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01/15/2021

Gerard Magliocca: Amnesty and Section Three of the Fourteenth Amendment
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted Amnesty and Section Three of the Fourteenth Amendment (67 pages) on SSRN.  Here is the abstract:

This Article is the first scholarly account of Section Three of the Fourteenth Amendment, which excluded many ex-Confederates from office unless a supermajority of Congress granted a waiver. Section Three was the first part of the Fourteenth Amendment applied by Congress--even before the Amendment was ratified. Section Three was the first part of the Fourteenth Amendment applied by the courts, with Chief Justice Chase's opinion in "Griffin's Case" setting the tone for future Fourteenth Amendment decisions that narrowed the text's scope. And Section Three was the part of the Amendment that received sustained attention in Congress when a broad amnesty was enacted in 1872 and Senator Charles Sumner tried (unsuccessful) to add a broad civil rights amendment to the amnesty bill.

The story of Section Three is a microcosm of the trajectory of the Fourteenth Amendment as a whole during Reconstruction. Radical aspirations were followed by judicial caution and vigorous enforcement by Congress, only to give way to exhaustion with the implacable anger of southern whites over the protests of the first Black Representatives in Congress. And in a final irony, the first man to claim the protection of Section Three (in 1868) was the last man to benefit from congressional relief under that provision (in 1978)--Jefferson Davis. Section Three is a constitutional failure that deserves closer scrutiny.

This article has gotten quite a lot of attention (over 2300 downloads) due to its possible implication that Section 3 of the Amendment might disqualify President Trump from office, the relevant language being: 

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.

Noah Feldman explains at Bloomberg: Trump’s 2024 Hopes Just Crashed Into the 14th Amendment.

Does this provision to apply to Trump? The first part certainly does: Trump took an oath to uphold the Constitution when he became president.

The trickier question is the second part: Has Trump’s conduct amounted to insurrection? You can be sure that, if Trump runs for office in the future, someone will go to court charging that he is ineligible to become president because of his conduct leading up to, on and following Jan. 6, 2021.

Professor Feldman is a little skeptical (as am I):

That question is, assuming the march on the Capitol was an insurrection [ed.: I'm pretty sure he means, or should mean, the storming of the Capitol, as a march alone shouldn't be]: Did Trump himself engage in insurrection when he spoke to the crowd and encouraged or incited the march? If a court says yes, Trump isn’t eligible to be president again.

It’s worth noticing that the 14th Amendment does not use the word “sedition,” which is often employed to describe verbal acts that organize or plan an insurrection. That absence could be used by Trump or his lawyers to argue that even if the march on the Capitol was an insurrection, and even if Trump verbally helped bring it about, he was not himself “engaged” in insurrection for purposes of the 14th Amendment ban on holding office.

The counterargument would be that insurrection necessarily requires a level of verbal encouragement and planning — and that inciting a crowd to engage in insurrection is every bit as insurrectionary as rebelling oneself. If this is right, then the question becomes whether Trump actually incited insurrection.

A further suggestion I've seen elsewhere is that Congress, pursuant to its Section 5 power to enforce the Fourteenth Amendment, could declare Trump to have engaged in insurrection and thus to be disqualified under Section 3.  But that sounds a lot like a bill of attainder to me.