that there is no need for criminal law prosecution either. The existence of legislative power in Congress "to enforce" the Fourteenth Amendment (including through criminal law) does not mean that Section Three, or other parts of the amendment, lie dormant until Congress acts.  Congress does not bring the Fourteenth Amendment to life; it has power to add its enforcement arm to the amendment's self-executing legal force, not subtract from it.  Even if the criminal-law insurrection statute were believed to have been enacted as a mode of enforcement of Section Three, it is basic that such a statute cannot limit or narrow the meaning of a provision of the Constitution.

These points should be enough to end the matter, but this wrongheaded objection is so persistent, so insidiously misleading, that it is worth saying more.

In fact many of these invocations of 18 U.S.C. §2383 misunderstand §2383 itself. The federal criminal statute in question was not enacted as a device for enforcing Section Three.  As we set forth in our original article (see pp. 82-84), the criminal prohibition of insurrection, now codified at 18 U.S.C. §2383, was enacted in 1862 – in the middle of the Civil War, as Section Two of the "Second Confiscation Act" – several years before the drafting of the Fourteenth Amendment. The Act made it a crime to "incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof" or to "give aid or comfort thereto" or to "engage in or give aid and comfort to" any "existing rebellion or insurrection."  As such, the statute was certainly a precursor of some of the terms and concepts later employed in Section Three, and to that extent a useful marker in understanding the meaning of the similar terms used in Section Three.  (The same is true, we argue in the article, for other provisions of the Second Confiscation Act.)  As we state in the article, the Second Confiscation Act "is practically a glossary of terms used in Section Three of the Fourteenth Amendment proposed by Congress just four years later." (Ms. at 82.)

But it is quite simply wrong – indeed, a rather embarrassing error of historical fact – to identify this criminal-law statute as (in McConnell's words) Congress's chosen "mode of enforcement" of Section Three, pursuant to Congress's legislative power under Section Five to enforce the provisions of the Fourteenth Amendment. That would have been impossible.  The provisions of the Fourteenth Amendment did not exist at the time the statute was adopted. The notion that the criminal statute punishing insurrection was designed as a "mode" of effectuating Section Three is simply ahistorical – a little like saying that Lincoln's election was attributable to his assassination.

Section Three is something Congress chose to add to the Constitution on top of the already-existing federal crime of insurrection, not the other way around. To hold a new constitutional provision hostage to a pre-existing federal statute would strangle the all-important power of constitutional amendment. The idea that Section Three requires a criminal conviction for insurrection before its constitutional rule can be applied has no legal merit whatever.

Each of the commenters, pundits, and advocates above has misunderstood or ignored these basic points.

As noted above, Professor McConnell (who has since shifted his position) was an early proponent of the theory that the federal criminal insurrection statute should be understood as Congress's chosen "mode of enforcement" of Section Three. It was not. Similarly, the brief of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations, argues that "[t]he big problem for those advocating for the Colorado decision is that President Trump has not been convicted of violating Section 2383," which they wrongly describe as part of "the Enforcement Act of 1870." It was not; they have confused §2383 with a different criminal prohibition which was repealed in 1909 (as we explain in footnote 54 of our manuscript).

And the amicus brief of U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress makes the same claim in an even more emphatic, and embarrassing fashion, arguing that Section Three must not be self-executing because if it were "there would have been no reason for Congress to state expressly in §2383 that a conviction for insurrection would result in disqualification from holding certain offices.  Under Baude and Paulsen's view, Section 3 would already have automatically barred such individuals from office."  Not in 1862, when the criminal statute was first enacted! Again, this is like saying that there would have been no reason for Congress to enact the First Amendment to the Constitution in 1789 because modern precedents such as New York Times v. Sullivan already protected the freedom of speech.

In the Supreme Court, Trump's lawyers offer yet another variation of this argument, claiming that "Section 3 Should be Enforced Only Through Congress's Chosen Methods of Enforcement." They do not appear to deny that the Constitution itself is self-executing and can be applied by state actors. But they still argue that Congress has limited enforcement of Section Three to criminal prosecution under the statute, describing 18 U.S.C. §2383 as the "exclusive means of enforcing Section 3."  But again, that is not what 18 U.S.C. §2383 was and that is not how Section Three works or has ever worked. It is an argument that even Salmon Chase did not think of, and frankly for good reason.

McConnell has, much more recently, taken a new stance.  He now concedes that criminal prosecution for insurrection is not required for disqualification under Section Three: "I am not saying that conviction under 18 U.S. Code §2383 is a legal prerequisite to disqualification under Section Three," he writes.  Still, McConnell argues, the absence of a federal criminal prosecution for insurrection under the statute implies that the events leading to and culminating in the assault on the Capitol of January 6, 2021 must not be an insurrection within the meaning of the Constitution either: "The best reason to be skeptical that the events of January 6 were an 'insurrection' in the legal sense is that none of the January 6 defendants have even been charged with, let alone convicted of that crime.  Insurrection is a crime under 18 U.S. Code §2383, but not a single participant in the January 6 unrest has been charged with insurrection."

But once one concedes, as McConnell now does, that criminal-law prosecution and conviction are not prerequisites for applying Section Three, it is not at all clear why we should draw factual inferences from the absence of that prosecution. The operation of a legally distinct criminal-law statute under which a person might or might not be prosecuted does not define or limit the meaning of a constitutional disqualification provision that is not keyed to prosecutions or convictions under the statute. (In his amicus brief, Ilya Somin gives the example of "O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims' families." As Somin observes: "The criminal and civil cases were distinct, and the result of one did not determine that of the other.")

McConnell's argument seems to assume that federal prosecutors are so consistently aggressive in their charging decisions that if there were any chance that January 6 was an insurrection under any definition they would have brought charges under §2383. But the truth is that §2383 is very rarely charged under any circumstances, that prosecutors have complex motivations especially in high-profile cases, and that criminal trials are not the same as civil-law disqualifications from office. In any event, the meaning of the Constitution is to be determined by objective interpretation of the Constitution's text, history, and structure, not by deferring to the charging decisions of 21st-century criminal prosecutors.

Whether the events of January 6, 2021 were an insurrection, and whether Donald Trump engaged in that insurrection, are serious questions of constitutional law – questions that we addressed in our original article, and that were addressed in a five-day trial in Colorado as well as a lengthy opinion on appeal. But it belittles and misunderstands the Constitution to think that only a federal prosecutor and criminal jury can answer such questions. And it is simply a historical fabrication to suggest that Congress or the Constitution has ever made a criminal prosecution a condition for enforcing the Constitution.