Amendment XIV, Section 3 after Trump v. Anderson

A Civil War relic should not be unleashed without action by Congress and attention to due process.

Section Three of the Fourteenth Amendment fell into desuetude almost as soon as it was ratified. Within the past few months, however, millions of Americans, including eminent legal scholars, have convinced themselves that, in the words of the dissent in Trump v. Anderson, “Section 3 serves an important, though rarely needed, role in our democracy” and that it has never been needed more than now.

It is not at all clear, though, that it was “needed” even when it was drafted in 1866 and ratified in 1868. It played no role in suppressing rebellious embers in the former Confederate states and was swiftly perceived as unnecessary, or indeed inimical, to domestic tranquility. Between 1868 and 1872, Congress made thousands of ex-Confederates eligible to hold office. Then it vastly reduced the ranks of the excluded by restoring the eligibility of pre-war state officers. The combination of that measure with individual amnesties granted by Congress rendered Section Three effectively a dead letter. In 1873 Alexander H. Stephens, the Confederacy’s vice president, took a seat in Congress. As I wrote in an earlier post –

All of these measures were approved, as required, by super-majority votes of both Houses. In other words, within six years after Section Three’s passage by Congress and four years after its ratification, the men who had fought against the Confederacy reached a consensus that the sanction against insurrection was largely unnecessary and perhaps undesirable.

What wasn’t needed against men who waged the bloodiest war ever fought against the United States has been brought forward to preemptively rein in Donald Trump, who posts narcissistic screeds on a vanity social media site. Those who believe, or make a pretense of believing, that American democracy is so fragile that the former President can shatter it have turned to Section Three as the last defense against putative tyranny. They were bitterly disappointed when the Supreme Court ruled that states cannot remove Trump from their election ballots. Even worse, a majority of the Justices rejected the theory that Section Three is “self-executing”. Instead, they affirmatively stated, enforcement is possible only in accordance with procedures established under laws passed by Congress.

That conclusion accords with the history of Section Three. Congress passed laws to implement it, culminating in sections 14 and 15 of the Enforcement Act of 1870, which authorized federal district attorneys to bring quo warranto actions to remove ineligible office holders and made it a misdemeanor for ineligible persons to knowingly accept or exercise offices under the United States or any state. Those provisions are no longer in force. They were repealed in 1898, when Congress removed Section Three disqualifications from all those who were still subject to them.

The Trump v. Anderson dissenters expressed dissatisfaction with leaving the method of enforcing of Section Three in the hands of the legislature, because –

It forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score. The majority further holds that any legislation to enforce this provision must prescribe certain procedures “‘tailor[ed]’” to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law.

Their first suggestion, as the dissenters surely knew, directly contradicts the holding of Chief Justice Salmon Chase in Griffin’s Case (1869), the only judicial decision to squarely address the issue. Caesar Griffin was convicted of attempted murder and sentenced to two years in prison. He sought release through a habeas corpus petition founded on the the sentencing judge’s service as a member of Virginia’s Confederate legislature. Since the judge held office illegally in contravention of Section Three, the prisoner argued, the sentence that he imposed had no legal effect. Justice Chase, sitting as a Circuit judge, reached the same conclusion as the Trump v. Anderson majority: Section Three could not be enforced in the absence of an implementing statute. At the time of Griffin’s sentencing, Congress had not yet taken action to expel former Confederates from office in Virginia. (It did so two months later.)

Although Griffin’s Case was not before the Supreme Court and Justice Chase’s decision therefore is not Supreme Court precedent (the dissenters’ pretext for ignoring it), he stated at the close of his opinion, “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.” Justice Chase was, it may be pertinent to note, a staunch abolitionist throughout his public career and dissented from later Supreme Court decisions that he believed limited the force and effect of the Fourteenth Amendment.

The dissenters’ second suggested enforcement mechanism isn’t entirely clear. They seem to envision a scenario in which a government official has been found to have failed to comply with the law through some act that the presiding judge construes as tantamount to engaging in insurrection. The dissenters would then seemingly allow him to supplement whatever punishment or civil penalty the law provided with a finding that the insurrectionist was no longer eligible to hold office. Perhaps Jack Smith will make that argument if he convicts Donald Trump in his January 6th case. It would be consistent with the special counsel’s record of straining the language of statutes to and past their breaking point.

Not mentioned by the dissenters is a brainstorm that has been floating around progressive circles: that a Trump victory in November could be nullified by Congressional refusal to certify his election. The Trump v. Anderson majority appears to foreclose that avenue. The Electoral Count Act, as amended last year, doesn’t include ineligibility for office as a valid objection to certification. Congress thus has not authorized using that statute to enforce Section Three.

One wonders, though, why the dissenting Justices and all the commentators who echo the claim that “The Supreme Court Just Erased Part of the Constitution” don’t turn to a law that Congress has already passed. It has been on the statute books, in one form or another, since 1862.

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. [18 U.S.C. §2383 (emphasis added)]

In some respects, particularly those that relate most directly to Donald Trump’s actions on January 6, 2021, that statute is broader than Section Three. Instead of being limited to those who “have engaged in”, it extends to anyone who “incites, sets on foot, assists, or engages in” insurrection. There is still the question of whether the Presidency, which is, under Article II of the Constitution, a branch of the government, is an “office under the United States”. Commentators on Section Three exchange polemics over that; Trump v. Anderson avoided addressing it. Even with that caveat in the background, Jack Smith would have a far more straightforward case if he rested it on Section 2383 rather than a strained interpretation of a law that punishes “Tampering with a witness, victim, or an informant”. (The question of whether the law covers cases like Trump’s is now before the Supreme Court, although Trump himself isn’t a party to that case.)

The cause of this reticence on the part of Special Counsel Smith and Trump-skeptical commentators isn’t mysterious. They are aware, even if they won’t say it openly, that proving beyond a reasonable doubt that the events of January 6th were an “insurrection” and that Donald Trump incited it would be difficult, particularly in light of the strong protection that the Constitution affords to freedom of speech. It is far easier to contend that Trump “corruptly” attempted to obstruct, influence or impede an official proceeding, however much torture the statutory text must undergo.

Let me conclude by quoting a bit of Chief Justice Chase’s opinion in Griffin’s Case:

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 [law], 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. [emphasis added]

Jack Smith and the Trump v. Anderson dissenters aim to deprive of office without due process of law a class that has only a single member, Donald John Trump. I doubt that makes their effort more meritorious.