O C F I T B L O G Legal The Sweep and Force of Section Three, Published

The Sweep and Force of Section Three, Published

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My article with Michael Stokes Paulsen about the continuing legal force and broad substantive sweep of Section Three of the Fourteenth Amendment has now been published in final form in the Penn Law Review.

As a reminder, here is the abstract:

The Sweep and Force of Section Three

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This Article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

(My recent blog posts with Mike Paulsen on “Fighting the Meaning of Section Three” are collected at the end of this post.)

Thanks to all for reading and responding.

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