This essay is a response to Matthew J. Franck’s January 11 piece by the same title.
For the first time in American history, there is a serious effort to exclude a major candidate from running for president. The argument is based on Section Three of the Fourteenth Amendment, which has not played a significant role in American governance since 1872. Section Three provides:
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.
Section Three was passed to prevent former Confederates from resuming positions of power after the rebel states were readmitted to the Union. It was enforced for less than four years, at which point Congress voted to lift the disqualification for most offices by the two-thirds vote specified in the Amendment.
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Section Three is now being dusted off to prevent former President Donald Trump from running for a second term as president. The claim is that Mr. Trump, having taken an oath of office, “engaged in” an “insurrection” on January 6, 2021. The Supreme Court of Colorado, by a 4-3 vote (all seven being Democrats), has barred him from the Republican primary ballot in that state, and the elected Secretary of State in Maine, also a Democrat, unilaterally barred him from that state’s ballot. Other state courts and secretaries of state of both parties have gone the other way. The Supreme Court will hear arguments in the Colorado case on February 8.
Legal scholars have weighed in, but they have not divided along the usual ideological lines. We see prominent left-liberal scholars, who certainly do not like Trump or approve of his attempts to overturn the 2020 election results, arguing against the use of Section Three. We see conservative scholars of similar stature urging that the plain terms of Section Three demand that Trump be disqualified. Professor Matt Franck has taken to the pages of this journal to argue the latter position. Although I have never voted for Mr. Trump and fervently hope he will be neither the Republican candidate nor the next president, I must respectfully disagree with Mr. Franck and others who think he can legitimately be eliminated from democratic competition by a wave of the Section Three wand.
Section Three raises a number of interpretive questions, many of them addressed by Mr. Franck’s essay in this journal. I will offer a different perspective on most of them. The first four issues are purely interpretive and have nothing to do with Mr. Trump or the events of January 6. Ordinary citizens and voters will probably regard these legal points as hyper-technical and perhaps uninteresting, but I strongly suspect that the Supreme Court will decide the case on the basis of non-Trump-specific arguments of this sort. The Court will not wish to be in the position of deciding the ultimate question of whether Donald Trump “engaged in” an “insurrection.” The final two issues go to the substantive claim.
Section Three Should Be Strictly and Narrowly Construed
Because there is no significant post-1872 precedent to draw on, the tools for interpretation are the text of Section Three, its history, and its early application by courts and by the two houses of Congress when they determined whether persons elected were eligible to serve. Let me lay my interpretive priors on the table before delving into the details.
As part of the Constitution, Section Three must be enforced to the full extent of its text and historical meaning. But we must not forget that an expansive interpretation will empower partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice. If abused, this is profoundly anti-democratic. “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,” said the Supreme Court in Reynolds v. Sims (1964). Section Three must not be interpreted any more broadly than its text and history compel. It would be wrong as a matter of sound constitutional interpretation, and catastrophic as a matter of national harmony and the reputation of the Court, to disqualify a candidate supported by tens of millions of Americans, unless the argument for doing so is objectively solid and compelling. If the arguments for disqualification are iffy, they should be rejected and the question of Mr. Trump’s fitness for office left to the voters to decide.
This was the view at the time. One congressman noted in 1869 that the House of Representatives, in its rulings on the meaning of Section Three, had “by a very decided expression of opinion, determined that it would strictly construe the rule that rendered any person ineligible for a seat in this House . . . . [N]obody should be disqualified unless he is clearly proven to have done some act” in violation of the section. Those who adopted Section Three of the Fourteenth Amendment did not mean for it to be stretched to doubtful cases.
Section Three Applies to “Holding” Office, Not to Running for Office
By its plain language, Section Three provides that persons in violation may not “hold” any of the listed offices. It does not prohibit them from running. While the provision was enforced, not a single person was prevented from running for office on account of claims under Section Three. Instead, their eligibility to serve could be challenged and decided only after they were elected, when they sought to take their oath of office. Article I, Section Five makes each House the “Judge” of the “Qualifications of its own Members.” Three such persons, two would-be representatives and one would-be senator, were excluded. In other cases (discussed below), the House rejected Section Three challenges based on the particular facts.
Significantly, in at least one instance, the House concluded that the person elected had, in fact, engaged in the insurrection in a technical sense, but should be seated anyway. Accordingly, Congress lifted the prohibition for that person by a two-thirds vote of both Houses, as Section Three permits. This is further evidence that Section Three was not understood as a bar to election but only to taking office. By the way, the same is true of other grounds for disqualification. The election of a candidate too young to serve in the House or the Senate is not illegitimate; the youngster simply waits until he or she attains the necessary twenty-five or thirty years, and is then sworn into office.
Thus, one thing we can say for certain, based on the plain language of Section Three, is that Section Three does not bar Donald Trump from running for office. Nor does it bar voters from electing him.
And there is a related point of practical significance. The current round of litigation is an attempt to exclude Trump from the Republican Party primaries in Colorado and Maine. But even if that effort succeeds, it is of no practical significance. The Republican Party of Colorado has already announced that if Trump is knocked from the ballot, they will cancel the primary and choose their nominee in some other way, as is their right. No matter how many states try to keep the Republicans from being able to vote for the nominee of their choice, the Republican Party Convention can nominate whomever it wishes. The attempt to use Section Three to keep Donald Trump from running for the Republican nomination for president is thus not only constitutionally meritless but practically meaningless. All it does is rile up the party base and cause them to rally around Trump.
It is a harder question whether states could keep him off the ballot for the general election, complicated by the fact that as a technical matter, we do not vote for President but for a slate of electors. Could a state disqualify electors because of who they are going to vote for? The general election question, though, is not before the Supreme Court at this point.
Must Congress Legislate an Enforcement Mechanism for Disqualification under Section Three?
The most likely course for the Supreme Court to decide the disqualification case is to follow precedent from 1869 and hold that Section Three requires enactment by Congress of an enforcement mechanism (except for elections to the House or Senate, where Article I, Section Five of the Constitution itself prescribes the enforcement mechanism). There are four reasons why the Court will find this approach attractive.
First, it would not involve any contentious Trump-specific judgments. Second, the Court would be following precedent. The one and only federal judicial decision on the meaning of Section Three rendered during the period disqualification was in effect was Griffin’s Case (1869). The opinion was by an eminent legal figure, Chief Justice Salmon P. Chase (whose picture is on the $10,000 bill, now no longer in circulation). Chase had been a leading abolitionist lawyer, served in Lincoln’s cabinet, was Lincoln’s nominee to replace Roger B. Taney as Chief Justice, and knew everything there was to know about the Fourteenth Amendment. Chase, sitting as a Circuit Judge, held that Section Three is not self-enforcing. He wrote:
For in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable; and these can only be provided by congress.
Chase was rightly concerned about process: not just “due process” in terms of fairness to the alleged insurrectionist, but for the purposes of regular, uniform, and reliable adjudication of claims that might well be complicated and contested. He was also concerned that these matters be under the control of national, not state, authority. Some modern academics claim to find Griffin unpersuasive ( Franck calls Griffin “unsound.”). But Chase provides plausible legal reasons for his conclusion, his insistence on due process is commonsensical, and the opinion was well received at the time. Besides, whether modern academics are persuaded by the reasoning or not, it is the leading precedent, and the Supreme Court can scarcely be criticized for following precedent.
Third, the leading figures in the drafting and enforcement of the Fourteenth Amendment agreed with Chase that Section Three would require implementing legislation (except as applied to members of Congress, where the procedures are set out in Article I, Section Five of the Constitution). Thaddeus Stevens, the Pennsylvania congressman who introduced the Fourteenth Amendment in the House, stated that “[Section Three] will not execute itself, but as soon as it becomes a law, Congress at the next session will legislate to carry it out.” Lyman Trumbull, Chairman of the Senate Judiciary Committee, likewise said that “Some statute is plainly necessary to enforce the constitutional provision.” And indeed, Trumbull promptly introduced and Congress passed the Enforcement Act of 1870, which contained two sections—14 and 15—that provided a means for enforcing Section Three. (It exempted Congress members from its scope, for reasons already mentioned.) Those provisions were repealed in 1948 without debate or explanation, but this still indicates Congress’s view at the time that enforcement legislation was necessary.
Fourth, the notion that the Fourteenth Amendment empowered states to enforce Section Three in federal elections without congressional authorization is wildly ahistorical. The Reconstruction Congress would never have enabled state courts and officials in places like Virginia and Alabama to decide who was qualified to be president. When the Reconstruction Congress fashioned enforcement legislation, they required the states of the former Confederacy to enforce Section Three with respect to their own state officers (as a condition of readmission to the Union), but the process for disqualification of federal officers was placed entirely in the hands of federal officials and federal courts.
Thus, in following Griffin’s Case, the Court would be adhering to the only relevant precedent, acting in accord with the opinions of the leading figures who drafted and implemented the amendment, respecting the federal nature of the issue, and leaving to the voters the right to judge Mr. Trump’s conduct on January 6. Those are powerful reasons to expect the Court to take that approach.
Are Former Presidents Covered by the Language of Section Three?
The district court in Colorado, while concluding that Trump engaged in an insurrection on January 6, held that he is not subject to disqualification because presidents are not covered by the language of Section Three. The Colorado Supreme Court rejected this argument on appeal, and it is easy to see why. Section Three covers all “officer[s] of the United States,” and in ordinary speech, the president surely seems to be an officer. Franck declares it “quite clear” that this is so.
Actually, the question is surprisingly difficult. There is a longstanding principle of interpretation in U.S. law that the presidency is not covered by general language unless explicitly mentioned. The first draft of what would become Section Three explicitly included the presidency in its list of covered positions, but this was stricken. No one knows why, but perhaps it was because no former president (with the exception of John Tyler, who died in 1862) supported the Confederacy, and there was no realistic danger that a Confederate supporter could be elected to national office (unlike state-level elections in the South, which might well favor unrepentant Confederates). A number of serious scholars maintain that the phrase “officer of the United States” (as opposed to the bare word “officer”) denotes only appointed and not elected officials (which may be why Section Three separately lists members of Congress and presidential electors as covered). Other parts of the Constitution, including the Impeachment Clause and the Commissioning Clause, use the term “officer of the United States” in ways that exclude the president and vice president. These are substantial if not overwhelming arguments.
Nonetheless, I would be surprised if the Supreme Court rested its decision on this ground. Even if legally correct, to most Americans it would sound contrived and hyper-technical to say that the president is not an officer of the United States. This is a case where the Court will care about public reaction, and I would expect the justices to emphasize arguments that not only have a firm basis in text and history but that sound persuasive to ordinary Americans.
Were the Events of January 6 An “Insurrection or Rebellion” within the Meaning of Section Three?
Whether the events of January 6 were an “insurrection or rebellion against the Constitution of the United States” is the most subjective issue in the case, and the least susceptible to dispassionate legal analysis. Was January 6 an attempted coup, the product of an organized conspiracy to deprive the voters of their lawful choice of Joe Biden as president? Or was it a spontaneous protest by citizens who honestly believed the election had been stolen, and which unexpectedly spiraled out of control? People on both sides of this debate are confident they are right—and their counterparts are equally confident the other way. Because of that intractable disagreement, I suspect the Supreme Court will be careful to decide the case on other grounds.
But what is the best legal answer? The constitutional terms “insurrection” and “rebellion” are at the high end of the spectrum of political violence. The historical example that the framers had in mind was obviously the Civil War. No one suggests that January 6 was anything like the Civil War. The question remains, however, just how serious political violence must be to warrant the same sanction of disqualification from political office.
The operative terms of Section Three come from the Second Confiscation Act of 1862, which, in turn, borrowed from the concept of treason as discussed in Blackstone. (See United States v. Greathouse, 26 F. Cas. 18, 21 (1863).) According to Noah Webster’s 1828 Dictionary of American English, an “insurrection” is a “rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state,” while “rebellion” expresses “a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction.” Both terms connote a concerted challenge to governmental authority. An insurrection must be distinguished from a “riot,” which is the violent action of a mob, often an expression of mere anger or an attempt to pressure government officials to exercise their powers in a particular way. Riots typically interfere with the carrying out of federal and/or state law but do not challenge the fundamental authority of the regime.
It is important to respect the differences because riots are, unfortunately, common in American political life. We would not want so common a phenomenon as a riot to be labeled an “insurrection” and thus used as an excuse to disqualify supporters of the unrest from office. In all the hundreds of riots in American political history, including major ones in the last few years, no one has suggested that they triggered Section Three. Just last weekend, thousands of protestors broke through a security fence protecting the perimeter of the White House, committing acts of “illegal and destructive behavior,” including attacks on police officers, according to the Chief of the D.C. Metropolitan Police. Two presidential candidates were present and addressed the protestors. If an expansive definition of “insurrection” is established in the Trump case, it seems inevitable that the political opponents of those candidates, and others under similar circumstances in the future, will seek their disqualification under Section Three.
The courts that have found January 6 to be an insurrection have, in my opinion, played fast and loose with definitions. The New Mexico court that disqualified a county commissioner who had participated in January 6 defined “insurrection” as “an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.” That is so broad as to describe almost any riot. The Colorado Supreme Court took the opposite tack, putting forward a carefully gerrymandered definition that covered January 6 but very little else: “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country.” So, riots about federal election returns are covered, but not other grievances. That would exclude the Whisky Rebellion and maybe even the Civil War.
In my personal judgment, January 6, shameful as it was, looked more like a riot than an insurrection. It lasted only about three hours, most of the participants acted on the spur of the moment, few of them carried firearms, and their objectives were narrow: to pressure Congress and the vice president to correct what they (baselessly) thought were fraudulent election returns. It was a sad and dangerous day for the republic, but it was not a “rising against civil or political authority” and was not an insurrection against the Constitution of the United States. I recognize that others have a different view. But will the Supreme Court regard their perspective as so persuasive that it will disqualify from office a man who might well be the majority choice of the electorate?
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. The Department of Justice has devoted extraordinary energy and resources to prosecuting more than a thousand participants in the January 6 incursion; indictments included a variety of crimes, some of them inventive, from criminal trespass and assault to Sarbanes-Oxley. The prosecutors had every incentive to lodge the most serious charges that could stick. But they did not charge anyone with insurrection. I am not saying that conviction under 18 U.S. Code § 2383 is a legal prerequisite to disqualification under Section Three (as described below, active participants in the Confederate rebellion were disqualified without being charged or convicted for any crime), but the apparent conclusion of the Department of Justice, which had access to all of the facts and evidence, not to pursue insurrection charges makes it highly implausible that such a charge is supported by the facts and the law.
If January 6 Was an “Insurrection or Rebellion,” Did Then-President Trump “Engage in” It?
Even assuming that the violent events at the Capitol rose to the level of an “insurrection or rebellion,” it is difficult to make the case that Donald Trump “engaged in” that insurrection, as Section Three requires.
The operative language of Section Three was carefully chosen. The section creates two different grounds for disqualification: to “engage in” insurrection or rebellion or to give “aid and comfort” to the “enemies” of the United States. The former requires active involvement; the latter extends to substantial assistance (perhaps even rhetorical assistance, on analogy to treason). The term “enemies of the United States” has long been defined to refer to those at war with our country. At the beginning of the Civil War, there was some doubt as to whether the conflict was an actual “war” in the legal sense, or merely an insurrection or rebellion (which no one doubted), but the Supreme Court in The Prize Cases (1862) resolved that issue in favor of its being a war. Thus, Confederates could be disqualified either for actually engaging in the insurrection or for giving aid and comfort to the Confederacy at war with the United States. Whatever else it might be, January 6 was not “war,” and its participants were not “enemies of the United States.” Some advocates of disqualifying Mr. Trump confuse these standards and erroneously argue that he must be disqualified for giving “aid and comfort” to the January 6 insurrectionists. In fact, he is disqualified only if he “engaged in” it.
Notably, the Second Confiscation Act, which was a precursor to Section Three, covered anyone who would “incite, set on foot, assist, or engage in” a rebellion or insurrection. The framers of Section Three conspicuously did not include incitement or assistance within its scope.
There is much more historical evidence about what was meant by “engaging in” insurrection than about where to draw the line between insurrections and riots. That is because no one at the time doubted that the Civil War was a rebellion, but whether individuals had “engaged in” it was frequently contested. Perhaps the closest to an authoritative interpretation came from Attorney General Henry Stanbery in 1867, in an opinion interpreting an 1867 statute disqualifying persons who “participat[ed] in” the rebellion. According to Stanbery, “some direct overt act, done with the intent to further the rebellion, is necessary to bring the party within the purview and meaning of this law. Merely disloyal sentiments or expressions are not sufficient.”
We have records of almost half a dozen southerners elected to Congress whose entitlement to serve was challenged under Section Three. (Two preliminary points merit mention. First, there was no attempt to prevent these men from running for office, but only from taking office having been elected. Second, the forum for determination of their (dis)qualification was the House or the Senate, by virtue of Article I, Section Five, which provides that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”) One senator-elect was deemed disqualified; he had been a colonel in the Confederate army and wartime governor of North Carolina. Two representatives-elect were disqualified. One admitted to giving “aid, countenance, counsel, and encouragement to persons engaged in armed hostility” against the Union—but the Congressional Globe does not provide any further details about precisely what he did. The second (who was the runner-up to the first) had taken up arms as a soldier in the Confederate army and thus was an easy case. A Virginian, Lewis MacKenzie, was permitted to take his seat in the House despite voting in favor of secession as a pre-war member of Virginia’s House of Delegates and voting to appropriate funds to ready the state for armed hostilities with the Union. The distinction appears to be that he did not take up arms and thus did not “engage in” the rebellion. Similarly, John M. Rice of Kentucky was permitted to take his seat, despite having voted for secession as a member of his state legislature. Closer to the line, Rice had been a recruiter for the Confederate army but not himself a combatant. While some House members thought these actions were disloyal and qualified as aid and comfort to the enemy, the full House voted to seat him.
The tenor of these proceedings is that those who fought for the Confederacy had “engaged in” the rebellion, while those who supported the Confederacy in more indirect ways, such as voting for secession, voting to appropriate funds for the Confederate military, and even recruiting for the Confederate army, had not. Given that then-President Trump was not present at the January 6 incursion into the Capitol, and fell short of words advocating violence or rebellion, he would seem to be on the safe side of the line drawn by those charged with enforcing Section Three at the time.
Much has been made of the fact that Trump’s actions between Election Day and Inauguration Day were devoted to thwarting the peaceful transfer of power—a shocking abuse of his office. That is the central focus of Matthew J. Franck’s argument for disqualifying Trump from running for President. I agree that resistance to the results of a lawful election is a deep-dyed offense to the most fundamental commitment of a democratic republic. And I agree that a compelling case can be made that Trump should have known by January 6—if not earlier—that he lost the election. Not only did his own attorney general investigate alleged fraud and conclude that there was no proof sufficient to affect the outcome in any state, but the evidence that the election had been stolen was pathetically weak, to the point that adherence to the “Stop the Steal” campaign required willful blindness. (I participated in a comprehensive examination of every claim of fraud raised by the Trump forces, and found, conclusively, that they were not backed up by legally cognizable evidence. See Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election, https://lostnotstolen.org/.) Trump either knew his “Stop the Steal” campaign was wrong, or he let himself be deluded by outside advisers peddling a fable. But this did not make public protest against the results an insurrection.
People have a right to protest supposed electoral fraud even if they are obviously and verifiably wrong. They do not have the right to commit violence. No one has the right to commit violence in a political cause. But not all political violence is insurrection.
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