E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We are fast approaching the first anniversary of the Capitol riot. In that connection, let me suggest two areas that are ripe for action on the application Section Three of the 14th Amendment to that violence.
First, the House January 6th Committee should consider the issue. At this point, the Committee is still gathering facts. Media reports indicate that the Committee is also looking at legislative proposals. (One, for example, is a reform of the Electoral Count Act.) If those reports are true, then Section Three action should also be on the table. At a minimum, a House Committee report outlining how Section Three might apply to what occurred on January 6th would be helpful in any subsequent litigation on ballot eligibility.
Second, state legislatures need to step up. There is doubt about how Section Three can be enforced due to Chief Justice Chase's 1869 circuit opinion holding that the provision is not self-executing. States, though, can enact their own enforcement legislation. Right now no state says anything about Section Three as a requirement for holding federal or state office. A handful of states have some generally phrased eligibility provisions that arguably encompass Section Three, but that leaves a lot unsaid. To prevent anyone linked to the January 6th chaos from running for or serving in office--state or federal--states should make clear in their law that Section Three is an eligibility requirement for those positions.