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 hereAndy 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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