The Sweep and Force of Section Three, Published

My article with Michael Stokes Paulsen about the continuing legal force and broad substantive sweep of Section Three of the Fourteenth Amendment has now been published in final form in the Penn Law Review.

As a reminder, here is the abstract:

The Sweep and Force of Section Three

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First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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 offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

(My recent blog posts with Mike Paulsen on "Fighting the Meaning of Section Three" are collected at the end of this post.)

Thanks to all for reading and responding.

Comments

[The Margrave of Azilia]

I'd be interested in seeing the part where Sec. 3 overrides the First Amendment.

[The Margrave of Azilia]

I see it's more nuanced than that - well, I may look into that part later, time and attention span permitting.

[Stephen Lathrop]

I’d be interested in seeing the part where Sec. 3 overrides the First Amendment.

I do not know how Baude answers that question.

Given that they are both Constitutional amendments, on what basis would you not suppose they are co-equal in force? Given that Section 3 is narrow and specific, and the 1A is broad and general, it seems at least plausible to posit that within its particular scope, Section 3 trumps the 1A. Any other reading seems like it would read Section 3 out of the Constitution, which can't be right.

[agarrett]

Although he does not mention it, by following his reasoning, it appears section 3 also overrides the rules for impeachment. An officer may not hold office if he’s committed insurrection or given aid or comfort to enemies, and the President is an officer by his reasoning.
The obvious question is the mechanism. Who removes the President under section 3? The answer is not obvious to me, but I would hope Mr. Baude addresses this in the future – or, if I’ve missed it, provides a pointer or refresher.

[Michael Ejercito]

Well, either insurrection or aiding and comforting an enemy of the United States would have to have been understood to cover conduct protected by the First Amendment, before one could argue that the 14th Amendment carved a narrow exception.

[agarrett]

That's a fair rejoinder, Michael. But I did stress I was trying to follow the argument presented in the article. Specifically, "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." By which I presume he means that Trump's speech, even though protected by the first amendment (highly likely) can still be considered support of insurrection, and thus covered by section 3.

Again, looking at the argument presented, I have to assume this applies to sitting officers too - actually, that's pretty easy since it's explicit in the amendment. The 25th amendment also overrides impeachment, so we accept that can be done, but that one presents a very clear and (I think) well thought out process. That part is not true of section 3, if we accept that it can override impeachment. And that's why I'd like his opinion on the mechanism. Specifically, if someone had thought of it at the time, could Trump have been removed from office on January 7th without bothering with an impeachment? And if so, how?

On the off chance it's not clear, I think the answer is no, that impeachment is still required. But I also think that is a hole in the argument presented, that section 3 is a self-executing override. It may be that Mr. Baude has already addressed this and I missed or forgot it, so I'm hoping for a pointer to that argument.

[Michael Ejercito]

The 14th Amendment did in fact carve out an exception to the ex post facto provision insofar as it applied to persons who committed insurrection, or aided or comforted enemies of the United States, prior to its ratification (though of course this carve-out no longer has any practical effect).

[Don Nico]

I think that his argument is that where a conflict occurs, the later amendment prevails.

[rloquitur]

Dumb argument. Highly unlikely that the drafters intended to override 1A protections.

[Michael Ejercito]

One would have to argue that activity protected by the First Amendment constituted what was understood to be insurrection or aiding or comforting the enemy when the 14th Amendment was written.

[Tim]

It seems like it would be really weird for someone to be able to say:

"So what if you're right that I engaged in insurrection or gave aid & comfort to enemies? I did it via speech. So you can't disqualify me."

If you say 14AS3 can't override the 1A, that's what you're saying.

(If there's no speech that would count as engaging or giving aid, then the question doesn't even come up.)

[Michael Ejercito]

This depends on the historical understanding of what “insurrection” and “aid or comfort”.

Did those things encompass activity that was understood to be protected by the First Amendment?

[Tim]

I *think* that's what I was saying.

"Can speech make the difference between whether you engaged or aided, in the original meaning?" is one question. That's about whether there *is* any conflict with the 1A.

If there's not, then "What would happen if there's a conflict?" is purely hypothetical and doesn't matter.

And that's a much better argument to than saying the First Amendment would override the 14th, in my opinion.

[Rubbish!]

Hopefully this long-stroking academic masturbation will come to an merciful if not happy end soon.

[David Nieporent]

Given that they are both Constitutional amendments, on what basis would you not suppose they are co-equal in force?

A later statute will supersede a prior one, to the extent there's an irreconcilable conflict. It need not be explicit like the 18th and 21st amendments. But, yes, there are canons of construction such as the one you describe — specific over general — that may lead to a different interpretation in a particular context.

[Stephen Lathrop]

Niepoent, thanks for that.

Of course an amendment is a sovereign decree, not a government statute. I suspect a need for long thought on whether that makes a difference with regard to methods of interpretation. I do think in either case it would be more a subject for legal analysis than historical inference. But even that might turn out presumptuous, especially if the legal thinker claims resort to originalist methods.

[Drewski]

The First Amendment does not prohibit constitutional amendments that restrict the freedom of speech, nor does it purport to. It's up for debate whether an amendment even could prohibit future amendments. To the extent that 14A authorizes Congress to enact enabling statutes that may otherwise implicate 1A, 14A takes precedence because it's newer. Of course, Congress would have to thread the needle by confining themselves to that narrow authority.

[MaddogEngineer]

I don't agree that 143A congressional implementation could override general 1A protections and due process.

However, in the absence of any such legislation, absolute not on its own.

If you're convicted of the federal (or state) crime of insurrection, you will have had all the legal/due process protections, including the precedential protections that Brandenburg v Ohio would continue to apply to culpability for any such criminal behavior, before 14A3 would subsequently apply, disqualifying you from any office.

[Stephen Lathrop]

MaddogEngineer, while it is true that the jointly sovereign People are always superior to their Constitutions, it is never true that any one of them—including you—is superior to the others. Not even if you suppose you are holding in your hand the People’s own Constitution and brandishing it at them.

In the case of rights, the People have empowered individuals to borrow the People's power to stay the hand of government in prescribed cases. No rights exist to empower an individual to stay the hand of the People themselves. There is no due process against a Constitutional decree.

[MaddogEngineer]

That's an argument against the unilateral attempt of the Colorado secretary of state to enforce Section 3 according to her ad hoc determination of what qualifies as "insurrection".

If anything, your "sovereign people" argument is an argument against the Colorado secretary of state disqualifying Trump, leaving it to the people at large to decide.

I'm not sure what you think you mean by "no due process against a Constitutional decree". A candidate's age is an objective fact, no due process required beyond accurately verifying that. Insurrection is not some similar objective fact. Someone convicted of the crime of insurrection has presumably received due process (subject to judicial review), appropriately so under Section 3 to be disqualified.

Weird advocacy results when you start with the desired conclusion and try to work your way backwards. Not recommended.

[Stephen Lathrop]

It’s up for debate whether an amendment even could prohibit future amendments.

That is a debate originalist insight can resolve. The answer is that the sovereign People are at all times superior to their constitutions. If they act jointly in their sovereign role, nothing in the Constitution can constrain them. To insist otherwise is to propose overthrow of the People's sovereignty.

Even the clause in Article 5 which says, "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate," is properly subject to be amended by the People, if they act jointly and at their own initiative.

On the other hand, it might be that a government initiative under the Constitution to do the same thing, purporting to act under the Constitution's own explicit process to draft amendments, should properly be regarded as unconstitutional.

The distinction between the cases would be that in American constitutionalism, the sovereign People have power to constrain government, but the government has no power to constrain the People. If an initiative to change the Constitution comes from the People themselves, then nothing can stop them. If it comes instead from the government, then it is probably proper to regard that as beyond government's already-prescribed powers under the existing Constitution.

[MaddogEngineer]

Any attempt to abolish the equal Senate suffrage requirement by constitutional amendment would almost certainly lead to civil war. The basis for which would likely be the Declarations’ assertion that “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” Certainly some could fairly argue that revising the originally agreed to distribution of authority in our federal system would lead to a tyranny of the majority. That would be the entire motivation, as many have said complaining the Senate is undemocratic. Yes, that’s exactly the point, it was designed to be, in a vast federal republic of varying interests. Checks and balances, including on majorities. But I suppose for some, some people are more sovereign than others. Like I said, the stuff of civil wars, as recent international history has demonstrated yet again.

[Krayt]

Of course he counts. The issues is whether a 4 hour riot by assholes counts as an insurrection. And whether a single purple state or two can ban him on their own, deciding who gets to be the next president. (This itself assumes he would win, a stretch.)

You do not, in fact, have an obvious situation outside the hyperventillating echo chambers. And sans obvious, it's just motivated partisan trickery to get an opponent.

[Rev. Arthur L. Kirkland]

.

a 4 hour riot by assholes

Some observers call them tourists, patriots, political prisoners, and/or hostages.

Worthless, un-American, conservative observers.

[questioner7]

_If_ you’re right, then the section urgently needs amending. The lack of due process is simply unacceptable. Wrongful mass disenfranchisement is no less grave than wrongful imprisonment, and must be guarded against with no less due process. Simplest rule is to require criminal conviction for insurrection.

I’d never vote for Trump myself, but if others want to, the threshold for stopping them should be very high.

[rloquitur]

But, presumably, you'd vote for Joe Biden, who has the blood of Laken Riley on his hands.

[MaddogEngineer]

Why would you presume that?

I'm voting for neither. Given Trump’s unfitness for office, I might otherwise be tempted to vote for Biden (despite his mental deficiencies), but cannot because his running mate Kamala Harris as a senator accused Brett Kavanaugh of gang rape without any evidence for immediate political gain/expediency. I decided Trump was unfit for office when, during the 2016 Republican convention, he repeatedly attacked a gold star family which publicly criticized him. If I’m going to withhold my vote because of an acute lack of character, it also applies to Harris.

[Sarcastr0]

the blood of Laken Riley on his hands.

Unserious.

[ObviouslyNotSpam]

It's not "disenfranchisement" if you can't vote Arnold for President. "No less grave than wrongful imprisonment."

What a drama queen!

[MaddogEngineer]

Have you already started working on a response for when the Supreme Court rejects your legal arguments?

(I wouldn’t care so much except you are have been so strident about it being absolutely impossible that anyone could possible disagree with your reasoning, especially Section 3 being self-executing as related to Trump's conduct.)

[ObviouslyNotSpam]

I'm not sure that's how legal scholarship works.

[Dilan Esper]

This is about to run headlong into the sweep and force of Article Three.

[Z Crazy]

So the military can throw Brandon out of office?

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."

[Izzy1948]

I've been kind of busy, so I just missed the part where Trump was convicted of conduct that falls under Section 3. My (mis)understanding may be that a conviction is needed, other than a record of conduct urging protest.

Finally, I just can't get out of my head the images of Capitol police standing around chatting as unarmed people walk by, including one fruit loop with a wierd constum. Am I right in assuming that that activity had the potential to replace the current US government with a different government?

If so, I apologize, as again I missed something, and I would love to know the mechanism where such walking around has such great potential to replace the US government.

I await with basted breath.

[windycityattorney]

The question is one of intent. What were all the demonstrators called their to do? What did Trump, in his speech, tell them to do? What was going on in between the general election and Jan 6th that is relevant to these questions? What was the Congressional session that was interrupted intended to do? The language of sec 3 talks about people taking an oath to the constitution; then engaging in insurrection or rebellion against the same. What does engaging in insurrection or rebellion against the constitution mean and how does that relate back to the proceeding of Congress that was interrupted?

It might be helpful to just read the CO supreme court opinion that is under review to answer some or all of these questions as they relate to each other and to the ultimate legal question.

[Tim]

I'm less interested in whether it applies to Trump than I am in "getting right what the law is", so I'll just answer this part:

"My (mis)understanding may be that a conviction is needed,"

Yeah, I do think that's a clear misunderstanding. Some process involving finding-of-fact is (and any such process is judicially review able), but not "conviction".

The original post-14A Congress, when evaluating the qualifications of new members being sent to them, excluded various former confederates who hadn't been convicted of anything.

[iowantwo]

Specifically they were called to march peacefully and patriotically to the capitol .
They were to petition congress to use the constitutional power to reject the certification of corrupt elections and sending a corrupt set of electors.

You can disagree with their reasoning, but congress was convening to consider exactly that. As is the direction from the Constitution.