More on 14A, sec. 3

My last entry on the third section of the Fourteenth Amendment was an attempt to address a range of issues in one post. 

Since one article spent over one hundred pages on the provision (without addressing all issues), surely it is not a comprehensive effort. Various things were not covered in much detail.  

Let us first step back and look at the amendment as a whole. After the Civil War and the prohibition of slavery and involuntary servitude [some form still allowed for those duly convicted of a crime], more was needed to truly protect republican values.  This involved equality, basic rights, and the choosing of representatives to protect them.  Meanwhile, there was no obligation to pay the debts of those who rebelled against our government.

The Fourteenth Amendment covers this ground. It protects birthright citizenship (no matter your parents' origins), rights (in a threefold way: privileges or immunities, equal protection, due process), and does so on a national level.  States could not deny rights and Congress (the fifth section, unlike the original Bill of Rights, expressly gave them power to do so) had the authority to enforce these rights.  

The second section addresses how the people were counted for purposes of determining how House congressional delegations.  The old rule counted slaves as 3/5 of a person.  Now, all blacks would be counted as one person.  Would the former Confederate states (and not just them!) abuse the privilege and still violate the voting rights of some people?  A penalty was inserted to reduce the delegation of states who did this.  

[A supporter of the 14th, sec. 3 route has previously lamented how this provision is not enforced.  The 15th Amendment soon was ratified as was other amendments to address voting discrimination.  But, the provision is quite broadly worded and covers more ground. As to the limitation to "men," the 19th Amendment overrode that limitation.]

The third section (with only a supermajority vote of both houses allowing override) carefully kept any disloyal people out of the local and federal government.  The fourth section made sure the debts of the federal government were honored, especially since the costs of the Civil War would linger on for years.  But, no debts for the other side or slaves could be honored.  It might be argued that even Confederate pensions passed in Southern states in the years after the Civil War violated this provision.  

(Mark Graber, who I cited in my last entry, recently wrote Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War, arguing the importance of the largely forgotten middle sections of the Fourteenth Amendment to the original framers.]

I would argue that the Fourteenth Amendment as a whole has not received appropriate respect in recent years.  Attempts have been made to disqualify so-called "anchor babies" or other such offensive epithets from citizenship.  National rights such as control of women's bodies are now deemed voluntary local concerns.  Voting rights are violated.  And, the strong federal power to enforce the amendment is watered down.  

The third section fits into this, including arguments that enforcing it to the fullest extent possible is quixotic.  Truly honoring constitutional provisions are long-term effort.  Did same-sex marriage come quickly?  It brings upon a black woman who became a member of Congress and spoke respecting the impeachment of President Nixon.  Rep. Barbara Jordan:

Today I am an inquisitor. An hyperbole would not be fictional and would not overstate the solemnness that I feel right now. My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.

I think part of it is that some people are wary of faith of all kinds, including constitutional faith.  But, faith is not some shallow thing about belief in fantasy sky gods.  It is a powerful thing that has concrete effects.

It is in this wider context that we should consider the third section of the Fourteenth Amendment.  Let us look at the whole thing:

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.

The provision is both broad and narrow.  It covers a range of federal and state offices (so we are not talking janitors, but notary counts, at least in New York we are considered executive officers and take an oath).  

The person has to have previously taken an oath.  The point here is the sanctity of an oath taken.  The oath to uphold the values of the Constitution, including the provision of the previous sections.  So, of the many people who took part in the 1/6 events, specifically anything that warrants disqualification, only a limited subset would be covered.  A former member of the military would be.  Any number of people, not at all.

The person has to have taken an oath that put them "under" the authority of a state or the United States [territories count here, one gathers.]  

Again, many people would not fall under this rule.  But, it is not a trivial number of people, especially as the size of state and federal governments expand.  For instance, mail personnel (at least in my experience) take an oath.  Postal workers were actually one of the few connections we at first had to the federal government before the reach expanded.  

Okay, noting a special congressional power to remove (not found for usage of pardon power). what results in the disqualification from office?  

[This section on this being disqualification, not a criminal penalty in need of a criminal conviction was edited.]

Well, wait a second.  Again, this is not a criminal penalty.  This is not crystal clear, but it would have been problematic if local juries had to find officials guilty of insurrection first in the 1860s, right?  

There were and are various means to show a person had this specific disqualification.  It is perfectly acceptable to demand some sort of fair procedure.  People are denied many things, other than a finding of legal innocence, with less than a full criminal process. 

This includes the loss of children or a finding that they committed horrible acts.   The right to an office and the ability of the people to choose them is not trivial.  But, safeguards are very well in place. 

For instance, you might think that someone would have least challenged Marjorie Taylor Greene's right to be seated given she was among a few members of Congress whose role in the 1/6 conspiracy appears stronger than most.  But, no one did. And, even if someone did, a majority vote not to seat was unlikely.  Once seated, removal is even harder.  There are a range of such safeguards.  

It is still not a jail cell.  A criminal punishment is a special thing that involves a complex strict process.  Compare this to the provision in the Thirteeenth Amendment that specifically talks about people "duly convicted."  A range of qualifications for office are in place for state and federal positions.  Unless clearly stated, they are not subject to unanimous jury findings.  I grant many seem to think otherwise here, but people thinking wrongminded things is fairly common.  

A term like "insurrection" does have a criminal-like flavor to it.  So, it is somewhat more complicated.   It should be carefully handled, more so than some dispute over where a candidate's residence really is.  A conviction very well makes things easier, yes, but even then unless it was for specifically "insurrection," people might not think it's enough.  But, the rules are not that strict; they should not be that strict.  

Okay.  Back to what is covered.  The rule:

shall have engaged in insurrection or rebellion against the same

I do not think what "the same" covers is quite clear.  The immediate clause before is "to support the Constitution of the United States."  But, the basic principle is the duty of those who swear and affirm loyalty to the Constitution while "under" state or federal authority.  Yes, you might be thinking of your Pledge of Allegiance and its reference to "under God."

It seems to me -- though this never seemed to come up -- that a person can engage in insurrection or rebellion against a state and be disqualified. I referenced a book on treason last time and there were treason trials by state governments.  John Brown himself was not tried by the United States.  

The phrase "insurrection or rebellion" seems a bit redundant, especially as applied to the Civil War.  They were "rebels" who were involved in an insurrection.  I think the terms do have a clear difference though again it is unclear when one would occur and the other would not.  

I think we can see the difference, taking our current basic understandings, when thinking of the Whiskey Rebellion.  This was a tax revolt but it was not a general attempt to overturn the government.  

I think that is more what "insurrection" implies.  If the rebels tried to establish their own tax collectors and other government functionaries, that would be an insurrection.  It would be an attempt to overturn and replace the government.  The same would apply to something like Attica, where there was an attempt to overturn control of the prison.  

Another possible example that came to mind was the occupation of Alcatraz, a federal area. It was claimed in the name of the Native Americans involved.  This seems to me a form of "insurrection" and if someone involved was also a federal official in some capacity, they could be disqualified under the terms of the provision.  I think the provision was underenforced to some extent, just as the second section has been.  

As to the reach of "engaged in," that is subject to a lot of parsing as well, but a sensible application is a reasonable one.  One need not be at an event to "engage" it or a mastermind behind a bombing can avoid being so considered by simply staying away from ground zero.   

The provision also applies to the "aid and support to enemies," which is a rather different thing.  The term "enemy" is usually legally deemed to have a special official quality so the Soviet Union was not legally our "enemy" during the Cold War for the purpose of the Treason Clause.  OTOH, there were American citizens deemed "enemy combatants." 

The details here are debatable which is not a novel thing as shown by the number of litigation found over constitutional matters.  A federal statute doesn't clear things up when the statute provides the basic thing you don't do -- it defines insurrection or rebellion as those who take part in an insurrection or rebellion!   

Here is some more analysis of "insurrection" and "rebellion" from a website providing information from federal criminal attorneys.  My attempt to differentiate clashes somewhat with this summary.  But, I think that is why many related things are in the Constitution (such as due process and equal protection): as a whole, everything tends to be covered in the end:

Similar to insurrection, the term "rebellion" is not explicitly defined. Still, in legal contexts, rebellion is generally understood as an organized, armed, and often violent resistance or opposition to established government authority or its laws.

Rebellion typically connotates a more widespread and coordinated effort than insurrection, aiming to overthrow or undermine the existing governmental structure.

The reality of the situation is that many more people who actually are charged with the specific crimes of "insurrection" and/or "rebellion" have committed such acts.  There is a variety of reasons for this, which factor into prosecution discretion in a range of contexts.  

It underlines that merely because such and such person did not get charged and convicted of the specific statutory act of "insurrection" or "rebellion," they can still warrant disqualification.  This includes because (as we have seen last time) multiple people and institutions have found the attack on the Capitol was a failed "insurrection" and these people "engaged" in it. 

If these people swore oaths to join the military or in some other governmental context, they can be disqualified.  If it is deemed appropriate, 2/3 of Congress can remove the disqualification. To the extent the provision applies to some less offensive actions (see Alcatraz), this very well might be appropriate in a variety of cases.  

And, to the extent even the worst wrongdoers should after some period of time be allowed to move on, the same could apply to even the worse cases in some situations.  I think they "moved on" too soon with respect to the Civil War, but even there, some endpoint (early in the 20th Century?) was possible.  At least in respect to the disqualification.  

(Chief Justice Edward White -- 1910-20 -- fought in the Civil War on the side of the Confederacy.  He was on the Louisana Supreme Court in 1879.)

I have bemoaned that the Third Amendment never was truly the subject of a Supreme Court ruling (a few mentioned it).  I am somewhat kidding, but do think the provision is important, and it definitely arose in such contexts as the Civil War and even as late as World War II  (in places like Alaska).   

The battle over the debt brought the fourth section of the Fourteenth Amendment its moment in the sun.  The third is up now.  

ETA: There have been some op-eds on the ongoing debate, including this one that I find dubious (the presidency debate to me is specious & the final statement was addressed last time -- baby hit me one more time!).  

But, it does address something I did not fully cover: the self-enforcing argument. As I noted, there are various state regulations about qualifications for those who run for office.  

It is dubious that this specific one (as compared to others for presidents and other offices, including age, residency, and so on) only kicks in if Congress passes enforcement regulation.  Others have noted Chief Justice Chase should not be relied on, to the extent his biased changing position on the provision really tells us much.  See, e.g., here.

What other constitutional provision has such a rule?  The reduction of House delegations pursuant to section two in one lower court opinion in the 1940s (who cares?) was deemed a political question, but the makeup of Congress specifically is involved there.  

The matter would still ultimately have to be decided when they count the electoral votes akin to seating members of Congress. And, as I emphasized, the provision does not just apply to Trump.  

Anyway, it would have been helpful if Congress passed something, but the same applies to any number of things.  

... I understand the "let the people decide sentiment," but darn, we don't even truly do that.  A majority voted against him in 2016!  

Courts decide things that greatly affect elections too. "One person, one vote" comes to mind.  Greatly changed the makeup of state legislatures.