[Note: This is the fourth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first three essays can be found here, here, and here.]
Some critics have made the argument that Part Three can not or shouldn’t be used to constitutionally disqualify an individual from workplace for having engaged in riot or rebel with out that particular person first having been charged and convicted of the statutory federal crime of riot, underneath 18 U.S.C. §2383.
Professor Michael McConnell seems to have been the primary to make this argument, in a put up on this weblog shortly after we first posted our draft article on SSRN in August, 2023. As McConnell put it:
Congress has enacted a statute, 18 U.S.C. §2383, which covers participation in rebel or riot, and which gives that these discovered responsible “shall be incapable of holding any office under the United States.” This mode of enforcement has been enacted by the entity entrusted with accountability to implement the Fourteenth Modification; it proceeds via the extraordinary course of prosecution by the chief, trial by a court docket, determination by a jury, and attraction to appellate courts, with due course of at each step. It’s vital that the Division of Justice has prosecuted tons of of individuals for his or her involvement within the January 6 incursion on the Capitol, however has not charged anybody, together with Trump, with riot underneath this or some other statute.
Others have echoed this suggestion. The Wall Road Journal in September 2023 editorialized towards making use of Part Three to disqualify Trump, saying that “[i]t is surely relevant that Mr. Trump hasn’t been charged with insurrection under 18 U.S.C. Section 2383.” Trump’s transient on the deserves within the Supreme Court docket in Trump v. Anderson asserts (pp. 38-40) that Part Three can solely be enforced following a legal conviction underneath 18 U.S.C. §2383. Not less than two amicus briefs supporting Trump make the identical declare.
With all due respect, the argument is legally meritless, prime to backside. It’s incorrect as a matter of the textual content, historical past, and construction of Part Three. But it surely is also incorrect on the small print of §2383 itself.
Start with Part Three. The textual content of Part Three nowhere accommodates or references any requirement of criminal-law conviction as a prerequisite to, or situation of, Part Three’s operation. To learn such a requirement into Part Three is to make up one thing that’s not there. Slightly, as we put it in our unique article, Part Three’s “disqualification, where triggered, just is.” It parallels the Structure’s different {qualifications} for workplace, resembling age, residency, and citizenship, none of which in fact requires a legal trial.
The historical past of Part Three nowhere displays a necessity for legal trials. Certainly, Part Three was enacted as an various to widespread prosecutions for treason or different crimes – prosecutions that have been thought each virtually troublesome and needlessly punitive. After Part Three was enacted it instantly disqualified many former Accomplice officers from holding workplace; none of those individuals was ever criminally prosecuted (not to mention convicted) of the federal crime of riot, although the offense was on the books on the time. Early reported state judicial instances holding former Accomplice rebels disqualified from workplace didn’t require or counsel the necessity for prior criminal-law conviction. And even Chief Justice Chase, in Griffin’s Case, who did fairly wrongly counsel that solely Congress may implement Part Three, by no means recommended that the enforcement should take the type of legal prosecutions and legal trials. If this argument had been thought non-frivolous on the time, certainly Chase would have been among the many first to make it.
And the construction and logic of the Structure confirms that there isn’t a want for legal regulation prosecution both. The existence of legislative energy in Congress “to enforce” the Fourteenth Modification (together with via legal regulation) doesn’t imply that Part Three, or different elements of the modification, lie dormant till Congress acts. Congress doesn’t convey the Fourteenth Modification to life; it has energy to add its enforcement arm to the modification’s self-executing authorized drive, not subtract from it. Even when the criminal-law riot statute have been believed to have been enacted as a mode of enforcement of Part Three, it’s primary that such a statute can not restrict or slim the which means of a provision of the Structure.
These factors must be sufficient to finish the matter, however this wrongheaded objection is so persistent, so insidiously deceptive, that it’s price saying extra.
In reality many of those invocations of 18 U.S.C. §2383 misunderstand §2383 itself. The federal legal statute in query was not enacted as a tool for imposing Part Three. As we set forth in our unique article (see pp. 82-84), the legal prohibition of riot, now codified at 18 U.S.C. §2383, was enacted in 1862 – in the course of the Civil Conflict, as Part Two of the “Second Confiscation Act” – a number of years earlier than the drafting of the Fourteenth Modification. The Act made it a criminal offense 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.” As such, the statute was actually a precursor of a number of the phrases and ideas later employed in Part Three, and to that extent a helpful marker in understanding the which means of the same phrases utilized in Part Three. (The identical is true, we argue within the article, for different provisions of the Second Confiscation Act.) As we state within the article, the Second Confiscation Act “is practically a glossary of terms used in Section Three of the Fourteenth Amendment proposed by Congress just four years later.” (Ms. at 82.)
However it’s fairly merely incorrect – certainly, a reasonably embarrassing error of historic reality – to determine this criminal-law statute as (in McConnell’s phrases) Congress’s chosen “mode of enforcement” of Part Three, pursuant to Congress’s legislative energy underneath Part 5 to implement the provisions of the Fourteenth Modification. That may have been unimaginable. The provisions of the Fourteenth Modification didn’t exist on the time the statute was adopted. The notion that the legal statute punishing riot was designed as a “mode” of effectuating Part Three is solely ahistorical – somewhat like saying that Lincoln’s election was attributable to his assassination.
Part Three is one thing Congress selected to add to the Structure on prime of the already-existing federal crime of riot, not the opposite manner round. To carry a brand new constitutional provision hostage to a pre-existing federal statute would strangle the all-important energy of constitutional modification. The concept that Part Three requires a legal conviction for riot earlier than its constitutional rule may be utilized has no authorized advantage no matter.
Every of the commenters, pundits, and advocates above has misunderstood or ignored these primary factors.
As famous above, Professor McConnell (who has since shifted his place) was an early proponent of the speculation that the federal legal riot statute must be understood as Congress’s chosen “mode of enforcement” of Part Three. It was not. Equally, the transient of former attorneys normal Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations, argues that “[t]he big problem for those advocating for the Colorado decision is that President Trump has not been convicted of violating Section 2383,” which they wrongly describe as a part of “the Enforcement Act of 1870.” It was not; they’ve confused §2383 with a distinct legal prohibition which was repealed in 1909 (as we clarify in footnote 54 of our manuscript).
And the amicus transient of U.S. Senator Ted Cruz, Majority Chief Steve Scalise, and 177 Different Members of Congress makes the identical declare in an much more emphatic, and embarrassing style, arguing that Part Three should not be self-executing as a result of if it have been “there would have been no reason for Congress to state expressly in §2383 that a conviction for insurrection would result in disqualification from holding certain offices. Under Baude and Paulsen’s view, Section 3 would already have automatically barred such individuals from office.” Not in 1862, when the legal statute was first enacted! Once more, that is like saying that there would have been no purpose for Congress to enact the First Modification to the Structure in 1789 as a result of fashionable precedents resembling New York Occasions v. Sullivan already protected the liberty of speech.
Within the Supreme Court docket, Trump’s legal professionals supply yet one more variation of this argument, claiming that “Section 3 Should be Enforced Only Through Congress’s Chosen Methods of Enforcement.” They don’t seem to disclaim that the Structure itself is self-executing and may be utilized by state actors. However they nonetheless argue that Congress has restricted enforcement of Part Three to legal prosecution underneath the statute, describing 18 U.S.C. §2383 because the “exclusive means of enforcing Section 3.” However once more, that’s not what 18 U.S.C. §2383 was and that’s not how Part Three works or has ever labored. It’s an argument that even Salmon Chase didn’t consider, and admittedly for good purpose.
McConnell has, way more not too long ago, taken a brand new stance. He now concedes that legal prosecution for riot is not required for disqualification underneath Part Three: “I am not saying that conviction under 18 U.S. Code §2383 is a legal prerequisite to disqualification under Section Three,” he writes. Nonetheless, McConnell argues, the absence of a federal legal prosecution for riot underneath the statute implies that the occasions resulting in and culminating within the assault on the Capitol of January 6, 2021 should not be an riot throughout the which means of the Structure both: “The best reason to be skeptical that the events of January 6 were an ‘insurrection’ in the legal sense is that none of the January 6 defendants have even been charged with, let alone convicted of that crime. Insurrection is a crime under 18 U.S. Code §2383, but not a single participant in the January 6 unrest has been charged with insurrection.”
However as soon as one concedes, as McConnell now does, that criminal-law prosecution and conviction aren’t conditions for making use of Part Three, it isn’t in any respect clear why we should always draw factual inferences from the absence of that prosecution. The operation of a legally distinct criminal-law statute underneath which an individual may or may not be prosecuted doesn’t outline or restrict the which means of a constitutional disqualification provision that’s not keyed to prosecutions or convictions underneath the statute. (In his amicus transient, Ilya Somin offers the instance of “O.J. Simpson, who was famously acquitted of criminal charges in the murder of his ex-wife Nicole Brown Simpson, and Ron Goldman, but later lost a civil case filed by the victims’ families.” As Somin observes: “The criminal and civil cases were distinct, and the result of one did not determine that of the other.”)
McConnell’s argument appears to imagine that federal prosecutors are so persistently aggressive of their charging choices that if there have been any probability that January 6 was an riot underneath any definition they might have introduced expenses underneath §2383. However the fact is that §2383 may be very not often charged underneath any circumstances, that prosecutors have complicated motivations particularly in high-profile instances, and that legal trials aren’t the identical as civil-law disqualifications from workplace. In any occasion, the which means of the Structure is to be decided by goal interpretation of the Structure’s textual content, historical past, and construction, not by deferring to the charging choices of Twenty first-century legal prosecutors.
Whether or not the occasions of January 6, 2021 have been an riot, and whether or not Donald Trump engaged in that riot, are severe questions of constitutional regulation – questions that we addressed in our unique article, and that have been addressed in a five-day trial in Colorado in addition to a prolonged opinion on attraction. But it surely belittles and misunderstands the Structure to suppose that solely a federal prosecutor and legal jury can reply such questions. And it’s merely a historic fabrication to counsel that Congress or the Structure has ever made a legal prosecution a situation for imposing the Structure.