||| FROM UNIVERSITY OF PENNSYLVANIA LAW REVIEW |||
126 Pages Posted: 14 Aug 2023
Date Written: August 9, 2023
Abstract
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First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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 former 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.
FULL TEXT: SSRN-id4532751
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I am not a member of the party to which the candidate under discussion belongs. I am concerned with the due process of law, the very issue on which the candidate stands accused.
Law review articles are arguments. They do not declare the law; judges, and only judges, do that.
In this case, the question will turn on facts; the constitutional provision is self-effectuating based on facts. The question is whether the candidate intentionally invoked the crowd for the purpose of engaging in insurrection or rebellion against the United States. There is a large segment of the population that is convinced that the candidate is not to blame. The connection between the candidate and the rioting is a factual matter to be determined in a court of law irrespective of how strongly people feel. The plea entered by the candidate is “not guilty,” so the facts are in lawful dispute. Everyone is subject to the law, but everyone is also entitled to its protection.
I suggest that those of us who passionately support our democratic system,not assume that the candidate has himself “participated in the “attempted overthrow of the 2020 election,” and await the outcome of the process now underway. Should the outcome be that the candidate has acted as accused, yes, at that point, and not until then, the constitutional provision is self-effectuating.
Hi,
The discussion by Judge Luttig and Professor Tribe on this topic (the 14th Amendment, Section 3) delivers clarity to the discussion.
https://www.youtube.com/watch?v=PndXVq3zF4c
This is a must see video.
Agreed, Bill, Trump deserves his day in court. But you leave out the part about “providing aid and comfort” to a rebellion or insurrection. There’s a “smoking gun” argument that he did so by tweeting about Pence while the Capitol was under siege — whether or not he helped instigate that.
It’s a great video, but Professor Tribe’s characterization of the provision constituting an automatic disability will not sell under these circumstances. The fiat determination, however constitutional, that a bureaucrat can determine whether or not this particular candidate can run for federal office will not keep the peace during a highly volatile situation. The US has 120 civilian firearms per 100 people. Civics has not been taught in too many schools for too many years. Too large a number of people feel that the violence was and still is justified, “alternative electors” were only alternative, and/or that the candidate’s connection with these efforts was insufficiently direct.
Processes to clarify the candidate ‘s connection to these events are underway. It is important that they run their course before any official steps in to negate the this person’s campaign.
I have great respect for your legal analyses, Bill, but you are not an authority on Constitutional law — certainly not at the level of Judge Luttig and Professor Tribe. And I would like to point out that BOTH houses of Congress have already judged the former president guilty of “incitement to insurrection” by substantial majorities. The Senate majority did not rise to the level of two thirds required for impeachment, but that is a different matter from “disqualification” for public office, a phrase that Luttig and Tribe use over and over in this interview and I imagine in their Atlantic article, which I will now try to find and read.
My point is not the law, it is policy. Professors can say, correctly, that the provision is self-effectuating, but that is not the point. The point is that the point of law will not keep the peace; quite the contrary, and that is my concern. There are too many people who already have no respect for the law if it stands in their way. Under these circumstances, their perceptions (or lack of them) control their actions.Trials are the best way to (1) slow things down so people stop and think, and (2) show in slow motion exactly what happened. I have no doubts about the outcome. But if a bureaucratic determination based on however respected the academic, is going to be made, the societal outcome would be far better if it followed a judicial determination.
Looks like just another attempt from the Woke Left to shutdown free speech.
But will the American people listen to the judgments of juries of twelve men and women in Atlanta, Miami or Washington, DC — rather than the majority opinions of both houses of Congress, which (though seriously flawed) are more representative of the US citizenry? And they may come too late for the 2024 election, given all the inevitable legal delays. You may have no doubts about the outcome, but others do — myself included.
The majorities in both houses have not agreed, do not agree, and will not agree on this point, so that avenue (if it were open for this purpose) is not an option. Tribe’s opinion dictates that an non-elected bureaucrat (secretary of state) say, “That’s it. He’s disqualified.” Matthew Willis’ statement is a good example of why I think trials are necessary. It’s too large and hot an issue to be summarily resolved. for the reasons I’ve already given, even though Professor Tribe says no further procedure is necessary. There are times when a literal and blind application of the law is unwise, and I think this is one.
I think that either the litigation (as to which appeals would be undoubtedly expedited) coupled with the constitutional provision, or a general election, will effect the same result.
DJ Trump is just a citizen, like any other citizen. Being a former president confers ZERO special consideration in terms of the law. Likewise, running for political office while being prosecuted does not grant any special consideration in the eyes of the court. If Trump’s action and/or inaction in attempting to overturn a legal election are not prosecuted, then what is to prevent the next sore loser from doing the same thing? Either we enforce the rule of law or we devolve even further into kleptocratic oligarchy.