Gerard N. Magliocca 14A, sec. 3 Brief

I have recently spent some time trying to interpret the 14A, sec. 3 provision that disqualifies certain people from office. I covered a lot of ground. I am still working through these issues. 

Heck, I am working through constitutional issues that I have been thinking about for decades. This is surely new. It is not something that was in my vision when I wrote a long personal account about the Constitution fifteen years ago. We have gone quite afield constitutionally since then.

The issues are still in flux and their meanings are being considered and developed. We can see this in what seems to be somewhat competing (on a minor but notable point) between two people who blog about Balkanization and have written in-depth on this issue, including writing books about the legal developments of the era and key people involved. 

Gerard N. Magliocca has an amicus brief in a state case. His conclusions are generally mine on the main points. He does note that the disqualification is limited to those who take an oath to the Constitution AND who commit acts against the Constitution. But, he adds this:

This means that neither of the leading ante-bellum insurrections would have been considered Section 3 insurrections if either had occurred after 1868. The Whiskey Insurrection and Fries’s Insurrection each involved resistance to a single federal tax. Neither involved resistance to the Constitution in the way that secession did during the Civil War. This textual limit on the common law of insurrection was intentional. The point of Section 3 was not to disqualify from office all those who had engaged in insurrection of whatever kind. 

He also notes that an academic dispute over a circuit ruling by Chief Justice Chase (involving a special situation) need not confuse people. The specific dispute does not bring that up. It is good to avoid side issues. And, the actual transfer of power, the constitutionally set forth counting of votes and declaring the winner of the presidential election, is a clear case.  

GM has a section that shows how words can fall within "insurrection" and "rebellion," in part using original understanding. That is fine. My argument would be that it is not even necessary to go so far. The 1/6 Committee, for instance, had an in-depth analysis of Trump's actions (and inactions) during the events. It is not just about his words beforehand. It is about his words and actions, before, during, and after [see Georgia indictment].

Anyway. I noted in one of my discussions that wrongdoing against a state (or state constitution) might in some fashion cause issues here. I said it was a possibility and am fine with not holding to it. If we have to focus on interfering with federal constitutional acts, I am fine with that. 

Still, the idea that the Whiskey Rebellion (except perhaps some aspect of it such as directly fighting the federal militia) is not a "rebellion" for 14A, sec. 3 purposes is ... well, it seems rather wrong. My understanding is that this was regularly flagged as a way to give meaning to it. Why is interfering with funding the government, using armed forces to do so, not a form of "rebellion" here? That paragraph is really dubious.

I understand the value of cabining the provision. Consider this from Mark Graber, which I have referenced before:

An insurrection at the time Section Three was framed consisted of two or more persons resisting the implementation of any law by force, violence and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government.  

To quote the article:

Nineteenth century Americans believed that a person engaged in an insurrection by performing an act knowingly supporting an effort by more than one person to interfere with the implementation of a federal law by force or intimidation by numbers for a public purpose.

That is rather broad. I do not say this alone is determinative. If you read the second section of the Fourteenth Amendment, you can see how voting rights "any way abridged" (with a few set limits, one overridden by the 19A) is covered. No wonder the section was never enforced! The breadth of the First Amendment at times is a bit amazing. We had a case some years back dealing with credit card statements. 

A basic way to cabin the reach is for Congress to pass legislation that spells out in a more limited fashion its reach. It can also by a supermajority vote waive the disqualification except for this subset of people. Yes, have fun waiting for that to happen. The writing strike is over. Watch some television. But, seriously, it should do more in this area.

I also am not overly appalled at the possible reach though we can imagine hypos that can reach the absurd. This is not mere protest, including civil disobedience of the kind used over the years such as trespass or symbolic burning of draft cards. This is by "force" and "intimidation." Trespass might at some point reach that, I guess, but 1/6 provides a clear case given the overall conspiracy involved. We are not just talking about some people who are sitting in some congressional offices as a protest or who break into a federal facility and pour some blood on some papers symbolically.  

Still, the terms appear to be rather broad. I think the Whiskey Rebellion or some prison revolt ala Attica (make it a federal prison if necessary) is more the sensible reach of the provision. A person who interferes with a federal arrest very well might technically fall within its terms. But, "insurrection" and "rebellion" just seem to me a tad more grandiose than that.

The Whiskey Rebellion counts. The rebellion, using armed force, interfered with the federal government's collection of revenue. This was a constitutional function. It is not as central to our system of government as elections. Nonetheless, along with the regulation of commerce and a few other things, it is a fundamental reason the Constitution was ratified. 

The insertion of the quite unnecessary paragraph in the amicus brief, which seems to suggest that the provision is limited to special constitutional acts is open to abuse. I assume that he would think a similar scheme to stop the Supreme Court from opening its term or hand down some opinion would count. But, an extended -- violent -- conspiracy to interfere with the collection of taxes would not? Not a single taxpayer. A group of people with an extended concerted effort to block the collection of taxes.

That counts too.  Anyway, I welcome the continued discussion of this topic and clarity over the reach of the provision. And, the brief as a whole is worthwhile without (and it doesn't intend to be) being comprehensive.