Section Three Questions Answered

Gerard N. Magliocca

I've received lots of valuable feedback about my Section Three of the Fourteenth Amendment paper. Thanks to all of you have written. I thought I might address a few items here:

First, a journalist pointed out to me that many state and local law enforcement agencies require officers to take an oath to defend the Constitution of the United States. For those officers, Section Three might apply. This means that some people in the mob--current or former law enforcement--could be barred from future service and might be ineligible to serve in their current jobs. As I will explain in a forthcoming essay, though, Congress should pass legislation to give the DOJ Section Three enforcement authority.

Second, some people said that the Framers of the Fourteenth Amendment could not have contemplated that a President would "engage in insurrection or rebellion" against the Constitution. This is incorrect. President John Tyler was a member of the Confederate Congress. He died in 1862 (and was buried with the Confederate Flag, not the American flag), so Section Three did not apply to him. But the idea of an insurrectionist President was real, not a far-fetched hypothetical.

Third, congressional action to express its opinion that any particular person is ineligible under Section Three is not a bill of attainder. Mark Graber explained this well in his post. Section Three modified the Bill of Attainder Clause (or, put another way, you must read the Bill of Attainder Clause through the lens of Section Three, as Chief Justice Chase did in Griffin's Case). Such a congressional resolution would also not be binding on the courts, need not be construed as a punishment, and would permit full judicial review and due process to any individual named. The bill of attainder argument is without merit.