"The Sweep and Force of Section Three"

Bill Bramhall

Thank goodness for low water pressure and strong Constitutional pipes!

It's Constitution Time! 

You have seen news pop up about the Fourteenth Amendment's Section Three, which legal scholars William Baude of University of Chicago - Law School and Michael Stokes Paulsen of the University of St. Thomas School of Law have anaylzed in a brief to be published in The Pennsylvania Law Review, and which has been widely distributed. I first brought it to your attention to their brief entitled, "The Sweep and Force of Section Three" in my post of August 16, 2023 titled "⭐⭐⭐⭐." Since then, the issue has really taken off. 

Today we shall dive deeper into Section Three and look at the ramifications so far. 

First, a little bit about the authors William Baude and Michael Stokes Paulsen. Both are conservative constitutional scholars, and in fact both are members of The Federalist Society. Most members of The Federalist Society have major cooties, and these two may, but today they are our friends. In fact, they are quite possibly the saviors of our republic. 

Baude is quoted in the New York Times about their work on Section Three, "When we started out, neither of us was sure what the answer was. People were talking about this provision of the Constitution. We thought: 'We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.' And the more we dug into it, the more we realized that we had something to add."

As we will see, this issue may very well reach the halls of the United States Supreme Court, and we shall see if fellow Federalist Society members Supreme Court Justice Samuel Alito, Supreme Court Justice Clarence Thomas, Supreme Court Justice Neil Gorsuch, Supreme Court Justice Brett Kavanaugh and Supreme Court Justice Amy Coney Barrett, along with Chief Justice of the United States John Roberts, who is possibly a member, agree with the pair. 

Section Three of the Fourteenth Amendment reads:

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 authors wrote a brief 126 pages long about these 111 words. I read the whole thing – and other stuff – so you don't have to!

The brief is elegant in its simplicity and not really difficult to understand. Their analysis is broad and deep, and as far as legal writings go, it's pretty readable! I encourage you to read it here.

Let's dive in!

The authors make four points about Section Three:

1. Section Three is valid and not expired. The Constitution cannot change on a whim, nor if the circumstances prompting the adoption of the section has been resolved. In this case, Section Three was enacted as a result of the Civil War to prevent those who actively sought to tear apart the United States from gaining federal office. Though that threat has passed, the spirit of preventing people who attempt to subvert our republic from holding office lives forever. In short, the Constitution is binding.

They state, that "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." They further point out that the Constitution does not expire. "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."

2. Section Three is self-executing. There is no need for Congressional action or court order. It is elegant in its simplicity. If you engaged in insurrection or given aid to those who have, then you can't hold office. Boom. Done. 

The authors remind us that the Constitution is "supreme law of the land." And as such, it is there is no further legislation needed. The lawmakers that come along interpret the law according to the Constitution, not the other way around. 

They also give examples of other self-executing clauses within the Constitution, such as "No person shall be ... compelled in any criminal case to be a witness against himself" or "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."

And in fact, Section Three has been used to remove a person from office after the January 6 insurrection. The authors describe the case of Otero County, New Mexico County Commissioner Couy Griffin, the leader of "Cowboys for Trump." He was convicted of misdemeanor trespassing on January 6. He had also refused to certify the election results in his county. After his conviction he was barred from state office in New Mexico under Section Three, and the state Supreme Court upheld that decision. Side note: a Los Alamos resident was one of the three who filed suit to have him removed.

The authors note:

[Griffin] promoted, assisted, and ultimately joined in the January 6 insurrection against the Capitol. A group of New Mexico citizens filed a quo warranto action against Griffin under New Mexico law, seeking his removal from office. The New Mexico district court took evidence, received legal arguments, and then concluded that Griffin was disqualified under Section Three. More precisely, and quite correctly, it held that Griffin had been disqualified since the day of the January 6 insurrection, and ordered his immediate ejection from office, and permanently enjoined him from seeking or holding any other covered position.

They assert that those who decide such things, such as state secretaries of state and elections officials, must invalidate the candidacy of an insurrectionist. They write, "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 they conclude, "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."

3. Section Three supersedes any previous provisions in the Constitution that conflict with it. (I love this point; it throws a stick into the wheels of the first argument the Chief Insurrectionist will make). In other words, it supersedes the First Amendment guarantee of free speech when that speech was used in the commission of an insurrection. All the rest of the speech? Still free.

The authors quote Alexander Hamilton who wrote in Federalist Number 78. They write:

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. When this occurs, the courts must determine the “meaning and operation” of the two provisions. 

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.” 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 law: that, as “between the interfering acts of an equal authority that which was the last indication of its will should have the preference.” 

Hamilton went on, more famously, to explain that a different interpretive principle governed the interfering acts of a superior and a subordinate authority—and proceeded to derive the proposition customarily called “judicial review.” 

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 adopted. 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 extent of any conflict. That is the interpretive principle that governs the relationship between new constitutional language and old language from which it departs.

They give the example of the Thirteenth Amendment's ban on slavery conflicts with the Fugitive Slave Clause and therefore supersedes that part of the Constitution. Similarly, Section Two of the Fourteenth Amendment conflicts with the Three-Fifths Clause, and so the Fourteen Amendment supersedes. 

"And furthermore, regarding Section Three's apparent conflicts with the First Amendment, "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." (italics theirs)

They give good arguments about the apparent conflicts with the First Amendment, and conclude by saying: 

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 insurrection and rebellion are dangers too—all too real dangers, as recent events have shown.

4. The disqualifications are sweeping. The language is simple and clear, and allows "no person" who has "engaged" in an insurrection "or" given "aid or comfort" to others. As the authors state, "Section Three is harsh. It is categorical. It is insistent." Just what we need! 

As Constitutional scholars do, they look at the dictionaries of the times, the Constitution itself, and contemporaneous usage for help in definitions, as well as a Supreme Court case and cases brought under Section Three itself. The authors break down the meanings of the words that define Section Three's disqualifications. 

You will get a good history lesson reading this section of the brief, especially their analysis of the language and the previous insurrections and rebellions that the United States has endured.

The authors purport that these definitions apply to Section Three:

• insurrection: concerted, forcible resistance to the authority of government to execute the laws in at least some significant respect.

• They discuss the differences between insurrection and rebellion, defining rebellion as basically a form of insurrection, where rebellion is an effort to overturn or displace lawful government authority by unlawful means.

• engage in: 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 in either words or deeds.

• aid or comfort: indirect but material assistance. Such material assistance—possibly including expression supporting, encouraging, counseling, or promoting the enemy

• the enemies thereof: We believe that “enemies” as employed in Section Three, embraces enemies both foreign and domestic.

• The people disqualified by Section Three: looking closely at the words, the authors summarize that anyone who previously held an office that needed an oath to support the Constitution (ie, all of them) are disqualified from holding office again under Section Three if they engaged in the prohibited behaviors outlined in the Section.

I had not known about the Ironclad Oath that office holders took during 1862 to 1884. It is a list of "never-have-I-evers" that was required to be sworn to upon taking office. The authors point out that it is essentially Section Three's sentiments in a retrospective oath. Before assuming office, government officials had to swear:

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 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.

Section Three seems to be this, but in a prospective form.

Finally, the authors look closely at the events surrounding January 6, and conclude, yes, it was an insurrection, maybe even a rebellion; and yes, the former president not only "engaged in" but "aided and gave comfort" to others, so it follows that Section Three of the Fourteenth Amendment of the United States Constitution explicitly disqualifies him – and many others – from holding office again. And furthermore, it's up to numerous people, from state elections officials, to presidential electors, to members of the judiciary (including the Supreme Court) to ensure that he never hold office again. It's an imperative. After all, they are all sworn to support the Constitution. The whole Constitution.

In summary, the authors conclude:

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 independently of other actors, including courts. ...

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, or resentment, or opposition, or retaliation. The Constitution is not optional and Section Three is not an optional part of the Constitution. 

Yes, it's all so obvious, but it's delightful to read it laid out so cuttingly in this legal brief. 

So, what to do with this news?

Run with it!

Soon after the brief appeared online, an attorney in Florida filed a lawsuit to disqualify him from the ballot.

In Colorado, watchdog group Citizens for Responsibility and Ethics (CREW) filed a lawsuit on behalf of some voters this week seeking to bar T**** from appearing on their ballot. T**** wasted no time in responding, asking the courts to move the case to federal court. 

New Hampshire, Michigan, and Arizona are contemplating similar actions. 

It will take only a couple swing states to keep him off the ballot to keep him out of our hair. And bonus: more lawsuits mean more of the orange one's resources are being eaten up. On second thought, that's not a bonus. Much of his legal money comes from people who can't afford to bankroll his legal woes but they do so anyway. If it meant T**** was selling off gold toilets, then I would rejoice that aspect. 

So what about practically in the 21st Century, in a divided nation, and a bonkers right wing? This is the wild card. T****'s cult will not be happy with secretaries of state and others deciding to leave him off the ballot. Cases will be filed in court, and it will go to SCOTUS to decide. It's glaringly obvious that this constitutional mandate must be honored. What the MAGAts do once it's decided? We shall see.

Other Tidbits in the News this Week

Mark Meadows's bid to move his case to federal court was denied. Nyahh-nyaaah!

Lindsey Graham and a couple state senators were recommended to be charged by the Georgia grand jury. Save your tears, Miss Lindsey!

The grand jury for the January 6 charges has reconvened in Washington. Will new charges be brought?

 

Former T**** adviser Peter Navarro was found guilty of contempt of Congress after refusing to comply with a subpoena to appear before the January 6 committee. His former boss is reportedly "really really upset" at the news. Awwww pobrecito!

Remember that video tech guy who monitored the cameras at Mar-a-Lago? You'll recall that Yuscil Taveras, aka “Trump Employee 4” was asked by his boss to "delete the server." Well, he changed attorney from a T**** PAC-paid-for lawyer to a public defender, and he decided to change his testimony and implicate T**** in the scheme. Flipper strikes again!

Til next time, Resisters!