The Universities of Yale, Cornell, Pennsylvania, and San Diego, Salon Magazine, and Vox summarize the illegitimacy, corruption, and obstruction of the GOP SCOTUS majority, and different ways to remove the same beyond impeachment.

"UNIVERSITY of PENNSYLVANIA
LAW REVIEW
Founded 1852

VOL. 172 FEBRUARY 2024 NO. 3
ARTICLE
THE SWEEP AND FORCE OF SECTION THREE
WILLIAM BAUDE† & MICHAEL STOKES PAULSEN††

Section Three of the Fourteenth Amendment forbids holding office by formeroffice
holders who then participate in insurrection or rebellion. Because of a range of
† Harry Kalven, Jr. Professor of Law, University of Chicago Law School.
†† Distinguished University Chair and Professor of Law, University of St. Thomas Law School.
We thank Frank Bowman, Steve Calabresi, Josh Chafetz, John Harrison, Ed Hartnett, Daniel
Hemel, Brian Kalt, Myles Lynch, Gerard Magliocca, Michael McConnell, Derek Muller, Farah
Peterson, Eric Posner, Micah Quigley, Richard Re, Michael L. Rosin, Stephen Sachs, Greg Sisk,
Seth Barrett Tillman, and workshop participants at the University of Chicago Law School and
University of St. Thomas Law School for helpful comments on the first draft of this article, T.J.
Bowman, Nicole Catlin, Connie Gong, Sarah Leitner, James Marmaduke, Matt Phillips, and
Georgios Sarris for valuable research assistance, and countless others for discussions about these
issues—though not all of them gave aid or comfort to our conclusions.
606 University of Pennsylvania Law Review [Vol. 172: 605
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to the Civil War, and not effectively repealed by nineteenth century amnesty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.
INTRODUCTION ............................................................................. 608
I. SECTION THREE IS LEGALLY OPERATIVE TODAY...................... 613
A. The Generality and Presumptive Perpetuity of Constitutional
Language...................................................................................613
B. Has Congress Removed the Disability for Everyone for All Time?
(And Could It Do So If It Wanted To?)..........................................617
II. SECTION THREE IS LEGALLY SELF-EXECUTING ...................... 622
A. Section Three as Automatic Legal Disqualification .......................... 623
B. Who (All) Can (Must) Faithfully Apply and Enforce Section
Three?...................................................................................... 628
1. Seeking Office ................................................................... 629
a. By Election ................................................................... 629
b. By Appointment ............................................................ 633
2. Holding Office .................................................................. 634
3. Special Situations .............................................................. 636
C. The Problem of Griffin’s Case .....................................................644
A note to readers: In the time between acceptance and final publication of this article, the issues
we address here became the subject of much public commentary, academic discussion, and litigation.
As this article goes to press, the U.S. Supreme Court is poised to address some or all of these issues
in the case of Trump v. Anderson, No. 23-719 (argued February 8, 2024). We have chosen not to
address these developments in the final text of this article. We are very grateful to the staff of the
University of Pennsylvania Law Review for their patient, careful, and attentive editing of this very
long article.
2024] The Sweep and Force of Section Three 607
1. Background ....................................................................... 645
2. Chase on Section Three .....................................................646
a. “The Argument from Inconveniences, Great As These”........ 647
b. The Argument from “the Intention of the People”.................651
c. The Argument that Section Three Should Not be Read to
Depart from the “Spirit” of Prior Constitutional Law.......... 652
d. The Argument from the Section Five Enforcement Power.... 655
3. Griffin’s Self-Defeating and Highly Irregular Dictum.......... 656
III. SECTION THREE SUPERSEDES, QUALIFIES, OR SATISFIES
PRIOR CONSTITUTIONAL PROVISIONS ..................................... 660
A. Bills of Attainder........................................................................664
B. Ex Post Facto Laws ....................................................................666
C. Due Process of Law .................................................................... 667
D. The Ominous Question: Section Three and the First Amendment ......669
IV. SECTION THREE’S SUBSTANTIVE DISQUALIFICATION IS
SWEEPING ................................................................................674
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”;
“Engaged In”; “Aid or Comfort” to “Enemies”.................................. 676
1. Working Definitions .......................................................... 676
2. Contemporaneous Dictionary Definitions........................... 683
3. Intratextualism .................................................................. 685
4. Contemporaneous Public, Political, Legal Usage................. 687
a. President Lincoln........................................................... 688
b. Congress....................................................................... 693
i. The Ironclad Oath ................................................694
ii. The Second Confiscation Act ................................ 695
c. The Supreme Court’s Decision in The Prize Cases ............699
5. Other Extant Statutory Sources and Notorious Examples... 702
a. The Insurrection Acts (and Insurrections Generally)........... 702
b. The Congressional Exclusion Debates................................709
6. Legislative History .............................................................716
7. Early Applications of Section Three ....................................717
B. What Prior Officeholders are Covered? What Future Offices are
Barred? .....................................................................................721
C. The Attempted Overthrow of the 2020 Presidential Election..............730
1. The Question of Coverage: Insurrection and Rebellion........730
2. The Question of Participation: “Engaged in” and “Aid or
Comfort”........................................................................... 734
a. General Principles Concerning Culpable Participation..........735
b. Section Three Disqualifies Donald Trump from Future
Office........................................................................... 736
608 University of Pennsylvania Law Review [Vol. 172: 605
c. Beyond Trump .............................................................. 740
CONCLUSION..................................................................................742
INTRODUCTION
“Section 3 has long since faded into history.”
-Eric Foner1
Reports of Section Three’s demise are greatly exaggerated. It turns out
that Section Three of the Fourteenth Amendment remains of direct and
dramatic relevance today—a vital, fully operative rule of constitutional law
with potentially far-reaching contemporary real-world consequences. Section
Three remains in legal force and has a broad substantive sweep.
Here is what it says:
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.2
This section of the Fourteenth Amendment was designed to address a
particular historical situation and acute problem arising in the aftermath of
the Civil War. States in the South had purported (unconstitutionally)3 to
secede from the Union; they had purported to form the (so-called)
“Confederate States of America” in rebellion against the authority of the U.S.
Constitution; and they had waged a bloody four-year war of rebellion against
the United States. Yet even after the rebellion had been defeated, Southern
States had audaciously sent to Congress, to serve as U.S. Senators and
Representatives, men who had notoriously violated previously sworn oaths to
support the U.S. Constitution by subsequently engaging in or supporting
secession, rebellion, and civil war against the authority of the United States
(to say nothing of those now serving again in their state governments). The
former Confederates who arrived in Washington included “four Confederate
1 ERIC FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION
REMADE THE CONSTITUTION 85 (2019).
2 U.S. CONST. art. XIV, § 3.
3 See infra note 279 and sources cited there.
2024] The Sweep and Force of Section Three 609
generals, four colonels, several Confederate congressmen and members of
Confederate state legislatures, and even the vice president of the
Confederacy, Alexander H. Stephens.”4
The Congress that proposed the Fourteenth Amendment rightly regarded
the situation as outrageous—not only morally, but practically. If former
Confederates held the levers of federal and state government power, effective
“reconstruction” of the political order and any hope of extending the full and
equal protection of the laws to the newly freed former slaves would be at an
end. Section Three of the Fourteenth Amendment responded to that outrage,
enacting a sweeping disqualification from state and federal office of those who
had, as legislators or officers in the federal or state government prior to the
War, sworn required oaths of loyalty to the United States Constitution and
subsequently engaged in “insurrection or rebellion” against the U.S.
constitutional authority or given “aid or comfort” to its enemies. Only a twothirds majority vote of both houses of Congress could remove that sweeping
disqualification.
Fast-forward a century and a half. The events surrounding efforts to
overturn the result of the presidential election of 2020 have sparked renewed
scholarly, judicial, and political interest in Section Three of the Fourteenth
Amendment.5 The core events are familiar to all—the dishonest attempts to
set aside valid state election results with false claims of voter fraud; the
attempted subversion of the constitutional processes for States’ selection of
electors for President and Vice President; the efforts to have the Vice
President unconstitutionally claim a power to refuse to count electoral votes
certified and submitted by several States; the efforts of Members of Congress
to assert a similar power to reject votes lawfully cast by electors; the
fomenting and immediate incitement of a mob to attempt to forcibly prevent
Congress’s and the Vice President’s counting of such lawfully cast votes—all
in an attempt to prevent the defeated incumbent President, Donald Trump,
from losing power in accordance with the Constitution.
This was undoubtedly a serious assault on the American constitutional
order. Not since the Civil War has there been so serious a threat to the
4 AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 377 (2005) [hereinafter
AMERICA’S CONSTITUTION]; see also ERIC L. MCKITRICK, ANDREW JOHNSON AND
RECONSTRUCTION 178-79 (1960); ALLEN C. GUELZO,RECONSTRUCTION: ACONCISE HISTORY
25 (2018).
5 The most important scholarly articles (to which we are deeply indebted) are Gerard N.
Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 CONST. COMMENT. 87 (2021)
[hereinafter Amnesty]; Myles S. Lynch, Disloyalty and Disqualification: Reconstructing Section Three of
the Fourteenth Amendment, 30 WM. & MARY BILL RTS. J. 153 (2021), both of which were written
before the events of January 6, and Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A Howto Guide, LAWFARE (Jan. 19, 2021), https://www.lawfareblog.com/disqualifying-insurrectionists-andrebels-how-guide [https://perma.cc/LMT6-MBQR] [hereinafter How-to Guide].
610 University of Pennsylvania Law Review [Vol. 172: 605
foundations of the American constitutional republic. It takes little
imagination to describe the efforts to maintain Trump in office,
notwithstanding his defeat, as an attempted political coup d’état. These
actions culminated in the incitement and execution of a violent uprising at
the Capitol on January 6, 2021—an “insurrection” aimed at preventing
Congress and the incumbent Vice President from performing their
constitutional responsibilities to count the votes for President and Vice
President in the 2020 election. Several of the people involved in these
events—most notably, the defeated President, Donald Trump—had
previously taken oaths to support the Constitution. If they engaged in or gave
aid and comfort to an insurrection against the constitutional government,
Section Three would appear to bar them from holding office again.
As legal officials and citizens generally have begun to confront the
application of Section Three, they have foundered on the most fundamental
questions. How does Section Three’s disqualification apply—does it apply—
to those who planned, supported, encouraged, assisted, incited, or otherwise
participated in the events surrounding the attempted overturning of the
presidential election of 2020? Does Section Three’s century-and-a-half-old
disqualification, designed for the aftermath of the Civil War, even remain
legally operative in the first place? If so, what must be done to enforce Section
Three? Does it require implementing legislation or criminal trials (or
impeachments) before its disqualification kicks in? How does Section Three
interact with the rest of the constitutional order—are its subjects protected
by constitutional principles of attainder, anti-retroactivity, due process, and
free speech? And if Section Three does apply—to what and to whom? What
actions count as having “engaged in insurrection or rebellion” against the
Constitution of the United States or having “given aid or comfort to the
enemies thereof ”? Which officials are covered by Section Three’s exclusions?
This Article attempts to answer these questions. It makes four key points
(or clusters of points):
First. Section Three remains legally operative. It is no less part of the
Constitution than the other provisions of the Fourteenth Amendment. It is
not a dead letter. The Constitution is a binding, authoritative, written text,
not a collection of specific historical purposes and intentions. Where the text
applies, it applies. Its legal force is not limited to the immediate problem or
purpose that prompted its enactment. Section Three is not limited to the
circumstances of the Civil War and Reconstruction, even if the meaning of
its terms may be illuminated by that experience and history.
Nor has Section Three somehow been “repealed” by Congress’s two major
nineteenth-century statutes granting amnesty to those covered by Section
Three. This is not because it would be impossible for a constitutional provision
2024] The Sweep and Force of Section Three 611
to expire by its terms after a period of time, or upon the occurrence of a
particular event, or upon action taken by future actors. Article I, Section 9,
for example, created a constitutional prohibition of most congressional
regulation of the international slave trade for a period of twenty years—but
its prohibition then vanished in 1808. Section Three, however, does not work
that way. It imposes a general, prospective, rule of disqualification, which
Congress may remove by two-thirds vote of both houses only once it has
occurred. Section Three is prospective; congressional amnesty is
retrospective.
Second. Section Three is legally self-executing. That is, Section Three’s
disqualification is constitutionally automatic whenever its terms are satisfied.
Section Three requires no legislation or adjudication to be legally effective.
It is enacted by the enactment of the Fourteenth Amendment. Its
disqualification, where triggered, just is. It follows that Section Three’s
disqualification may and should be followed and carried out by all whose
duties are affected by it. In many cases, Section Three will give rise to
justiciable controversies in the courts. In others it will be enforceable by state
and federal officials. But no prior judicial decision, and no implementing
legislation, is required for Section Three to be carried out by officials sworn
to uphold the Constitution whose duties present the occasion for applying
Section Three’s commands. Section Three is ready for use.
While Section Three’s requirements could be made the subject of
enforcement legislation by Congress, under its general power under Section
Five of the Fourteenth Amendment “to enforce” the provisions of the
amendment, no such legislation is constitutionally required as a prerequisite
to Section Three doing what Section Three itself does. Chief Justice Salmon
P. Chase’s circuit court opinion to the contrary, In re Griffin,6 is simply wrong
on this point—full of sleight of hand, motivated reasoning, and self-defeating
maneuvers—as we will explain at length. In re Griffin should be hooted down
the pages of history, purged from our constitutional understanding of Section
Three.
Third. Section Three supersedes (or satisfies) earlier-enacted constitutional
provisions to the extent of any supposed conflict between them. Section Three, at
the time it was adopted as part of the Constitution, imposed a disqualification
from office based on an individual’s past conduct. Even if imposition of such
a disability might otherwise, if done by statute, have been a forbidden ex post
facto law or bill of attainder, Section Three of the Fourteenth Amendment
constitutionally supersedes any prior provision conflicting with its terms.
This principle extends to a more unsettling point. To the extent Section
Three’s disqualification for having “engaged in insurrection or rebellion” or
6 11 F. Cas. 7, 22-27 (C.C.D. Va. 1869) (No. 5,815).
612 University of Pennsylvania Law Review [Vol. 172: 605
giving “aid or comfort” to “the enemies” might turn out to be in tension with
the First Amendment’s protection of freedom of speech, Section Three
supersedes the First Amendment to the extent of any true conflict. To be
sure, the proper construction of Section Three’s terms (“insurrection,”
“rebellion,” “aid or comfort,” “enemies”) will leave much speech and advocacy
completely free. But in the cases where it does not, the terms of Section
Three, not the constructions of the First Amendment, decide where the line
is.
This leads to the article’s fourth and final group of points:
Fourth. Section Three’s disqualification is sweeping in its terms. It disqualifies
from future office-holding persons who “engaged in”—an expansive and
encompassing term connoting many forms of participation in or active
support of—a broad swath of activity covered by the terms “insurrection or
rebellion” or the giving of “aid or comfort” to “enemies” of the nation or its
constitutional order. It applies to a broad swath of civilian, military, and
legislative office holders who swore oaths of fidelity to the Constitution, and
it disqualifies such persons from holding in the future any of an
extraordinarily broad swath of public offices. Taking Section Three seriously,
on its own terms, means taking seriously the enormous sweep of the
disqualification it creates. And, we will argue, taking Section Three seriously
means that its constitutional disqualifications from future state and federal
officeholding extend to participants in the attempted overturning of the
presidential election of 2020, including former President Donald Trump and
others. The substantive terms of Section Three’s prohibition are not
themselves difficult or inscrutable (even if there might be questions of
application at the outer edges of the text’s meaning). But they are potentially
breathtaking in their straightforward consequences.
In what follows, we develop each of these four core points at length.
Section Three remains a valid, prospective, enforceable, self-executing,
broad, and relevant part of our Constitution. It falls to us to fulfill our duties
to it. These include the duties of legislative bodies, state and federal election
officials, executive officers, and perhaps others to take up the Constitution,
including Section Three of the Fourteenth Amendment, and wield it
faithfully and forcefully against its enemies. Taking Section Three seriously
means excluding from present or future office those who sought to subvert
lawful government authority under the Constitution in the aftermath of the
2020 election by engaging in insurrection or rebellion or giving aid or comfort
to enemies of the lawful constitutional order.
2024] The Sweep and Force of Section Three 613
I. SECTION THREE IS LEGALLY OPERATIVE TODAY
A. The Generality and Presumptive Perpetuity of Constitutional Language
The first step in our argument is an easy one, but perhaps not immediately
obvious to everyone: Section Three’s disqualification remains an operative
rule of the Constitution. The reason this might not be obvious, at least to the
uninitiated, is that Section Three plainly was designed for a specific historical
situation—the circumstances of Reconstruction following the end of the Civil
War. The implication, in the eyes of some, might be that that historical
situation limits the scope of the provision’s operation. We think any such
inference badly mistaken. Section Three was prompted by historical
circumstances, but that does not in any way detract from its enduring force.
To be sure, Section Three clearly bears the hallmarks of its historical
context. It is, for one thing, a radical rule. The sheer sweep of the
disqualification from offices that it imposed on former Southern
officeholders-turned-rebels was dramatic. Its operation was hugely disruptive
of antebellum patterns of elite political leadership, apparently indifferent to
inconvenience, and seemingly rather punitive in its consequences. Section
Three is harsh. It is categorical. It is insistent. It seems to have been
deliberately designed to turn the prior Southern political order upside down.
As Eric Foner puts it, “Section 3 aimed to promote a sweeping transformation
of Southern public life.”7
In these respects, the disqualification reflects and embodies the distinctive
political impulses of the so-called Radical Republican Congress that proposed
the Fourteenth Amendment in 1866. If its disqualification had radical policy
consequences for the South, so be it.8 It was more important to strip
insurrectionists and rebels of governing power completely, to remake
Southern political society thoroughly, and to prevent Southern backsliding
from the full consequences of Union victory entirely, than to be concerned
about such things as seeming harshness, impracticality, or disruptiveness.
Section Three is very much a creation and creature of its day.
Yet it is (or should be) basic constitutional law that it is the enduring text
of the Constitution that supplies the governing rule, not the ostensible
“purpose” or specific historical situation for which the text was written.
Constitutional provisions, written into our fundamental law, live beyond the
circumstances that prompted their adoption. And many such constitutional
provisions are written in broad, or general, terms that obviously extend
7 ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863-1877, at
260 (1988).
8 See 1 MARK GRABER, PUNISH TREASON, REWARD LOYALTY: THE FORGOTTEN GOALS
OF CONSTITUTIONAL REFORM AFTER THE CIVIL WAR 16-42 (2023).
614 University of Pennsylvania Law Review [Vol. 172: 605
beyond the specific situation or situations that led to their enactment.
Sometimes this is by design: the text’s drafters wrote a general rule, applicable
to a broad class of circumstances, as a more general, “neutral” way of
addressing a class of situations of which the specific problem motivating the
writing of the text might be just one instance. The thinking might be that if
the principle giving rise to the text is a correct one, it should be correct in
like circumstances, not just the one situation that provoked the rule’s
adoption. And sometimes a text’s breadth and generality might not reflect
conscious design: the text’s drafters wrote a general rule that unintentionally
went further than the problem they had in mind. Put colloquially, the text
sometimes “overshoots” its drafters’ intended purposes. (A text might
undershoot the problem its framers had in mind to address, too—or achieve
only part of its intended purpose, perhaps because of political compromise.)
The reason does not really matter. It is the rule as drafted and enacted in
the written text that counts, whether it goes further than the purposes
supposed to have inspired its adoption, or even whether it falls short of fully
achieving those purposes. While evidence of intention, usage, purpose, and
political context can assist in ascertaining the meaning of the enactment, it is
that objective meaning that constitutes the law, not the ostensible purposes
or motivations that supposedly lay behind it. This is “originalism,” our
system’s basic method for interpreting the Constitution and its amendments.9
Consider, for example, Section One of the same Fourteenth Amendment.
As a matter of historical purpose, the specific mischief the framers of Section
One had in mind was the enactment of “Black Codes” in Southern States that
discriminated against the newly freed former slaves. But the words chosen by
the drafters to enact the rule embodied in the textcommand, in general terms,
that no state shall abridge the “privileges or immunities of citizens of the
United States” nor deny to any “person” within its jurisdiction the “equal
protection of the laws”10—rules not cast in racial terms at all, let alone limited
to the immediate situation of former enslaved persons. The rules enacted
apply to all persons irrespective of race. So it was entirely plausible for
lawyers to argue that Section One also barred the same kind of discrimination
against women citizens that it barred against black citizens. It doesn’t matter
9 See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret
Drafting History, 91 GEO. L.J. 1113, 1124-48 (2003); Michael Stokes Paulsen, Does the Constitution
Prescribe Rules for Its Own Interpretation? 103 NW. U. L. REV. 857, 872-82 (2009) [hereinafter Rules for
Its Own]; William Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. PA.
L. REV. 609, 623-25 (2021); William Baude & Stephen Sachs, Grounding Originalism, 113 NW. U. L.
REV. 1455, 1456-60 (2019) [hereinafter Grounding]. For purposes of this article, we can bracket any
differences in emphasis between Paulsen’s objective-original-meaning originalism and Baude’s
original-law originalism.
10 U.S. CONST. amend. XIV, § 1.
2024] The Sweep and Force of Section Three 615
that the draftsmen of the amendment might not have had women “in mind”
if women are covered by the meaning of the words they actually wrote and
ratified.
11 Similarly, it was entirely plausible to argue that Section One went
so far as to ban racially segregated schools.12 The answers to each of these
questions turn on the objective, original meaning of “privileges or immunities
of citizens of the United States” and “equal protection of the laws,”13 not
whether the 1866 Congress and subsequent ratifiers had thought through the
possible radical implications of their own work. If the meaning of the
Fourteenth Amendment’s terms forbade racially discriminatory
classifications of any and all kinds, as a matter of the rules of late-1860s
language and usage, it doesn’t matter one way or the other whether it was
intended or expected that governments could enforce certain types of racial
discrimination, like enforced racial segregation. The rule as adopted might
overshoot the purposes, expectations, or desires of those who voted for it. But
the rule is the rule; the text’s meaning is the text’s meaning.
Thus, if the framers and ratifiers of the Fourteenth Amendment enacted
a general rule in Section Three—a disqualification from future officeholding
keyed to having taken an oath to the Constitution and subsequently engaging
in insurrection or rebellion against the United States—rather than a provision
that by its terms applied only to the case of former Civil War secessionists
and Confederate officials and officers,
14 it is the general rule that matters.
That the rule had a particular political purpose behind it as a matter of history
might be an aid to correct interpretation of the language supplying that rule.
(We will make such an argument below, concerning the meaning, in context,
of the phrase “insurrection or rebellion.”)15 But in the end, the question is
what rule was enacted. If Section Three’s rule fell short somehow, missing
11 We have used such examples before. See Paulsen, Rules for Its Own, supra note 9, at 901-02;
Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: UnWriting Amar’s Unwritten Constitution, 81 U. CHI. L. REV. 1385, 1421 n.68 (2014) [hereinafter Nothing
but the Text]; William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth
Amendment, 76 STAN. L. REV. (forthcoming 2024) (manuscript at 54-57),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4604902 [https://perma.cc/DS4N-AKUG].
12 We have used this example before, too. See Michael Stokes Paulsen, Lemon Is Dead, 43 CASE
W. RSRV. L. REV. 795, 839-40 (1993); William Baude, Is Originalism Our Law?, 115 COLUM. L. REV.
2349, 2380-81 (2015); see also Baude, Campbell & Sachs, supra note 11 (manuscript at 55).
13 U.S. CONST. amend. XIV.
14 Indeed, for what it is worth, the legislative history of Section Three confirms that this is
what the authors of the Fourteenth Amendment did. Earlier drafts had limited the Section’s
application to the “late insurrection.” Later versions dropped this limitation and generalized Section
Three’s application to “insurrection” and “rebellion.” See CONG. GLOBE, 39th Cong., 1st Sess. 2767-
68, 2770, 2869, 2921 (1866); see also Mark A. Graber, Rewarding Loyalty and Punishing Treason Through
Disenfranchisement and Bans on Officeholding: Section 3, at 3-4 (unpublished draft chapter, forthcoming
in Constructing Constitutional Politics: The Forgotten Fourteenth Amendment, Volume 2,
University Press of Kansas) (documenting this development).
15 Infra Section IV.A.
616 University of Pennsylvania Law Review [Vol. 172: 605
some folks its drafters might have meant to ensnare, those persons are not
ensnared. The text might (or might not) be thought deficient in this regard—
as having failed to fulfill its full purpose. But the text means what it says.
Similarly, if the rule supplied by the objective meaning of the text runs right
on past the specific historical purpose for which it was enacted and embraces
as well other insurrectionists, rebels, and aiders and comforters of enemies,
that rule must be given full legal effect as part of the Constitution. The rule’s
overbreadth in terms of its perceived purpose, and even its inconvenience as
a consequence of such overbreadth, are beside the point.16
Finally, we take it as almost too obvious to require stating that
constitutional provisions have indefinite life unless and until repealed or
amended by subsequent constitutional enactments. The fact that an
unrepealed, unamended provision of law is “old” does not in any way weaken
its legal force. The First Amendment is old too, as is the entire original
Constitution. But both remain in force. This is true even if the purpose for
which a constitutional provision was originally written has ceased to be
relevant, or even if the constitutional provision at issue might be thought in
today’s society to be something of an anachronism.17 There are, of course,
some self-identified living constitutionalists who deny this point—who think
that old texts have a legal shelf life and lose their potency over time, as “the
interest in sovereignty fades.”18 But in our view, this just shows what is wrong
with such living constitutionalism.19 The Constitution is not a spice cabinet.
All of this might seem to belabor the obvious. Few interpreters of Section
Three explicitly deny that it continues to govern new insurrections and
rebellions.20 But sometimes we wonder if this kind of denial is sneaking into
16 See, e.g., Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 907,
908-09 (1994) (making this point about the disqualification of some senators and representatives
from eligibility for certain appointed offices posed by the Emoluments Clause of Article I, § 6, cl.
2); William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 HARV. J. L. & PUB. POL’Y
(forthcoming 2023) (“Sometimes rules go beyond their reasons; a rule can be overbroad compared
to the reasons for enacting it. And sometimes rules are underbroad; a rule cannot quite do all the
things that you might want to do given the reasons for enacting the rule. Textualism recognizes that
when the judge enforces the law, the law’s rule might sometimes be different from what the people
who enacted the law would have wanted had they thought about the situation.”). For an extended
discussion of the abuse of arguments from inconvenience, see infra Section II.C.2.a, which discusses
Chief Justice Chase’s appalling opinion in Griffin’s Case.
17 See, e.g., Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. CHI. L. REV.
1457, 1486-90 (1997) (discussing privilege against self-incrimination).
18 David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What
It Says?, 129 HARV. L. REV. 1, 58 (2015). See generally Adam M. Samaha, Originalism’s Expiration Date,
30 CARDOZO L. REV. 1295 (2008).
19 See Baude & Sachs, Grounding, supra note 9, at 1487-88 (responding to Strauss).
20 For a rare example, see an argument made and rejected by the House during the exclusion
of Victor Berger. 6 CLARENCE CANNON, CANNON’S PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES 55 (1935) (“It was also seriously contended by counsel that section 3 of the
2024] The Sweep and Force of Section Three 617
people’s intuitions—subtly infecting and distorting the actual interpretation
of Section Three. So let us start from the right first principles: Section Three
remains constitutionally fully in force, as alive today as the day it was enacted.
B. Has Congress Removed the Disability for Everyone for All Time? (And Could
It Do So If It Wanted To?)
But what about this? The second sentence of Section Three provides that
“Congress may by a vote of two-thirds of each House, remove such
disability.”21 Just as the first sentence’s disqualification is not limited
specifically to the Civil War, neither is Congress’s power to grant amnesty.
Thus, Congress can, by the requisite vote, remove any disqualification that
exists by virtue of the operation of Section Three. But just exactly how far
does that power reach? Could Congress, by two-thirds majorities, essentially
extinguish the legally operative effect of Section Three entirely, by removing
the disability imposed by Section Three generally, prospectively, and
universally? Put more vividly: Can Congress, by two-thirds vote of each
house, essentially “explode” Section Three—render it inoperative in the
future, for all time?
These questions are not completely hypothetical. In two statutes enacted
in the late nineteenth century, Congress might arguably have done this. One
statute (from 1872) removed “from all persons whomsoever”—except
designated categories of individuals—“all political disabilities imposed” by
Section Three.22 Another (from 1898) further removed “the disability
imposed by section three of the Fourteenth Amendment to the Constitution
of the United States heretofore incurred.”23 And indeed, in a recent case
brought by then-Representative Madison Cawthorn, a district court judge
relied on these statutes to conclude that Section Three is now legally dead.24
Is that right? Do these statutes—can these statutes—grant amnesty to all
insurrectionists, past, present and future?25
No. While the argument is not entirely bonkers, it does not withstand
more serious scrutiny. It is wrong on both statutory and constitutional
grounds. Consider the statutes first. Neither one purports to rescind Section
fourteenth amendment was an outgrowth of the Civil War and that such a provision can not possibly
apply to the present case. . . .[H]owever . . . its provisions are for all time . . . .”).
21 U.S. CONST. amend. XIV, § 3.
22 Act of May 22, 1872, ch. 193, 17 Stat. 142.
23 Act of June 6, 1898, ch. 389, 30 Stat. 432.
24 See Cawthorn v. Circosta, 590 F. Supp. 3d 873, 889-92 (E.D.N.C. 2022), rev’d sub nom.
Cawthorn v. Amalfi, 35 F.4th 245 (4th Cir. 2022). This argument was also made and rejected by the
House during the exclusion of Representative Victor Berger. CANNON, supra note 20, at 55.
25 Congress’s power to remove Section Three’s disability and the history of its exercise are the
central themes of Professor Gerard Magliocca’s excellent article, Amnesty, supra note 5.
618 University of Pennsylvania Law Review [Vol. 172: 605
Three’s operative rule for all time. They do not pretend to explode the first
sentence of the constitutional provision.
Begin with the 1872 Act.26 In 1872, after a period of case-by-case
consideration of amnesty requests, Congress enacted a general statute
removing disqualification from a broad description of persons embraced by
Section Three’s prohibition. As Professor Magliocca recounts, the statute
reflected a mixture of motives: genuine mercy and magnanimity; the practical
consequences of Section Three in the South; the burdens and biases of caseby-case consideration of private bills; the politics of a presidential election
year; and the general but regrettable retreat from aggressive Congressional
Reconstruction.27 But what is most important is what it says. The statute
reads, in full:
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled (two-thirds of each house
concurring therein),That all political disabilities imposed by the third section
of the fourteenth article of amendments of the Constitution of the United
States are hereby removed from all persons whomsoever, except Senators and
Representatives of the thirty-sixth and thirty-seventh Congresses, officers in
the judicial, military, and naval service of the United States, heads of
departments, and foreign ministers of the United States.28
The key words are “imposed” and “hereby removed.” The words of the
1872 statute are used in the past tense: the statute “removed” disqualifications
“imposed” by the Fourteenth Amendment—that is, disabilities that had
already become legally effective.29 That is simply the natural reading, and the
natural implication, of the language employed.
Indeed, this is almost exactly what the Fourth Circuit recently said in
reversing the District Court’s decision in the Cawthorn case: Congress in 1872
“employed the past-tense version” of the verb “impose,” thus “indicating its
intent to lift only those disabilities that had by then been ‘imposed.’”30
Moreover, the Fourth Circuit continued: “[T]he operative clause’s principal
verb—‘removed’—reinforces this conclusion. In the mid-nineteenth century,
as today, that word generally connoted taking away something that already
exists rather than forestalling something yet to come.”31
26 Act of May 22, 1872, ch. 193, 17 Stat. 142.
27 See Magliocca, Amnesty, supra note 5, at 112-20 (describing the lead-up to and legislative
history of the act).
28 Act of May 22, 1872, ch. 193, 17 Stat. 142.
29 Id. (emphasis added).
30 Cawthorn v. Amalfi, 35 F.4th 245, 258 (4th Cir. 2022).
31 Id.
2024] The Sweep and Force of Section Three 619
By contrast, the District Court had faulted Congress for not being more
explicit: “Congress could have limited the Act to remove Section 3’s
disabilities from ‘persons currently subject to the disabilities’ or ‘persons
against whom the disabilities were lodged’ at the time (i.e., the
‘Confederates’) but did not do so.”32 The District Court thus concluded that
“[b]y the plain language of Section 3 and the 1872 Act, Congress removed all
of Section 3’s disabilities from all persons whomsoever who were not
explicitly excepted.”33 With all due respect, the District Court appears to have
been simply hoodwinked by the (for lack of a better word) feel of the “all
persons whomsoever” language and completely missed the other language
that made clear the statute’s past tense.
What about the 1898 statute? Does it yield a different result? On the cusp
of the Spanish–American War, at a moment of seeming national unity and
perhaps a desire to put aside old sectional grievances34 (and, one might add
more cynically, at a time of rising Jim Crow sentiment)35—Congress enacted
another general disqualification-removal statute. This one removed the
disqualification for everybody, without exception. Its language is even more
laconic:
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That the disability imposed by section three of
the Fourteenth Amendment to the Constitution of the United States
heretofore incurred is hereby removed.36
In one sense, that’s about as categorical, across-the-board a
disqualification-removal as one can imagine: “[T]he disability imposed by
section three . . . is hereby removed.”37 Period. No exceptions. But here it is
also even clearer that the 1898 act is backward-looking. Like the 1872 act, the
1898 act uses retrospective language: a disability (already) “imposed” is now
being “removed” from its prior legal existence. What’s more, the 1898 act says
that the Section Three disqualification being removed was one “heretofore
incurred.” That is unmistakably backward-looking, past-occurrence language.
What might otherwise give the 1898 act the feel of a now-and-ever-shaltbe removal, eliminating all future Section Three disqualification as well as
32 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 891 (E.D.N.C. 2022), rev’d sub nom. Cawthorn v.
Amalfi, 35 F.4th 245 (4th Cir. 2022).
33 Id.
34 Magliocca, Amnesty, supra note 5, at 126.
35 See MICHAEL STOKES PAULSEN & LUKE PAULSEN, THE CONSTITUTION: AN
INTRODUCTION 195-201 (2015) (discussing Plessy v. Ferguson, 163 U.S. 537 (1896), Cummings v.
Richmond County Board of Education, 175 U.S. 528 (1899), and the rise of Jim Crow).
36 Act of June 6, 1898, ch. 389, 30 Stat. 432.
37 Id. (emphasis added).
620 University of Pennsylvania Law Review [Vol. 172: 605
any and all extant ones—that is, but for the clarity of the “heretofore
incurred” language—is the Act’s reference to “the disability” imposed by
Section Three. This singular reference might be taken to suggest that Section
Three’s disqualification was thought a one-time-only, single-shot, Civil War–
era occurrence.38 If Section Three was good for one rebellion only, then
repealing it in the past tense repeals all that there is. But of course, as we have
argued, Section Three is not limited to one rebellion only, and so far as we
can tell even the Fifty-fifth Congress did not think that it was39 (nor would
it matter if they did).
In any event, though these statutes do not even purport to sunset Section
Three for the future, they do prompt us to consider the interesting question
of Congress’s constitutional power: What if they did purport to sunset Section
Three for the future? Is Congress’s constitutional power to remove Section
Three’s disqualification general and prospective, letting it remove Section
Three’s disqualification once and for all, including for future situations? We
think not.
To be clear, we don’t think there’s anything inherently unthinkable or
absurd about the idea of an “exploding” or otherwise defeasible constitutional
provision. Legal drafters might sometimes want to provide for an expiration
event or expiration date, even in an enduring Constitution. Article I’s Slave
Importation Clause, protecting the international slave trade, exploded after
twenty years.40 So too the initial allocation of representatives to states is
written into the text of the Constitution, even though it was then exploded
by the subsequent census.41 Other provisions of the Constitution set baseline
rules that Congress has the power to modify. Article I, Section 4 does so with
respect to state legislative power over congressional elections: “Congress may
at any time by Law make or alter such Regulations.”42 Article III, Section 2
38 For instance, in a different context the D.C. Circuit’s recess-appointments opinion in Noel
Canning v. NLRB, 705 F.3d 490, 500 (D.C. Cir. 2013), aff ’d only on alternate grounds, 573 U.S. 513
(2014), leaned heavily on “this difference between the word choice ‘recess’ and ‘the Recess’,” arguing
that “[a]s a matter of cold, unadorned logic, it makes no sense to . . . [say] that when the Framers
said ‘the Recess,’ what they really meant was ‘a recess.’ This is not an insignificant distinction. In the
end it makes all the difference.” Id. But a majority of the Supreme Court did not share this view of
the text. NLRB v. Noel Canning, 573 U.S. 513, 527-28 (2014).
39 For the brief and generally inconclusive legislative history of the 1898 act, see 31 CONG.
REC. 5404-19 (1898).
40 U.S. CONST. art. I, § 9, cl. 1 (“The Migration or Importation of such Persons as any of the
States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the
Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation,
not exceeding ten dollars for each Person.”). For a scathing critique of the substance and purpose of
this proviso, see, for example, PAULSEN & PAULSEN, supra note 35, at 81-83.
41 U.S. CONST. art. I, § 2, cl.3; Act of Apr. 14, 1792, ch. 23, 2d Cong., Pub. L. No. 2-23, 1 Stat.
253.
42 U.S. CONST. art. I, § 4, cl. 1.
2024] The Sweep and Force of Section Three 621
does so with respect to the Supreme Court’s appellate jurisdiction, setting a
default rule subject to “such Exceptions, and under such Regulations as the
Congress shall make.”43 The Twentieth Amendment, in Section 2, sets a
default date for Congress’s annual meeting, which Congress can modify.44
There’s no reason the framers of the Fourteenth Amendment could not
have similarly drafted Section Three to provide for the provision’s own
extinction after a supermajority vote of Congress.45 But that is simply not
what Section Three says. The second sentence of Section Three is not a grant
of power to explode, or amend, the content of the rule stated in the first
sentence. It is a grant of power to remove the consequences of the rule’s
operation.
To see this, break down Section Three into its component parts: Section
Three has two sentences. The first one describes at length the disqualification
for those who have taken a covered oath and engaged in insurrection or
related conduct. Of course, those two things must actually have happened for
the rule of Section Three’s first sentence to be triggered—for a
disqualification to have come into legal effect.
The second sentence (the “But” sentence) then gives Congress the power
to “remove such disability.” (“But Congress may by a vote of two-thirds of each
House, remove such disability.”) The “But” sentence explicitly cross-references
the first. Thus, the most natural reading of the two sentences in relation to
each other is that the second sentence confers an exceptions power that only
comes into existence when the conditions specified in the first sentence have
occurred. And to belabor the point a moment further, the word “remove”
means (and meant at the time, according to 1864 dictionaries) to displace or
take away something that already exists.46 This confirms that Congress’s
43 U.S. CONST. art. III, § 2, cl. 2.
44 U.S. CONST. amend. XX, § 2.
45 We thus part ways with Professor Magliocca here. Magliocca argues (in addition to versions
of the points we make above) that Section Three’s second sentence cannot be read as authorizing
Congress to remove future disabilities because this “would mean that Congress basically repealed
Section Three of the Fourteenth Amendment in 1872. But Congress cannot repeal a part of the
Constitution by itself: only a constitutional amendment can do that.” Gerard N. Magliocca, The
January 6th Insurrectionists Do Not Have Amnesty, JURIST (Apr. 13, 2022),
https://www.jurist.org/commentary/2022/04/gerard-magliocca-january-6-insurrectionists/
[https://perma.cc/29N5-K2N6]; see also Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1314 (N.D.
Ga. 2022) (“Congress has no power whatever to repeal a provision of the Constitution by a mere
statute.” (quoting CANNON, supra note 20, at 55)).
This strikes us as not quite right: if Section Three in fact authorized prospective removal of
disqualifications arising from future acts of insurrection, a statute doing so would not be repealing a
constitutional provision but exercising a power conferred by that constitutional provision—a power
to terminate the provision’s ongoing legal effect.
46 DR. WEBSTER’S COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE 1116 (Chauncy
A. Goodrich & Noah Porter, eds., London, Bell & Daldy 1864) (defining “remove” as “[t]o cause to
622 University of Pennsylvania Law Review [Vol. 172: 605
removal power only comes into being when a legal disqualification has vested
by operation of Section Three’s first sentence.
Section Three’s first sentence is written as a general and prospective rule,
not limited to the specific instance of the Civil War. Section Three’s second
sentence is written as a continuing power to grant relief from disabilities
already imposed by the operation of the first sentence. The power to remove
an extant legal disability is not a power to rescind the legal rule that creates
that disability.Thus, not only has Congress never purported to sunset Section
Three, it lacks the power to do so by Section Three’s own terms.
* * *
All of this is, we submit, basic. But it is also foundational. Section Three
remains legally operative as part of the U.S. Constitution. Its rule of
disqualification is general, not limited to the Civil War era. It states a rule of
law embodied in the written constitutional text as permanent fundamental
law. It possesses prospective force and applies to new situations: wherever the
rule applies, the rule applies. And while Congress comprehensively relieved
insurrectionists of the disability of disqualifications incurred prior to 1898, it
did not (and could not) erase Section Three from the Constitution. Section
Three remains in force.
Is anything more required, then, before this provision of the Constitution
can (and must) be given effect? Put somewhat differently: Is Section Three a
self-executing rule of constitutional law, complete in itself? Or does Section
Three require implementing legislation by Congress or some other further
legal or administrative action before it has legal force? We take up that
question next.
II. SECTION THREE IS LEGALLY SELF-EXECUTING
Our second point is colossally important—and a major sticking point for
some. But it is a point we think should be obvious: Section Three is selfexecuting. That is, its disqualifications from office are constitutionally
automatic whenever its conditions for disqualification are met. Nothing more
needs to be done in order for Section Three’s prohibitions to be legally
effective. Section Three requires no implementing legislation by Congress.
Its commands are enacted into law by the enactment of the Fourteenth
Amendment. Where Section Three’s legal rule of constitutional
change place; to move away from the position occupied; to displace”) [hereinafter WEBSTER’S
1864]; see also Cawthorn v. Amalfi, 35 F.4th 245, 258 (4th Cir. 2022) (quoting Webster’s definition).
2024] The Sweep and Force of Section Three 623
disqualification is satisfied, an affected prospective officeholder is disqualified.
Automatically. Legally.
In the years immediately after the Fourteenth Amendment was adopted
this seemingly obvious reading of Section Three was deemed inconvenient.
It was rejected in the highest quarters and has since faded from view. We thus
give the point considerable attention here. Our analysis here is organized in
three steps. First, we take Section Three itself and explain why it has direct
legal effect. Second, we discuss how this legal effect can and must be
recognized by all persons and institutions who have the occasion to apply it
in the performance of their duties—election officials, state and federal
administrators, legislatures, and courts.Third, we consider at some length the
leading counterargument to our view: the 1869 opinion written by Chief
Justice Salmon P. Chase as a circuit court judge in Griffin’s Case. Even if the
result in that case is defensible—which is far from clear, and raises grave
separation-of-powers problems of its own—its argument against selfexecution is so wrong as to prove our case. Section Three is legally selfexecuting as operative constitutional law.
A. Section Three as Automatic Legal Disqualification
Before we consider Section Three itself, consider the Constitution as a
whole. Though too many constitutional law teachers and casebooks begin
their study of the Constitution with questions of judicial review, and cases
like Marbury,47 in doing so they put the cart before the horse. The horse is
the Constitution, which is itself the “supreme Law of the Land.”48 Our system
is one of constitutional supremacy, not judicial supremacy or legislative
supremacy. As a general matter, this means that it is the Constitution which
states the law, and it is the job of government officials to apply it, not the
other way around.
This general truth is no less true of Section Three. Section Three’s
language is language of automatic legal effect: “No person shall be” directly
enacts the officeholding bar it describes where its rule is satisfied. It lays down
a rule by saying what shall be.49 It does not grant a power to Congress (or any
other body) to enact or effectuate a rule of disqualification. It enacts the rule
47 But not ours! See MICHAEL STOKES PAULSEN, MICHAEL W. MCCONNELL, SAMUEL L.
BRAY & WILLIAM BAUDE, THE CONSTITUTION OF THE UNITED STATES (5th ed. 2022).
48 U.S. CONST. art. VI, cl. 2.
49 We have borrowed this felicitous phrasing from John Harrison. Cf. John Harrison, The Power
of Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 64 U. CHI. L. REV.
203, 211 (1997) (“The Vesting Clause is a self-executing enactment; it lays down rules by saying what
shall be.”).
624 University of Pennsylvania Law Review [Vol. 172: 605
itself. Section Three directly adopts a constitutional rule of disqualification
from office.
This should be no surprise, as the same thing is true of the Constitution’s
other rules of disqualification from office. A person who has not attained to
the age of thirty-five is not qualified to be President of the United States.
This disqualification is automatic. The Constitution’s rule is self-executing.
“No person . . . shall be eligible” to be President who does not satisfy the age
requirement.50 The disqualification requires no further legislation or other
action, by anybody, to be operative. The disqualification simply is. So too for
Article II’s citizenship and length-of-residency eligibility prerequisites for
the office of President.51 And so too for the constitutional qualifications—age,
citizenship, state inhabitancy—for members of the House and Senate: “No
Person shall be” a Representative who does not meet Article I, Section 2’s
requirements.52 “No Person shall be” a Senator who does not meet Article I,
Section 3’s requirements.53These restrictions on eligibility are legally binding
simply by virtue of their presence in the Constitution.
The language of Section Three parallels, even duplicates, the language
used in these other provisions to express other constitutional disqualifications
from officeholding.54 None of these disqualifications requires any further legal
action or legislation to be operative. Where a constitutional legal
disqualification exists, it simply exists. It is a binding rule of constitutional
law.
Again, this kind of binding rule should be no surprise. The Thirteenth
Amendment’s ban on slavery, enacted a few years earlier, works the same way.
Immediately upon adoption of the amendment, slavery was legally
extinguished as a matter of constitutional law. “Neither slavery nor involuntary
servitude . . . shall exist,” the Thirteenth Amendment provides.55 The
institution of slavery was immediately, legally, constitutionally gone.56 The
Thirteenth Amendment contains a separate section granting Congress the
power to enforce the prohibition of slavery.57 But that enforcement power
scarcely means that the ban on slavery contained in Section One was
inoperative unless and until Congress passed legislation making it operative.
50 U.S. CONST. art. II, § 1, cl. 5 (emphasis added).
51 Id.
52 U.S. CONST. art. I, § 2, cl. 2 (emphasis added).
53 U.S. CONST. art. I, § 3, cl. 3 (emphasis added).
54 See JOSH CHAFETZ, DEMOCRACY’S PRIVILEGED FEW 168 (2007).
55 U.S. CONST. amend. XIII, § 1 (emphasis added).
56 See ALEXANDER TSESIS, THE THIRTEENTH AMENDMENT AND AMERICAN FREEDOM:
A LEGAL HISTORY 48-49 (2004) (documenting reactions of persons learning of their freedom
immediately after ratification).
57 U.S. CONST. amend. XIII, § 2 (“Congress shall have power to enforce this article by
appropriate legislation.”).
2024] The Sweep and Force of Section Three 625
Such a position would be ridiculous. The power to enforce adds to the
substantive prohibition—it is not a subtraction from or suspension of it.
And of course, the same is true elsewhere in the Fourteenth Amendment.
We take it as obvious that Section One is self-executing. Section One of the
Fourteenth Amendment, like Section Three, states directly operative rules of
constitutional law: “No State shall” in Section One, and “No person shall” in
Section Three.58 Both of these provisions are subject to additional
enforcement legislation by Congress under Section Five. Yet it is common
ground that Section One is self-executing. Nobody thinks, for example, that
the prohibitions of Section One are inoperative unless and until Congress
enacts legislation pursuant to its Section Five legislative power to bring them
to life.
In each instance, Congress certainly can enact legislation “to enforce” the
Thirteenth and Fourteenth Amendments’ commands.59 Doing so can unlock
additional procedural mechanisms, additional deference by courts to
Congress’s view of the law, and so on. The Civil Rights Act of 1866,60 the Ku
Klux Klan Act of 1871,61 and more were designed to enforce Section One of
the Thirteenth and Section One of the Fourteenth Amendment. But even
before those laws were enacted, the amendments immediately bound private
and state actors (including state courts), and could be recognized in existing
causes of action as well as the Supreme Court’s existing appellate
jurisdiction.62 To repeat, the existence of an enforcement power does not
mean that the Amendment’s specific legal commands lack independent, selfexecuting force.63
58 U.S. CONST. amend. XIV, §§ 1, 3. Nothing here turns on it, but Section Four of the
Fourteenth Amendment, which repudiates rebel and slave debts while guaranteeing the legal
obligation of the national debt, also seems to be self-executing. U.S. CONST. amend. XIV, § 4.
Section Two, which alters Article I and imposes a rule for how Representatives “shall be
apportioned,” presents a more complicated case. U.S. CONST. amend. XIV, § 2. Its rule is
immediately operative, like the rest of the Fourteenth Amendment, but its rule operates by changing
an apportionment process undertaken by Congress. Id. In practice, Congress has ignored it. See
Michael Rosin, The Five-Fifths Rule and the Unconstitutional Presidential Election of 1916, 46 HIST.
METHODS 57, 58-59 (2013) (noting that Congress “did nothing to enforce the Penalty Clause of
section 2 when it reapportioned the House in 1871-2,” and failed altogether to reapportion the House
after the 1920 census); AMAR,AMERICA’SCONSTITUTION, supra note 4, at 395; see also E-mail from
John Harrison to Akhil Reed Amar (Feb. 25, 2004), quoted in id. at 611 n.96 (discussing practical
obstacles to enforcing Section Two). It is hard to see how anybody else can realistically enforce it.
59 U.S. CONST. amend. XIII, § 2; U.S. CONST. amend. XIV, § 5.
60 Act of April 9, 1866, 14 Stat. 27 (codified at 42 U.S.C. § 1981).
61 Enforcement Act of 1871, ch. 22, 17 Stat. 13 (codified at 42 U.S.C. § 1985(2)).
62 See Baude et al., supra note 11, at 22, 57.
63 Indeed, Section One was added to an early draft of the Fourteenth Amendment precisely to
ensure that state Black Codes would be unenforceable even if there were no federal legislation saying
so. Id. at 30-31, 63-64.
626 University of Pennsylvania Law Review [Vol. 172: 605
So too, Congress in fact enacted implementing legislation in 1870 to
enforce Section Three, authorizing quo warranto civil suits brought by the
United States to remove state and federal officials unconstitutionally holding
office in violation of Section Three and imposing criminal penalties for
knowing violations of Section Three.64 But Congress’s choice to trigger
additional procedural mechanisms and federal jurisdiction for Section Three
cases does not mean that there was no constitutional prohibition before
Congress acted.65 Congress enforced Section Three’s prohibition. Congress
was not the one to give it legal effect. Section Three was effective law all along.
Section Three is also noticeably different from other constitutional
provisions that deal with misbehavior—provisions that are not self-executing
in the same way. Article III, for instance, describes the offense of treason:
Treason against the United States, shall consist only in levying war against
them, or in adhering to their Enemies, giving them Aid and Comfort. No
Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of blood, or Forfeiture
except during the Life of the Person attainted.66
Note the contrast. The Treason Clause defines an offense (“Treason . . .
shallconsist”) but it does not itselfconvict anybody of treason. SectionThree,
by contrast, enacts its own disqualification (“No Person shall be”). It acts on
persons, not offenses. This is driven home by the Treason Clause’s specific
procedures and powers: “[C]onvict[ions] of treason” require two witnesses or
a public confession; and “Congress shall have Power to declare the
Punishment of Treason.” Section Three of the Fourteenth Amendment, by
contrast, enacts its standard and imposes its consequences all at once.
64 Act of May 31, 1870 (First Ku Klux Klan Act), ch. 114 §§ 14, 15, 16 Stat. 140, 143, 144. The
criminal prohibition in Section 15 of the Act was repealed in the 1909 codification of the penal code,
35 Stat. 1088, 1153, § 341 (1909), and the quo warranto provision in Section 14 was repealed during
the 1948 positive law codifications of Title 28 of the U.S. Code, see Act of June 25, 1948, ch. 646,
§ 39, 62 Stat. 992-93; see also Lynch, supra note 5, at 206 n.365. Neither of these codifications was
thought to make a substantive change by repealing these provisions. See generally William W. Barron,
The Judicial Code 1948 Revision, 8 F.R.D. 439 (1949). See also 19 U.S.C.A. § 3264 (West 1916). These
provisions were probably thought obsolete. The repeals therefore certainly did not reflect a decision
to preempt or preclude any other existing remedies for Section Three.
65 Professor Magliocca concurs. See Magliocca, Amnesty, supra note 5, at 106 n.101 (noting that
“enacting enforcement legislation does not imply that legislation is required” and that the existence
of Section Five of the Fourteenth Amendment does not imply that the other sections are not selfexecuting). Indeed, this is especially so because Congress may have been responding to the decision
in Griffin’s Case (wrongly) holding that such legislation was required for Section Three to have
operative legal effect. See infra Section II.C.
66 U.S. CONST. art. III, § 3.
2024] The Sweep and Force of Section Three 627
Similarly, the Constitution’s impeachment provisions say that those who
are impeached “shall be removed from Office.”67 But the Constitution does
not itself impeach anybody. Instead, it specifies that somebody else—the
House and Senate—must do the impeaching.68 Again, Section Three’s
contrast is glaring. The framers of Section Three had the treason clause and
impeachment clauses at hand and chose a noticeably different path.69 Section
Three does not call for treason trials or the impeachment of insurrectionists
and rebels. It directly imposes an across-the-board disqualification and
involves Congress only if Congress wishes to end it.
Section Three’s constitutional disqualification, where applicable, just is. It
stands on its own as a constitutional rule of law, having come into legal force
“as Part of this Constitution,” along with the rest of the Fourteenth
Amendment, “when ratified” as a constitutional amendment.
70 It immediately
became “supreme Law of the Land.” 71 Its rule took immediate effect. Section
Three is, in that sense, legally self-executing.
Is there any serious textual argument to the contrary? We will address
Chief Justice Chase’s conclusion in Griffin’s Case in a moment. But we suspect
that resistance to this point often comes instead from some misdirected
intuitions. One is the problem of supposed difficulty. It seems easy, perhaps, to
apply the constitutional qualifications of age and citizenship.
72 It is pretty
67 U.S. CONST. art. II, § 4.
68 U.S. CONST. art. I, §§ 3–4.
69 Indeed, for what it is worth, the legislative history supports this understanding. Section
Three’s opponents criticized the proposal for its immediate consequences on former Confederates,
and its proponents seemed to share the same understanding. Opponents decried the provision’s
direct and immediate consequences. See CONG. GLOBE, 39th Cong., 1st Sess. 2900 (1866)
(statement of Senator Doolittle) (arguing that the amendment “will have the effect of putting a new
punishment, not prescribed by the laws, upon all those persons who are embraced within its
provisions.”); id. at 2916 (statement of Senator Doolittle) (lamenting that the amendment would
“annul that amnesty and take away that pardon” issued to Confederates by President Lincoln); id.
at 2940 (statement of Senator Hendricks) (complaining about immediate consequences).
Proponents recognized and defended the amendment’s immediacy. See id. at 2919 (statement of
Senator Willey) (defending the amendment’s immediate effect because those affected had already
“forfeited” their claim to participate in government “by their past conduct”); CONG. GLOBE, 39th
Cong., 1st Sess. App. at 228 (1866) (statement of Senator Defrees) (noting that the proposing
provision “would . . . prevent the direful influence these men would have upon the interests of the
country”); CONG. GLOBE, 39th Cong., 1st Sess. 3036 (1866) (statement of Senator Henderson)
(defending the immediate effect of Section Three against the charge that it is a bill of attainder or
ex post facto law). See generally infra Sections III.A–B (discussing bills of attainder and ex post facto
laws). See also Graber, supra note 14, at 26-27, 35-37 (documenting all of these discussions).
70 U.S. CONST. art. V.
71 U.S. CONST. art. VI, cl. 2.
72 See Gerard N. Magliocca, Background as Foreground: Section Three of the Fourteenth Amendment
and January 6th, 25 U. PA. J. CONST. L. 1059, 1066 n.42 (2023) [hereinafter Foreground] (“Section
Three was unprecedented in the sense that prior restrictions on serving in office were bright-line
rules (age and citizenship, for example) instead of standards.”). On the other hand, the Constitution’s
628 University of Pennsylvania Law Review [Vol. 172: 605
obvious what these are and obvious what they demand that we do. But who
exactly is disqualified by Section Three is, at least to initial appearances, a
more difficult, complicated, and fact-specific question. It is a more difficult
question of law because we must plumb the meanings of “insurrection” and
“rebellion” and so on—and these meanings are not quite as self-evident as
“thirty-five years of age” (at least until this article is widely read and
accepted). And it is more difficult in practice, because even once we know
what the terms of Section Three mean, we must know what exactly every
prior-oath-sworn official did. Not all participation in insurrection or rebellion
is open and notorious. But the problem of supposed difficulty is a non
sequitur. The fact that it might be hard for us to know today what a legal rule
means (or how it applies) does not mean that it is not the legal rule.
73 The
Constitution says what it says and we must try to apply it as best we can. To
start by asking what is easy for us, and then to assume that the Constitution
must mean something that makes our lives easy, is as fallacious as drawing
the curve before gathering the data points.74
Resistance might also come from the problem of enforcement. The
Constitution is generally self-executing law, but still, somebody has to enforce
it. Somebody has to read it, understand it, and ensure that our practices
conform to its commands. (Many somebodies, actually, as we discuss shortly.)
This is true, but again it is a non sequitur. It is true that government officials
must enforce the Constitution, and who does this and how they do it are
important questions—maybe the central questions of constitutional law. But
the meaning of the Constitution comes first. Officials must enforce the
Constitution because it is law; it is wrong to think that it only becomes law if
they decide to enforce it. Section Three has legal force already.
B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?
As we just said, even though Section Three is a self-executing,
immediately applicable constitutional legal rule, someone needs to do the
inhabitancy requirement has proved far from simple in practice. See JACK MASKELL, CONG. RSCH.
SERV., R414946, QUALIFICATIONS OF MEMBERS OF CONGRESS 13-18 (2015),
https://sgp.fas.org/crs/misc/R41946.pdf [https://perma.cc/AQ8Z-337B]. And there has been recent
litigation about the requirement that the President be a “natural born citizen” as well. See Derek T.
Muller, “Natural Born” Disputes in the 2016 Election, 85 FORDHAM L. REV. 1097, 1097-98 (2016)
[hereinafter Natural Born].
73 See Christopher R. Green, Constitutional Truthmakers, 32 NOTRE DAME J.L. ETHICS & PUB.
POL’Y 497, 511-12 (2018).
74 Cf. Michael Stokes Paulsen, Lemon Is Dead, 43 CASE W. RSRV. L. REV. 795, 839 (1993)
(mocking constitutional interpretation that engages in “the legal equivalent of the method my lab
partner and I used in high school chemistry: first draw the desired curve; then plot the data; if time
permits, do the experiment”); Stephen E. Sachs, Originalism: Standard and Procedure, 135 HARV. L.
REV. 777, 779 (2022).
2024] The Sweep and Force of Section Three 629
actual applying of that rule to particular situations where its application is
called for. Section Three’s constitutional disqualification exists of its own
force as an abstract matter. But someone needs to bring that legal rule to bear
in a concrete situation as a practical matter.
Who has the power and duty to do this? We think the answer is: anybody
who possesses legal authority (under relevant state or federal law) to decide
whether somebody is eligible for office. This might mean different political
or judicial actors, depending on the office involved, and depending on the
relevant state or federal law. But in principle: Section Three’s disqualification
rule may and must be followed—applied, honored, obeyed, enforced, carried
out—by anyone whose job it is to figure out whether someone is legally
qualified to office, just as with any of the Constitution’s other qualifications.
These actors might include (for example): state election officials; other
state executive or administrative officials; state legislatures and governors; the
two houses of Congress; the President and subordinate executive branch
officers; state and federal judges deciding cases where such legal rules apply;
even electors for the offices of president and vice president. We will discuss
in detail some of these examples presently. But two points are important to
keep clear at the outset: First, all of these bodies or entities may possess,
within their sphere, the power and duty to apply Section Three as governing
law. Second, their authority to do so exists as a function of the powers they
otherwise possess. No action is necessary to “activate” Section Three as a
prerequisite to its application as law by bodies or persons whose
responsibilities call for its application. The Constitution’s qualification and
disqualification rules exist and possess legal force in their own right, which is
what makes them applicable and enforceable by a variety of officials in a
variety of contexts.
Consider some illustrations:
1. Seeking Office
a. By Election
Anybody who seeks office will at some point need to show that they are
entitled to hold that office. At every point that this occurs, Section Three
governs. So, for instance, state or local election boards, and state Secretaries of
State, may possess state law authority to make at least initial determinations
as to eligibility of candidates for elected office in that state or representing
that state in Congress (as authorized by Article I, Section 4 of the
Constitution)—and, thus, whether or not such candidates shall be placed on
630 University of Pennsylvania Law Review [Vol. 172: 605
a primary or general election ballot.75 Those state bodies or officers are
obliged, often by oath—sometimes by oath mandated by the U.S.
Constitution—to act consistently with the requirements of the Constitution
in the discharge of their duties.
76 Accordingly, such state actors can and must
apply Section Three’s disqualification in carrying out their state law
responsibilities, just as they possess the authority and duty to comply with
and enforce the Constitution’s other qualification-for-office requirements.77
For an example of how this process is supposed to work, consider how the
state of Georgia entertained a Section Three challenge to the qualifications
of Representative Marjorie Taylor Greene under Georgia law. A state
administrative law judge took evidence about Representative Greene’s
involvement in the events of January 6, 2021.
78 The judge proceeded under
the theory that if January 6 was a constitutional “insurrection,” and if
Representative Greene had been part of it, she would be barred from office.
79
But the judge concluded that the challengers had failed to meet their burden
of proof under state law:
In short, even assuming, arguendo, that the Invasion was an
insurrection, Challengers presented no persuasive evidence Rep.
Greene took any action—direct physical efforts, contribution of
personal services or capital, issuance of directives or marching orders,
75 To be sure, the centralized, government-administered ballot did not come to America until
the late nineteenth century, ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED
HISTORY OF DEMOCRACY IN THE UNITED STATES 115 (2000), and so of course states are not
constitutionally required to run elections in this way. But if they do, Section Three governs how
they carry out their duties.
76 U.S. CONST. art. VI, cl. 2 (“This Constitution . . . shall be the supreme Law of the Land
. . . .”); see also U.S. CONST. art. VI, cl. 3 (“The Senators and Representatives before mentioned,
and the Members of the several State Legislatures, and all executive and judicial Officers, both of
the United States and of the several States, shall be bound by Oath or Affirmation, to support this
Constitution . . . .”). The nature of the Constitution as supreme, binding law is of course
fundamental to the argument for “judicial review,” as it is likewise fundamental to the argument for
the obligation of all government officials to adhere to the law supplied by the Constitution and give
its commands priority over any other source of law or legal duty. See generally Michael Stokes
Paulsen, The Irrepressible Myth of Marbury, 101 MICH. L. REV. 2706 (2003); see also William Baude,
Severability First Principles, 109 VA. L. REV. 1, 5-9 (2023) [hereinafter Severability].
77 We note that the determination by state officials that a candidate for election to the U.S.
Congress is not disqualified—and therefore may be elected—does not bind the respective houses of
Congress, in the exercise of their independent Article I, Section 5, powers to act as “Judge of the
Elections, Returns, and Qualifications of its own Members.” U.S. CONST. art I, § 5, cl. 1. Congress
still may refuse to seat prospective members it judges to be constitutionally disqualified by Section
Three or other constitutional limitations. See also infra notes 111–12 and accompanying text.
78 Rowan v. Greene, No. 2222582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office of
State Administrative Hearings, May 6, 2022) (initial decision).
79 See id. at 12.
2024] The Sweep and Force of Section Three 631
transmissions of intelligence, or even statements of encouragement—
in furtherance thereof on or after January 3, 2021.80
Secretary of State Brad Raffensberger issued a final decision ratifying the
hearing officer’s proposed findings that day.81
Such determinations about ballot eligibility may also be subject to further
judicial review. In state courts, these procedures will of course depend on what
review is available under state law. Similarly, federal courts might well possess
jurisdiction, subject to the usual federal jurisdiction doctrines (such as
standing, ripeness, mootness, and abstention), to decide cases of candidate
eligibility. Continuing the example, Representative Greene did file a federal
lawsuit attempting to enjoin the then-pending state proceedings (mentioned
above), and the district court concluded that the case was justiciable and that
Younger abstention did not apply, but that Greene’s claims failed on the
merits.82 While Greene’s appeal to the Eleventh Circuit was pending, she
prevailed in the state proceedings, so the case was dismissed as moot.83 The
details, of course, will vary from case to case. But where any of these tribunals
has jurisdiction they too obviously have the power and duty to apply Section
Three as the supreme law of the land.
This is not to say that states must provide any particular procedure for
bringing a challenge to ballot eligibility qualification or grant a cause of action
to particular private individuals to bring such challenges. For instance, in a
recent suit seeking to disqualify Arizona Representative Mark Finchem and
U.S. Representatives Paul Gosar and Andy Biggs from the 2022 primary
ballot, the Arizona Supreme Court concluded that state law did not provide
a private cause of action for a disqualification challenge.84 In principle, that
could well be right. Whether to provide a cause of action in such cases is
largely a question of state law. Section Three slots into existing powers and
procedures without mandating or micromanaging them.
That said, the Arizona Supreme Court’s muddied reasoning in the
Finchem–Gosar–Biggs case necessitates a few clarifying points. First, state
law can enforce Section Three, and the Fourteenth Amendment does not
80 Id. at 15. The January 3, 2021, cut-off is because that is the date that Representative Greene
first took a constitutional oath. Id. at 5. The Court also specifically rejected the argument that a
Newsmax appearance on January 5, 2021, should be interpreted as a “coded message from Rep.
Greene to her co-conspirators to go forward with a previously planned incursion into the Capitol.”
Id. at 16.
81 Rowan v. Greene, No. 2222582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office of
the Secretary of State, May 6, 2022) (final decision).
82 Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1295, 1304, 1320 (N.D. Ga. 2022).
83 Greene v. Sec’y of State for Georgia, 52 F.4th 907, 909-10 (11th Cir. 2022).
84 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. May 9, 2022)
(nonprecedential disposition).
632 University of Pennsylvania Law Review [Vol. 172: 605
place any particular presumption against doing so. Unfortunately, the Arizona
Supreme Court suggested otherwise, writing that “Section 5 of the
Fourteenth Amendment appears to expressly delegate to Congress the
authority to devise the method to enforce the Disqualification Clause . . .
which suggests that A.R.S. § 16-351(B) does not provide a private right of
action to invoke the Disqualification Clause against the Candidates.”85 This
inference is mistaken—Congress’s power to enforce federal law, including
constitutional law, is not exclusive of the states, and states regularly enforce
federal law including constitutional law in their own courts.86
Second, in some circumstances, state courts not only can but must enforce
Section Three. Under the rule of Testa v. Katt,87 where a state does open its
courts to a cause of action, it must apply federal law evenhandedly to that
cause of action. As the unanimous Court put it: “[T]he Constitution and the
laws passed pursuant to it are the supreme laws of the land, binding alike
upon states, courts, and the people, ‘any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.’”88 And thus “the policy of the
federal Act is the prevailing policy in every state.”89 A state cannot refuse to
enforce federal obligations the way it can sometimes refuse to enforce foreign
ones.
The Arizona Supreme Court’s decision unfortunately can be read to
suggest otherwise. The court cryptically wrote that the state “statute’s scope
is limited to challenges based upon ‘qualifications . . . as prescribed by law,’
and does not include the Disqualification Clause, a legal proscription from
85 Id. at *1. The court did not cite any authority for this interpretation, but its argument does
echo a fallacious argument made by Chief Justice Chase in Griffin’s Case, which we discuss at greater
length presently. See infra Section II.C.2.d. The Arizona Supreme Court made the additional
suggestion that Article I, Section 5 gave Congress “exclusive authority to determine whether to
enforce the Disqualification Clause against its prospective members.” Hansen, 2022 WL 1468157, at
*1. We are skeptical of this point as well, see infra note 111 and accompanying text, but in any event
it would have only applied to federal representatives Gosar and Biggs, not the lead defendant, state
representative Finchem. The individual houses of Congress of course have no Article I, Section 5
power, exclusive or otherwise, to determine the membership of state legislatures.
86 See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-60 (1990) (holding that state courts have
concurrent jurisdiction over civil RICO claims); id. at 469-70 (Scalia, J., concurring) (discussing
concurrent jurisdiction); see also Thomas Koenig & Christopher D. Moore, Of State Remedies and
Federal Rights 6 (May 29, 2023) (unpublished comment),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4462807 [https://perma.cc/8EQS-Z454].
87 330 U.S. 386 (1947).
88 Id. at 391 (quoting U.S. CONST. art VI, § 2).
89 Id. at 393. To be sure, Testa, and especially subsequent cases expanding it, have been subject
to powerful criticisms as a matter of original meaning. See, e.g., Ann Woolhandler & Michael G.
Collins, State Jurisdictional Independence and Federal Supremacy, 72 FLA. L. REV. 73, 78-83, 97-105
(2020); Haywood v. Drown, 556 U.S. 729, 742-67 (2009) (Thomas, J., dissenting). We bracket those
criticisms here.
2024] The Sweep and Force of Section Three 633
holding office.”90 If the court meant to distinguish federal constitutional
qualifications from state statutes, it seems to have violated Testa. If the court
meant that SectionThree’s dis-qualification is not a “qualification,” that seems
nonsensical. And if it meant something else, it is hard to figure out what.
In any event, the real question is what procedure is available for
determining whether a candidate is qualified for office. That is basically a
question of state law, and the correct procedures will likely vary from state to
state. But the courts owe state law a full and fair reading, not one slanted by
reticence to acknowledge the life in Section Three.
b. By Appointment
Now let us turn to appointments. Just as with elected office, anybody who
must decide whether an appointee is qualified must comply with Section
Three. Traditionally, this includes at a minimum whoever nominated the
officer.91 Thus governors, presidents, and other nominating authorities can
and should—indeed, constitutionally must—decline to nominate and appoint to
state or federal offices persons who are constitutionally disqualified by Section Three.
And likewise, where nominating authority is subject to additional
confirmation—by a state senate, the U.S. Senate, or any other body—that
body presumably can and should, constitutionally must, decline to consent to
the appointment of such constitutionally disqualified nominees.92
In other words, the election and appointment systems, from top to
bottom, frequently make decisions about a candidate’s eligibility for office.
All of those decisions are legally bound by Section Three of the Fourteenth
Amendment; and all persons making such decisions are correspondingly
bound to faithfully interpret, enforce, and apply Section Three.
90 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. May 9, 2022)
(nonprecedential disposition).
91 For instance, both President George Washington and President Franklin Roosevelt felt
obligated to consider whether their Supreme Court nominees (Patterson and Black, respectively)
were constitutionally disqualified by Article I, Section 6. See William Baude, The Unconstitutionality
of Justice Black, 98 TEX. L. REV. 327, 330, 333-34, 355-56 (2019).
92 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 907, 914-18
(1994) (discussing constitutional responsibility of political branches to enforce constitutional
disqualifications from office irrespective of whether they give rise to a judicial case or controversy,
and bemoaning the failure of all to enforce the Emoluments Clause); see also Baude, supra note 91,
at 355-56 (similar); Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105 YALE L.J.
549, 562-70 (1995) (noting parallel constitutional structural argument for obligation of both the
President and the Senate to exercise independent faithful constitutional interpretive judgment in
the course of carrying out their respective powers with respect to appointment); Charles L. Black,
Jr., A Note on Senatorial Consideration of Supreme Court Nominees, 79 YALE L.J. 657, 658-60 (1970)
(similar).
634 University of Pennsylvania Law Review [Vol. 172: 605
2. Holding Office
What about those who already hold office—either because Section Three
was not attended to before they gained office, or because their disqualifying
conduct happened later?93
Once again, the answer turns in part on what procedures are available
under other law. State officials can be subject to a variety of remedies for
unlawfully holding office. They might (or might not) be subject to removal,
as a matter of state law, by a private suit quo warranto, by the authority of
another executive or judicial officer or administrative board, or perhaps even
by the state legislature exercising powers of impeachment or recall. In
addition, it is possible that the salaries of such rightfully disqualified
officials—and the legal eligibility of such persons for those salaries—might
be subject to the authority and determination of some other state official.
We submit that all such officials—administrators, executives,
legislatures—possessing legal authority concerning such matters likewise
possess the authority (and duty) to interpret, apply, and enforce Section
Three’s disqualification in the course of exercising that legal authority. And
once again: if such determinations are judicially reviewable under state law,
the courts likewise possess the authority and duty to interpret, apply, and
enforce Section Three.94
For an example of how this process is supposed to work, consider how the
state of New Mexico removed commissioner Couy Griffin from state office.95
Griffin was an elected commissioner for Otero County, New Mexico, who
promoted, assisted, and ultimately joined in the January 6 insurrection
against the Capitol.96 A group of New Mexico citizens filed a quo warranto
action against Griffin under New Mexico law, seeking his removal from
office.97 The New Mexico district court took evidence, received legal
arguments, and then concluded that Griffin was disqualified under Section
Three.98 More precisely, and quite correctly, it held that Griffin had been
disqualified since the day of the January 6 insurrection, and ordered his
93 Or because Section Three was not yet adopted as law when they were appointed to office but
became operative and disqualified them subsequently. This was the situation presented in Griffin’s
Case, discussed presently. See infra Section II.C.
94 Of course, federal courts, too, might possess jurisdiction, subject to the usual rules and
conditions, to decide such lawsuits just as they will for state determinations of election candidate
eligibility. See supra notes 82-83 and accompanying text. And when doing so, they have the authority
and duty to interpret, apply, and enforce Section Three.
95 New Mexico ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619 (N.M.
Dist. Ct. Sept. 6, 2022).
96 Id. at *2, *5-9, *14-18.
97 Id. at *1.
98 Id. at *45-46.
2024] The Sweep and Force of Section Three 635
immediate ejection from office, and permanently enjoined him from seeking
or holding any other covered position.99
As a matter of state procedure, the court concluded that the New Mexico
quo warranto statute was a remedy for ejecting unlawful office holders.
100 It
also concluded that quo warranto could be sought by any citizen of New
Mexico, without any further showing of injury, because the New Mexico
courts are not bound by the same “standing” limitations as the federal courts
are.
101 As a matter of federal law, the court had no trouble concluding that the
events of January 6, 2021, were a constitutional “insurrection.”102 And it had
no trouble concluding that Griffin had engaged in that insurrection, both by
“voluntarily aid[ing] the insurrectionists’ cause by helping to mobilize and
incite” the crowd, and by joining in the invasion of the Capitol itself, even
though Griffin himself did not commit a violent act.103 The New Mexico
county court correctly recognized both its power and its duty to interpret and
apply Section Three of the Fourteenth Amendment.
The same general principle applies to the situations of those who hold
federal office. Again, anyone who possesses legal power to decide whether
such a person can and should hold (or continue to hold) the office in question
must apply Section Three’s disqualification in doing so.
104 Here, the specific
federal constitutional rules for tenure and removal present some interesting
complications, which we address shortly.
But in general: Wherever anyone possesses the constitutional authority or
duty to remove others from office for legal reasons, they can and should
99 Id. The New Mexico Supreme Court dismissed Griffin’s appeal on procedural grounds.
Order Dismissing Appeal, Griffin v. New Mexico ex rel. White, No. S-1-SC-39571 (N.M. Nov. 15,
2022). Meanwhile, the federal courts concluded that they lacked federal jurisdiction over two related
claims by Griffin: An attempt to remove the state action to federal court. New Mexico ex rel. White
v. Griffin, 604 F. Supp. 3d 1143, 1150 (D.N.M. 2022) (denying removal because of plaintiffs’ lack of
Article III standing). And a separate parallel suit attempting to enjoin the state proceedings. Griffin
v. White, No. 22-0362, 2022 WL 2315980, at *3 (D.N.M. June 28, 2022) (finding lack of standing,
lack of ripeness, and invoking Pullman abstention).
100 New Mexico ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 WL 4295619, at *24-
25 (N.M. Dist. Ct. Sept. 6, 2022).
101 Id. at *25.
102 Id. at *27.
103 Id. at *35-38.
104 The availability of a federal quo warranto action is curiously codified in the D.C. Code
§§ 16-3501, 16-3502. Courts have generally construed this statute quite narrowly, holding that only
the Attorney General may bring a quo warranto against a public official, and that he has broad
discretion not to do so. See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984); Drake v. Obama,
664 F.3d 774, 784-85 (9th Cir. 2011); SW Gen., Inc. v. NLRB, 796 F.3d 67, 81 (D.C. Cir. 2015), aff ’d,
580 U.S. 288 (2017). The Third Circuit recently dismissed a Section Three quo warranto against
former state senator Doug Mastriano on this ground. Hill v. Mastriano, No. 22-2464, 2022 WL
16707073, at *2 (3d Cir. Nov. 4, 2022); see also Hill v. Perry, No. 22-2465, 2023 WL 3336648, at *1 (3d
Cir. May 10, 2023) (dismissing similar suits by same plaintiff against Rick Saccone and Scott Perry).
636 University of Pennsylvania Law Review [Vol. 172: 605
remove those barred by Section Three. Presidents—and subordinate
executive officers acting at the president’s direction—should remove from
office executive officers, civil and military, who are constitutionally
disqualified by Section Three. Likewise, the House of Representatives should
impeach, and the Senate convict and thereby remove from office, civil
executive officers who become constitutionally disqualified by Section
Three.
105
Finally, and additionally, what happens if all of the above fails? Somebody
disqualified by Section Three is given office and nobody removes that person
from office. What then? Here too there will often still be additional
procedures to enforce SectionThree.These procedures mirror those available
to enforce the Appointments Clause and other constitutional law of
appointments. A litigant can move to disqualify a judge whose appointment
is improper.
106 A regulated entity can challenge the actions of an executive
official who holds office improperly.107 Those who cannot constitutionally
hold office cannot constitutionally exercise government power, so the subjects
of that power can challenge their acts as ultra vires. While there may be some
limits to the available relief in some kinds of suits under the “de facto officer
doctrine,” (more on which shortly), in many cases the courts will be called on
to decide if an action is ultra vires. Section Three governs those cases.
3. Special Situations
A few federal constitutional offices raise special cases, where the
Constitution itself speaks to official tenure or qualifications.
First consider Congress. Each house of Congress has two specific powers
with respect to its own membership in which Section Three might come into
play. First, each house is the “Judge of the Elections, Returns, and
Qualifications of its own Members.”108 Since one of those qualifications is
non-disqualification under Section Three, each house can and must judge
105 An officeholder who has engaged in insurrection or rebellion or given aid or comfort to
enemies of the United States has surely committed a “high Crime[]” or “Misdemeanor” within the
meaning of Article II, Section 4’s description of the scope of the impeachment and removal power.
U.S. CONST. art. II, § 4; see Michael Stokes Paulsen, To End a (Republican) Presidency, 132 HARV.
L. REV. 689, 698-702 (2018). Note that military officers are not subject to impeachment; they are
subject instead to the President’s removal authority as Commander in Chief. See Zachary S. Price,
Congress’s Power over Military Offices, 99 TEX. L. REV. 491, 549 (2021). Whether Congress could
supplement that authority through appropriate legislation is an interesting question. Id. at 550.
106 See Nguyen v. United States, 539 U.S. 69, 77–79, 81–82 (2003); Baude, supra note 91, at 346-
47.
107 See, e.g., Buckley v. Valeo, 424 U.S. 1, 8-10 (1976) (per curiam); Morrison v. Olson, 487 U.S.
654, 668 (1988); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 487-88 (2010);
NLRB v. Noel Canning, 573 U.S. 513, 520 (2014); see also Baude, Severability, supra note 76, at 36-37.
108 U.S. CONST. art. I, § 5, cl. 1.
2024] The Sweep and Force of Section Three 637
whether Section Three forbids the seating of a member. This judgment is
conclusive, and it operates as a crucial constitutional backstop for each house.
No state or group of voters can force upon the House or Senate a Member it
judges to be constitutionally disqualified. Indeed, even federal courts could
not properly do so. While the Supreme Court has held, in Powell v.
McCormack,
109 that Congress cannot create new “Qualifications” and that the
federal courts have the power to stop it from doing so, neither Powell nor first
principles allow a federal court to second-guess each house’s judgment about
whether the existing, constitutional, qualifications have been satisfied.
110
Some have argued that each house’s judging power also preempts other
early stages of the election process. The argument is that states and state
election law have no power to exclude a candidate for Congress because they
are constitutionally ineligible to office—that instead the state must allow the
voters to send up the ineligible candidate, so as not to prejudge the possibility
that the House or Senate will find them eligible.111 With respect, we do not
agree with this argument. As a logical matter, each house’s right to judge
whether an elected candidate can hold office does not give it the power to
force states to elect that candidate (or allow them to be elected) in the first
place. And as a textual matter, state legislatures have the power to regulate
the “Manner” of elections, which includes ballot eligibility.
112 In our view, the
109 395 U.S. 486 (1969).
110 See id. at 520 n.41 (reserving the possibility that Section Three disqualification is a
qualification); see also P. Allan Dionisopoulos, A Commentary on the Constitutional Issues in the Powell
and Related Cases, 17 J. PUB. L. 103, 114-15 (1968), cited in id. at 520 n.41 (arguing that each House can
apply Section Three); Powell, 395 U.S. at 521 n.42 (“[F]ederal courts might still be barred by the
political question doctrine from reviewing the House’s factual determination that a member did not
meet one of the standing qualifications.”). We emphasize that questions of interpretation and
application of Section Three are not in general “political question[s]” that cannot be decided by
federal courts simply because they have political consequences. Where the Constitution supplies a
rule, and the rule’s application is not committed by the text of the Constitution to the judgment of
one of the political branches, the courts are not disabled from deciding a case based on that rule. We
simply think that the provision committing to each house the power to be the “Judge” of the
“Elections, Returns, and Qualifications” of its own members does not permit judicial review of
determinations of each house that properly fall within these constitutional categories.
111 See Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 IND. L.J. 559, 594-98
(2015) [hereinafter Scrutinizing]; see also Cawthorn v. Amalfi, 35 F.4th 245, 267-73, 282-84 (4th Cir.
2022) (Richardson, J., concurring); Greene v. Sec’y of State for Ga., 52 F.4th 907, 912-16 (11th Cir.
2022) (Branch, J., concurring).
112 U.S. CONST. art. I, § 4. The same Clause also gives Congress the power to “make or alter”
such regulations by legislation if it wishes. Two relatively recent Supreme Court cases have
invalidated state ballot eligibility rules for members of Congress that attempted to impose
congressional term limits, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) and Cook v.
Gralike, 531 U.S. 510 (2001), and Judge Richardson relies on these cases to argue that states cannot
judge the qualifications of congressional candidates, Cawthorn, 35 F.4th at 273-74 (Richardson, J.,
concurring). Putting aside whether these cases are correct as an original matter, we think they further
support our view. The Court rejected term-limit-ballot-access restrictions because they were an
638 University of Pennsylvania Law Review [Vol. 172: 605
better interpretation is that Section Three can be relevant to both the state’s
power to regulate the manner of elections and each house’s power to judge
the results of those elections.
The second relevant power each house possesses with respect to its own
Members concerns Members already sitting in Congress. Each house also has
power to “determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of two thirds, expel a
Member.”113 So in addition to the initial power to exclude under Section
Three, each house could potentially proceed through the expulsion power
instead, by two-thirds vote.114 As with the power to exclude, the power to
expel, where exercised within the scope of the power conferred exclusively on
each house, is committed to that house’s discretion.
Additionally, Article I’s Speech and Debate Clause provides that “for any
Speech or Debate in either House,” members of Congress “shall not be
questioned in any other Place.”115 This means that to the extent that the
conduct that violates Section Three was a member of Congress’s official
statements or legislative actions,
116 each house’s powers of exclusion and
expulsion are necessarily the sole mechanism for enforcing Section Three.
Federal judges hold their offices during “good Behaviour.”117 What if a
sitting federal judge or even a Supreme Court justice has engaged in
insurrection or rebellion or given aid or comfort to the nation’s enemies?118
As a matter of substance this is easy. Whether regarded as simply a violation
of the Article III tenure condition of “good Behaviour” or as satisfying the
impeachment standard of “high Crimes and Misdemeanors,”119 conduct
meeting Section Three’s standard disqualifies a federal judge from office.
attempt to impose a qualification not contained in the Constitution. See, e.g., U.S. Term Limits, 514 U.S.
at 787-88, 806-15. It follows that ballot access rules that follow the qualifications contained in the
Constitution could be treated differently.
113 U.S. CONST. art. I, § 5, cl. 2.
114 There is some debate whether Congress can expel a member for conduct that occurred
before being elected. See CHAFETZ, supra note 54, at 210-12 (recounting arguments on both sides
but arguing that it can); JACK MASKELL, CONG. RSCH. SERV., RL31382, EXPULSION, CENSURE,
REPRIMAND, AND FINE: LEGISLATIVE DISCIPLINE IN THE HOUSE OF REPRESENTATIVES 5-7
(2016), https://sgp.fas.org/crs/misc/RL31382.pdf [https://perma.cc/FT4M-U5AB] (same). At all
events, however, continuing to hold office when forbidden to do so by Section Three is ongoing
conduct that would seem independently to justify expulsion in the here-and-now.
115 U.S. CONST. art. I, § 6, cl. 1.
116 As we elaborate later, we think it is quite rare that such conduct could violate SectionThree,
even on its own terms.
117 U.S. CONST. art. III, § 1.
118 Cf. Ex parte Milligan, 71 U.S. 2, 141 (1866) (Chase, C.J., concurring in the judgment) (“In
Indiana, the judges and officers of the courts were loyal to the government. But it might have been
otherwise. In times of rebellion and civil war it may often happen, indeed, that judges and marshals
will be in active sympathy with the rebels, and courts their most efficient allies.”).
119 See supra note 105.
2024] The Sweep and Force of Section Three 639
As a matter of procedure the question is trickier. The conventional
wisdom is that Article III allows good behavior to be judged only through the
procedure of impeachment by Congress. An alternative view, with some
support in the history, is that Congress could provide other procedures for
adjudicating misbehavior (as for instance in the 1790 Crimes Act, which
purported to require the immediate removal of any federal official convicted
of bribery or other crimes).
120 Whichever is the answer, the procedures and
criteria for judging judges can and must apply Section Three.
Finally, what about the top of the ticket? What if the President or a
presidential candidate (or likewise for Vice President) is constitutionally
disqualified?121 Who has the power and duty to enforce Section Three’s legal
prohibition? Again, the answer depends on whether the supposedly
disqualified individual is seeking election to office or already holds it. In the
case of a candidate, state election officials and state election law will frequently
judge that candidate’s ballot eligibility, applying Section Three as described
above, and subject to the usual avenues of judicial review. This is true even in
the case of a presidential candidate, even though it is technically the electors
who are elected by the people.
122 Put simply: a state secretary of state (for
example) might well possess state law authority to determine candidate
eligibility for federal elective offices—President and Vice President, U.S.
Representatives, U.S. Senators—selected directly or indirectly via state
elections; and among those relevant eligibility criteria is whether a candidate
is disqualified from the office he or she seeks by Section Three of the
Fourteenth Amendment.
Additionally, presidential electors have the power (and therefore perhaps
the responsibility) to enforce Section Three.123 In perhaps half the states, the
120 See Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 YALE L.J.
72, 122, 127-35 (2006). In the interests of full disclosure, one of us was the student lead editor when
this piece was published, and continues to think it is probably right, notwithstanding the
counterarguments in James E. Pfander, Removing Federal Judges, 74 U.CHI. L. REV. 1227 (2007). The
other of us adheres to the traditional view. Michael Stokes Paulsen, Checking the Court, 10 N.Y.U. J.
L. & LIBERTY 18, 76, 77 n.88 (2016).
121 We are assuming for now that the Presidency and Vice Presidency are covered by Section
Three’s language as an “office, civil or military, under the United States.” U.S. CONST. amend. XIV,
§ 3. We think that assumption is correct, and we will return to it in Section IV.B.
122 See Hemel, How-to Guide, supra note 5; Lindsay v. Bowen, 750 F.3d 1061, 1063, 1065 (9th
Cir. 2014) (upholding state exclusion from presidential primary ballot of twenty-seven-year-old
candidate constitutionally disqualified on grounds of age); Hassan v. Colorado, 495 F. App’x 947,
948 (10th Cir. 2012) (Gorsuch, J.) (upholding state exclusion from presidential election ballot of
naturalized citizen constitutionally disqualified from office by Natural Born Citizen Clause of
Article II); see also Muller, Scrutinizing, supra note 111, at 599-608; Muller, Natural Born, supra note
72, at 1100-06. This is standard practice and law even though the President and Vice President are
only indirect candidates, with their electors as direct candidates.
123 See Muller, Scrutinizing, supra note 111, at 579-80.
640 University of Pennsylvania Law Review [Vol. 172: 605
question is more complicated, because state laws purport to bind the electors
in various ways to vote for their party’s candidate rather than making their
own determination, and the Supreme Court has recently upheld such laws.
124
But even working within that paradigm, states and their legislatures have
their own duties to uphold the Constitution. That means they have a
responsibility to ensure that their electors do not ultimately contribute to a
constitutionally disqualified candidate assuming office.
If the voters and presidential electors do select a constitutionally
disqualified candidate for the Presidency, does Congress have the power—
perhaps even the duty—to reject such a candidate when the votes of electors
are counted in joint session called for by the Twelfth Amendment? This is an
unsettled question and we are, candidly, not sure of the answer.
On the one hand, the text of the Twelfth Amendment does not in terms
confer a power on the joint session of Congress to judge the propriety, legal
or otherwise, of the votes cast by electors.
125 The responsibility to count the
votes cast is not cast in terms of a power to judge the validity of such votes.
Indeed, even the role of counting is formulated in a (very) passive voice: “The
President of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates and the votes shall then be counted.”126
This is hardly the language of affirmative power to judge, evaluate, or decide.
It contrasts rather sharply with the Article I power of each house of Congress
to “Judge of the Elections, Returns, and Qualifications” of “its own
Members.”127 Further, the Twelfth Amendment specifically limits Congress’s
role in selection of the President to the power of the House of Representatives
to “choose immediately, by ballot, the President,” from the three persons
receiving the highest number of votes, only “if no person have such majority
[of the votes of the whole number of Electors appointed].”128 To the extent a
power to judge the constitutional validity of votes submitted by electors
might verge on a practical power of the joint session to select the President
124 See Chiafalo v. Washington, 140 S. Ct. 2316, 2319-22 (2020); see also Muller, Scrutinizing,
supra note 111, at 580. We bracket the serious possibility that Chiafalo was wrongly decided. See, e.g.,
Mike Rappaport, The Originalist Disaster in Chiafalo, LAW & LIBERTY (Aug. 7, 2020),
https://www.lawliberty.org/the-originalist-disaster-in-chiafalo/ [https://perma.cc/2PED-4EMB];
Michael Stokes Paulsen, The Constitutional Power of the Electoral College, PUB. DISCOURSE (Nov. 21,
2016), https://www.thepublicdiscourse.com/2016/11/18283/ [https://perma.cc/J7ZG-LH2U].
125 See, e.g., Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. REV. 1653,
1805 (2002); John Harrison, Nobody for President, 16 J.L. & POL. 699 (2000).
126 U.S. CONST. amend. XII (emphasis added).
127 U.S. CONST. art. I, § 5, cl. 1.
128 U.S. CONST. amend. XII.
2024] The Sweep and Force of Section Three 641
by selective counting of votes, it subtly infringes on the Twelfth
Amendment’s constitutional design.
129
On the other hand, perhaps such a power to enforce Section Three’s
disqualification can be inferred from constitutional structure and history.The
argument would go like this. Because Section Three is binding on all officials
exercising powers or duties that involve questions of election to, appointment
to, or continuance in office of persons who are constitutionally disqualified by
Section Three from holding such positions, a case can be made that the logic
of this principle implies that Congress, sitting in joint session pursuant to the
Twelfth Amendment, and oath-bound to abide by the Constitution in the
exercise of all its functions, has a constitutional responsibility to refuse to
accede to the election of a person for president who is constitutionally
disqualified from holding that office.
Moreover, another provision of the Constitution, the Twentieth
Amendment, is explicit that a disqualified candidate does not become president,
even if he has the most votes. It states that at “the time fixed for the beginning
of [the President’s] term,” “if the President elect shall have failed to qualify,
then the Vice President elect shall act as President until a President shall have
qualified.”130 The language thus specifically confirms the possibility of a
failure to qualify and specifies the consequences of that failure. If the
President-elect is covered by Section Three, he cannot become President—
unless Congress chooses (by supermajority votes) to remove Section Three’s
disability. If this prohibition is not enforced during the counting of the
electoral votes in joint session, then when would it be enforced, and by whom?
Moreover, imagine the situation where a presidential candidate receiving
a clear majority of votes cast of electors engaged in plainly constitutionally
disqualifying acts of insurrection or rebellion between the time when electors
cast their votes and the time for beginning his or her term. Again, and even more
emphatically, if Congress cannot determine that such a person cannot
constitutionally become President, who can? Must Congress pliantly accede
to the election of such person as President? (Or, as actually happened in 1872,
what if a presidential candidate has died between election day and the day
prescribed by law for votes of electors to be counted? Must votes for a dead
man to be president be counted? In 1872, Congress said no, refusing to count
votes cast for Democratic presidential candidate Horace Greeley because he
had died between election day and the meeting of the electors.)131
129 That a substantive power to judge the validity of electors’ votes might be susceptible to
such misuse is illustrated by examples from both the 2020 and 2016 elections.
130 U.S. CONST. amend. XX, § 3.
131 In the 1872 presidential election, Horace Greeley had won six states with a total of sixty-six
electors. However, Greeley died on November 28, 1872, five days before electors were to cast their
votes. Sixty-three of the Greeley electors thereupon cast their votes for other (living) persons. The
642 University of Pennsylvania Law Review [Vol. 172: 605
Finally, Congress has enacted two statutes, the Electoral Count Act and
the Electoral Count Reform Act.132 These statutes have been on the books for
137 years and assume that Congress has some role, albeit limited, in judging
the validity of electoral votes. They would potentially implicate Congress’s
powers under the “necessary and proper” clause as well.133 Even if these
statutes are constitutional—that is, even if Congress does have a substantive
power to reject votes for a disqualified candidate—there is an additional
question whether the current statutes allow it to do so. (This turns on the
meaning of the phrase “regularly given,” and we take no position on it here.
134)
On balance, we are inclined to think the stronger textual and structural
argument is that neither Congress nor the Vice President (acting as President
of the Senate) has the authority to evaluate the decisions or actions of the
electors themselves (as opposed to perhaps determining the authenticity of
submitted votes).
But we confess to some uncertainty here. If the Constitution does not
supply a clear, determinate answer, the various branches of government are
constitutionally entitled each to exercise their own independent
constitutional judgments on the question.Thus, even if state election officials,
voters, electors, and the judiciary all support (or acquiesce to) the election of
a president barred from holding office by Section Three, there is a serious
argument that Congress might act as a last constitutional backstop against the
installation of such a constitutionally disqualified person in the presidency.
135
Once the President has taken office, the Constitution provides two paths
for involuntary removal from office: impeachment for “high Crimes and
Misdemeanors”136 and removal for being “unable to discharge the powers and
duties of his office” under the procedure of the Twenty-fifth Amendment.137
three remaining electors cast their votes for Greeley, notwithstanding his having died. After debate,
a divided Congress decided that votes for a dead person could not be counted. See Michael L. Rosin,
A History of Elector Discretion, 41 N. ILL. U. L. REV. 125, 181-83 (2020) (detailing the course of events
and describing the vote in the two houses of Congress).
132 Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373-75 (1887); Electoral Count Reform
Act, Pub. L. No. 117-328, 136 Stat. 5237-40 (2022) (codified in relevant part at 3 U.S.C. § 15(b) &
(d)(2)(B)(ii)).
133 U.S. CONST. art. I, § 8, cl. 18.
134 See Derek T. Muller, Electoral Votes Regularly Given, 55 GA. L. REV. 1529, 1538 (2021).
135 Even if Congress is thought to possess implied power not to count votes for a
constitutionally disqualified candidate, this falls far short of a “textually demonstrable constitutional
commitment” of the issue to Congress’s exclusive determination (and thus a nonjusticiable “political
question” that federal courts may not decide). See Baker v. Carr, 369 U.S. 186, 217 (1962). It would
merely mean that multiple constitutional actors—legislatures, elected officials, courts—possess the
power and obligation to engage in faithful constitutional interpretation, each within the sphere of
its constitutional powers and responsibilities.
136 U.S. CONST. art. II, § 4.
137 U.S. CONST. amend. XXV, § 4.
2024] The Sweep and Force of Section Three 643
The impeachment route is straightforward. As we have discussed, an
insurrection against the United States is a paradigm example of a high crime
or misdemeanor. On the other hand, it is less clear whether being legally
disqualified from holding office makes the would-be President “unable to
discharge the powers and duties of his office” within the meaning of the
Twenty-fifth Amendment. (Structurally, the Twenty-fifth Amendment
appears to relate to Article II, Section 1, paragraph 6, which deals with
Presidential succession, rather than Article II, Section 1, paragraph 5, which
deals with eligibility.) But in any event the Twenty-fifth Amendment
question will usually be unimportant in practice, because it requires a twothirds vote of both houses, the Vice President, and a majority of the cabinet.
It will therefore usually be significantly easier to use the impeachment process
instead.138
* * *
Tying together all of these different procedures and possibilities: consider
briefly (and not-so-hypothetically) a violent insurrection on the seat of
government, by a mob joined or given aid or comfort by various government
officials, from a state representative or commissioner to a U.S. Senator to the
President himself.139 From the moment of their participation in the
insurrection, those officials would be legally ineligible to hold their offices,
thanks to Section Three of the Fourteenth Amendment. How this would play
out practically might vary across them. As the state official returned home, he
would immediately be subject to state law procedures such as a quo warranto
suit.
140 He might be removed by such a suit,
141 or he might well choose to
resign instead.
142 The Senator might choose to brazen it out, counting on the
difficulty in getting together a two-thirds vote to expel him. But if he sought
re-election the Senate could and should exclude him by a mere majority vote.
As for the hypothetical President, by right he ought to be immediately subject
138 BRIAN KALT, UNABLE: THE LAW, POLITICS, AND LIMITS OF SECTION 4 OF THE
TWENTY-FIFTH AMENDMENT 13 (2019).
139 See infra Section IV.C. for further discussion.
140 For two relevant examples, see N.M. STAT. ANN. § 44-3-4 (2023); W. VA. CODE ANN.
§ 53-2-1 (2023). In West Virginia, such a claim may be brought “[w]henever the Attorney General
or prosecuting attorney of any county is satisfied that a cause exists therefor, [at] his own instance,
or at the relation of any person interested.” W. VA. CODE ANN. § 53-2-2. For illustrative
applications, see State ex rel. Zickefoose v. West, 116 S.E.2d 398, 423 (W. Va. 1960); Wells v. Miller,
791 S.E.2d 361, 364-65 (W. Va. 2016).
141 See supra notes 95–104 and accompanying text.
142 See, e.g., Press Release, West Virginia House of Delegates, Delegate Derrick Evans
Announces Resignation from House of Delegates (Jan. 9, 2021),
https://www.wvlegislature.gov/News_release/pressrelease.cfm?release=2820
[https://perma.cc/H59D-6E89].
644 University of Pennsylvania Law Review [Vol. 172: 605
to impeachment and conviction by Congress, and perhaps also a Twenty-fifth
Amendment declaration by the Vice President and supported by the cabinet.
Even if those things did not happen, if he sought re-election, state election
officials around the country would be bound by Section Three in deciding
whether to put him on the ballot, even in the primary.
And of course, some of these matters would no doubt promptly find their
way into the courts as well. Continuing the example of the presidential
candidate, if state officials excluded him from ballot eligibility, he would likely
be able to sue in state or federal court to challenge state officials’
determination of ineligibility. And if he was not excluded by state officials,
voters (at least in some states) might possess the legal right to challenge his
eligibility. Either way, such a challenge would present a classic legal case or
controversy. It is not difficult to imagine such suit being resolved by courts.
Indeed, given the magnitude of the question and its consequences, it is not
difficult to imagine such an important case making its way quickly to the U.S.
Supreme Court. It would then become the province and duty of the Court to
determine and apply the meaning of Section Three.
Section Three thus functions as a sort of constitutional immune system,
mobilizing every official charged with constitutional application to keep those
who have fundamentally betrayed the constitutional order from keeping or
reassuming power.
C. The Problem of Griffin’s Case
A small problem with our view that Section Three is self-executing and
immediately operative is that the Chief Justice of the United States said the
opposite, almost immediately after the Fourteenth Amendment was adopted.
This was the opinion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting
as Circuit Justice in 1869, in one of the first cases to interpret any part of the
Amendment. In Griffin’s Case, Chief Justice Chase concluded that Section
Three is inoperative unless and until Congress passes implementing
legislation to carry it into effect.143 This precedent continues to cast a shadow
over Section Three today.
144
But there is a simple response to this small problem: Griffin’s Case is just
wrong. It is possible—possible—that its result is correct on an alternate
143 In re Griffin (“Griffin’s Case”), 11 F. Cas. 7, 26 (C.C.D. Va. 1869) (No. 5,815) (Chase 364).
144 See, e.g., Josh Blackman & S. B. Tillman, Only the Feds Could Disqualify Madison Cawthorn
and Marjorie Taylor Greene, N.Y. TIMES (Apr. 20, 2022),
https://www.nytimes.com/2022/04/20/opinion/madison-cawthorn-marjorie-taylor-green-section3.html [https://perma.cc/AV9F-5HHD]; Tom Ginsburg, Aziz Z. Huq & David Landau, Democracy’s
Other Boundary Problem: The Law of Disqualification, 111 CALIF. L. REV. 1633, 1653, 1698 (2023).
2024] The Sweep and Force of Section Three 645
ground, under the so-called de facto officer doctrine, which we will discuss.
145
But Chase’s legal reasoning that the Fourteenth Amendment is not selfexecuting is unsustainable. Indeed, the more one pulls at his opinion, the
more it unravels. We examine it in some detail.
146
1. Background
Caesar Griffin, a black man, was charged in Virginia state court with the
crime of shooting with the intent to kill.147 Griffin was tried, convicted, and
sentenced to prison.148 He made no claim that the statute under which he was
tried was unconstitutional; nor that he had been subjected to discrimination
because of his race; nor that the composition of the jury was improper. As
Chase put it: Griffin made “no allegation that the trial was not fairly
conducted, or that any discrimination was made against him, either in
indictment, trial, or sentence, on account of color.”149 Nor did Griffin allege
that the presiding judge—Judge Hugh W. Sheffey—“did not conduct the trial
with fairness and uprightness.”150 Griffin raised just one challenge to the
validity of his conviction: that Judge Sheffey (or, one might say, so-called
Judge Sheffey)151 was legally disqualified by Section Three of the Fourteenth
Amendment from serving on the bench.152
The facts relevant to Judge Sheffey were not disputed either. He had
taken the oath: Before the Civil War, Hugh Sheffey had been a member of
the Virginia state legislature, as far back as 1849.
153 And he had “engaged in”
rebellion: After Virginia purported to secede from the Union, Sheffey
continued to serve as a member of Virginia’s secessionist legislature. In that
role, in 1862, he “voted for measures to sustain the so-called Confederate
States in their war against the United States.”154 Thus “it is admitted,” wrote
145 Infra Section II.C.3.
146 For other criticism of Griffin’s Case, insightful as always, see Magliocca, Amnesty, supra note
5, at 102-108; Magliocca, Foreground, supra note 72, at 1067–72.
147 Griffin’s Case, 11 F. Cas. at 22.
148 Id.
149 Id. at 22.
150 Id.
151 Cf. Will Baude, The Deadly Serious Accusation of Being a “So-Called Judge,” WASH. POST:
VOLOKH CONSPIRACY (Feb. 4, 2017), https://www.washingtonpost.com/news/volokhconspiracy/wp/2017/02/04/the-deadly-serious-accusation-of-being-a-so-called-judge/
[https://perma.cc/Q55Z-R7M7] (“[T]o call him a ‘so-called’ judge is to hint that he is not really a
judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”).
152 Griffin’s Case, 11 F. Cas. at 22-23.
153 Id. at 22.
154 Id.
646 University of Pennsylvania Law Review [Vol. 172: 605
Chase, that Judge Sheffey “was one of the persons to whom the prohibition
to hold office pronounced by the amendment applied.”155
Griffin had petitioned the U.S. district judge, Judge John Underwood, for
a writ of habeas corpus challenging the lawfulness of his custody, which Judge
Underwood granted.156 The sheriff appealed to the circuit court, which was
held by Chase as circuit justice.157
2. Chase on Section Three
Chase reversed. Here is how he framed the problem: Everybody agreed
that Sheffey had been lawfully appointed as a state judge in February 1866,
while Virginia was controlled by military reconstruction and the Fourteenth
155 Id. at 23.
156 Opinion of Judge Underwood in the Matter of Cæsar Griffin—Petition for Habeas Corpus,
reprinted in EDWARD MCPHERSON, THE POLITICAL HISTORY OF THE UNITED STATES OF
AMERICA DURING THE PERIOD OF RECONSTRUCTION (FROM APRIL 15, 1865, TO JULY 15, 1870),
at 462-66 (3d ed., Washington, James J. Chapman 1875). We are indebted to Myles Lynch for
locating this source.
157 The procedural posture of this and several related cases is extremely confusing and reflects
background machinations by both Judge Underwood and Chief Justice Chase. At the time, habeas
was apparently available from the district court, at chambers, or from the circuit court. If Judge
Underwood issued the writ from the district court or at chambers, he could be reviewed by the
circuit court, which would include Chief Justice Chase. But if Chief Justice Chase was not present,
Judge Underwood could also sit alone as the circuit court. And thanks to a recent statute designed
to strip the Supreme Court of jurisdiction over the anti-Reconstruction suit of Ex parte McCardle,
there would be no appeal if Judge Underwood sat as the circuit court. Underwood took this
unreviewable route in another habeas case like Griffin’s, brought by Sally Anderson. In that case,
Underwood held that Section Three, alone, removed disqualified persons from office, and therefore
Anderson’s trial, conducted by a Section Three-covered judge, was invalid. Chief Justice Chase then
wrote to Underwood with a veiled threat, floating the possibility that a recent statute could be
interpreted to deprive Underwood of his ability to hold the circuit court at that time, and
encouraging Underwood to hear the case in the district court or at chambers so that Chase could
review him. Underwood obliged. Meanwhile, Virginia also sought an original writ in the Supreme
Court to put a stop to Underwood’s Section Three docket. The Supreme Court ordered all of the
proceedings stayed, and then let Chase go down to the circuit to clean things up, taking no action
on the writ. For a more detailed description of these events, see CHARLES FAIRMAN,
RECONSTRUCTION AND REUNION, 1864-88, in 6 THE OLIVER WENDELL HOLMES DEVISE:
HISTORY OFTHE SUPREMECOURT OFTHE UNITED STATES 601-07(Paul A. Freund, ed., 2d prtg.
1974). See also Letter from Chief Justice Chase to Judge Underwood (Nov. 19, 1868), in 5 THE
SALMON P. CHASE PAPERS 285-86 (John Niven ed., 1998); Letter from Chief Justice Chase to
Judge Underwood (Jan. 14, 1869), in 5 id. at 292-93.
This background is briefly alluded to in the synopsis in Griffin’s Case, which explains that “[a]
motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of
prohibition against the district judge, to restrain him from further exercise of such power. The
supreme court advised on the motion, and never announced any conclusion, but shortly afterward
the chief justice opened the circuit court at Richmond, and immediately called up the appeal in
Griffin’s Case. This statement is necessary for a full understanding of the pregnancy of the chief
justice’s statement that the supreme court agreed with him as to the decision he rendered in this
case.” Griffin’s Case, 11 F. Cas. at 8-9. But really, these circumstances are extraordinary. We take them
up again below, see infra notes 200–201 and accompanying text.
2024] The Sweep and Force of Section Three 647
Amendment did not exist.158The question was whether ratification of Section
Three kicked him out. As Chase put it: “[W]hether upon a sound
construction of the amendment, it must be regarded as operating directly,
without any intermediate proceeding whatever, upon all persons within the
category of prohibition, and as depriving them at once, and absolutely, of all
official authority and power.”159
Chase said no, rejecting this as a “literal construction” of Section Three.160
There is a lot going on in this opinion. Chase included a number of
makeweight arguments and asides on topics such as the legal history of West
Virginia.
161 But his core argument was that surely Section Three cannot mean
what it says: It would have bad consequences, couldn’t possibly have been
intended by the ratifiers, and would violate the spirit of the Constitution. As
we will explain, these arguments are bad ones. Chase then supplemented
them with a shocking claim of a secret Supreme Court ruling in favor of an
alternative approach—which was both generally improper, and further
impeached his interpretation of Section Three.
162 All in all, Griffin’s Case is a
case study in how not to go about the enterprise of faithful constitutional
interpretation.
a. “The Argument from Inconveniences, Great as These”
The core of Chase’s argument was that if Section Three was recognized
as an immediately operative, self-executing constitutional rule of
disqualification, it would have inconvenient consequences in the
Reconstruction South. “In the examination of questions of this sort,” Chase
158 Griffin’s Case, 11 F. Cas. at 23.
159 Id.
160 Id. at 24.
161 Chase summarized the intriguing legal history of this Virginia government: When Virginia,
by act of its legislature in 1861, purported to secede from the Union, loyal Unionists assembled in
convention in Wheeling to organize a new state government. Congress and the Lincoln
administration recognized the Wheeling government as the lawful government of Virginia. The
Wheeling Virginia government then gave its consent to the creation of a new Wheeling-based state
of West Virginia, after which the (Wheeling) Virginia government-in-exile relocated to Alexandria,
just across the river from Washington, to serve as the loyal, Union-recognized government of all of
what remained as “Virginia.” After Lee’s surrender at Appomattox, Chase’s opinion notes, the
“government recognized by the United States was transferred from Alexandria to Richmond” and
“became in fact what it was before in law, the government of the whole state.” Id. at 23. Judge Sheffey
was appointed under the authority of this government. Id. For the full story—and full formalist legal
defense—of the validity of the legal fiction of “Virginia” giving its consent to the creation of a
breakaway state of West Virginia, see Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia
Unconstitutional?, 90 CALIF. L. REV. 291 (2002) [hereinafter West Virginia]. For an argument that
this aside was actually relevant to Chase’s argument, see Magliocca, Foreground, supra note 72, at 1064
n.30, discussed infra note 194.
162 See infra Section II.C.3.
648 University of Pennsylvania Law Review [Vol. 172: 605
wrote, “great attention is properly paid to the argument from
inconvenience.”163 And here “the argument from inconveniences” was “great”
in Chase’s estimation—it was “of no light weight.”164
In several incompletely reconstructed Southern governments, many
offices were in fact held by former oath-breaking rebels.
165 If Section Three
were automatically operative, it would have immediately barred all such men
from office. (Indeed.) Yet, Chase argued, many such disqualified persons in
fact had not vacated their offices but instead continued to exercise authority
under those offices notwithstanding the ratification of the Fourteenth
Amendment. To give Section Three immediate effect would thus upset the
apple cart in a fairly major way. “No sentence, no judgment, no decree, no
acknowledgement of a deed, no record of a deed, no sheriff’s or
commissioner’s sale—in short no official act—is of the least validity.”166 Chase
found this unthinkable: “It is impossible to measure the evils which such a
construction would add to the calamities which have already fallen upon the
people of these [Southern] states.”167
Chase went on: not only did SectionThree impose great “inconveniences”
and “calamities,” it was unfairly punitive—ungraciously ousting oncelawfully-appointed officers—and ostensibly inconsistent with the “spirit” of
prior constitutional principles concerning due process, bills of attainder, and
ex post facto laws.
168 And besides, the specific remedy sought—vacating
Griffin’s conviction—only worked mischief, because it did not even seek the
literal removal of Judge Sheffey from office. Put these things together and
you have Chase’s interpretive driver: “Surely,” Chase continued,
a construction which fails to accomplish the main purpose of the amendment,
and yet necessarily works the mischief and inconveniences which have been
described, and is repugnant to the first principles of justice and right
embodied in other provisions of the constitution, is not to be favored, if any
other reasonable construction can be found.
169
163 Griffin’s Case, 11 F. Cas. at 24.
164 Id. at 25.
165 Id. Chase also suggested that the problem was not completely limited to the Southern
governments. Id. (observing that “[i]t is well known that many persons, engaged in the late
Rebellion, have emigrated to states which adhered to the national government,” and that “it is not
to be doubted that not a few among them” had previously taken a covered oath, and that “[p]robably
some of these persons” had subsequently been elected to office).
166 Id. Of course, Chase would undercut this conclusion later in the opinion. See infra Section
II.C.3.
167 Griffin’s Case, 11 F. Cas. at 25.
168 Id. at 25-26. More on this point presently, in Section II.C.2.c, and again in Part III.
169 Id. at 26.
2024] The Sweep and Force of Section Three 649
Chase tried to funnel these policy arguments into a rule of constitutional
construction: “the argument from inconvenience.”170 This argument “it is
true, can not prevail over plain words or clear reason,” Chase acknowledged.171
“But, on the other hand,” he wrote, “a construction, which must necessarily
occasion great public and private mischief, must never be preferred to a
construction which will occasion neither, or neither in so great a degree,
unless the terms of the instrument absolutely require such preference.”172
This is not an unreasonable principle, as interpretive canons go. When
confronted with two plausible interpretations of genuinely ambiguous, unclear
text, one of which would produce manifestly jarring results, the less jarring
interpretation is more likely the correct one. As James Madison said in his
famous speech against the national bank: “Where a meaning is clear, the
consequences, whatever they may be, are to be admitted; where doubtful, it
is fairly triable by its consequences.”173 Or as Chief Justice Marshall said in
United States v. Fisher: “[W]here great inconvenience will result from a
particular construction, that construction is to be avoided, unless the meaning
of the legislature be plain; in which case it must be obeyed.”174 But Chase’s
canon was noticeably more aggressive: The supposedly more disruptive
reading must “never be preferred” unless the text’s terms “absolutely require”
such preference.
175 That is putting not just a thumb on the scale, but a whole
hand.
But that is not the real problem with Chase’s analysis. The real problem
was how Chase applied these principles to Section Three.
First, Chase was too quick—far too quick—to dismiss the “literal” reading
of the “terms of the instrument” as meaning exactly what they seem to say.
As discussed above, the language of Section Three’s prohibition on office
holding is clear and direct; it is hardly doubtful at all. It takes considerable
effort to impute any ambiguity to the text and Chase’s opinion does not even
undertake that effort. Instead, the opinion assumes its own conclusion—that
the text’s language is somehow insufficiently clear to justify applying the
“literal” meaning of its words. Indeed, even on Chase’s own hyper-strict
standard, the words of Section Three do “absolutely require” the conclusion
that it, on its own, disqualifies covered rebels from office.
170 Id. at 24.
171 Id.
172 Id.
173 LEGISLATIVE AND DOCUMENTARY HISTORY OFTHE BANK OFTHE UNITED STATES 39,
40 (M. St. Clair Clarke & D.A. Hall, eds., Washington, Gales & Seaton 1832) (describing a speech
by James Madison on Feb. 2, 1791).
174 United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805).
175 Griffin’s Case, 11 F. Cas. at 24 (emphasis added).
650 University of Pennsylvania Law Review [Vol. 172: 605
Second, Chase was too ready—far too ready—to find that following the
(“literal”) language of the document would produce (what Chase considered
to be) great “inconveniences” or “mischief ”—indeed, increase “calamities”
already visited upon the South. Chase emphasized the breadth of Section
Three’s language: it applied in all the states, not just the former Confederacy
(so?); it applied beyond the context of Civil War but included aiding enemies
in a foreign war (so?); it would apply in terms to immediately disqualify men
for acts done long ago, for example in the Mexican War (so?); it would apply
“to all persons in the category” and “for all time present and future” (so?).176
And, taken seriously, this broad rule would, as noted, “annul all official acts”
performed by disqualified officers, including judges. (Would it?)177
For Chase, all this seemed to border on the shocking—a parade of
horribles demanding the search for an alternative construction of Section
Three. But why? Because it might have a broad effect? Because it adopted a
new rule of constitutional law superseding prior law? Because it would have
removed immediately a substantial number of former-oath-swearingofficeholders-turned-rebels from positions of power? Because it could have
the effect of invalidating their unauthorized, lawless actions? Chase’s parade
of horribles assumes, without argument, the correctness of his own apparent
policy prejudices.
178
Now Chase did attempt to groom these prejudices into more plausible
legal arguments, which we will get to in a moment.
179 But because these
arguments from inconvenience are the heart of Chase’s opinion, and because
we still see these kinds of arguments repeated today, we pause to emphasize
that this is not how judging is supposed to work, even if it too often does.
Chase’s consequentialist approach to constitutional interpretation is
simply wrong. Judges do not get to rewrite constitutional provisions they find
objectionable on policy grounds. Relatedly, judges do not get to make up new
provisions of law in order to devise policy “solutions” to texts they don’t like.
Chase’s opinion imposed, as a solution to textual literalism and its real and
imagined policy inconveniences, a different kind of constitutional provision,
one more like the Impeachment Clause and the Treason Clause. Put bluntly,
Chase made up law that was not there in order to change law that was there
but that he did not like.
176 Id. at 24-25.
177 Id. at 25.
178 As Judge Underwood put it: “Whatever inconvenience may result from the maintenance of
the Constitution and the laws, I think the experience of the last few years shows that much greater
inconvenience results from attempting their overthrow.” Opinion of Judge Underwood in the Matter
of Cæsar Griffin—Petition for Habeas Corpus, supra note 156, at 465.
179 See infra Sections II.C.2.c–d.
2024] The Sweep and Force of Section Three 651
b. The Argument from “the Intention of the People”
In places, Chase raises the inconvenience argument as an inquiry into the
“intent” of the Framers: “What was the intention of the people of the United
States in adopting the fourteenth amendment? What is the true scope and
purpose of the prohibition to hold office contained in the third section?”180
This at least sounds kind of like the question a judge should be asking—the
original meaning of the constitutional provision adopted by We The People
and binding on those who interpret it. But in fact it conceals still more sleight
of hand.
First and foremost, Chase’s framing of the interpretive question commits
a classic blunder: swapping in original intent for original meaning. In our
constitutional system, law is made by enacting texts, not by searching for the
unenacted wishes of lawmakers.181 And whatever evidence Chase might have
had that the consequences of Section Three were unintended by some of those
who voted for it, he had no evidence that these consequences were not entailed
by what they voted for.
Second, however dubious it is to look to original intent over original
meaning generally, it is especially dicey to do so in the case of the Fourteenth
Amendment. The Fourteenth Amendment was ratified in unusual, exigent
circumstances. In Congress, the Amendment represented a compromise
between different Republican factions, some much more radical than the
others. And in the states, where ratification made it law, the Amendment
depended on the ratification votes of the southern states, who were
pressured—some might say “coerced”—to ratify the Amendment as the price
of regaining their representation in Congress.
182 Even if one accepts this
process as lawful (which we do) it is obvious that it means one must cast a
skeptical eye on stories about the supposed “intent” of those who ratified it,
especially in the South. It may well be that some of the ratifiers had their
fingers crossed behind their backs and intended to give the Amendment as
180 Griffin’s Case, 11 F. Cas. at 24.
181 See supra notes 9–16, sources cited there, and accompanying text.
182 See generally John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. CHI. L.
REV. 375, 461 (2001). For arguments that Congress’s requiring states’ ratification as condition of
restored representation was entirely lawful and appropriate, see id.; Kesavan & Paulsen, West
Virginia, supra note 161, at 329; AMAR, AMERICA’S CONSTITUTION, supra note 4, at 364-80; see
especially id. at 376-378. There is a different argument for ratification, the “loyal denominator”
theory, in which the southern states were unnecessary for ratification. See Christopher R. Green,
Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications, 13 DUKE J.
CONST. L. & PUB. POL’Y 167, 168 (2017); Christopher R. Green, The History of the Loyal
Denominator, 79 LA. L. REV. 47, 48 (2018). One of us has rejected this theory in prior writing.
Michael Stokes Paulsen, A General Theory of Article V: The Constitutional Lessons of the Twenty-Seventh
Amendment, 103 YALE L.J. 677, 709 (1993); see also AMAR, AMERICA’S CONSTITUTION supra note
4, at 378-80. The other of us is inclined in the same direction.
652 University of Pennsylvania Law Review [Vol. 172: 605
little effect and as little quarter as they could get away with. But so what?
What matters is what they did, in one of the highest-stakes moments of
constitutional law making in American history. By diminishing the plain
scope of the Amendment’s text, Chase succumbed to this kind of anticonstitutional subversion.
Third and finally, all of Chase’s evidence of this supposed intent just boils
down to the inconvenience argument we have just discussed. And as discussed
above, this is why one must be especially careful with judges who invoke the
supposed intent of a written text.183 When meaning is uncertain, it is
permissible to give a slight edge to the interpretation that is more likely to
match what its authors were trying to do. But it is easy for a judge to use this
principle as an excuse for reading into the text his own views of what the law
should be. After all, the authors of the provision were reasonable people, trying to
do reasonable things, and, I, the judge, am also reasonable, so surely if I don’t like
this result, they wouldn’t have liked this result, and therefore it must not be the result.
To write it down this way would give up the game, but it is too easy to think
it. Chase’s use of original intent is makeweight at best, and a trick at worst.
c. The Argument that Section Three Should Not be Read to Depart from the
“Spirit” of Prior Constitutional Law
The “inconveniences” and “calamities” that, surely, were not intended by
the authors of the Fourteenth Amendment were Chase’s main arguments. But
he had a bit more to say. There was “another principle which, in determining
the construction of this amendment, is entitled to equal consideration”184:
Of two constructions, either of which is warranted by the words of an
amendment of a public act, that is to be preferred which best harmonizes the
amendment with the general terms and spirit of the act amended. This
principle forbids a construction of the amendment, not clearly required by its
terms, which will bring it into conflict or disaccord with the other provisions
of the constitution.185
What was the supposed conflict between Section Three and the rest of
the Constitution? Chase fretted that Section Three was a penal enactment,
imposing punishment without trial on secessionists, and thus in tension with
the spirit of earlier provisions on bills of attainder, ex post facto laws, and due
process:
183 Supra Section II.C.2.a.
184 Griffin’s Case, 11 F. Cas. at 25.
185 Id.
2024] The Sweep and Force of Section Three 653
Now it is undoubted that those provisions of the constitution which deny to
the legislature power to deprive any person of life, liberty, or property,
without due process of law, or to pass a bill of attainder or an ex post facto,
are inconsistent in their spirit and general purpose with a provision which, at
once without trial, deprives a whole class of persons of offices held by them,
for cause, however grave. It is true that no limit can be imposed on the people
when exercising their sovereign power in amending their own constitution of
government. But it is a necessary presumption that the people in the exercise
of that power, seek to confirm and improve, rather than to weaken and impair
the general spirit of the constitution.186
Thus, Chase concluded, Section Three should not be read as
accomplishing disqualification of its own force.
Now once again, the interpretive rule Chase is formulating here is not
totally crazy. But it is a warped version of the real thing. As we discuss at
length in the next part: It is true that repeals by implication are disfavored,
and this principle applies to constitutional law. But at the same time,
constitutional amendments change things, and when an amendment is
inconsistent with prior constitutional rules, ultimately it is the amendment
that controls. If a new provision fairly can be harmonized with prior law—
where there is no true conflict—the provisions should be read
harmoniously.187 But where new language in fact changes old law, by clear
terms or necessary logical effect, the greater error is to deny such change out
of undue attachment to the former legal regime.
This greater error is exactly what Chase did. Chase leaned very heavily—
too heavily—on the rule against implied repeals, ratcheting it up to “forbid[]”
readings of a text “not clearly required” by its terms, that would “bring it into
conflict or disaccord” with other provisions of the Constitution.188 Each leaning
is wrong. Repeals by implication may be disfavored; but repeals, made in terms
or by necessary logical implication, are not presumptively forbidden. Nor does
new language changing old provisions require such extraordinary clarity as
Chase would have it. The true question is whether the language and logic of
a new provision really does present a conflict with prior law. And the idea
that constitutional amendments should presumptively be read so as not to
change the Constitution (!)—that they should be construed to avoid conflict
or even mere disaccord with prior constitutional law—is indefensible. Of course
constitutional amendments change prior constitutional law. That is their
purpose and function. Now, that doesn’t warrant reading them to change
186 Id. at 26.
187 See infra Part III.
188 Griffin’s Case, 11 F. Cas. at 25 (emphasis added).
654 University of Pennsylvania Law Review [Vol. 172: 605
more than they really do. But a presumption that constitutional amendments
should be read to change as little as possible makes no sense.
Finally, this part of Chase’s argument took a puzzling turn that is worth
noting. In another of his many strange asides, Chase noted the possibility that
Section Three had implicitly repealed the Treason Clause: “in [the] judgment of
some enlightened jurists, the legal effect” of Section Three’s imposition of a
new prohibition on officeholding for rebels and insurrectionists “was to remit
all other punishments” for treason.189 If anything this seemed to hurt Chase’s
argument against self-execution, because it emphasized that Section Three
could change the pre-existing constitutional rules. And at the same time this
supposedly enlightened argument was also bonkers. The enactment of a
constitutional rule of disqualification from office does not remotely suggest a
supersession or repeal of criminal-law punishment for treason. And if it did,
it would have the perverse effect of leaving Confederates who had not
previously taken a constitutional oath subject to the death penalty, while
previous office holders avoided all criminal punishment except the
officeholding ban.190
So why did Chase bring it up? Who were these “enlightened jurists” who
imagined such a thing? The answer is . . . Chase himself! He had asserted
precisely this wacky construction of Section Three’s effect on the criminal
penalty for treason—and quietly suggested the argument to defense
counsel—in the federal criminal treason prosecution of Jefferson Davis just
two years earlier.
191 Even Davis’s lawyers had been puzzled by the argument,
and wondered if it was some sort of trick, and it seems likely that Chase had
complex political motivations in proposing it at the time.192 This argument
was tendentious then, and weirdly irrelevant in Griffin’s Case. But it is a
helpful reminder that Chief Justice Chase was not shooting straight in his
applications of Section Three.
189 Id. at 26.
190 See Case of Davis,7 F. Cas. 63, 95 (C.C.D. Va. 1867) (argument of Richard H. Dana,counsel
for the United States) (“[The effect of Defendant’sconstruction] would be to relieve persons holding
high office, and therefore the more guilty, from the penalties of death or imprisonment, and leave
those penalties in full force against all persons engaged in a rebellion who did not at the time hold
public office.”).
191 Case of Davis, 7 F. Cas. at 91, 102 (reporting Chase’s statements embracing the view that
Section Three impliedly repealed the Treason Punishment Clause and that the indictment of Davis
therefore should be quashed); see Magliocca, Amnesty, supra note 5, at 100-02 (“The argument was
suggested to Davis’s defense team by none other than Chief Justice Chase.”); CYNTHIA NICOLETTI,
SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS 293-300 (2017)
(describing Chase’s communications with Davis’s defense counsel).
192 Nicoletti suggests—and she is not making this up—that either Chase was gunning for the
Democratic nomination for President, or that this was a bank shot to get southern whites to accept
the ratification of the Fourteenth Amendment, by arranging for the Amendment to benefit them.
NICOLETTI, supra note 191, at 293-96.
2024] The Sweep and Force of Section Three 655
d. The Argument from the Section Five Enforcement Power
Having failed to avoid the natural reading of Section Three, Chase finally
offered his alternative, “reasonable construction”:
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 enforcements of
decisions, more or less formal, are indispensable; and these can only be
provided for by congress. Now, the necessity of this is recognized by the
amendment itself, in its fifth and final section, which declares that “congress
shall have power to enforce, by appropriate legislation, the provision[s] of
this article.” [sic] . . . The fifth section qualifies the third to the same extent
as it would if the whole amendment consisted of these two sections.193
Section Five “qualifies” Section Three. Of course, this proves too much.
Taken seriously, it would suggest that Section Five likewise “qualifies”
Section One and renders its commands—birthright citizenship, privileges or
immunities, due process, and equal protection—inoperative until enforced by
congressional legislation. It would imply that Section One had no selfexecuting legal effect, which has never been the law. It also proves too little.
It is true, perhaps, that carrying a legal prohibition into practical effect in
actual situations frequently will involve, necessarily, actions by persons and
institutions charged with applying that prohibition as law in the course of
performing their assigned duties. But as noted above, there is no reason why
“proceedings,” “decisions,” and “enforcement” with respect to Section Three’s
commands may not be conducted and carried out by various state and federal
actors, exercising their usual authority with respect to such matters.
194 It is
simply not true that “these can only be provided for by congress.” Congress
can provide them. But so can many others. Indeed, that is just what Judge
Underwood was trying to accomplish in Griffin’s Case, until Chase stopped
him.
Chase’s tendentious construction of Section Three has gone on to a
surprisingly serious career as a precedent. But it simply does not hold up as
an original matter. But that is not even the weirdest thing about Griffin’s Case.
193 Griffin’s Case, 11 F. Cas. at 26.
194 See Section II.B. Magliocca also suggests that in the specific situation in Griffin’s Case, state
law may have been “unavailable for enforcement” of Section Three because “Virginia was an
unreconstructed state and thus lacked the ordinary powers of a state” and “because Virginia did not
yet recognize the Fourteenth Amendment’s legitimacy”—in contrast with states such as North
Carolina. Magliocca, Foreground, supra note 72, at 1064 n.30. We are not sure whether this is giving
Chase too much credit or not, but regardless, these points would obviously not hold today, where
state law is fully available in every state of the Union.
656 University of Pennsylvania Law Review [Vol. 172: 605
3. Griffin’s Self-Defeating and Highly Irregular Dictum
Chase concluded his discussion of Section Three this way: “After the most
careful consideration, therefore, I find myself constrained to the conclusion
that Hugh W. Sheffey had not been removed from the office of judge at the
time of the trial and sentence of the petitioner; and that the sentence of the
circuit court of Rockbridge county was lawful.”195
By Chase’s logic, such as it was, that should have been the final line of his
opinion. But strangely, Chase was not actually done. He then launched into
the weirdest part of his opinion, a sort of half-dictum, half-advisory opinion
that cast further doubt on all that had come before:
In this view of the case, it becomes unnecessary to determine the question
relating to the effect of the sentence of a judge de facto, exercising the office
with the color, but without the substance of right. It is proper to say, however,
that I should have no difficulty in sustaining the custody of the sheriff under
sentence of a court held by such a judge . . . .
This subject received the consideration of the judges of the supreme court
at the last term, with reference to this and kindred cases in this district, and
I am authorized to say that they unanimously concur in the opinion that a
person convicted by a judge de facto acting under color of office, though not
de jure, and detained in custody in pursuance of his sentence, can not be
properly discharged upon habeas corpus.
196
What is going on here? Chase describes an alternate ground for the case—
“a judge de facto acting under color of office,” which we would now call the
“de facto officer doctrine”—, explains that it is unnecessary to decide it, but
then also explains that he would “have no difficulty” resolving the case on
that alternate ground, and also that the rest of the Supreme Court agrees with
him. It is hard to make sense of this part of Chase’s opinion, but the more
one digs into it, the more dubious the whole opinion becomes.
First, notice that what Chase says here fatally undercuts his earlier
arguments about Section Three. The heart of Chase’s argument was that a
self-executing Section Three would have calamitous consequences that could
not possibly have been intended.197 But here Chase says that even an illegally
appointed officer can be a “de facto” officer whose acts are treated as valid for
purposes of a habeas claim. If Chase believed this claim about the de facto
officer doctrine, then his earlier claim about the consequences was overblown;
the de facto officer doctrine would limit or eliminate the supposedly
calamitous consequences and allow Section Three to be given its more natural
195 Griffin’s Case, 11 F. Cas. at 27.
196 Id.
197 See Section II.C.2.a.
2024] The Sweep and Force of Section Three 657
interpretation in other situations. On its own terms, then, this dictum is
colossally self-defeating.
198
Indeed, if Chase’s extensive dictum about Section Three made it
“unnecessary” to resolve the de facto officer doctrine, the same was equally
true in reverse. Accepting Chase’s conclusion about the de facto officer
doctrine would have made his erroneous disquisition on Section Three
completely unnecessary. The criticisms sometimes levelled against the chief
justices who wrote the famous (or infamous) opinions in Marbury v. Madison,
and Dred Scott v. Sandford, for having reached out to decide, gratuitously,
unnecessarily, and improperly, grand questions of constitutional law,199 fall far
more heavily upon the head of Chief Justice Chase for his opinion in Griffin’s
Case.
Even stranger, Chase represented that the full Supreme Court unanimously
agreed with him on the de facto officer question. “This subject received the
consideration of the judges of the supreme court at the last term,” Chase
asserted, “with reference to this and kindred cases in this district.”200 The full
Court had apparently decided the de facto officer question, in secret, without
having announced the fact in any case decision or written opinion,201 in some
form of advisory preemptive appellate jurisdiction!?
To be sure, judicial norms were looser back then, but the whole thing was
highly irregular even by the standards of the day. Charles Fairman, whose
account defends the whole affair as an urgent workaround to stop Judge
Underwood, nonetheless acknowledges that “[i]t was most unusual to hear a
Justice on circuit declare that he was authorized to announce the opinion of
the Justices of the Supreme Bench on a matter pending in the Circuit
Court.”202 Fairman further acknowledges technical problems with this
maneuver because the only issue in front of the full Court was an original
198 Accord Magliocca, Foreground, supra note 72, at 1065 n.34.
199 See, e.g., Letter from Thomas Jefferson to William Johnson (June 12, 1823), in 19 THE
PAPERS OF THOMAS JEFFERSON: RETIREMENT SERIES 660, 664 (J. Jefferson Looney et al. eds.,
2022) (“This practice of Judge Marshall, of travelling out of his case to prescribe what the law would
be in a moot case not before the court, is very irregular and very censurable.”); Michael Stokes
Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1011-12, 1012
n.39 (2003); William Baude, Judgment Power, 96 GEO. L.J. 1807, 1823-24 (2008).
200 Griffin’s Case, 11 F. Cas. at 27.
201 The Court’s one recorded public statement on the matter was a statement from Justice
Nelson in the original writ of prohibition case, Ex parte State of Virginia, that Chief Justice Chase
had “informed the court that before the pending motion for prohibition was made, he signified to
the district judge his dissent” and that Chase was going to “direct that this division of opinion . . .
be certified to this court.” Ex parte State of Virginia, 19 L. Ed. 153 (1868); FAIRMAN, supra note 157,
at 606. That statement did not state the Court’s view on the division, and seemed to anticipate that
the Justices would deliberate on the issue later in the more ordinary course—not deputize the Chief
Justice to go deliver some secret verdict in their stead.
202 FAIRMAN, supra note 157, at 607.
658 University of Pennsylvania Law Review [Vol. 172: 605
writ of prohibition in Ex Parte State of Virginia, where the Court had granted
a stay despite manifest procedural flaws.203 Somehow the Court’s non-ruling
in a dubious vehicle became a second-hand advisory opinion on a legal
question of great importance.The criticisms levelled today at the shenanigans
allegedly perpetrated on the Supreme Court’s “shadow docket,”204 fall much
more heavily and justifiably on the heads of the Reconstruction justices.
And to return to this point once more, even if we accept this whole
problematic advisory opinion, it simultaneously undermines the other part of
Chase’s decision—his interpretation of Section Three. As Chase described it,
there were two alternative ways to resolve the case—one massive
constitutional question, and the other a more modest procedural question.
Chase claimed that the whole Supreme Court had authorized him to issue a
secondhand advisory opinion on the procedural question, an opinion
adequate to resolve the Judge Underwood situation. But Chase ignored his
colleagues’ apparent preference and resolved the case on massive
constitutional grounds instead—grounds that he did not claim were endorsed
by the rest of the Court. Is there any justification for his doing so other than
a personal power grab?
All of this is without taking a view on the merits of the de facto officer
question. This, we think, is not as obvious as Chase (and apparently his
colleagues) made it out to be. True, American and English history was full of
many statements about the valid acts of “de facto” officers and even
specifically judges.205 But many of these statementscould not be taken to their
logical extreme in our constitutional system, and indeed, at the founding the
Supreme Court had refused to accept the actions of several de facto officers
in the saga surrounding Hayburn’s Case.206
How to reconcile these principles is a difficult question. One possibility,
stated in some of the cases, is that an unlawful, but de facto, officer’s acts can
be questioned directly, and on direct review, but not “collaterally.”207 On this
possibility, maybe the de facto officer doctrine was a defense to claims like
203 Id.
204 See generally STEPHEN VLADECK, THE SHADOW DOCKET: HOW THE SUPREME COURT
USES STEALTH RULINGS TO AMASS POWER AND UNDERMINE THE REPUBLIC (2023); William
Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J. L. & LIBERTY 1 (2015).
205 For many citations, see Griffin’s Case, 11 F. Cas. 7, 18-21 (C.C.D. Va. 1869) (No. 5,815)
(argument of counsel). For more, see also Reply and Response Brief for the United States at 27-47,
Financial Oversight and Management Board for Puerto Rico v. Aurelius (Nos. 18-1334, 18-1475, 18-
1496, 18-1514, 18-15121); and Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th 293, 342-45 (6th Cir. 2022)
(Murphy, J., dissenting).
206 Baude, Severability, supra note 76, at 12-13 (discussing Yale Todd).
207 See, e.g., Ball v. United States, 140 U.S. 118, 128-29 (1891) (“Judge Boarman . . . was judge
de facto if not de jure, and his acts as such are not open to collateral attack.”); Note, The De Facto
Officer Doctrine, 63 COLUM. L. REV. 909, 910, 919 (1963). But see id. at 910, 910 n.9 (suggesting a
suit is collateral whenever the officer “is not a party,” including on “writ of error”).
2024] The Sweep and Force of Section Three 659
habeas—the procedural vehicle in Griffin’s Case—because habeas was a
collateral attack.208 Habeas could not be used as a substitute for a writ of error,
where the challenge would have been properly raised.
But another possibility is that the de facto officer doctrine protects only
technical and ordinary legal defects in an officer’s appointment, not
fundamental inability to exercise power, as when that power is forbidden by the
Constitution.209 On this possibility, Judge Sheffey’s acts were inherently void,
and thus everything he did fell outside of his court’s jurisdiction.210 The de
facto officer arguments in Griffin’s Case—and thus the correct legal fate of
Caesar Griffin—turn on these technicalities.211 Indeed, these technicalities
were argued by the parties and they were the main subject of Judge
Underwood’s opinion below.212 Chief Justice Chase could have turned his
considerable powers to them, had he not been busy knee-capping the
Fourteenth Amendment instead.
* * *
There is little to be said in defense of Griffin’s Case, but much to be learned
from it. The very weakness of its arguments; the obviously result-oriented
nature of its legal analysis; and the inconsistency of its conclusion with
Section Three’s language, end up confirming the core conclusion in this
section: Section Three’s disqualification of designated persons from office is
a self-executing constitutional command that requires nothing more to have
immediate legal force.
208 All three cases cited by Chase in Griffin’s Case, 11 F. Cas. at 27, can be characterized this
way. Taylor v. Skrine, 5 S.C.L. (3 Brev.) 516 (S.C. Const. Ct. App. 1815) deals with a writ of execution
and observes that “no objections were made to [the judge’s] authority at the time the decree was
given.” State v. Bloom, 17 Wis. 521 (1863), relies entirely on In re Boyle, 9 Wis. 264 (1859), which is a
habeas case holding that the “right to hold the offices cannot be inquired into in a collateral
proceeding of this kind,” id. at 267. And People v. Bangs, 24 Ill. 184, 187 (1860) distinguishes a
“direct proceeding” from one where the doctrine applied.
209 See, e.g., McDowell v. United States, 159 U.S. 596, 598 (1895) (“This . . . presents a mere
matter of statutory construction . . . . It involves no trespass upon the executive power of
appointment.”); Note, supra note 207, at 918 (discussing Glidden Co. v. Zdanok, 370 U.S. 530 (1962)).
210 But see In re Boyle, 9 Wis. at 267 (distinguishing “the jurisdiction of the court, which may
always be inquired into; it is an inquiry into the right of the judge to hold his office, which is a
question entirely distinct from that of the jurisdiction of the court over the offense”).
211 In the Supreme Court’s most recent de facto officer case, Ryder v. United States, it split the
difference, holding the doctrine inapplicable because the case was on direct review and the challenge
was constitutional, see 515 U.S. 177, 182-83 (1995). In Financial Oversight and Management Board
for Puerto Rico v. Aurelius, it avoided the issue because it found the appointments lawful, see 140
S. Ct. 1649, 1665 (2020).
212 Opinion of Judge Underwood in the Matter of Cæsar Griffin—Petition for Habeas Corpus,
supra note 156, at 463-66.
660 University of Pennsylvania Law Review [Vol. 172: 605
III. SECTION THREE SUPERSEDES, QUALIFIES, OR SATISFIES PRIOR
CONSTITUTIONAL PROVISIONS
Our third proposition is logically and methodologically straightforward,
but perhaps unsettling in some of its implications: Section Three trumps the
earlier parts of the Constitution—to the extent there is a true conflict between them.
As noted above, one of Chief Justice Chase’s arguments against enforcing
Section Three was that it conflicted (he thought) with prior constitutional
norms—of due process, prospectivity, fairness, and so on.213 Even for those
who do not put the claim in so many words, we suspect that they might share
a similar intuition: there is something about Section Three, taken seriously,
that seems harsh, unforgiving, undemocratic, un-American (?), even . . .
unconstitutional(!?). If so, it might seem to follow that somebody (judges?)
should tame Section Three.
This is an understandable instinct. But it is wrong—dead wrong. We think
the conflict with prior constitutional rules is overstated—more feel than real.
But to the extent the conflict is real, Section Three wins the face-off.
Constitutional amendments, by their very nature, change the
Constitution. It thus should be unsurprising that such new provisions, when
added to the Constitution, supersede, displace, qualify, adjust, correct, or
simply must be considered to satisfy earlier constitutional rules, to the extent
of any actual conflict between them. Simply put: a constitutional amendment
supersedes prior law precisely to the extent that it departs from the prior rules. This
general maxim of interpretation applies to Section Three of the Fourteenth
Amendment the same as it applies to any other constitutional amendment
provision. If the original textual meaning of Section Three’s terms—
understood in their natural sense and accounting for any terms of art or
specialized usages of words—departs from or alters prior constitutional
understandings, that new constitutional language must be given full effect
and priority over earlier provisions.
These basic principles of conflicting legal provisions were astutely
captured by Alexander Hamilton, writing as Publius in The Federalist Number
78. “It not uncommonly happens that there are two statutes existing at one
time, clashing in whole or in part with each other and neither of them
containing any repealing clause or expression,” Hamilton wrote.214 When this
213 See supra Section II.C.2.c; see also Ginsburg, Huq & Landau, supra note 144, at 1656
(suggesting that a self-executing interpretation, “while . . . in harmony with the original operation
of Section 3, . . . may raise due process and perhaps bill of attainder concerns” and for that reason
an “alternative construction gives Congress authority to determine how Section 3 is enforced”).
214 THE FEDERALIST NO. 78, at 439 (Alexander Hamilton) (I. Kramnick ed., 1987).
2024] The Sweep and Force of Section Three 661
occurs, the courts must determine the “meaning and operation” of the two
provisions.215
Hamilton articulated two principles for doing so, which work as a
complementary pair. “So far as they can, by fair construction, be reconciled
to each other, reason and law conspire to dictate that this should be done”—
there’s the first of the pair, but Hamilton’s sentence does not end there, but
instead pauses only ever-so-briefly, with a semi-colon, before proceeding to
the second rule of the pair—“where this is impracticable, it becomes a matter
of necessity to give effect to one in exclusion of the other. The rule which has
obtained in the courts for determining their relative validity is that the last
in order of time shall be preferred to the first.”216 This was, Hamilton
continued, “a mere rule of construction,” but it was an appropriate one,
“consonant to truth and propriety,” consistently recognized by courts “as
interpreters of the law”: that, as “between the interfering acts of an equal
authority that which was the last indication of its will should have the
preference.”217
Hamilton went on, more famously, to explain that a different interpretive
principle governed the interfering acts of a superior and a subordinate
authority. He proceeded to derive the proposition customarily called “judicial
review.”218 But that is not the interpretive question here. Here, the key point
is precisely Hamilton’s lead-in proposition: that, as between “interfering” acts
of equal legal stature—the paradigm being two statutes, adopted by the same
legislature, at different times—the last in time prevails to the extent of any
true, irreconcilable conflict. As with statutes adopted by the same legislative
authority at different times, so with constitutional provisions adopted by the
same authority at different times and possessing the same legal status: By the
terms of Article V, constitutional amendments are “valid to all Intents and
Purposes, as Part of this Constitution,” when ratified.219 Thus, where We the
People have adopted a new constitutional text “interfering” with or departing
from prior constitutional provisions, the last-in-time enacted prevails to the
215 Id.
216 Id.
217 Id. These rules were well-established in American and English law. See Caleb Nelson,
Preemption, 86 VA.L. REV. 225, 235-44 (2000) (describing the development of statutory construction
rules in English law and their adoption in American courts).
218 See THE FEDERALIST NO. 78, supra note 214, at 439-40 (Alexander Hamilton) (“But in
regard to the interfering acts of a superior and subordinate authority of an original and derivative
power, the nature and reason of the thing indicate the converse of that rule as proper to be followed.
They teach us that the prior act of a superior ought to be preferred to the subsequent act of an
inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes
the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the
former.”).
219 U.S. CONST. art. V.
662 University of Pennsylvania Law Review [Vol. 172: 605
extent of any conflict. That is the interpretive principle that governs the
relationship between new constitutional language and old language from
which it departs.
Actual constitutional examples of these principles abound. The entire Bill
of Rights qualifies, or limits, the original Constitution’s grant of enumerated
powers—to the extent that a conflict exists between those powers and the
subsequently enumerated rights.220 Likewise, the Eleventh Amendment
qualifies Article III’s extension of the federal judicial power to various cases
and controversies. To the extent the Eleventh Amendment changes what
Article III may originally have provided, the amendment supersedes that
prior law.221
Much of the time, new amendments can be harmonized with what came
before them. Section Five of the Fourteenth Amendment’s grant of “power
to enforce, by appropriate legislation, the provisions of this article”222 does
not preempt, for example, the Due Process Clause or the Cruel or Unusual
Punishments Clause. It does not allow Congress to punish civil rights
violations through summary tortures without trial. Similarly, Section Five
does not preempt the Veto Clause; it can and should be read together with
Article I, to require “appropriate legislation” to go through the pre-existing
lawmaking process.223 A new amendment does not ignore the legal system
that it amends.
On the other hand, other parts of the Reconstruction Amendments did
conflict sharply with prior constitutional norms, and they displaced them
precisely to that extent. Consider the Thirteenth Amendment’s ban on
slavery—a dramatic and particularly obvious illustration of the point that new
constitutional language supersedes and repudiates old constitutional
language, to the extent of any conflict. The Thirteenth Amendment’s
abolition of slavery implicitly but necessarily overrides and extinguishes the
Fugitive Slave Clause and any other provision of the original Constitution
that protected the institution of slavery to the full logical extent of
inconsistency with the amendment’s flat ban. Similarly, Section Two of the
Fourteenth Amendment supersedes and displaces the Constitution’s original
220 On the relationship between rights and powers, see William Baude, Rethinking the Federal
Eminent Domain Power, 122 YALE L.J. 1738, 1821-22 (2013); Jud Campbell, The Invention of First
Amendment Federalism, 97 TEX. L. REV. 517, 561-67 (2019).
221 Baude & Sachs, The Misunderstood Eleventh Amendment, supra note 9, at 624-25; cf. Hans v.
Louisiana, 134 U.S. 1, 21 (1890) (Harlan, J., concurring) (arguing that the Court in Chisholm v.
Georgia had correctly interpreted the Constitution as it existed prior to the Eleventh Amendment).
222 U.S. CONST. amend. XIV, § 5.
223 See William Baude, Sovereign Immunity and the Constitutional Text, 103 VA. L. REV. 1, 19
(2017) (offering the examples in this paragraph).
2024] The Sweep and Force of Section Three 663
apportionment rules, including the notorious Three-fifths Clause.224 Because
the two rules conflict in substance, the amendment prevails over the
Constitution’s original language.
Section Three of the Fourteenth Amendment is in the same family. In
most respects, Section Three can be easily harmonized with other parts of the
Constitution, such as Article I’s Speech or Debate Clause, Article I and II’s
impeachment provisions, Article II’s process of presidential selection, Article
III’s requirement of a case or controversy, and so on. As we have discussed,
Section Three’s new constitutional qualification for office is enforced in the
same way as other constitutional qualifications for office, and is easily
reconciled with existing constitutional rules.225
But there are a few constitutional provisions that have been alleged to
conflict with Section Three. If and when this is the case, just as any laterenacted constitutional provision supersedes or modifies earlier-enacted
constitutional provisions with which the new provision conflicts, so Section
Three of the Fourteenth Amendment logically qualifies and, where the
language so compels the conclusion, overrides prior constitutional rules.226
Thus, we think all this follows: To the extent of any inconsistency between
them, Section Three overrides any limitations otherwise imposed by the Bill
of Attainder Clause. To the extent of any inconsistency between them, Section
Three also overrides limitations imposed by the Ex Post Facto Clause. To the
224 By itself, the Thirteenth Amendment also already rendered the Three-fifths Clause a null
set. Section Two then dealt with the injustice of letting the South claim a massive increase in
political power for its disenfranchised black population.
225 See supra Section II.B.
226 The legislative history supports this conclusion as well. Opponents of Section Three
characterized it as directly imposing retroactive punishment, thus contradicting principles of due
process and principles against bills of attainder and ex post facto laws. See, e.g., CONG. GLOBE, 39th
Cong., 1st Sess. 2915-16 (1866) (statement of Sen. Doolittle) (complaining Section Three was an “ex
post facto provision, a bill of attainder” and acknowledging an amendment could “work an ex post facto
attainder”); id. at app. 241 (statement of Sen. Davis) (same); id. at 2940 (statement of Sen.
Hendricks) (“As a penalty for crime this measure is ex post facto; and if it were a measure of ordinary
legislation would therefore be unconstitutional.”); see also id. at 2467 (statement of Rep. Boyer)
(criticizing an earlier version of Section Three as a “bill of attainder or ex post facto law”). These
charges were generally premised on the view that Section Three would preempt these earlier rules
to the extent of a direct conflict, a premise with which proponents of the amendment evidently
agreed. See id. at 3036 (statement of Sen. Henderson) (“They tell us that it is a bill of attainder.
Suppose it were; are the people in their sovereign capacity prohibited from passing a bill of
attainder? . . . It is said the law is ex post facto in its character; what if it is? Have not the people the
right, by a constitutional amendment, to enact such a law?”). Though Senator Davis did make the
wild suggestion that Section Three might itself exceed Congress’s power to propose amendments to
the Constitution. Id. at app. 241 (“The framers of the Constitution did not intend to invest, and
have not in fact conferred on Congress the power to initiate alterations of it which would
revolutionize the Government formed by it.”). For further discussion of this legislative history, see
generally Graber, supra note 14, at 26-31, 36-37.
664 University of Pennsylvania Law Review [Vol. 172: 605
extent of any inconsistency between them, Section Three likewise overrides—or
simply satisfies—prior constitutional requirements of due process of law.
Finally—and this example might present more difficult questions—to the
extent of any inconsistency between them, Section Three overrides, supersedes, or
satisfies the free speech principles reflected in the First Amendment. That is:
Whatever the correct meaning of Section Three as applied to conspiracies,
attempts, incitements, and advocacy that meet the description of “engag[ing]
in insurrection or rebellion” or of giving of “aid or comfort” to enemies of the
constitutional government of the United States, the constitutional meaning
of Section Three of the Fourteenth Amendment modifies or qualifies what
otherwise might have been thought the dictates of the First Amendment.
In the end, we think these prior provisions can mostly be read
harmoniously with Section Three. Reason and common sense suggest they
should be read consistently with one another to the extent fairly possible. And
it is, for the most part, fairly possible to do so. But to the extent of any
legitimate conflict or tension, Section Three controls over the Bill of
Attainder Clause, the Ex Post Facto Clause, the Due Process Clause, and the
First Amendment.
The first three are easy.
A. Bills of Attainder
A bill of attainder is the legislative infliction of punishment on specific
people without a trial.227 It is a violation of both the separation of powers and
individual rights because it short-circuits the normal adjudication of guilt or
innocence. But Section Three is neither a bill nor an attainder. It is not a
“bill”—that is, an enactment of the legislature. Rather, it is an enactment of
The People as supreme constitutional law. And it is not an “attainder”
either—in that it is not at all clear that Section Three inflicts punishment,
because disqualification from office is not necessarily or exclusively a form of
punishment. For instance, the Twenty-Second Amendment is surely not
inflicting a “punishment” when it precludes the President from running for a
third term.228 Moreover, SectionThree does not inflict it on specified persons
or groups, but rather on anybody who has committed a described course of
conduct.
227 See generally Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63
STAN. L. REV. 1177 (2011).
228 U.S.CONST. amend. XXII. But see Cummings v. Missouri,71 U.S. (4 Wall.) 277, 320 (1866)
(“Disqualification from office may be punishment, as in cases of conviction upon impeachment.”).
2024] The Sweep and Force of Section Three 665
To be sure, Supreme Court precedent has read the Bill of Attainder
Clauses more broadly, both in a pair of twentieth-century “red scare” cases229
and perhaps more relevantly in a pair of immediate post–Civil War loyalty
cases, Cummings v. Missouri and Ex parte Garland. In each case, the Supreme
Court invalidated state and federal requirements of an “Ironclad Oath” for
anybody holding a range of positions, both public and private.230 That oath
was really a past-loyalty requirement, requiring people to swear that they had
not supported the Confederacy or the like.231 The Court concluded these
requirements were effectively bills of attainder—and also ex post facto laws—
and held them unconstitutional.232
Even if one takes these precedents at face value, it does not follow that
SectionThree would similarly be a bill of attainder. First, the “Ironclad Oath”
laws had a broader scope than Section Three: Garland dealt with bar
membership, and concluded that “exclusion from any of the professions or
any of the ordinary avocations of life for past conduct can be regarded in no
other light than as punishment for such conduct.”233 Similarly, the plaintiff in
Cummings was a Catholic priest forbidden from preaching.234 Neither case
dealt with a more focused exclusion from constitutional office. Indeed, the
Garland majority emphasized this fact, explicitly noting that it did not involve
qualifications for public office.235 Second, because both cases focused on the
retroactive effect of the laws,236 neither case’s reasoning seems applicable to
Section Three in post–Civil War insurrections and rebellions—which of
course are the only insurrections and rebellions to which Section Three still
applies.237
And in any event we doubt that one should take these precedents at face
value. First of all, if we had to take sides, we might well be inclined to say
that Garland at least may have been wrong, for reasons stated in dissent by
229 United States v. Brown, 381 U.S. 437, 447-48 (1965) (striking down as a bill of attainder a
statute prohibiting Communist Party members from serving as executives of labor union); United
States v. Lovett, 328 U.S. 303, 315 (1946) (invalidating a statute denying future compensation to
three named government employees unless reappointed by the President).
230 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 317(1866); Ex Parte Garland,71 U.S. (4 Wall.)
333 (1866).
231 Cummings,71 U.S. at 316-17; Garland,71 U.S. (4 Wall.) at 376. For a more detailed discussion
of the federal “Ironclad Oath,” see infra Section IV.A.4.b.i.
232 Cummings, 71 U.S. (4 Wall.) at 322-32; Garland, 71 U.S. (4 Wall.) at 377-80.
233 Garland, 71 U.S. (4 Wall.) at 377.
234 Cummings, 71 U.S. (4 Wall.) at 319.
235 Garland, 71 U.S. (4 Wall.) at 378.
236 Cummings, 71 U.S. (4 Wall.) at 327 (“They are aimed at past acts, and not future acts.”);
Garland, 71 U.S. (4 Wall.) at 377 (“In the exclusion which the statute adjudges it imposes a
punishment for some of the acts specified which were not punishable at the time they were
committed . . . .”).
237 See supra Section I.B.
666 University of Pennsylvania Law Review [Vol. 172: 605
Justice Miller (joined by three other justices, including, perhaps somewhat
ironically given his later position in Griffin, Chief Justice Chase).238 Second,
and more fundamentally, if constitutional amendments can change the
Constitution, a fortiori they can change judicial interpretations (and
misinterpretations) of the Constitution. That is of course what Section One
of the Fourteenth Amendment famously did with respect to Dred Scott, what
the Eleventh Amendment did with respect to Chisholm, and so on.239 In short,
the Court’s interpretation of the Bill of Attainder Clause was a stretch, and
regardless, it does not stretch far enough to change or limit the meaning of
Section Three.
B. Ex Post Facto Laws
Article I also forbids both the state and federal governments from
enacting an “ex post facto” law.240 An ex post facto law is generally thought to
mean a legislative enactment that makes a past act criminal even though it was
lawful at the time it was done. Once again, Section Three does not meet this
description, being neither a legislative enactment (but rather a new
constitutional provision) nor a legislative enactment defining a criminal
offense.241 True, as applied to actions taken before 1868, Section Three has
retroactive (non-criminal) constitutional legal effect. But as applied to actions
done after 1868, the idea that Section Three might depart even from the
“spirit” of the ban on ex post facto laws makes precious little sense.
So Section Three no longer produces any conflict—if it ever did—with
the Ex Post Facto Clauses or with any Ex Post Facto Spirit that might be
supposed to lurk behind them. And even if it did, Section Three would
supersede both prior law and lurking spirit.
238 See Garland, 71 U.S. (4 Wall.) at 382 (Miller, J., dissenting). Cummings presents a trickier
case, as it might involve complicating questions of state power to interfere with religious liberty and
church autonomy (albeit before ratification of the Fourteenth Amendment), and an especially weak
case for the relevance of past loyalty to engaging in religious occupation.
239 For a somewhat lighthearted explication of this principle—and a serious treatment of
certain of its implications, see Michael Stokes Paulsen, Can a Constitutional Amendment Overrule a
Supreme Court Decision? 24 CONST. COMMENT. 285 (2007).
240 U.S. CONST. art. I, §§ 9–10.
241 To be sure, there are revisionist arguments that the Ex Post Facto Clause itself extends to
retroactive civil laws too. See, e.g., E. Enters. v. Apfel, 524 U.S. 498, 538-39 (1998) (Thomas, J.,
concurring) (“I would be willing . . . to determine whether a retroactive civil law that passes muster
under our Takings Clause jurisprudence is nonetheless unconstitutional under the Ex Post Facto
Clause.”). And as with bills of attainder, in the wake of the Civil War the Supreme Court held that
Ironclad Oath requirements were ex post facto laws as well. Cummings, 71 U.S. (4 Wall.) at 325-32;
Garland,71 U.S. (4 Wall.) at 377-78. But as discussed in the text, even these principles do not ensnare
Section Three going forward, on a non-ex-post-facto basis.
2024] The Sweep and Force of Section Three 667
Indeed, we have this on especially good authority, as this very question
about ex post facto amendments has been asked and answered in the past.
The Eleventh Amendment, as noted above, cut off jurisdiction previously
recognized by Chisholm v. Georgia’s interpretation of Article III.242 In
Hollingsworth v. Virginia, the Court then confronted the question of whether
the Amendment was retroactive, cutting off suits pending when the
Amendment became law.243 The plaintiffs argued in the U.S. Supreme Court
against retroactivity because “[t]he spirit of the constitution” forbade “the
mischief of an ex post facto Constitution.”244 Indeed, their argument mirrored
precisely the arguments for narrow construction we saw above:
It is true, that an amendment to the Constitution cannot be controuled by
those provisions; and if the words were explicit and positive, to produce the
retrospective effect contended for, they must prevail. But the words are
doubtful; and, therefore, they ought to be so construed, as to conform to the
general principle of the Constitution.245
But the Supreme Court disagreed emphatically—unanimously ruling the
very next day that the Amendment applied retroactively, by necessary
implication.246 As with the Eleventh, so too for the Fourteenth: Had the
Supreme Court ever been called upon to consider the question, the right
answer surely is that the Fourteenth Amendment’s rules immediately
governed upon ratification and applied “retroactively” to prior actions now
covered by the revised constitutional rules.
C. Due Process of Law
The Constitution also forbids the deprivation of “life, liberty, or property,
without due process of law,”247 which, in many circumstances, requires judicial
process. Does Section Three’s self-executing legal disqualification from office
present any incompatibility with this requirement? Again, we think the two
sets of provisions readily reconciled by giving the Due Process Clause no
more than its due.
First, it is far from clear that the right to hold public office is a form of
life, liberty, or property. It is a public privilege—a public trust—to be vested
with the power of the people. And though it is a closer case, the same thing
242 See supra notes 221, 239 and accompanying text.
243 3 U.S. 378 (3 Dall.) (1798).
244 Id. at 379-80 (arguments of counsel).
245 Id. at 379; see supra notes 183–184 and accompanying text (detailing the parallel argument
in Griffin’s Case).
246 3 U.S. (3 Dall.) at 382; see also Baude & Sachs, The Misunderstood Eleventh Amendment, supra
note 9, at 626-27.
247 U.S. CONST. amend. V.
668 University of Pennsylvania Law Review [Vol. 172: 605
may be true even for those who already hold office at the moment that Section
Three disqualifies them. Due process protects private vested rights from
public deprivation; it does not protect public rights.248 It has been argued that
in England, offices were understood as vested rights of property,249 and
occasionally early American courts said so as well.250 But that was not the
better rule in America. Treating offices as property did not fit well with
republican principles,251 and by 1900 the Supreme Court could rightly state:
“The decisions are numerous to the effect that public offices are mere agencies
or trusts, and not property as such.”252
In any event, even if it were otherwise, and those who held offices were
deprived of property by Section Three, what would follow? Nothing. Section
Three would prevail. Consider once again theThirteenth Amendment, which
did directly interfere with private property rights—the right recognized in
southern states to hold other humans in bondage. The Thirteenth
Amendment instantly, self-executingly, eliminated those property rights, due
process notwithstanding.253 So too would Section Three.
Principles of due process might also animate a different objection—that
imposing such harsh consequences on individual wrongdoing simply ought to
involve fair notice and an opportunity to be heard. Perhaps this instinct
motivates the argument against self-execution, as in Griffin’s Case.254 But in
our view this objection is sufficiently answered by the terms of Section Three
itself. Section Three only applies to holding office and not voting, and only
applies to prior officeholders who swore a constitutional oath; surely we can
expect once and future officials and oath-takers to be on particularly strong
notice about the basic rules of the constitutional order. Section Three does
not ensnare garden-variety crime or miscreance. It ensnares offenses against
the authority of the system by those who have been and seek to be part of
that system.
248 See generally Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559,
565-93 (2007); William Baude, Adjudication Outside Article III, 133 HARV. L. REV. 1511, 1540-47
(2020).
249 See, e.g., Jed Handelsman Shugerman, Freehold Offices vs. “Despotic Displacement”: Why
Article II “Executive Power” Did Not Include Removal 32-40 (Oct. 12, 2023) (unpublished
manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521119 [https://perma.cc/8VPG9JXM].
250 See, e.g., Hoke v. Henderson, 15 N.C. (4 Dev.) 1, 18-19 (1833).
251 See Jane Manners & Lev Menand, The Three Permissions, 121 COLUM. L. REV. 1, 20 (2021)
(“In Revolutionary America, the idea of offices as property was roundly rejected.”); Saikrishna
Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779, 1824 n.157 (2006) (“A more republican
conception of government meant a more republican conception of offices.”).
252 Taylor v. Beckham, 178 U.S. 548, 577 (1900).
253 See supra notes 55–57 and accompanying text.
254 See In re Griffin (Griffin’s Case), 11 F. Cas. 7, 26 (C.C.D.Va. 1869) (No. 5,815) (Chase 364).
2024] The Sweep and Force of Section Three 669
Similarly, so long as Section Three is applied through the established and
customary procedures for determining qualifications for office, many due
process objections would disappear. As discussed above, in many scenarios,
Section Three’s disqualification would be enforced through administrative
hearings, quo warranto suits, state and federal judicial review, congressional
adjudications, and so on.255 Anybody who wishes to argue that his conduct is
not covered by the substantive sweep of Section Three is free to litigate that
point through all relevant channels. Section Three is therefore not in conflict
with any requirements of fair notice or an opportunity to be heard.
D. The Ominous Question: Section Three and the First Amendment
With respect to the Constitution’s provisions on bills of attainder, ex post
facto laws, and due process, the harmonization of Section Three with prior
constitutional law is easy and relatively unproblematic. There is little conflict
between the two provisions, and to the extent there is, Section Three is plain
enough that it must prevail. The interaction of Section Three with the First
Amendment presents a more interesting, even troubling, question. Does
Section Three partially revoke the right to political dissent?
This question begets more questions: What exactly is the relationship
between Section Three’s language imposing disqualification for having
“engaged in insurrection or rebellion” and the First Amendment’s protections of
the freedoms of speech, press, assembly, and petition? Likewise, what is the
relationship between the disqualification for having given “aid or comfort” to
enemies of the United States and the First Amendment? As we have argued,
Section Three in principle can supersede, qualify, or modify (or be deemed
to “satisfy”) prior constitutional requirements, rendering the provisions of
the First Amendment essentially without independent constitutional force as
limitations on the scope of Section Three. But how might the prior and
important constitutional principles of the First Amendment affect the proper
understanding of Section Three’s meaning and scope? What exactly does Section
Three effectuate, in relation to the First Amendment? Where do the usual
protections of the First Amendment leave off and the legal disabilities
imposed by Section Three take over?
There are, crudely, three possible ways of describing the relationship. The
first is to find SectionThree (implicitly) limited by the First Amendment.The
second is, in contrast, to view Section Three as carving out a zone of exception
to, supersession of, or satisfaction of First Amendment principles. The third,
which we believe correct, lies somewhere in the middle: Section Three should
be construed, to the extent fairly possible, consistently with the free speech
255 See generally supra Section II.B.
670 University of Pennsylvania Law Review [Vol. 172: 605
principles memorialized in the First Amendment. But to the extent of a true
conflict between them, Section Three must control.
To consider a not-so-hypothetical example, suppose that an officeholder
covered by Section Three gives a speech to an assembled crowd encouraging
them to engage in rebellious or insurrectionary conduct. (And suppose
further that the crowd accepts the encouragement, rebelling against members
of Congress carrying out a constitutional duty at the seat of government.) We
will return to this example,256 but for now we consider: how do we judge such
an example? Is this only a question of the constitutional definition of “engage
in insurrection” and “aid or comfort”—of whether an encouraging speech to
an insurrectionary crowd is covered by those terms? Or is it also a question of
whether that speech is protected by freedom of speech, which under modern
doctrine would mean the very stringent test of Brandenburg v. Ohio?257 Or is
it somehow both?
To a large extent, we think the conflicts between Section Three and free
speech can be minimized—as Hamilton would counsel.258 First, even under
modern doctrine, free speech does not protect several categories of speech
that overlap with Section Three. Second, Section Three’s terms will not often
reach pure speech.
To elaborate on the first point: Modern First Amendment doctrine leaves
the government free to punish actual conspiracy and solicitation, direct
incitement, and material support of unlawful activities such as insurrection,
rebellion, and treason. (There are serious questions about how much modern
First Amendment doctrine has exceeded the original protections of freedom
of speech and freedom of the press, which we will largely put aside, but the
point is that these exceptions are recognized even on today’s liberal
understandings.259)
The First Amendment has long been held not to protect conspiracy to
commit a crime or direct solicitation of unlawful activity, because this is
256 See infra Section IV.C.2.
257 395 U.S. 444 (1969).
258 See THE FEDERALIST NO.78, supra note 214, at 439 (Alexander Hamilton) (“So far as they
can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this
should be done.”).
259 For what it is worth, we do not in general dispute many aspects of modern First
Amendment doctrine, which we believe often captures the original meaning of freedom of speech
and freedom of the press, as applied to modern circumstances. See generally Michael Stokes Paulsen,
Scouts, Families, and Schools, 85 MINN. L. REV. 1917, 1919-22 (2001). To get a sense of how one might
construct a truly marvelous proof of this, which this margin is too narrow to contain, see generally
Adam Griffin, First Amendment Originalism: The Original Law and a Theory of Legal Change as Applied
to The Freedom of Speech and of The Press, 17 FIRST AMEND. L. REV. 91 (2019); Jud Campbell, Natural
Rights and the First Amendment, 117 YALE L.J. 246 (2017); Jud Campbell, The Emergence of Neutrality,
131 YALE L.J. 861 (2022). We will cease further digression on this point.
2024] The Sweep and Force of Section Three 671
“speech integral to unlawful conduct.”260 And while one must use some
caution about unduly expanding this category, conspiracy and solicitation are
at its core.261 Thus, efforts to steal elections, to pressure state officials to
manufacture votes, to pressure other officials (like the Vice President) to
violate their constitutional duties in service of a constitutional coup—would
all be unprotected by the First Amendment. To the extent those efforts are
swept up by Section Three, there would be no conflict.
More familiar may be the modern line of cases concerning “incitement.”
Over the course of the twentieth century, judicial doctrine increasingly gave
greater protection to speech that could be seen as generally inciting unlawful
activity, recognizing that earlier doctrine (such as the famous “clear and
present danger” test) had too readily permitted suppression of disfavored
political views. The modern rule, stated in Brandenburg v. Ohio in 1969,
excludes from First Amendment protection only advocacy or expressive
conduct (i) “directed to” (ii) triggering or inciting (iii) “imminent lawless
action” (presumably including acts of insurrection or rebellion) and (iv)
“likely to incite or produce such action.”262 That is a fairly strict standard, but
not one that is impossible to satisfy. Importantly, it does leave open—even
under the generous terms of modern First Amendment law—the prospect
that some acts of advocacy and expression supporting insurrection or
rebellion are simply unprotected by the First Amendment in any event, so
that Section Three does not even need to have amended or superseded the
First Amendment in order for its terms to be given their full legal effect.
The Supreme Court’s relatively recent decision in Holder v. Humanitarian
Law Project recognized a further and more controversial limitation on
subversive speech: it can be forbidden where it provides “material support”
to a foreign organization engaged in or committed to terrorist violence
against the nation.263 The Court concluded that because the “interest in
combating terrorism is an urgent objective of the highest order,” the Congress
260 United States v. Hansen, 599 U.S. 762, 783 (2023); see also United States v. Williams, 553
U.S. 285, 297 (2008) (“Offers to engage in illegal transactions are categorically excluded from First
Amendment protection.”); Giboney v. New Ice Storage, 336 U.S. 490, 498 (1949) (holding that
constitutional protection does not grant immunity to speech that is an integral part of criminal
conduct). See generally Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101
CORNELL L. REV. 981, 989-93, 1007-08 (2016) (discussing illegal solicitation that induces criminal
acts).
261 See Volokh, supra note 260, at 1011-15.
262 395 U.S. 444, 447 (1969) (emphasis added). This standard is elaborated in Hess v. Indiana,
414 U.S. 105, 108-09 (1973), and NAACP v. Claiborne Hardware, 458 U.S. 886, 927-28 (1982).
Additionally, Bond v. Floyd, 385 U.S. 116, 132-35 (1966), rejected the idea that there is a lower First
Amendment standard of incitement when a state legislature is excluding an elected member under
state law. See also Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 448-49 (1974) (finding the
same principle applies to ballot access).
263 561 U.S. 1, 28 (2010).
672 University of Pennsylvania Law Review [Vol. 172: 605
could forbid even speech—such as teaching and training—assisting such
organizations, and even though the speech did not directly further terrorist
conduct.264 While this decision is hedged by multiple limiting principles,265
it illustrates another set of circumstances where the First Amendment would
create no conflict with potential applications of Section Three.
In sum, while modern First Amendment doctrine is quite generous in its
protection of speech, in many cases it would produce no conflict with the
coverage of Section Three. We will elaborate on the second point—the scope
of Section Three itself—more fully in Part IV, but for now suffice it to say
that the occasions will be rare where speech alone is what qualifies one as
having “engaged in insurrection” or provided “aid or comfort” to enemies.
That said, we will concede that the conflict between free speech and
Section Three cannot be denied entirely. Consider the Civil War example of
Clement Vallandigham, who was arrested and imprisoned by the military on
the theory that “he was laboring, with some effect, to prevent the raising of
troops; to encourage desertions from the army; and to leave the Rebellion
without an adequate military force to suppress it”—that he was “warring
upon the Military.”266 It is conceivable (though we do not prejudge the point)
that Vallandigham’s anti-military efforts could be covered by Section Three.
And yet it is also quite plausible that his efforts would be protected by free
speech.
Or for a sharper example, even more on point, consider the case of
Representative-elect John Y. Brown, who was excluded from the Fortieth
Congress on the grounds that he had given aid and comfort to the
Confederacy by writing to the Louisville Courier promising to resist the
Union army “unto the death” and stating that anybody who volunteered for
the Union army “ought and I believe will be shot down before he leaves the
State.”267 This exclusion was part of the backdrop of Section Three’s
enactment and likely the kind of thing Section Three was intended to cover.
But, argues one scholar of the incident, this pre-Section Three exclusion “was
entirely unconstitutional” and “plainly violative of the First Amendment.”268
264 Id. at 28-32.
265 The Court emphasized that “only material support coordinated with or under the direction
of a designated foreign terrorist organization” was banned; “[i]ndependent advocacy” was “not
covered.” Id. at 31-32. Additionally, the law only applied to foreign organizations. Id. at 39.
266 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), in 6
ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-1965, at 454, 459 (Don E. Fehrenbacher,
ed. 1989); see infra notes 322–328 and accompanying text.
267 ASHER C. HINDS, 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES OF
THE UNITED STATES, ch. 14, § 449, at 445 (1907). For further discussion of post–Civil War
examples, see infra notes 325–339, 425–49 and accompanying text.
268 Lynch, supra note 5, at 198.
2024] The Sweep and Force of Section Three 673
If that was so before Section Three’s enactment, does Section Three make it
otherwise?269
Finally and perhaps most explosively, consider the 1919 exclusion of
socialist newspaper editor Victor Berger from the House. Berger was
denounced by members of the House for having given “aid and comfort to
the enemies of this country during this Great War,” and excluded in part on
that basis.270 (Indeed, Berger had also been convicted and sentenced under
the Espionage Act, though the charges were overturned by the Supreme
Court on a claim of judicial bias.271) Another scholar of the incident writes
that “[u]nder a good reading of the First Amendment, Berger’s speeches and
writings could not have been seditious; however, under the interpretation
prevailing at the time, they probably were.”272 What should we make of such
an incident?
In the end, in a case where free speech principles conflict with the best
original understanding of “engaged in insurrection” or “aid or comfort,” we
think that free speech principles must give way. We stress that we do not
think that all or even most disloyal speech will rise to the level of triggering
Section Three’s disqualifications.273 But where it does, where “it becomes a
matter of necessity to give effect to one in exclusion of the other,” it is the
more recent Fourteenth Amendment that “shall be preferred” to the earlier
rule.274
For those (like us) who value First Amendment liberties of speech, press,
assembly, religion, and the right to dissent generally, might Section Three
therefore be thought a little dangerous? Might Section Three, in the wrong
hands or applied improperly, be used to suppress dissent in the name of
excluding insurrectionists from office? Perhaps. We do not shy away from the
point. But the supposed danger of a constitutional provision is not really an
argument against its meaning. And the potential abuse of a constitutional
power, privilege, or disqualification is not really a good legal argument against
its existence. Section Three’s exclusion could be thought to pose a danger, but
269 See id. (“Had Section 3 been ratified by this point, these concerns would be assuaged.”).
270 CHAFETZ, supra note 54, at 190-91. For further discussion of the House committee reports
regarding Berger, see Lynch, supra note 5, at 211-13, and CANNON, supra note 20, at 52-63.
271 Berger v. United States, 255 U.S. 22, 36 (1921). During the initial exclusion, when Berger’s
conviction was on appeal, the House Committee announced “that it would not be governed by the
action of the judge and jury at the Chicago trial,” but would review the evidence and legal questions
“for itself.” CANNON, supra note 20, at 54. But curiously, after the convictions were reversed, the
House allowed Berger to sit in the sixty-eighth through seventieth Congresses. Lynch, supra note 5,
at 213.
272 CHAFETZ, supra note 54, at 191.
273 In our view, for instance, the exclusion of Victor Berger went too far—not because the First
Amendment makes an exception to Section Three, but because Berger’s advocacy did not satisfy the
original meaning of Section Three. See infra note 449.
274 THE FEDERALIST NO. 78, supra note 214, at 439 (Alexander Hamilton).
674 University of Pennsylvania Law Review [Vol. 172: 605
insurrection and rebellion are dangers, too—all too real dangers, as recent
events have shown. Where exactly the Constitution draws that line, and the
extent to which that line changes the prior rules of the First Amendment, are
ultimately questions of the meaning of Section Three’s general terms
triggering disqualification from future office—“insurrection,” “rebellion,”
“engaged in,” “given aid or comfort to”—and of who all is included under
Section Three’s ban. To that set of important questions we turn next.
IV. SECTION THREE’S SUBSTANTIVE DISQUALIFICATION IS
SWEEPING
We come at last to the heart of the beast: the substance of Section Three’s
prohibition. We begin (in Section IV.A) with the most interesting and
important set of issues—the types of misconduct that trigger Section Three.
What deeds (and words?) amount to having “engaged in” “insurrection” or
“rebellion” against the lawful authority of the Constitution and the system of
government it establishes? What acts (or words?) amount to having given “aid
or comfort” to “enemies” of lawful government under the Constitution?
These terms to some extent bear a range of meaning and fair construction.
The events they describe are often exceptional and to some extent unique.
Still, some applications will be clear and virtually indisputable, falling within
the terms’ core meaning—the center of the interpretive bullseye, so to speak.
Such scenarios so clearly fall within Section Three that they may be said to
be contained within the opposite of a safe harbor—a “sure shipwreck,”275 to
borrow Susan Morse’s phrase—of unquestionably disqualifying conduct
falling within the core of Section Three’s meaning; for example, declaring
unilateral secession from lawful constitutional government; or the taking up
of arms against the government (as in the waging of the Civil War). At the
other end of the continuum, there will be situations that clearly lie in a safe
harbor outside the legitimate range of meaning of Section Three’s terms—
ordinary expression of political dissent, as well as ordinary law violations. In
between these markers, there is a zone of reasonable, fair construction of
allowable interpretation and application in which government officials may
make judgments that must be conceded to be within the range of what the
Constitution permits—and where the decisions and actions of government
officials exercising their constitutional powers consequently cannot be
considered unlawful and thereby subject to judicial invalidation. Within that
fair range of meaning, different interpreters legitimately can reach differing
conclusions, all in accordance with the Constitution. We address all of these
questions in Section IV.A.
275 Susan Morse, Safe Harbors, Sure Shipwrecks, 49 U.C. DAVIS L. REV. 1385 (2016).
2024] The Sweep and Force of Section Three 675
We then turn more briefly (in Section IV.B) to the questions of what prioroffice-holding, oath-taking categories of persons—persons who then subsequently
engaged in insurrection or rebellion—are covered by Section Three’s ban and
(a similar but distinct question) what future offices are constitutionally barred to
such persons. We conclude that Section Three’s disqualification is sweeping,
both in the substantive conduct that triggers such disqualification and in the
office-holders and offices to which it applies. In particular, contrary to one
recent revisionist view, we believe it applies to the Presidency.276
Finally (in Section IV.C) we will consider the attempted overthrow of the
2020 Presidential election. Did the incumbent president’s willful, deliberate
refusal to accept the outcome of the lawful constitutional election resulting
in his defeat and, instead, his (and others’) attempt to overthrow
constitutional election results and install or maintain himself in office, by
force, by fraud or by attempted de facto political coup d’état against the
regime of lawful constitutional government, constitute engaging in
“insurrection or rebellion against the Constitution of the United States”? We
think the answer is yes.
Whether called a “rebellion” or an “insurrection,” instigating, inciting, and
encouraging a mob to engage in acts of forcible violence directed against the
ability of Congress and the Vice President to carry out their constitutional
duties—and then refusing to intervene—is covered by Section Three and is
disqualifying. If those are indeed the facts concerning Donald Trump’s (and
others’) efforts to overthrow the election—and we think they are—such
conduct triggers the disqualification rule of Section Three.
Whether other federal and state officeholders—members of Congress,
state legislators, past or present state and federal executive and judicial
officers—engaged in conduct constituting “insurrection” or “rebellion”
(including meaningful action in deliberate furtherance of an attempted coup
against lawful constitutional government), or gave “aid or comfort” (approval,
encouragement, support) to enemies might sometimes involve more difficult
questions of fact and judgment. But they are the questions Section Three
compels us to ask, and to answer. Where such evaluations and judgments have
been made by actors exercising legitimate authority to make them (as
discussed in Part II) and fall within the fair range of SectionThree’s meaning,
those judgments are entitled to full legal effect.
276 See infra notes 483–495 and accompanying text.
676 University of Pennsylvania Law Review [Vol. 172: 605
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”;
“Engaged In”; “Aid or Comfort” to “Enemies”
What is the proper, original public meaning of “insurrection” and
“rebellion” as used in Section Three? Of having “engaged in” such conduct?
Of having given “aid or comfort” to “enemies”?
Because the terms are capacious and the evidence is sprawling, we will
start by proposing our working definitions for these terms. We then show how
they are largely consistent with standard sources for discerning the meaning
of constitutional text: contemporaneous definitions of these terms; usage
elsewhere in the Constitution; and contemporaneous public, political, and
legal usage of the terms. This last category, which is especially instructive,
includes usages from President Lincoln, legislation adopted by the Civil War
Congress (both the 1862 “Ironclad Oath” and the Second Confiscation Act),
and the significant mid–Civil War decision of the Supreme Court in The Prize
Cases. We also consider, albeit in somewhat more abbreviated fashion, statutes
and usages leading up to the Civil War, as well as the relevant legislative
history of Section Three and a few scattered post-enactment applications of
Section Three itself.
1. Working Definitions
We begin by offering our working definitions of the terms insurrection and
rebellion and of what might constitute “engaging in” such conduct or giving
“aid or comfort” to enemies under Section Three.
Insurrection is best understood as concerted, forcible resistance to the authority
of government to execute the laws in at least some significant respect. The term
“insurrection” connotes something more than mere ordinary lawbreaking. It
suggests an affirmative contest with, and active resistance to, the authority of
the government. It is in that sense more than just organized resistance to the
laws—more than just a protest, even one involving civil disobedience. Rather,
it is organized resistance to the government. Insurrection is also more than
mere “protest” in that it implies some element of forcible resistance. It is
something more than a mere spontaneous, disorganized “riot.”277 Insurrection
suggests at least some degree of coordinated, concerted action. The term also
implies something more than acts of solitary individuals: to qualify as an
insurrection the acts in question must involve some form of collective action,
even if not an advance plan.
277 Debates, Saturday 14 June (June 14, 1788) (Statement of James Madison at the Virginia
Convention) (“[A] riot did not come within the legal definition of an insurrection.”), reprinted in 10
THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 1296 (John P.
Kaminski & Gaspare J. Saladino eds., 1993).
2024] The Sweep and Force of Section Three 677
At the same time, insurrection may fall short of outright rebellion—even as
the terms overlap and might bleed into each other—in that an insurrection
might not seek to overturn, overthrow, or displace the government itself, in
whole or in part (as a rebellion does). As the Supreme Court put it in The
Prize Cases in 1863: “Insurrection against a government may or may not
culminate in an organized rebellion . . . .”278
Rebellion is thus closely related to insurrection, but perhaps not quite
identical in meaning. A rebellion is arguably broader than an insurrection:
rebellion implies an effort to overturn or displace lawful government authority by
unlawful means. In the case of secession, or a declaration of independence, the
rebellion is an effort to free those engaged in rebellion from the authority of
the existing lawful government. Rebellion is something beyond mere
resistance to government authority in a particular instance or set of instances.
A rebellion seeks to replace the existing regime, not just resist its lawexecuting authority. Rebellion involves repudiation, to some degree or
another, of the regime’s authority, legitimacy, or validity. It is a challenge,
direct or indirect, to the regime itself. The South’s attempted secession was a
species of rebellion—an attempt to overturn the authority of the Constitution
and government of the United States. Likewise, an attempted coup d’état is
arguably also a species of rebellion—an effort to displace, replace, upend, or
overthrow the existing lawful regime and substitute different authority in its
stead.
The term rebellion can also imply a competing claim to legitimacy.
Crucially, however, the fact that an insurrection or rebellion claims political
or moral legitimacy—as the American Revolution did; indeed, as the South’s
secession did—does not make it any the less an insurrection or rebellion. The
fact that an attempted coup d’état, or declaration of independence, or
secession, is claimed to be a “vindication” or “restoration” of rightful
governmental authority—or asserted to be a pre-emptive effort to thwart
some other person’s or group’s allegedly wrongful assertion of authority—does
not immunize such action from the legal characterization of rebellion against
the regime. If somebody in fact participates in an attempt to overthrow the
government, it makes no difference that he might think himself in the right
for doing so, see himself as an agent for preserving lawful government, or view
his acts and intention not as “rebellion” but restoration. Mistake of law is no
defense to a coup d’état. The South offered a variety of constitutional legal
theories in defense of the supposed lawfulness of secession to vindicate its
278 67 U.S. (2 Black) 635, 666 (1862).
678 University of Pennsylvania Law Review [Vol. 172: 605
believed rights.279 That did not make its acts of rebellion any less acts of
rebellion.
As to the overlap and distinction between insurrection and rebellion, our
working definition is more tentative. It is possible that a rebellion is simply a
special case of an insurrection, in the way that a square is a special case of a
rectangle. But it is also possible that the term rebellion is not necessarily
limited to regime change by force, and thus may occupy some ground not
covered by the word “insurrection” (which, we have suggested, must be
forcible). There are such things as “bloodless coups”: actions that effectively
displace or upend the prior constitutional order without shots being fired, but
that nonetheless are in unlawful defiance or repudiation of the existing legal
order.280
279 For important accounts and discussion of Southern arguments for the constitutional
propriety and validity of secession, on a variety of asserted grounds, see JAMES M. MCPHERSON,
BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 240-42 (1988) (summarizing Southern
constitutional and political theories); DANIEL FARBER, LINCOLN’S CONSTITUTION 57-91 (2003)
(detailing interposition, nullification, and secession ); Michael Stokes Paulsen, Lincoln and Judicial
Authority, 83 NOTRE DAME L. REV. 1227, 1270-77 (2008) (setting forth Southern leaders’
constitutional arguments that Lincoln’s stance against the Dred Scott decision, against judicial
supremacy, and against extension of slavery violated the judicially settled constitutional rights of
slaveholding persons and states); Kenneth M. Stampp, The Concept of a Perpetual Union, 65 J. AM.
HIST. 5 (June 1978) (providing detailed history of pre–Civil War constitutional and political
arguments over the nature of Union and validity of secession); DAVID P. CURRIE, THE
CONSTITUTION IN CONGRESS: DESCENT INTO THE MAELSTROM 1829-61, at 228-37 (2005)
(discussing constitutional arguments for and against the validity of secession). For the case against
the constitutionality of secession, see Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in
2 ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-1965, at 215, 217-18 (Don E. Fehrenbacher,
ed. 1989); Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in id. 246, 254-
58, 260-61. See also Michael Stokes Paulsen, The Civil War as Constitutional Interpretation, 71 U. CHI.
L. REV. 691, 703-15 (2004) (reviewing DANIEL FARBER, LINCOLN’S CONSTITUTION (2003), while
distilling and building on Lincoln’s arguments); Kesavan & Paulsen, West Virginia, supra note 161, at
303-11 (discussing Lincoln’s views on secession). For further background, see generally WILLIAM W.
FREEHLING, THE ROAD TO DISUNION: SECESSIONISTS AT BAY 1776-1854 (1990), and for a
comprehensive exposition of the Southern view, see generally ALEXANDER H. STEPHENS, A
CONSTITUTIONAL VIEW OF THE LATE WAR BETWEEN THE STATES;ITS CAUSES,CHARACTER,
CONDUCT AND RESULTS (1868). As a clarification: we use the term “secession” here and throughout
this article to refer to unilateral secession without the consent of the federal government, as in the
Civil War, and do not discuss ways the federal government might lawfully consent to the
independence of a state or territory.
280 Indeed, one might characterize the process of adoption of the U.S. Constitution, replacing
the regime of the Articles of Confederation, as a peaceful political coup d’etat—an act of “rebellion”
if judged by pre-existing law, but morally and politically justified by the failure of the prior regime
and Lockean notions of self-governance and subsequently legalized by its own success. See PAULSEN
& PAULSEN, supra note 35, at 3-8, 17-20; Stephen E. Sachs, Originalism as a Theory of Legal Change,
38 HARV. J. L. & PUB. POL’Y 818, 821, 844, 850 (2015). But cf. AKHIL REED AMAR, THE WORDS
THAT MADE US: AMERICA’S CONSTITUTIONAL CONVERSATION, 1760-1840, at 164-65 (2021)
(emphasizing the states’ retention of sovereignty under the Articles and the idea that states might
thus legally exit that regime on the theory that the Articles had become a breached treaty).
2024] The Sweep and Force of Section Three 679
To illustrate this hypothesized distinction between insurrection and
rebellion: Imagine that the Southern attack on Fort Sumter in April 1861 had
preceded any declared right to secession. The attack would have been an act
of insurrection—an exercise of concerted, forcible defiance of the authority of
the Union government—but not necessarily outright rebellion. Conversely,
the ordinances of secession adopted by state conventions in the South in 1860
and 1861 preceded (mostly) any acts of actual forcible resistance to the
authority of the United States to execute the laws.281The secession ordinances
might still immediately constitute acts of “rebellion” even before any
accompanying violence. In short: Sumter without secession would have still
been insurrection. Secession without Sumter was already rebellion. Put the
two events together (acts of forcible insurrection and declarations of avowed
rebellion frequently travel in pairs, as they obviously did with the Civil War),
and “insurrection” and “rebellion” will frequently overlap.
In the end we do not wish to make too much of the ways in which the
terms differ in shades of color and in their implication. The coverage of the
terms overlaps substantially. Sometimes, the terms, occupying much of the
same ground, seem capable of being used almost interchangeably. Indeed, the
bigger picture point for understanding Section Three is that “insurrection”
and “rebellion,” in tandem, cover pretty much the entire terrain of large-scale
unlawful resistance to government authority.
Our working definitions of “insurrection” and “rebellion” established,
what does it mean to have “engaged in” such conduct? We believe one has
“engaged” in insurrection or rebellion when one has been actively involved in
the planning or execution of intentional acts of insurrection or rebellion; or when
one has knowingly provided active, meaningful, voluntary, direct support for,
material assistance to, or specific encouragement of such actions. Such planning,
participation, support, assistance, or encouragement may be in the form of
either words or deeds, as long as the person who has “engaged in” such
activities embraced the objectives of the insurrection or rebellion in question
and did things that contributed in a meaningful way to advancing those
objectives.282 (There is obvious overlap here with the closely related concept
281 The secession resolutions were adopted by state “conventions,” purporting to parallel the
process by which the states ratified the Constitution, and sometimes echoing the Declaration of
Independence as well. See MCPHERSON, supra note 279, at 234-84.
282 This working definition of having “engaged in” wrongful activity resembles familiar
common law understandings of accomplice liability in the area of criminal law, which typically
resulted from the combination of (1) assistance to unlawful conduct (with “assistance” including
uttering words of encouragement to, or agreeing not to interfere with, such conduct) and (2) the
intention to further such unlawful conduct). See, e.g., JENS DAVIS OHLIN, WHARTON’S CRIMINAL
LAW §§ 10:9, 10:11 (Thompson Reuters 16th ed., 2021) (describing accomplice liability as arising
from any type of “assistance, encouragement, or aiding and abetting that facilitates the commission
of the crime” with intent to promote or facilitate the crime’s commission). Federal criminal law
680 University of Pennsylvania Law Review [Vol. 172: 605
of having given “aid or comfort” to the nation’s enemies, which we discuss
presently.)
Of course, there are important limits to how far the concept of having
“engaged in” insurrection or rebellion extends. Mere passive acquiescence,
resigned acceptance, silence, or inaction is not typically enough to have
“engaged in” insurrection or rebellion unless a person possesses an affirmative
duty to speak or act.283 Further, mere abstract advocacy of, or theorizing
concerning, the desirability of insurrection or rebellion, without more, is not
the same as actually engaging in it. We think this is true even though the First
Amendment does not formally constrain Section Three: it is simply the best
understanding of Section Three’s terms.
Then there is the related question of what constitutes having given “aid
or comfort” to “the enemies thereof.” This reads as a separate, independent
ground for disqualification: Section Three is triggered by having engaged in
insurrection or rebellion “or” having given aid or comfort to enemies. This
language, of course, closely echoes the earlier constitutional language of the
Treason Clause.284
In many cases, giving “aid or comfort” to enemies will be similar to the
kind of conduct that counts as having “engaged in” insurrection or rebellion
through intentional, active assistance. If there is a difference, it is that the
term “aid or comfort” reinforces and emphasizes Section Three’s coverage of
indirect but material assistance. Such material assistance—possibly including
expression supporting, encouraging, counseling, or promoting the enemy—
might more naturally fall into SectionThree’s “aid or comfort” language, even
where it might be debatable whether to characterize such conduct as directly
“engag[ing] in” insurrection or rebellion.
Additionally, while Section Three uses some language paralleling the
Treason Clause, Section Three is by no means limited to the constitutional
crime of treason. “Insurrection” and “rebellion” are their own things, distinct
from “treason.” While some acts of insurrection and rebellion might also
constitute treason they need not do so in order to be encompassed within
today is to similar effect. See 18 U.S.C. § 2(a) (“Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a
principal.”). Our interpretation is also supported by background mens rea principles. See William
Baude & Stephen Sachs, The Law of Interpretation, 130 HARV. L. REV. 1079, 1108 (2017) (describing
the default rule that courts typically consider an offense to have a mens rea component even when
a statute does not expressly provide for one). That said, the context of the Civil War also suggests
one important limitation: there is no mistake-of-rebellion defense. See infra text accompanying note 515
(maintaining that a false but sincerely held belief that an election was stolen does not excuse acts of
insurrection or rebellion).
283 See, e.g., Ohlin, supra note 282, at § 10:11; MODEL PENAL CODE § 2.01(3).
284 See U.S. CONST. art. III, § 3, cl. 1 (“Treason against the United States, shall consist only
in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort.”).
2024] The Sweep and Force of Section Three 681
Section Three. So even if “aid or comfort” in Section Three connotes the
same type of assistance-and-embrace principles as “Aid and Comfort” in
Article III’s Treason Clause,285 the relevant conduct to which such assistance
is given might well differ. (And, as noted earlier, it is plain that Section Three
requires no prior criminal conviction, for treason or any other defined crime,
as a prerequisite for its disqualification to apply.286)
Finally, aid or comfort to whom? “[T]he enemies thereof.” Before the
Civil War, some might have limited “enemies” to those owing allegiance to a
foreign power,287 but that is not plausibly true of Section Three. Rather,
Section Three covers enemies both foreign and domestic. That now-familiar
phrase (“enemies foreign and domestic”) comes from the “Ironclad Oath,”
written into law in 1862, in the midst of the Civil War,288 and it seems clear
from the political context of Section Three that it likewise treats domestic
enemies as enemies. Indeed, it is almost unthinkable that Confederate rebels
would not have been thought “enemies” in the sense employed by the text.
What is less clear is how to define the foreign and domestic enemies
covered by Section Three. The most straightforward option, which strikes us
as the more likely one, is that “enemies” essentially cross-references the
domestic rebels and insurrectionists just described earlier in the sentence (as
well as more traditional foreign enemies). On this straightforward reading,
Section Three would cover a domestic officeholder (or ex-officeholder) who
directly engages in insurrection or rebellion, as well as one who gives aid or
comfort to others who do so (as well as one who gives aid or comfort to
foreign enemies). This straightforward reading is also consistent with the
operation of another 1862 statute, the Second Confiscation Act.289 That said,
we cannot rule out another narrower possibility, that “enemies” is limited to
those with whom the United States is effectively at war, and thus excludes
insurrections and rebellions that do not rise to the level of a civil war.290 This
would create a more complicated two-track system where Section Three
covers all direct engagement in insurrections and rebellions, as well as “aid or
comfort” only to a more limited set of insurrections and rebellions. While it
strikes us as less likely, we cannot definitively rule it out.291
285 See infra note 310.
286 See supra Section II.A.
287 See Lynch, supra note 5, at 174 (discussing United States v. Greathouse, 26 F. Cas. 18, 22
(C.C.N.D. Cal. 1863) (No. 15,254)).
288 See infra Section IV.A.4.b.i.
289 See infra Section IV.A.4.b.ii.
290 See Lynch, supra note 5, at 173-78.
291 And what is the referent of “enemies thereof”? Does “thereof” refer to enemies of the United
States or enemies of the Constitution of the United States? We think this replicates the question of
what “the same” refers to, earlier in the sentence, and presents the same issue of minor and seemingly
inconsequential ambiguity. (I.e., does “insurrection or rebellion against the same” refer to
682 University of Pennsylvania Law Review [Vol. 172: 605
Our sense of the whole—of Section Three’s substantive terms triggering
disqualification for those who have engaged in the conduct described—is that
Section Three is quite sweeping, using overlapping terms to cover several
different characterizations of major collective resistance to the authority of
government under the Constitution. Whether it be called “insurrection” or
“rebellion”; and whether a covered individual is thought to have “engaged in”
such activity or given “aid or comfort” to “enemies,” Section Three’s
disqualification is triggered. The language is not unlimited, to be sure. But
the broad and overlapping terms are not intended to be hospitable to
loopholes or artful, narrow, technical evasions.
Finally, let us reiterate one consequence of Section Three’s breadth and
capaciousness. Because Section Three’s terms possess a range of meaning,
both a determinate core and a fuzzier periphery, we need a second-order rule
concerning the authority of decisionmakers to act on the basis of fair
interpretations of indefinite terms. We think that the general rule of our
constitutional order is that political officials may take actions premised on fair
interpretations of indefinite terms, and that when they do so, their actions
cannot rightly be held “unconstitutional” by the courts, precisely because they
fit within the fair range afforded by the Constitution. Where the Constitution
admits of a range of choice, political authorities may exercise choices within
that range.
This is foundational to our constitutional law.292 It is the premise of
judicial review as set forth in Marbury v. Madison, which justifies setting aside
the acts of other branches only because, and only to the extent that, they
deviate from the Constitution’s meaning.293 It is classically illustrated by the
insurrection or rebellion against “the United States”?) On balance, we think that it probably makes
little practical difference: rebellion against the United States and rebellion against the Constitution
of the United States will often amount to the same thing—either one is capable of being considered
an instance of the other. Whatever the answer, it should be the same for both—“against the same”
and “thereof” refer to the same thing. Our best guess is that it is “the United States.”
292 See, e.g., Paulsen, Rules for Its Own, supra note 9, at 858 (arguing that where constitutional
language states a general principle, “actions of government that fall within the scope of judgment or
discretion admitted by the breadth with which that principle is expressed do not violate the
Constitution, and are thus allowable.”); Michael Stokes Paulsen, A Government of Adequate Powers,
31 HARV. J.L. & PUB. POL’Y 991, 995 (2008) (arguing that where a constitutional text possesses a
range of meaning, the correct constitutional answer in cases of such textual indeterminacy is that
elected officials constitutionally may enact or implement policies that lie within the range of the
text’s meaning; and “the more indeterminate or under-determinate the range of a constitutional
provision, the broader the duty of the courts to defer to what the legislature has enacted”); Kesavan
& Paulsen, supra note 9, at 1129-30 n.54; Michael Stokes Paulsen, The Most Dangerous Branch:
Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 333 (1994); Baude & Sachs, supra note 282,
at 1120 (describing “the presumption of constitutionality” as a rule of unwritten law); William
Baude, Constitutional Liquidation, 71 STAN. L. REV. 1, 35-36, 44 (2019). Again, we bracket any
differences in emphasis between our respective views of the adjudication of ambiguities.
293 See 5 U.S. (1 Cranch) 137, 170 (1803).
2024] The Sweep and Force of Section Three 683
Court’s reasoning in M’Culloch v. Maryland, which upheld Congress’s power
to create the Bank of the United States because a generation of political actors
had acted within the fair range of meaning of constitutionally granted
powers.294 And this principle means, as a practical matter, that the breadth of
Section Three’s broad terms cannot be ignored, or artificially limited, by
judicial construction. Where those charged with responsibilities that involve
applying Section Three’s terms have given that language its full legitimate
sweep, that breadth must be honored.
We now canvass—perhaps too briefly and yet at too great a length—some
of the evidence supporting these working definitions.
2. Contemporaneous Dictionary Definitions
As we have said, the task of ascertaining true constitutional meaning
consists of seeking out the objective, original meaning of the words and phrases
of the text: that is, the meaning Section Three’s terms and structure would
have had in the legal system at the time the Fourteenth Amendment was
proposed and ratified. A starting point for such an inquiry—though not the
ending point—is to look at contemporaneous dictionary definitions. We think
that evidence of contemporaneous political and legal usage of words and
phrases contained in the constitutional text is actually quite often stronger
evidence of original, objective linguistic meaning. It can serve as a kind of
operational, practical concordance that may “define” terms more precisely in
their application than can a cold dictionary definition.
Nineteenth-century dictionaries contain definitions of “insurrection” and
“rebellion” that substantially corroborate our working definitions. Webster
defined “insurrection” as a “rising against civil or political authority; the open
and active opposition of a number of persons to the execution of law in a city
or state.”295 Rebellion was an “open and avowed renunciation of the authority
of the government to which one owes allegiance.”296
Importantly, Webster noted several distinctions between these and other
terms. In defining “rebellion,” he distinguished an insurrection as “a rising in
opposition to a particular act or law, without a design to renounce wholly all
subjection to the government,”297 while a rebellion was a more categorical
“attempt to overthrow the government, to establish a different one or to place
294 17 U.S. (4 Wheat.) 316, 420-21 (1819).
295 Insurrection, WEBSTER’S 1864, supra note 46, at 702; see also Insurrection, NOAH WEBSTER,
1 AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828) [hereinafter
WEBSTER’S 1828] (stating the same definition); Insurrection, 1 A POPULAR AND COMPLETE
ENGLISH DICTIONARY 727 (John Boag ed. 1848) [hereinafter BOAG’S] (same).
296 Rebellion, WEBSTER’S 1864, supra note 46, at 1094; see also Rebellion, 2 BOAG’S, supra note
295, at 319 (similar).
297 Rebellion, 2 WEBSTER’S 1828, supra note 295.
684 University of Pennsylvania Law Review [Vol. 172: 605
the country under another jurisdiction.”298 And in defining insurrection,
Webster noted that insurrection is “equivalent to sedition, except that
sedition expresses a less extensive rising of citizens.”299 This suggests a
spectrum from sedition (not covered by Section Three) to insurrection to
rebellion (both covered).
At the same time, Webster also conceded some overlap in these terms,
writing that “[i]nsurrection may be, but is not necessarily, rebellion,”300 and
that despite these technical distinctions, “[i]nsurrection is however used with
latitude as to comprehend either sedition or rebellion.”301 This suggests a
great deal of potential breadth and overlap in these terms.
Along similar lines, a prominent mid-century legal dictionary, John
Bouvier’s Law Dictionary in its 1868 edition, contains detailed definitions of
insurrection, rebellion, and aid and comfort. “Insurrection” is defined simply as
“[a] rebellion of citizens or subjects of a country against its government.”302
“Rebellion” is correspondingly defined: “The taking up arms traitorously
against the government. The forcible opposition and resistance to the laws and
process lawfully issued.”303 Bouvier’s Dictionary thus treated “insurrection” and
“rebellion” as nearly interchangeable terms, both involving some degree of
concerted and forcible opposition to the authority of the lawfully constituted
government.304
298 Insurrection, 1 WEBSTER’S 1828, supra note 295 (“Insurrection”). Compare Insurrection, 1
BOAG’S, supra note 295, at 727, with Rebellion, 2 BOAG’S, supra note 295, at 319 (similarly
distinguishing “insurrection” and “rebellion”).
299 Insurrection, 1 WEBSTER’S 1828, supra note 295, at 111. For comparison, Webster defined
“sedition” as: “A factious commotion of the people, or a tumultuous assembly of men rising in
opposition to law or the administration of justice, and in disturbance of the public peace. Sedition
is a rising or commotion of less extent than an insurrection, and both are less than rebellion . . . .”
Sedition, 2 WEBSTER’S 1828, supra note 295, at 66.
300 Rebellion, 2 WEBSTER’S 1828, supra note 295, at 51; see also 2 BOAG’S, supra note 295, at 319
(similar).
301 Insurrection, 1 WEBSTER’S 1828, supra note 295, at 111. Daniel Hemel argues that “Webster’s
definition of ‘insurrection’ seems implausibly broad for Section 3 purposes.” Hemel, How-to Guide,
supra note 5.
302 Insurrection, 1 JUDGE BOUVIER’S LAW DICTIONARY, ADAPTED TO THE CONSTITUTION
AND LAWS OF THE UNITED STATES OF AMERICA, AND OF THE SEVERAL STATES OF THE
AMERICAN UNION: WITH REFERENCE TO THE CIVIL AND OTHER SYSTEMS OF FOREIGN LAW
729-730 (Philadelphia, George W. Childs, 12th ed., rev. & enl. 1868) [hereinafter BOUVIER’S LAW
DICTIONARY 1868].
303 Rebellion, 2 id. at 415 (emphasis added).
304 Similarly, Joseph Worcester, Noah Webster’s contemporary and competitor in lexicography,
generally equated insurrection and rebellion. Compare Insurrection, JOSEPH E. WORCESTER, A
DICTIONARY OF THE ENGLISH LANGUAGE 764 (Boston, Swan, Brewer & Tileston 1860), with
Rebellion, 1 BOUVIER’S LAW DICTIONARY 1868, supra note 302, at 1190. Elsewhere in the same
edition, Bouvier drew a distinction in connotation between “rebel” and “insurgent,” suggesting that
“rebel is always understood in a bad sense, as one who unjustly opposes the constituted authorities;
insurgent may be one who justly opposes the tyranny of constitute authorities,” and thus that “[t]he
2024] The Sweep and Force of Section Three 685
Bouvier’s Law Dictionary also offers an instructive definition of “aid and
comfort” as “[h]elp; support; assistance; counsel; encouragement.” The entry
adds this discussion, noting the lack of U.S. judicial interpretation at the time
but a generally accepted English background understanding of the term:
The constitution of the United States, art. 3, s. 3, declares that adhering to
the enemies of the United States, giving them aid and comfort, shall be
treason. These words, as they are to be understood in the constitution, have
not received a full judicial discussion. They import, however, help, support,
assistance, countenance, encouragement. The word aid, which occurs in the
stat. Westm. 1,c.14, is explained by Lord Coke (2 Inst. 182) as comprehending
all persons counselling, abetting, plotting, assenting, consenting, and
encouraging to do the act . . . .305
This explanation supports our broad construction of “aid or comfort” as
encompassing many kinds of intentional support, consistent with the English
common law understanding of the term.
3. Intratextualism
In some cases, the Constitution can also serve as its own internal
dictionary. The meaning of a constitutional term in one part of the document
can inform its meaning in another, either because of the complete (or nearly
complete) copying of one constitutional text by another or by virtue of subtle
contrast, refinement, or qualification in a term’s usage. (Professor Akhil Amar
has dubbed this method of interpretation “Intratextualism.”306) Chief Justice
Marshall, for example, famously employed this method in M’Culloch v.
Maryland as part of his argument for the constitutionality of Congress’s
chartering of a Bank of the United States.307
colonists who opposed the tyranny of the English government were insurgents, not rebels.”Insurgent,
1 BOUVIER’S LAW DICTIONARY 1868, supra note 302, at 729; Rebel, 2 id. at 415.
In a much later edition, Bouvier distinguished insurrection and rebellion as two different varieties
of“actual and open resistance to [government] authority.” Rebellion, 2 BOUVIER’S LAW DICTIONARY
830 (Francis Rawles ed., Boston, The Boston Book Co. 1897). Insurrection was “an actual uprising
against the government,” Insurrection, 1 id. at 1086, while rebellion “goes beyond insurrection in aim”
and attempts actually to overthrow the government authority in question. Rebellion, 2 id. at 830.
Lynch misstates the date of this edition as 1867, and thus mistakenly cites it as “contemporarily
authoritative.” Lynch, supra note 5, at 167 n.80.
305 Aid and Comfort, 1 BOUVIER’S LAW DICTIONARY 1868, supra note 302, at 107.
306 Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 748 (1999).
307 See 17 U.S. (4 Wheat.) 316, 413-14 (1819). In construing the scope of the legislative power
conferred by the Necessary and Proper Clause, Marshall noted how the word “necessary” was used
differently, and subjected to different qualifications, in other parts of the Constitution and found
that those differences were useful in interpreting the clause at hand. Id. For discussion of the
prominence of intratextual and structural-logic, whole-text arguments in some of Chief Justice
Marshall’s most significant Supreme Court opinions, including Marbury and M’Culloch, see Paulsen,
686 University of Pennsylvania Law Review [Vol. 172: 605
Might the Constitution’s other usages of terms that appear in Section
Three serve as such markers of meaning for “insurrection” “rebellion,” and
“aid or comfort”? A quick canvass suggests only limited help.
The word “insurrection” appears in the Militia Clause of Article I, Section
8 of the original Constitution: Congress is given the enumerated power to
“provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions.”308 The word “rebellion” appears in
the Writ Suspension Clause of Article I, Section 9: “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it.”309 In neither instance, however,
does the context suggest any particular definition or explication of the term.
They are thus of little direct assistance to the task of unpacking the meaning
of Section Three.
As noted, the language in Section Three’s alternative trigger—the giving
of “aid or comfort” to enemies—borrows nearly identical language from the
Treason Clause of Article III. But once again, the similar language in Article
III is not self-defining. Nor was there an established, settled, authoritative
judicial interpretation of this language that might have been understood
specifically to define “aid and comfort” as a constitutional term-of-art at the
time of the framing of the Fourteenth Amendment.310 Moreover, in the 1860s,
supra note 76, at 2711–42. See also Michael Stokes Paulsen, The Plausibility of Personhood, 74 OHIO ST.
L.J. 13, 33 n.72 (2013).
308 U.S. CONST. art. I, § 8, cl. 15 (emphasis added).
309 U.S. CONST. art. I, § 9, cl. 2 (emphasis added).
310 Perhaps the most notable U.S. treason case before the ratification of the Fourteenth
Amendment was Ex parte Bollman, in which Chief Justice Marshall delivered an opinion for the
Court granting habeas relief to two of the co-conspirators in Aaron Burr’s plot to seize Spanish
territory in the American then-southwest and attempt to form his own independent nation. 8 U.S.
(4 Cranch) 75, 135 (1807). The opinion combined a relatively narrow construction of the substantive
crime of treason (in part attributable to Article III’s language of “levying War”, U.S. CONST. art.
III, § 3, cl. 1) with a relatively broad construction of complicity. Thus, on one hand: “However
flagitious may be the crime of conspiring to subvert by force the government of our country, such
conspiracy is not treason.” Bollman, 8 U.S. at 126. But on the other hand:
[I]f war be actually levied, that is, if a body of men be actually assembled, for the
purpose of effecting by force a treasonable purpose, all those who perform any part,
however minute, or however remote from the scene of action, and who are actually
leagued in the general conspiracy, are to be considered as traitors.
Id. at 126. Ex parte Bollman was an early and prominent legal landmark supporting some key
propositions that would have been familiar to lawyers during the Civil War era: First, that there are
such things asconspiracies and plots to “overturn the government,” in whole or in part, which though
they might not qualify as treason, remain great and culpable legal wrongs. Second, that the crime of
treason specifically requires showing the existence of an armed assembly to employ force for a
treasonable purpose. And third, that one may be said to have engaged in (or provided “aid and
comfort” to) treason where one is in league with the conspiracy and has done any act, large or small,
or played “any part,” however remote, to further that plot. Whether or not Bollman’s construction
2024] The Sweep and Force of Section Three 687
the pairing of “aid” and/or “comfort” had become ubiquitous in legal and
public discourse as a general allegation of improper assistance, making it even
less clear that it was perfectly coterminous with the law of the Treason
Clause.311
Finally, the words “insurrection” and “rebellion” also appear elsewhere in
the Fourteenth Amendment itself, but in ways that again shed little external
light on Section Three. A person’s “participation in rebellion” is specified in
Section Two as an allowable ground for denying the right to vote that does
not trigger a reduction in a state’s representation as a consequence.312 Section
Four of the amendment prohibits payment of “debt[s] or obligation[s]
incurred in aid of insurrection or rebellion.”313 These neighboring sections use
slightly different phrases for the behavior they cover (“participation” in
Section Three and “engaged in” in Section Four; “aid or comfort” in Section
Three and “in aid of” in Section Four), but it is difficult to say whether the
variations are meaningful.
4. Contemporaneous Public, Political, Legal Usage
Perhaps the best evidence of the public meaning of the terms
“insurrection,” “rebellion,” and “engaging in,” as they came to be used in
Section Three, consists of their common and frequent public, political, and
legal usage in the 1860s—the years immediately surrounding the adoption of
the Fourteenth Amendment—by a variety of actors: by President Abraham
Lincoln, in prominent speeches, messages, public letters, and proclamations;
by Congress, in major acts of legislation; and by the Supreme Court, in its
landmark decision in The Prize Cases. The consistent pattern of usage was to
treat the actions of the South as being, legally, “insurrection” or “rebellion.”
A wide range of actions supportive of secession appears to have constituted
“engaging in” or giving “aid or comfort” to rebellion or insurrection.
This leads us to what we think is an obvious “sure shipwreck” for
understanding Section Three’s terms.314 Whatever else “insurrection” or
“rebellion” might embrace, they certainly embrace the cluster of actions with
which Section Three was, historically, immediately and directly concerned:
was sufficiently established to be read in to Section Three itself, Bollman was cited occasionally in
the 1860s Congress. See, e.g., CONG. GLOBE, 37th Cong., 2nd Sess. 414 (1862) (statement of Sen.
Charles Sumner) (citing a portion of the Bollman passage quoted above to argue for the expulsion
of Senator Jesse Bright for writing a letter to Jefferson Davis).
311 See HAROLD HOLZER, LINCOLN AND THE POWER OF THE PRESS: THE WAR FOR
PUBLIC OPINION 361 (2014) (referring to the phrase “aid and comfort to the enemy” (by the press)
as “that catch-basin phrase again.”).
312 U.S. CONST. amend. XIV, § 2 (emphasis added).
313 U.S. CONST. amend. XIV, § 4 (emphasis added).
314 Cf. Morse, supra note 275, at 1387-88.
688 University of Pennsylvania Law Review [Vol. 172: 605
First, the attempted secession from the authority of the U.S. Constitution—
the effort to displace the lawful authority of the United States in favor of the
supposedly “seceded” state governments and the “Confederate States of
America.” And second, engaging in forcible resistance to the authority of the
United States to execute the laws of the United States—armed resistance to
the Constitution, specifically in the shape of waging civil war against the
nation. Conduct participating in, advancing, supporting, or assisting either
secession or armed resistance to U.S. authority constituted “engaging in” or
giving “aid or comfort to” the Union’s enemies. Section Three encompasses
all such actions in support of secession and civil war as included within its
substantive trigger.
a. President Lincoln
An extremely important contemporaneous source for understanding the
public constitutional meaning of “insurrection” and “rebellion” in 1860s
public discourse is President Abraham Lincoln. Lincoln looms large in the
public understanding of the day concerning the meaning of those terms.
Lincoln consistently characterized secession and the Civil War as acts of
insurrection or rebellion, avoiding wherever possible treating “secession” as if it
were a separate legal category. Secession, for Lincoln, was a Southern
euphemism for rebellion and treason. The Confederacy had no valid legal
existence: what was going on with the Civil War was properly called
insurrection and rebellion—the lawless attempt to overthrow the
constitutional processes of the United States and displace lawful government
with unlawful governments.
Lincoln was insistent and relentless—and very public and prominent—on
this point, consistently so, across a range of contexts. For instance, the Civil
War was emphatically not, in Lincoln’s view, a “war” between the United
States and another sovereign.315 It was not subject to Congress’s Article I,
Section Eight, Clause Eleven power to “declare War,” but was rather an illegal
rebellion—a “giant insurrection”—to be suppressed by executive authority
pursuant to Congress’s Article I, Section Eight, Clause Fifteen power to
315 For Lincoln’s understanding of secession as unconstitutional and his resulting conception
of the Civil War as, legally, a situation of insurrection or rebellion (not declared war), see sources
cited in supra note 279. That does not exclude the existence of full constitutional Commander in
Chief Clause powers in the situation of actual civil war, however. See Michael Stokes Paulsen, The
Emancipation Proclamation and the Commander in Chief Power, 40 GA. L. REV. 807, 814-23 (2006)
(laying out the argument for the constitutionality of the Emancipation Proclamation under Lincoln’s
powers as Commander in Chief).
2024] The Sweep and Force of Section Three 689
“provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions.”316
Consider just a few prominent and illustrative statements. In his First
Inaugural Address on March 4, 1861, Lincoln, after setting forth arguments
that “no State upon its own mere motion can lawfully get out of the Union,”
concluded that “acts of violence within any State or States against the
authority of the United States” are “insurrectionary or revolutionary, according
to circumstances.”317 Following the attack on Fort Sumter, Lincoln’s April 15,
1861 proclamation calling forth the militia similarly characterized the attack
as fitting the Insurrection Acts’ definition of insurrection.318 And in his July 4,
1861, Message to Congress, Lincoln labelled the South’s purported secession
a “giant insurrection” and, vividly, as “rebellion . . . sugar coated.”319 The “socalled ‘Confederate States’” had formed an “insurrectionary government.”320
In the same July 4 Message, Lincoln used the nature of secession as rebellion
to justify suspension of the writ of habeas corpus as authorized by the terms
of Article I, Section Nine, Clause Two of the Constitution,321 which used
exactly that language of “rebellion.” Lincoln’s use of terms was significant and
pulled no punches: efforts to displace lawful government authority with
unlawful government—no matter how labelled by their perpetrators and no
matter how deluded participants might be as to the lawfulness or propriety
of their actions—were insurrectionary; such declarations and actions
constituted rebellion.
Two years later, at the height of the war, Lincoln returned to the
characterization of the South’s actions as “rebellion” (and the constitutional
question of power to suspend habeas corpus) in a notable incident testing the
limit of Union military suppression of anti-war and disloyal speech. In a June
12, 1863 public letter, nominally addressed to Erastus Corning, Lincoln
defended the military arrest of former Ohio Congressman Clement
316 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), reprinted in 4
COLLECTED WORKS OF LINCOLN 421, 427 (Roy P. Basler ed., 1953) [hereinafter CWL]. Compare
U.S. CONST. art. I, § 8, cl. 11 (Declare War Clause), with U.S. CONST. art. I, § 8, cl. 15 (providing
Congress with power “to provide for calling forth” the Militia for law execution and to “suppress
Insurrections”). Congress’s exercise of this power—the Insurrection Acts of 1795 and 1807—is
discussed infra Section IV.A.5.a.
317 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in 4 CWL, supra note
316, at 262, 265 (emphasis added).
318 Abraham Lincoln, Proclamation Calling Militia and Convening Congress (Apr. 15, 1861),
reprinted in 4 CWL, supra note 316, at 331, 332; cf. Act of July 29., 1861, 12. Stat. 281 (granting the
President power to call forth the militia to suppress “unlawful obstructions, combinations, or
assemblages of persons, or rebellion against the authority of the Government of the United States”).
319 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), reprinted in 4
CWL, supra note 316, at 421, 427, 433 (emphasis added).
320 Id. at 427 (emphasis added).
321 Id. at 429-31 (emphasis added).
690 University of Pennsylvania Law Review [Vol. 172: 605
Vallandigham, a notorious racist and prominent “Copperhead” pro-South,
anti-Union Northerner, who had made a public speech vehemently
condemning the Emancipation Proclamation and the Union’s war effort.322
Lincoln distinguished ordinary law enforcement arrests from detentions
in cases of rebellion. Wrote Lincoln: “Ours is a case of Rebellion—so called by
the resolutions before me—in fact, a clear, flagrant, and gigantic case of
Rebellion.”323 And that, Lincoln concluded, was what allowed suspension of
habeas corpus.324 In the course of his argument, Lincoln described rebellion
as “sudden and extensive uprisings against the government.”325 This description
supports our working definition: Rebellion is an “uprising.” It is something
more than mere protest. It is, often, “sudden.” It is “extensive.” It is directed
“against the government.” Rebellion is something more than ordinary law
violation and that is why it is treated differently by the Constitution.
How did Vallandigham’s actions associate him with the rebellion? Lincoln
made a forceful case that even pure speech might constitute assistance to
rebellion—if it were advocacy producing direct, material effects benefitting
the rebel enemy cause, by tangibly harming the military authority engaged in
trying to suppress that rebellion. In the Corning Letter, Lincoln wrote that,
“under cover of ‘Liberty of speech,’ ‘Liberty of the press,’ and ‘Habeas
corpus,’” rebel sympathizers “hoped to keep on foot amongst us a most
efficient corps of spies, informers, supplyers, and aiders and abettors of their
cause in a thousand ways.”326 Claims of freedom of speech could improperly
furnish a shield or cloak for wrongful conduct; they supplied “cover” for, and
thus assisted, rebellion and insurrection.
Lincoln expanded these arguments in yet more arresting ways. He
suggested that, in some circumstances, a person’s refusal to speak out against
rebellion might be tacit support for such rebellion: a “man who stands by and
says nothing, when the peril of his government is discussed, cannot be
misunderstood. If not hindered, he is sure to help the enemy.”327 He also
hinted at regret that he had not earlier arrested prominent oath-breaking
officers now “occupying the very highest places in the rebel war service,” such
as John Breckinridge, Robert E. Lee, Joseph Johnston, and John Magruder:
“I think the time not unlikely to come when I shall be blamed for having
322 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), reprinted in
4 CWL, supra note 316, at 260, 266-69 (“[Mr. Vallandigham’s] arrest was made because he was
laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army,
and to leave the rebellion without an adequate military force to suppress it.”).
323 Id. at 264 (emphasis added).
324 Id.; cf. U.S. CONST. art. I, § 9, cl. 2.
325 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), reprinted in
4 CWL, supra note 316, at 260, 265 (emphasis added).
326 Id. at 263.
327 Id. at 265.
2024] The Sweep and Force of Section Three 691
made too few arrests rather than too many.”328 Lincoln’s position seems clear,
if perhaps a bit unsettling: claims of freedom of speech did not invariably
prevail over the imperative constitutional necessity of suppressing rebellion;
where words fueled insurrection, or thwarted its suppression, or signaled
disloyalty, the speaker was aiding the enemy. Such expression was not
necessarily privileged.
This is not exactly an expansive conception of First Amendment rights.
Lincoln fully recognized the difficulties with his stance. He did not ignore
the tension between his conclusions and peacetime free speech principles but
argued that the tension could be reconciled.329 In a colorful metaphor, Lincoln
ventured:
I can no more be persuaded that the government can constitutionally take no
strong measure in time of rebellion, because it can be shown that the same
could not be lawfully taken in time of peace, than I can be persuaded that a
particular drug is not good medicine for a sick man, because it can be shown
not to be good food for a well one. Nor am I able to appreciate the danger,
apprehended by the meeting, that the American people will, by means of
military arrests during the rebellion, lose the right of public discussion, the
liberty of speech and the press, the law of evidence, trial by jury, and Habeas
corpus, throughout the indefinite peaceful future which I trust lies before
them, any more than I am able to believe that a man could contract so strong
an appetite for emetics during temporary illness, as to persist in feeding upon
them during the remainder of his healthful life.330
Lincoln also stressed a distinction between speech directed at criticism of
the government’s political policy—fully protected by the Constitution—and
expression more or less directly aimed at harming the military’s recruitment
and war effort. If Vallandigham had been arrested merely because he was
“damaging the political prospects of the administration” or “the personal
interests of the commanding general,” that would be one thing, Lincoln
328 Id.
329 In several respects, Lincoln anticipated later judicial free speech doctrines and decisions,
such as those (1) distinguishing pure speech from speech linked to prohibited conduct; (2)
recognizing limits on speech posing a danger of inciting to crime or lawlessness; (3) recognizing
“compelling interest” overrides in exceptional circumstances, including for reasons of national
security or military secrecy; and (4) finding that government’s motives and purposes for a particular
action may matter to its lawfulness. See Paulsen, Civil War, supra note 279, at 700-01, 700 n.23 (noting
how Lincoln anticipated many of the issues and exceptions contemplated by later judicial doctrine
concerning the First Amendment’s freedom of speech).
330 Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), reprinted in
4 CWL, supra note 316, at 260, 267 “Emetics” referred to a medicine or substance used to induce
vomiting.
692 University of Pennsylvania Law Review [Vol. 172: 605
observed.331 “[I]f there was no other reason for the arrest, then I concede that
the arrest was wrong.”332 But as Lincoln understood it, the arrest “was made
for a very different reason”—that Vallandigham was “laboring, with some
effect, to prevent the raising of troops, to encourage desertions from the army,
and to leave the rebellion without an adequate military force to suppress it.”333
Vallandigham was, in short, “warring upon the military.”334 “[H]e who
dissuades one man from volunteering, or induces one soldier to desert,
weakens the Union cause as much as he who kills a union soldier in battle.”335
In a famous line, Lincoln asked rhetorically, “Must I shoot a simple-minded
soldier boy who deserts, while I must not touch a hair of a wiley agitator who
induces him to desert?”336 (Desertion was punishable by death, of course.)
Lincoln’s answer was no: “I think that in such a case, to silence the agitator,
and save the boy, is not only constitutional, but, withal a great mercy.”337
Lincoln continued:
If I be wrong on this question of constitutional power,” he added, “my error
lies in believing that certain proceedings are constitutional when, in cases of
rebellion or Invasion, the public Safety requires them, which would not be
constitutional when, in absence of rebellion or invasion, the public Safety
does not require them—in other words, that the constitution is not in it’s
application in all respects the same, in cases of Rebellion or invasion,
involving the public Safety, as it is in times of profound peace and public
security.338
Lincoln thus embraced the view that material assistance to insurrection
or rebellion could in some cases take the form of effective advocacy of
unlawful conduct that, if engaged in by substantial numbers, would materially
advance the rebel cause or harm the military prospects of the Union. The fact
that such assistance to rebellion came in the form of words did not furnish
any constitutional privilege to such action. Where rebellion threatens public
safety or public security, the Constitution permits restriction on advocacy
furthering, supporting, or assisting such rebellion.
To be sure, one might well conclude that Lincoln went too far in his
arguments in the Corning Letter or in some of his actions during the war.
That is an interesting and difficult question—and not our point here. Our
331 Id. at 266.
332 Id.
333 Id.
334 Id.
335 Id. at 264.
336 Id. at 266.
337 Id. at 266-67.
338 Id. at 267.
2024] The Sweep and Force of Section Three 693
point is that Lincoln’s view was a prominently expressed contemporaneous
understanding—and on the issues of insurrection, rebellion, and complicity,
it was consistent with his longstanding and oft-repeated views. This does not
directly answer the question whether or to what extent such thinking
specifically informed general public understanding of Section Three. But
Lincoln’s thinking, articulated in such a public context, may well have
informed the potential reach of the terms “insurrection or rebellion,” and
what constitutes engaging in or aiding such conduct, as those terms came to
be employed in Section Three of the Fourteenth Amendment.
At all events, Lincoln made clear and prominent the position that
declaring secession, engaging in forcible opposition to the constitutional
authority of the Union, and materially assisting others in such conduct all
constituted forms of support for and participation in “insurrection” or
“rebellion.” And this stance continued throughout the war, even as the nation
began to look to the war’s conclusion and to questions of the post-war status
of persons who had participated in that rebellion—questions at the core of
Section Three of the Fourteenth Amendment.339
b. Congress
President Lincoln was not the only public figure grappling with concepts
of insurrection and rebellion during the Civil War. Similar themes can be
found in the statements and actions of Congress and the Supreme Court.
Start with Congress: Two specific enactments of Congress during the
Civil War are especially probative of the understandings of “insurrection” and
“rebellion” and of what conduct was publicly understood to constitute having
“engaged in” or given assistance to rebellion. First, there is the so-called
“Ironclad Oath,” adopted on July 2, 1862 as the oath one must be able to swear
in order to hold federal office.340 Second, there is the “Second Confiscation
339 Lincoln’s characterization of Southern secession as rebellion continued throughout the war.
His December 8, 1863 Message to Congress referred to the Confederacy as “the rebellion.” Annual
Message to Congress (Dec. 8, 1863), reprinted in 7 CWL, supra note 316, at 36, 46-51. In his
accompanying offer of amnesty and pardon in the Amnesty Proclamation of December 8, 1863,
Lincoln referred, repeatedly, to the “rebellion” that “now exists whereby the loyal State governments
of several States have for a long time been subverted,” to “said rebellion and treason,” to “said
rebellion,” and to persons who had provided “aid” to the “rebellion” in various forms. Abraham
Lincoln, Proclamation of Amnesty and Reconstruction (Dec. 8, 1863), reprinted in 7CWL, supra note
316, at 53, 53-55. Interestingly, Lincoln excepted from his offer of forgiveness—in language that would
seem to presage the similar terms of Section Three—“all who have left judicial stations under the
United States to aid the rebellion” and “all who resigned commissions in the army or navy of the
United States, and afterwards aided the rebellion.” Id. at 55. Lincoln also left to the respective houses
of Congress the exclusive judgment “whether members sent to Congress from any State shall be
admitted to seats.” Id. at 56.
340 Act of July 2, 1862, ch. 128, 12 Stat. 502 (codified at 5 U.S.C. § 3331).
694 University of Pennsylvania Law Review [Vol. 172: 605
Act,” adopted that same month, on July 17, 1862, to authorize legal forfeitures
of property and slaves, and also to enforce disqualifications from federal
office, by persons who had engaged in specified activities constituting
“rebellion or insurrection.”341 These two enactments, and their
implementation to exclude former insurrectionists and rebels from future
office, say much about the terms they employed.
i. The Ironclad Oath
Congress adopted the Ironclad Oath in the thick of the Civil War and it
was required of most federal officeholders from 1862 to 1884.342 The text of
the Oath sets forth the types of misconduct regarded as disqualifying an
individual from eligibility for federal office because he had been engaged in
supporting the rebellion—an inquiry very closely parallel to that contained
in Section Three of the Fourteenth Amendment, proposed by Congress just
a few years later.
The Ironclad Oath required that prospective officeholders swear or affirm
that they had not done any of several things. In that sense, it did not function
like a traditional oath of office—a promise of future behavior—but much
more like a disqualification for past misbehavior.343 It did indirectly what
Section Three was soon to do directly. That makes the Ironclad Oath’s list of
never-have-I-evers particularly instructive. Here is the Oath, with its mostrelevant-to-Section-Three features and phrases italicized (and with bracketed
numbers inserted):
I . . . do solemnly swear (or affirm) that I have never [1] voluntarily borne arms
against the United States since I have been a citizen thereof; that I have [2]
voluntarily given no aid, countenance, counsel, or encouragement to persons engaged
in armed hostility thereto; that I have [3] neither sought nor accepted nor
341 Act of July 17, 1862, ch. 195, 12 Stat. 589 (codified at 18 U.S.C. § 2383); id., ch. 197, 12 Stat.
627.
342 See 12 Stat. 502 (1862); Act of May 13, 1884, ch. 46, 23 Stat. 21 (current version at 5 U.S.C.
§ 3331) (amending the Ironclad Oath). There was an important exception. In 1868, Congress
provided that anybody who had received amnesty from two-thirds of each house of Congress under
Section Three was exempt from the Ironclad Oath and need only swear future loyalty, and in 1871 it
added that anybody “who is not rendered ineligible to office by the provisions of the fourteenth
amendment to the Constitution” yet would otherwise “not be able on account of his participation in
the late rebellion to take” the Ironclad Oath, could take the forward-looking oath instead. Act of
July 11, 1868, ch. 139, 15 Stat. 85; Act of Feb. 15, 1871, ch. 53, 16 Stat. 412. These two provisions
effectively equated the Ironclad Oath to Section Three from 1871 on.
343 For this reason, Lincoln famously wrote: “On principle I dislike an oath which requires a
man to swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of
repentance. I think it is enough if the man does no wrong hereafter.” Endorsement by Abraham
Lincoln in Letter from Richard M. Edwards, FourthTennessee Cavalry, to Edwin M. Stanton, Sec’y
of War (Feb. 5, 1864), reprinted in 7 CWL, supra note 316, at 169, 169.
2024] The Sweep and Force of Section Three 695
attempted to exercise the functions of any office whatever, under any authority or
pretended authority in hostility to the United States; that I have [4] not
yielded a voluntary support to any pretended government, authority, power or
constitution within the United States, hostile or inimical thereto.344
While not using the words insurrection or rebellion, the Ironclad Oath’s list
of never-have-I-evers would seem strongly suggestive of how Section Three’s
triggering language likely would have been understood in public usage at the
time. The Ironclad Oath is not a definition of Section Three’s constitutional
terms. But it would appear an apt descriptive specification of the kinds of
misconduct included within those terms. Under the Oath, disqualifying
behavior included: (1) fighting against the United States; (2) aiding or
encouraging such armed hostility; (3) accepting office under a hostile
authority (or “pretended authority”); and—a highly evocative phrase—(4)
“yield[ing]” one’s “voluntary support” to “any pretended government, authority,
power or constitution . . . hostile or inimical” to the United States.
The content of this oath’s requirement establishes a useful, historically
prominent marker for the scope of Section Three: what the Ironclad Oath
understood to be disqualifying for federal office, Section Three likely
embraced as constitutionally disqualifying conduct for the far broader sweep
of offices to which it extended.345
ii. The Second Confiscation Act
Barely more than two weeks after adopting the Ironclad Oath, the Civil
War Congress enacted what is popularly called the “Second Confiscation
Act.”346 Its full title spoke explicitly in terms of insurrection and rebellion:
“An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and
confiscate the Property of Rebels, and for other Purposes.”347
This Second Confiscation Act was a very prominent piece of legislation.
It imposed sweeping penalties, forfeitures, and disqualifications on anybody
who had engaged in or assisted the rebellion.348 Extensively and vigorously
debated in Congress, the Second Confiscation Act was much discussed in the
press and in public discourse, objected to by many on constitutional grounds,
344 Act of July 2, 1862, ch. 128, 12 Stat. 502 (emphasis added).
345 The extensive overlap between the meaning of the Ironclad Oath and the Section Three
disqualification is confirmed by Congress’s own interpretation and application of the Oath to its
own members, during and after the enactment of Section Three. These applications are detailed in
infra Section IV.A.5.b.
346 Second Confiscation Act, ch. 145, 12 Stat. 589 (enacted July 17, 1862).
347 Id. An “explanatory” joint resolution amended or clarified the Act. See Joint Resolution of
July 17, 1862, 12 Stat. 627.
348 An earlier act had provided for forfeiture more specifically of property or slaves actually
used in service of rebellion. Act of Aug. 6, 1861, ch. 60, 12 Stat. 319.
696 University of Pennsylvania Law Review [Vol. 172: 605
and nearly vetoed by President Lincoln.349 Enactment of the Second
Confiscation Act gave rise to very public pressure on President Lincoln to
take aggressive action against slavery in rebel states—pressure that helped
spur Lincoln to issue his Emancipation Proclamation as an executive military
order.350 The Second Confiscation Act was a big deal.
The Act itself was a complicated and somewhat confusing hodgepodge of
distinct provisions, combining property confiscation, emancipation, a new
federal crime, and disqualification from office. But the terms it used are
especially evocative, visiting legal consequences on persons who “engage[d]
in,” “incite[d],” “set on foot,” or “assist[ed]” “rebellion” or “insurrection” or who
had “given aid or comfort” to rebellion or done acts “aiding and abetting”
rebellion.351 The Act is practically a glossary of the terms used in Section
Three of the Fourteenth Amendment proposed by Congress just four years
later.
349 See David P. Currie, The Civil War Congress,73 U.CHI. L. REV. 1131, 1185-95 (2006). Among
many noteworthy twists and turns in the road to enactment, President Lincoln came close to vetoing
the bill, preparing a veto message with his objections and signing the bill only after Congress passed
an “explanatory” joint resolution (which Lincoln signed together with the bill). Id. at 1194. Lincoln
nonetheless appended his original draft veto message setting forth his objections. Id. For discussion
of the constitutional objections of Lincoln and others to various aspects of the bill, and his unusual
course of action in signing it but nonetheless appending his objections, see id. at 1193-94. See also
BURRUS M. CARNAHAN, ACT OF JUSTICE: LINCOLN’S EMANCIPATION PROCLAMATION AND
THE LAW OF WAR 105-06 (2007) (noting Lincoln’s initial concern that the Act would violate Article
III’s limitations on the punishment for treason and the objections of others that the Act was a bill
of attainder); ERIC FONER, THE FIERY TRIAL: ABRAHAM LINCOLN AND AMERICAN SLAVERY
215-16 (2010) (describing Lincoln’s constitutional objections and negotiations with members of
Congress before signing the Act and sending his draft veto message). For Lincoln’s July 17, 1862
message to Congress, detailing his objections, see 7 COMPLETE WORKS OF ABRAHAM LINCOLN
280-86 (John G. Nicolay & John Hay eds., new & enl. ed. 1894).
350 A month after the Act had been adopted, Horace Greeley published a scathing editorial
titled The Prayer of Twenty Millions, in which he demanded that Lincoln “EXECUTE THE LAWS”
faithfully with specific reference to the Second Confiscation Act. Horace Greeley, Editorial, The
Prayer of Twenty Millions, N.Y. DAILY TRIB., Aug. 20, 1862, at 4. Greeley condemned Lincoln’s
“mistaken deference to Rebel Slavery” and his failure to rebuke his generals for having “habitually
disregarded” the Confiscation Act. Id. Lincoln replied to Greeley, equally prominently, within days,
in a famous public letter dated August 22, 1862, published in a rival newspaper and “widely
reprinted,” defending his course of action. See HOLZER, supra note 311, at 400-01; Letter from
Abraham Lincoln to Horace Greeley (Aug. 22, 1862), reprinted in 8 COMPLETE WORKS OF
ABRAHAM LINCOLN, supra note 349, at 15-16. One month later, Lincoln issued his Preliminary
Emancipation Proclamation of September 22, 1862, in which he noted and quoted provisions of the
Second Confiscation Act (without invoking the statute as actual authority for his proclamation). See
Preliminary Emancipation Proclamation (Sept. 22, 1862), reprinted in 8 COMPLETE WORKS OF
ABRAHAM LINCOLN, supra note 349, at 36–41 (stating that “attention is hereby called to” provisions
of the Act but relying for authority on his powers as executive and military Commander in Chief);
see also FONER, supra note 349, at 215 (“[T]he Second Confiscation Act embodied a major shift in
national policy.”).
351 Act of July 17, 1862, ch. 195, §§ 2, 6–7, 12 Stat. 590-91 (emphasis added).
2024] The Sweep and Force of Section Three 697
Specifically: Section Two of the Act made it a new crime, distinct from
treason, to “incite, set on foot, assist, or engage in any rebellion or insurrection
against the authority of the United States or the laws thereof” or to “give aid or
comfort thereto” or to “engage in, or give aid and comfort to,” any “existing rebellion
or insurrection.”352 It is worth pausing to parse the linguistic resemblances to
Section Three, and the ways in which like terms are used and explained.
Following Lincoln, secession and civil war are equated with “rebellion or
insurrection.”353 Those terms are described as involving acts “against the
authority of the United States, or the laws thereof ” (a formulation closely
conforming to our working definitions).354 Section Two imposes criminal
liability on persons who “incite” such acts; who “set on foot” such acts; who
“assist” such acts; who in any other way “engage in” such conduct; or who
“give aid and comfort to” such conduct.355 All of these terms have close
parallels in Section Three of the Fourteenth Amendment.
Section Three of the Act then imposed a sweeping disqualification from
future officeholding—a kind of proto-Section Three of the Fourteenth
Amendment: “[E]very person guilty of either of the offences described in this
act shall be forever incapable and disqualified to hold any office under the
United States.”356 Section Five directed the President to seize rebel property
belonging to a long list of confederate officers plus anyone in a loyal state who
“shall hereafter assist and give aid and comfort to such rebellion.”357
Officeholding in a rebel government or military was per se blameworthy
participation; general giving of assistance or aid or comfort also qualified as
participation in rebellion. Section Six further authorized seizure of the
property of any person not already mentioned who, “being engaged in armed
rebellion against the government of the United States, or aiding or abetting
such rebellion,” and, after sixty days’ notice issued by the President, did not
“cease to aid, countenance, and abet such rebellion, and return to his allegiance
to the United States.”358 Sections Seven and Eight provided for in rem
352 Id. § 2, at 590 (emphasis added). Section Two provided penalties for conviction, which
included confiscation of slaves. A modified version of this provision remains a crime today, and
continues to incorporate the Confiscation Act’s disqualification from federal office, as well. See 18
U.S.C. § 2383 (“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection
against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall
be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of
holding any office under the United States.”). Needless to say, a prosecution under § 2383 of Title
18 is neither a prerequisite to nor preclusive of the self-executing application of Section Three of
the Constitution.
353 Id. § 6, at 590.
354 Id.
355 Id.
356 Id. § 3.
357 Id. § 5 (emphasis added).
358 Id. § 6, at 591 (emphasis added).
698 University of Pennsylvania Law Review [Vol. 172: 605
proceedings against property “found to have belonged to a person engaged in
rebellion, or who has given aid or comfort thereto,” in which case it “shall be
condemned as enemies’ property.”359 And Section Nine famously emancipated
slaves of persons “who shall hereafter be engaged in rebellion” against the
Union or who “shall in any way give aid or comfort thereto.”360 Throughout these
sections, one can see the recurrent use of terms and concepts, and synonyms
for such terms, that would reappear in Section Three of the Fourteenth
Amendment: “engaged in,” “rebellion,” “aid or comfort,” “abet,”
“countenance,” “enemies.”
Unlike the Ironclad Oath, the Second Confiscation Act did not give rise
to many opportunities for immediate application and further interpretation.
In part, this was simply due to the exigencies and realities of Civil War at the
time.361 For example, the civil forfeiture provisions contemplated in rem
judicial proceedings against persons in the district where property was
located.362 At the time, such property was often located in areas of rebel
control. Often, the federal courts were not even functioning in those areas.363
Similarly, as a practical matter, criminal prosecutions of rebels for treason and
insurrection had to await Union military success. (And after success came,
President Andrew Johnson ultimately pardoned a great many offenders.364)
The Lincoln administration, focused on other matters, showed little interest
in bringing legal actions to enforce the Act’s specific policies. The
administration, according to one scholar, “chose not to implement the law
vigorously.”365 Attorney General Bates “exerted no more than a minimal effort
359 Id. §§ 7–8 (emphasis added).
360 Id. § 9 (emphasis added).
361 See SILVANA R. SIDDALI, FROM PROPERTY TO PERSON: SLAVERY AND THE
CONFISCATION ACTS, 1861-1862, at 238 (2005) (“[I]t would be simply impossible to execute the law
without ‘marching an army into the enemy’s country . . . .’”) (quoting Cong. Globe, 37th Cong., 2d
Sess. 1858 (1862) (statement of Sen. Orville H. Browning)).
362 See Act of July 17, 1862, ch. 195, § 7, 12 Stat. 591.
363 See MCPHERSON, supra note 279, at 500 (noting confusing aspects of the Second
Confiscation Act and the requirement of “in rem proceedings by district courts that were of course
not functioning in the rebellious states”); cf. FONER, supra note 349, at 215 (“For most property, [the
Act] established a cumbersome judicial process that helps to explain why little land was actually
seized and sold under its provisions.”); SIDDALI, supra note 361, at 238 (“The confiscation bill that
finally emerged was neither sweeping nor enforceable . . . . [But] if the law had not been hobbled by
its own internal inconsistencies, it might have affected the lives and property of a large majority of
southerners.”).
364 See ERIC L. MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION 141-52 (1960)
(summarizing Johnson’s four pardon proclamations, which gradually expanded in scope until, in
1868, he granted amnesty for treason to all).
365 JOHN SYRETT, THE CIVIL WAR CONFISCATION ACTS: FAILING TO RECONSTRUCT
THE SOUTH 55 (2005).
2024] The Sweep and Force of Section Three 699
to make the first and second confiscation acts work.”366 And the Act’s section
authorizing limited military emancipation section was rapidly overtaken—
superseded in practical effect—by President Lincoln’s far more
comprehensive Emancipation Proclamation, issued pursuant to his
constitutional Commander-in-Chief power.
But in some ways, the lack of enforcement cases is beside our point here,
which concerns the Act’s prominence in national discussions and its pervasive
use of terms, phrases, and concepts (i.e., “rebellion,” “insurrection,” “engage
in,” and “aid or comfort”) that would reappear in only slightly different form
in Section Three of the Fourteenth Amendment. Like the Ironclad Oath, the
Second Confiscation Act employed terminology nearly identical to that
employed in Section Three of the Fourteenth Amendment. The usage of the
terms in this landmark legislation, we think, helps explicate the meaning, in
public legal context, of the language in the amendment. In the context of
1860s public legal usage, engaging in or giving aid or comfort to rebellion and
insurrection extended to a broad range of activity advancing or furthering
efforts to unlawfully upend the lawful operation of the U.S. constitutional
regime. This strongly supports the conclusion that Section Three’s terms can
fairly be read quite expansively, as embracing a broad range of conduct
directed against the authority of government under the Constitution.
c. The Supreme Court’s Decision in The Prize Cases
The most important constitutional decision of the U.S. Supreme Court
during the Civil War was The Prize Cases.367 There, the majority upheld the
constitutionality of Lincoln’s unilateral military order, made very early in the
Civil War, imposing a blockade on Southern ports.368 In a truly landmark
decision, the Supreme Court held that the President’s war powers (including
the power to impose a blockade) were triggered immediately, as soon as the
South’s rebellion took the form of organized military resistance to the
authority of the U.S. government.369 The President’s power to wage civil war
against rebel forces derived from his delegated statutory power to employ
force to suppress rebellion, the Court held.370 A congressional declaration of
war was neither a prerequisite nor legally appropriate for this type of use of
force: “This greatest of civil wars was not gradually developed by popular
commotion, tumultuous assemblies, or local unorganized insurrections” but
366 Id. at 72; see JAMES G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 288-
92 (1926) (describing minimal enforcement of the Second Confiscation Act).
367 67 U.S. (2 Black) 635 (1863).
368 Id. at 636.
369 See id. at 666-67.
370 See id. at 647.
700 University of Pennsylvania Law Review [Vol. 172: 605
“sprung forth suddenly . . . in the full panoply of war. The President was
bound to meet it in the shape it presented itself, without waiting for Congress
to baptize it with a name.”371
The Court’s decision in The Prize Cases is today regarded as the leading
judicial exposition of the Constitution’s allocation of war powers.372 At the
time, the case had other hugely consequential implications. The principles set
forth in the decision essentially endorsed in advance (but of course without
addressing the question directly) Lincoln’s constitutional justification for the
Emancipation Proclamation, which he had issued earlier that year.373 The
decision of The Prize Cases was a very big deal indeed.
Of special interest for our purposes is the Court’s usage and explanation—
in a highly prominent legal context—of the terms insurrection and rebellion,
and their relationship to war and the war powers of the national government.
“Insurrection against a government may or may not culminate in an organized
rebellion, but a civil war always begins by insurrection against the lawful
authority of the Government,” the majority said.374 A civil war “becomes such
by its accidents—the number, power, and organization of the persons who
originate and carry it on.”375 Where a rebellion has come to possess certain
military characteristics, the “party in rebellion” might come to be treated as a
belligerent for law-of-war purposes, even though a domestic rebellion stands
on different constitutional legal ground than war with a foreign nation. “It is
not the less a civil war, with belligerent parties in hostile array, because it may
be called an ‘insurrection’ by one side, and the insurgents be considered as
rebels or traitors.”376
In a nutshell: insurrection or rebellion were forms of active resistance to
the lawful authority of the government. An insurrection might be something
short of outright rebellion. But an insurrection against government authority
sometimes grows into full-on “rebellion.” A rebellion, in turn, need not take
the form of civil war in order to be a rebellion. But sometimes it does. At all
events, rebellion seems its own distinct, more general legal concept of
repudiation or attempted overthrow of the lawful constitutional regime by
unlawful means.
371 Id. at 668-69.
372 See generally, e.g., Stephen I. Vladeck, Note, Emergency Power and the Militia Acts, 114 YALE
L.J. 149, 177-80 (2004).
373 See Paulsen, The Emancipation Proclamation and the Commander in Chief Power, supra 315, at
814-23.
374 The Prize Cases, 67 U.S. (2 Black) at 666 (emphasis added).
375 Id.
376 Id. at 669 (emphasis added).
2024] The Sweep and Force of Section Three 701
The Prize Cases also held that persons engaged in insurrection or rebellion
could be treated as “enemies” (as well as traitors) for legal purposes.377 Further,
the war power, such as imposition of a blockade, could lawfully affect the legal
property rights of persons engaged in “commerce” that “supplies” rebels or
insurrectionists—and could do so irrespective of the supposed loyalties of the
property owner.378 Even “neutral” powers’ shipping could be seized when it
violated a blockade: “Whether property be liable to capture as enemies’
property does not in any manner depend on the personal allegiance of the
owner. It is the illegal traffic that stamps it as “enemies’ property.”379
The Prize Cases’ treatment of the concepts of insurrection and rebellion,
of who constituted “enemies,” and of what actions constituted support for
rebellion would have been very much part of the legal culture of the day. It
provides important legal background as to how these terms would have been
understood when Section Three of the Fourteenth Amendment was drafted
just a few years later. Insurrection and rebellion involve varying degrees of
concerted resistance to “the lawful authority of the Government,” with
insurrection being the arguably somewhat lesser form and rebellion the
somewhat greater. A rebellion or insurrection need not involve acts
tantamount to levying war. (War is sometimes a feature of rebellion but does
not define it.) The Civil War was an outgrowth of insurrection or rebellion.
But the fundamental act of rebellion remains the attempt to displace the
lawful authority of government by unlawful means. And those who give
material assistance to the enemy may also suffer legal consequences.
We find the overall evidence of prominent 1860s political and legal usage
of the same concepts and language as would soon be employed by Section
Three—“insurrection,” “rebellion,” and what it meant to “engage in” it or
provide “aid or comfort” to enemies—highly probative of Section Three’s
original public meaning. President Lincoln, Congress, and the Supreme
Court used these terms in connection with secession, forcible resistance to
the legal authority of the Constitution, and participation to varying degrees
in efforts to overthrow, subvert, or undermine the authority of lawful
377 Id. at 674.
378 Id. at 673-74.
379 Id. at 674 (quotations omitted). That said, the Court also cautioned that “enemies’
property” was “a technical phrase peculiar to prize courts, and depends upon principles of public
policy, as distinguished from the common law.” Id. at 674. The point that, in a military context,
property could be treated as “enemies’ property” irrespective of the allegiance of the owner was
important to the lawfulness of the Emancipation Proclamation. Even though Lincoln’s proclamation
purported to free the slaves of all persons in rebel-controlled territory (including slaves held by
persons claiming to be loyal to the Union), such “property” constituted a resource assisting or
supplying the rebellion and thus could be declared seized, confiscated, and liberated as a matter of
the military law of war. See Paulsen, supra 315, at 815-16. See generally JOHN FABIAN WITT,
LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY (2012).
702 University of Pennsylvania Law Review [Vol. 172: 605
government. These usages were public, prominent, legal, and essentially
undisputed within the Union. While the specific circumstances of secession
and civil war gave rise to these formulations, they did not define or limit the
terms’ meanings, which were more general. Secession, and civil war, were
species of insurrection and rebellion—organized, group resistance to the
authority of government to execute the laws and attempts to substitute an
unlawful legal regime for the lawful, constitutional one. But insurrection and
rebellion were the broader categories. It is hard to avoid the conclusion that
these 1860s Civil War usages of terms carried over into the meaning of
Section Three.
5. Other Extant Statutory Sources and Notorious Examples
a. The Insurrection Acts (and Insurrections Generally)
What about the Insurrection Acts themselves—the statutes that
comprised the statutory authority supporting Lincoln’s use of military force
to suppress secession? These statutes implemented Congress’s power “[t]o
provide for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions,” as well as its other war powers
over the army and navy.380 The central statute was enacted in 1795
(superseding a similar enactment in 1792) and was amended in 1807 and 1861.
These statutes—the conduct they were understood to reach, the forms and
degree of opposition to government authority that were believed to trigger
the statutes’ application, and the circumstances in which they had been
invoked and applied in the past—also would have been part of the background
understanding of the term “insurrection” as it came to be incorporated into
Section Three.
The 1795 Act explicitly recited that it was enacted in part to carry into
execution the power to “suppress insurrections.”381 But it also applied to repel
invasions and to enforce federal law.382 Together, these were the three
circumstances where Congress had the power to provide for calling out the
militia.383 Section One of the Act allowed the President to call forth the
militia “whenever the United States shall be invaded, or be in imminent
danger of invasion from any foreign nation or Indian tribe,” as well as, upon
request of state authorities, “in case of an insurrection in any state against the
380 U.S. CONST. art. I, § 8, cl. 15.
381 Insurrection Act, ch. 36, 1 Stat. 424 (1795).
382 Id.
383 See U.S. CONST. art. I, § 8, cl. 15 (“Congress shall have Power . . . to execute the Laws of
the Union, suppress Insurrections and repel Invasions.”).
2024] The Sweep and Force of Section Three 703
government thereof.”384 Section Two allowed the President to call forth the
militia “whenever the laws of the United States shall be opposed, or the
execution thereof obstructed, in any state, by combinations too powerful to
be suppressed by the ordinary course of judicial proceedings, or by the powers
vested in the marshals by this act.”385 Section Two encompasses insurrections
against the United States.386 (Section One specifically deals only with
insurrections against a state government.)
In 1807, Congress supplemented this power with the power to call forth
the army and navy in similar circumstances:
[I]n all cases of insurrection, or obstruction to the laws, either of the United
States, or of any individual state or territory, where it is lawful for the
President of the United States to call forth the militia for the purpose of
suppressing such insurrection, or of causing the laws to be duly executed, it
shall be lawful for him to employ, for the same purposes, such part of the land
or naval force of the United States as shall be judged necessary . . . .387
The 1807 act thus carried forward and repeated the 1795 act’s
understanding of insurrection.388
Finally, on July 29, 1861, Congress amended the trigger again to
specifically describe “rebellion.” It allowed the President to call forth the
militia:
[W]henever, by reason of unlawful obstructions, combinations, or
assemblages of persons, or rebellion against the authority of the Government
of the United States, it shall become impracticable, in the judgment of the
President of the United States, to enforce, by the ordinary course of judicial
proceedings, the laws of the United States . . . .389
The various versions of the Insurrection Act illustrate a common theme:
insurrection is more than ordinary law violation. It entails “combinations” or
“assemblages,” acting together, to “oppose[]” or “obstruct[]” the ability of
government to “execut[e]” the law, in numbers “too powerful” to be
suppressed by the usual means of law enforcement.390 Moreover, several
384 Insurrection Act, ch. 36, § 1, 1 Stat. 424 (1795).
385 Id. § 3.
386 Id. That said, because Section Two is supported by both Congress’s power to “suppress
Insurrections” and its power “to execute the Laws of the Union,” U.S. CONST. art. I, § 8, cl. 15., it
could encompass instances of law enforcement that do not rise to the level of a constitutional
“insurrection.”
387 Act of Mar. 3, 1807, ch. 39, 2 Stat. 443.
388 Id.
389 Act of July 29, 1861, ch. 25, 12 Stat. 281.
390 Id.; Insurrection Act, § 1, ch. 36, 1 Stat. 424 (1795). Myles Lynch has written that there can
exist no insurrection within the meaning of the Insurrection Acts unless the President proclaims that
704 University of Pennsylvania Law Review [Vol. 172: 605
famous instances in which this statutory authority had been (or might have
been) invoked provide additional informative context for understanding
“insurrection” or “rebellion.” Consider just a few.
The “Whiskey Rebellion” was one famous such instance. In 1794, acting
under the 1792 predecessor statute, President George Washington personally
led militia forces into western Pennsylvania to suppress a large uprising
against the government spurred by resistance to the enactment of a federal
tax on distilled spirits. Notably, the Whiskey Rebellion involved armed mobs,
organized and employed for the purposes of intimidating and threatening
federal officers, keeping them from performing their duties under the law,
and preventing others from assuming federal office (or inducing them to
renounce their authority).391
We believe the Whiskey Rebellion would have been regarded in the
nineteenth century as a classic illustration of what was meant by the terms
insurrection and rebellion.392 Indeed, by the time of the drafting of Section
Three, it seems to have been regularly referred to in precisely those terms.393
an insurrection exists and, further, that as a consequence, there can exist no insurrection or rebellion
within the meaning of Section Three of the Fourteenth Amendment unless the President proclaims
that such an insurrection exists. Lynch, supra note 5, at 168, 214-15. This seems plainly wrong. If the
Insurrection Act defines insurrection, it is defined as concerted and powerful obstruction of the
execution of the laws by government. It is no part of this definition that an insurrection exists only
if the President declares it to exist. The President’s proclamation is a statutory prerequisite to the
use of military force, not part of the definition of insurrection. The President can use force if he
proclaims that there is an insurrection. But it is not an insurrection only when he proclaims it to be
one.
391 See generally STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM 461-74
(1993) (detailing actions of organized resistance, intimidation, and threats preventing federal
officials from performing their duties—including such acts as armed mobs surrounding officials’
homes; tarring and feathering, whipping, and kidnapping of federal officials; and coercing officials
to repudiate federal law enforcement authority); see also RON CHERNOW,ALEXANDER HAMILTON
468-78 (2004) (similar); ROBERT W. COAKLEY, THE ROLE OF FEDERAL MILITARY FORCES IN
DOMESTIC DISORDERS, 1789-1878, at 43-68 (1988) (documenting the resistance and military
response).
392 To be sure, one scholar of the Acts suggests, “It may have been dubious whether the actions
of the Whiskey Rebellion farmers truly rose to the level of insurrection,” and that Washington may
have treated it as law-obstruction rather than insurrection. Vladeck, supra note 372, at 161 n.46; see
also COAKLEY, supra note 391, at 67 (suggesting that to “characterize[] the . . . affair as a ‘riot’ and
the participants as ‘rioters’” is “far closer to the truth”). But later sources called it at least an
insurrection, which goes to show that an “insurrection” in the legal sense did not necessarily have to
rise to the level of an attempt to take over or displace the government. See infra note 393.
393 For examples of historical sources referring to the Whiskey Rebellion as an insurrection
see FRANCIS WHARTON, Trials of the Western Insurgents, in STATE TRIALS OF THE UNITED STATES
DURING THEADMINISTRATIONS OF WASHINGTON AND ADAMS 102 (Philadelphia, Carey & Hart
1849); Townsend Ward, The Insurrection of the Year 1794, in the Western Counties of Pennsylvania, in 6
MEMOIRS OF THE HISTORICAL SOCIETY OF PENNSYLVANIA 117 (Philadelphia, J.B. Lippincott
1858); H.M. BRACKENRIDGE, HISTORY OF THE WESTERN INSURRECTION IN WESTERN
PENNSYLVANIA, COMMONLY CALLED THE WHISKEY INSURRECTION. 1794. (Pittsburgh, W.S.
Haven, 1859).
2024] The Sweep and Force of Section Three 705
In commonplace usage, as well as in political, and legal discourse, the
Whiskey Rebellion was a familiar illustration of an “insurrection” or
“rebellion.”
“Fries Rebellion,” in 1799, was another well-known anti-tax revolt, this
time in eastern Pennsylvania.394 President John Adams invoked the 1795 Act
to suppress the “insurrection,” as he called it,395 which had involved threats,
intimidation, and violence directed at federal tax assessors by organized bands
of persons designed to prevent the assessors from performing their duties,
and further such acts directed against the ability of the government to arrest
tax resisters.396 In at least one instance, armed opponents of the government
successfully freed prisoners from federal custody.397 The Adams
administration’s suppression of the insurrection led to widely publicized
treason prosecutions of leaders and instigators of the unlawful resistance,
including John Fries.398 As with the Whiskey Rebellion, Fries Rebellion was
characterized by concerted acts of forcible interference with federal officials’
ability to perform their duties under law.399
Nat Turner’s Rebellion, a violent slave revolt in 1831, did not lead to a
presidential invocation of the Insurrection Act.400 But it surely would have
been a classic illustration of at least an “insurrection” and perhaps even a
“rebellion”—a concerted uprising seeking forcibly to overturn the legal order
and thwart government’s ability to execute the law. A published report of
Turner’s own account called it both an insurrection,401 and in one instance, an
394 See generally COAKLEY, supra note 391, at 69-77.
395 John Adams, Proclamation Concerning the Insurrection in Pennsylvania, in 9 THE WORKS OF
JOHN ADAMS 174, 175 (Charles Francis Adams ed., Boston, Little, Brown & Co. 1854).
396 COAKLEY, supra note 391, at 70-71.
397 Id. at 71.
398 These prosecutions also occasioned a widely-cited jury charge from Circuit Justice Chase,
in which he repeatedly discussed “insurrection,” describing it as a “rising of any body of the people”
and arguing that it qualified as treason because “an insurrection to resist or prevent, by force, the
execution of any statute of the United States, has a direct tendency to dissolve all the bands of
society, to destroy all order and all laws, and also all security for the lives, liberties and property of
the citizens of the United States.” Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800); see also Ward,
supra note 393, at 458.
399 And, as with the Whiskey Rebellion, these events show that an “insurrection” in the legal
sense did not necessarily have to rise to the level of an attempt to take over or displace the
government. See also ELKINS & MCKITRICK, supra note 391, at 696-700 (questioning “whether the
circumstances really called for military force of any kind”).
400 Federal troops were used to suppress this and other slave rebellions, but “without following
the legal procedures laid down in the statutes of 1795 and 1807.” COAKLEY, supra note 391, at 92-94.
Coakley suggests that this failure to go through the Insurrection Acts reflected “the universal dread
of slave revolt[s]” at the time and the fact that “[t]he slaves had no political constituency.” Id. at 94.
401 See THOMAS R. GRAY, THE CONFESSIONS OF NAT TURNER, THE LEADER OF THE
LATE INSURRECTION IN SOUTHAMPTON, V.A. 3, 5, 21-22 (1832) (calling it an “insurrection”); see
also Thomas Wentworth Higginson, Nat Turner’s Insurrection, 8 ATL. MONTHLY 173, 184-86 (1861)
(same).
706 University of Pennsylvania Law Review [Vol. 172: 605
“open rebellion.”402 This example, too, likely would have formed part of the
background understanding of the terms insurrection or rebellion at the time
they were employed in Section Three.
More broadly, slavery and anti-slavery produced other prominent
incidents that would have been classed as small or large insurrections against
government—instances that went beyond individual instances of legal
disobedience, or of resistance to the laws themselves, and rose to the level of
active, concerted, unlawful resistance to the authority of government to
execute the laws. Specifically, revolt against the Fugitive Slave Act of 1850
sometimes took the form of slave liberation in open defiance of government
authority. For example, in Boston in 1850 and 1851, a local vigilance committee
invoked “the ‘higher law’ doctrine” to openly harbor fugitive slaves to the
point that President Millard Fillmore “threatened to send in federal
troops.”403 In Christiana, Pennsylvania in 1851, a Quaker community took up
arms (!) to defend fugitive slaves, shooting several slaveowners who had
arrived from nearby Maryland.404 This was denounced as an “act of
insurrection,” and this time President Fillmore did call out federal troops.405
In Wisconsin in 1859, resistance to federal authority became so widespread as
to prefigure the coming of the Civil War.406 And of course John Brown’s
fateful raid on Harper’s Ferry in 1859 was an explicit act of insurrection and
rebellion: a quixotic and ill-prepared attempt to foment a massive slave
insurrection and to overthrow the power of proslavery governments in the
South.407 These rebels and insurrectionists were fighting deeply unjust laws,
but there is no question that they committed many acts of insurrection,
nonetheless. Rebellion for a good cause is still rebellion.
Another prominently identified insurrection or rebellion would have been
Dorr’s Rebellion, in Rhode Island, in 1841–1842 which led to the Supreme
402 See GRAY, supra note 401, at 3 (“The late insurrection . . . is the first instance in our history
of an open rebellion of the slaves . . . .”) (emphasis added).
403 MCPHERSON, supra note 279, at 81-84; cf. COAKLEY, supra note 391, at 130-31 (noting the
Senate debate about whether this disturbance in Boston was sufficiently great to trigger the
insurrection acts).
404 See generally THOMAS P. SLAUGHTER, BLOODY DAWN: THE CHRISTIANA RIOT AND
RACIAL VIOLENCE IN THE ANTEBELLUM NORTH (1991).
405 MCPHERSON, supra note 279, at 84-85; cf. SLAUGHTER, supra note 404, at ix (“The line
between riot and rebellion was shifting during the antebellum period.”).
406 See H. ROBERT BAKER, THE RESCUE OF JOSHUA GLOVER: A FUGITIVE SLAVE, THE
CONSTITUTION, AND THECOMING OF THECIVIL WAR, at xi (2006) (describing resistance, in the
mid-to-late 1850s, in Wisconsin to federal legal authority to execute the Fugitive Slave Act).
407 MCPHERSON, supra note 279, at 202-08. Federal troops helped suppress this insurrection
and rebellion too. See COAKLEY, supra note 391, at 193 (“This intervention was, as in the case of Nat
Turner’s Rebellion, an emergency measure undertaken without the usual formalities.”).
2024] The Sweep and Force of Section Three 707
Court’s 1849 decision in Luther v. Borden.408 There, a cabal claiming to
constitute the new, lawful government of Rhode Island engaged in forcible
resistance to and sought to overturn the authority of the prior, lawful state
government (the “charter” government that traced its authority to Rhode
Island’s original colonial charter).409 The federal government did not invoke
the Insurrection Act to intervene, but it well might have. When the Supreme
Court ultimately adjudicated the case—through the vehicle of a trespass suit
by a member of one faction, against members of the other—the Court held
that the question of which government constituted the lawful government of
the state was a political question committed to the judgment of Congress and
the President and that the judiciary lacked authority to interfere with the
political branches’ actions (and inactions), which had tacitly supported the
charter government.410 The practical result of the decision—relevant to our
inquiry—was that the losing side in the struggle (the faction headed by Mr.
Dorr) legally could be treated by the prevailing side (the charter government)
as having engaged in “insurrection” against the rightful state government. The
Court noted, and seemingly accepted, the charter government’s
characterization of plaintiff and others having “assembled in arms . . . for the
purpose of overthrowing the government by military force,”411 and as having
attempted “to assert the authority of [the Dorr] government by force,”412 as
amounting to having “engaged in the insurrection.”413The Court also referred
to the government’s actions as having been designed to suppress that
“insurrection.”414 The Court appeared to equate with “insurrection” the Dorr
group’s attempts to displace or supersede the existing government and
forcibly assert its own claimed authority as a replacement.
Finally, several notable invocations of the Insurrection Act occurred
during the period of Reconstruction during the presidency of Ulysses S.
Grant.415 While these events occurred after ratification of the Fourteenth
Amendment (and thus could not have formed any part of the subjective
understanding of the drafters and ratifiers of the meaning of Section Three),
they nonetheless deserve mention as roughly contemporaneous evidence of
the objective meaning of “insurrection.” In South Carolina in 1871, Grant
twice invoked the Insurrection Act (as well as suspending habeas corpus,
408 Luther v. Borden, 48 U.S. (7 How.) 1 (1849). On Dorr’s Rebellion generally and the federal
response, see COAKLEY, supra note 391, at 119-27.
409 Luther, 48 U.S. (7 How.) at 4, 34.
410 See id. at 34, 42-44.
411 Id. at 34-37.
412 Id. at 37.
413 Id. at 46.
414 Id. at 45.
415 See The Ku Klux Klan Act of 1871, 17 Stat. 13, 14-15, §§ 3-4 (codified as amended at 10 U.S.C.
§§ 253-254).
708 University of Pennsylvania Law Review [Vol. 172: 605
among other actions) to secure order in dealing with the Ku Klux Klan.416 In
Louisiana, in 1872, a contested gubernatorial election spawned efforts by
white supremacists to overthrow the elected pro-Reconstruction Republican
government, culminating in the infamous “Colfax Massacre” of April 13, 1873,
in which a white mob attacked and massacred an estimated 150 black citizens
who were defending a courthouse in Colfax, Louisiana and, more broadly, the
Reconstruction Republican government.417 President Grant invoked the
Insurrection Act as authority to suppress the insurrection that sought to
overturn the election result.418 Later, in 1874, Grant again invoked the
Insurrection Act in Louisiana, this time to suppress a white supremacist coup
d’état that had overthrown the Republican governor by force.419 Federal
troops reinstated the lawful government, but the insurrectionists established
a rival state government that effectively controlled much of Louisiana outside
of New Orleans—the capital at the time. 420 (The conflict lasted until 1877,
when Reconstruction was abandoned by the national government and white
supremacists took full control of the state.)421 In Mississippi, in 1874, white
supremacists fabricated criminal charges against the newly elected black
sheriff, Peter Crosby, and deposed him by mob action.422 Black citizens
organizing an effort to reinstate Crosby were attacked by white mobs,
resulting in the massacre of as many as 300 black citizens. Again, President
Grant invoked the Insurrection Act and sent federal troops to reinstate
Crosby and prevent further violence. Also in 1874, in Arkansas, Grant invoked
416 Ulysses S. Grant, Proclamation No. 197, Law and Order in the State of South Carolina
(Mar. 24, 1871) (ordering members of the KKK to disperse within 20 days), reprinted in 7 A
COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 132-33 (James
D. Richardson ed., Washington, Gov’t Printing Off. 1899) [hereinafter COMPILATION 1789-1897];
Ulysses S. Grant, Proclamation No. 200, Law and Order in the State of South Carolina (Oct. 12,
1871) (ordering members of the KKK to turn over to federal officials “all arms, ammunition,
uniforms, disguises, and other means and implements” used for unlawful purposes), reprinted in id.
at 135-36. For background, see generally Michael Bahar, The Presidential Intervention Principle: The
Domestic Use of the Military and the Power of the Several States, 5 HARV. NAT’L SEC. J. 537, 613-14
(2014); LOU FALKNER WILLIAMS, THE GREAT SOUTH CAROLINA KU KLUX KLAN TRIALS, 1871-
1872, at 39-49 (1996).
417 See generally LEEANNA KEITH, THE COLFAX MASSACRE: THE UNTOLD STORY OF
BLACK POWER, WHITE TERROR, AND THE DEATH OF RECONSTRUCTION 96-103 (2008)
(detailing the events of the massacre); COAKLEY, supra note 391, at 323-24 (same).
418 See Ulysses S. Grant, Proclamation No. 213, Law and Order in the State of Louisiana (May
22, 1873) (mobilizing federal troops to quell violence in Louisiana), reprinted in COMPILATION 1789–
1897, supra note 416, at 223-24.
419 See Ulysses S. Grant, Proclamation No. 220, Law and Order in the State of Louisiana (Sept.
15, 1874) (authorizing military force to suppress the insurrection), reprinted in COMPILATION 1789–
1897, supra note 416, at 276-77.
420 See generally COAKLEY, supra note 391, at 325-30.
421 See id. at 339-41.
422 See Ulysses S. Grant, A Proclamation (Dec. 21, 1874), reprinted in COMPILATION 1789-1897,
supra note 416, at 322-23.
2024] The Sweep and Force of Section Three 709
the Insurrection Act to quell violence in an ongoing dispute over the 1872
gubernatorial election results.423 And finally in 1876, Grant invoked the
Insurrection Act to protect South Carolina’s gubernatorial election process
from white supremacist groups.424 Common to each of these instances was
the idea that concerted efforts to overturn lawful popular election results by
mob action, force, violence, and intimidation constituted “insurrection”
against government.
It is difficult to evaluate precisely the probative force of all of these
incidents, and application of federal authority to suppress “insurrections,” for
understanding Section Three. But they were unquestionably part of the
picture, contributing to the background for understanding Section Three’s
terms. They were very much part of a common historical vocabulary of
“insurrection” and “rebellion” and culpable participation in the same, familiar
to those who drafted and ratified the Fourteenth Amendment: The Whiskey
Rebellion, Shays’ Rebellion, Nat Turner’s Rebellion, Dorr’s Rebellion, the
insurrections against the Fugitive Slave Act in the 1850s, John Brown’s raid
on Harper’s Ferry in 1859—all of these incidents would have informed the
general understanding of what constitutes “insurrection or rebellion” and
what actions amount to having “engaged in” or perhaps given “aid or comfort”
to such uprisings. They all tend to support our working definitions of Section
Three’s terms. Even President Grant’s post-1868 invocations of the
Insurrection Act, to combat attempts to overthrow election results or displace
lawful state authority, may shine some interpretive light backward on Section
Three’s meaning. If an uprising of similar nature to these events were to
occur, it seems to us that it likely would have been understood as an
insurrection or rebellion within the coverage of Section Three.
b. The Congressional Exclusion Debates
As noted above, the federal Ironclad Oath adopted during the Civil War
closely paralleled the requirements and consequences of SectionThree.These
parallels are drawn more sharply by a series of cases where both houses of
Congress enforced the oath to exclude their own prospective members from
being seated. As one scholar has put it, these debates “were littered with
relevant concepts, and we can judge the Fortieth Congress’s reception to
those similar arguments as indicative of their expectations as to Section 3’s
application.”425 Moreover, several of these proceedings occurred right around
423 See id. at 272-73.
424 See id. at 369-97.
425 Lynch, supra note 5, at 196. Lynch ably and accurately describes the most important such
cases. See id. at 196-201, 207-10 (describing a series of significant decisions, including cases about the
710 University of Pennsylvania Law Review [Vol. 172: 605
the time of the proposal and ratification of the Fourteenth Amendment. In
some cases after the Fourteenth Amendment was ratified, Congress applied
Section Three itself, further demonstrating continuity and overlap with the
Ironclad Oath.
The familiar source compiling the two houses’ debates on such matters of
internal administration is Hinds’ Precedents, which we rely on here.426
First, Kentucky: In 1867, Kentucky submitted eight members-elect to the
House, seven of whom were challenged as ineligible on the ground that they
had given aid or comfort to the Confederacy during the Civil War. The
Committee on Elections concluded that “no person who has been engaged in
armed hostility to the Government of the United States, or who has given aid
and comfort to its enemies during the late rebellion,” ought to be sworn or
seated.427 A subsequent report determined that such charges needed to be
“proved by clear and satisfactory testimony” and establish more than mere
lack of active support for the Union or passive sympathy for the rebellion but
that “the claimant has by act or speech given aid or countenance to the
rebellion.”428 Such acts or speech need not rise to the level of constitutional
treason, but they “must have been so overt and public, and must have been
done or said under such circumstances, as fairly to show that they were
actually designed to, and in their nature tended to, forward the cause of the
rebellion.”429
On this standard, the committee found that four of the challenged
members-elect were not proved to have either “engaged in armed hostility to
the Government” or provided “aid or comfort” to its adversaries. These four
were admitted to their seats. Three others—John Y. Brown, John D. Young,
and Lawrence Trimble—posed more serious difficulty, however. The House
ultimately refused to seat either Brown or Young but admitted Trimble. The
facts of these cases are instructive explorations of the boundaries between free
speech and “aid or comfort.”
The House addressed the John Y. Brown case first. “This election case,”
Hinds’ reports, was “the first of its kind since the formation of the
Constitution, and recognized by the House as of the highest importance.”430
It also involved an incident of pure speech as disqualifying a member-elect
exclusion of elected officials involved in insurrectionist activity). We find little or nothing to disagree
with in his account and analysis of these disputes and are indebted to Lynch’s research and analysis.
426 See generally 1 ASHER C. HINDS, HINDS’ PRECEDENTS OF THE HOUSE OF
REPRESENTATIVES OF THE UNITED STATES, §§ 441–63 (1907) [hereinafter HINDS’
PRECEDENTS].
427 Id. § 448, at 442.
428 Id. § 448, at 443.
429 Id.
430 Id. § 449, at 445.
2024] The Sweep and Force of Section Three 711
from office: John Y. Brown had explicitly embraced and advocated violent
resistance to the Union in Kentucky. Indeed, he had gone so far as to urge the
shooting of any man who volunteered for service in Union forces. Brown’s
disqualifying conduct consisted solely of such acts of speech. The committee
relied on a letter Brown had written to the Louisville Courier in 1861 in which
Brown had gone to great lengths to affirm his support for the rebellion in
unequivocal terms:
Editors Louisville Courier:
My attention has been called to the following paragraph, which appeared in
your paper of this date:
“JOHN YOUNG BROWN’S POSITION.—This gentleman, in reply to
some searching interrogatories put to him by Governor Helm, said, in
reference to the call of the President for four regiments of volunteers to
march against the South—
‘I would not send one solitary man to aid that Government, and those
who volunteer should be shot down in their tracks.’”
This ambiguous report of my remarks has, I find, been misunderstood by
some who have read it, who construe my language to apply to the government
of the Confederate States! What I did say was this:
“Not one man or one dollar will Kentucky furnish Lincoln to aid him in
his unholy war against the South. If this northern army shall attempt to cross our
borders, we will resist it unto the death; and if one man shall be found in our
Commonwealth to volunteer to join them he ought and I believe will be shot
down before he leaves the State.”
This was not said in reply to any question propounded by ex-Governor
Helm, as you have stated, and is no more than I frequently uttered public and
privately prior to my debate with him.
Respectfully,
John Young Brown.431
The House concluded, on the strength of this letter alone, that Brown had
supported the rebellion and therefore voted to exclude him. Brown’s speech,
more specifically the letter, satisfied the standard. The facts, “proved by clear
and satisfactory testimony,” showed that Brown had, by an “act or speech . . .
overt and public . . . done or said under such circumstances, as fairly to show
that they were actually designed to, and in their nature tended to, forward the
cause of the rebellion”.432This became a precedent for the House’s subsequent
actions in other cases.
431 Id. § 449, at 445.
432 Id. § 448, at 443.
712 University of Pennsylvania Law Review [Vol. 172: 605
Subsequently, in March 1868, the House excluded John D. Young under
this standard. Young’s case also involved numerous expressions of support
and sympathy for the South, and the committee explicitly took the position
“that ‘aid and comfort’ may be given to an enemy by words of encouragement, or the
expression of an opinion” by a person (like Young, a county judge) in an
“influential position.”433 Ultimately, Young’s case was overdetermined. There
was also testimony that Young had provided material assistance to
Confederate troops, by giving them food and provisions and assisting in the
capture by Confederate troops of a Union soldier. According to the
committee, Young’s “expressions and admissions” of sympathy for the enemy,
“taken in connection with the open acts of ‘aid and comfort to the enemies of
the United States,’” established that he could not “‘honestly and truly take
the oath,’”434 and the full House agreed.
The contrasting case of Lawrence Trimble, however, showed that mere
political opposition did not establish disloyalty. Aside from some overly
vague allegations that he had traded with the enemy, the core of the case
against Trimble were his political speeches. Trimble had been the Union
candidate for Congress in 1861 and “made Union speeches in that canvass
throughout the district.” Trimble opposed Lincoln’s war policies after the
Emancipation Proclamation, asserting that the North was waging “an
abolition war” and reportedly was “opposed to voting any more men or money
to aid in carrying it on.” These views and statements, however, were not
materially different from other members’ statements in Congress opposing
the administration’s policy. The committee (and House) considered Trimble’s
“loyalty unquestioned” and found no case for disqualifying him.435
Next consider Tennessee: Tennessee supplied two interesting
membership cases, one in the House and one in the Senate. Both involved
undoubtedly pro-Union men who nonetheless had held state office under
Tennessee’s secessionist regime and sworn oaths under it, while seemingly
using their positions to support Union interests and resist the secession
government. This presented a distinct problem under the Ironclad Oath,
which required its swearer to disaffirm that he had ever accepted or exercised
office under a pretended government hostile to the United States. What to
do? In each case—Senator-elect David Patterson and Representative-elect
R.R. Butler—the respective house ultimately admitted the applicant to his
433 Id. § 451, at 452 (quoting H.R. REP. NO. 40-29, at 2 (1868)) (emphasis added).
434 Id. § 451, at 452 (quoting H.R. REP. NO. 40-29, at 6 (1868)) (emphasis added).
435 Id. § 453, at 459.
2024] The Sweep and Force of Section Three 713
seat and permitted him to take a modified oath omitting the never-heldoffice-under-a-hostile-regime sentence.436
A potentially broad understanding of “aid or comfort” also surfaced in the
exclusion of Maryland Senator-elect Philip Thomas in 1867.437 What had
Thomas done to support the South in its rebellion? Apparently, he had
permitted his minor son, a member of his household, to join the Confederate
army, and given his son $100 on the way out the door.438 The Senate debated
whether Thomas had done anything more by way of counsel or
encouragement of his son’s taking up arms against the United States, and it
is not clear how the senators evaluated such evidence. Some seemed to have
thought Thomas’s treatment of his son disqualifying. Others focused instead
on allegations that Thomas had resigned as President Buchanan’s Treasury
Secretary because he disagreed with the President’s decision to send federal
reinforcements to Charleston Harbor.439
Either theory of Thomas’s exclusion suggests that “aid or comfort” to
rebellion was understood to sweep broadly and possibly include conduct of a
somewhat more passive or quiescent nature—allowing one’s son to become a
rebel soldier, under circumstances where such permission (and financial
assistance) might have been withheld; opposing, or resisting, measures to
suppress insurrection and defend national institutions and personnel, and
resigning office in protest against such measures.
Cases like these continued in the House and Senate after Section Three
of the Fourteenth Amendment had taken effect. By this point, the basic
principles were more established, and the cases were sometimes more
factbound or less illuminating, but they further confirm the continuity
between Section Three and the Ironclad Oath, and illustrate the
understanding of Section Three very shortly after its adoption.
To recount them very briefly: In 1868, John Christy had received the most
votes for Congress in Georgia’s sixth district, but the House committee found
that Christy, “by his own admission, had given ‘aid, countenance, counsel, and
436 See id. §§ 453–55, at 459-65 (omitting from the oath the words: “That I have neither sought
nor accepted, nor attempted to exercise, the functions of any office whatever under any authority or
pretended authority in hostility to the United States.”). In Butler’s case, two-thirds of both houses
voted him amnesty. Id. § 455, at 464. In Patterson’s case, the Senate tried to pass a bill altering the
oath for Patterson, but the House tabled it. Id. § 453, at 461. But perhaps that is okay, if application
of the Ironclad Oath, to members of Congress, is a function of each house’s separate power to make
rules governing its proceedings. See U.S. CONST. art. I, § 5, cl. 1.
437 See generally HINDS’ PRECEDENTS, supra note 426, §§ 457–58, at 466-70.
438 Id. § 458, at 469-70.
439 See id. § 459, at 470 (reporting that Senator Sumner withdrew a resolution focused on
Thomas’s son “it being urged that Mr. Thomas’s conduct as a Cabinet officer in 1860 afforded more
certain grounds for action.”); see also CONG. GLOBE, 40th Cong., 2nd Sess. 1261-62 (1868)
(emphasizing Thomas’s letter of resignation as a basis for his exclusion).
714 University of Pennsylvania Law Review [Vol. 172: 605
encouragement’ to persons engaged in armed hostility” against the Union and
therefore, “in accordance with the precedent in the case of John Y. Brown,”
was disqualified by the Ironclad Oath. He was not seated.440 In 1869, the
House admitted John Rice from Kentucky despite a divided House
committee’s conclusion that he was disqualified by Section Three.441 The
pages of the Congressional Globe reveal a debate about whether Rice had in
fact joined the Confederate Army, which turned on the dubious credibility of
two witnesses.442 In 1870, the House allowed Representative George Booker
of Virginia to keep his seat, despite subsequent charges that he had directly
supported the militia of the rebel government in his role as justice of the
peace. But Booker made an apparently persuasive case that he had been loyal
all along, even as he worked within the Confederacy, and as a practical matter
he had already been seated. For one reason or another, the House ultimately
voted to table the issue, leaving Booker in office.443 Also in 1870, the House
allowed Representative Lewis McKenzie of Virginia to sit, despite various
votes he had taken as a member of the Virginia House of Delegates in 1861—
votes pledging Virginia’s commitment to “unite her destiny with the
slaveholding States of the South” should attempts to reconcile differences
between North and South fail, supporting Virginia’s willingness to fight, and
to provision Virginia fighters.444 Because all of these votes occurred before
voter ratification of Virginia’s secession ordinance on May 23, 1861, and
because McKenzie remained “an outspoken Union man” after secession and
throughout the war, the House concluded he had neither engaged in rebellion
nor given it aid or comfort.445
440 HINDS’ PRECEDENTS, supra note 426, § 459, at 470-72. Interestingly, the Governor of
Georgia had concluded that Christy was disqualified under Section Three while the House
committee relied on the Ironclad Oath “independently of any question as to ineligibility under the
fourteenth amendment.” Id.
441 See id. § 460, at 472-73 (“[T]he report of the majority of the committee was overruled, and
Mr. Rice retained the seat.”).
442 See CONG. GLOBE, 41st Cong., 2nd Sess. 5443-47 (1870) (“The testimony of [the two
witnesses] Colonel Dils and [] Mr. Thornberry has been rehearsed. . . . [T]he testimony of Colonel
Dils is at variance with that of Thornberry.”). Rice had also been in the Kentucky legislature and
voted for a resolution against the coercion of the southern states. But everybody agreed this was not
enough to count as aid or comfort, because it was only in January 1861: “[N]o war exist[ed] at the
time” and it was before “the policy of the Government had been announced.” Id. at 5443 (Butler);
see also id. at 5445 (Garfield) (noting that the resolution came before the start of the war). Nor could
Rice be excluded solely because of his politics. See id. at 5446 (“[T]his man was a Democrat. That is
a political sin, but it is not a crime under the law. He is a Democrat yet. I think he is very wrong in
being that, but yet it is not a crime.”) (Logan).
443 HINDS’ PRECEDENTS, supra note 426, § 461, at 474-475.
444 Id. § 462, at 477.
445 Id.
2024] The Sweep and Force of Section Three 715
Finally, in 1871, the Senate refused to seat Senator-elect Zebulon Vance
from North Carolina.446 The exclusion of Vance was a particularly easy case.
After serving in Congress, he had led Confederate troops in battle against the
Union and then became the wartime governor of Confederate-regime North
Carolina.447 If anyone had engaged in rebellion and given aid or comfort to
the Union’s enemies, it was Vance. He was clearly barred by both Section
Three and by the Ironclad Oath. He could be seated only if Congress chose
to exercise amnesty, which it did not do until later.448
These congressional seating challenges suggest some rough lines as to
what Congress thought was “aid or comfort” to the Confederacy. On one
hand, direct material support for the rebel cause—providing supplies or
working with enemy forces—was clearly aid or comfort. On the other hand,
disfavored political beliefs and pre-war political stances were clearly not. In
between lay contested territory. But, notably, there was no bright line
protecting all speech or political activity. In some situations, speech alone
could be disqualifying. A sufficiently clear and unequivocal statement of
disloyalty in the form of proposed active resistance to Union authority or
encouragement to violence against Union forces was thought disqualifying.
Voluntarily holding confederate office or advocating resistance to the Union
also could be enough to disqualify. We do not suggest these individual
applications—many of which were contested and complicated—are strictly
binding. But they provide useful concrete evidence for how parts of Section
Three may well have been understood and thought to work.449
446 Magliocca, supra note 5, at 110.
447 See generally Richard E. Yates, Zebulon B. Vance: As War Governor of North Carolina,
1862-1865, 3 J. S. HIST. 43 (1937).
448 Vance ultimately had the last laugh. Vance was excluded from the 1872 amnesty statute
because he had served in the thirty-sixth Congress. See Act of May 22, 1872, ch. 193, 17 Stat. 142;
Vance, Zebulon Baird, BIOGRAPHICAL DIRECTORY OF THE U.S.,
https://bioguide.congress.gov/search/bio/V000021 [https://perma.cc/45E6-NTHG] (last visited
Dec. 4, 2023); cf. FRANKLIN RAY SHIRLEY, ZEBULON VANCE, TARHEEL SPOKESMAN 71, 152 n.36
(1962) (claiming that Vance had been waiting for the 1872 amnesty until his opponent Abbott had
somehow engineered the amendment to the 1872 act that excluded Vance). Congress then passed a
private bill granting him individual amnesty. Act of June 10, 1872, ch. 444, 17 Stat. 691. Thanks to
Gerard Magliocca for this source. Vance subsequently returned to the North Carolina governorship,
and then to the Senate until his death in 1894. Magliocca, supra note 5, at 111 n.126.
449 Finally, though it occurred long after this period, there has been one additional
congressional exclusion under Section Three: the 1919 exclusion of socialist newspaper editor Victor
Berger from the House. See supra notes 270–272 and accompanying text. The Berger episode of
course has no probative value about the original meaning of Section Three, since it occurred more
than 50 years after Section Three was enacted. In our view, the House’s decision was mistaken—an
overzealous reading of the law, the facts, or both.
716 University of Pennsylvania Law Review [Vol. 172: 605
6. Legislative History
There is only a little guidance to be gleaned from the legislative history
of the Fourteenth Amendment—the records of the proposing Congress’s
debates over its various provisions and of state ratification debates. The
Fourteenth Amendment’s legislative history is famously voluminous, and
Section Three—like the other “forgotten” sections of the Amendment
(Section Two and Section Four)—was much more salient to the debates then
than it is to today.450 As briefly noted above, the legislative history supports
the key propositions we advanced earlier in this article: Section Three was
designed to be general and prospective, and not limited to the situation of the
Civil War and Reconstruction. Section Three’s disqualification was seen by
proponents and opponents alike to be self-executing and automatic. And
Section Three was understood to supersede (or satisfy) prior constitutional
limitations.451
Perhaps somewhat surprisingly, however, we have found relatively few
interpretive insights about the scope of conduct triggering disqualification
under Section Three. What evidence there is generally confirms the
understanding that the provision would have sweeping consequences. Both
opponents and proponents agreed that the provision would cover a broad
range of activity supporting or assisting the South’s efforts to throw off the
authority of the Union and the Constitution. The original proposal would
have excluded all such persons from voting, not just officeholding, and would
not have been limited in its coverage to former oath-swearing federal and
state officeholders. However, the language concerning what conduct triggered
disfranchisement (and, as later revised, disqualification from officeholding)
wascarried forward throughout the discussion. Opponents of what eventually
became Section Three thought the range of what was included in disabilitytriggering conduct (that is, when one might be said to have “engaged in”
insurrection or rebellion or given “aid or comfort” to it) was hugely broad in
its reach, sweeping in nearly everybody in the rebel South—and viewed the
proposal as regrettable on account of such breadth. Significantly, proponents
of the amendment did not disagree with its opponents concerning the breadth
of the description of disability-triggering conduct. The proponents thought
such breadth appropriate, necessary, and valuable.452
As things proceeded, Congress narrowed the provision in two specific
respects. Congress backed away from complete disfranchisement to
disqualification from holding office. And relatedly, it narrowed Section Three
450 See generally GRABER, supra note 8.
451 See supra notes 14, 69, 226.
452 See generally GRABER, supra note 14.
2024] The Sweep and Force of Section Three 717
to cover only those who had sworn a prior oath of loyalty to the U.S.
Constitution as federal or state officeholders. Rather than disenfranchising
pretty much the entire white South, it would disqualify from future office
those who had held constitutional office and then rebelled.
But what did not change was the broad description of the conduct that
triggered disfranchisement (in the earlier proposal) or disqualification from
office (in the proposal eventually agreed to).453 As noted, there is not a great
deal of explication of what this conduct was, exactly. But the overall tenor of
the debates over what eventually became Section Three suggest that
all meaningful connection with, support for, or aid to the Confederacy—
officeholding, military service (whether voluntary or not), political support
or endorsement, provision of material assistance to rebellion or rebel forces—
was regarded by the proposing Congress as covered. The legislative history
of Section Three—such as it is—supports a broad understanding of the
prohibition contained in its language.
7. Early Applications of Section Three
A final set of evidence comes from the handful of cases applying Section
Three shortly after its adoption. Once again, because these examples come
after the provision was adopted, they do not provide direct evidence of its
original public meaning, but they remain informative.454 Section Three came
up in a range of procedural and institutional situations; each of these
situations further confirms Section Three’s broad substantive sweep.455
453 Congress also rejected a series of proposed amendments to Section Three that would have
narrowed or limited the conduct or persons to which the language would apply. See, e.g., CONG.
GLOBE, 39th Cong., 1st Sess. 2900 (1866) (rejecting a proposed limitation to only persons who had
sworn oaths to the Constitution since 1851); id. at 2918-21 (rejecting a proposed limitation to only
persons who had received a presidential pardon or amnesty “under the Constitution and laws”).
Republican defenders of SectionThree successfully opposed one proposed limitation to only persons
who joined the Confederacy while still holding prior office under the Constitution, arguing that an
oath to support the Constitution was permanently binding and that such a limit would indulge a
fiction that resignation from office before engaging in or assisting rebellion absolved one of any prior
duty of loyalty to the United States Constitution. See CONG. GLOBE, 39th Cong., 1st Sess. 2897-99
(1866). Republicans likewise rejected the proposed limitation to persons who had “voluntarily”
assisted or participated in rebellion, because it would raise difficult proof problems and permit
spurious claims of involuntary participation. See id. at 2918, 2921. Indeed, one senator noted that
Alexander Stephens, Vice President of the Confederacy, had testified before the Joint Committee
on Reconstruction that he “never entered into the rebellion voluntarily”! Id. at 2918 (statement of
Senator Willey).
454 See, e.g., Baude, supra note 292, at 61-62; Paulsen, The Most Dangerous Branch, supra note
292, at 293, 303.
455 Additionally, some of Congress’s application of the Ironclad Oath to its own members also
entailed the application of Section Three. See supra Section IV.A.5.b.
718 University of Pennsylvania Law Review [Vol. 172: 605
For instance, the 1867 Military Reconstruction Act—which imposed
provisional governments on the southern states until they obtained
readmission to representation in Congress—directly incorporated Section
Three of the proposed (but not yet ratified) Fourteenth Amendment as a
restriction on those governments. Persons disqualified under Section Three
could not hold office under the provisional governments, nor could they serve
in—or even vote for those who would serve in—the state’s constitutional
convention.456
Andrew Johnson’s Attorney General, Henry Stanbery, published a twopart opinion in 1867 setting forth his interpretation of the Act and thus,
indirectly, of Section Three.457 Stanberry’s opinion is explicitly slanted
toward a narrow construction of Section Three, because of his concerns that
it would be punitive and ex post facto as applied against ex-Confederates.458
Even so, Stanberry’s opinion found Section Three’s definition of what
constituted participation in rebellion to be quite broad:
All those who, in legislative or other official capacity, were engaged in the
furtherance of the common unlawful purpose, or persons who, in their
individual capacity, have done any overt act for the purpose of promoting the
rebellion, may well be said, in the meaning of this law, to have engaged in
rebellion.459
As to individuals, Stanberry also reiterated several times that any
voluntary support, even if non-violent, was covered and culpable. He found
“it to be clear, that in the sense of this law persons may have engaged in
rebellion without having actually levied war or taken arms,”460 and added that
“wherever an act is done voluntarily in aid of the rebel cause . . . it must work
disqualification under this law.”461
Subsequent cases took even broader positions. For instance, in the 1869
decision of Worthy v. Barrett, the North Carolina Supreme Court concluded
that a state sheriff was disqualified under Section Three for holding basically
the same office as a sheriff when his state was in rebellion. The court’s
reasoning on this issue was succinct but clear:
What will amount to having engaged in the rebellion?
(1st.) Holding any of these offices under the Confederate government.
456 Act of Mar. 2, 1867, ch. 153, §§ 5-6, 14 Stat. 428, 429.
457 The Reconstruction Acts, 12 Op. Att’ys Gen. 141, 182 (1867).
458 Id. at 159-60. But see supra Sections III.A–B (explaining why the constitutional ex post facto
and attainder principles do not apply to Section Three, especially as applied to new insurrections and
rebellions).
459 Id. at 161-62 (emphasis added).
460 Id. at 161.
461 Id. at 165.
2024] The Sweep and Force of Section Three 719
(2d.) Voluntarily aiding the rebellion, by personal service, or by
contributions, other than charitable, of any thing that was useful or necessary
in the Confederate service.462
That is, the North Carolina Supreme Court embraced Stanberry’s view
that almost any voluntary assistance to the rebel cause was a form of engaging
in rebellion, but also held that holding any office, even an ordinary nonmilitary office far from the front lines, was a form of engaging in rebellion
covered by Section Three.463
Shortly after this—and shortly after Chief Justice Chase’s unsound and
unfortunate decision in Griffin’s Case had held that Section Three required
congressional legislation in order to be put into operation—Congress enacted
federal procedures to directly enforce Section Three in federal court. The
1870 Enforcement Act, also known as the First Ku Klux Klan Act, authorized
district attorneys of the United States to bring quo warranto actions to
remove officials holding office “contrary to the provisions of the third section
of the fourteenth article of amendment of the Constitution” and to bring
criminal prosecutions against person who “shall hereafter knowingly accept
or hold” office in violation of Section Three.464 In proceedings brought under
both enforcement sections of the Act, in the short period between 1870 and
1872, the scope of SectionThree’s prohibition was interpreted broadly. (Recall
that in 1872 Congress removed Section Three’s disqualification as to most
former rebels.)
Consider first a notable criminal prosecution under the 1870 Act. In North
Carolina again, this time in federal court, the government brought criminal
charges against Amos Powell for accepting an appointment as county sheriff
despite being covered by Section Three.465 Powell’s alleged act of rebellion
was having “furnished a substitute for himself to the Confederate army,” and
Powell’s defense was that this was involuntary, because he was about to be
involuntarily conscripted himself.466 This gave the federal court, through
Judge Hugh Lennox Bond, occasion to instruct the jury on the relevance of
voluntariness to Section Three:
462 Worthy v. Barrett, 63 N.C. 199, 203 (1869). The court also applied the Worthy rule to the
even easier case of a county attorney who “took part in th[e] rebellion by serving in the Confederate
army, voluntarily.” In re Tate, 63 N.C. 308, 309 (1869).
463 See Worthy, 63 N.C. at 200-05 (disqualifying a former county sheriff under the Confederacy
from election to the same office); In re Tate, 63 N.C. at 309 (disqualifying a former county attorney
under the Confederacy from admission into the office of Solicitor for the State). By contrast,
Stanberry had concluded that officers who “discharged official duties not incident to war, but in the
preservation of order and the administration of law, are not to be considered as thereby engaging in
rebellion.” The Reconstruction Acts, 12 Op. Att’ys Gen. 162 (1867).
464 First Ku Klux Klan Act, §§ 14-15, 16 Stat. 140, 142–43 (1870); see supra note 64.
465 United States v. Powell, 27 F. Cas. 605, 606 (C.C.D.N.C. 1871).
466 Id. at 607.
720 University of Pennsylvania Law Review [Vol. 172: 605
[T]he word “engage” implies, and was intended to imply, a voluntary effort
to assist the Insurrection or Rebellion, and to bring it to a successful
termination; and unless you find the defendant did that, with which he is
charged, voluntarily, and not by compulsion, he is not guilty of the
indictment. But it is not every appearance of force nor timid fear that will excuse
such actual participation in the Rebellion or Insurrection. Defendant’s
conduct must have been prompted by a well grounded fear of great bodily
harm and the result of force, which the defendant was neither able to escape
nor resist. And further, the defendant’s action must spring from his want of
sympathy with the insurrectionary movement, and not from his repugnance to
being in an army, merely.467
In other words, only great duress and pure heart would be a defense if
one’s conduct otherwise provided material support to the rebellion. Section
Three’s disqualification for having “engaged” in insurrection covered a wide
swath of voluntary participatory acts supporting or assisting rebellion, some
bordering on near-passive acquiescence.
Meanwhile, in Tennessee, the U.S. Attorney brought dozens of federal
enforcement actions, including against three members of the Tennessee
Supreme Court.468 Many of those charged were unquestionably covered by
Section Three because they had fought in the Civil War, for the Confederacy.
But some were charged for more remote participation. For instance, Thomas
Nelson, one of the Tennessee Justices, had been a unionist during the war,
and indeed at one point a prisoner of the Confederacy. His participation in
the rebellion appears to have been limited to being elected to the U.S. House
of Representatives from Tennessee, after Tennessee’s purported secession,
and traveling to Washington to attempt to represent the state in Congress.469
While these Section Three claims were never adjudicated, the fact that they
were brought in the first place is consistent with the broad sweep of Section
Three.470
The other scattered discussions of Section Three we have found are more
ambiguous, but still consistent with these broad interpretations of Section
467 Id. (emphasis added). Additionally, Powell had served as a justice of the peace under the
Confederate government, but the federal court held this not to qualify, for reasons similar to those
articulated by Attorney General Stanberry.
468 Sam D. Elliott, When the United States Attorney Sued to Remove Half the Tennessee Supreme
Court: The Quo Warranto Cases of 1870, 49 TENN. BAR J. 20, 26 (2013); see also Magliocca, supra note
5, at 109-10.
469 For one fawning account of Nelson, see OLIVER P. TEMPLE, NOTABLE MEN OF
TENNESSEE FROM 1833 TO 1875: THEIR TIMES AND THEIR CONTEMPORARIES 166-215 (1912).
470 Justice Nelson resigned while these actions were pending, and the rest of the actions were
abandoned with the passage of the 1872 Amnesty Act and a change in the federal attitude towards
Section Three. Elliott, supra note 468, at 26.
2024] The Sweep and Force of Section Three 721
Three’s substantive disqualification—broad interpretations of insurrection,
rebellion, “engaged in,” and so on. Recall, for instance, that in Griffin’s Case,
it was essentially taken as given that Judge Hugh Sheffey would be
disqualified by Section Three (if it applied) because he was “a member of the
legislature of Virginia in 1862 during the late Rebellion, and as such voted for
measures to sustain the so-called Confederate States in their war against the
United States.”471 Other cases are consistent with similarly broad
assumptions.472 We have found none that took a substantially narrower view
of Section Three, and even if some exist, they would seem to be the minority
and inferior construction.
The application of Section Three immediately after its enactment is
consistent with what the text, structure, context, and history of Section Three
all tell us: to have “engaged in insurrection or rebellion,” or given “aid or
comfort” to “enemies” embraced an incredibly broad sweep of voluntary
conduct that provides support, material assistance, or specific encouragement
to such actions.
In the end, the sum total of evidence concerning the original textual
meaning of Section Three—contemporaneous dictionary definitions; parallel
constitutional use of the same or similar language; the inferences that fairly
may be drawn from the legislative history of Section Three’s drafting; the
especially strong evidence from 1860s Civil War–era political and legal usage
of nearly the precise same terms (in prominent presidential statements,
congressional enactments and their implementation, and a landmark
Supreme Court constitutional decision employing the same terms); the
general legal backdrop of eighteenth century Insurrection Acts and the
myriad and familiar historical incidents of “insurrection” and “rebellion” to
which they applied; and, finally, early practice enforcing Section Three—
points in a consistent direction: toward a broad understanding of what
constitutes insurrection and rebellion and a remarkably broad understanding
of what types of conduct constitute engaging in or giving aid or comfort to
such movements.
B. What Prior Officeholders are Covered? What Future Offices are Barred?
The next step in the analysis of Section Three is rather more tedious than
difficult. But it is important to get it right: Holders of what prior offices or
positions are covered by Section Three’s disqualification from future office if
471 In re Griffin, 11 F. Cas. 7, 22 (C.C.D.Va. 1869).
472 See Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 873, 885–87 (1872) (assuming that
Section Three’s disqualification applied to a former public official without much discussion). There
is reason to think there were hundreds of other Section Three actions brought during this time
period, but few records of the specifics of the cases. See Magliocca, supra note 5, at 109-10.
722 University of Pennsylvania Law Review [Vol. 172: 605
they engaged in insurrection or rebellion? And from what future offices or
positions are they thereby disqualified? The text of Section Three takes up
these points in reverse order (and so we shall too) and uses slightly different
language for each category.
First, the offices or positions from which a disqualified person is barred:
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 . . . . 473
Second, the offices or positions previously held, and for which an oath to
the Constitution was taken, that trigger Section Three’s disqualification:
[W]ho, 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 . . . . 474
We begin with a few observations.
First, the language of these provisions should be read in as straightforward
and common-sense a manner as possible. The text must be read precisely, of
course, but also sensibly, naturally and in context, without artifice or
ingenious invention unwarranted by that context. Some constitutional
provisions embody precise terms of art that must be attended to. But a
reading that renders the document a “secret code” loaded with hidden
meanings discernible only by a select priesthood of illuminati is generally an
unlikely one.475 Keep this in mind as we proceed: We think readers should be
wary of any interpretation of Section Three that would impute to the text a
hyper-technical set of hidden distinctions not fully warranted by the
language. Where the simplest and most plausible explanation of minor textual
473 U.S. CONST. amend. XIV, § 3.
474 Id.
475 See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional
Interpretation: Some Modest Proposals from the Twenty-third Century, 59 ALB. L. REV. 671, 674-76 (1995)
(arguing that the “words of the Constitution” must not be treated as if “the exclusive province of an
elite cabal of high priests” who render “unintelligible” its meaning). For instance, consider the story,
passed down from Albert Gallatin to Max Farrand to William Treanor, that Gouverneur Morris
slyly attempted to replace a comma with a semicolon in Article I in order to convert the “General
Welfare” Clause from a limitation on the tax power into a freestanding power of regulation. See
William Michael Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of
the Federalist Constitution, 120 MICH. L. REV. 1, 20-24 (2021). Putting aside whether this story is
really true, see David S. Schwartz, Framing the Framer: A Commentary on Treanor’s Governeur Morris
as Dishonest Scrivener, 120 MICH. L. REV. 51, 69-73 (2022), a sensible approach to constitutional
interpretation should obviously resist such antics. Even if Morris had succeeded in smuggling in the
semicolon, that maneuver should not be decisive in interpreting the Clause. See Kesavan & Paulsen,
supra note 161, at 338-39 n.151.
2024] The Sweep and Force of Section Three 723
differences is merely stylistic or accidental variation, that explanation should
not lightly be cast aside.
Second, it appears that the list of disqualification-triggering offices tracks
closely, but not identically, the listing of positions for which the original
Constitution imposed an oath requirement. Article VI of the Constitution
dictates that “Senators and Representatives[,] . . . Members of the several
State Legislatures, and all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath or Affirmation, to
support this Constitution . . . .”476 Article II, overlapping this general oath
mandate, prescribes a specific oath for the President, who swears both that he
will “faithfully execute the Office of President of the United States” and “‘to
the best of my Ability, preserve, protect, and defend the Constitution of the
United States.’”477
Section Three’s listing of triggering positions largely tracks the substance
(and to some extent even the sequence) of the all-offices-legislativeexecutive-judicial-federal-and-state oath mandates. Section Three’s list of
positions from which a covered person is disqualified builds on this list. All
positions that trigger disqualification are disqualified-from. In addition, the
disqualified-from list includes, notably, presidential electors, who are not
listed in the Constitution as persons required to swear an oath to the
Constitution. The wording also appears designed to clarify that the ban
extends to “military” offices—including state military offices—whether or not
they would be considered “executive” offices under state law or Article VI.
Thus, in general: If the original Constitution required an oath for a position,
Section Three treats having held such a position as the trigger for Section
Three’s application. And if a person who once held any such position is
disqualified under Section Three for engaging in or supporting insurrection,
that person is barred (absent congressional relief) from holding any of those
same positions plus disqualified from being an elector for President and Vice
President. That seems to be the basic structure of the provision.
Our third observation is related. It appears to us that the text’s overall
project of office-listing, in both clauses, was designed to be reasonably
comprehensive, covering the waterfront: both taking care not to accidentally
leave out anything considered important—including everybody who was
constitutionally required to have sworn an oath—and adding positions where
476 U.S. CONST. art. VI, cl. 3.
477 U.S. CONST. art. II, § 1, cl. 8. On the Presidential Oath Clause generally, see Michael
Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257, 1260-67 (2004). On the
phrase “to the best of my Ability,” see William Baude, Signing Unconstitutional Laws, 86 IND. L.J.
303, 310 (2011).
724 University of Pennsylvania Law Review [Vol. 172: 605
appropriate, as with adding the category of electors, to the list of positions
from which a covered person is disqualified.
With these principles in mind, it appears to us that the two clauses—
describing what past positions trigger disqualification and what future
positions fall within the scope of that disqualification—can and should be
read, together, in a straightforward manner. First, as to the persons to whom
the provision applies (the second, “triggering” clause): Section Three’s
disqualification attaches to persons who previously swore an oath to support
the Constitution as:
[i] a “member” of Congress, or as
[ii] an “officer of” the United States, or as
[iii] a “member” of any State legislature, or as
[iv] an “executive or judicial officer of” any State.478
These four categories are then closely paralleled (with differences noted)
in the description of offices from which covered persons are excluded (the first
clause). Covered insurrectionists, rebels, and aid-and-comforters are
disqualified from being:
[i] “a Senator or Representative” in Congress (paralleling “member,” a
seemingly purely stylistic variation) or
[ii] an elector for President or Vice President (a new exclusion from a
position that is not an oath-required triggering position); or
[iii] holding “any office, civil or military,” “under” either federal or state
government (paralleling “officer” of the United States or of any State,
respectively, in the second and fourth triggering categories above—with the
noted clarification of the inclusion of “military” officers).
The description “civil” office, in the disqualified-from list seems designed
to embrace the categories of “executive or judicial” officer in the triggering
list. Though somewhat more awkward, we think an elected office in a state
legislature also qualifies as a “civil” office within the language and design of
Section Three, reading the word “office” in this context in an ordinary, nontechnical sense.479
478 U.S. CONST. amend. XIV, § 3 (emphasis added).
479 See Hemel, supra note 5 (setting forth arguments why state legislative offices are included
within the general catch-all category of excluded-from “civil” offices). Contra John RandolphTucker,
General Amnesty, 126 N.AM. REV. 53, 54 (1878) (arguing that “the disability imposed does not extend
to being a member of a State Legislature”). None of this, in our view, affects the question whether
a Member of Congress may properly be designated as an “Officer” to whom the duties of the office
of President may devolve upon presidential and vice-presidential death, resignation, or inability,
which turns on different considerations. Compare Akhil Reed Amar & Vikram David Amar, Is the
Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113, 121 (1995) (arguing that the
Constitution implies that members of Congress “cannot be ‘officers’ within the meaning of the
Succession Clause”), with John F. Manning, Not Proved: Some Lingering Questions About Legislative
2024] The Sweep and Force of Section Three 725
The overall result is a broad list of disqualification-triggering positions
covering essentially every major federal or state legislative, executive, and
judicial office; and a list of barred-from positions embracing all of the above
plus electors for president and vice president (and clarifying “military”). The
legislative positions in question are the relevant elected offices—members of
both state and federal legislatures,—and do not embrace unelected staff
positions. The executive positions embrace anyone in the executive branches
of federal or state government who holds an “office” within that branch.
To be sure, there might be ancillary questions concerning what federal
executive and judicial positions qualify as an “office,” held by an “officer”—as
opposed to non-officer, non-“office”-holding employees. That is: exactly how
far down the organizational chart does the list of triggering and disqualifiedfrom positions go?480 Likewise, for the federal judicial branch, Article III
judges and justices are plainly covered. Other officers in the judicial branch,
such as the clerks in Ex Parte Hennen,481 are presumably covered as well—as
are perhaps bankruptcy judges, magistrate judges and the like.482 Non-officeholding employees, again, would not be covered. And of course there might
be similar residual questions as to what state government positions constitute
state executive “office” held by “officers” (thus, perhaps, the special need for
the designation “military,” to be sure state military positions are included),
and what state judicial-branch positions constitute a judicial office. But in the
main, the description of who all is covered by Section Three and what offices
such person, if disqualified, is excluded from holding strikes us as fairly
straightforward.
The only challenge anyone has raised concerning this general description
is the argument by professors Josh Blackman and Seth Tillman that a person
who has served as President (and the same argument is made as to Vice
President), while perhaps having held an office “under” the United States, is
Succession to the Presidency, 48 STAN. L. REV. 141, 141-42 (1995) (arguing against the proposition that
the placing of“Officers” in the line of succession is unconstitutional and taking issue with the Amars’
definition).
480 Serious scholarship has explored those questions with respect to the Appointments Clause.
See, e.g., Jennifer L. Mascott, Who Are “Officers of the United States”?, 70 STAN. L. REV. 443, 500
(2018). We do not address that somewhat peripheral question here, but leave such issues for another
day.
481 38 U.S. 230, 258 (1839) (“[T]hat a clerk is one of the inferior officers contemplated by [the
Appointments Clause] cannot be questioned.”). To be clear, Hennen dealt with the clerk of court,
not what we would now call a term judicial law clerk.
482 That said, to the extent that one maintains that magistrate judges and bankruptcy judges
cannot lawfully exercise judicial power or executive power of their own, see William Baude,
Adjudication Outside Article III, 133 HARV. L. REV. 1511, 1554-56, 1574-75 (2020), one might question
whether they are truly “officers” at all. Again, we leave this issue for another day.
726 University of Pennsylvania Law Review [Vol. 172: 605
not properly classified as an “officer of” the United States.483 On this view,
disqualified persons might be barred from being President or Vice President—
the authors are somewhat non-committal about this484—but having been
President or Vice President, and engaged in insurrection or rebellion, does
not trigger disqualification of an individual from anything! On this argument,
the President and Vice President—alone among constitutional oath-takers—
are exempt from Section Three’s consequences.
We do not buy it, for many reasons. First, it adopts precisely the type of
“secret code” hidden-meanings hermeneutic we think should be viewed
extremely skeptically. Moreover, the code has a facially implausible
consequence: The Presidency is (perhaps?) a disqualified-from office but not
a disqualification-triggering office. This makes little sense.485
Second (and relatedly), the argument rather implausibly splits linguistic
hairs. No one denies that the President is an executive branch officer holding
executive office. At the risk of belaboring the obvious: Article II refers to the
“office” of President innumerable times.486 It specifies the length of term for
which the President shall “hold his Office,” certain minimum qualifications
for eligibility “to that Office,” what happens upon the President’s removal
“from Office,” or inability to discharge “the Powers and Duties of said Office,”
and the oath he shall take before entering “on the Execution of his Office.”487
If the Presidency is not an office, nothing is.
So, the argument must rely instead on the fine parsing of prepositional
phrases. The President (perhaps?) holds an “office under” the United States
but is not an “officer of” the United States.This seems to defy textual common
sense. Far more sensible and straightforward to conclude, we think, that the
officeholder holding the office of President is an officer “of ” the United States
who holds office under the authority of the United States. The minor textual
difference between the triggering clause (“officer of”) and the positionsdisqualified clause (“office under”)—a choice between prepositions—appears
483 Josh Blackman & Seth Barrett Tillman, Is The President An “Officer of the United States” For
Purposes of Section Three of the Fourteenth Amendment?, 15 N.Y.U. J.L. & LIBERTY 1, 21-24 (2021).
484 See, e.g., id. at 17, 21, 25, 53.
485 To be sure, faithful readings of the Constitution sometimes yield counterintuitive
outcomes. See Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 CONST.
COMMENT. 245, 245-46 (1997) (suggesting the possibility that a straightforward reading of the
constitutional text yields the “stupid”—and surely inadvertent—result that the Vice President would
be the presiding officer over his own impeachment trial in the Senate and that this is a result to be
rectified); Baude & Sachs, supra note 9, at 1467-68. But that does not mean we should close our eyes
to plausibility and common sense, especially when the proposed textual reading is such a stretch. See
also Paulsen, Nothing but the Text, supra note 11, at 1439-40 (noting cautions concerning use of the
“absurdity” canon to deny plain textual meaning, but noting how the canon is a sometimes useful
tool in discerning actual textual meaning.).
486 See generally U.S. CONST. art. II.
487 Id.
2024] The Sweep and Force of Section Three 727
to be of no significant substantive consequence in Section Three, much as
other minor textual variations in or among constitutional provisions often do
not support differences in meaning.488 Indeed, one far simpler and more
straightforward explanation for the Constitution’s use of “office under” and
“officer of”in SectionThree and elsewhere is that “office” and “officer”simply
take different prepositions: The Constitution uses “of ” when referring to an
officer and “under” when referring to an office.
Finally, even if a plausible argument can be constructed that the difference
might have once been thought capable of sustaining a term-of-art distinction
with respect to different prepositional phrases in the original Constitution—
surmounting the presumption against “secret code” interpretation—there is
no evidence of such a distinction in Section Three and little logic to such a
distinction either.489
Third, a variant of the Blackman–Tillman argument was explicitly made
and explicitly refuted in the congressional debates proposing Section Three.
Senator Reverdy Johnson of Maryland charged that the language employed
was defective because the offices of President and Vice President had
inadvertently been omitted from Section Three. The amendment “does not
go far enough,” Johnson averred.490 “I do not see but that any one of these
gentlemen may be elected President or Vice President of the United States,
488 For instance, consider the differently phrased, but seemingly identical enforcement clauses
of the Reconstruction Amendments. U.S. CONST. amend. XIII, § 2 (“Congress shall have power to
enforce this article by appropriate legislation.”); id. amend. XIV, § 5 (“The Congress shall have
power to enforce, by appropriate legislation, the provisions of this article.”); id. amend. XV, § 2
(“The Congress shall have power to enforce this article by appropriate legislation.”). Or consider
the Constitution’s “gratuitous (one could also say strange) punctuation marks.” Kesavan & Paulsen,
supra note 161, at 348 (giving examples).
489 One of us has previously complimented Tillman’s prior scholarship that attempts to prove
such a systematic term-of-art/secret code in the original Constitution. See generally William Baude,
Constitutional Officers: A Very Close Reading, JOTWELL (July 28, 2016)
https://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/ [https://perma.cc/A26E8FQX]. But the very pieces of evidence that are most arresting in that context also confirm extensive
linguistic drift or changing understandings in the decades after the founding. Compare id. (discussing
foreign gifts received by President Washington without disclosure to Congress), with Seth Barrett
Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr
Teachout, 107 NW. U.L. REV. COLLOQUY 180, 190 (2013) (discussing contrary practice by Presidents
Van Buren, Tyler, and Jackson); compare Baude, supra this note (discussing Treasury Secretary
Alexander Hamilton’s list of “‘every’ person holding ‘office . . . under the United States,’” which did
not include the President, Vice President, and members of Congress), with
Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated, at 20-21,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3037107 [https://perma.cc/XMG8-MVR4]
(describing a scrivener’s “condensed” version of this document likely made “circa 1830” that may
reflect a different understanding of the constitutional terms). Cf. Blackman & Tillman, supra note
483, at 24-31 (acknowledging, and arguing against, the possibility of linguistic drift). In other words,
such secret code (if any) turns out to have been written in disappearing ink.
490 CONG. GLOBE, 39th Cong., 1st Sess. 2899 (1866).
728 University of Pennsylvania Law Review [Vol. 172: 605
and why did you omit to exclude them?”491 Johnson was complaining that
these two officers should be included in Section Three and there was no good
reason to omit them. Whereupon Senator Morrill of Maine interrupted: “Let
me call the Senator’s attention to the words ‘or hold any office, civil or
military, under the United States.’”492 Senator Johnson promptly, and
somewhat sheepishly, retreated: “Perhaps I am wrong as to the exclusion from
the presidency; no doubt I am; but I was misled by noticing the special
exclusion in the case of Senators and Representatives.”493
The Blackman–Tillman argument is not quite the same, but it is the mirror
image of Johnson’s concern. Johnson’s inquiry was whether a covered
insurrectionist nonetheless might become President. The Blackman–Tillman
argument is that an insurrectionist president is not an “officer of” the United
States whose prior position triggers Section Three’s restrictions on future
office. The Johnson–Morrill colloquy does not specifically address that
reverse-image argument. But it certainly suggests that the framers of Section
Three were not parsing it as a secret code with facially implausible
consequences. The question whether Section Three applied to former
Presidents and Vice Presidents does not appear to have been raised again, by
anyone.494 Nor did anybody else involved in drafting or ratifying Section
Three suggest that the mirror-image question would be any different. Subject
to all the usual reservations about the use of legislative history (and legislative
silence) in determining textual meaning, this further confirms the more
natural reading. The only time anything like the question was raised, the
point was answered by a proponent of Section Three, clearly and
unequivocally, and the questioning Senator accepted the answer as correct.
Fourth and finally, in an additional piece of prepositional jujitsu,
Blackman and Tillman tellingly equivocate about whether the President holds
“office under” the United States as well. (If he does, Section Three stops
covered insurrectionists from becoming President, and if not, not.) Blackman
and Tillman do not deny this possibility, but they do not confirm it either. The
difficulty for them is that both answers show the implausibility of their
position.
491 Id.
492 Id.
493 Id.
494 Former President John Tyler of Virginia subsequently sided with the Confederacy and was
elected to the Confederate Congress (but died before assuming office). And former Vice President
John Breckinridge subsequently served as a Confederate general and, later, as Confederate Secretary
of War. See Blackman & Tillman, supra note 483, at 45-46. While Tyler and Breckinridge had served
in other disqualification-triggering posts, if the text really had failed to include the offices of
President and Vice President as triggering disqualification, these incidents would have shown that
to be a glaring and dangerous omission.
2024] The Sweep and Force of Section Three 729
If Blackman and Tillman maintain that the President does not hold “office
under” the United States, then they must fly in the face of the directly on
point discussion between Senators Johnson and Morrill. They must claim to
understand Section Three better than its framers. This seems unlikely. But if
they confirm that the President does hold “office under” the United States,
then they must maintain a sharp and crucial distinction between “office
under” and “officer of.” As Mark Graber has observed, this distinction was
also contradicted by Section Three’s framers:
[T]he members of the 39th Congress who framed Section 3 of the 14th
Amendment often indicated—and sometimes explicitly stated—that all
persons who held office “under the United States” were officers“of the United
States.” During the debates over Section 3, no representative or senator
alluded to the existence of a distinction between “of ” and “under”.
Representatives and senators often described the president as having an
“office under the United States” and being an “officer of the United States.”495
If a secret code was really at work, it was an extraordinarily well-kept
secret. The implausibility of both horns of the Blackman–Tillman straddle
demonstrates the implausibility of their position.
In short, the ordinary sense of the text; the structure and logic of its
provisions; the evident design to be comprehensive; the text’s many
references to the office of the Presidency as an “office”; the seeming absurdity
of the prospect of exclusion of the offices of President and Vice President;
the fact that the only legislative debate over the language discussing whether
Section Three inadvertently omitted the offices of President and Vice
President rejected any such suggestion; and the fact that no one ever
suggested that the “under/of” difference meant the presidency was not a
covered office triggering Section Three, all convince us that the natural
conclusion is the correct one: Section Three includes in its coverage, or
“triggering” language, insurrectionists who once served as President and Vice
495 Mark A. Graber, Disqualification From Office: Donald Trump v. the 39th Congress, LAWFARE
(Feb. 24, 2023, 4:40 PM), https://www.lawfaremedia.org/article/disqualification-office-donaldtrump-v-39th-congress [https://perma.cc/FAZ3-SQDU]. Professor Graber notes further that a
“unanimous House select committee report issued barely a month after Congress sent the 14th
Amendment to the states concluded that ‘a little consideration of this matter will show that ‘officers
of’ and ‘officers under’ the United States are ‘indiscriminately used in the Constitution.’” Id. In
addition, “[t]he most comprehensive study of state ratification . . . does not point to a single example
of any journalist or participant in a state convention who distinguished between ‘officers under’ and
‘officers of’ or who otherwise thought a president who participated in an insurrection could not be
disqualified under Section 3.” Id.; see also John Vlahoplus, Insurrection, Disqualification, and the
Presidency, 13 BRIT. J. AM. LEGAL STUD. (forthcoming); Lynch, supra note 5, at 158-60 (collecting
authorities supporting the same point); Magliocca, Foreground, supra note 72, at 1067 n.48 (“My
research . . . shows that President Andrew Johnson repeatedly referred to himself as “the chief
executive officer of the United States”).
730 University of Pennsylvania Law Review [Vol. 172: 605
President. And Section Three excludes disqualified insurrectionists from
subsequently holding the office of either President or Vice President.
C. The Attempted Overthrow of the 2020 Presidential Election
We come finally to the urgent question of the day: How does Section
Three apply to the events of 2020–2021—the efforts by Donald Trump (and
others) to overthrow the results of the 2020 presidential election and install
Trump as president for another term, despite his loss to Joseph Biden?
Consider the overall package of events: the dishonest attempts to set aside
valid state election results with false claims of voter fraud; the attempted
subversion of the constitutional processes for states’ selection of electors for
President and Vice President; the efforts to have the Vice President
unconstitutionally claim a power to refuse to count electoral votes certified
and submitted by several states; the efforts of Members of Congress to reject
votes lawfully cast by electors; and, finally, the fomenting and incitement of
a mob that attempted to forcibly prevent Congress and the Vice President
from counting lawfully cast votes, culminating in a violent and deadly assault
on the Capitol (and Congress and the Vice President) on January 6, 2021.
Taken as a whole, these actions represented an effort to prevent the lawful,
regular termination of President Trump’s term of office in accordance with
the Constitution. They were an attempt to unlawfully overturn or thwart the
lawful outcome of a presidential election and to install, instead, the election
loser as president. They constituted a serious attempt to overturn the
American constitutional order. Does Section Three cover this conduct? Did
these events constitute “insurrection” or “rebellion” within the meaning of
the Constitution? And if so, who all might be said to have “engaged in” that
conduct, or perhaps given “aid or comfort” to those who did? We will consider
those questions in turn.
1. The Question of Coverage: Insurrection and Rebellion
We begin with the general legal question whether the attempted
overturning of the result of the 2020 presidential election is covered by
Section Three in any respect. Do such efforts, in part or in whole, qualify as
insurrection or rebellion, disqualifying prior-oath-swearing persons who
participated in such acts from future office? In our view, based on all the
foregoing analysis, the answer is yes.
There are multiple arguments for how Section Three would apply to the
events of 2020–2021, but let us first focus on the events of January 6, 2021.496
496 In describing these events, we rely generally here and throughout on the public record
assembled by the House January 6th Committee. See FINAL REPORT, SELECT COMMITTEE TO
2024] The Sweep and Force of Section Three 731
These include first the cluster of actions taken in assembling, encouraging,
charging, and inciting an armed (in part) mob, producing the January 6, 2021
attack on the Capitol, Congress, and the Vice President. For some,
importantly including Trump, these acts would also include subsequent
deliberate inaction against the January 6 attack—by persons with duties and
capacity to act to suppress, halt, or quell the insurrection in progress—that
effectively facilitated, permitted, aided, and encouraged such insurrectionary
violence.
Overall, it seems to us to be quite clear that the specific series of events
leading up to and culminating in the January 6, 2021 attack qualifies as an
insurrection within the meaning of Section Three: “concerted, forcible
resistance to the authority of government to execute the laws in at least some
significant respect.”497 The large group of people who descended upon,
entered, and occupied the U.S. Capitol building used force to prevent a key
step in the constitutional transfer of power. The group was partially
coordinated, not merely a riot.498 Some members of the group were armed,499
and many used force and military training to breach the Capitol, to overpower
law enforcement there, and to effectuate their unlawful aim.500
Furthermore, it seems that, as a whole, the group’s goal—to the extent the
group had a specific objective in mind—was to disrupt the constitutional
transfer of power by disrupting a necessary formal step in the constitutional
process.501The invasion of the Capitol on January 6 was not simply a violation
of the law (though it was that of course). It was not merely a protest of a
particular legal measure, but a forcible prevention and disruption of it. And
it was not the disruption of just any legal measure, but of one that was itself
central to the allocation of authority under our Constitution. If this is a fair
description of what happened on January 6, then that day was something
quite different from more common acts of protest, even disruptive protest.
January 6 was an insurrection.
INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL, H.R. REP. NO.
117-663 (2022) [hereinafter “January 6 Report”]. Of course, to the extent that a potentially
disqualified officer wished to prove that this public record was inaccurate or incomplete as relevant
to them, they could attempt to do so in the relevant proceedings and to the relevant decisionmaker.
See generally supra Section II.B.
497 Supra Section IV.A.1. The fact that President Trump may have supported the insurrection,
see infra Section IV.C.2.b, does not change this. In our system, the President is not “the government,”
and especially not when Congress is carrying out a constitutionally mandated role in supervising
the transfer of power.
498 See, e.g., January 6 Report, supra note 496, at 499-502, 530-31.
499 Id. at 640-42.
500 Id. at 646-47, 651-59.
501 Id. at 502-10, 521-30.
732 University of Pennsylvania Law Review [Vol. 172: 605
To be sure, the events of January 6 itself—the attack on Congress and the
Capitol—did not remotely rival in overall magnitude, or in sheer carnage, the
experience of the U.S. Civil War, where more than 600,000 people died. Still,
considered as discrete events, it is notable that more people died, and many
more were injured, as a result of the January 6, 2021 attack on the Capitol
than died or suffered injuries as a result of the attack on Fort Sumter. The
events of January 6 match, in their essential elements—concerted resistance
to federal authority, serious attempts to frustrate execution of national law,
attacks on government officials and facilities, intimidation and violence—and
arguably exceeded in their seriousness, the events of the Whiskey Rebellion,
Fries’ Rebellion, and other more limited historical insurrections. And at all
events, it is less the magnitude or degree of disruption occasioned by an
insurrection than whether it fits within the broad meaning of Section Three,
as illuminated by evidence of its original meaning and historical
understandings. As the Prize Cases teach, not every insurrection or rebellion
ripens into a full-fledged war.502 Most of the time, the authority of the state
can nip it in the bud. But it is still an insurrection.503
Our assessment of the events of January 6, specifically, as an
“insurrection” confirms the judgment made by public authorities. An act of
Congress, which awarded “four congressional gold medals to the United
States Capitol Police and those who protected the U.S. Capitol on January 6,
2021,”504 found that the events of January 6 constituted an insurrection. The
text of the act contains an official finding: “On January 6, 2021, a mob of
insurrectionists forced its way into the U.S. Capitol building and congressional
office buildings and engaged in acts of vandalism, looting, and violently
attacked Capitol Police officers.”505 Another finding noted the historic
502 See supra Section IV.A.4.c.
503 What about other disruptive, disorderly, even violent protests during the same time period?
For instance, the many such events that erupted during the summer of 2020 in the wake of the police
killing of George Floyd? So far as we can tell, none of these were covered by Section Three. Of
course, mere protest is not insurrection. Some of these protests devolved into riots, but even a riot
is not necessarily an insurrection. And even if some of them went further, and amounted to
“concerted, forcible resistance to the authority of government to execute the laws in at least some
significant respect,” and met the definition of insurrection, they would seem to be insurrections
against the state governments, not the United States, and thus outside the scope of Section Three.
But of course, if there were any other insurrections against the United States, Section Three applies
to them all.
504 Act of Aug. 5, 2021, Pub. L. No. 117-32, 135 Stat. 322.
505 Id. § 1(2). In the state Section Three proceedings against Marjorie Taylor Greene, supra
notes 78-83 and accompanying text, the hearing officer cited this statute to conclude “Congress has
characterized the Invasion as an insurrection.” Rowan v. Greene, No. 2222-582-OSAHSECSTATE-CE-57-Beaudrot, at 9-10 (Georgia Office of State Administrative Hearings, May 6,
2022) (initial decision). The hearing officer found it unnecessary to decide for himself, however,
“[w]hether the Invasion of January 6 amounted to an insurrection.” Id. at 18.
2024] The Sweep and Force of Section Three 733
magnitude and symbolic importance of that insurrection against democracy:
“The desecration of the U.S. Capitol, which is the temple of our American
Democracy, and the violence targeting Congress are horrors that will forever
stain our Nation’s history.”506 The impeachment charges brought against
President Trump as a result of January 6 were equally explicit in concluding
that the events of January 6 constituted an insurrection. A majority of the
House of Representatives approved (232 to 197) an article of impeachment
charging then-President Trump with “incitement of insurrection” for the
events of January 6th.507 The Senate’s vote to convict Trump of this charge,
while falling short of the two-thirds majority required by the Constitution’s
impeachment process, constituted a substantial majority (57 to 43) of the
Senate endorsing the House’s charge and characterization. Majorities of both
houses of Congress thus determined—at least twice—that January 6th was an
insurrection; and in the impeachment proceedings majorities of both houses
determined that Trump was responsible for having incited that
insurrection.508
Finally, there is an additional possibility that we should see the events of
January 6, 2021 as just one part of a broader “rebellion” against constitutional
government, much like secession—actions seeking unlawfully to displace or
replace the authority of lawful constitutional government and substitute a
constitutionally unauthorized governmental authority in its stead.
We acknowledge that applying the term “rebellion” to the events of 2020–
2021 goes beyond the Civil War era dictionaries. The attempt to overturn the
2020 election was neither an “open and avowed renunciation of the authority of
the government,” as Webster would have it, nor (outside of the insurrection
of January 6) “the taking up [of] arms” or “forcible opposition” as Bouvier would
have it.509 It is not a perfect fit.
Nonetheless, consider the argument that the term “rebellion” could be
used more broadly to describe a coup d’état seeking to overthrow the
constitutional order—including a so-called “bloodless” coup d’état (where no
force is used) and a successful “self-coup” of the bloodless variety510 (where
506 Act of Aug. 5, 2021, Pub. L. No. 117-32, 135 Stat. 322, § 1(5).
507 H.R. Res. 24, 117th Cong. (2021).
508 For what it is worth, other scholars have also agreed that January 6th was an insurrection.
See Magliocca, Foreground, supra note 72, at 1067 n.44; Vlahoplus, supra note 495, at 1; Farah Peterson,
Our Constitutionalism of Force, 122 COLUM. L. REV. 1539, 1621-25 (2022); see also Hemel, How-to
Guide, supra note 5; Mark A. Graber, Treason, Insurrection, and Disqualification: From the Fugitive Slave
Act of 1850 to Jan. 6, 2021, LAWFARE (Sep. 26, 2022), https://www.lawfaremedia.org/article/treasoninsurrection-and-disqualification-fugitive-slave-act-1850-jan-6-2021 [https://perma.cc/6G26-
UKZV].
509 See supra Section IV.A.2.
510 See generally Daniel J. Hemel, Self-Coup and the Constitution, 37 CONST. COMMENT. 315
(2022).
734 University of Pennsylvania Law Review [Vol. 172: 605
the existing unlawful regime commands such force that it need not be used).
Consider the following chain of logical steps: (1) A military coup d’état
upending lawful government by use of force surely qualifies, constitutionally,
as a “rebellion.” It is literally an effort to unlawfully overthrow constitutional
government, by force; (2) It follows that a military coup d’état upending
lawful government by show or threat of force should be treated the same way,
even though force was not used; (3) A military coup d’état by the existing
regime—a “self-coup,” would seem, legally, to be the same thing—in such a
case the regime does not seize power, by show or threat of force, it retains
power by show or threat of force but is logically identical to situations #1 and
#2; (4) A “bloodless” self-coup against the lawful regime, where no force is
used because none is needed, should be treated the same as #3—indeed, it
seems fair to say that situation #4 is merely an instance of situation #3. (5)
The same self-coup attempt, but that styles itself as not renouncing but
instead as restoring or maintaining, the constitutional regime—but that in
truth seeks to overthrow or defeat that regime—logically should be treated
the same as #4. If one accepts this chain of reasoning, one might then fairly
conclude that the entirety of the course of conduct attempting dishonestly
and unlawfully to overthrow the 2020–2021 election constituted a “rebellion,”
even though this might stretch somewhat the dictionary definitions of the
term.511
Calling the events of 2020 and 2021 “insurrection” or potentially even
“rebellion” might seem to some exaggerated or hyperbolic. It is not. It is
simply being legally precise and not shying away from difficult or upsetting
consequences that flow from legal precision. We believe it is important to call
the events of 2020 and 2021 by their true legal names, their right names,
unshielded by artful euphemism.512
2. The Question of Participation: “Engaged in” and “Aid or Comfort”
This brings us to the rubber-hits-the-road question: Who all, by virtue of
their personal, voluntary conduct, can be said to have “engaged in” insurrection or
511 In similar fashion, we note that—at least at first—the purported “secession” of a state from
the Union was not universally acknowledged to be itself an act constituting “rebellion” as a legal
matter. It too did not fit perfectly the standard dictionary definition (unless and until force was used
or threatened). But the logic of the matter led Lincoln—and Congress, and the Supreme Court—to
conclude that secession, in practical and legal terms, was a species of “rebellion” and legally to be
treated as such. See supra Section IV.A.4. As set forth in the text, the same logicsuggests thatconduct
tantamount to an attempted coup d’etat (including attempting to maintain a defeated incumbent
president in office, dishonestly and unlawfully) may fairly be characterized, legally, as “insurrection
or rebellion.”
512 For the sake of completeness, we add that we think the events of 2020–2021 probably do not
rise to the level of“treason” or “levying war” against the United States, though of course it is possible
that further investigation will reveal truly treasonous conduct that is not yet on the public record.
2024] The Sweep and Force of Section Three 735
rebellion in connection with the efforts to overthrow the result of the presidential
election of 2020 and unlawfully maintain Donald Trump in office as President of
the United States? Additionally, perhaps, who might be said to have provided “aid or
comfort” to those insurrectionists and rebels?
As detailed at great—perhaps excruciating—length above, “engaged in”
under Section Three is properly understood to embrace a broad range of
willful participatory conduct. This includes, certainly, deliberate acts in the
nature of planning, promoting, encouraging, counseling, supporting,
materially assisting, advancing, or facilitating activity or plots that can fairly
be characterized, legally, as “insurrection” or “rebellion.” And, as noted, in
certain circumstances it might well include inaction supporting insurrection.
Finally, giving “aid or comfort” arguably expands the range of acts of
participation, support, and encouragement that qualify as triggering Section
Three’s disqualification.513
Who, then, engaged in such behavior?
a. General Principles Concerning Culpable Participation
Some applications of Section Three are factually straightforward. Others
might involve potentially more difficult questions of fact and proof
concerning the degree and nature of an individual’s voluntary and intentional
participation in (i) the overall plot and concrete efforts to overthrow the
election and install Trump as president re-elect; (ii) the assembly, instigation,
and incitement of a mob to attack the Capitol on January 6, 2021 to prevent
certification of the election outcome; or (iii) the willful failure to take action
to suppress the attack on Congress while it was in progress.
As discussed in Section II.B, above, judgments concerning the application
of the legal standards of Section Three to specific individuals may and must
be made by a variety of public actors—all those whose responsibilities call for
application of the Constitution’s criteria for eligibility to hold office. The
ultimate judgment will rest with different actors and institutions in different
circumstances: sometimes by state election officials; sometimes by
presidential electors; sometimes by state and federal executive branch
officials; sometimes by the respective houses of Congress or by state
legislatures. In many cases, the judgment ultimately will fall to state and
federal courts, including the U.S. Supreme Court. Everybody in such
positions is bound to apply Section Three faithfully and enforce its
commands rigorously.
That said, from our interpretation of Section Three’s broad sweep, it is
clear that at least two purported factual defenses are simply immaterial.
513 See generally supra Section IV.A.
736 University of Pennsylvania Law Review [Vol. 172: 605
First, it is no defense that an individual might claim that his or her
conduct does not constitute having engaged in or supported “insurrection” or
“rebellion” because the election was in fact stolen—that is, that Trump in fact
won the election—making it legitimate to “stop the steal.” The problem is
that the premise is simply false. Decisionmakers can and should act on the
well-settled factual understanding that Joe Biden won, and Donald Trump
lost, the election of 2020.514
Second, it is likewise no defense that an individual believed (even if
mistakenly) that the election had in fact been stolen, or believed that their
insurrectionary conduct was somehow lawful. That one may have been
deluded or deceived by disinformation does not excuse acts of insurrection or
rebellion. And as the South’s secession and the resulting Civil War illustrate,
a bogus and unsuccessful constitutional theory does not excuse them either.
In other words, there is no mistake-of-insurrection defense to Section Three.515
Acts intentionally done as part of what is in fact and in law insurrection or
rebellion are covered, irrespective of an individual’s wrong subjective belief
that no such insurrection or rebellion occurred, or the reasons for such wrong
belief.516
b. Section Three Disqualifies Donald Trump from Future Office
The most politically explosive application of Section Three to the events
of January 6, is at the same time the most straightforward. In our view, on
the basis of the public record, former President Donald J. Trump is
constitutionally disqualified from again being President (or holding any other
covered office) because of his role in the attempted overthrow of the 2020
election and the events leading to the January 6 attack.
The case for disqualification is strong. There is abundant evidence that
Trump deliberately set out to overturn the result of the 2020 presidential
514 See January 6 Report, supra note 496; see also John Danforth, Benjamin Ginsburg, Thomas
B. Griffith, David Hoppe, J. Michael Luttig, Michael W. McConnell, Theodore B. Olson & Gordon
H. Smith, Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential
Election, LOST, NOT STOLEN (July 2022), https://lostnotstolen.org [https://https://perma.cc/G3JCADET].
515 This is consistent with principles of mens rea that distinguish knowledge of what one is
doing from knowledge of the proper legal characterization of what one is doing. See, e.g.,
Counterman v. Colorado, 600 U.S. 66, 72 n.2 (2023).
516 Now what if the shoe were on the other foot? What if Trump had somehow succeeded in
unlawfully holding apparent office after January 20, 2021? Would comparable actions by Biden
supporters have constituted “insurrection”? We think not. The true facts matter. A rebellion against
lawful government is rebellion, but acts of counter-insurgency against an attempted coup d’etat are
not.
2024] The Sweep and Force of Section Three 737
election result, calling it “stolen”517 and “rigged”;518 that Trump (with the
assistance of others) pursued numerous schemes to effectuate this objective;
that among these were efforts to alter the vote counts of several states by
force, by fraud, or by intended intimidation of state election officials,519 to
pressure or persuade state legislatures and/or courts unlawfully to overturn
state election results,520 to assemble and induce others to submit bogus slates
of competing state electors,521 to persuade or pressure Congress to refuse to
count electors’ votes submitted by several states,522 and finally, to pressure the
Vice President unconstitutionally to overturn state election results in his role
of presiding over the counting of electors’ votes.523
Leading up to January 6, Trump repeatedly solicited, suborned, and
pressured Vice President Mike Pence to prevent the counting of the electoral
votes in favor of President-elect Biden.524 Not only that: Trump assembled a
large crowd to march on the Capitol and intimidate Congress and the Vice
President into complying with his wishes and thereby prevent the official
counting of the votes of electors confirming Trump’s defeat. Trump had
announced on Twitter a protest to be held on January 6, 2021: “Big protest in
D.C. on January 6th. Be there, will be wild!”525 According to testimony
amassed by the House’s January 6th Commission, Trump’s supporters
interpreted this as a call to arms, sometimes literally.526
Then there are the events of January 6 specifically.527 When January 6
arrived, Trump delivered an incendiary address at the White House Ellipse
to the crowd of supporters he had effectively summoned to oppose what he
517 Remarks by President Trump on the Election, NAT’L ARCHIVES (Nov. 5, 2020, 6:48 PM),
https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-election/
[https://perma.cc/FU6G-LS2Z].
518 See Donald J. Trump, Tweets of January 6, 2021, THE AM. PRESIDENCY PROJECT
[hereinafter “Trump Tweets”], https://www.presidency.ucsb.edu/documents/tweets-january-6-2021
[https://perma.cc/4S26-ZR9L] (last visited Dec. 4, 2023); January 6 Report, supra note 496, at 606.
And not that it matters, see supra Section IV.C.2.a, but it also appears that Trump knew that these
accusations were false. See January 6 Report, supra note 496, at 100-01, 103-04, 203, 213, 789.
519 January 6 Report, supra note 496,. at 202-203, 263-265; see also id. at 223-31.
520 Id. at 296-300.
521 Id. at 341-354.
522 Id. at 431.
523 Id. at 441-458.
524 Id.
525 Id. at 499.
526 Id. at 499-540.
527 For the quotations in this paragraph, see Transcript of Trump’s Speech at Rally Before US
Capitol Riot, ASSOCIATED PRESS (Jan. 13, 2021, 9:11 PM), https://apnews.com/article/election-2020-
joe-biden-donald-trumpcapitol-siege-media-e79eb5164613d6718e9f4502eb471f27
[https://perma.cc/BEL6-VAYF]. See also id. (“And again, most people would stand there at 9 o’clock
in the evening and say, I want to thank you very much, and they go off to some other life. But I said
something’s wrong here, something is really wrong, can have happened. And we fight. We fight like
hell, and if you don’t fight like hell, you’re not going to have a country anymore.”).
738 University of Pennsylvania Law Review [Vol. 172: 605
had been calling the “steal” of the election. Trump reiterated his false claim
that he had in fact won the election—“we won this election and we won it by
a landslide”—but that the Democrats and the media had “stolen” the election
and “rigged” a false outcome. “They rigged it like they’ve never rigged an
election before,” he charged. “Make no mistake, this election was stolen from
you, from me and from the country. . . . This [is] the most corrupt election
in the history, maybe of the world.” The crowd was “gathered together in the
heart of our nation’s capital for one very, very basic and simple reason: To
save our democracy.” Trump called on the crowd to march on the Capitol.
“Our country has had enough. We will not take it anymore and that’s what
this is all about. . . . We will stop the steal.” He urged the assembled mass of
thousands, some of whom Trump knew to be armed, to “fight like hell. And
if you don’t fight like hell you’re not going to have a country anymore.”
Some might quibble that the speech is ambiguous.528 Not all of Trump’s
rambling address called literally for the crowd to “fight.” Some of his
statements were ambiguous and at one point he remarked that the crowd
would be marching “peacefully and patriotically.”529 He never directly and
literally called for attacking the Capitol or the Vice President. Much of what
might be thought incitement to lawlessness was innuendo. Nonetheless, the
general and specific message was that the election had been stolen; that a
constitutional fraud of colossal proportions and cataclysmic consequence was
in the process of being perpetrated on the nation; that the crowd needed to
take “strong” and direct action to protect the country; and that immediate
action was necessary to prevent Vice President Pence and Congress from
ratifying the unconstitutional election of an illegitimate president and doing
irreparable damage to the nation.
These ambiguities have given rise to a debate about whether Trump’s
speech did or did not cross the strict incitement threshold of Brandenburg v.
Ohio.530 It could well be that it did cross the line: Trump had deliberately
assembled the mob of supporters, steeled them to action, knew that they were
528 See Michael Conklin, Capitol Offense: Is Donald Trump Guilty of Inciting a Riot at the Capitol?,
15 U. ST. THOMAS J.L. & PUB. POL’Y 483, 493-94 (2022); see also Alan Z. Rozenshtein & Jed
Handelsman Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Rule, 37 CONST.
COMMENT. 275, 276-79 (2022).
529 Transcript of Trump’s Speech at Rally Before US Capitol Riot, supra note 527.
530 395 U.S. 444, 447-48 (1969). Compare Conklin, supra note 528, at 493-95 (arguing that
President Trump’s speech did not satisfy the Brandenburg test), with Alexander Tsesis, Incitement to
Insurrection and the First Amendment, 57 WAKE FOREST L. REV. 971 (2022) (arguing that President
Trump’s speech satisfies the Brandenburg test and is not constitutionally protected). See also
Rozenshtein & Shugerman, supra note 528, at 277 n.4 (citing these and other sources and describing
this disagreement).
2024] The Sweep and Force of Section Three 739
ready to take immediate action, and directed them to take it.531 But the most
important thing is that the Brandenburg question is beside the point. Section
Three of the Fourteenth Amendment does not enact the legal standard of
Brandenburg v. Ohio. It enacts the standards of participation in and support
for “insurrection or rebellion,” and it qualifies, modifies, or simply satisfies
the First Amendment to the extent of any conflict between these
constitutional principles.532 First Amendment or no, the speech was part of
Trump’s participation in and support for the insurrection.
Finally, as events unfolded and the violence began, Trump maintained
silence—and indeed deliberate indifference bordering on tacit
encouragement—for what had by that time clearly become a forcible
insurrection. For three hours after learning that his supporters had attacked
the Capitol,Trump took no action to urge them to leave, despite being begged
to do so by his advisors and despite having a constitutional duty to take care
that the laws be faithfully executed.533 During this same period, while the
insurrection was in progress and after the Capitol had been breached, he again
condemned Vice President Pence for not “hav[ing] the courage to do what
should have been done to protect our Country and our Constitution,”534 a
statement that the January 6th Commission concluded was “a statement that
could only further enrage the mob” and that in fact apparently did so.535 Once
Trump finally did—after several hours and with great reluctance—direct his
supporters to leave the Capitol, they quickly dispersed.536
This culpable inaction—failing to intervene to stop an insurrection in
progress, and declining to act to arrest a violent uprising, despite having both
the capacity and responsibility to intervene—is another crucial part of
Trump’s responsibility for the January 6 insurrection. Section Three reaches
531 As Rozenshtein and Shugerman also emphasize, “Trump’s speech was accompanied by
several overt acts in furtherance of inciting an attack against the Capitol,” which they argue takes it
outside of the Brandenburg framework for that reason. Rozenshtein & Shugerman, supra note 528,
at 313.
532 See supra Section III.D (arguing that Section Three is not limited by the free speech
principles of the First Amendment).
533 January 6 Report, supra note 496, at 577-606.
534 Trump Tweets, supra note 518.
535 January 6 Report, supra note 496, at 577.
536 Even as he urged peace in a video to the insurrectionists (“we can’t play into the hands of
these people. We have to have peace”), he continued to express affection for them (“So go home.
We love you. You’re very special.”) and to reiterate that the “election . . . was stolen from us.” Donald
J. Trump, Videotaped Remarks During the Insurrection at the United States Capitol (Jan. 6, 2021), at
https://www.presidency.ucsb.edu/documents/videotaped-remarks-during-the-insurrection-theunited-states-capitol [https://perma.cc/44TT-DQ2Q]. Later that night he tweeted: “These are the
things and events that happen when a sacred landslide election victory is so unceremoniously &
viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go
home with love & in peace. Remember this day forever!” Trump Tweets, supra note 518.
740 University of Pennsylvania Law Review [Vol. 172: 605
a broad range of conduct providing meaningful assistance to or support for
acts of insurrection or rebellion performed by others, even quite passively.537
Sitting by and doing nothing—declining to intervene to stop insurrectionary
violence when one has both the duty and the ability to do so—might qualify.
Additionally, and equally important, Trump’s deliberate inaction renders his
January 6 speech much more incriminating in hindsight, because it makes it
even less plausible (if it was ever plausible) that the crowd’s reaction was all
a big mistake or misunderstanding.
Taking these events as a whole, and judging them under the standard of
Section Three, it is unquestionably fair to say that Trump “engaged in” the
January 6 insurrection through both his actions and his inaction. Officials—
administrators, judges, legislators—whose responsibilities call upon them to
apply Section Three properly and lawfully may, indeed must, take action
within their powers to preclude Trump from holding future office.
Moreover, if one accepts the broader argument that the entire campaign
to overthrow the results of the 2020 election was a form of constitutional
rebellion,538 then Trump’s complicity is even more obvious—as the leader,
motive, force, and chief perpetrator of that rebellion. Indeed, it would not be
going too far to say that Trump—having previously sworn a constitutionally
required oath to preserve, protect, and defend the Constitution of the United
States—knowingly attempted to execute what, had it succeeded, would have
amounted to a political coup d’état against the Constitution and its system of
elections and overthrow the results of the constitutional process, in order to
maintain himself in office as President contrary to law. If that itself
constitutes “rebellion” against the Constitution, Trump’s overall course of
conduct disqualifies him under Section Three, even apart from the specific
incitement to storm the Capitol on January 6.
The bottom line is that Donald Trump “engaged in” “insurrection or
rebellion” and gave “aid or comfort” to others engaging in such conduct,
within the original meaning of those terms as employed in Section Three of
the Fourteenth Amendment. If the public record is accurate, the case is not
even close. He is no longer eligible to the office of Presidency, or any other
state or federal office covered by the Constitution. All who are committed to
the Constitution should take note and say so.
c. Beyond Trump
Donald Trump is at the top of the list of Section Three disqualifications,
but the list does not end with him. The public record to date shows many
537 Cf. supra notes 437–439 and accompanying text (describing the exclusion of Senator-elect
Phillip Thomas).
538 See supra notes 509–511 and accompanying text.
2024] The Sweep and Force of Section Three 741
others who are or may be connected to either the January 6 insurrection or to
a possible broader rebellion. These include government lawyers, executive
branch officials, state officeholders, and even members of Congress. It is not
for us to definitively say who all these may be—that, as we have said, is
ultimately the responsibility and judgment of all those whose public duties
call upon them to apply the Constitution’s provisions concerning officeholder
qualifications. But to see why this responsibility is urgent, consider the
following categories.
Consider first those who marched with—who rose up with—the January
6 mob itself. Some of these folks, such as Couy Griffin of New Mexico and
Derrick Evans of West Virginia, have already been stripped of or resigned
from their state offices, as Section Three contemplates.539 They present the
easiest case of “engag[ing] in . . . insurrection.” Open and shut.
But many more cases follow. Consider those who were not part of the
uprising itself, but who provided planning, encouragement, assistance, or
other material support to those who rose up on January 6. Recent proceedings
against U.S. Representatives Biggs, Gosar, and Greene, for instance, raise
this as a serious possibility.540 Pennsylvania State Senator Doug Mastriano—
who is also a retired military officer and recent gubernatorial candidate—is
said to have transported busloads of people to what became the insurrection
and “was near the Capitol during the attack.”541 Former NewYork City Mayor
Rudolph Giuliani worked extensively to overturn the election, and likewise
riled the mob at the Ellipse on January 6.542Trump Chief of Staff (and former
legislator) Mark Meadows planned and organized parts of the January 6 rally
and apparently also “directed that [Giuliani] be allowed to speak” to the
crowd.543 These current and former officeholders are also subject to serious
challenge under Section Three.
And if one entertains the argument that the entire course of conduct to
overthrow the 2020 election was a broader rebellion,544 the list just grows
longer and longer. According to the public record: Former National Security
Advisor General Michael Flynn proposed a plan to seize voting machines in
539 See supra notes 95–103, 140–142 and accompanying text.
540 See supra notes 78–90 and accompanying text; January 6 Report, supra note 496, at 115-16,
464 (discussing Representatives Biggs and Gosar’s aid to efforts to overthrow the election).
541 January 6 Report, supra note 496, at 294. Such a claim was brought against Mastriano in
federal court but dismissed on jurisdictional grounds. See supra note 104.
542 See January 6 Report, supra note 496, at 536, 577, 581, 593-594, 608; see also Rudolph Giuliani
& John Eastman, Speech to President Trump’s Supporters on January 6, REV (Jan. 6, 2021),
https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-crally-wants-trial-by-combat [https://perma.cc/D9HC-D4PL] (calling for “trial by combat,” assuring
the crowd that the election was stolen, and defending the legality of efforts to overturn the election).
543 January 6 Report, supra note 496, at 533, 535-36.
544 See supra notes 509–511 and accompanying text.
742 University of Pennsylvania Law Review [Vol. 172: 605
states contested by Trump.545 Would-be Trump electors (some of whom held
state political offices covered by Section Three) met on December 14 even in
states where Biden’s electors had been chosen, thus laying the groundwork
for Trump’s schemes.546 Assistant Attorney General Jeffrey Clark sought to
use the power and authority of the Department of Justice to fraudulently
upend state election results.547 At least one member of Congress pressed for
the removal of more senior Department of Justice officials who opposed
Clark’s scheme, and lobbied for the appointment of Clark as Acting Attorney
General, thus providing aid or comfort.548 These officials, too, would be
subject to challenge.
We could go on, but we have made the point: All persons who betrayed
their earlier constitutional oaths by subsequently engaging in conduct (in any
of a number of forms) directed at overthrowing the result of a lawful
presidential election or supporting an attack on Congress and the Capitol
should face serious inquiry under Section Three. If they try to hold, retain,
re-obtain, or seek public office, their eligibility for such positions should be
stringently scrutinized. That inquiry should be conducted by every relevant
level of government, from state election officials, to the halls of Congress, to
the courts throughout the country. In many cases we may not yet even know
the full extent of the participation and support for acts of insurrection or
rebellion in 2020–2021. But we must find out.
Taking Section Three seriously as part of our nation’s operative, ongoing
fundamental law means that such inquiries are constitutionally necessary.
Indeed, they are constitutionally required. Taking Section Three seriously, as
binding constitutional law, means faithfully ascertaining and fearlessly
applying the objective, original meaning of its words and phrases, understood
in their historical context, whether we like that meaning or not, and tirelessly
following the logic of the text’s meaning to its fair conclusions. The upshot
of doing so, we think—the consequence of adhering to constitutional
principle—may well be the disqualification from public office of a great many
more individuals than is generally recognized. In many cases, the inquiry has
not yet begun. It is past time to start the reckoning.
CONCLUSION
Despite its long slumber, Section Three of the Fourteenth Amendment is
alive and in force. It remains fully legally operative. It is constitutionally self545 See January 6 Report, supra note 496, at 222.
546 See id. at 352-53. Several of these would-be electors previously held state and local offices,
and so are covered by Section Three.
547 See id. at 50.
548 See id. at 50 (discussing actions of Pennsylvania U.S. Representative Scott Perry).
2024] The Sweep and Force of Section Three 743
executing—that is, its command is automatically effective, directly enacted
by the Constitution itself. And it is sweeping: It sweeps over earlier and
inconsistent constitutional provisions. It sweeps in a broad range of conduct
attacking the authority of the United States. And it sweeps in a broad
category of former oath-swearing officeholders turned insurrectionists or
aiders-and-comforters of insurrection or rebellion. It is enforceable by
anybody whose duties provide occasion for judging legal eligibility for office.
Indeed, each of these actors has a duty to faithfully apply Section Three. All
possess legitimate constitutional interpretive authority to construe and apply
this constitutional prohibition, many of them independent of other actors,
including courts.
All of this has obvious, important, and immediate legal implications.
We the People should honor and vigorously enforce this important
provision of our Constitution. It should not be allowed to become a dead
letter from disuse. Its purpose, while inspired by specific historical events, is
one of general and continuing importance. The idea that men and women
who swore an oath to support the Constitution as government officials, but
who betrayed that oath by engaging in or abetting acts of insurrection or
rebellion against the United States, should be disqualified from important
positions of government power in the future (unless forgiven by
supermajorities of both houses of Congress) remains a valid, valuable, and we
think vital precept. Disqualifying candidates and officials from office is not
something to be done lightly, but Section Three was not enacted lightly.
Section Three remains part of our Constitution, part of our nation’s
fundamental law. If we honor the Constitution, we must honor Section Three
of the Fourteenth Amendment.
That means that those who possess the power and duty to apply and
enforce Section Three have a constitutional responsibility to do so, fairly but
vigorously. If state election boards or secretaries of state determine that a
candidate for state elective office or a candidate seeking to represent that state
in Congress is constitutionally disqualified from holding that office, those state
authorities should exercise the state-law powers they possess to remove
ineligible candidates from the ballot. If the House or Senate determines that
a person elected to serve as a member of such body is constitutionally
disqualified from holding such a position, they should expel or refuse to seat
that person. And if a candidate for President, or an already-elected President,
is constitutionally disqualified from office by Section Three, then that
disqualification should be enforced by state election officials, by electors, by
Congress through the impeachment process, and by the Vice-President,
cabinet, and Congress in carrying out the Twenty-Fifth Amendment. In any
and all these situations, and more, where the enforcement of Section Three’s
744 University of Pennsylvania Law Review [Vol. 172: 605
constitutional disqualifications is properly presented to the judiciary in a case
over which a court possesses jurisdiction, it is the constitutional duty,
province, and responsibility of federal and state judges to faithfully apply and
enforce Section Three according to its terms.
No official should shrink from these duties. It would be wrong—indeed,
arguably itself a breach of one’s constitutional oath of office—to abandon
one’s responsibilities of faithful interpretation, application, and enforcement
of Section Three. It is wrong to shrink on the pretext that some other officials
may or should exercise their authority—as if one’s own constitutional
obligations cease to exist if others fail to act. And it is wrong to shrink from
observing and enforcing the Constitution’s commands on the premise that
doing so might be unpopular in some quarters, or fuel political anger,
resentment, opposition, or retaliation. The Constitution is not optional, and
Section Three is not an optional part of the Constitution.
Importantly, it is also wrong to shrink from applying Section Three on
the grounds of “democracy,” whether on the premise that Section Three
should be ignored or narrowly construed because it limits who voters may
choose, or on the premise that only the voters should enforce Section Three.
It is true, as we have said, that limiting democratic choice is not something to
be done lightly, but it is something the Constitution does, and for serious
reasons.549 The Constitution cannot be overruled or disregarded by ordinary
election results. (And we note that there is particular irony in invoking
democracy to shrink from applying Section Three to the insurrectionists of
2020–2021, who refused to abide by election results and instead sought to
overthrow them.)550
Finally, we believe it would be wrong for courts to refuse to decide cases,
otherwise lawfully within their jurisdiction, concerning Section Three on the
pretense that such matters are “political questions.” Outside of certain
exercises of power to exclude, expel, or impeach and try, committed to each
House’s judgment, Section Three is enforceable by the judiciary as well as by
other officials.551 Section Three’s terms embody rules and standards,
enforceable as any other constitutional provision is enforceable. There is no
549 See Magliocca, Foreground, supra note 72, at 1067-72 (arguing at length that “the democracy
canon is a seductive but mistaken way of reading Section Three of the Fourteenth Amendment,”
and that it “elevates a background constitutional principle in a way that is inconsistent with the text,
purpose, and history of Section Three”).
550 See William Baude, The Real Enemies of Democracy, 109 CAL. L. REV. 2407, 2418-20 (2021)
(“The real enemies of democracy, at a more fundamental level, are those who try to ignore the rules
of the game after they have already lost it. This past election, that means the real enemies of
democracy were President Donald Trump and those who fought for him.”).
551 See supra note 110.
2024] The Sweep and Force of Section Three 745
freestanding judicial power to abstain from enforcing the Constitution
whenever doing so might be difficult or controversial.
We think that if these constitutional duties are taken seriously, there is a
list of candidates and officials who must face judgment under Section Three.
Former president Donald Trump is at the top of that list, but he is not the
end of it. As we have said, it is not for us to say who all is disqualified by
virtue of Section Three’s constitutional rule. That is the duty and
responsibility of many officials, administrators, legislators, and judges
throughout the country. Where they are called on to decide eligibility to
office, they a"re called on to enforce SectionThree, applying the Constitution’s
legal standard to the facts before them in a given instance. Our point is to
emphasize Section Three’s continuing force, and broad sweep.
At all events, if a President or former President of the United States; a
current or former officer of the federal executive branch; a Member or former
Member of Congress; a current or former state legislator or state executive
official; or a current or former federal or state court judge, planned,
supported, assisted, encouraged, endorsed, or aided in a material way those
who engaged in the insurrection of January 6, or otherwise knowingly and
willfully participated in a broader rebellion against the constitutional system,
such persons are constitutionally disqualified from office. In such situations,
Section Three’s constitutional disqualifications can, should, and must be
carried out."