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04/27/2022

Mark Graber on Blackman & Tillman on Disqualification (with a Response from Blackman and Tillman)
Michel Ramsey

At Balkinization, Mark Graber: Legislative Primacy and the Fourteenth Amendment.  Fro the introduction:

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.  Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022) [Ed.:  see here].  Their claims are technically correct, but grossly misleading with respect to the original understanding of the Fourteenth Amendment and false to American practice for more than one-hundred and thirty years.

Blackman and Tillman are right to note that the Republicans who drafted the Fourteenth Amendment believed that Congress was responsible for implementing Section 3.  They fail to inform their readers that those same Republicans believed that Congress was responsible for implementing the entire Fourteenth Amendment.  Section 3 was no different than what became the more popular Section 1, which includes the citizenship, privileges and immunities, due process, and equal protection clauses.  During the late nineteenth, twentieth and early twenty-first century, the Supreme Court without objection took on the primary responsibility for implementing Section 1. The justices have never suggested that Section 3 is an exception to this practice.

The persons responsible for the Fourteenth Amendment were committed to a practice we might call legislative primacy.  Congress was expected to take the lead implementing the post-Civil War Amendments by legislation.  Courts might examine the constitutionality of that legislation, but courts were not expected to play a major, if any role independently implementing the constitutional ban on slavery or the provisions of the Fourteenth Amendment.  Legislative primacy reflected both theory and practice in the 1860s.  Many leading Republicans believed that political parties, not courts, were the primary vehicles for constitutional meaning.  Abraham Lincoln in his first inaugural address insisted that the people through elections had the right to challenge Supreme Court decisions.  As important, a Supreme Court staffed by a number of holdovers from the tribunal that declared in Dred Scott v. Sandford (1856) former slaves could not be American citizens was hardly likely to lead a crusade for racial equality after the Civil War.  If the Fourteenth Amendment was going to be implemented, Congress would have to do the implementing.  Every member of Congress knew this.

And from further on:

When championing legislative primacy, no member of the Congress that drafted the Fourteenth Amendment distinguished between Section 1 and Section 3.  Neither the participants in the debate over the Civil Rights Act of 1875 nor the justices that decided Ex parte Virginia thought the rules for implementing Section 1 differed from Section 3.  No Supreme Court justice who has asserted independent power under Section 1 to strike down legislation has ever suggested that institutional responsibility for implementing Section 3 is different. 

There is no difference.  Judges who swear off implementing Section 3 are on principle obligated to swear off implementing Section 1.  This means liberals must abandon Roe v. Wade and conservatives must accept affirmation action and gun control laws.  Indeed, if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment Blackm[a]n and Tillman would have the courts abjure.

Professors Blackman and Tillman respond: A Reply to Mark Graber’s ‘Legislative Primacy and the Fourteenth Amendment’