Self-Execution and Section Three

Josh Blackman and Seth Barrett Tillman have an essay in The New York Times today arguing that "only the federal government--not the states--can disqualify insurrectionists from the congressional ballot." To reach this conclusion, they rely on Chief Justice Chase's 1869 circuit opinion in In Re Griffin, which held that Section Three of the Fourteenth Amendment was not self-executing in Virginia. I think that Blackman and Tillman's conclusion is incorrect, or is at least too broad.

First, Chief Justice Chase's opinion in Griffin is not persuasive, as Blackman and Tillman say. I go into this at length in my law review article. For one thing, the Chief Justice concluded that Section Three was self-executing in the treason proceedings against Jefferson Davis but was not self-executing in the habeas corpus proceeding for Caesar Griffin. He did not explain this distinction in his Griffin opinion, and the result is that we really don't know what his position was. There is also nothing in the text or original public meaning of Section Three to support Chase's reading in Griffin. He just advanced a grab bag of policy arguments, which reflected his opposition to Section Three when the proposal was before Congress.

Second, even on its own terms Griffin does not disable states from enforcing Section Three. Griffin held that an Act of Congress was required to enforce that provision in Virginia, which was an unreconstructed state at the time. In other words, there was no valid state government in Virginia. In that case, only the federal government could act. (The same is true now for the District of Columbia.) I agree that there must be some state law applicable to enforce Section Three in a state, but ballot eligibility laws are state law. 

Third, concluding that a federal statute is required to enforce Section Three everywhere would create a serious federalism problem. What about states seeking to enforce Section Three against state officials? There are such challenges pending in Arizona and New Mexico. A broad reading of Griffin would mean that the states must rely on federal enforcement to disqualify insurrectionists from their own governments. This contradicts other precedents from Reconstruction where states did oust insurrectionist state officials on their own. It also undercuts state sovereignty and the goal of excluding insurrectionists.

There is a narrower path to the conclusion that only federal authorities may exclude insurrectionist candidates from the congressional ballot. Derek Muller argues that the Qualifications Clause vests in Congress exclusive power to decide whether members-elect are ineligible under Section Three. The District Court in Georgia rejected this argument in its ruling, but I doubt that will be the final word. The Qualifications Clause argument does not disable states from enforcing Section Three against state officials or presidential candidates and is more defensible, though I still think it's wrong.

In sum, I do not think Blackman and Tillman's reading of In Re Griffin is convincing.

UPDATE:  Would we be better off if Congress had enacted a Section Three enforcement statute last year? Yes we would. Here's what I said about that on this blog in January 2021.

"Accordingly, the question for Congress is not whether Section Three of the Fourteenth Amendment will be an issue in some upcoming elections. It will be. The question is whether will want an orderly process to address these claims (set up by Congress) or a disorderly one (run state by state)."