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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 Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Section Three and (Not) Bills of Attainder
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Wednesday, January 13, 2021
Section Three and (Not) Bills of Attainder
Mark Graber
Americans and Congress have recently discovered Section Three of the Fourteenth Amendment
as a means for ending the present and possible future rule of Donald Trump. My contribution is here. Andy Coan, Gerard Magliocca and Bruce Ackerman have written fine pieces. Section
Three declares ineligible for state and federal office any person who has “engage(d)
in insurrection” against the United States.
If the events of January 6, 2021 were an insurrection against the United
States and if Trump participated (important ifs), then as of that date Trump
and every other participant in the alleged insurrection may no longer hold any
state or federal office in the United States.
Neither impeachment nor disability under Section Four of the
Twenty-Fifth Amendment is necessary. Recent
columns in both the Washington Post and New York Times suggest a constitutional
barrier to a congressional declaration that Trump is ineligible for office because
he incited a mob to attack Congress.
Such an edict appears to be an unconstitutional bill of attainder, a measure
that declares a specific person guilty of a criminal offense. Congress may pass laws forbidding cheating on one’s income tax and prescribing
jail terms for tax cheats, but Congress may not pass a law asserting that Trump
must go to jail for cheating on his income taxes. For the same reason,
commentators suggest, Congress might not be able to assert Trump is ineligible for
office because he participated in an insurrection. Courts must decide whether Trump
participated in an insurrection and the appropriate legal punishment. . Members
of the Thirty-Ninth Congress repeatedly articulated this concern with bills of
attainder when debating Section Three of the Fourteenth Amendment. Those representatives concerned, however, were
the Democrats and the very conservative Republicans who opposed sending Section
Three to state legislatures for ratification.
The Republicans who voted for the Fourteenth Amendment explicitly and repeatedly
supported congressional declarations under Section Three that rendered specific
people ineligible for the franchise or for public office. The
persons responsible for the Fourteenth Amendment championed legislation naming
names. The point of Section Three, they thought, was to empower Congress to
determine which confederates were disenfranchised under an early version of
that provision and which confederates were barred from office under the final
version of that provision. Thaddeus
Stevens, the floor manager for the Fourteenth Amendment in the House of
Representatives declared, “You must legislate
for the registry such as they have in Maryland.
It will not execute itself, but as soon as it becomes a law, Congress at
the next session will legislate to carry it out both in reference to the presidential
and all other elections as we have a right to do.” Representative Samuel Shellabarger of
Ohio agreed that Section Three should be implemented by laws identifying
eligible and ineligible voters and officeholders. “You can have registry laws,” he asserted. “Upon
this registry list you may place the names of men who are to be disqualified,
and you may also have the names of all who are qualified to vote under the
law.” Democrats
cried “foul.” Senator Garrett Davis of
Kentucky complained that Section Three was “a bill of attainder and an ex post facto law.” Representative
Benjamin Boyer stated, “Treason is undoubtedly
a crime and may be punished but by no bill of attainder or ex post factor law
such as is provided in the amendment before the House.” Very conservative Republicans
who voted against the Fourteenth Amendment also asserted that Section Three was
a bill of attainder. Chief Justice
Salmon Chase voiced his objections outside of Congress. These objections are important because contemporary
commentators often interpret Chase’s later opinions that sharply narrowed
Section Three as expressing the original understanding of those provisions. The Republicans who voted for Section Three
unanimously rejected these arguments that congressional legislation naming
specific persons as insurrectionists would be an unconstitutional bill of
attainder. Proponents of the Fourteenth
Amendment repeatedly maintained that Section Three merely declared
qualifications for office and did not permit Congress to declare anyone guilty
of a criminal offense. Senator Lot M. Morrill of Maine pointed
to “an obvious distinction between the penalty which the State affixes to a
crime and that disability which the State imposes and has the right to impose
against persons whom it does not choose to intrust with official station.” Senator
John Henderson declared, “this is an act fixing the
qualifications of officers and not an act for the punishment of crime.” Section Three, these Republicans agreed,
amended the qualification clauses of Articles I and II. The provision did not amend the treason
clause, introduce a new crime, or provide additional criminal penalties for an
existing crime. Section Three's amendment to the qualifications clauses of the Constitution places the power to implement Section Three in the Congress and authorizes the naming of names. Bills of attainder
declare particular persons guilty of crimes.
Congressional laws passed under Section Three merely assert who meets
the qualifications for federal office. Congress has the same power to determine whether a potential aspirant
for the presidency had participated in an insurrection as Congress has to
determine whether that person would be thirty-five years old when elected. A congressional determination that such a
person had participated in an insurrection or had forged a birth certification merely
makes that person ineligible for the presidency. Whether criminal charges should be filed
against that person is another matter entirely. The Senate could pass a resolution tomorrow listing all or some of the persons eligible to become Senators in the next national election. That they do not do so is a matter of convenience, not constitutional power. More to the point, Section Three is a part of constitutional amendment, not a federal law.
If a federal law declaring people ineligible for office was a bill of
attainder in 1865, the American people by amending the constitution were free to sanction such a
bill of attainder. Henderson reminded
members of the Thirty-Ninth Congress, “They tell
us that it is a bill of attainder.
Suppose it were; are the people in their sovereign capacity prohibited
from passing a bill of attainder?” Senator Jacob Howard of Michigan decisively
refuted existing and future concerns that Section Three permitted unconstitutional
bills of attainder when introducing the Fourteenth Amendment to Congress. Section
Five, he stated, “casts upon Congress the responsibility of seeing to it, for
the future, that all the sections of the amendment are carried out in good
faith.” Whether Trump or anyone
else is guilty of participating in an insurrection against the United States is
a matter for a criminal court to decide.
Whether Trump or anyone else is ineligible for state or federal office
because they participated in an insurrection against the United States is for
Congress to decide. The Republicans who
framed Section Three would not have thought unconstitutional legislation
declaring Donald Trump ineligible for federal or state office under Section
Three of the Fourteenth Amendment.
Neither should we.
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