The Sweep and Force of Section Three

172 U. PA. L. REV. (forthcoming 2024)

William Baude & Michael Stokes Paulsen

Abstract: Section Three of the Fourteenth Amendment forbids holding office by for-
mer office holders who then participate in insurrection or rebellion. Because of a
range of misperceptions and mistaken assumptions, Section Three’s full legal conse-
quences 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the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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, super-
sedes, 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 participa-
tion or support as “aid or comfort.” It covers a broad range of former offices, including
the Presidency. And in particular, it disqualifies former President Donald Trump,
and potentially many others, because of their participation in the attempted over-
throw of the 2020 presidential election.

Introduction ................................................................................................................ 3
I. Section Three is Legally Operative Today ........................................................ 7
A. The Generality and Presumptive Perpetuity of Constitutional Language ........... 7
B. Has Congress Removed the Disability for Everyone for All Time? (And Could It
Do So If It Wanted To?) ............................................................................................ 11
II. Section Three is Legally Self-Executing ........................................................ 17
A. Section Three as Automatic Legal Disqualification ........................................... 17
B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three? ................. 22
1. Seeking Office ................................................................................................... 23
a. by election ...................................................................................................... 23
b. by appointment ............................................................................................. 26
2. Holding Office ................................................................................................... 27
3. Special Situations ............................................................................................. 29
C. The Problem of Griffin’s Case.............................................................................. 35
1. Background ....................................................................................................... 35
2. Chase on Section Three .................................................................................... 37
a. “The argument from inconveniences, great as these” ................................. 37
b. The argument from “the intention of the people” ........................................ 40

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 c. The argument that Section Three should not be read to depart from the
“spirit” of prior constitutional law .................................................................... 42
d. The argument from the Section Five enforcement power ........................... 44
3. Griffin’s Self-Defeating and Highly Irregular Dictum .................................... 45
III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional
Provisions .................................................................................................................. 49
A. Bills of Attainder.................................................................................................. 53
B. Ex Post Facto Laws .............................................................................................. 54
C. Due Process of Law .............................................................................................. 56
D. The Ominous Question: Section Three and the First Amendment ..................... 57
IV. Section Three’s Substantive Disqualification is Sweeping ...................... 61
A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”;
“Aid or Comfort” to “Enemies” ................................................................................. 63
1. Working definitions .......................................................................................... 64
2. Contemporaneous Dictionary Definitions ....................................................... 69
3. Intratextualism ................................................................................................. 72
4. Contemporaneous Public, Political, Legal Usage ............................................ 73
a. President Lincoln .......................................................................................... 74
b. Congress ........................................................................................................ 79
i. The Ironclad Oath ...................................................................................... 79
ii. The Second Confiscation Act .................................................................... 81
c. The Supreme Court’s decision in The Prize Cases ....................................... 84
5. Other Extant Statutory Sources and Notorious Examples ............................ 86
a. The Insurrection Acts (and Insurrections Generally) ................................. 86
b. The Congressional Exclusion Debates ......................................................... 92
6. Legislative History ........................................................................................... 98
7. Early Applications of Section Three ................................................................ 99
B. What Prior Officeholders are Covered? What Future Offices are Barred? ....... 104
C. The Attempted Overthrow of the 2020 Presidential Election ........................... 111
1. The Question of Coverage: Insurrection and Rebellion ................................ 112
2. The Question of Participation: “Engaged in” and “Aid or Comfort” ............. 116
a. General Principles Concerning Culpable Participation ............................ 116
b. Section Three Disqualifies Donald Trump from Future Office ................. 117
c. Beyond Trump ............................................................................................. 121
Conclusion ............................................................................................................... 124

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 The Sweep and Force of Section Three
172 U. PA. L. REV. (forthcoming 2024)
William Baude* & Michael Stokes Paulsen**

Introduction

“Section 3 has long since faded into history.”

- Eric Foner1

Reports of Section Three’s demise are greatly exaggerated. It turns out that
Section Three of the Fourteenth Amendment remains of direct and dramatic rele-
vance today—a vital, fully operative rule of constitutional law with potentially far-
reaching contemporary real-world consequences. Section Three remains in legal
force, and has a broad substantive sweep.

Here is what it says:

No person shall be a Senator or Representative in Congress, or elector

of President and Vice President, or hold any office, civil or military, un-
der the United States, or under any State, who, having previously taken
an oath, as a member of Congress, or as an officer of the United States,
or as a member of any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of the United States,
shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability.2

This section of the Fourteenth Amendment was designed to address a particu-

lar historical situation and acute problem arising in the aftermath of the Civil War.
States in the South had purported (unconstitutionally)3 to secede from the Union;

* Harry Kalven, Jr. Professor of Law, University of Chicago Law School.

** Distinguished University Chair and Professor of Law, University of St. Thomas Law School. We
thank Frank Bowman, Steve Calabresi, Josh Chafetz, John Harrison, Ed Hartnett, Daniel Hemel,
Myles Lynch, Gerard Magliocca, Michael McConnell, Derek Muller, Eric Posner, Micah Quigley, Rich-
ard Re, Michael Rosin, Stephen Sachs, Greg Sisk, Seth Barrett Tillman, and workshop participants at
the University of Chicago Law School and University of St. Thomas Law School for helpful comments
on this draft, T.J. Bowman, Nicole Catlin, Connie Gong, Sarah Leitner, James Marmaduke, and Matt
Phillips for valuable research assistance, and countless others for background discussions about these
issues—though not all of them gave aid or comfort to our conclusions.
1 Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution

85 (2019).
2 U.S. Const. art. XIV, sec. 3.
3 See infra note 228 and sources cited there.

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they had purported to form the (so-called) “Confederate States of America” in rebel-
lion against the authority of the U.S. Constitution; and they had waged a bloody four-
year war of rebellion against the United States. Yet even after the rebellion had been
defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators
and Representatives, men who had notoriously violated previously sworn oaths to
support the U.S. Constitution by subsequently engaging in or supporting secession,
rebellion, and civil war against the authority of the United States (to say nothing of
those now serving again in their state governments). These men who arrived in Wash-
ington included several who had held prominent positions in the rebel Confederacy:
“four Confederate generals, four colonels, several Confederate congressmen and
members of Confederate state legislatures, and even the vice president of the Con-
federacy, Alexander Stephens.”4

The Congress that proposed the Fourteenth Amendment rightly regarded the
situation as outrageous—not only morally, but practically. If former Confederates
held the levers of federal and state government power, effective “reconstruction” of
the political order and any hope of extending the full and equal protection of the laws
to the newly freed former slaves would be at an end. Section Three of the Fourteenth
Amendment responded to that outrage, enacting a sweeping disqualification from
state and federal office of those who had, as legislators or officers in the federal or
state government prior to the War, sworn required oaths of loyalty to the United
States Constitution and subsequently engaged in “insurrection or rebellion” against
the U.S. constitutional authority or given “aid or comfort” to persons engaged in such
acts of insurrection or rebellion. Only a two-thirds majority vote of both houses of
Congress could remove that sweeping disqualification.

Fast-forward a century and a half. The events surrounding efforts to overturn

the result of the presidential election of 2020 have sparked renewed scholarly, judi-
cial, and political interest in Section Three of the Fourteenth Amendment.5 The core
events are familiar to all—the dishonest attempts to set aside valid state election
results with false claims of voter fraud; the attempted subversion of the constitutional
processes for States’ selection of electors for President and Vice President; the efforts
to have the Vice President unconstitutionally claim a power to refuse to count elec-
toral votes certified and submitted by several States; the efforts of Members of Con-
gress to assert a similar power to reject votes lawfully cast votes by electors; the fo-
menting and immediate incitement of a mob to attempt to forcibly prevent Congress’s

4 Akhil Reed Amar, America’s Constitution: A Biography 377 (2005); see also Eric L. McKitrick, An-
drew Johnson and Reconstruction 176-179 (1960); Allen C. Guelzo, Reconstruction: A Concise History
25 (2018).
5 The most important scholarly articles (to which we are deeply indebted) are Gerard N. Magliocca,

Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment.. 87 (2021); Myles S.
Lynch, Disloyalty and Disqualification: Reconstructing Section Three of the Fourteenth Amendment,
30 William & Mary Bill of Rights J. 153 (2021), both of which were written before the events of January
6, and Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A How-to Guide, Lawfare (Jan. 19,
2021), available at https://www.lawfareblog.com/disqualifying-insurrectionists-and-rebels-how-guide.

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and the Vice President’s counting of such lawfully cast votes—all in an attempt to
prevent the defeated incumbent President, Donald Trump, from losing power in ac-
cordance with the Constitution.

This was undoubtedly a serious assault on the American constitutional order.

Not since the Civil War has there been so serious a threat to the foundations of the
American constitutional republic. It takes little imagination to describe the efforts to
maintain Trump in office, notwithstanding his defeat, as an attempted political coup
d’etat. These actions culminated in the incitement and execution of a violent uprising
at the Capitol on January 6, 2021—an “insurrection” aimed at preventing Congress
and the incumbent Vice President from performing their constitutional responsibili-
ties to count the votes for President and Vice President in the 2020 election. Several
of the people involved in these events—most notably the defeated President, Donald
Trump—had previously taken oaths to support the Constitution. If they engaged in
or gave aid and comfort to an insurrection against the constitutional government,
Section Three would appear to bar them from holding office again.

As legal officials and citizens generally have begun to confront the application
of Section Three, they have foundered on the most fundamental questions. How does
Section Three’s disqualification apply—does it apply—to those who planned, sup-
ported, encouraged, assisted, incited, or otherwise participated in the events sur-
rounding the attempted overturning of the presidential election of 2020? Does Section
Three’s century-and-a-half old disqualification, designed for the aftermath of the
Civil War, even remain legally operative in the first place? If so, what must be done
to enforce Section Three? Does it require implementing legislation or criminal trials
(or impeachments) before its disqualification kicks in? How does Section Three inter-
act with the rest of the constitutional order—are its subjects protected by constitu-
tional principles of attainder, anti-retroactivity, due process and free speech? And if
Section Three does apply—to what and to whom? What actions count as having “en-
gaged in insurrection or rebellion” against the Constitution of the United States or
having “given aid or comfort to the enemies thereof”? Which officials are covered by
Section Three’s exclusions?

This article attempts to answer these questions. It makes four key points (or
clusters of points):

First. Section Three remains legally operative. It is no less part of the Consti-
tution than the other provisions of the Fourteenth Amendment. It is not a dead letter.
The Constitution is a binding, authoritative written text, not a collection of specific
historical purposes and intentions. Where the text applies, it applies. Its legal force
is not limited to the immediate problem or purpose that prompted its enactment. Sec-
tion Three is not limited to the circumstances of the Civil War and Reconstruction,
even if the meaning of its terms may be illuminated by that experience and history.

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 Nor has Section Three somehow been “repealed” by Congress’s two major nine-
teenth-century statutes granting amnesty to those covered by Section Three. This is
not because it would be impossible for a constitutional provision to expire by its terms
after a period of time, or upon the occurrence of a particular event, or upon action
taken by future actors. Article I, Section 9, for example, created a constitutional pro-
hibition of most congressional regulation of the international slave trade for a period
of twenty years—but its prohibition then vanished in 1808. Section Three, however,
does not work that way. It imposes a general, prospective, rule of disqualification,
which Congress may remove by two-thirds vote of both houses only once it has oc-
curred. Section Three is prospective; Congressional amnesty is retrospective.

Second. Section Three is legally self-executing. That is, Section Three’s disqual-
ification is constitutionally automatic whenever its terms are satisfied. Section Three
requires no legislation or adjudication to be legally effective. It is enacted by the en-
actment of the Fourteenth Amendment. Its disqualification, where triggered, just is.
It follows that Section Three’s disqualification may and should be followed and car-
ried out by all whose duties are affected by it. In many cases, Section Three will give
rise to judiciable controversies in the courts. In others it will be enforceable by state
and federal officials. But no prior judicial decision, and no implementing legislation,
is required for Section Three to be carried out by officials sworn to uphold the Consti-
tution whose duties present the occasion for applying Section Three’s commands. Sec-
tion Three is ready for use.

While Section Three’s requirements could be made the subject of enforcement

legislation by Congress, under its general power under Section Five of the Fourteenth
Amendment “to enforce” the provisions of the amendment, no such legislation is con-
stitutionally required as a prerequisite to Section Three doing what Section Three
itself does. Chief Justice Salmon P. Chase’s circuit court opinion to the contrary, In
re Griffin,6 is simply wrong on this point—full of sleight of hand, motivated reasoning,
and self-defeating maneuvers—as we will explain at length. In re Griffin should be
hooted down the pages of history, purged from our constitutional understanding of
Section Three.

Third. Section Three supersedes (or satisfies) earlier-enacted constitutional pro-

visions to the extent of any supposed conflict between them. Section Three, at the time
it was adopted as part of the Constitution, imposed a disqualification from office
based on an individual’s past conduct. Even if imposition of such a disability might
otherwise, if done by statute, have been a forbidden Ex Post Facto law or Bill of At-
tainder, Section Three of the Fourteenth Amendment constitutionally supersedes any
prior provision conflicting with its terms.

This principle extends to a more unsettling point. To the extent Section Three’s
disqualification for having “engaged in insurrection or rebellion” or giving “aid or

6 11 F. Cas. 7, 22-27 (C.C.D. Va. 1869) (No. 5,815).

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comfort” to “the enemies” might turn out to be in tension with the First Amendment’s
protection of freedom of speech, Section Three supersedes the First Amendment to
the extent of any true conflict. To be sure, the proper construction of Section Three’s
terms (“insurrection,” “rebellion,” “aid and comfort,” “enemies”) will leave much
speech and advocacy completely free. But in the cases where it does not, the terms of
Section Three, not the constructions of the First Amendment, decide where the line
is.

This leads to the article’s fourth and final group of points:

Fourth. Section Three’s disqualification is sweeping in its terms. It disqualifies

from future office-holding persons who “engaged in”—an expansive and encompass-
ing term connoting many forms of participation in or active support of—a broad swath
of activity covered by the terms “insurrection or rebellion” or the giving of “aid or
comfort” to “enemies” of the nation or its constitutional order. It applies to a broad
swath of civilian, military, and legislative office holders who swore oaths of fidelity to
the Constitution, and it disqualifies such persons from holding in the future any of
an extraordinarily broad swath of public offices. Taking Section Three seriously, on
its own terms, means taking seriously the enormous sweep of the disqualification it
creates. And, we will argue, taking Section Three seriously means that its constitu-
tional disqualifications from future state and federal officeholding extend to partici-
pants in the attempted overturning of the presidential election of 2020, including for-
mer President Donald Trump and others. The substantive terms of Section Three’s
prohibition are not themselves difficult or inscrutable (even if there might be ques-
tions of application at the outer edges of the text’s meaning). But they are potentially
breathtaking in their straightforward consequences.

In what follows, we develop each of these four core points at length.

Section Three remains a valid, prospective, enforceable, self-executing, broad,

and relevant part of our Constitution. It falls to us to fulfill our duties to it. These
include the duties of legislative bodies, state and federal election officials, executive
officers, and perhaps others to take up the Constitution, including Section Three of
the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies.
Taking Section Three seriously means excluding from present or future office those
who sought to subvert lawful government authority under the Constitution in the
aftermath of the 2020 election by engaging in or giving aid or comfort to acts of “in-
surrection or rebellion” against the lawful constitutional order.

I. Section Three is Legally Operative Today

A. The Generality and Presumptive Perpetuity of Constitutional Language

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 The first step in our argument is an easy one, but perhaps not immediately
obvious to everyone: Section Three’s disqualification remains an operative rule of the
Constitution. The reason this might not be obvious, at least to the uninitiated, is that
Section Three plainly was designed for a specific historical situation—the circum-
stances of Reconstruction following the end of the Civil War. The implication, in the
eyes of some, might be that that historical situation limits the scope of the provision’s
operation. We think any such inference badly mistaken. Section Three was prompted
by historical circumstances, but that does not in any way detract from its enduring
force.

To be sure, Section Three clearly bears the hallmarks of its historical context.
It is, for one thing, a radical rule. The sheer sweep of the disqualification from offices
that it imposed on former Southern officeholders-turned-rebels was dramatic. Its op-
eration was hugely disruptive of antebellum patterns of elite political leadership, ap-
parently indifferent to inconvenience, and seemingly rather punitive in its conse-
quences. Section Three is harsh. It is categorical. It is insistent. It seems to have been
deliberately designed to turn the prior Southern political order upside down. As Eric
Foner puts it, “Section 3 aimed to promote a sweeping transformation of Southern
public life.”7

In these respects, the disqualification reflects and embodies the distinctive po-
litical impulses of the so-called Radical Republican Congress that proposed the Four-
teenth Amendment in 1866. If its disqualification had radical policy consequences for
the South, so be it.8 It was more important to strip insurrectionists and rebels of gov-
erning power completely, to remake Southern political society thoroughly, and to pre-
vent Southern backsliding from the full consequences of Union victory entirely, than
to be concerned about such things as seeming harshness, impracticality, or disrup-
tiveness. Section Three is very much a creation and creature of its day.

Yet it is (or should be) basic constitutional law that it is the enduring text of
the Constitution that supplies the governing rule, not the ostensible “purpose” or spe-
cific historical situation for which the text was written. Constitutional provisions,
written into our fundamental law, live beyond the circumstances that prompted their
adoption. And many such constitutional provisions are written in broad, or general,
terms that obviously extend beyond the specific situation or situations that led to
their enactment. Sometimes this is by design: the text’s drafters wrote a general rule,
applicable to a broad class of circumstances, as a more general, “neutral,” way of ad-
dressing a class of situations of which the specific problem motivating the writing of
the text might be just one instance. The thinking might be that if the principle giving
rise to the text is a correct one, it should be correct in like circumstances, not just the
one situation that provoked the rule’s adoption. And sometimes a text’s breadth and

7 Eric Foner, Reconstruction, 1863-1877, at 260 (1988).

8 Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Fourteenth Amendment, Volume 1
(2023, University Press of Kansas).

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generality might not reflect conscious design: the text’s drafters wrote a general rule
that unintentionally went further than the problem they had in mind. Put colloqui-
ally, the text sometimes “overshoots” its drafters’ intended purposes. (A text might
undershoot the problem its framers had in mind to address, too—or achieve only part
of its intended purpose, perhaps because of political compromise.)

The reason does not really matter. It is the rule as drafted and enacted in the
written text that counts, whether it goes further than the purposes supposed to have
inspired its adoption, or even whether it falls short of fully achieving those purposes.
While evidence of intention, usage, purpose, and political context can assist in ascer-
taining the meaning of the enactment, it is that objective meaning that constitutes
the law, not the ostensible purposes or motivations that supposedly lay behind it.
This is “originalism,” our system’s basic method for interpreting the Constitution and
its amendments.9

Consider, for example, Section One of the same Fourteenth Amendment. As a

matter of historical purpose, the specific mischief the framers of Section One had in
mind was the enactment of “Black Codes” in Southern States that discriminated
against the newly freed former slaves. But the words chosen by the drafters to enact
the rule embodied in the text command, in general terms, that no state shall abridge
the “privileges or immunities of citizens of the United States” nor deny to any “per-
son” within its jurisdiction the “equal protection of the laws”—rules not cast in racial
terms at all, let alone limited to the immediate situation of former enslaved persons.
The rules enacted apply to all persons irrespective of race. So it was entirely plausible
for lawyers to argue that Section One also barred the same kind of discrimination
against women citizens that it barred against black citizens. It doesn’t matter that
the draftsmen of the amendment might not have had women “in mind” if women are
covered by the meaning of the words they actually wrote and ratified.10 Similarly, it
was entirely plausible to argue that Section One went so far as to ban racially segre-
gated schools.11 The answers to each of these questions turn on the objective, original
meaning of “privileges or immunities of citizens of the United States” and “equal pro-
tection of the laws,” not whether the 1866 Congress and subsequent ratifiers had

9 See Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret
Drafting History, 91 Geo. L. J. 1113, 1124-1148 (2004); Michael Stokes Paulsen, Does the Constitution
Prescribe Rules for Its Own Interpretation? 103 Nw. U. L. Rev. 857, 872-883 (2009); William Baude &
Stephen Sachs, The Misunderstood Eleventh Amendment, 169 U Pa. L. Rev. 609, 624-625 (2021); Wil-
liam Baude & Stephen Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1456-1460 (2019). For
purposes of this article, we can bracket any differences in emphasis between Paulsen’s objective-orig-
inal-meaning originalism and Baude’s original-law originalism.
10 We have used such examples before. Paulsen, Rules for Its Own, supra note 9, at 901-902; Michael

Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing
Amar's Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1421 n. 68 (2014); William Baude, Jud Camp-
bell, & Stephen Sachs, General Law and the Fourteenth Amendment (Jan. 31, 2023) at 67-68.
11 We have used this example before, too. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L.

Rev. 795, 839-840 (1993); William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2380-
2381 (2015). See also Baude, Campbell, & Sachs, supra note 10, at 66.

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thought through the possible radical implications of their own work. If the meaning
of the Fourteenth Amendment’s terms forbade racially discriminatory classifications
of any and all kinds, as a matter of the rules of late-1860s language and usage, it
doesn’t matter one way or the other whether it was intended or expected that govern-
ments could enforce certain types of racial discrimination, like enforced racial segre-
gation. The rule as adopted might overshoot the purposes, expectations, or desires of
those who voted for it. But the rule is the rule; the text’s meaning is the text’s mean-
ing.

Thus, if the framers and ratifiers of the Fourteenth Amendment enacted a gen-
eral rule in Section Three—a disqualification from future officeholding keyed to hav-
ing taken an oath to the Constitution and subsequently engaging in insurrection or
rebellion against the United States—rather than a provision that by its terms applied
only to the case of former Civil War secessionists and Confederate officials and offic-
ers,12 it is the general rule that matters. That the rule had a particular political pur-
pose behind it as a matter of history might be an aid to correct interpretation of the
language supplying that rule. (We will make such an argument below, concerning the
meaning, in context, of the phrase “insurrection or rebellion.”)13 But in the end the
question is what rule was enacted. If Section Three’s rule fell short somehow, missing
some folks its drafters might have meant to ensnare, those persons are not ensnared.
The text might (or might not) be thought deficient in this regard—as having failed to
fulfill its full purpose. But the text means what it says. Similarly, if the rule supplied
by the objective meaning of the text runs right on past the specific historical purpose
for which it was enacted and embraces as well other insurrectionists, rebels, and aid-
ers and comforters of enemies, that rule must be given full legal effect as part of the
Constitution. The rule’s overbreadth in terms of its perceived purpose, and even its
inconvenience as a consequence of such overbreadth, are beside the point.14

12 Indeed, for what it is worth, the legislative history of Section Three confirms that this is what the
authors of the Fourteenth Amendment did. Earlier drafts had limited the Section’s application to the
“late insurrection.” Later versions dropped this limitation and generalized Section Three’s application
to “insurrection” and “rebellion.” See Cong. Globe, 39th Cong., 1st Sess., at 2767-68, 2770 2869, 2921;
see also Mark A. Graber, Rewarding Loyalty (?) and Punishing Treason Through Disenfranchisement
and Bans on Officeholding: Section 3, at 3-4 (unpublished chapter, forthcoming in The Forgotten Four-
teenth Amendment, Volume 2, University Press of Kansas) (documenting this development).
13 Infra Part IV.A.
14 See, e.g., Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 908-

909 (1994) (making this point about the disqualification of some senators and representatives from
eligibility for certain appointed offices posed by the Emoluments Clause of Article I, § 6, cl. 2); William
Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J. L. & Pub. Pol’y (forthcoming 2023)
(“Sometimes rules go beyond their reasons; a rule can be overbroad compared to the reasons for enact-
ing it. And sometimes rules are underbroad; a rule cannot quite do all the things that you might want
to do given the reasons for enacting the rule. Textualism recognizes that when the judge enforces the
law, the law’s rule might sometimes be different from what the people who enacted the law would have
wanted had they thought about the situation.”). For an extended discussion of the abuse of arguments
from inconvenience, see infra Part II.C.2.a (discussing Chief Justice Chase’s appalling opinion in Grif-
fin’s Case).

10

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 Finally, we take it as almost too obvious to require stating that constitutional
provisions have indefinite life unless and until repealed or amended by subsequent
constitutional enactments. The fact that an unrepealed, unamended provision of law
is “old” does not in any way weaken its legal force. The First Amendment is old too,
as is the entire original Constitution. But both remain in force. This is true even if
the purpose for which a constitutional provision was originally written has ceased to
be relevant, or even if the constitutional provision at issue might be thought in today’s
society to be something of an anachronism.15 There are, of course, some self-identified
living constitutionalists who deny this point—who think that old texts have a legal
shelf life and lose their potency over time, as “the interest in sovereignty fades.”16 But
in our view, this just shows what is wrong with such living constitutionalism.17 The
Constitution is not a spice cabinet.

All of this might seem to belabor the obvious. Few interpreters of Section Three
explicitly deny that it continues to govern new insurrections and rebellions.18 But
sometimes we wonder if this kind of denial is sneaking in to people’s intuitions—
subtly infecting and distorting the actual interpretation of Section Three. So let us
start from the right first principles: Section Three remains constitutionally fully in
force, as alive as the day it was enacted.

B. Has Congress Removed the Disability for Everyone for All Time? (And Could It Do
So If It Wanted To?)

But what about this? The second sentence of Section Three provides that Con-
gress “may by vote of two-thirds of each House, remove such disability.”19 Just as the
first sentence’s disqualification is not limited specifically to the Civil War, neither is
Congress’s power to grant amnesty. Thus, Congress can, by the requisite vote, remove
any disqualification that exists by virtue of the operation of Section Three. But just
exactly how far does that power reach? Could Congress, by two-thirds majorities, es-
sentially extinguish the legally operative effect of Section Three entirely, by removing
the disability imposed by Section Three generally, prospectively, and universally? Put
more vividly: Can Congress, by two-thirds vote of each house, essentially “explode”
Section Three—render it inoperative in the future, for all time?

15 Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457, 1486-1490
(1997) (discussing privilege against self-incrimination).
16 David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What

It Says?, 129 Harv. L. Rev. 1, 58 (2015); see also Adam M. Samaha, Originalism's Expiration Date, 30
Cardozo L. Rev. 1295 (2008).
17 See Baude & Sachs, Grounding, supra note 9, at 1487 (responding to Strauss).
18 For a rare example, see an argument made and rejected by the House during the exclusion of Victor

Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representatives 55 (1935) (“It was
also seriously contended by counsel that section 3 of the fourteenth amendment was an outgrowth of
the Civil War and that such a provision cannot possibly apply to the present case”).
19 U.S. Const. amdt. XIV, sec. 3.

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 These questions turn out not to be completely hypothetical. In two statutes
enacted in the late nineteenth century, Congress might arguably have done this. One
statute (from 1872) removed “from all persons whomsoever”—except designated cat-
egories of individuals—all “political disabilities imposed” by Section Three.20 Another
(from 1898) further removed “the disability imposed by section three of the Four-
teenth Amendment to the Constitution of the United States heretofore incurred.”21
And indeed, in a recent case (brought by then-Representative Madison Cawthorn) a
federal judge relied on these statutes to conclude that Section Three was now legally
dead.22 Is that right? Do these statutes—can these statutes—grant amnesty to all
insurrectionists, past, present and future?23

No. While the argument is not entirely bonkers, it does not withstand more
serious scrutiny. It is wrong on both statutory and constitutional grounds. Consider
the statutes first. Neither one purports to rescind Section Three’s operative rule for
all time. They do not pretend to explode the first sentence of the constitutional provi-
sion.

Begin with the 1872 act. In 1872, after a period of case-by-case consideration
of amnesty requests, Congress, as mentioned above, enacted a general statute remov-
ing disqualification from a broad description of persons embraced by Section Three’s
prohibition. As Professor Magliocca recounts, the statute reflected a mixture of mo-
tives: genuine mercy and magnanimity; the practical consequences of Section Three
in the South; the burdens and biases of case-by-case consideration of private bills; the
politics of a presidential election year; and the general but regrettable retreat from
aggressive Congressional Reconstruction.24 But what is most important is what it
says. The statute reads, in full:

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled (two-thirds of each house
concurring therein), That all political disabilities imposed by the third
section of the fourteenth article of amendments of the Constitution of
the United States are hereby removed from all persons whomsoever,
except Senators and Representatives of the thirty-sixth and thirty-

20 Act of May 22, 1872, ch. 193, 17 Stat. 142.

21 Act of June 6, 1898, ch. 389, 30 Stat. 432.
22 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 889-892 (E.D. N.C. 2022) rev’d sub nom Carthorn v.

Amalfi, 35 F. 4th 245 (4th Cir. 2022). This argument, too, was made and rejected by the House during
the exclusion of Victor Berger. 6 Clarence Cannon, Cannon's Precedents of the House of Representa-
tives 55 (1935).
23 The power in general of Congress by two-thirds vote of each House to remove Section Three’s disa-

bility and the history of its exercise are the central themes of Professor Gerard Magliocca’s excellent
article, cited supra note 5.
24 See generally Magliocca, Amnesty, supra note 5, at 112-120.

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 seventh Congresses, officers in the judicial, military, and naval ser-
vice of the United States, heads of departments, and foreign ministers
of the United States.25

The key words are “imposed” and “[hereby] removed.” The words of the 1872
statute are used in the past tense: the statute removed disqualifications imposed by
the Fourteenth Amendment—that is, disabilities that had already become legally ef-
fective. That is simply the natural reading, and the natural implication, of the lan-
guage employed.

Indeed, this is almost exactly what the Fourth Circuit recently said in revers-
ing the district court’s decision in the Cawthorn case: Congress in 1872 employed “the
past-tense version” of the verb “impose,” thus “indicating its intent to lift only those
disabilities that had by then been ‘imposed.’”26 Moreover, the Fourth Circuit contin-
ued: “[t]he operative clause’s principal verb—‘removed’—reinforces this conclusion.
In the mid-nineteenth century, as today, that word generally connoted taking away
something that already exists rather than forestalling something yet to come.”27

By contrast, the district court had faulted Congress for not being more explicit:
Congress “could have limited the Act to remove Section 3’s disabilities from ‘persons
currently subject to the disabilities’ or ‘persons against whom the disabilities were
lodged’ at the time (i.e., the ‘Confederates’) but did not do so.”28 Therefore, the district
court concluded, by the “plain language of Section 3 and the 1872 Act, Congress re-
moved all of Section 3’s disabilities from all persons whomsoever who were not ex-
plicitly excepted.”29 With all due respect, the district court appears to have been
simply hoodwinked by the (for lack of a better word) feel of the “all persons whomso-
ever” language and completely missed the other language that made clear the stat-
ute’s past tense.

What about the 1898 statute? Does it yield a different result? On the cusp of
the Spanish-American War, at a moment of seeming national unity and perhaps a
desire to put aside old sectional grievances (and, one might add more cynically, at a
time of rising Jim Crow sentiment)30—Congress enacted another general disqualifi-
cation-removal statute. This one removed the disqualification for everybody, without
exception. Its language is even more laconic:

25 Act of May 22, 1872, ch. 193, 17 Stat. 142.

26 Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022).
27 Id.
28 Cawthorn v. Circosta, 590 F. Supp. 3d 873, 891 (E.D. N.C. 2022) rev’d sub nom Carthorn v. Amalfi,

35 F. 4th 245 (4th Cir. 2022).

29 Id.
30 See, e.g., Plessy v. Ferguson, 163 U.S. 537 (1896); Cummings v. Richmond County Bd. of Ed. 175

U.S. 528 (1899). See also Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction
195-201 (2015).

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 Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the disability
imposed by section three of the Fourteenth Amendment to the Con-
stitution of the United States heretofore incurred is hereby re-
moved.31

In one sense, that’s about as categorical, across-the-board a disqualification-

removal as one can imagine: the disability imposed by section three is hereby removed.
Period. No exceptions. But here it is also even clearer that the 1898 act is backward-
looking. Like the 1872 act, the 1898 act uses past-tense language: a disability (al-
ready) “imposed” is now being “removed” from its prior legal existence. What’s more,
the 1898 says that the Section Three disqualification being removed was one “hereto-
fore incurred.” That is unmistakably backward-looking, past-occurrence language.

What might otherwise—that is, but for the clarity of the “heretofore incurred”
language—give the 1898 act the feel of a now-and-ever-shalt-be removal, eliminating
all future Section Three disqualification as well as any and all extant ones, is the
Act’s reference to “the disability” imposed by Section Three. This singular reference
might be taken to suggest that Section Three’s disqualification was thought a one-
time-only, single-shot, Civil War era occurrence.32 If Section Three was good for one
rebellion only, then repealing it in the past tense repeals all that there is. But of
course, as we have argued, Section Three is not limited to one rebellion only, and so
far as we can tell even the Fifty-fifth Congress did not think that it was33 (nor would
it matter if they did).

In any event, though these statutes do not even purport to sunset Section
Three for the future, they do prompt us to consider the interesting question of Con-
gress’s constitutional power: What if they did purport to sunset Section Three for the
future? Is Congress’s constitutional power to remove Section Three’s disqualification
general and prospective, letting it remove Section Three’s disqualification once and
for all, including for future situations? We think not.

To be clear, we don’t think there’s anything inherently unthinkable or absurd

about the idea of an “exploding” or otherwise defeasible constitutional provision. Le-
gal drafters might sometimes want to provide for an expiration event or expiration

31 Act of June 6, 1898, ch. 389, 30 Stat. 432.

32 For instance, the D.C. Circuit’s recess-appointments opinion in Noel Canning v. NLRB, 705 F.3d
490, 500 (D.C. Cir. 2013) aff’d only on alternate grounds, 134 S.Ct. 2550 (2014), leaned heavily on “this
difference between the word choice ‘recess’ and ‘the Recess’,” arguing that “[a]s a matter of cold, una-
dorned logic, it makes no sense to [say] that when the Framers said ‘the Recess,’ what they really
meant was ‘a recess.’ This is not an insignificant distinction. In the end it makes all the difference.”
Id. But a majority of the Supreme Court did not share this view of the text. NLRB v. Noel Canning,
134 S.Ct. 2550, 2561 (2014).
33 For the brief legislative history of the 1898 act, see 31 Cong. Rec. 5367-5419 (1898).

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date, even in an enduring Constitution. Article I’s Slave Importation Clause, protect-
ing the international slave trade, exploded after twenty years.34 So too the initial al-
location of representatives to states is written in to the text of the Constitution, even
though it was then exploded by the subsequent census.35 Other provisions of the Con-
stitution set baseline rules that Congress has power to modify. Article I, section 4
does that with respect to state legislative power over congressional elections: “Con-
gress may at any time by Law make or alter such Regulations.”36 Article III, section
2 does that with respect to the Supreme Court’s appellate jurisdiction, setting a de-
fault rule subject to “such Exceptions, and under such Regulations as the Congress
shall make.”37 The Twentieth Amendment, in Section 2, sets a default date of Con-
gress’s annual meeting.38

There’s no reason why the framers of the Fourteenth Amendment could not
have similarly drafted Section Three to provide for the provision’s own extinction af-
ter a supermajority vote of Congress.39 But that is simply not what Section Three
says. The second sentence of Section Three is not a grant of power to explode, or
amend, the content of the rule stated in the first sentence. It is a grant of power to
remove the consequences of the rule’s operation.

To see this, break down Section Three into its component parts: Section Three
has two sentences. The first one describes at length the disqualification for those who
have taken a covered oath and engaged in insurrection or related conduct. Of course,

34 U.S. Const. art. I, §9, cl. 1. (“The Migration or Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one
thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceed-
ing ten dollars for each Person.”) For a scathing critique of the substance and purpose of this proviso,
see, e.g., Paulsen & Paulsen, supra note 30, at 81-83.
35 U.S. Const. art. I, § 2, cl.3.
36 U.S. Const. art. I, § 4.
37 U.S. Const. art. III, § 2, cl. 2.
38 U.S. Const. amend. XX, §2.
39 We thus part ways with Professor Magliocca here. Magliocca argues (in addition to versions of the

points we make above) that Section Three’s second sentence cannot be read as authorizing Congress
to remove future disabilities because this “would mean that Congress basically repealed Section Three
of the Fourteenth Amendment in 1872. But Congress cannot repeal a part of the Constitution by itself:
only a constitutional amendment can do that.” Gerard N. Magliocca, The January 6th Insurrectionists
Do Not Have Amnesty, JURIST – Academic Commentary, April 13, 2022,
https://www.jurist.org/commentary/2022/04/gerard-magliocca-january-6-insurrectionists/. See also
Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1314 (N.D. Ga. 2022) (“’Congress has no power what-
ever to repeal a provision of the Constitution by a mere statute.’”) (quoting 6 Clarence Cannon, Can-
non's Precedents of the House of Representatives 55 (1935), available at https://www.govinfo.gov/con-
tent/pkg/GPO-HPREC-CANNONS-V6/pdf/GPO-HPREC-CANNONS-V6.pdf#page=75)
This strikes us as not quite right: If Section Three in fact authorized prospective removal of
disqualifications arising from future acts of insurrection, a statute doing so would not be repealing a
constitutional provision but exercising a power conferred by that constitutional provision—a power to
terminate the provision’s ongoing legal effect.

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those two things must actually have happened for the rule of Section Three’s first
sentence to be triggered—for a disqualification to have come into legal effect.

The second sentence (the “But” sentence) then gives Congress the power to “re-
move such disability.” (“But Congress may by a vote of two-thirds of each House, re-
move such disability.”) The “But” sentence explicitly cross-references the first. Thus,
the most natural reading of the two sentences in relation to each other is that the
second sentence confers an exceptions power that only comes into existence when the
conditions specified in the first sentence have occurred. And to belabor the point a
moment further, the word “Remove” means (and meant at the time, according to 1864
dictionaries) to displace or take away something that already exists.40 This confirms
that Congress’s removal power therefore only comes into being when a legal disqual-
ification has vested by virtue of the operation of Section Three’s first sentence.

Section Three’s first sentence is written as a general and prospective rule, not
limited to the specific instance of the Civil War. Section Three’s second sentence is
written as a continuing power to grant relief from disabilities already imposed by the
operation of the first sentence. The power to remove an extant legal disability is not
a power to rescind the legal rule that creates that disability. Thus, not only has Con-
gress never purported to sunset Section Three, it lacks the power to do so by Section
Three’s own terms.

***

All of this is, we submit, basic. But it is also foundational. Section Three re-
mains legally operative as part of the U.S. Constitution. Its rule of disqualification is
general, not limited to the Civil War era. It states a rule of law embodied in the writ-
ten constitutional text as permanent fundamental law. It possesses prospective force
and applies to new situations: wherever the rule applies, the rule applies. And while
Congress comprehensively relieved insurrectionists of the disability of disqualifica-
tions incurred prior to 1898, it did not (and could not) erase Section Three from the
Constitution. Section Three remains in force.

Is anything more required, then, before this provision of the Constitution can
(and must) be given effect by U.S. political actors whose powers and duties are such
as to call for application of Section Three as a rule of law? Put somewhat differently:
Is Section Three a self-executing rule of constitutional law, complete in itself? Or does
Section Three require implementing legislation by Congress or some other further
legal or administrative action before it has legal force? We take up that question next.

40Dr. Webster’s Complete Dictionary of the English Language 1116 (Chauncy A. Goodrich and Noah
Porter, eds. 1864) (defining “remove” as “To cause to change place; to move away from the position
occupied; to displace”) (quoted in Cawthorn v. Amalfi, 35 F. 4th 245, 258 (4th Cir. 2022)).

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II. Section Three is Legally Self-Executing

Our second point is colossally important—a major sticking point for some. But
it is a point we think should be obvious: Section Three is self-executing. That is, its
disqualifications from office are constitutionally automatic whenever its conditions
for disqualification are met. Nothing more needs to be done in order for Section
Three’s prohibitions to be legally effective. Section Three requires no implementing
legislation by Congress. Its commands are enacted into law by the enactment of the
Fourteenth Amendment. Where Section Three’s legal rule of constitutional disquali-
fication is satisfied, an affected prospective officeholder is disqualified. Automati-
cally. Legally.

In the years immediately after the Fourteenth Amendment was adopted this
seemingly obvious reading of Section Three was deemed inconvenient, rejected in the
highest quarters, and has since faded from view. We thus give the point considerable
attention here. Our analysis here is organized in three steps. First, we take Section
Three itself, and explain why it has direct legal effect. Second, we discuss how this
legal effect can and must be recognized by all persons and institutions who have the
occasion to apply it in the performance of their duties—election officials, state and
federal administrators, legislatures, courts. Third, we consider at some length the
leading counterargument to our view: the 1869 opinion written by Chief Justice
Salmon P. Chase as a circuit court judge in Griffin’s Case. Even if the result in that
case is defensible—which is far from clear, and raises grave separation of powers
problems of its own—its argument against self-execution is so wrong as to prove our
case. Section Three is legally self-executing as operative constitutional law.

A. Section Three as Automatic Legal Disqualification

Before we consider Section Three itself, consider the Constitution as a whole.

Though too many constitutional law teachers and casebooks begin their study of the
Constitution with questions of judicial review, and cases like Marbury,41 in doing so
they put the cart before the horse. The horse is the Constitution, which is itself the
“supreme law of the land.”42 Our system is one of constitutional supremacy, not judi-
cial supremacy or legislative supremacy. As a general matter, this means that it is
the Constitution which states the law, and it is the job of government officials to apply
it, not the other way around.

This general truth is no less true of Section Three. Section Three’s language is
language of automatic legal effect: “No person shall be” directly enacts the officehold-
ing bar it describes where its rule is satisfied. It lays down a rule by saying what shall

41 But not ours! See Paulsen, McConnell, Bray and Baude, The Constitution of the United States (5th
ed. 2022).
42 U.S. Const. art. VI.

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be.43 It does not grant a power to Congress (or any other body) to enact or effectuate
a rule of disqualification. It enacts the rule itself. Section Three directly adopts a
constitutional rule of disqualification from office.

This should be no surprise, as the same thing is true of the Constitution’s other
rules of disqualification from office. A person who has not attained to the age of thirty-
five is not qualified to be President of the United States. This disqualification is au-
tomatic. The Constitution’s rule is self-executing. “No person . . . shall be eligible” to
be President who does not satisfy the age requirement.44 The disqualification requires
no further legislation or other action, by anybody, to be operative. The disqualification
simply is. So too for Article II’s citizenship and length-of-residency eligibility prereq-
uisites for the office of President. And so too for the constitutional qualifications—
age, citizenship, state inhabitancy—for members of the House and Senate: “No Per-
son shall be” a Representative who does not meet Article I, section 2’s requirements.45
“No Person shall be” a U.S. Senator who does not meet Article I, section 3’s require-
ments.46 These restrictions on eligibility are legally binding simply by virtue of their
presence in the Constitution.

The language of Section Three of the Fourteenth Amendment parallels, even

duplicates, the language used in these other provisions to express other constitutional
disqualifications from officeholding.47 None of these disqualifications requires any
further legal action or legislation to be operative. Where a constitutional legal dis-
qualification exists, it simply exists. It is a binding rule of constitutional law.

Again, this kind of binding rule should be no surprise. The Thirteenth Amend-
ment’s ban on slavery, enacted a few years earlier, works the same way. Immediately
upon adoption of the amendment, slavery was legally extinguished as a matter of
constitutional law. “Neither slavery not involuntary servitude . . . shall exist …,” the
Thirteenth Amendment provides.48 The institution of slavery was immediately, le-
gally, constitutionally gone.49 The Thirteenth Amendment contains a separate section
granting Congress the power to enforce the prohibition of slavery.50 But that enforce-
ment power scarcely means that the ban on slavery contained in Section One was
inoperative unless and until Congress passed legislation making it operative. Such a

43 We have borrowed this felicitous phrasing from John Harrison. Cf. John Harrison, The Power of
Congress to Limit the Jurisdiction of the Federal Courts and the Text of Article III, 84 U. Chi. L. Rev.
203, 211 (1997) (“The Vesting Clause is a self-executing enactment; it lays down rules by saying what
shall be.”)
44 U.S. Const. art. II, §2, cl. 5 (emphasis added).
45 U.S. Const. art. I, §2, cl. 2(emphasis added).
46 U.S. Const. art. I, §3, cl. 3 (emphasis added).
47 See Josh Chafetz, Democracy’s Privileged Few 168 (2007).
48 U.S. Const. amend. XIII §1 (emphasis added).
49 See Alexander Tsesis, The Thirteenth Amendment and American Freedom: A Legal History 48–53

(2004) (documenting reactions of persons learning of their freedom immediately after ratification).
50 U.S. Const. amend. XIII §2 (“Congress shall have power to enforce this article by appropriate legis-

lation.”).

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position would be ridiculous. The power to enforce adds to the substantive prohibi-
tion—it is not a subtraction from or suspension of it.

And of course, the same is true elsewhere in the Fourteenth Amendment too.
We take it as obvious that Section One is self-executing. Section One of the Four-
teenth Amendment, like Section Three states directly operative rules of constitu-
tional law: “No state shall,” in Section One, and “No person shall” in Section Three.51
Both of these provisions are subject to additional enforcement legislation by Congress
under Section Five. Yet it is common ground that Section One is self-executing. No-
body thinks (for example) that the prohibitions of Section One are inoperative unless
and until Congress enacts legislation pursuant to its Section Five legislative power
to bring them to life.

In each instance, Congress certainly can enact legislation “to enforce” the Thir-
teenth and Fourteenth Amendments’ commands, pursuant to their grants of legisla-
tive power.52 Doing so can unlock additional procedural mechanisms, additional def-
erence by courts to Congress’s view of the law, and so on. The Civil Rights Act of 1866,
the Ku Klux Klan Act of 1871 and more were designed to enforce Section One of the
Thirteenth and Section One of the Fourteenth Amendment. But, to repeat, the exist-
ence of an enforcement power does not mean that the Amendment’s specific legal
commands lack any independent, self-executing force.53

So too, Congress in fact enacted implementing legislation in 1870 to enforce

Section Three, authorizing quo warranto civil suits brought by the United States to
remove state officials unconstitutionally holding office in violation of Section Three
and imposing criminal penalties for knowing violations of Section Three. 54 But Con-
gress’s choice to trigger additional procedural mechanisms and federal jurisdiction

51 U.S. Const. amdt XIV, sec. 1, 3. Nothing here turns on it, but Section Four of the Fourteenth Amend-
ment, which repudiates rebel and slave debts while guaranteeing the legal obligation of the national
debt, also seems to be self-executing. Section Two, which alters Article I, section 2’s rule for how Rep-
resentatives “shall be apportioned,” presents a more complicated case. Its rule is immediately opera-
tive, like the rest of the Fourteenth Amendment, but its rule operates by changing an apportionment
process undertaken by Congress. In practice, Congress has ignored it, see Michael Rosin, The Five-
Fifths Rule and the Unconstitutional Presidential Election of 1916, 46 Hist. Meth. 57 (2013); Amar,
America’s Constitution, supra note 4, at 395; see also email from John Harrison to Akhil Reed Amar,
quoted in id. at 611 n. 96, and it is hard to see how anybody else can realistically enforce it.
52 U.S. Const. amdt. XIII, sec. 2; amdt. XIV, sec. 5.
53 Indeed, Section One was added to an early draft of the Fourteenth Amendment precisely to ensure

that state Black Codes would be unenforceable even if there were no federal legislation saying so.
Baude, Campbell, & Sachs, supra note 10, at 30-31, 63-64.
54 Act of May 31, 1870 (First Ku Klux Klan Act), ch. 114 §§14, 15, 16 Stat. 140, 143. These provisions

were largely repealed during the 1948 positive law codifications of Titles 18 and 28 of the U.S. Code.
See Act of June 25, 1948, ch. 646, § 39, 62 Stat. 869, 993; see also Act of June 25, 1948, 62 Stat. 683;
Lynch, supra note 5, at 206 n. 365. These codifications were not supposed to make substantive changes
to the law, see generally William W. Barron, The Judicial Code, 8 F.R.D. 439 (1949), and so our best
guess is that the revisers (mistakenly) believed the provisions to be obsolete. In any event, the 1948

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for Section Three cases does not mean that there was no constitutional prohibition
before Congress acted.55 Congress enforced Section Three’s prohibition. Congress was
not the one to give it legal effect. Section Three was effective law all along.

Section Three is also noticeably different from other constitutional provisions

that deal with misbehavior—provisions that are not self-executing in the same way.
Article III, for instance, describes the offense of treason:

Treason against the United States, shall consist only in levying war against
them, or in adhering to their enemies, giving them aid and comfort. No person
shall be convicted of treason unless on the testimony of two witnesses to the
same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no
attainder of treason shall work corruption of blood, or forfeiture except during
the life of the person attainted.56

Note the contrast. The Treason Clause defines an offense (“Treason . . . shall
consist”) but it does not itself convict anybody of treason. Section Three, by contrast,
enacts its own disqualification (“No person shall be”). It acts on persons, not offenses.
This is driven home by the Treason Clause’s specific procedures and powers:
“[C]onvict[ions] of treason” require two witnesses or a public confession; and “Con-
gress shall have power to declare the punishment of treason.” Section Three of the
Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled
in to one.

Similarly, the Constitution’s impeachment provisions say that those who are
impeached “shall be removed from Office.”57 But the Constitution does not itself im-
peach anybody. Instead, it specifies that somebody else—the House and Senate—
must do the impeaching.58 Again, Section Three’s contrast is glaring. The framers of
Section Three had the treason clause and impeachment clauses at hand and chose a

codification bills were obviously not intended to preclude any other existing remedies for Section
Three.
55 Professor Magliocca concurs. Magliocca, Amnesty, supra note 5, at 106 & n.101 (noting that “enacting

enforcement legislation does not imply that legislation is required” and that the existence of Section
Five of the Fourteenth Amendment does not imply that the other sections are not self-executing). In-
deed, this is especially so because Congress may have been responding to the decision in Griffin’s Case
(wrongly) holding that such legislation was required for Section Three to have operative legal effect.
See infra Part II.C.
56 U. S. Const. art. III, sec. 3.
57 U.S. Const. art. II, sec. 4.
58 U.S. Const. art I, sec. 3 & sec. 4.

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noticeably different path.59 Section Three does not call for treason trials or the im-
peachment of secessionists. It directly imposes an across-the-board disqualification
and involves Congress only if Congress wishes to end it.

Section Three’s constitutional disqualification, where applicable, just is. It

stands on its own as a constitutional rule of law, having come into legal force “as Part
of this Constitution,” along with the rest of the Fourteenth Amendment, “when rati-
fied” as a constitutional amendment.60 It immediately became “supreme Law of the
Land.” 61 Its rule took immediate effect. Section Three is, in that sense, legally self-
executing.

Is there any serious textual argument to the contrary? We will address Chief
Justice Chase’s conclusion in Griffin’s Case in a moment. But we suspect that re-
sistance to this point often comes instead from some misdirected intuitions. One is
the problem of supposed difficulty. It seems easy, perhaps, to apply the constitutional
qualifications of age and citizenship.62 It is pretty obvious what these are and obvious
what they demand that we do. But who exactly is disqualified by Section Three is, at
least to initial appearances, a more difficult, complicated, and fact-specific question.
It is a more difficult question of law because we must plumb the meanings of “insur-
rection” and “rebellion” and so on—and these meanings are not quite as self-evident
as “thirty-five years of age” (at least until this article is widely read and accepted).
And it is more difficult in practice, because even once we know what the terms of
Section Three mean, we must know what exactly every prior-oath-sworn official did.

59 Indeed, for what it is worth, the legislative history supports this understanding. Section Three’s
opponents criticized the proposal for its immediate consequences on former Confederates, and its pro-
ponents seemed to share the same understanding. For opponents, see Cong. Globe 39th Cong., 1st
Sess., at 2900 (Senator Doolittle) (amendment “will have the effect of putting a new punishment, not
prescribed by the laws, upon all those persons who are embraced within its provisions”); id. at 2916
(Senator Doolittle); id. at 2940 (Senator Hendricks) (complaining about immediate consequences); for
proponents, see id. at 2919 (Senator Willey) (defending the amendment’s immediate effect because
those affected had already “forfeited” their claim to participate in government “by their past conduct’);
id. (they lost their "citizenship rights when they committed treason"); Cong. Globe 39th Cong., 1st
Sess., App., at 228 (Senator Defrees); Cong. Globe, 39th Cong., 1st Sess. at 3036 (Senator Henderson)
(defending the immediate effect of Section Three against the charge that it is a bill of attainder or ex
post facto law); see generally infra Part III.A-B. See also Graber, supra note 12, at 26-27, 35-37 (docu-
menting all of these discussions) .
60 U.S. Const. art. V.
61 U.S. Const. art. VI, cl. 2.
62 See Gerard N. Magliocca, Background as Foreground: Section Three of the Fourteenth Amendment

and January 6th, at 14 n.42 (Mar. 2, 2023), https://papers.ssrn.com/sol3/papers.cfm?ab-

stract_id=4306094 (“Section Three was unprecedented in the sense that prior restrictions on serving
in office were bright-line rules (age and citizenship, for example) instead of standards”). On the other
hand, the Constitution’s inhabitancy requirement, has proved far from simple in practice. See Jack
Maskell, Congressional Research Service, Qualifications of Members of Congress (Jan 15, 2015) at 13-
18, https://sgp.fas.org/crs/misc/R41946.pdf. And there has been recent litigation about the requirement
that the President be a “natural born citizen” as well. See Derek T. Muller, “Natural Born” Disputes
in the 2016 Election, 85 Fordham L. Rev. 1097 (2016).

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Not all participation in insurrection or rebellion is open and notorious. More difficult
it may be, to interpret and apply the disqualification of Section Three than the dis-
qualifications of age, citizenship, and residency. But the fact of difficulty is a non
sequitur. The fact that it might be hard for us to know today what a legal rule means
(or how it applies) does not mean that it is not the legal rule.63 The Constitution says
what it says and we must try to apply it as best we can. To start by asking what is
easy for us, and then to assume that the Constitution must mean something that
makes our lives easy, is as fallacious as drawing the curve before gathering the data
points.64

Resistance might also come from the problem of enforcement. The Constitution
is generally self-executing law, but still, somebody has to enforce it. Somebody has to
read it, understand it, and ensure that our practices conform to its commands. (Many
somebodies, actually, as we discuss shortly.) This is true, but again it is a non-sequi-
tur. It is true that government officials must enforce the Constitution, and who does
this and how they do it are important questions, maybe the central questions of con-
stitutional law. But the meaning of the Constitution comes first. Officials must en-
force the Constitution because it is law; it is wrong to think that it only becomes law
if they decide to enforce it. Section Three has legal force already.

B. Who (All) Can (Must) Faithfully Apply and Enforce Section Three?

As we just said, even though Section Three is a self-executing, immediately

applicable constitutional legal rule, someone needs to do the actual applying of that
rule to particular situations where its application is called for. Section Three’s consti-
tutional disqualification exists of its own force as an abstract matter. But someone
needs to bring that legal rule to bear in a concrete situation as a practical matter.

Who has the power and duty to do this? We think the answer is: anybody who
possesses legal authority (under relevant state or federal law) to decide whether
somebody is eligible for office. This might mean different political or judicial actors,
depending on the office involved, and depending on the relevant state or federal law.
But in principle: Section Three’s disqualification rule may and must be followed—
applied, honored, obeyed, enforced, carried out—by anyone whose job it is to figure
out whether someone is legally qualified to office, just as with any of the Constitu-
tion’s other qualifications.

63 Christopher R. Green, Constitutional Truthmakers, 32 Notre Dame J. L. Ethics & Pub Pol’y 497,
511-512 (2018).
64 Cf. Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L. Rev. 795, 839 (1993) (mocking

constitutional interpretation that engages in “the legal equivalent of the method my lab partner and I
used in high school chemistry: first draw the desired curve; then plot the data; if time permits, do the
experiment”); Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777 (2022).

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 These actors might include (for example): state election officials; other state
executive or administrative officials; state legislatures and governors; the two houses
of Congress; the President and subordinate executive branch officers; state and fed-
eral judges deciding cases where such legal rules apply; even electors for the offices
of president and vice president. We will discuss in detail some of these examples pres-
ently. But two points are important to keep clear at the outset: First, all of these
bodies or entities may possess, within their sphere, the power and duty to apply Sec-
tion Three as governing law. Second, their authority to do so exists as a function of
the powers they otherwise possess. No action is necessary to “activate” Section Three
as a prerequisite to its application as law by bodies or persons whose responsibilities
call for its application. The Constitution’s qualification and disqualification rules ex-
ist and possess legal force in their own right, which is what makes them applicable
and enforceable by a variety of officials in a variety of contexts.

Consider some illustrations:

1. Seeking Office

a. by election

Anybody who seeks office will at some point need to show that they are entitled
to hold that office. At every point that this occurs, Section Three governs. So, for in-
stance, state or local election boards, and state Secretaries of State, may possess state-
law authority to make at least initial determinations as to eligibility of candidates for
elected office in that state or representing that state in Congress (as authorized by
Article I, section 4 of the Constitution)—and, thus, whether or not such candidates
shall be placed on a primary or general election ballot.65 Those state bodies or officers
are obliged, often by oath—sometimes by oath mandated by the U.S. Constitution—
to act consistently with the requirements of the Constitution in the discharge of their
duties.66 Accordingly, such state actors can and must apply Section Three’s disquali-

65 To be sure, the centralized, government-administered ballot did not come to American until the late
Nineteenth Century and so of course states are not constitutionally required to run elections in this
way. But if they do, Section Three governs how they carry out their duties.
66 U.S. Const. art. VI, cl.2 (“This Constitution … shall be the supreme Law of the Land”). See also U.S.

Const. art. VI, cl.3 (“The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to support this Constitution.”). The nature of
the Constitution as supreme, binding law is of course fundamental to the argument for “judicial re-
view,” as it is likewise fundamental to the argument for the obligation of all government officials to
adhere to the law supplied by the Constitution and give its commands priority over any other source
of law or legal duty. See generally Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101
Mich. L. Rev. 2706 (2003); see also William Baude, Severability First Principles, 109 Va. L. Rev. 1, 5-
9 (2023).

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fication in carrying out their state-law responsibilities—just as they possess the au-
thority and duty to comply with and enforce the Constitution’s other qualification-
for-office requirements.67

For an example of how this process is supposed to work, consider how the state
of Georgia entertained a Section Three challenge to the qualifications of Representa-
tive Marjorie Taylor Greene under Georgia law. A state administrative law judge took
evidence about Representative Greene’s involvement in the events of January 6,
2021.68 The judge proceeded under the theory that if January 6 was a constitutional
“insurrection,” and if Representative Greene had been part of it, she would be barred
from office.69 But it concluded that the challengers had failed to meet their burden of
proof under state law: “In short, even assuming, arguendo, that the Invasion was an
insurrection, Challengers presented no persuasive evidence Rep. Greene took any ac-
tion—direct physical efforts, contribution of personal services or capital, issuance of
directives or marching orders, transmissions of intelligence, or even statements of
encouragement—in furtherance thereof on or after January 3, 2021.”70 Secretary of
State Brad Raffensberger issued a final decision ratifying the hearing officer’s pro-
posed findings that day.71

Such determinations about ballot eligibility may also be subject to further ju-
dicial review. In state courts, these procedures will of course depend on what review
is available under state law. Similarly, federal courts might well possess jurisdiction,
subject to the usual federal jurisdiction doctrines (such as standing, ripeness, moot-
ness, and abstention), to decide cases of candidate eligibility. Continuing the example,
Representative Greene did file a federal lawsuit attempting to enjoin the then-pend-
ing state proceedings (mentioned above), and the district court concluded that the
case was justiciable and that Younger abstention did not apply, but that Greene’s
claims failed on the merits.72 While Greene’s appeal to the Eleventh Circuit was pend-
ing, she prevailed in the state proceedings, so the case was dismissed as moot. 73 The

67 We note that the determination by state officials that a candidate for election to the U.S. Congress
is not disqualified—and may be elected—does not bind the respective houses of Congress, in the exer-
cise of their independent Article I, section 5, powers to act as “Judge” of the “Elections, Returns, and
Qualifications of its own Members” and refuse to seat prospective members it judges to be constitu-
tionally disqualified by Section Three or other constitutional limitation. See also infra n. 96 and ac-
companying text.
68 Initial Decision, Rowan v. Greene, No. 2222-582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office

of State Administrative Hearings, May 6, 2022).

69 Id. at 5-6.
70 Id. at 15. The January 3, 2021 cut-off is because that is the date that Representative Greene first

took a constitutional oath. The Court also specifically rejected the argument that a Newsmax appear-
ance on January 5, 2021, should be interpreted as a “coded message from Rep. Greene to her co-con-
spirators to go forward with a previously planned incursion into the Capitol.” Id. at 16.
71 Final Decision, Rowan v. Greene, No. 2222-582-OSAH-SECSTATE-CE-57-Beaudrot (Georgia Office

of the Secretary of State, May 6, 2022).

72 Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1320 (N.D. Ga. 2022).
73 Greene v. Sec'y of State for Georgia, 52 F.4th 907, 909-910 (11th Cir. 2022).

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details, of course, will vary from case to case. But where any of these tribunals has
jurisdiction they too obviously have the power and duty to apply Section Three as the
supreme law of the land.

This is not to say that states must provide any particular procedure for bring-
ing a challenge to ballot eligibility qualification or grant a cause of action to particular
private individuals to bring such challenges. For instance, in a recent suit seeking to
disqualify Arizona Representative Mark Finchem and U.S. Representatives Paul Go-
sar and Andy Biggs from the 2022 primary ballot, the Arizona Supreme Court con-
cluded that state law did not provide a private cause of action for a disqualification
challenge.74 In principle, that could well be right. Whether to provide a cause of action
in such cases is largely a question of state law. Section Three slots in to existing pow-
ers and procedures without mandating or micromanaging them.

That said, the Arizona Supreme Court’s muddied reasoning in the Finchem-
Gosar-Biggs case necessitates a few clarifying points. First, state law can enforce Sec-
tion Three, and the Fourteenth Amendment does not place any particular presump-
tion against doing so. Unfortunately, the Arizona Supreme Court suggested other-
wise, writing that “Section 5 of the Fourteenth Amendment appears to expressly del-
egate to Congress the authority to devise the method to enforce the Disqualification
Clause . . . which suggests that A.R.S. 16-351(B) does not provide a private right of
action to invoke the Disqualification Clause against the Candidates.”75 This inference
is mistaken—Congress’s power to enforce federal law, including constitutional law,
is not exclusive of the states, and states regularly enforce federal law including con-
stitutional law in their own courts.76

Second, in some circumstances state law not only can but must enforce Section
Three. Under the rule of Testa v. Katt,77 where a state does open its courts to a cause
of action, it must apply federal law evenhandedly to that cause of action. As the unan-
imous Court put it: “[T]he Constitution and the laws passed pursuant to it are the
supreme laws of the land, binding alike upon states, courts, and the people, ‘any-thing

74 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157 (Ariz. Supreme Ct. May 9, 2022)
(nonprecedential disposition).
75 Id. at *1. The court did not cite any authority for this interpretation, but its argument does echo a

fallacious argument made by Chief Justice Chase in Griffin’s Case, which we discuss at greater length
presently. See infra Part II.C.2.d. The Arizona Supreme Court also made the additional suggestion
that Article I, Section 5 gave Congress “exclusive authority to determine whether to enforce the Dis-
qualification Clause against its prospective members,” id. We are skeptical of this point as well, see
infra n. 96 and accompanying text, but in any event it would have only applied to federal representa-
tives Gosar and Biggs, not the lead defendant, state representative Finchem. The individual houses of
Congress of course have no Article I, Section 5 power, exclusive or otherwise, to determine the mem-
bership of state legislatures.
76 See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458-460 (1990); id. at 469- 470 (Scalia, J., concurring); see

also Thomas Koenig & Christopher D. Moore, Of State Remedies and Federal Rights (May 29, 2023)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4462807.
77 330 U.S. 386 (1947).

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in the Constitution or Laws of any State to the contrary notwithstanding.”78 And thus
“the policy of the federal Act is the prevailing policy in every state.” 79 A state cannot
treat federal obligations the way it can treat foreign ones.

The Arizona Supreme Court’s decision unfortunately can be read to suggest

otherwise. The court cryptically wrote that the state “statute’s scope is limited to
challenges based upon ‘qualifications . . . as prescribed by law,’ and does not include
the Disqualification Clause, a legal proscription from holding office.” 80 If the court
meant to distinguish federal constitutional qualifications from state statutes, it
seems to have violated Testa. If the court meant that Section Three’s dis-qualification
is not a “qualification,” that seems nonsensical. And if it meant something else, it is
hard to figure out what.

In any event, the real question is what procedure is available for determining
whether a candidate is qualified to office. That is basically a question of state law,
and the correct procedures will likely vary from state to state. But the courts owe
state law a full and fair reading, not one slanted by reticence to acknowledge the life
in Section Three.

b. by appointment

Now let us turn to appointments. Just as with elected office, anybody who must
decide whether an appointee is qualified must comply with Section Three. Tradition-
ally this includes at a minimum whoever nominated the officer.81 Thus governors,
presidents, and other nominating authorities can and should—indeed, constitution-
ally must—decline to nominate and appoint to state or federal offices persons who are
constitutionally disqualified by Section Three. And likewise, where nominating au-
thority is subject to additional confirmation—by a state senate, the U.S. Senate, or
any other body—that body presumably can and should, constitutionally must, decline
to consent to the appointment of such constitutionally disqualified nominees.82

78 Id. at 391 (quoting U.S. Const. Art VI, sec. 2).

79 Id. at 393. To be sure, Testa and especially subsequent cases expanding it have been subject to
powerful criticisms as a matter of original meaning, see Ann Woolhandler & Michael G. Collins, State
Jurisdictional Independence and Federal Supremacy, 72 Fla. L. Rev. 73, 78-83, 97-105 (2020); Hay-
wood v. Drown, 556 U.S. 729, 742-67 (2009) (Thomas, J., dissenting). We bracket those criticisms here.
80 Hansen v. Finchem, No. CV-22-0099-AP/EL, 2022 WL 1468157, at *1 (Ariz. Supreme Ct. May 9,

2022) (nonprecedential disposition).

81 For instance, both President George Washington and President Franklin Roosevelt felt obligated to

consider whether their Supreme Court nominees (Patterson and Black, respectively) were constitu-
tionally disqualified by Article I, sec. 6. See William Baude, The Unconstitutionality of Justice Black,
98 Tex. L. Rev. 327, 330, 333-334, 355-356 (2019).
82 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional? 46 Stanford L. Rev. 907, 914-918

(1994) (discussing constitutional responsibility of political branches to enforce constitutional disqual-

ifications from office irrespective of whether they give rise to a judicial case or controversy, and be-
moaning the failure of all to enforce the Emoluments Clause); see also Baude, Black, supra note 81, at
355-356 (similar); see also Michael Stokes Paulsen, Straightening Out The Confirmation Mess, 105

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 In other words, the election and appointment systems, from top to bottom, fre-
quently make decisions about a candidate’s eligibility for office. All of those decisions
are legally bound by Section Three of the Fourteenth Amendment; and all persons
making such decisions are correspondingly bound to faithfully interpret, enforce, and
apply Section Three.

2. Holding Office

What about those who already hold office—either because Section Three was
not attended to before they gained office, or because their disqualifying conduct hap-
pened later?83

Once again, the answer turns in part on what procedures are available under
other law. State officials can be subject to a variety of remedies for unlawfully holding
office. They might (or might not) be subject to removal, as a matter of state law, by a
private suit quo warranto, by the authority of another executive or judicial officer or
administrative board, or perhaps even by the state legislature exercising powers of
impeachment or recall. In addition, it is possible that the salaries of such rightfully-
disqualified officials—and the legal eligibility of such persons for those salaries—
might be subject to the authority and determination of some other state official.

We submit that all such officials—administrators, executives, legislatures—

possessing legal authority concerning such matters likewise possess the authority
(and duty) to interpret, apply, and enforce Section Three’s disqualification in the
course of exercising that legal authority. And once again: if such determinations are
judicially reviewable under state law, the courts likewise possess the authority and
duty to interpret, apply, and enforce Section Three.84

For an example of how this process is supposed to work consider how the state
of New Mexico removed commissioner Couy Griffin from state office.85 Griffin was an
elected commissioner for Otero County, New Mexico, who promoted, assisted, and

Yale L.J. 549, 562-570 (1995) (noting parallel constitutional structural argument for obligation of both
the President and the Senate to exercise independent faithful constitutional interpretive judgment in
the course of carrying out their respective powers with respect to appointment); Charles L. Black, Jr.,
A Note on Senatorial Consideration of Supreme Court Nominees, 79 Yale L.J. 657, 658-660 (1970)
(similar).
83 Or because Section Three was not yet adopted as law when they were appointed to office but became

operative and disqualified them subsequently. This was the situation presented in Griffin’s Case, dis-
cussed presently. See infra at II.C.
84 Of course, federal courts, too, might possess jurisdiction, subject to the usual rules and conditions,

to decide such lawsuits just as they will for state determinations of election candidate eligibility. See
supra notes 72-73 and accompanying text. And when doing so, they have the authority and duty to
interpret, apply, and enforce Section Three.
85 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473 (1st. Dist. Santa Fe

County, Sep. 6, 2022).

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ultimately joined in the January 6 insurrection against the Capitol. A group of New
Mexico citizens filed a quo warranto action against Griffin under New Mexico law,
seeking his removal from office. The New Mexico district court took evidence, received
legal arguments, and then concluded that Griffin was disqualified under Section
Three. More precisely, and quite correctly, it held that Griffin had been disqualified
since the day of the January 6 insurrection, and ordered his immediate ejection from
office, and permanently enjoined him from seeking or holding any other covered po-
sition.86

As a matter of state procedure, the court concluded that the New Mexico quo
warranto statute was a remedy for ejecting unlawful office holders.87 It also concluded
that quo warranto could be sought by any citizen of New Mexico, without any further
showing of injury, because the New Mexico courts are not bound by the same “stand-
ing” limitations as the federal courts are. As a matter of federal law, the court had no
trouble concluding that the events of January 6. 2021 were a constitutional “insur-
rection.” And it had no trouble concluding that Griffin had engaged in that insurrec-
tion, both by “voluntarily aid[ing] the insurrectionists’ cause by helping to mobilize
and incite” the crowd, and by joining in the invasion of the Capitol itself, even though
Griffin himself did not commit a violent act.88 The New Mexico county court correctly
recognized both its power and its duty to interpret and apply Section Three of the
Fourteenth Amendment.

The same general principle applies to the situations of those who hold federal
office. Again, anyone who possesses legal power to decide whether such a person can
and should hold (or continue to hold) the office in question must apply Section Three’s
disqualification in doing so.89 Here, the specific federal constitutional rules for tenure
and removal present some interesting complications, which we address shortly.

86 Id. at 46. The New Mexico Supreme Court dismissed Griffin’s appeal on procedural grounds. NO. S-
1-SC-39571 (N.M. Sup. Ct. Nov. 15, 2022). Meanwhile, the federal courts concluded that they lacked
federal jurisdiction over two related claims by Griffin: an attempt to remove the state action to federal
court, State ex rel. White v. Griffin, 2022 WL 1707187 (D.N.M. May 27, 2022) (denying removal be-
cause of plaintiffs’ lack of Article III standing) and a separate parallel suit attempting to enjoin the
state proceedings, Griffin v. White, 2022 WL 2315980 (D.N.M. June 28, 2022) (finding lack of standing,
lack of ripeness, and invoking Pullman abstention).
87 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473, at 24-25 (1st. Dist.

Santa Fe County, Sep. 6, 2022).

88 Id. at 35-38.
89 The availability of a federal quo warranto action is curiously codified in the D.C. Code, §§ 16-3501-

02. Courts have generally construed this statute quite narrowly, holding that only the Attorney Gen-
eral may bring a quo warranto against a public official, and that he has broad discretion not to do so.
See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984); Drake v. Obama, 664 F.3d 774, 784-785
(9th Cir. 2011); SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 81 (D.C. Cir. 2015), aff'd, 580 U.S. 288 (2017).
The Third Circuit recently dismissed a Section Three quo warranto against former state senator Doug
Mastriano on this ground. Hill v. Mastriano, No. 22-2464, 2022 WL 16707073, at *2 (3d Cir. Nov. 4,
2022). See also Hill v. Perry, No. 22-2465, 2023 WL 3336648, at *1 (3d Cir. May 10, 2023) (dismissing
similar suits by same plaintiff against Rick Saccone and Scott Perry).

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 But in general: wherever anyone possesses the constitutional authority or duty
to remove others from office for legal reasons, they can and should remove those
barred by Section Three. Presidents—and subordinate executive officers acting at the
president’s direction—should remove from office executive officers, civil and military,
who are constitutionally disqualified by Section Three. Likewise, the House of Rep-
resentatives should impeach, and the Senate convict and thereby remove from office,
civil executive officers who become constitutionally disqualified by Section Three.90

Finally and additionally, what happens if all of the above fails? Somebody dis-
qualified by Section Three is given office and nobody removes that person from office.
What then? Here too there will often still be additional procedures to enforce Section
Three. These procedures mirror those available to enforce the Appointments Clause
and other constitutional law of appointments. A litigant can move to disqualify a
judge whose appointment is improper.91 A regulated entity can challenge the actions
of an executive official who holds office improperly.92 Those who cannot constitution-
ally hold office cannot constitutionally exercise government power, so the subjects of
that power can challenge their acts as ultra vires. While there may be some limits to
the available relief in some kinds of suits under the “de facto officer doctrine,” (more
on which shortly), in many cases the courts will be called on to decide if an action is
ultra vires. Section Three governs those cases.

3. Special Situations

A few federal constitutional offices raise special cases, where the Constitution
itself speaks to official tenure or qualifications.

First consider Congress. Each house of Congress has two specific powers with
respect to its own membership in which Section Three might come into play. First,
each house has power to “Judge of the Elections, Returns, and Qualifications” of “its
own Members.”93 Since one of those qualifications is non-disqualification under Sec-
tion Three, each house can and must judge whether Section Three forbids the seating
of a member. This judgment is conclusive, and it operates as a crucial constitutional

90 An officeholder who has engaged in insurrection or rebellion or given aid and comfort to enemies of
the United States has surely committed a “high Crime or Misdemeanor” within the meaning of Article
II, section 4’s description of the scope of the impeachment and removal power. See generally Michael
Stokes Paulsen, To End a (Republican) Presidency, 132 Harv. L. Rev. 689, 698-702 (2018). Note that
military officers are not subject to impeachment; they are subject instead to the President’s removal
authority as Commander in Chief. Whether Congress could supplement that authority through appro-
priate legislation is an interesting question. See Zachary Price, Congress’s Power Over Military Offices,
99 Tex. L. Rev. 291 (2021).
91 Nguyen v. United States, 539 U.S. 69, 77–79, 81–82 (2003); Baude, Black, supra note 81, at 346-47.
92 Buckley v. Valeo, 424 U.S. 1, 8–9 (1976) (per curiam); Morrison v. Olson, 487 U.S. 654, 668 (1988);

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 487–88 (2010); NLRB v. Noel
Canning, 134 S. Ct. 2550, 2557 (2014); see also Baude, Severability, supra note 66, at 36-37.
93 U.S. Const. art. I, sec. 5, cl. 1.

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backstop for each house. No state or group of voters can force upon the House or Sen-
ate a Member it judges to be constitutionally disqualified. Indeed, even federal courts
could not properly do so. While the Supreme Court has held, in Powell v. McCor-
mack,94 that Congress cannot create new “Qualifications” and that the federal courts
have the power to stop it from doing so, neither Powell nor first principles allow a
federal court to second-guess each house’s judgment about whether the existing, con-
stitutional, qualifications have been satisfied. 95

Some have argued that each house’s judging power also preempts other early
stages of the election process. The argument is that states and state election law have
no power to exclude a candidate for Congress because they are constitutionally ineli-
gible to office—that instead the state must allow the voters to send up the ineligible
candidate, so as not to prejudge the possibility that the House or Senate will find
them eligible.96 With respect, we do not agree with this argument. As a logical matter,
each house’s right to judge whether an elected candidate can hold office does not give
it the power to force states to elect that candidate (or allow them to be elected) in the
first place. And as a textual matter, state legislatures have the power to regulate the
“manner” of elections, which includes ballot eligibility.97 In our view, the better inter-
pretation is that Section Three can be relevant to both the state’s power to regulate
the manner of elections and each house’s power to judge the results of those elections.

94 395 U.S. 486 (1969).

95 See Powell, 395 U.S. at 520 n. 41 (reserving the possibility that Section Three disqualification is a
qualification); see also P. Allan Dionisopoulos, A Commentary on the Constitutional Issues in the Pow-
ell and Related Cases, 17 J. Pub. L. 103, 114-115 (1968) (cited in id. at n.41) (arguing that it is); Powell,
395 U.S. at 521 n.42 (noting that “federal courts might still be barred by the political question doctrine
from reviewing the House’s factual determination that a member did not meet one of the standing
qualifications”). We emphasize that questions of interpretation and application of Section Three are
not in general “political questions” that cannot be decided by federal courts, simply because they have
political consequences. Where the Constitution supplies a rule, and the rule’s application is not com-
mitted by the text of the Constitution to the judgment of one of the political branches, the courts are
not disabled from deciding a case based on that rule. We simply think that the provision committing
to each house the power to be the “Judge” of the “Elections, Returns, and Qualifications” of its own
Members does not permit judicial review of determinations of each house that properly fall within
these constitutional categories.
96 See Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 594-598 (2015);

see also Cawthorn v. Amalfi, 35 F.4th 245, 267-273, 282-284 (4th Cir. 2022) (Richardson, J., concur-
ring); Greene v. Sec'y of State for Georgia, 52 F.4th 907, 912-916 (11th Cir. 2022) (Branch, J., concur-
ring).
97 U.S. Const. art. I, sec. 4. The same Clause also gives Congress the power to “make or alter” such

regulations by legislation if it wishes. Two relatively recent Supreme Court cases have invalidated
state ballot eligibility rules for members of Congress that attempted to impose congressional term
limits. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001),
and Judge Richardson relies on these cases to argue that states cannot judge the qualifications of
congressional candidates, Cawthorn, 35 F.4th at 273-275 (Richardson, J., concurring). Putting aside
whether these cases are correct as an original matter, we think they further support our view. The
Court rejected term-limit-ballot-access restrictions because they were an attempt to impose a qualifi-
cation not contained in the Constitution. E.g., U.S. Term Limits, 514 U.S. at 784, 787-788, 806-815. It

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 The second relevant power each house possesses with respect to its own Mem-
bers concerns Members already sitting in Congress. Each house also has power to
“determine the Rules of its Proceedings, punish its Members for disorderly Behav-
iour, and, with the Concurrence of two thirds, expel a Member.”98 So in addition to
the initial power to exclude under Section Three, each house could potentially proceed
through the expulsion power instead, by two-thirds vote.99 As with the power to ex-
clude, the power to expel, where exercised within the scope of the power conferred
exclusively on each house, is committed to that house’s discretion.

Federal judges hold their offices during “good Behaviour.”100 What if a sitting
federal judge or even a Supreme Court justice has engaged in insurrection or rebellion
or given aid or comfort to the nation’s enemies?101 As a matter of substance this is
easy. Whether regarded as simply a violation of the Article III tenure condition of
“good Behaviour” or as satisfying the impeachment standard of “high Crimes and
Misdemeanors,”102 conduct meeting Section Three’s standard disqualifies a federal
judge from office.

As a matter of procedure the question is trickier. The conventional wisdom is

that Article III allows good behavior to be judged only through the procedure of im-
peachment by Congress. An alternative view, with some support in the history, is
that Congress could provide other procedures for adjudicating misbehavior (as for
instance in the 1791 Crimes Act, which purported to require the immediate removal
of any federal official convicted of bribery or other crimes).103 Whichever is the an-
swer, the procedures and criteria for judging judges can and must apply Section
Three.

follows that ballot access rules that follow the qualifications contained in the Constitution could be
treated differently.
98 U.S. Const. art. I, sec. 5, cl. 2.
99 There is some debate whether Congress can expel a member for conduct that occurred before being

elected. See Chafetz, Democracy’s Privileged Few, supra note 47, at 210-212 (recounting arguments
on both sides but arguing that it can); Jack Maskell, Congressional Research Service, Expulsion, Cen-
sure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 4-7 (2016)
https://sgp.fas.org/crs/misc/RL31382.pdf (same). At all events, however, continuing to hold office when
forbidden to do so by Section Three is ongoing conduct that would seem independently to justify ex-
pulsion in the here-and-now.
100 U.S. Const. art. III.
101 Cf. Ex parte Milligan, 71 U.S. 2, 141 (1866) (Chase, C.J., concurring in the judgment) (“In Indiana,

the judges and officers of the courts were loyal to the government. But it might have been otherwise.
In times of rebellion and civil war, it may often happen, indeed, that judges and marshals will be in
active sympathy with the rebels, and courts their most efficient allies.”).
102 See supra note 90.
103 Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72 (2006).

In the interests of full disclosure, one of us was the student lead editor when this piece was published,
and continues to think it is probably right, notwithstanding the counterarguments in James E.
Pfander, Removing Federal Judges, 74 U. Chi. L. Rev. 1227 (2007). The other of us adheres to the
traditional view. Michael Stokes Paulsen, Checking the Court, 10 NYU J. L. & Liberty 18, 76-77 (2016).

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 Finally, what about the top of the ticket? What if the President or a presiden-
tial candidate (or likewise for Vice President) is constitutionally disqualified?104 Who
has the power and duty to enforce Section Three’s legal prohibition? Again, the an-
swer depends on whether the supposedly disqualified individual is seeking election
to office or already holds it. In the case of a candidate, state election officials and state
election law will frequently judge that candidate’s ballot eligibility, applying Section
Three as described above, and subject to the usual avenues of judicial review. That
eligibility question can be a part of a state’s Article II election for electors just as
much as any other state election.105 Put simply: a state secretary of state (for exam-
ple) might well possess state-law authority to determine candidate eligibility for fed-
eral elective offices—President and Vice President, U.S. Representatives, U.S. Sena-
tors—selected directly or indirectly via state elections; and among those relevant eli-
gibility criteria is whether a candidate is disqualified from the office he or she seeks
by Section Three of the Fourteenth Amendment.

Additionally, presidential electors have the power (and therefore perhaps the
responsibility as well) to enforce Section Three.106 In perhaps half the states, the
question is more complicated, because state laws purport to bind the electors in var-
ious ways to vote for their party’s candidate rather than making their own determi-
nation, and the Supreme Court has recently upheld such laws.107 But even working
within that paradigm, states and their legislatures have their own duties to uphold
the Constitution. That means they have a responsibility to arrange that their electors
do not elect a constitutionally disqualified candidate, which should be reflected in
their laws.

If the voter and presidential electors do select a disqualified candidate for the
Presidency, we do not believe that Congress (or the Vice President) have the power
to reject that candidate when the votes are counted in joint session. Whatever the

104 We are assuming for now that the Presidency and Vice Presidency are covered by Section Three’s
language as an “office, civil or military, under the United States.” We think that assumption is correct,
and we will return to it in Part IV.B.
105 See Hemel, How-to Guide, supra note 5; Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) (upholding

state exclusion from presidential primary ballot of twenty-seven-year-old candidate constitutionally

disqualified on grounds of age); Hassan v. Colorado, 495 Fed. App’x 947, 948 (10th Cir. 2012) (Gorsuch,
J.) (upholding state exclusion from presidential election ballot of naturalized citizen constitutionally
disqualified from office by Natural Born Citizen Clause of Article II); see also Muller, Scrutinizing,
supra note 96, at 599-608; see also Muller, Natural Born, supra note 62, at 1100-1106. This is standard
practice and law even though the President and Vice President are only indirect candidates, with their
electors as direct candidates.
106 See Muller, Scrutinizing, supra note 96, at 579-580.
107 Chiafolo v. Washington, 591 U.S. ___ (2020); see also Muller, supra note 96, at 580. We bracket the

serious possibility that Chiafolo was wrongly decided. See, e.g., Mike Rappaport, The Originalist Dis-
aster in Chiafolo, Law & Liberty (Aug. 7, 2020), https://lawliberty.org/the-originalist-disaster-in-
chiafalo/; Michael Stokes Paulsen, The Constitutional Power of the Electoral College, Public Discourse
(Nov. 21, 2016), https://www.thepublicdiscourse.com/2016/11/18283/.

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extent of Congress’s and the Vice President’s authority to count the electoral votes,
or determine the authenticity of submitted votes—i.e., was this the act of the electors
of the state?—we do not believe that they have the authority to evaluate the decisions
or actors of the electors themselves.108 So if a properly selected elector submits a vote
for a constitutionally disqualified individual it should still be counted.

Still, once those votes are counted, a disqualified candidate does not become
president, even if he has the most votes. This is made explicit by the (self-executing)
command of Section Three of the Twentieth Amendment, which sets the constitu-
tional terms of a President’s term. It states that at “the time fixed for the beginning
of [the President’s] term,” “if the President elect shall have failed to qualify, then the
Vice President elect shall act as President until a President shall have qualified.”109
The language thus specifically confirms the possibility of a failure to qualify, and
specifies the consequences of that failure. If the President-elect is covered by Section
Three, he cannot become President—unless Congress chooses (by supermajority
votes) to remove Section Three’s disability.

Once the President has taken office, the Constitution provides two paths for
involuntary removal from office: impeachment for “high Crimes and Misdemeanors”
and removal for being “unable to discharge the powers and duties of his office” under
the procedure of the Twenty-fifth Amendment. We think it likely that Section Three
would apply to both procedures. The impeachment route is straightforward. As we
have discussed, an insurrection against the United States is a paradigm example of
a high crime or misdemeanor. It also seems to us possible that a President who is, by
operation of the Constitution, legally disqualified from holding his office might be
said to be “unable to discharge the powers and duties of his office” within the meaning
of the Twenty-fifth Amendment. To be sure, this is doubtless not the paradigm case
that the authors of the Twenty-fifth Amendment had in mind. Moreover, “unable” as
employed in the Twenty-fifth Amendment would appear, linguistically and structur-
ally, akin to “inability” as used in Article II, Section 1, paragraph 6—the provision
that the Twenty-fifth Amendment amends in this respect. (Paragraph 5 of Article II
addresses questions of eligibility; and paragraph 6 separately addresses questions of
inability.) But regardless of intention, the natural import of the words of the Twenty-
fifth Amendment is that they broadly include all reasons why a president might be
“unable” to perform his or her duties. And it is the meaning of the words enacted, not
the subjective intentions or expectations of those who drafted them, that is what
makes our constitutional law. The procedures of the Twenty-fifth Amendment are
complicated and convoluted, to be sure. But where they are employed, there is a good

108 We take no position on many further details of this issue, including the relative interplay of the
Electoral Count Reform Act, Pub.L. 117-328, Div. P, Title I, § 109(a) (Dec. 29, 2022) 136 Stat. 5238-
5239, codified in relevant part at 3 U.S.C. 15(b) & (d)(2)(B)(ii), possible constitutional challenges to it,
see Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1805 (2002);
see also John Harrison, Nobody for President, 16 J.L & Pol. 699 (2000), interpretations of it, but see
Derek T. Muller, Electoral Votes Regularly Given, 55 Ga. L. Rev. 1529, 1538 (2021), or the like.
109 U.S. Const. amdt. XX, sec. 3. Cf, Muller, Regularly Given, supra note 108, at 1538 n.42.

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argument that a president’s disqualification from office under Section Three is one of
the grounds on which he or she might be judged “unable” to continue in that role.

***

Tying together all of these different procedures and possibilities: consider

briefly (and not-so-hypothetically) a violent insurrection on the seat of government,
by a mob joined or given aid and comfort by various government officials, from a state
representative or commissioner to a U.S. Senator to the President himself.110 From
the moment of their participation in the insurrection, those officials would be legally
ineligible to hold their offices, thanks to Section Three of the Fourteenth Amendment.
How this would play out practically might vary across them. As the state official re-
turned home, he would immediately be subject to state law procedures such as a quo
warranto suit.111 He might be removed by such a suit,112 or might well choose to resign
instead.113 The Senator might choose to brazen it out, counting on the difficulty in
getting together a two-thirds vote to expel him. But if he sought re-election the Senate
could and should exclude him by a mere majority vote. As for the hypothetical Presi-
dent, by right he ought to be immediately subject to impeachment and conviction by
Congress, and perhaps also a Twenty-fifth Amendment declaration by the Vice Pres-
ident and supported by the cabinet. Even if those things did not happen, if he sought
re-election, state election officials around the country would be bound by Section
Three in deciding whether to put him on the ballot, even in the primary.

And of course, some of these matters would no doubt promptly find their way
into the courts as well. Continuing the example of the presidential candidate, if state
officials excluded him from ballot eligibility, he would likely be able to sue in state or
federal court to challenge state officials’ determination of ineligibility. And if he was
not excluded by state officials, voters (at least in some states) might possess the legal
right to challenge his eligibility. Either way, such a challenge would present a classic
legal case or controversy. It is not difficult to imagine such suit being resolved by
courts. Indeed, given the magnitude of the question and its consequences, it is not
difficult to imagine such an important case making its way quickly to the U.S. Su-
preme Court. It would then become the province and duty of the Court to determine
and apply the meaning of Section Three.

110 See infra Part IV.C. for further discussion.

111 For two relevant examples, see NMSA. 1978, sec. 44-3; W.V. Code sec. 53-2-1. In West Virginia,
such a claim may be brought “[w]henever the Attorney General or prosecuting attorney of any county
is satisfied that a cause exists therefor he may, at his own instance, or at the relation of any person
interested.” Id. 53-2-2. For illustrative applications, see State ex rel. Zickefoose v. West, 145 W. Va.
498, 545 (1960); Wells v. Miller, 237 W. Va. 731 (2016).
112 New Mexico ex rel. White v. Griffin, 2022 WL 4295619, D-101-CV-2022-00473 (1st. Dist. Santa Fe

County, Sep. 6, 2022).

113 Resignation letter from West Virginia Delegate Derrick Evans to Governor Jim Justice (Jan. 9,

2021), available at https://s3.documentcloud.org/documents/20447012/derrick-evans-resignation-let-

ter.pdf.

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 Section Three thus functions as a sort of constitutional immune system, mobi-
lizing every official charged with constitutional application to keep those who have
fundamentally betrayed the constitutional order from keeping or reassuming power.

C. The Problem of Griffin’s Case

A small problem with our view that Section Three is self-executing and imme-
diately operative is that the Chief Justice of the United States said the opposite, al-
most immediately after the Fourteenth Amendment was adopted. This was the opin-
ion in Griffin’s Case by Chief Justice Salmon P. Chase, sitting as Circuit Justice in
1869, in one of the first cases to interpret any part of the Amendment. In Griffin’s
Case, Chief Justice Chase concluded that Section Three is inoperative unless and un-
til Congress passes implementing legislation to carry it into effect.114 This precedent
continues to cast a shadow over Section Three today.115

But there is a simple response to this small problem. Griffin’s Case is just
wrong. It is possible—possible—that its result is correct on an alternate ground, un-
der the so-called de facto officer doctrine, which we will discuss. But Chase’s legal
reasoning that the Fourteenth Amendment is not self-executing is unsustainable. In-
deed, the more one pulls at his opinion, the more it unravels. We examine it in some
detail.116

1. Background

Caesar Griffin, a black man, was charged in a Virginia state court with the
crime of shooting with the intent to kill. Griffin was tried, convicted, and sentenced
to prison. He made no claim that the statute under which he was tried was unconsti-
tutional; nor that he had been subjected to discrimination because of his race; nor
that the composition of the jury was improper. As Chase put it: Griffin made “no
allegation that the trial was not fairly conducted, or that any discrimination was
made against him, either in indictment, trial, or sentence, on account of his color.”117
Nor did Griffin allege that the presiding judge—Judge Hugh W. Sheffey—“did not
conduct the trial with fairness and uprightness.”118 Griffin raised just one challenge
to the validity of his conviction: that Judge Sheffey (or, one might say, so-called Judge

114 In re Griffin (“Griffin’s Case”), 11 F. Cas. 7 (C.C.D.Va. 1869) (No. 5,815) (Chase 364).
115 See, e.g., Josh Blackman and S. B. Tillman, Opinion, “Only the Feds Could Disqualify Madison
Cawthorn and Marjorie Taylor Greene,” The New York Times, (Apr. 20, 2022); Tom Ginsburg, Aziz
Huq, & David Landau, The Law of Democratic Disqualification, 111 Calif. L. Rev. at 16, 51 (forthcom-
ing 2023) at https://ssrn.com/abstract=3938600.
116 For other criticism of Griffin’s Case, insightful as always, see Magliocca, Amnesty, supra note 5, at

102-108; Magliocca, Foreground, supra note 62, at 9-14.

117 11 F. Cas. at 22.
118 Id. at 22.

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Sheffey)119 was legally disqualified by Section Three of the Fourteenth Amendment
from serving.

The facts relevant to Judge Sheffey were not disputed either. He had taken the
oath: Before the Civil War, Hugh Sheffey had been a member of the Virginia state
legislature, as far back as 1849. And he had “engaged in” rebellion: After Virginia
purported to secede from the Union, Sheffey continued to serve as a member of Vir-
ginia’s secessionist legislature. In that role, in 1862, he “voted for measures to sustain
the so-called Confederate States in their war against the United States.”120 Thus “it
is admitted,” wrote Chase, that Judge Sheffey “was one of the persons to whom the
prohibition to hold office pronounced by the amendment applied.”121

Griffin had petitioned the U.S. district judge, Judge John Underwood, for a
writ of habeas corpus challenging the lawfulness of his custody, which Judge Under-
wood granted.122 The sheriff appealed to the circuit court, which was held by Chase
as circuit justice.123

119 Cf. Will Baude, The deadly serious accusation of being a “so-called judge,” Volokh Conspiracy, Wash.
Post. (Feb. 4, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/04/the-
deadly-serious-accusation-of-being-a-so-called-judge/ (“[T]o call him a ‘so-called’ judge is to hint that
he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious
issue”).
120 11 F. Cas. at 22.
121 Id. at 23.
122 See Opinion of Judge Underwood in Edward McPherson, The Political History of the United States

of America During the Period of Reconstruction (from April 15, 1865, to July 15, 1870), at 462-466
(1875). We are indebted to Myles Lynch for locating this source.
123 The procedural posture of this and several related cases are extremely confusing and reflect back-

ground machinations by both Judge Underwood and Chief Justice Chase: At the time, habeas was
apparently available from the district court, or “at chambers,” or from the circuit court. If Judge Un-
derwood issued the writ from the district court or at chambers, he could be reviewed by the circuit
court, which would include Chief Justice Chase. But if Chief Justice Chase was not present, Judge
Underwood could also sit alone as the circuit court. And thanks to a recent statute designed to strip
jurisdiction over the anti-Reconstruction suit of Ex parte McCardle, there would be no appeal if Judge
Underwood sat as the circuit court. Underwood took this, the unreviewable route, in another habeas
case like Griffin’s brought by Sally Anderson. Chief Justice Chase then wrote to Underwood with a
veiled threat, floating the possibility that a recent statute could be interpreted to deprive Underwood
of his ability to hold the circuit court at that time, and encouraging Underwood to hear the cases in
the district court or at chambers so that Chase could review him. Underwood obliged. Meanwhile,
Virginia also sought an original writ in the Supreme Court to put a stop to Underwood’s Section Three
docket. The Supreme Court ordered all of the proceedings stayed, and then let Chase go down to the
circuit to clean things up, taking no action on the writ. See Charles Fairman, Reconstruction and
Reunion at 601-607; Letter from Chase to Underwood (Nov. 19, 1868) in 5 The Salmon P. Chase Papers
285-286 (1998); Letter from Chase to Underwood (Jan. 14, 1869) in id. at 292-293.
This background is briefly alluded to in the synopsis in Griffin’s Case which explains that “[a]
motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of
prohibition against the district judge, to restrain him from further exercise of such power. The supreme
court advised on the motion, and never announced any conclusion, but shortly afterward the chief
justice opened the circuit court at Richmond, and immediately called up the appeal in Griffin’s Case.
This statement is necessary for a full understanding of the pregnancy of the chief justice’s statement

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 2. Chase on Section Three

Chase reversed. Here is how he framed the problem: Everybody agreed that
Sheffey had been lawfully appointed as a state judge in February 1866, while Virginia
was controlled by military reconstruction and the Fourteenth Amendment did not
exist.124 The question was whether ratification of Section Three kicked him out. As
Chase put it: “whether upon a sound construction of the amendment, it must be re-
garded as operating directly, without any intermediate proceeding whatever, upon
all persons within the category of prohibition, and as depriving them at once, and
absolutely, of all official authority and power.”125

Chase said no, rejecting this as a “literal construction” 126 of Section Three.
There is a lot going on in this opinion. Chase included a number of makeweight ar-
guments and asides on topics such as the legal history of West Virginia.127 But his
core argument was that surely Section Three cannot mean what it says: It would have
bad consequences, can’t possibly have been intended by the ratifiers, and would vio-
late the spirit of the Constitution. As we will explain, these arguments are bad ones.
Chase then supplemented them with a shocking claim of a secret Supreme Court rul-
ing in favor of an alternative approach—which was both generally improper, but also
further impeached Chase’s interpretation of Section Three. All in all, Griffin’s Case
is a case study in how not to go about the enterprise of faithful constitutional inter-
pretation.

a. “The argument from inconveniences, great as these”

that the supreme court agreed with him as to the decision he rendered in this case.” Griffin’s Case, 11
F. Cas. at 7-8. But really, these circumstances are extraordinary. We take them up again below.
124 Id. at 23.
125 Id. at 18.
126 Id. at 24.
127 Chase summarized the intriguing legal history of this Virginia government: When Virginia, by act

of its legislature in 1861, purported to secede from the Union, loyal Unionists assembled in convention
in Wheeling to organize a new state government. Congress and the Lincoln administration recognized
the Wheeling government as the lawful government of Virginia. The Wheeling Virginia government
then gave its consent to the creation of a new Wheeling-based state of West Virginia, after which the
(Wheeling) Virginia government-in-exile relocated to Alexandria, just across the river from Washing-
ton, to serve as the loyal, Union-recognized government of all of what remained as “Virginia.” After
Lee’s surrender at Appomattox, Chase’s opinion notes, the “government recognized by the United
States was transferred from Alexandria to Richmond” and “became in fact what it was before in law,
the government of the whole state.” Id. at 18. Judge Sheffey was appointed under the authority of this
government. (For the full story – and full formalist legal defense – of the validity of the legal fiction of
“Virginia” giving its consent to the creation of a breakaway state of West Virginia, see Vasan Kesavan
and Michael Stokes Paulsen, Is West Virginia Unconstitutional? 90 Calif. L. Rev. 291 (2002) For an
argument that this aside was actually relevant to Chase’s argument, see Magliocca, Foreground, supra
note 62, at 10 n.30, discussed infra note 154.)

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 The core of Chase’s argument was that if Section Three were an immediately
operative, self-executing constitutional rule of disqualification, it would have incon-
venient consequences in the Reconstruction South. “In the examination of questions
of this sort,” Chase wrote, “great attention is properly paid to the argument from
inconvenience.”128 And here “the argument from inconveniences” was “great” in
Chase’s estimation— it was “of no light weight.”129

In several incompletely reconstructed Southern governments, many offices

were in fact held by former oath-breaking rebels.130 If Section Three were automati-
cally operative, it would have immediately barred all such men from office. (Indeed.)
Yet, Chase argued, many such disqualified persons in fact had not vacated their of-
fices but instead continued to exercise authority under those offices notwithstanding
the ratification of the Fourteenth Amendment. To give Section Three immediate ef-
fect would thus upset the apple cart in a fairly major way. “No sentence, no judgment,
no decree, no acknowledgement of a deed, no record of a deed, no sheriff’s or commis-
sioner’s sale—in short no official act—is of the least validity.”131 Chase found this
unthinkable: “It is impossible to measure the evils which such a construction would
add to the calamities which have already fallen upon the people of these [Southern]
states.”132

Chase went on: not only did Section Three impose great “inconveniences” and
“calamities,” it was unfairly punitive—ungraciously ousting once-lawfully-appointed
officers from their offices—and ostensibly inconsistent with the “spirit” of prior con-
stitutional principles, concerning due process, bills of attainder and ex post facto
laws.133 And besides, the specific remedy sought—vacating Griffin’s conviction—only
worked mischief, because it did not even seek the literal removal of Judge Sheffey
from office. Put these things together and you have Chase’s interpretive driver:
“Surely,” Chase continued, “a construction which fails to accomplish the main pur-
pose of the amendment, and yet necessarily works the mischief and inconveniences
which have been described, and is repugnant to the first principles of justice and right
embodied in other provisions of the constitution, is not to be favored, if any other
reasonable construction can be found.”134

128 11 F. Cas. at 24.

129 Id. at 25.
130 Chase also suggested that the problem was not completely limited to the Southern governments.

Id. at 25 (observing that “[i]t is well known that many persons, engaged in the late Rebellion, have
emigrated to states which adhered to the national government . . .” and that “it is not to be doubted
that not a few among them” had previously taken a covered oath, and that “[p]robably some of these
persons” had subsequently been elected to office).
131 Id. at 25. Of course, Chase would undercut this conclusion later in the opinion. See infra Part II.C.
132 11 F. Cas. at 25.
133 More on this point presently, Part II.C.2.c, and again Part III.
134 11 F. Cas. at 26.

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 Chase tried to funnel these policy arguments into a rule of constitutional con-
struction: “the argument from inconvenience.”135 This argument “it is true, can not
prevail over plain words or clear reason,” Chase acknowledged.136 “But, on the other
hand,” he wrote, “a construction which must necessarily occasion great public and
private mischief, must never be preferred to a construction which will occasion nei-
ther, or neither in so great a degree, unless the terms of the instrument absolutely
require such preference.”137

This is not an unreasonable principle, as interpretive canons go. When con-

fronted with two plausible interpretations of genuinely ambiguous, unclear text, one
of which would produce manifestly jarring results, the less jarring interpretation is
more likely the correct one. As James Madison said in his famous speech against the
national bank: “Where a meaning is clear, the consequences, whatever they may be,
are to be admitted—where doubtful, it is fairly triable by its consequences.” 138 Or as
Chief Justice Marshall said in United States v. Fisher: “where great inconvenience
will result from a particular construction, that construction is to be avoided, unless
the meaning of the legislature be plain; in which case it must be obeyed.”139 But
Chase’s canon was noticeably more aggressive: The supposedly more disruptive read-
ing must “never be preferred” unless the text’s terms “absolutely require” such prefer-
ence.140 That is putting not just a thumb on the scale, but a whole hand.

But that is not the real problem with Chase’s analysis. The real problem was
how Chase applied these principles to Section Three.

First, Chase was too quick—far too quick—to dismiss the “literal” reading of
the “terms of the instrument” as meaning exactly what they seem to say. As discussed
above, the language of Section Three’s prohibition on office holding is clear and direct;
it is hardly doubtful at all. It takes considerable effort to impute any ambiguity to the
text and Chase’s opinion does not even undertake that effort. Instead, the opinion
assumes its own conclusion—that the text’s language is somehow insufficiently clear
to justify applying the “literal” meaning of its words. Indeed, even on Chase’s own
hyper-strict standard, the words of Section Three do “absolutely require” the conclu-
sion that it, on its own, disqualifies covered rebels from office.

Second, Chase was too ready—far too ready—to find that following the (“lit-
eral”) language of the document would produce (what Chase considered to be) great
“inconveniences” or “mischief”— indeed, increase “calamities” already visited upon
the South. Chase emphasized the breadth of Section Three’s language: it applied in

135 Id. at 24.

136 Id. at 24.
137 Id. at 24.
138 James Madison, Speech on Feb. 2, 1791, reprinted in Legislative and Documentary History of the

Bank of the United States 39, 40 (photo. reprint 2008)

139 United States v. Fisher, 2 Cranch (6 U.S.) 358, 386 (1805)
140 11 F. Cas. at 24 (emphasis added).

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all the states, not just the former Confederacy (so?); it applied beyond the context of
Civil War but included aiding enemies in a foreign war (so?); it would apply in terms
to immediately disqualify men for acts done long ago, for example in the Mexican War
(so?); it would apply “to all persons in the category” and “for all time, present and
future” (so?). And, taken seriously, this broad rule would, as noted, “annul all official
acts” performed by disqualified officers, including judges. (Would it?)

For Chase, all this seemed to border on the shocking—a parade of horribles
demanding the search for an alternative construction of Section Three. But why? Be-
cause it might have a broad effect? Because it adopted a new rule of constitutional
law superseding prior law? Because it would have removed immediately a substantial
number of former-oath-swearing-officeholders-turned-rebels from positions of power?
Because it could have the effect of invalidating their unauthorized, lawless actions?
Chase’s parade of horribles assumes, without argument, the correctness of his own
apparent policy prejudices.141

Now Chase did attempt to groom these prejudices into more plausible legal
arguments, which we will get to in a moment. But because these arguments from
inconvenience are the heart of Chase’s opinion, and because we still see these kinds
of arguments repeated today, we pause to emphasize that this is not how judging is
supposed to work, even if it too often does.

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-
consequences-you-dislike approach to constitutional interpretation is simply wrong.
Judges do not get to rewrite constitutional provisions they find objectionable on policy
grounds. Relatedly, judges do not get to make up new provisions of law in order to
devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solu-
tion to textual literalism and its real and imagined policy inconveniences, a different
kind of constitutional provision, one more like the Impeachment Clause and the Trea-
son Clause. Put bluntly, Chase made up law that was not there in order to change
law that was there but that he did not like.

b. The argument from “the intention of the people”

In places, Chase raises the inconvenience argument as an inquiry into the “in-
tent” of the Framers: “What was the intention of the people of the United States in
adopting the fourteenth amendment? What is the true scope and purpose of the pro-
hibition to hold office contained in the third section?”142 This at least sounds kind of
like the question a judge should be asking—the original meaning of the constitutional

141 As Judge Underwood had put it: “Whatever inconvenience may result from the maintenance of the
Constitution and the laws, I think the experience of the last few years shows that much greater incon-
venience comes from attempting their overthrow.” Opinion of Judge Underwood, supra note 122, at
465.
142 11 F.Cas. at 24.

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provision adopted by We The People and binding on those who interpret it. But in
fact it conceals still more sleight of hand.

First and foremost, Chase’s framing of the interpretive question commits a

classic blunder: swapping in original intent for original meaning. In our constitu-
tional system, law is made by enacting texts, not by searching for the unenacted
wishes of lawmakers.143 And whatever evidence Chase might have that the conse-
quences of Section Three were unintended by some of those who voted for it, he had
no evidence that these consequences were not entailed by what they voted for.

Second, however dubious it is to look to original intent over original meaning

generally, it is especially dicey to do so in the case of the Fourteenth Amendment.
The Fourteenth Amendment was ratified in unusual, exigent circumstances. In Con-
gress, the Amendment represented a compromise between different Republican fac-
tions, some much more radical than the others. And in the states, where ratification
made it law, the Amendment depended on the ratification votes of the southern
states, who were pressured—some might say “coerced”—to ratify the Amendment as
the price of regaining their representation in Congress.144 Even if one accepts this
process as lawful (which we do) it is obvious that it means one must cast a skeptical
eye on stories about the supposed “intent” of those who ratified it, especially in the
South. It may well be that some of the ratifiers had their fingers crossed behind their
backs and intended to give the Amendment as little effect and as little quarter as they
could get away with. But so what? What matters is what they did, in one of the high-
est-stakes moments of constitutional law making in American history. By diminish-
ing the plain scope of the Amendment’s text, Chase was succumbing to this kind of
anti-constitutional subversion.

Third and finally, all of Chase’s evidence of this supposed intent just boils down
to the inconvenience argument we have just discussed. And as discussed above, this
is why one must be especially careful with judges who invoke the supposed “intent”
of a written text. When meaning is uncertain, it is permissible to give a slight edge to
the interpretation that is more likely to match what its authors were trying to do.
But it is easy for a judge to use this principle as an excuse for reading into the text

143See supra notes 9-14, sources cited there, and accompanying text.
144See generally, John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L.
Rev. 375, 461 (2001). For arguments that Congress’s requiring states’ ratification as condition of re-
stored representation was entirely lawful and appropriate, see id; Kesavan & Paulsen, West Virginia,
supra note 127, at 329; Amar, America’s Constitution, supra note 4, at 364-380, see especially id. at
376-378. There is a different argument for ratification, the “loyal denominator” theory, in which the
southern states were unnecessary for ratification. See Christopher R. Green, Loyal Denominatorism
and the Fourteenth Amendment: Normative Defense and Implications, 13 Duke J. Const. L. & Pub.
Pol’y 167, 168 (2017); Christopher R. Green, The History of the Loyal Denominator, 79 La. L. Rev. 47,
48 (2018). One of us has rejected this theory in prior writing, Michael Stokes Paulsen, A General The-
ory of Article V: The Constitutional Lessons of the Twenty-Seventh Amendment, 103 Yale L.J. 677, 709
(1993); see also Amar, supra note 4, at 378-380, and the other of us is inclined in the same direction.

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his own views of what the law should be. After all, the authors of the provision were
reasonable people, trying to do reasonable things, and, I, the judge, am also reasona-
ble, so surely if I don’t like this result, they wouldn’t have liked this result, and there-
fore it must not be the result. To write it down this way would give up the game, but
it is too easy to think it. Chase’s use of original intent is makeweight at best, and a
trick at worst.

c. The argument that Section Three should not be read to depart from
the “spirit” of prior constitutional law

The “inconveniences” and “calamities” that, surely, were not intended by the
authors of the Fourteenth Amendment were Chase’s main arguments. But he had a
bit more to say. There was “another principle, which in determining the construction
of this amendment, is entitled to equal consideration.”

Of two constructions, either of which is warranted by the words of an

amendment of a public act, that is to be preferred which best harmo-
nizes the amendment with the general terms and spirit of the act
amended. This principle forbids a construction of the amendment, not
clearly required by its terms, which will bring it into conflict or disac-
cord with the other provisions of the constitution.145

What was the supposed conflict between Section Three and the rest of the Con-
stitution? Chase fretted that Section Three was a penal enactment, imposing punish-
ment without trial on secessionists, and thus in tension with the spirit of earlier pro-
visions on bills of attainder, ex post facto laws, and due process:

Now it is undoubted that those provisions of the constitution which

deny to the legislature power to deprive any person of life, liberty, or
property, without due process of law, or to pass a bill of attainder or
an ex post facto, are inconsistent in their spirit and general purpose
with a provision which, at once and without trial, deprives a whole
class of persons of offices held by them, for cause, however grave. It is
true that no limit can be imposed on the people when exercising their
sovereign power in amending their own constitution of government.
But it is a necessary presumption that the people in the exercise of
that power, seek to confirm and improve, rather than to weaken and
impair the general spirit of the constitution.146

Thus, Chase concluded, Section Three should not be read as accomplishing disquali-
fication of its own force.

145 11 F.Cas. at 25.

146 Id. at 26.

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 Now once again, the interpretive rule Chase is formulating here is not totally
crazy. But it is a warped version of the real thing. As we discuss at length in the next
part: It is true that repeals by implication are disfavored, and this principle applies
to constitutional law. But at the same time, constitutional amendments change
things, and when an amendment is inconsistent with prior constitutional rules, ulti-
mately it is the amendment that controls. If a new provision fairly can be harmonized
with prior law—where there is no true conflict—the provisions should be read har-
moniously.147 But where new language in fact changes old law, by clear terms or nec-
essary logical effect, the greater error is to deny such change out of undue attachment
to the former legal regime.

This greater error is exactly what Chase did. Chase leaned very heavily—too
heavily—on the rule against implied repeals, ratcheting it up to “forbid[]” readings of
a text “not clearly required” by its terms, that would “bring it into conflict or disac-
cord” with other provisions of the Constitution.148 Each leaning is wrong. Repeals by
implication may be disfavored; but repeals, made in terms or by necessary logical
implication, are not presumptively forbidden. Nor does new language changing old
provisions require such extraordinary clarity as Chase would have it. The true ques-
tion is whether the language and logic of a new provision really does present a conflict
with prior law. And the idea that constitutional amendments should presumptively
be read so as not to change the Constitution (!)—that they should be construed to
avoid conflict or even mere disaccord with prior constitutional law—is indefensible.
Of course constitutional amendments change prior constitutional law. That is their
purpose and function. Now, that doesn’t warrant reading them to change more than
they really do. But a presumption that constitutional amendments should be read to
change as little as possible makes no sense.

Finally, this part of Chase’s argument took a puzzling turn that is worth not-
ing. In one of many strange asides, Chase noted the possibility that Section Three
had implicitly repealed the Treason Clause: “in the judgment of some enlightened ju-
rists, the legal effect” of Section Three’s imposition of a new prohibition on officehold-
ing for rebels and insurrectionists “was to remit all other punishments” for treason. 149
If anything this seemed to hurt Chase’s argument against self-execution, because it
emphasized that Section Three could change the pre-existing constitutional rules.
And at the same time this supposedly enlightened argument was also bonkers. The
enactment of a constitutional rule of disqualification from office does not remotely
suggest a supersession or repeal of criminal-law punishment for treason. And if it did
it would have the perverse effect of leaving Confederates who had not previously
taken a constitutional oath subject to the death penalty, while previous office holders
avoided all criminal punishment except the officeholding ban.150

147 See infra, Part III.

148 11 F. Cas. at 25 (emphasis added).
149 Id. at 26.
150 See Case of Davis, 7 F. Cas. 63, 92, 95 (C.C.D. Va. 1867).

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 So why did Chase bring it up? Who were these “enlightened jurists” who imag-
ined such a thing? The answer is . . . Chase himself! He had asserted precisely this
wacky construction of Section Three’s effect on the criminal penalty for treason—and
quietly suggested the argument to defense counsel—in the federal criminal treason
prosecution of Jefferson Davis just two years earlier.151 Even Davis’s lawyers had
been puzzled by the argument, and wondered if it was some sort of trick, and it seems
likely that Chase had complex political motivations in proposing it at the time.152 This
argument was tendentious then, and weirdly irrelevant in Griffin’s Case. But it is a
helpful reminder that Chief Justice Chase was not shooting straight in his applica-
tions of Section Three.

d. The argument from the Section Five enforcement power

Having flailed to avoid the natural reading of Section Three, Chase finally of-
fered his alternative, “reasonable construction”:

For in the very nature of things, it must be ascertained what particu-

lar individuals are embraced by the definition, before any sentence of
exclusion can be made to operate. To accomplish this ascertainment
and ensure effective results, proceedings, evidence, decisions, and en-
forcement of decisions, more or less formal, are indispensable; and
these can only be provided by Congress. Now, the necessity of this is
recognized by the amendment itself, in its fifth and final section,
which declares that ‘congress shall have power to enforce, by appro-
priate legislation, the provision[s] of this article.’ [sic] … The fifth sec-
tion qualifies the third to the same extent as it would if the whole
amendment consisted of these two sections.153

Section Five “qualifies” Section Three. Of course, this proves too much. Taken
seriously, it would suggest that Section Five likewise “qualifies” Section One and ren-
ders its commands—birthright citizenship, privileges or immunities, due process, and
equal protection—inoperative until enforced by congressional legislation. It would
imply that Section One had no self-executing legal effect, which has never been the
law. It also proves too little. It is true, perhaps, that carrying a legal prohibition into
practical effect in actual situations frequently will involve, necessarily, actions by
persons and institutions charged with applying that prohibition as law in the course

151 Id. See Magliocca. Amnesty, supra note 5, at 100-102; Cynthia Nicoletti, Secession on Trial: The
Treason Prosecution of Jefferson Davis 293-300 (2017).
152 Nicoletti suggests—and she is not making this up—that either Chase was gunning for the Demo-

cratic nomination for President, or that this was a bank shot to get southern whites to accept the
ratification of the Fourteenth Amendment, by arranging for the Amendment to benefit them. Id. at
293-296.
153 11 F. Cas. at 26.

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of performing their assigned duties. But as noted above there is no reason why “pro-
ceedings” and “decisions” and “enforcement” with respect to Section Three’s com-
mands may not be conducted and carried out by these various state and federal ac-
tors, exercising their usual authority with respect to such matters.154 It is simply not
true that “these can only be provided by Congress.” Congress can provide them. But
so can many others. Indeed, that is just what Judge Underwood was trying to accom-
plish in Griffin’s Case, until Chase stopped him.

Chase’s tendentious construction of Section Three has gone on to a surprisingly

serious career as a precedent. But it simply does not hold up as an original matter.
But that is not even the weirdest thing about Griffin’s Case.

3. Griffin’s Self-Defeating and Highly Irregular Dictum

Chase concluded his discussion of Section Three this way: “After the most care-
ful consideration, therefore, I find myself constrained to the conclusion that Hugh W.
Sheffey had not been removed from the office of judge at the time of the trial and
sentence of the petitioner; and that the sentence of the circuit court of Rockbridge
county was lawful.”155

By Chase’s logic, such as it was, that should have been the final line of his
opinion. But strangely, Chase was not actually done. He then launched into the
weirdest part of his opinion, a sort of half-dictum, half-advisory opinion that cast fur-
ther doubt on all that had come before:

In this view of the case, it becomes unnecessary to determine the

question relating to the effect of the sentence of a judge de facto, ex-
ercising the office with the color, but without the substance of right.
It is proper to say, however, that I should have no difficulty in sus-
taining the custody of the sheriff under sentence of a court held by
such a judge. . . .

This subject received the consideration of the judges of the supreme

court at the last term, with reference to this and kindred cases in this
district, and I am authorized to say that they unanimously concur in
the opinion that a person convicted by a judge de facto acting under

154 Magliocca also suggests that in the specific situation in Griffin’s Case, state law may have been
“unavailable for enforcement” of Section Three because “Virginia was an unreconstructed state and
thus lacked the ordinary powers of a state” and “because Virginia did not yet recognize the Fourteenth
Amendment’s legitimacy” – in contrast with states such as North Carolina. Magliocca, Foreground,
supra note 62, at 10 n.30. We are not sure whether this is giving Chase too much credit or not, but
regardless, these points would obviously not hold today, where state law is fully available in every
state of the union.
155 11 F. Cas. at 27.

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 color of office, though not de jure, and detained in custody in pursu-
ance of his sentence, can not be properly discharged upon habeas cor-
pus.156

What is going on here? Chase describes an alternate ground for the case—“a judge
de facto acting under color of office,” which we would now call the “de facto officer
doctrine”—explains that it is unnecessary to decide it, but then also explains that
he would “have no difficulty” resolving the case on that alternate ground, and also
that the rest of the Supreme Court agrees with him. It is hard to make sense of this
part of Chase’s opinion, but the more one digs in to it the more dubious the whole
opinion becomes.

First of all, notice that what Chase says here fatally undercuts his earlier ar-
guments about Section Three. The heart of Chase’s argument was that a self-execut-
ing Section Three would have calamitous consequences that could not possibly have
been intended. But here Chase says that even an illegally appointed officer can be a
“de facto” officer whose acts are treated as valid for purposes of a habeas claim. If
Chase believed this claim about the de facto officer doctrine, then his earlier claim
about the consequences was overblown. The de facto officer doctrine would limit or
eliminate the supposedly calamitous consequences and allow Section Three to be
given its more natural interpretation in other situations. On its own terms, then, this
dictum is colossally self-defeating.157

Indeed, if Chase’s extensive dictum about Section Three made it “unnecessary”

to resolve the de facto officer doctrine, the same was equally true in reverse. Accepting
Chase’s conclusion about the de facto officer doctrine would have made his erroneous
disquisition on Section Three completely unnecessary. The criticisms sometimes lev-
elled against the chief justices who wrote the famous (or infamous) opinions in Mar-
bury v. Madison, and Dred Scott v. Sandford, for having reached out to decide, gra-
tuitously, unnecessarily, and improperly, grand questions of constitutional law,158 fall
far more heavily upon the head of Chief Justice Chase for his opinion in Griffin’s
Case.

Even stranger, Chase represented that the full Supreme Court unanimously
agreed with him that on the de facto officer question. “This subject received the con-
sideration of the judges of the supreme court at the last term,” Chase asserted, “with

156 11 F. Cas. at 27.

157 Accord, Magliocca, Foreground, supra note 62, at 11 n.25.
158 See, e.g., Letter from Thomas Jefferson to William Johnson (June 12, 1823) (“This practice of Judge

Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the
court, is very irregular and very censurable.”)
https://founders.archives.gov/documents/Jefferson/98-01-02-3562; Michael Stokes Paulsen, The Worst
Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1011-12 & n.39 (2003); Baude, Judg-
ment Power, 96 Geo. L.J. 1807, 1823-24 (2008).

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reference to this and kindred cases in this district.”159 The full Court had apparently
decided the de facto officer question, in secret, without having announced the fact in
any case decision or written opinion,160 in some form of advisory preemptive appellate
jurisdiction!?

To be sure, judicial norms were looser back then, but the whole thing was
highly irregular even by the standards of the day. Charles Fairman, whose account
defends the whole affair as an urgent workaround to stop Judge Underwood, none-
theless acknowledges that “[i]t was most unusual to hear a Justice on circuit declare
that he was authorized to announce the opinion of the Justices of the Supreme Court
on a matter pending in the Circuit Court.”161 Fairman further acknowledges technical
problems with this maneuver, because the only issue in front of the full Court was an
original writ of prohibition in Ex Parte State of Virginia, where the Court had granted
a stay despite manifest procedural flaws.162 Somehow the Court’s non-ruling in a du-
bious vehicle became a second-hand advisory opinion on a legal question of great im-
portance. The criticisms levelled today at the shenanigans allegedly perpetrated on
the Supreme Court’s “shadow docket,”163 fall much more heavily and justifiably on
the heads of the Reconstruction justices.

And to return to this point once more, even if we accept this whole problematic
advisory opinion, it simultaneously undermines the other part of Chase’s decision—
his interpretation of Section Three. As Chase described it, there were two alternative
ways to resolve the case—one massive constitutional question, and the other a more
modest procedural question. Chase claimed that the whole Supreme Court had au-
thorized him to issue a secondhand advisory opinion on the procedural question, an
opinion adequate to resolve the Judge Underwood situation. But Chase ignored his
colleagues’ apparent preference and resolved the case on massive constitutional
grounds instead—grounds that he did not claim were endorsed by the rest of the
Court. Is there any justification for his doing so other than a personal power grab?

All of this is without taking a view on the merits of the de facto officer question.
This, we think, is not as obvious as Chase (and apparently his colleagues) made it out

159 11 F. Cas. at 27.

160 The Court’s one recorded public statement on the matter was a statement from Justice Nelson in
the original writ of prohibition case, Ex Parte State of Virginia, that Chief Justice Chase had “informed
the court that before the pending motion for prohibition was made, he signified to the district judge
his dissent” and that Chase was going to “direct that this division of opinion . . . be certified to this
court.” Ex parte State of Virginia No. 11, 1868 WL 10951, 19 L. Ed. 153 (1868); Fairman, supra note
123, at 606. That statement did not state the Court’s view on the division, and seemed to anticipate
that the Justices would deliberate on the issue later in the more ordinary course – not deputize the
Chief Justice to go deliver some secret verdict in their stead.
161 Fairman, supra note 123, at 607.
162 Id.
163 Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass

Power and Undermine the Republic (2023); William Baude, Foreword: The Supreme Court’s Shadow
Docket, 9 N.Y.U. J. L. & Lib. 1 (2015).

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to be. True, American and English history was full of many statements about the
valid acts of “de facto” officers and even specifically judges.164 But many of these state-
ments could not be taken to their logical extreme in our constitutional system, and
indeed, at the founding the Supreme Court had refused to accept the actions of sev-
eral de facto judges in the saga surrounding Hayburn’s Case.165

How to reconcile these principles is a difficult question. One possibility, stated

in some of the cases, is that an unlawful, but de facto, officer’s acts can be questioned
directly, and on direct review, but not “collaterally.”166 On this possibility, maybe the
de facto officer doctrine was a defense to claims like habeas—the procedural vehicle
in Griffin’s Case—because habeas was a collateral attack.167 Habeas could not be used
as a substitute for a writ of error, where the challenge would have been properly
raised.

But another possibility is that the de facto officer doctrine protects only tech-
nical and ordinary legal defects in an officer’s appointment, not fundamental inability
to exercise power, as when that power is forbidden by the Constitution.168 On this
possibility, Judge Sheffey’s acts were inherently void, and thus everything he did fell
outside of his court’s jurisdiction.169 The de facto officer arguments in Griffin’s Case—
and thus the correct legal fate of Caesar Griffin—turn on these technicalities.170 In-
deed, these technicalities were argued by the parties and they were the main subject

164 For many citations, see Griffin’s Case, 11 F. Cas. at 18-21 (argument of counsel). For more, see also
Reply and Response Brief for the United States, Financial Oversight and Management Board for
Puerto Rico v. Aurelius (Nos. 18-1334, 18-1475, 18-1496, 18-1514, 18-15121) 20190919201613217_18-
1334rbUnitedStates.pdf (supremecourt.gov) at 27-47; and Calcutt v. Fed. Deposit Ins. Corp., 37 F.4th
293, 342-45 (6th Cir. 2022) (Murphy, J., dissenting).
165 Baude, Severability, supra note 66, at 12 (discussing Yale Todd).
166 For statements like this, see Ball v. United States, 140 U.S. 118, 128-129 (1891) (“was judge de

facto if not de jure, and his acts as such are not open to collateral attack."); see also Note, The De Facto
Officer Doctrine, 63 Colum. L. Rev. 909, 910, 919 (1963); but see id. at 910 & n. 9 (suggesting that a
suit is collateral whenever the officer “is not a party,” including on “writ of error”).
167 All three cases cited by Chase in Griffin’s Case, 11 F. Cas. at 27, can be characterized this way.

Taylor v. Skrine, 5 S.C.L. 516, 3 Brev. 516 (1815) deals with a writ of execution and observes that “no
objections were made to his authority at the time the decree was given.” State v. Bloom, 17 Wis. 521
(1863) relies entirely on In re Boyle 9 Wis. 264 (1859) which is a habeas case holding that the “right
to hold the offices cannot be inquired into in a collateral proceeding of this kind,” id. at 267. And
People v. Bangs, 24 Ill. 184., 187 (1860) distinguishes a “direct proceeding” from one where the doctrine
applied.
168 For statements like this, see McDowell v. United States, 159 U.S. 596, 598 (1895) (“presents a mere

matter of statutory construction . . . . It involves no trespass upon the executive power of appoint-
ment.”); see also Note, The De Facto Officer Doctrine, at 918 (discussing Glidden Co. v. Zdanok, 370
U.S. 530 (1962)).
169 But see In re Boyle, cited supra note 167 (distinguishing “the jurisdiction of the court, which may

always be inquired into; it is an inquiry into the right of the judge to hold his office, which is a
question entirely distinct from that of the jurisdiction of the court over the offence”).
170 In the Supreme Court’s most recent de facto officer doctrine case, Ryder v. United States, 515 U.S.

177 (1995), it split the difference, holding the doctrine inapplicable because the case was on direct

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of Judge Underwood’s opinion below.171 Chief Justice Chase could have turned his
considerable powers to them, had he not been busy knee-capping the Fourteenth
Amendment instead.

***

There is little to be said in defense of Griffin’s Case, but much to be learned

from it. The very weakness of its arguments; the obviously result-oriented nature of
its legal analysis; and the inconsistency of its conclusion with Section Three’s lan-
guage, end up confirming the core conclusion in this section: Section Three’s disqual-
ification of designated persons from office is a self-executing constitutional command
that requires nothing more to have immediate legal force.

III. Section Three Supersedes, Qualifies, or Satisfies Prior Constitutional

Provisions

Our third proposition is logically and methodologically straightforward but

perhaps unsettling in some of its implications: Section Three trumps the earlier parts
of the Constitution—to the extent there is a true conflict between them.

As noted above, one of Chief Justice Chase’s arguments against enforcing Sec-
tion Three was that it conflicted (he thought) with prior constitutional norms—of due
process, prospectivity, fairness, and so on.172 Even for those who do not put the claim
in so many words, we suspect that they might share a similar intuition—there is
something about Section Three, taken seriously, that seems harsh, unforgiving, un-
democratic, unAmerican (?), even . . . unconstitutional(!?). If so, it might seem to fol-
low that somebody (judges?) should tame Section Three.

This is an understandable instinct. But it is wrong: dead wrong. We think the

conflict with prior constitutional rules is overstated—more feel than real. But to the
extent the conflict is real, Section Three wins the face-off.

Constitutional amendments change the Constitution. It thus should be unsur-

prising—indeed, it is in the very nature of constitutional amendments—that such
new provisions, when added to the Constitution, supersede, displace, qualify, adjust,
correct, or simply must be considered to satisfy earlier constitutional rules, to the
extent of any actual conflict between them. Simply put: a constitutional amendment

review and the challenge was constitutional. In the more recent case of Financial Oversight and Man-
agement Board for Puerto Rico v. Aurelius, 140 S. Ct. 1649, 1666 (2020), it avoided the issue because
it found the appointments lawful.
171 See Opinion of Judge Underwood, supra note 122, at 463-466.
172 See supra Part III.C.2.c.; see also Ginsburg, Huq, & Fontana, supra note 115, at 18 (suggesting that

a self-executing interpretation, “while in harmony with the original operation of Section 3, raises due
process and perhaps bill of attainder concerns” and for that reason an “alternative, more plausible
construction gives Congress authority to determine how Section 3 is enforced”).

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supersedes prior law precisely to the extent that it departs from the prior rules. This
general maxim of interpretation applies to Section Three of the Fourteenth Amend-
ment the same as it applies to any other constitutional amendment provision. If the
original textual meaning of Section Three’s terms, understood in their natural sense
and accounting for any terms of art or specialized usages of words, departs from or
alters prior constitutional understandings, that new constitutional language must be
given full effect and priority over earlier provisions.

These basic principles of conflicting legal provisions were astutely captured by

Alexander Hamilton, writing as Publius in The Federalist Number 78. “It not uncom-
monly happens that there are two statutes existing at one time, clashing in whole or
in part with each other and neither of them containing any repealing clause or ex-
pression,” Hamilton wrote. When this occurs, the courts must determine the “mean-
ing and operation” of the two provisions.

Hamilton articulated two principles for doing so, which work as a complemen-
tary pair. “So far as they can, by fair construction, be reconciled to each other, reason
and law conspire to dictate that this should be done”—there’s the first of the pair, but
Hamilton’s sentence does not end there, but instead pauses only ever-so-briefly, with
a semi-colon, before proceeding to the second rule of the pair: “where this is imprac-
ticable, it becomes a matter of necessity to give effect to one in exclusion of the other.
The rule which has obtained in the courts for determining their relative validity is
that the last in order of time shall be preferred to the first.” This was, Hamilton con-
tinued, “a mere rule of construction,” but it was an appropriate one, “consonant to
truth and propriety,” consistently recognized by courts as interpreters of law: that, as
“between the interfering acts of an equal authority that which was the last indication
of its will should have the preference.”173

Hamilton went on, more famously, to explain that a different interpretive prin-
ciple governed the interfering acts of a superior and a subordinate authority—and
proceeded to derive the proposition customarily called “judicial review.”174 But that
is not the interpretive question here. Here, the key point is precisely Hamilton’s lead-
in proposition: that, as between “interfering” acts of equal legal stature—the para-
digm being two statutes, adopted by the same legislature, at different times—the last
in time prevails to the extent of any true, irreconcilable conflict. As with statutes
adopted by the same legislative authority at different times, so with constitutional
provisions adopted by the same authority at different times and possessing the same

173 See The Federalist No. 78 (I. Kramnick ed. 1987) at 439 (Hamilton). These rules were well-estab-
lished in American and English law. Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 235-244 (2000)
174 See The Federalist No. 78, supra note 173, at 439-440 (Hamilton) (“But in regard to the interfering

acts of a superior and subordinate authority of an original and derivative power, the nature and reason
of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act
of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and
that accordingly whenever a particular statute contravenes the Constitution, it will be the duty of the
judicial tribunals to adhere to the latter and disregard the former.”)

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legal status: By the terms of Article V, constitutional amendments are “valid to all
Intents and Purposes, as Part of this Constitution,” when adopted.175 Thus, where
We, the People, have adopted a new constitutional text “interfering” with or departing
from prior constitutional provisions, the last-in-time enacted prevails to the extent of
any conflict. That is the interpretive principle that governs the relationship between
new constitutional language and old language from which it departs.

Actual constitutional examples of these principles abound. The entire Bill of

Rights in a sense qualifies, or limits, the original Constitution’s grant of enumerated
powers—to the extent of a conflict between those powers and the subsequently enu-
merated rights.176 Likewise, the Eleventh Amendment qualifies Article III’s exten-
sion of the federal judicial power to various cases and controversies. To the extent the
Eleventh Amendment changes what Article III may originally have provided, the
amendment supersedes that prior law.177

Much of the time, new amendments can be harmonized with what came before
them. Section Five of the Fourteenth Amendment’s grant of “power to enforce, by
appropriate legislation, the provisions of this article”178 does not preempt, for exam-
ple, the Due Process Clause or the Cruel or Unusual Punishments Clause. It does not
allow Congress to punish civil rights violations through summary tortures without
trial. Similarly, Section Five does not preempt the Veto Clause; it can and should be
read together with Article I, to require “appropriate legislation” to go through the pre-
existing lawmaking process.179 A new amendment does not ignore the legal system
that it amends.

On the other hand, other parts of the Reconstruction Amendments did conflict
sharply with prior constitutional norms, and they displaced them precisely to that
extent. Consider the Thirteenth Amendment’s ban on slavery—a dramatic and par-
ticularly obvious illustration of the point that new constitutional language supersedes
and repudiates old constitutional language, to the extent of any conflict. The Thir-
teenth Amendment’s abolition of slavery implicitly but necessarily overrides and ex-
tinguishes the Fugitive Slave Clause and any other provision of the original Consti-
tution that protected the institution of slavery to the full logical extent of incon-
sistency with the amendment’s flat ban. Similarly, Section Two of the Fourteenth
Amendment supersedes and displaces the Constitution’s original apportionment

175 U.S. Const. art. V.

177 Baude & Sachs, Eleventh Amendment, supra note 9, at 624-25; cf. Hans v. Louisiana, 134 U.S. 1,
21 (1890) (Harlan, J., concurring).
177 Baude & Sachs, Eleventh Amendment, supra note 9, at 624-25; cf. Hans v. Louisiana, 134 U.S. 1,

21 (1890) (Harlan, J., concurring).

178 U.S. Const. amdt XIV, sec. 5.
179 See William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1, 19 (2017)

(offering the examples in this paragraph).

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rules including the notorious Three-fifths Clause.180 Because the two rules conflict in
substance, the amendment prevails over the Constitution’s original language.

Section Three of the Fourteenth Amendment is in the same family. In most

respects, Section Three can be easily harmonized with other parts of the Constitution,
such as Article I’s Speech or Debate Clause, Article I and II’s impeachment provi-
sions, Article II’s process of presidential selection, Article III’s requirement of a case
or controversy, and so on. As we have discussed, Section Three’s new constitutional
qualification for office is enforced in the same way as other constitutional qualifica-
tions for office, and is easily reconciled with existing constitutional rules.

But there are a few constitutional provisions that have been alleged to conflict
with Section Three. If and when this is the case, just as any later-enacted constitu-
tional provision supersedes or modifies an earlier-enacted constitutional provisions
with which the new provision conflicts, Section Three of the Fourteenth Amendment
logically qualifies and, where the language so compels the conclusion, overrides prior
constitutional rules.181

Thus, we think all this follows: To the extent of any inconsistency between them,
Section Three overrides any limitations otherwise imposed by the Bill of Attainder
Clause. To the extent of any inconsistency between them, Section Three also overrides
limitations imposed by the Ex post Facto Clause. To the extent of any inconsistency
between them, Section Three likewise overrides—or simply satisfies—prior constitu-
tional requirements of due process of law.

Finally—and this example might present more difficult questions—to the ex-
tent of any inconsistency between them, Section Three overrides, supersedes, or satis-
fies the free speech principles reflected in the First Amendment. That is: Whatever the

180 See U.S. Const. amdt. XIV, sec. 2; U.S. Const. art. I, sec. 3. By itself, the Thirteenth Amendment
also already rendered the Three-fifths Clause a null set. Section Two then dealt with the injustice of
letting the South claim a massive increase in political power for its disenfranchised black population.
181 Indeed, for what it is worth, the legislative history supports this conclusion as well. Opponents of

Section Three characterized it as directly imposing retroactive punishment, thus contradicting princi-
ples of due process and principles against bills of attainder and ex post facto laws. Cong. Globe, 39th
Cong. 1st Sess. at 2915 (Sen. Doolittle) (complaining that Section Three was an “ex post facto provision,
a bill of attainder”); id. at 2890 (Sen. Cowen) (bill of attainder); id. at App 241 (Sen. Davis) (Section
Three “is in the nature of both a bill of attainder and an ex post facto law”); id. at 2940 (Sen. Hendricks)
(ex post facto); id. at 2916; see also id. at 2467 (Rep. Boyer) (criticizing earlier version of Section Three
as “a bill of attainder or ex post facto law”). These charges were generally premised on the view – with
which proponents of the amendment evidently agreed, see id. at 3036 (Sen. Henderson) – that Section
Three would preempt these earlier rules to the extent of a direct conflict. Though at one point Senator
Davis did make the wild suggestion that Section Three might itself exceed Congress’s power to propose
amendments to the Constitution. Id. at App. 241 (“The framers of the Constitution did not intend to
invest, and have not in fact conferred on Congress the power to initiate alterations of it which would
revolutionize the Government formed by it”); see also id. at 3146. See also Graber, supra note 12, at
26-31, 36-37 (documenting this history).

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correct meaning of Section Three as applied to conspiracies, attempts, incitements,
and advocacy that meet the description of “engag[ing] in insurrection or rebellion” or
of giving of “aid or comfort” to enemies of the constitutional government of the United
States, the constitutional meaning of Section Three of the Fourteenth Amendment
modifies or qualifies what otherwise might have been thought the dictates of the First
Amendment.

In the end, we think that these various prior provisions can mostly be read
harmoniously with Section Three. Reason and common sense suggest they should be
read consistently with one another to the extent fairly possible; and it is, for the most
part, fairly possible to do so. But to the legitimate extent of any conflict or tension,
Section Three controls over the Bill of Attainder Clause, the Ex Post Facto Clause,
the Due Process Clause, and the First Amendment.

The first three are easy.

A. Bills of Attainder

A bill of attainder is the legislative infliction of punishment on specific people

without a trial.182 It is a violation of both the separation of powers and individual
rights because it short-circuits the normal adjudication of guilt or innocence. But Sec-
tion Three is neither a bill nor an attainder. It is not a “bill”—that is, an enactment
of the legislature. Rather, it is an enactment of The People as supreme constitutional
law. And it is not an “attainder” either—in that it is not at all clear that it inflicts
punishment, because disqualification from office is not necessarily or exclusively a
form of punishment. For instance, the Twenty-second Amendment is surely not in-
flicting a “punishment” when it precludes the President from running for a third
term.183 Moreover, Section Three does not inflict it on specified persons or groups, but
rather on anybody who has committed a described course of conduct.

To be sure, Supreme Court precedent has read the Bill of Attainder Clauses
more broadly, both in a pair of 20th-century “red scare” cases184 and perhaps more
relevantly in a pair of immediate post-Civil War-era loyalty cases: In Cummings v.
Missouri185 and Ex Parte Garland,186 the Supreme Court invalidated state and fed-
eral oath requirements that required an “Ironclad Oath” from anybody holding a
range of positions, both public and private. That oath was really a past-loyalty-re-
quirement, requiring people to swear that they had not supported the confederacy or

182 See generally Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63
Stan. L. Rev. 1177 (2011).
183 U.S. Const. amdt. XXII. But see Cummings v. Missouri, 71 U.S. 277, 320 (1866) (“Disqualification

from office many be punishment, as in cases of conviction upon impeachment.”).

184 United States v. Brown, 381 U.S. 437 (1965); United States v. Lovett, 328 U.S. 303 (1946).
185 71 U.S. 277 (1866).
186 71 U.S. 333 (1866).

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the like.187 The Court concluded that these requirements were effectively bills of at-
tainder—and also ex post facto laws—and held them unconstitutional.

Even if one takes these precedents at face value it does not follow that Section
Three would similarly be a bill of attainder. First, the “Ironclad Oath” laws had a
broader scope than Section Three: Garland dealt with bar membership, and con-
cluded that “exclusion from any of the professions or any of the ordinary avocations
of life for past conduct can be regarded in no other light than as punishment for such
conduct.”188 Similarly, the plaintiff in Cummings was a Catholic priest forbidden from
preaching.189 Neither case dealt with a more focused exclusion from constitutional
office. Indeed, the majority opinion emphasized this fact, explicitly noting that nei-
ther case involved qualifications for public office.190 Second, because both cases fo-
cused on the retroactive effect of the laws,191 neither case’s reasoning would seem
applicable to Section Three in post-Civil-War insurrections and rebellions—which of
course are the only insurrections and rebellions to which Section Three still ap-
plies.192

And in any event we doubt that one should take these precedents at face value.
First of all, if we had to take sides, we might well be inclined to say that Garland at
least may have been wrong, for reasons stated in dissent by Justice Miller (joined by
three other justices, including, perhaps somewhat ironically given his later position
in Griffin, Chief Justice Chase).193 Second, and more fundamentally, if constitutional
amendments can change the Constitution, a fortiori they can change judicial inter-
pretations (and misinterpretations) of the Constitution. That is of course what Section
One of the Fourteenth Amendment famously did with respect to Dred Scott, what the
Eleventh Amendment did with respect to Chisholm, and so on.194 In short, the Court’s
interpretation of the Bill of Attainder Clause was a stretch, and regardless, it does
not stretch far enough to change or limit the meaning of Section Three.

B. Ex Post Facto Laws

187 For much more detailed discussion of the federal “Ironclad Oath” see infra Part IV.A.4.b.i.
188 Garland, 71 U.S. at 377.
189 Cummings, 71 U.S. at 319.
190 Garland, 71 U.S. at 378.
191 Cummings, 71 U.S. at 327 (“They are aimed at past acts, and not future acts.”); Garland, at 377

(“In the exclusion which the statute adjudges it imposes a punishment for some of the acts specified
which were not punishable at the time they were committed”).
192 See supra Part I.B.
193 Garland, 71 U.S. at 382. Cummings presents a trickier case, as it might involve complicating ques-

tions of state power to interfere with religious liberty and church autonomy (albeit before ratification
of the Fourteenth Amendment) and an especially weak case for the relevance of past loyalty to engag-
ing in religious occupation.
194 For a somewhat lighthearted explication of this principle – and a serious treatment of certain of its

implications, see Michael Stokes Paulsen, Can a Constitutional Amendment Overrule a Supreme Court
Decision? 24 Const. Comm. 285 (2007).

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 Article I also forbids both the state and federal governments from enacting an
“Ex Post Facto” law.195 An ex post facto law is generally thought to mean a legislative
enactment that makes a past act criminal even though it was lawful at the time it
was done. Once again, Section Three does not meet this description, being neither a
legislative enactment (but rather a new constitutional provision) nor a legislative en-
actment defining a criminal offense.196 True, as applied to actions done before 1868,
Section Three has retroactive (non-criminal) constitutional legal effect. But as ap-
plied to actions done after 1868, the idea that Section Three might depart even from
the “spirit” of the ban on ex post facto laws makes precious little sense.

So Section Three no longer produces any conflict—if it ever did—with the Ex

Post Facto Clauses or with any Ex Post Facto Spirit that might be supposed to lurk
behind them. And even if it did, Section Three would supersede both prior law and
lurking spirit.

Indeed, we have this on especially good authority, as this very question has
been asked and answered in the past. The Eleventh Amendment, as noted above, had
the effect of cutting off jurisdiction previously recognized by Chisholm v. Georgia’s
interpretation of Article III. In Hollingsworth v. Virginia, the Court then confronted
the question whether the Amendment was retroactive, cutting off suits pending when
the Amendment became law. The plaintiffs argued in the U.S. Supreme Court against
retroactivity, because “[t]he spirit of the constitution,” forbade “the mischief of an ex
post facto Constitution.”197 Indeed, this argument mirrored precisely the arguments
for narrow construction we have seen above: “It is true, that an amendment to the
Constitution cannot be controuled by those provisions; and if the words were explicit
and positive, to produce the retrospective effect contended for, they must prevail. But
the words are doubtful; and, therefore, they ought to be so construed, as to conform
to the general principle of the Constitution.”198 But the Supreme Court disagreed em-
phatically—unanimously ruling the very next day that the Amendment applied ret-
roactively, by necessary implication.199 As with the Eleventh, so too for the Four-
teenth: Had the Supreme Court ever been called upon to consider the question, the
right answer surely is that the Fourteenth Amendment’s rules immediately governed
upon ratification and applied “retroactively” to prior actions covered by the revised
constitutional rules.

195 U.S. Const. art. I, §§9 & 10.

196 To be sure, there are revisionist arguments that the Ex Post Facto clause itself extends to retroac-
tive civil laws too. See Eastern Enterprises v. Apfel, 524 U.S. 498, 538-39 (1998) (Thomas, J., concur-
ring). And as with bills of attainder, in the wake of the Civil War the Supreme Court held that Ironclad
Oath requirements were ex post facto laws as well. Cummings, 71 U.S. at 326-332; Garland, 71 U.S.
at 377-368. But as discussed in the text, even these principles do not ensnare Section Three going
forward, on a non-ex-post-facto basis
197 3 U.S. at 378-80 (arguments of counsel).
198 Id.
199 Id. at 382. See Baude & Sachs, Eleventh Amendment, supra note 9, at 626-627.

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C. Due Process of Law

The Constitution also forbids the deprivation of “life, liberty, or property with-
out due process of law,” which in many circumstances requires judicial process. Does
Section Three’s self-executing legal disqualification from office present any incompat-
ibility with this requirement? Again, we think the two sets of provisions readily rec-
onciled by giving the Due Process Clause no more than its due.

First of all, it is far from clear that the right to hold public office is a form of
life, liberty, or property. It is a public privilege, a public trust, to be vested with the
power of the people. And though it is a closer case, the same thing may be true even
for those who already hold office at the moment that Section Three disqualifies them.
Due process protects private vested rights from public deprivation. It does not protect
public rights.200 It has been argued that in England, offices were understood as vested
rights of property, and occasionally early American courts said so as well.201 But that
was not the better rule in America. Treating offices as property did not fit well with
republican principles,202 and by 1900 the Supreme Court could rightly state: “The
decisions are numerous to the effect that public offices are mere agencies or trusts,
and not property as such.”203

In any event, even if it were otherwise, and those who held offices were de-
prived of property by Section Three, what would follow? Nothing. Section Three would
prevail. Consider once again the Thirteenth Amendment, which did directly interfere
with private property rights—the right recognized in southern states to hold other
humans in bondage. The Thirteenth Amendment instantly, self-executingly, elimi-
nated those property rights, due process notwithstanding.204 So too would Section
Three.

Principles of due process might also animate a different objection—that impos-

ing such harsh consequences on individual wrongdoing simply ought to involve fair
notice and an opportunity to be heard. Perhaps this instinct motivates the argument
against self-execution, as in Griffin’s Case. But in our view this objection is suffi-
ciently answered by the terms of Section Three itself. Perhaps the reason that Section

200 Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 565-593 (2007); Wil-
liam Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540-1547 (2020).
201 Jed Shugerman, Freehold Offices vs. “Despotic Displacement”: Why “Executive Power” Did Not In-

clude Removal (July 25, 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521119; Hoke v.

Henderson, 15 NC 1 (1833).
202 See Jane Manners & Lev Menand, The Three Permissions, 121 Colum. L. Rev. 1, 20 (2021) (“In

revolutionary America, the idea of offices as property was roundly rejected”); Saikrishna Prakash,
Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1824 n. 157 (2006) (“A more republican conception
of government meant a more republican conception of offices.”).
203 Taylor & Marshall v. Beckham, 178 U.S. 548 (1900).
204 See supra notes 48-50 and accompanying text.

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Three only applies to holding office and not voting, and only applies to prior office-
holders, who have previously sworn a constitutional oath—indeed, these limitations
are the only ways in which Section Three’s scope was appreciably narrowed during
the drafting process—is that we can expect once and future officials and oath-takers
to be on particularly strong notice about the basic rules of the constitutional order.
Section Three does not ensnare garden-variety crime or miscreance. It ensnares of-
fenses against the authority of the system by those who have been and seek to be part
of that system.

Similarly, so long as Section Three is applied through the established and cus-
tomary procedures for determining qualifications for office, many due process objec-
tions would seem to disappear. As discussed above, in many scenarios, Section
Three’s disqualification would be enforced through administrative hearings, quo war-
ranto suits, state and federal judicial review, congressional adjudications, and so on.
Anybody who wishes to argue that his conduct is not covered by the substantive sweep
of Section Three is free to litigate that point through all relevant channels.205 Section
Three is therefore not in conflict with any requirements of fair notice or an oppor-
tunity to be heard.

D. The Ominous Question: Section Three and the First Amendment

With respect to the Constitution’s provisions on bills of attainder, ex post facto

laws, and due process, the harmonization of Section Three with prior constitutional
law is easy and relatively unproblematic. There is little conflict between the two pro-
visions, and to the extent there is, Section Three is plain enough that it must prevail.
The interaction of Section Three with the First Amendment presents a more inter-
esting, even troubling, question. Does Section Three partially revoke the right to po-
litical dissent?

Thinking too hard about this problem yields a morass: What exactly is the re-
lationship between Section Three’s language imposing disqualification for having “en-
gaged in insurrection or rebellion” and the First Amendment’s protections of the free-
doms of speech, press, assembly, and petition? Likewise, what is the relationship be-
tween the disqualification for having given “aid or comfort” to insurrectionists, rebels,
or other enemies of the United States and the First Amendment? As we have argued,
Section Three in principle can supersede, qualify, or modify (or be deemed to “satisfy”)
prior constitutional requirements, rendering the provisions of the First Amendment
essentially without independent constitutional force as limitations on the scope of
Section Three. But how might the prior and important constitutional principles of the
First Amendment affect the proper understanding of Section Three’s meaning and
scope? What exactly does Section Three effectuate, in relation to the First Amend-
ment? Where do the usual protections of the First Amendment leave off and the legal

205 See generally supra Part II.B.

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disabilities imposed by Section Three take over, as a matter of the proper understand-
ing of Section Three?

There are, crudely, three possible ways of describing the relationship. The first
is to find Section Three (implicitly) limited by the First Amendment. The second is,
in contrast, to view Section Three as properly understood as carving out a zone of
exception to, supersession of, or satisfaction of First Amendment principles. The third,
which we believe correct, lies somewhere in the middle: Section Three should be con-
strued, to the extent fairly possible, consistently with the free speech principles me-
morialized in the First Amendment. But to the extent of a true conflict between them,
Section Three must control.

To consider a not-so-hypothetical example, suppose that an officeholder cov-

ered by Section Three gives a speech to an assembled crowd encouraging them to
engage in rebellious or insurrectionary conduct. (And suppose further that the crowd
accepts the encouragement, rebelling against members of Congress carrying out a
constitutional duty at the seat of government.) We will return to this example206 but
for now we consider: how do we judge such an example? Is this only a question of the
constitutional definition of “engage in insurrection” and “aid or comfort”—of whether
an encouraging speech to an insurrectionary crowd is covered by those terms? Or is
it also a question of whether that speech is protected by freedom of speech, and under
modern doctrine, that would mean the very stringent test of Brandenburg v. Ohio?207
Or is it somehow both?

To a large extent, we think the conflicts between Section Three and free speech
can be minimized—as Hamilton would counsel.208 First, even under modern doctrine,
free speech does not protect several categories of speech that overlap with Section
Three. Second, Section Three’s terms will not often reach pure speech.

To elaborate on the first point: Modern First Amendment doctrine leaves the
government free to punish actual conspiracy and solicitation, direct incitement, and
material support of unlawful activities such as insurrection, rebellion, and treason.
(There are serious questions about how much modern First Amendment doctrine has
exceeded the original protections of freedom of speech and freedom of the press, which
we will largely put aside, but the point is that these exceptions are recognized even
on today’s liberal understandings.209)

206 See infra Part IV.C.2.

207 395 U.S. 444 (1969).
208 Federalist No. 78, supra note 173, at 173 (“So far as they can, by fair construction, be reconciled to

each other, reason and law conspire to dictate that this should be done.”)
209 For what it is worth, we do not in general dispute many aspects of modern First Amendment doc-

trine, which we believe often captures the original meaning of freedom of speech and freedom of the
press, as applied to modern circumstances. See generally Michael Stokes Paulsen, Scouts, Families,
and Schools, 85 Minn. L. Rev. 1917, 1919-1922 (2001). To get a sense of how one might construct a
truly marvelous proof of this, which this margin is too narrow to contain, see for starters, Adam Griffin,

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 The First Amendment has long been held not to protect conspiracy to commit
a crime or direct solicitation of unlawful activity, because this is “speech integral to
criminal conduct.”210 And while one must use some caution about unduly expanding
this category, conspiracy and solicitation are at its core.211 Thus, efforts to steal elec-
tions, to pressure state officials to manufacture votes, to pressure other officials (like
the Vice President) to violate their constitutional duties in service of a constitutional
coup—would all be unprotected by the First Amendment. To the extent those efforts
are swept up by Section Three, there would be no conflict.

More familiar may be the modern line of cases concerning “incitement.” Over
the course of the twentieth century, judicial doctrine increasingly gave greater pro-
tection to speech that could be seen as generally inciting unlawful activity, recogniz-
ing that earlier doctrine (such as the famous “clear and present danger” test) had too
readily permitted suppression of disfavored political views. The modern rule, stated
in Brandenburg v. Ohio in 1969, excludes from First Amendment protection only ad-
vocacy or expressive conduct (i) “directed to” (ii) triggering or inciting (iii) “imminent”
lawless action (presumably including acts of insurrection or rebellion) and (iv) “likely”
to produce such action.212 That is a fairly strict standard, but not one that is impossi-
ble to satisfy. Importantly, it does leave open—even under the generous terms of mod-
ern First Amendment law—the prospect that some acts of advocacy and expression
supporting insurrection or rebellion are simply unprotected by the First Amendment
in any event, so that Section Three does not even need to have amended or superseded
the First Amendment in order for its terms to be given their full legal effect.

The Supreme Court’s relatively recent decision in Holder v. Humanitarian

Law Project213 recognized a further and more controversial limitation on subversive
speech: it can be forbidden where it provides “material support” to a foreign organi-
zation engaged in or committed to terrorist violence against the nation. The Court
concluded that because the “interest in combating terrorism is an urgent objective of
the highest order,” the Congress could forbid even speech—such as teaching and
training—assisting such organizations, and even though the speech did not directly

First Amendment Originalism: The Original Law and A Theory of Legal Change as Applied to The
Freedom of Speech and of The Press, 17 First Amend. L. Rev. 91 (2019); Jud Campbell, Natural Rights
and the First Amendment, 117 Yale L. J. 246 (2017); Jud Campbell, The Emergence of Neutrality, 131
Yale L. J. 861 (2022). (We will cease further digression on this point.)
210 United States v. Hansen, 599 U.S. __, at 18-19 (2023); United States v. Williams, 553 U.S. 285, 297

(2008); Giboney v. New Ice Storage, 336 U.S. 490 (1949); Eugene Volokh, The “Speech Integral to Crim-
inal Conduct” Exception, 101 Cornell L. Rev. 981, 989-993, 1007-1008 (2016).
211 Volokh, supra note 210, at 1011-1015.
212 395 U.S. at 447; see also Hess v. Indiana, 414 U.S. 105, 108-109 (1973); NAACP v. Claiborne Hard-

ware, 458 U.S. 886 (1982)..

213 561 U.S. 1 (2010).

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further terrorist conduct. While this decision is hedged by multiple limiting princi-
ples,214 it illustrates another set of circumstances where the First Amendment would
create no conflict with potential applications of Section Three.

In sum, while modern First Amendment doctrine is quite generous in its pro-
tection of speech, in many cases it would produce no conflict with the coverage of
Section Three. We will elaborate on the second point—the scope of Section Three it-
self—more fully in Part IV, but for now suffice it to say that the occasions will be rare
where speech alone is what qualifies one as having “engaged in insurrection” or pro-
vided “aid or comfort” to enemies.

That said, we will concede that the conflict between free speech and Section
Three cannot be denied entirely. Consider the Civil War example of Clement Vallan-
digham, who was arrested and imprisoned by the military on the theory that “he was
laboring, with some effect, to prevent the raising of troops; to encourage desertions
from the army; and to leave the Rebellion without an adequate military force to sup-
press it,”— that he was “warring upon the Military.”215 It is conceivable (though we
do not prejudge the point) that Vallandigham’s anti-military efforts could be covered
by Section Three. And yet it is also quite plausible that his efforts would be protected
by free speech.

Or for a sharper example, even more on point, consider the case of Repre-
sentative-elect John Y. Brown, who was excluded from the Fortieth Congress on the
grounds that he had given aid and comfort to the Confederacy by writing to the Lou-
isville Courier promising to resist the Union army “unto the death” and stating that
anybody who volunteered for the Union army “ought and I believe will be shot down
before he leaves the State.”216 This exclusion was part of the backdrop of Section
Three’s enactment and likely the kind of thing Section Three was intended to cover.
But, argues one scholar of the incident, this pre-Section Three exclusion “was en-
tirely unconstitutional” and “plainly violative of the First Amendment.”217 If that
was so before Section Three’s enactment, does Section Three make it otherwise?218

Finally and perhaps most explosively, consider the 1919 exclusion of socialist
newspaper editor Victor Berger from the House. Berger was denounced by members
of the House for having given “aid and comfort to the enemies of this country during

214 The Court emphasized that “only material support coordinated with or under the direction of a
designated foreign terrorist organization” was banned; “independent advocacy” was “not covered.” Id.
at 31-32. Additionally, the law only applied to foreign organizations.
215 President Abraham Lincoln to Erastus Corning and others (June 12, 1863), in Abraham Lincoln,

Speeches and Writings, 1859-1965, at 454, 459 (Don Fehrenbacher, ed. 1989). See infra notes 264-272
and accompanying text.
216 See infra notes 265-273, and 338-343 and accompanying text.
217 Lynch, supra note 5, at 197-198.
218 See Lynch, supra note 5, at 198 (“Had Section 3 been ratified by this point, these concerns would

be assuaged.”)

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this Great War,” and excluded in part on that basis.219 (Indeed, Berger had also
been convicted and sentenced under the Espionage Act, though the charges were
overturned by the Supreme Court on grounds of judicial bias.)220 Another scholar of
the incident writes that “Under a good reading of the First Amendment, Berger’s
speeches and writings could not have been seditious; however under the interpreta-
tion prevailing at the time, they probably were.”221 What should we make of such an
incident?

In the end, in a case where free speech principles conflict with the best original
understanding of “engaged in insurrection” or “aid or comfort,” we think that free
speech principles must give way. We stress that we do not think that all or even most
disloyal speech will rise to the level of triggering Section Three’s disqualifications.222
But where it does, where “it becomes a matter of necessity to give effect to one in
exclusion of the other,” it is the more recent Fourteenth Amendment that “shall be
preferred” to the earlier rule.223

For those (like us) who value First Amendment liberties of speech, press, as-
sembly, religion, and the right to dissent generally, might Section Three therefore be
thought a little dangerous? Might Section Three, in the wrong hands or applied im-
properly, be used to suppress dissent in the name of excluding insurrectionists from
office? Perhaps. We do not shy away from the point. But the supposed danger of a
constitutional provision is not really an argument against its meaning. And the po-
tential abuse of a constitutional power, privilege, or disqualification is not really a
good legal argument against its existence. Section Three’s exclusion could be thought
to pose a danger; but insurrection and rebellion are dangers too—all too real dangers,
as recent events have shown. Where exactly that line is drawn by the Constitution,
and the extent to which that line changes the prior rules of the First Amendment, are
ultimately questions of the meaning of Section Three’s general terms triggering dis-
qualification from future office—“insurrection,” “rebellion,” “engaged in,” “given aid
or comfort to”—and of who all is included under Section Three’s ban. To that set of
important questions we turn next.

IV. Section Three’s Substantive Disqualification is Sweeping

219 Chafetz, supra note 47, at 190; Lynch, supra note 5, at 211-213; 6 Clarence Cannon, Cannon’s
Precedents of the House of Representatives 52-63 (1935).
220 Berger v. United States, 255 U.S. 22 (1921). Curiously, after this verdict the House then allowed

him to sit in the sixty-eighth through seventieth Congresses. Lynch, supra note 5, at 213.
221 Chafetz, supra note 47, at 191.
222 In our view, for instance, the exclusion of Victor Berger went too far—not because the First Amend-

ment makes an exception to Section Three, but because Berger’s advocacy did not satisfy the original
meaning of Section Three. See infra note 354.
223 Federalist No. 78, supra note 173, at 439.

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 We come at last to the heart of the beast: the substance of Section Three’s pro-
hibition. We begin (in Subpart A) with the most interesting and important set of is-
sues—the types of misconduct that trigger Section Three. What deeds (and words?)
amount to having “engaged in” “insurrection” or “rebellion” against the lawful au-
thority of the Constitution and the system of government it establishes? What acts
(or words?) amount to having given “aid or comfort” to “enemies” of lawful govern-
ment under the Constitution?

These terms to some extent bear a range of meaning and fair construction. The
events they describe are often exceptional and to some extent unique. Still, some ap-
plications will be clear and virtually indisputable, falling within the terms’ core
meaning—the center of the interpretive bullseye, so to speak. Such scenarios so
clearly fall within Section Three that they may be said to be contained within the
opposite of a safe harbor—a “sure shipwreck,”224 to borrow Susan Morse’s phrase—of
unquestionably disqualifying conduct falling within the core of Section Three’s mean-
ing: for example, declared secession from lawful constitutional government; or the
taking up of arms against government (as in the waging of the Civil War). At the
other end of the continuum, there will be situations that clearly lie in a safe harbor
outside the legitimate range of meaning of Section Three’s terms—ordinary expres-
sion of political dissent as well as even ordinary law violations. In between these
markers, there is a zone of reasonable, fair construction of allowable interpretation
and application in which government officials may make judgments that must be
conceded to be within the range of what the Constitution permits—and where the
decisions and actions of government officials exercising their constitutional powers
consequently cannot be considered unlawful and thereby subject to judicial invalida-
tion. Within that fair range of meaning, different interpreters legitimately can reach
differing conclusions, all in accordance with the Constitution. We address all of these
questions in subpart A.

We then turn more briefly (in subpart B) to the questions of what prior-office-
holding, oath-taking categories of persons—persons who then subsequently engaged
in insurrection or rebellion—are covered by Section Three’s ban and (a similar but
distinct question) what future offices are constitutionally barred to such persons. We
conclude that Section Three’s disqualification is sweeping, both in the substantive
conduct that triggers such disqualification and in the office-holders and offices to
which it applies. In particular, contrary to one recent revisionist view, we believe it
applies to the Presidency.

Finally (in Subpart C) we will consider the attempted overthrow of the 2020
Presidential election. Did the incumbent president’s willful, deliberate refusal to ac-
cept the outcome of the lawful constitutional election resulting in his defeat for re-
election and, instead, his (and others’) attempt to overthrow constitutional election
results and install or maintain himself in office, by force, by fraud or by attempted de

224 Susan Morse, Safe Harbors, Sure Shipwrecks, 49 U.C. Davis L. Rev. 1385 (2016).

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facto political coup d’etat against the regime of lawful constitutional government,
constitute engaging in “insurrection or rebellion against the Constitution of the
United States”? We think the answer is yes.

Whether called a “rebellion,” an attempted coup d’etat seeking to displace law-

ful government authority under the Constitution, or an “insurrection,” instigating,
inciting and encouraging a mob to engage in acts of forcible violence directed against
the ability of Congress and the Vice President to carry out their constitutional du-
ties—and then refusing to intervene—such conduct is covered by Section Three, and
is disqualifying. If those are indeed the facts concerning Donald Trump’s (and others’)
efforts to overthrow the election—and we think they are—such conduct triggers the
disqualification rule of Section Three.

Whether other federal and state officeholders—members of Congress, state

legislators, past or present state and federal executive and judicial officers—engaged
in conduct constituting “insurrection” or “rebellion” (including meaningful action in
deliberate furtherance of an attempted coup against lawful constitutional govern-
ment), or gave “aid or comfort” (approval, encouragement, support) to others who did,
might sometimes involve more difficult questions of fact and judgment. But they are
the questions Section Three compels us to ask, and to answer. Where such evalua-
tions and judgments have been made by actors exercising legitimate authority to
make them (as discussed in Part II) and fall within the fair range of Section Three’s
meaning, those judgments are entitled to full legal effect.

A. Section Three’s Disqualifying Conduct: “Insurrection or Rebellion”; “Engaged In”;

“Aid or Comfort” to “Enemies”

What is the proper, original public meaning of “insurrection” and “rebellion”

as used in Section Three? Of having “engaged in” such conduct? Of having given “aid
or comfort” to “enemies”?

Because the terms are capacious and the evidence is sprawling, we will start
by proposing our working definitions for these terms. We then show how they are
largely consistent with standard sources for discerning the meaning of constitutional
text: contemporaneous definitions of these terms; usage elsewhere in the Constitu-
tion; and especially contemporaneous public, political, and legal usage of the terms.
This last category, which is especially instructive, includes usages from President
Lincoln, legislation adopted and sometimes implemented by the Civil War Congress
(both the 1862 “Ironclad” oath and the Second Confiscation Act), and the significant
mid-Civil-War decision of the Supreme Court in The Prize Cases. We also consider,
albeit in somewhat more abbreviated fashion, statutes and usages leading up to the
Civil War, including the Insurrection Act of 1795 as amended, and an important se-
ries of exclusions from Congress itself, as well as the relevant legislative history of

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Section Three, and a few scattered post-enactment applications of Section Three it-
self.

1. Working definitions

We begin by offering working definitions of the terms insurrection and rebel-

lion as used in Section Three and of what might constitute “engaging in” such conduct
or giving “aid or comfort” to others who do.

Insurrection is best understood as concerted, forcible resistance to the authority

of government to execute the laws in at least some significant respect. The term “insur-
rection” connotes something more than mere ordinary lawbreaking. It suggests an
affirmative contest with, and active resistance to, the authority of the government. It
is in that sense more than just organized resistance to the laws—more than just a
protest, even one involving civil disobedience. Rather, it is organized resistance to the
government. Insurrection is also more than mere “protest” in that it implies some
element of forcible resistance. It is something more than a mere spontaneous, disor-
ganized “riot.”225 Insurrection suggests at least some degree of coordinated, concerted
action. The term also implies something more than acts of solitary individuals: to
qualify as an insurrection the acts in question must involve some form of collective
action, even if not an advance plan.

At the same time, insurrection may fall short of outright rebellion—even as the
terms overlap and might bleed into each other—in that an insurrection might not
seek to overturn, overthrow, or displace the government itself, in whole or in part (as
a rebellion does). As the Supreme Court put it in The Prize Cases, in 1863: “Insurrec-
tion against a government may or may not culminate in an organized rebellion.”226

Rebellion is thus closely related to insurrection, but perhaps not quite identical
in meaning. A rebellion is arguably broader in its reach than an insurrection: rebel-
lion implies an effort to overturn or displace lawful government authority by unlawful
means. (In the case of secession, or a declaration of independence, the rebellion is an
effort to free those engaged in rebellion from the authority of the existing lawful gov-
ernment.) Rebellion is something beyond mere resistance to government authority in
a particular instance or set of instances. A rebellion seeks to replace the existing re-
gime, not just resist its law-executing authority. Rebellion involves repudiation, to
some degree or another, of the regime’s authority, legitimacy, or validity. It is a chal-
lenge, direct or indirect, to the regime itself. The South’s attempted secession was a
species of rebellion—an attempt to overturn the authority of the Constitution and
government of the United States by the states asserting the right to secede. Likewise,
an attempted coup d’etat is arguably also a species of rebellion—an effort to displace,

225 10 Documentary History of the Ratification of the Constitution 1296 (Statement of Madison) (“A
riot did not come within the legal definition of an insurrection”).
226 2 Black (67 U.S.) 635, 667 (1863).

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replace, upend, or overthrow the existing lawful regime and substitute different au-
thority in its stead.

The term rebellion can also imply a competing claim to legitimacy. “Rebellion”
thus seems to carry a stronger political-claim-of-right valence than does “insurrec-
tion.”227 Crucially, however, the fact that an insurrection or rebellion claims political
or moral legitimacy—as the American Revolution did; indeed, as the South’s seces-
sion did—does not make it any the less an insurrection or rebellion. The fact that an
attempted coup d’etat, or declaration of independence, or secession, is claimed to be
a “vindication” or “restoration” of rightful governmental authority—or asserted to be
a pre-emptive effort to thwart some other person’s or group’s alleged wrongful asser-
tion of authority—does not immunize such action from the legal characterization of
rebellion against the regime. If somebody in fact participates in an attempt to over-
throw the government, it makes no difference that he might think himself in the right
for doing so, see himself as an agent for preserving lawful government, or view his
acts and intention not as “rebellion” but restoration. Mistake of law is no defense to
a coup d’etat. The South offered a variety of constitutional legal theories in defense
of the supposed lawfulness of secession as an act for the vindication of its believed
rights.228 That did not make its acts of rebellion any less acts of rebellion.

As to the overlap and distinction between insurrection and rebellion our work-
ing definition is more tentative. It is possible that a rebellion is simply a special case
of an insurrection, in the way that a square is a special case of a rectangle. But it is
also possible that the term rebellion is not necessarily limited to regime change by

227 Though it is possible that this connotation is anachronistic. See infra note 247.
228 For important accounts and discussion of Southern arguments for the constitutional propriety and
validity of secession, on a variety of asserted grounds, see James M. McPherson, Battle Cry of Free-
dom: The Civil War Era 234-236 (1988) (summarizing Southern constitutional and political theories);
Daniel Farber, Lincoln’s Constitution 57-91 (2003) (emphasizing arguments of states’ rights to inter-
position, nullification, and secession generally); Michael Stokes Paulsen, Lincoln and Judicial Author-
ity, 83 Notre Dame. L. Rev. 1227, 1270-1277 (2008) (setting forth Southern leaders’ constitutional
arguments that Lincoln’s stance against the Dred Scott decision, against judicial supremacy, and
against extension of slavery violated the judicially settled constitutional rights of slaveholding persons
and states); Kenneth M. Stampp, The Concept of a Perpetual Union, 65 J. Am. Hist. 5-53 (June 1978)
(providing detailed history of constitutional and political arguments over the nature of Union and the
validity of secession); David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829-
1861, at 228-237 (2005) (discussing and evaluating the constitutional arguments for and against the
validity of secession). For the case against the constitutionality of secession, see generally 2 Abraham
Lincoln, Speeches & Writings, 1859-1865: Speeches, Letters, Miscellaneous Writings, Presidential
Messages & Proclamations, at 217-218 (First Inaugural Address, March 4, 1861); id. at 254-258, 260-
261 (Message to Congress, July 4, 1861); see also Michael Stokes Paulsen, The Civil War as Constitu-
tional Interpretation, 71 U Chi. L. Rev. 691, 703-715 (2004) (reviewing Daniel Farber, Lincoln’s Con-
stitution) (distilling and building on Lincoln’s arguments); Kesavan & Paulsen, West Virginia, supra
note 127, at 303-311 (same). For further background, see generally William W. Freehling, The Road
to Disunion: Secessionists at Bay 1776-1854 (1990), and for a comprehensive exposition of the South-
ern view, see Alexander M. Stephens, A Constitutional View of the Late War Between the States; Its
Causes, Character, Conduct and Results (1867).

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force—and thus may occupy some ground not covered by the word “insurrection”
(which, we have suggested, must be forcible). There are such things as “bloodless
coups”: actions that effectively displace or upend the prior constitutional order with-
out shots being fired, but that nonetheless are in unlawful defiance or repudiation of
the existing legal order.229

To illustrate this hypothesized distinction between insurrection and rebellion:

Imagine that the Southern attack on Fort Sumter in April 1861 had preceded any
declared right to secession. The attack would have been an act of insurrection—an
exercise of concerted, forcible defiance of the authority of the Union government—but
not necessarily outright rebellion. Conversely, the ordinances of secession adopted by
state conventions in the South in 1860 and 1861230 preceded (mostly) any acts of ac-
tual forcible resistance to the authority of the United States to execute the laws. The
secession ordinances might still immediately constitute acts of “rebellion,” even be-
fore any accompanying violence. In short: Sumter without secession would have still
been insurrection. Secession without Sumter was already rebellion. Put the two
events together—acts of forcible insurrection and declarations of avowed rebellion
frequently travel in pairs (as they obviously did with the Civil War)—and it becomes
difficult to distinguish “insurrection” from “rebellion.” The overlap of the two terms
in theory becomes complete in practice.

In the end, however, we do not wish to make too much of the ways in which the
terms differ in shades of color and in their implication. The coverage of the terms
overlaps substantially. Sometimes, the terms, occupying much of the same ground,
seem capable of being used almost interchangeably. Indeed, the bigger picture point
for understanding Section Three is that “insurrection” and “rebellion,” in tandem,
cover pretty much the entire terrain of large-scale unlawful resistance to government
authority.

So much for our working definitions of “insurrection” and “rebellion.” What

does it mean to have “engaged in” such conduct? We believe one has “engaged” in
insurrection or rebellion when one has been actively involved in the planning or exe-
cution of intentional acts of insurrection or rebellion; or when one has knowingly pro-

229 Indeed, one might characterize the process of adoption of the U.S. Constitution, replacing the re-
gime of the Articles of Confederation, as a peaceful political coup d’etat – an act of “rebellion” if judged
by the pre-existing law, but morally and politically justified by the failure of the prior regime and
Lockean notions of self-governance, and subsequently legalized by its own success. See generally
Paulsen & Paulsen, supra note 30, at 3-8, 17-20; Stephen E. Sachs, Originalism as a Theory of Legal
Change, 38 Harv. J. L. & Pub Pol’y 818, 821, 844, 850 (2015).
230 The seceding states adopted their secession resolutions by state “conventions,” purporting to paral-

lel the process by which the states ratified the Constitution. See McPherson, supra note 228, at 234-
284 (describing secession actions of the ten states that purported to secede from the Union). The se-
cession ordinances of the South were self-consciously styled after the Declaration of Independence,
which was obviously an act of formal legal rebellion.

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vided active, meaningful, voluntary, direct support for, material assistance to, or spe-
cific encouragement of such actions. Such planning, participation, support, assis-
tance, or encouragement may be in the form of either words or deeds, as long as the
person who has “engaged in” such activities embraced the objectives of the insurrec-
tion or rebellion in question and did things that contributed in a meaningful way to
advancing those objectives.231 (There is obvious overlap here with the closely related
concept of having given “aid or comfort” to the nation’s enemies, which we discuss
presently.)

Of course, there are also important limits to how far the concept of having “en-
gaged in” insurrection or rebellion extends. Mere passive acquiescence, resigned ac-
ceptance, silence, or inaction is not typically enough to have “engaged in” insurrection
or rebellion. An exception to this limitation might exist where a person possesses an
affirmative duty to speak or act. Further, mere abstract advocacy of, or theorizing
concerning, the desirability of insurrection or rebellion, without more, is not the same
as actually engaging in it. We think this is true even though the First Amendment
does not formally constrain Section Three: it is simply the best understanding of Sec-
tion Three’s terms.

Then there is the related question of what constitutes having given “aid or
comfort” to “the enemies thereof.” This reads as a separate, independent ground for
disqualification: Section Three is triggered by having engaged in insurrection or re-
bellion “or” having given aid or comfort to enemies. This language, of course, closely
echoes the earlier constitutional language of the Treason Clause.232

In many cases, giving “aid or comfort” to enemies will be similar to the kind of
conduct that counts as having “engaged in” insurrection or rebellion through inten-
tional, active assistance. If there is a difference, it is that the term “aid or comfort”
reinforces and emphasizes Section Three’s coverage of indirect but material assis-
tance. Such material assistance—possibly including expression supporting, encour-
aging, counseling, or promoting the enemy—might more naturally fall into Section
Three’s “aid or comfort” language, even where it might be debatable whether to char-
acterize such conduct as directly “engag[ing] in” insurrection or rebellion.

231 This working definition of having “engaged in” wrongful activity resembles familiar common law
understandings of accomplice liability in the area of criminal law, which typically resulted from the
combination of (1) assistance to unlawful conduct (with “assistance” including uttering words of en-
couragement to, or agreeing not to interfere with, such conduct) and (2) the intention to further such
unlawful conduct). Federal criminal law today is to similar effect. 18 U.S.C. § 2(a) (2012) (“Whoever
commits an offense against the United States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal.”). We think it is also generally supported by background
mens rea principles. See William Baude & Stephen Sachs, The Law of Interpretation, 130 Harv. L.
Rev. 1079, 1108 (2017). That said, the lesson of the Civil War also suggests one important limitation:
there is no mistake-of-rebellion defense. See text accompanying infra note 420.
232 U.S. Const. art. III, § 3, cl. 1 ( “Treason against the United States, shall consist only in levying war

against them, or in adhering to their enemies, giving them aid and comfort.”)

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 Additionally, while Section Three uses some language paralleling that con-
tained in the Treason Clause, Section Three is by no means limited to the constitu-
tional crime of treason. “Insurrection” and “rebellion” are their own things, distinct
from “treason.” While some acts of insurrection and rebellion might also constitute
treason they need not do so in order to be encompassed within Section Three. So even
if “aid or comfort” in Section Three connotes the same type of assistance-and-embrace
principles as “Aid and Comfort” in Article III’s Treason Clause,233 the relevant con-
duct to which such assistance is given might well differ. (And, as noted earlier, it is
plain that Section Three requires no prior criminal-law conviction, for treason or any
other defined crime, as a prerequisite for its disqualification to apply.)

Finally, aid or comfort to whom? “[T]he enemies thereof.” We believe that “en-
emies” as employed in Section Three, embraces enemies both foreign and domestic.
That now-familiar phrase (“enemies foreign and domestic”) comes from the “Ironclad
Oath,” written into law in 1862, in the midst of the Civil War,234 and it seems clear
from the political context of Section Three, enacted in the wake of a domestic civil
war, that domestic enemies are enemies. It is almost unthinkable that Confederate
rebels would not have been thought “enemies” in the sense employed by the text. 235
Given the history and context of Section Three “enemies” seems to include the domes-
tic rebels and insurrectionists just described earlier in the sentence.236

Our sense of the whole—of Section Three’s substantive terms triggering dis-
qualification for those who have engaged in the conduct described—is that Section
Three is quite sweeping, using overlapping terms to cover several different charac-
terizations of major collective resistance to the authority of government under the
Constitution. Whether it be called “insurrection” or “rebellion”; and whether a cov-
ered individual is thought to have “engaged in” such activity or given “aid or comfort”
to “enemies” engaging in such activity, Section Three’s disqualification is triggered.
The language is not unlimited, to be sure. But the broad and overlapping terms are
not intended to be hospitable to loopholes or artful, narrow, technical evasions.

233 See infra note 253.

234 See infra Part IV.A.4.b.ii.
235 What is the referent of “enemies thereof”? Does “thereof” refer to enemies of the United States or

enemies of the Constitution of the United States? We think this replicates the question of what “the
same” refers to, earlier in the sentence, and presents the same issue of minor and seemingly inconse-
quential ambiguity. (Does “insurrection or rebellion against the same” refer to insurrection or rebellion
against “the United States”? On balance, we think that it probably makes little practical difference:
rebellion against the United States and rebellion against the Constitution of the United States will
often amount to the same thing; either one is capable of being considered an instance of the other.)
Whatever the answer, it should be the same for both – “against the same” and “thereof” refer to the
same thing. And given that the Treason Clause refers to “enemies” of “the United States,” it seems
fairly likely that Section Three does too.
236 See also, e.g., Section Two of the Second Confiscation Act, discussed infra Part IV.A.4.b.ii.

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 Finally, let us reiterate one consequence of Section Three’s breadth and capa-
ciousness. Because Section Three’s terms possess a range of meaning, both a deter-
minate core and a fuzzier periphery, we need a second-order rule concerning the au-
thority of decisionmakers to act on the basis of fair interpretations of indefinite terms.
We think that the general rule of our constitutional order is that political officials
may take actions premised on fair interpretations of indefinite terms, and that when
they do so, their actions cannot rightly be held “unconstitutional” by the courts, pre-
cisely because they fit within the fair range afforded by the Constitution. Where the
Constitution admits of a range of choice, political authorities may exercise choices
within that range.

This is foundational to our constitutional law.237 It is the premise of judicial

review as set forth in Marbury v. Madison, which justifies setting aside the acts of
other branches only because, and only to the extent to, they deviate from the Consti-
tution’s meaning. It is classically illustrated by the Court’s reasoning in M‘Culloch v.
Maryland,238 which upheld Congress’s power to create the Bank of the United States
because a generation of political actors had acted within the fair range of meaning of
constitutionally granted powers.

And this principle means, as a practical matter, that the breadth of Section
Three’s broad terms cannot be ignored, or artificially limited, by judicial construction.
Where those charged with responsibilities that involve applying Section Three’s
terms have given that language its full legitimate sweep, that breadth must be hon-
ored.

We now canvas—perhaps too briefly and yet at too great a length—some of the
evidence supporting these working definitions.

2. Contemporaneous Dictionary Definitions

237 See, e.g., Paulsen, Rules for Its Own, supra note 9, at 858 (arguing that where constitutional lan-
guage states a general principle, “actions of government that fall within the scope of judgment or dis-
cretion admitted by the breadth with which that principle is expressed do not violate the Constitution,
and are thus allowable”); Michael Stokes Paulsen, A Government of Adequate Powers, 31 Harv. J.L. &
Pub. Pol’y 991, 995 (2008) (arguing that “textual imprecision or generality often admits of a range of
choices” and that the correct constitutional answer in such circumstances “is that the legislature must
be permitted to choose from options within that range”; thus, “the more indeterminate or under-deter-
minate the range of a constitutional provision, the broader the duty of the courts to defer to what the
legislature has enacted”); Kesavan & Paulsen, Secret Drafting History, supra note 9, at 1129-30 n.54
(2003); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law
Is, 83 Geo. L.J. 217, 333 (1994); Baude & Sachs, Law of Interpretation, supra note 231, at 1120 (de-
scribing “the presumption of constitutionality” as a rule of unwritten law); William Baude, Constitu-
tional Liquidation, 71 Stan. L. Rev. 1, 35-36, 44 (2019). Again, we bracket any differences in emphasis
between our respective views of the adjudication of ambiguities.
238 17 U.S. (4 Wheat.) 316 (1819),

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 As we have said, the task of ascertaining true constitutional meaning consists
of seeking out the objective, original meaning of the words and phrases of the text:
that is, the meaning Section Three’s terms and structure would have had in the legal
system at the time. A starting point for such an inquiry—though not the ending
point—is to look at contemporaneous dictionary definitions. (We think that evidence
of contemporaneous political and legal usage of words and phrases contained in the
constitutional text is actually quite often stronger evidence of original, objective lin-
guistic meaning: it can serve as a kind of operational, practical concordance that may
“define” terms more precisely in their application than can a cold dictionary defini-
tion.)

Nineteenth century dictionaries contain definitions of “insurrection” and “re-

bellion” that substantially corroborate our working definitions. Webster defined “in-
surrection” as “[a] rising against civil or political authority; the open and active oppo-
sition of a number of persons to the execution of law in a city or state.”239 Rebellion
was “[a]n open and avowed renunciation of the authority of the government to which
one owes allegiance.”240

Importantly, Webster also noted several distinctions between these and other
terms. In defining rebellion, he distinguished an insurrection as “a rising in opposi-
tion to a particular act or law, without a design to renounce wholly all subjection to
the government,” while a rebellion was a more categorical “attempt to overthrow the
government, to establish a different one or to place the country under another juris-
diction.”241 And in defining insurrection, Webster noted that insurrection is “equiva-
lent to sedition, except that sedition expresses a less extensive rising of citizens.”242
This suggests a spectrum from sedition (not covered by Section Three) to insurrection
to rebellion (both covered).

At the same time, Webster also conceded some overlap in these terms, writing
that “[i]nsurrection may be, but is not necessarily, rebellion”243 and that despite these
technical distinctions, “[i]nsurrection is however used with latitude as to comprehend

239 1 Noah Webster, American Dictionary of the English Language 111 (1828, photoreprint 1993) (“In-
surrection”); see also Dr. Webster’s Complete Dictionary of the English Language 702 (Chauncy A.
Goodrich and Noah Porter, eds. 1864) (similar); 1 John Boag, A Popular and Complete English Dic-
tionary 727 (1850) (similar).
240 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also Webster’s (Porter 1864), supra note

239, at 1094 (similar); 2 Boag, supra note 239, at 319 (similar).

241 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 1 Boag, supra note 239, at 727; 2 id.

at 319 (similar).
242 1 Webster (1828), supra note 239, at 111 (“Insurrection”). For comparison, Webster defined “Sedi-

tion” as: “A factious commotion of the people, or a tumultuous assembly of men rising in opposition to
law or the administration of justice, and in disturbance of the public peace. Sedition is a rising or
commotion of less extent than an insurrection, and both are less than rebellion . . .” 2 Webster (1828),
supra note 239, at 66 (“Sedition”).
243 2 Webster (1828), supra note 239, at 51 (“Rebellion”); see also 2 Boag, supra note 239, at 319 (sim-

ilar).

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either sedition or rebellion.”244 This suggests a great deal of potential breadth and
overlap in these terms.

Along similar lines, a prominent mid-century legal dictionary, John Bouvier’s

Law Dictionary in its 1868 edition, contains detailed definitions of insurrection, re-
bellion, and aid and comfort. “INSURRECTION” was defined simply as “[a] rebellion
of citizens or subjects of a country against its government.”245 “REBELLION” is cor-
respondingly defined: “The taking up arms traitorously against the government. The
forcible opposition and resistance to the laws and process lawfully issued.”246 Bouvier’s
thus treated “insurrection” and “rebellion” as nearly interchangeable terms, both in-
volving some degree of concerted and forcible opposition to the authority of the law-
fully constituted government but not clearly distinguishing between them.247

Bouvier’s dictionary also offers an instructive definition of “AID AND COM-

FORT” as “[h]elp, support, assistance, counsel, encouragement.” The entry adds this
discussion, noting the lack of U.S. judicial interpretation at the time but a generally
accepted English background understanding of the term:

The constitution of the United States, art. 3, s. 3, declares that adhering

to the enemies of the United States, giving them aid and comfort, shall
be treason. These words, as they are to be understood in the constitution,
have not received a full judicial discussion. They import, however, help,
support, assistance, countenance, encouragement. The word aid, which
occurs in the stat. Westm. 1, c.14, is explained by Lord Coke (2 Inst. 182)
as comprehending all persons counselling, abetting, plotting, assenting,
consenting, and encouraging to do the act …248

244 1 Webster (1828), supra note 239, at 111. Daniel Hemel argues that “Webster’s definition of ‘insur-
rection’ seems implausibly broad for Section 3 purposes.” See Hemel, How-to Guide, supra note 5.
245 “Insurrection” in 1 John Bouvier. A Law Dictionary, Adapted to the Constitution and Laws of the

United States of America, and of the Several States of the American Union 729-730 (Philadelphia,
G.W. Childs, 12th ed., rev. and enl. 1868).
246 “Rebellion” in 2 Bouvier (1868), supra note 245, at 415 (emphasis added).
247 See also Joseph Worcester, A Dictionary of the English Language 764, 1190 (1860) (generally equat-

ing insurrection and rebellion). Elsewhere in this edition, Bouvier drew a distinction in connotation
between “REBEL” and “INSURGENT,” suggesting that “rebel is always understood in a bad sense, as
one who unjustly opposes the constituted authorities; insurgent may be one who justly opposes the
tyranny of constitute authorities,” and thus that “[t]he colonists who opposed the tyranny of the Eng-
lish government were insurgents, not rebels.” “Insurgent” and “Rebel” in 1 Bouvier (1868), supra note
245, at 729; 2 id. at 415.
In a much later edition, Bouvier’s drew a distinction between insurrection and rebellion as two
different varieties of “actual and open resistance to [government] authority.” Insurrection was “an ac-
tual uprising against the government” while rebellion “goes beyond insurrection in aim” and attempts
actually to overthrow the government authority in question. “Insurrection” and “Rebellion,” in 2 Bou-
vier’s Law Dictionary & Concise Enycl. (Rawles Rev., 1897). Lynch misstates the date of this edition
as 1867, and thus mistakenly cites it as “contemporarily authoritative.” Lynch, supra note 5, at 167 n.
80.
248 “Aid and Comfort” in 1 Bouvier (1868), supra note 245, at 107.

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This tends to confirm our broad construction of “aid or comfort” as encompassing
many kinds of intentional support, akin to the common law.

3. Intratextualism

In some cases, the Constitution can also serve as its own internal dictionary.
The meaning of a constitutional term in one part of the document can inform its
meaning in another, either because of the complete (or near) copying of one constitu-
tional text by another or by virtue of subtle contrast, refinement, or qualification in a
term’s usage. (Professor Akhil Amar has dubbed this method of interpretation “Intra-
textualism.”)249 Chief Justice Marshall, for example, famously employed this method
in M‘Culloch v. Maryland as part of his argument for the constitutionality of Con-
gress’s chartering of a Bank of the United States.250

Might the Constitution’s other usages of terms that also appear in Section
Three serve as such markers of meaning for “insurrection” and “rebellion,” and “aid
or comfort” to enemies, as those terms are used in Section Three? A quick canvass
suggests only limited help.

The word “insurrection” appears in the Militia Clause of Article I, Section 8 of

the original Constitution: Congress is given the enumerated power to “provide for
calling forth the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions.”251 The word “rebellion” appears in the Writ Suspension Clause of
Article I, Section 9: “The Privilege of the Writ of Habeas Corpus shall not be sus-
pended, unless when in Cases of Rebellion or invasion the public Safety may require
it.”252 In neither instance, however, does the context suggest any particular definition
or explication of the term. They are thus of little direct assistance to the task of un-
packing the meaning of Section Three.

As noted, the language in Section Three’s alternative trigger—the giving of

“aid and comfort” to enemies—borrows the nearly identical language of the Treason
Clause of Article III. But once again, the similar language in Article III is not self-
defining. Nor was there an established, settled, authoritative judicial interpretation

249 Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748 (1999).
250 M‘Culloch, 17 U.S. at 413-414. In construing the scope of the legislative power conferred by the
Necessary and Proper Clause, Marshall noted how the word “necessary” was used differently, and
subjected to different qualifications, in other parts of the Constitution and found that those differences
were useful in interpreting the clause at hand. For discussion of the prominence of intratextual and
structural-logic, whole-text arguments in some of Chief Justice Marshall’s most significant Supreme
Court opinions, including Marbury and M‘Culloch, see Paulsen, Marbury, supra note 66, at 2711; see
also Michael Stokes Paulsen, The Plausibility of Personhood, 74 Ohio St. L. J. 13, 33 n. 72 (2013).
251 U.S. Const. art. I, §8 cl. 15.
252 U.S. Const. art. I, §9 cl. 2.

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of this language that might have been understood specifically to define “aid and com-
fort” as a constitutional term-of-art at the time of the framing of the Fourteenth
Amendment.253 Moreover, in the 1860s, the pairing of “aid” and/or “comfort” had be-
come ubiquitous in legal and public discourse as a general allegation of improper as-
sistance, making it still less clear that it was perfectly coterminous with the law of
the Treason Clause.254

Finally, the words “insurrection” and “rebellion” also appear elsewhere in the
Fourteenth Amendment itself, but again in ways that give little external light on
Section Three. A person’s “participation in rebellion” is specified in Section Two as an
allowable ground for denying the right to vote that does not trigger a reduction in a
state’s representation as a consequence.255 Section Four of the amendment prohibits
payment of debts or obligations “incurred in aid of insurrection or rebellion.”256 These
neighboring sections use slightly different phrases for the behavior they cover (“par-
ticipation” and “engaged in”; “aid or comfort” and “in aid of”), but it is difficult to say
if the variations are meaningful.

4. Contemporaneous Public, Political, Legal Usage

Perhaps the best evidence of the public meaning of the terms “insurrection,”

253 Perhaps the most notable U.S. treason case to date was Ex parte Bollman, in which Chief Justice
Marshall delivered an opinion for the Court granting habeas to two of the co-conspirators in Aaron
Burr’s plot to seize Spanish territory in the American (then-)southwest and attempt to form his own
independent nation. Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807). The opinion combined a relatively
narrow construction of the substantive crime of treason (in part because of Article III’s text (“only in
levying war”) with a relatively broad construction of complicity. Thus on one hand: “However flagitious
may be the crime of conspiring to subvert by force the government of our country, such conspiracy is
not treason,” id. at 126, but on the other hand, “if war be actually levied, that is, if a body of men be
actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform
any part, however minute, or however remote from the scene of action, and who are actually leagued
in the general conspiracy, are to be considered as traitors.” Id. Ex parte Bollman was an early and
prominent legal landmark supporting some key propositions that would have been familiar to lawyers
during the Civil War era: first, that there are such things as conspiracies and plots to “overturn the
government,” in whole or in part, that though they might not qualify as treason, remain great and
culpable legal wrongs; second, that the crime of treason specifically requires showing the existence of
an armed assembly to employ force for a treasonable purpose; third, that one may be said to have
engaged in (or provided “aid and comfort” to) treason where one is in league with the conspiracy and
done any act, large or small, or played “any part,” however remote, to further that plot. Whether or
not Bollman’s construction was sufficiently established to be read in to Section Three itself, it was
cited occasionally in the 1860s Congress. See, e.g., 37th Congress 2nd Session Cong. Globe 414 (1862)
(statement of Sen. Sumner) (citing Bollman passage quoted above during the proceedings to expel
Senator Jesse Bright for writing a letter to Jefferson Davis).
254 See Harold Holzer, Lincoln and the Power of the Press: The War for Public Opinion 361 (2014)

(referring to the phrase “aid and comfort to the enemy” (by the press) as “that catch-basin phrase
again.”).
255 U.S. Const. amdt. XIV, sec. 2.
256 U.S. Const. amdt. XIV, sec. 4.

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“rebellion,” and “engaging in,” as they came to be used in Section Three, consists of
their common and frequent public, political, and legal usage in the 1860s—the years
immediately surrounding the adoption of the Fourteenth Amendment—by a variety
of actors: by President Abraham Lincoln, in prominent speeches, messages, public
letters, and proclamations; by Congress, in major acts of legislation; and by the Su-
preme Court, in the landmark decision in The Prize Cases. The consistent pattern of
usage was to treat the actions of the South as being, legally, “insurrection” or “rebel-
lion.” A wide range of actions supportive of secession appears to have constituted “en-
gaging in” or giving “aid or comfort” to rebellion or insurrection.

This leads us to what we think an obvious “sure shipwreck”257 for understand-

ing Section Three’s terms. Whatever else “insurrection or rebellion” might embrace,
they certainly embrace the cluster of actions with which Section Three was, histori-
cally, immediately and directly concerned: first, the attempted secession from the au-
thority of the U.S. Constitution—the effort to displace the lawful authority of the
United States in favor of the supposedly “seceded” state governments and their con-
federation into the “Confederate States of America”; and second, engaging in forcible
resistance to the authority of the United States to execute the laws of the United
States—armed resistance to the Constitution, specifically in the shape of waging civil
war against the nation. Conduct participating in, advancing, supporting, or assisting
either secession or armed resistance to U.S. authority constituted “engaging in” or
giving “aid or comfort to” the Union’s enemies. Section Three encompasses all such
actions in support of secession and civil war as included within its substantive trig-
ger.

a. President Lincoln

An extremely important contemporaneous source for understanding the public

constitutional meaning of “insurrection” and “rebellion” in 1860s public discourse is
President Abraham Lincoln. Lincoln looms large in the public understanding of the
day concerning the meaning of those terms. Lincoln consistently characterized seces-
sion and the Civil War as acts of insurrection or rebellion, avoiding wherever possible
treating “secession” as if it were a separate legal category. Secession, for Lincoln, was
a Southern euphemism for rebellion and treason. The Confederacy had no valid legal
existence: what was going on with the Civil War was properly called insurrection and
rebellion—the lawless attempt to overthrow the constitutional processes of the
United States and displace lawful government with unlawful governments.

Lincoln was insistent and relentless—and very public and prominent—on this
point, consistently so, across a range of contexts. For instance, the Civil War was
emphatically not, in Lincoln’s view, a “war” between the United States and another

257 Morse, supra note 224.

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sovereign.258 It was not subject to Congress’s Article I, section 8, clause 11 power to
“declare War,” but was rather an illegal rebellion—a “giant insurrection”—to be sup-
pressed by executive authority pursuant to Congress’s Article I, section 8, clause 15
power to “provide for calling forth the Militia to execute the Laws of the Union, sup-
press Insurrections and repel Invasions.”259

Consider just a few prominent and illustrative statements: In his First Inau-
gural Address, on March 4, 1861, Lincoln, after setting forth arguments that “no State
upon its own mere motion can lawfully get out of the Union,” concluded that “acts of
violence within any State or States against the authority of the United States” are
“insurrectionary or revolutionary, according to circumstances.”260 Following the at-
tack on Fort Sumter, Lincoln’s April 15, 1861 proclamation calling forth the militia
similarly characterized the attack as fitting the statutory definition of insurrection.261
And in his July 4, 1861 Message to Congress, Lincoln labelled the South’s purported
secession a “giant insurrection” and, vividly, as “rebellion … sugar coated.” The “so-
called ‘Confederate States’” had formed an “insurrectionary government.”262 In the
same July 4 Message, Lincoln used the nature of secession as rebellion to justify sus-
pension of the writ of habeas corpus as authorized by the terms of Article I, section 9,
clause 2 of the Constitution, which used exactly that language of “rebellion.”263 Lin-
coln’s use of terms was significant and pulled no punches: efforts to displace lawful
government authority with unlawful government—no matter how labelled by their
perpetrators, no matter how deluded participants might be as to the lawfulness or
propriety of their actions—were insurrectionary; such declarations and actions con-
stituted rebellion.

Two years later, at the height of the war, Lincoln returned to the characteriza-
tion of the South’s actions as “rebellion” (and the constitutional question of power to
suspend habeas corpus) in a notable incident testing the limit of Union military sup-
pression of anti-war and disloyal speech. In a June 12, 1863 public letter, nominally
addressed to Erastus Corning, Lincoln defended the military arrest of former Ohio

258 On Lincoln’s understanding of secession as unconstitutional and his resulting conception of the
Civil War as, legally, a situation of insurrection or rebellion (not declared war) see sources cited in
note 228. That does not exclude the existence of full constitutional Commander in Chief Clause powers
in the situation of actual civil war, however. Michael Stokes Paulsen, The Emancipation Proclamation
and the Commander in Chief Power, 40 Georgia L. Rev. 807, 814-823 (2006).
259 Compare U.S. Const. art. I, §8, cl. 11 (Declare War Clause) with U.S. Const. art. I, §8, cl. 15 (power

“to provide for calling forth” the Militia for law execution and to suppress insurrections”). Congress’s
exercise of this power – the Insurrection Acts of 1795 and 1807 – is discussed infra Part IV.A.5.a.
260 Abraham Lincoln, First Inaugural Address (March 4, 1861), IV Complete Works of Lincoln (“CWL”)

262, 265.
261 Abraham Lincoln, Proclamation Calling Militia and Convening Congress (April 15, 1861), IV CWL

331, 332.
262 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), IV CWL 421, 427-428,

432-437.
263 Id. at 429-431 (emphasis added).

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Congressman Clement Vallandigham, a notorious racist and prominent “Copper-
head” pro-South, anti-Union northerner, who had made a public speech vehemently
condemning the Emancipation Proclamation and the propriety of the Union’s war
effort.

Lincoln distinguished law enforcement arrests from detentions in cases of re-

bellion. Wrote Lincoln: “Ours is a case of Rebellion—so called by the resolutions before
me—in fact, a clear, flagrant, and gigantic case of Rebellion.” And that, Lincoln con-
cluded, was what allowed suspension of habeas corpus. 264 In the course of his argu-
ment, Lincoln described rebellion as “sudden and extensive uprisings against the gov-
ernment.”265 This is a useful description that supports our working definition: Rebel-
lion is an “uprising.” It is something more than mere protest. It is, often, “sudden.” It
is “extensive.” It is directed “against the government.” Rebellion is something more
than ordinary law violation and that is why it is treated differently by the Constitu-
tion.

How did Vallandigham’s actions associate him with the rebellion? Lincoln
made a forceful case that even pure speech might constitute assistance to rebellion—
if it were advocacy producing direct, material effects benefitting the rebel enemy
cause, by tangibly harming the military authority engaged in trying to suppress that
rebellion. In the Corning Letter, Lincoln wrote that, “under cover of ’Liberty of
speech,’ ‘Liberty of the press,’ and ‘Habeas corpus,’” rebel sympathizers “hoped to
keep on foot amongst us a most efficient corps of spies, informers, supplyers, and
aiders and abettors of their cause in a thousand ways.”266 Claims of freedom of speech
could improperly furnish a shield or cloak for wrongful conduct; they supplied “cover”
for, and thus assisted, rebellion and insurrection.

Lincoln expanded these arguments in yet more arresting ways. He suggested

that, in some circumstances, a person’s refusal to speak out against rebellion might
be tacit support for such rebellion: a “man who stands by and says nothing, when the
peril of his government is discussed, can not be misunderstood. If not hindered, he is
sure to help the enemy.” He also hinted at regret that he had not earlier arrested
prominent oath-breaking officers now “occupying the very highest places in the rebel
war service,” such as John Breckinridge, Robert E. Lee, Joseph Johnston, and John
Magruder: “I think the time not unlikely to come when I shall be blamed for having
made too few arrests rather than too many.”267 Lincoln’s position seems clear, if per-
haps a bit unsettling: claims of freedom of speech did not invariably prevail over the

264 U.S. Const. art. I, §9, cl. 2.

265 Abraham Lincoln, To Erastus Corning and Others (June 12, 1863), VI CWL 260, 264 (emphasis
added).
266 Id. at 263.
267 Id. at 265.

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imperative constitutional necessity of suppressing rebellion; where words fueled in-
surrection, or thwarted its suppression, or signaled disloyalty, the speaker was aiding
the enemy. Such expression was not necessarily privileged.

This is not exactly an expansive conception of First Amendment rights. Lincoln

fully recognized the difficulties with his stance. He did not ignore the tension between
his conclusions and peacetime free speech principles but argued that the tension
could be reconciled.268 In a colorful metaphor, Lincoln ventured:

I can no more be persuaded that the Government can constitutionally

take no strong measures in time of rebellion, because it can be shown
that the same could not be lawfully taken in time of peace, than I can be
persuaded that a particular drug is not good medicine for a sick man,
because it can be shown not to be good food for a well one. Nor am I able
to appreciate the danger apprehended by the meeting that the American
people will, by means of military arrests during the Rebellion, lose the
right of Public Discussion, the Liberty of Speech and the Press, the Law
of Evidence, Trial by Jury, and Habeas Corpus, throughout the indefi-
nite peaceful future, which I trust lies before them, any more than I am
able to believe that a man could contract so strong an appetite for emet-
ics during temporary illness as to persist in feeding upon them during
the remainder of his healthful life.269

Lincoln also stressed a distinction between speech directed at criticism of the

government’s political policy—fully protected by the freedom of speech—and expres-
sion more or less directly aimed at harming the military’s recruitment and war effort.
If Vallandigham had been arrested merely because he was “damaging the political
prospects of the administration” or “the personal interests of the general,” that would
be one thing, Lincoln observed. “[I]f there was no other reason for the arrest, then I
concede that the arrest was wrong.” But as Lincoln understood it, the arrest “was
made for a very different reason”—that Vallandigham was “laboring, with some ef-
fect, to prevent the raising of troops, to encourage desertions from the army, and to
leave the rebellion without an adequate military force to suppress it.” Vallandigham

268 In several respects, Lincoln anticipated later judicial free speech doctrines and decisions, such as
those distinguishing pure speech from speech linked to prohibited conduct; recognizing limits on
speech posing a danger of inciting to crime or lawlessness; recognizing “compelling interest” overrides
in exceptional circumstances, including for reasons of national security or military secrecy; finding
that government’s motives and purposes for a particular action may matter to its lawfulness; and
noting where an incidental limitation on expression leaves open alternative channels for expression of
the same message. See Paulsen, Civil War, supra note 228, at 698-702 & n.23 (noting how Lincoln
anticipated many of the issues and exceptions contemplated by later judicial doctrine concerning the
First Amendment’s freedom of speech).
269 Letter to Corning (June 12, 1863), VI CWL at 267. (Emetics referred to a medicine or substance

used to induce vomiting.)

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was, in short, “warring upon the military.” He who “dissuades one man from volun-
teering, or induces one soldier to desert, weakens the Union cause as much as he who
kills a union soldier in battle.” Desertion was punishable by death, of course. In a
famous line, Lincoln asked, rhetorically “Must I shoot a simple-minded soldier boy
who deserts, while I must not touch a hair of a wiley agitator who induces him to
desert?”270 Lincoln’s answer was no: “I think that in such a case, to silence the agita-
tor, and save the boy, is not only constitutional, but, withal a great mercy.” 271

Lincoln continued: “If I be wrong on this question of constitutional power,” he

added, “my error lies in believing that certain proceedings are constitutional when,
in cases of rebellion or Invasion, the public Safety requires them, which would not be
constitutional when, in absence of rebellion or invasion, the public Safety does not
require them -- in other words, that the constitution is not in it's application in all
respects the same, in cases of Rebellion or invasion, involving the public Safety, as it
is in times of profound peace and public security.”272

Lincoln thus embraced the view that material assistance to insurrection or re-
bellion could in some cases take the form of effective advocacy of unlawful conduct
that, if engaged in by substantial numbers, would materially advance the rebel cause
or harm the military prospects of the Union. The fact that such assistance to rebellion
came in the form of words did not furnish any constitutional privilege to such action.
Where rebellion threatens public safety or public security, the Constitution permits
restriction on advocacy furthering, supporting, or assisting such rebellion.

To be sure, one might well conclude that Lincoln went too far in his arguments
in the Corning Letter or in some of his actions during the war. That is an interesting
and difficult question—and not our point here. Our point is that Lincoln’s view was a
prominently expressed contemporaneous understanding—and on the issues of insur-
rection, rebellion, and complicity, it was consistent with his longstanding and oft-
repeated views. This does not directly answer the question whether or to what extent
such thinking specifically informed general public understanding of Section Three.
But Lincoln’s thinking, articulated in such a public context, may well have informed
the potential reach of the terms “insurrection or rebellion,” and what constitutes en-
gaging in or aiding such conduct, as those terms came to be employed in Section Three
of the Fourteenth Amendment.

At all events, Lincoln made clear and prominent the position that declaring
secession, engaging in forcible opposition to the constitutional authority of the Union,
and materially assisting others in such conduct, all constituted forms of support for
and participation in “insurrection” or “rebellion.” And this stance continued through-
out the war, even as the nation began to look to the war’s conclusion and to questions

270 Letter to Corning, VI CWL at 266.

271 Id. at 266-67.
272 Id. at 267.

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of the post-war status of persons who had participation in that rebellion—questions
at the core of Section Three of the Fourteenth Amendment.273

b. Congress

President Lincoln was not the only public figure grappling with concepts of
insurrection and rebellion during the Civil War. Similar themes can be found in the
statements and actions of Congress and the Supreme Court.

Start with Congress: We think two specific enactments of Congress during the
Civil War are especially probative of the understandings of “insurrection” and “rebel-
lion” and of what conduct was publicly understood to constitute having “engaged in”
or given assistance to rebellion. First, there is the so-called “Ironclad Oath,” adopted
on July 2, 1862 as the oath one must be able to swear in order to hold federal office.274
Second, there is the “Second Confiscation Act,” adopted that same month, on July 17,
1862, to authorize legal forfeitures of property and slaves, and also to enforce disqual-
ifications from federal office, by persons who had engaged in specified activities con-
stituting “rebellion” or “insurrection.”275 These two enactments, and their implemen-
tation to exclude former insurrectionists and rebels from future office, say much
about the terms they employed.

i. The Ironclad Oath

Congress adopted The Ironclad Oath in the thick of the Civil War and it was
required of most federal officeholders from 1862 to 1884.276 The text of the Oath sets
forth the types of misconduct regarded as disqualifying an individual from eligibility

273 Lincoln’s characterization of Southern secession as rebellion continued throughout the war. His
December 8, 1863 Message to Congress referred to the Confederacy as “the rebellion.” Annual Message
to Congress (Dec. 8, 1863), VII CWL at 51 In his accompanying offer of amnesty and pardon, in the
Amnesty Proclamation of December 8, 1863, Lincoln referred, repeatedly, to the “rebellion” that “now
exists whereby the loyal State governments of several States have for a long time been subverted” (id.
at 53), to “said rebellion and treason” (id. at 54), to “said rebellion” (id.) and to persons who had pro-
vided “aid” to the “rebellion” in various forms. Interestingly, Lincoln excepted from his offer of for-
giveness – in language that would seem to presage the similar terms of Section Three – “all who have
left judicial stations under the United States to aid the rebellion” and “all who resigned commissions
in the army or navy in the United States, and afterwards aided the rebellion.” Id. at 55. Lincoln also
left to the respective houses of Congress the exclusive judgment “whether members sent to Congress
from any State shall be admitted to seats.”
274 12 Stat. 502.
275 12 Stat. 589 (1862). 12 Stat. 627 (1862).
276 23 Stat. 21 (1884). There was an important exception. In 1868, Congress provided that anybody

who had received amnesty from two-thirds of each house of Congress under Section Three was exempt
from the Ironclad Oath and need only swear future loyalty, 15 Stat. 85 (1868), and in 1871 it added
that anybody “who is not rendered ineligible to office by the provisions of the fourteenth amendment
to the Constitution” yet would otherwise “not be able on account of his participation in the late rebel-
lion to take” the Ironclad Oath, could take the forward-looking oath instead, 16 Stat. 412 (1871). These
two provisions effectively equated the Ironclad Oath to Section Three from 1871 on.

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for federal office because he had been engaged in supporting the rebellion—an inquiry
very closely parallel to that contained in Section Three of the Fourteenth Amend-
ment, proposed by Congress just a few years later.

The Ironclad Oath required that prospective officeholders swear or affirm that
they had not done any of several things. In that sense it did not function like a tradi-
tional oath of office—a promise of future behavior—but much more like a disqualifi-
cation for past misbehavior.277 It did indirectly what Section Three was soon to do
directly. That makes the Ironclad Oath’s list of never-have-I-evers particularly in-
structive. Here’s the oath, with its most-relevant-to-Section-Three features and
phrases italicized (and with bracketed numbers inserted):

I . . . do solemnly swear (or affirm) that I have never [1] voluntarily

borne arms against the United States since I have been a citizen
thereof; that I have [2] voluntarily given no aid, countenance, counsel,
or encouragement to persons engaged in armed hostility thereto; that
I have [3] neither sought nor accepted nor attempted to exercise the
functions of any office whatever, under any authority or pretended au-
thority in hostility to the United States; that I have [4] not yielded a
voluntary support to any pretended government, authority, power or
constitution within the United States, hostile or inimical thereto.

While not using the words insurrection or rebellion, the Ironclad Oath’s list of
never-have-I-evers would seem strongly suggestive of how Section Three’s triggering
language likely would have been understood in public usage at the time. The Ironclad
Oath is not a definition of Section Three’s constitutional terms, of course. But it would
appear an apt descriptive specification of the kinds of misconduct included within
those terms. Under the oath, disqualifying behavior included: (1) fighting against the
United States; (2) aiding or encouraging such armed hostility; (3) accepting office un-
der a hostile authority (or “pretended authority”); and—a highly evocative phrase—
(4) “yield[ing]” one’s “voluntary support” to “any pretended government, authority,
power or constitution . . . hostile or inimical” to the United States.

The content of this oath’s requirement establishes a useful, historically prom-

inent marker for the scope of Section Three: What the Ironclad Oath understood to
be disqualifying for federal office, Section Three likely embraced as constitutionally
disqualifying conduct for the far broader sweep of offices to which it extended.278

277 For this reason, Lincoln famously wrote: “On principle I dislike an oath which requires a man to
swear he has not done wrong. It rejects the Christian principle of forgiveness on terms of repentance.
I think it is enough if the man does no wrong hereafter.” Endorsement of Abraham Lincoln in Letter
from R.M. Edwards to Edwin Stanton, February 5, 1864, 7 Lincoln Papers 169.
278 The extensive overlap between the meaning of the Ironclad Oath and the Section Three disqualifi-

cation is confirmed by Congress’s own interpretation and application of the oath to its own members,
during and after the enactment of Section Three. These applications are detailed infra Part IV.A.5.b.

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 ii. The Second Confiscation Act

Barely more than two weeks after adopting the Ironclad Oath, the Civil War
Congress enacted what is popularly called the “Second Confiscation Act.” Its full title
spoke explicitly in terms of insurrection and rebellion: “An Act to suppress Insurrec-
tion, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels,
and for other Purposes.”279

This Second Confiscation Act was a very prominent piece of legislation. It im-
posed sweeping penalties, forfeitures, and disqualifications on anybody who had en-
gaged in or assisted the rebellion.280 The Second Confiscation Act was long and vig-
orously debated in Congress, much discussed in the press and in public discourse,
objected to by many on constitutional grounds, and nearly vetoed by President Lin-
coln.281 Enactment of the Second Confiscation Act gave rise to very public pressure
on President Lincoln to take aggressive action against slavery in rebel states—pres-
sure that helped spur Lincoln to issue his Emancipation Proclamation as an executive
military order. The Second Confiscation Act was a big deal. 282

The Act itself was a complicated and somewhat confusing hodgepodge of dis-
tinct provisions, combining property confiscation, emancipation, a new federal crime,

279 12 Stat. 589 (1862). See also 12 Stat. 627 (1862) (“explanatory” joint resolution).
280 An earlier act had provided for forfeiture more specifically of property or slaves actually used in
service of rebellion. 12 Stat. 319 (Aug. 6, 1861).
281 See generally David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131, 1185-1195 (2006).

Among many noteworthy twists and turns in the road to enactment, President Lincoln came close to
vetoing the bill, preparing a veto message with his objections and signing the bill only after Congress
passed an “explanatory” joint resolution (which Lincoln signed together with the bill). Lincoln none-
theless appended his original draft veto message setting forth his objections. For discussion of the
constitutional objections of Lincoln and others to various aspects of the bill, and his unusual course of
action in signing it but nonetheless appending his objections, see id. at 1193-1194; Burrus M. Carna-
han, Act of Justice: Lincoln’s Emancipation Proclamation and the Law of War 105-106 (2007) (noting
Lincoln’s initial concern that the act would violate Article III’s limitations on the punishment for trea-
son and the objections of others that the act was a bill of attainder); Eric Foner, The Fiery Trial: Abra-
ham Lincoln and American Slavery 215-217 (2010). For Lincoln’s July 17, 1862 message to Congress,
detailing his objections, see V Complete Works of Lincoln 328-331.
282 A month after the Act had been adopted, Horace Greeley published a scathing editorial titled “The

Prayer of Twenty Millions,” in which he demanded that Lincoln “EXECUTE THE LAWS” faithfully
with specific reference to the Second Confiscation Act. Greeley condemned Lincoln’s “mistaken defer-
ence to Rebel Slavery” and his failure to rebuke his generals for having “habitually disregarded” the
Confiscation Act. Lincoln replied to Greeley, equally prominently, within days, in a famous public
letter dated August 22, 1862, published in a rival newspaper and “widely reprinted,” defending his
course of action. V Complete Works of Lincoln 388-389; see Holzer, supra note 254, at 400-401. One
month later, Lincoln issued his Preliminary Emancipation Proclamation of September 22, 1862, in
which he noted and quoted provisions of the Second Confiscation Act (without invoking the statute as
actual authority for his proclamation). V Complete Works of Lincoln at 434-435 (stating that “attention
is hereby called to” provisions of the act but relying for authority on his powers as executive and mili-
tary Commander in Chief). See also Foner, Fiery Trial, supra note 281, at 215 (noting that “the Second
Confiscation Act embodied a major shift in national policy”).

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and disqualification from office. But the terms it used are especially evocative, visit-
ing legal consequences on persons who “engaged in,” “incite[d],” “set on foot,” or “as-
sist[ed]” “rebellion” or “insurrection” or who had “given aid or comfort” to rebellion or
done acts “aiding and abetting” rebellion. The Act is practically a glossary of the
terms used in Section Three of the Fourteenth Amendment proposed by Congress just
four years later.

Specifically: Section 2 made it a new crime, distinct from treason, to “incite, set
on foot, assist, or engage in any rebellion or insurrection against the authority of the
United States or the laws thereof” or to “give aid or comfort thereto” or to “engage in,
or give aid and comfort to,” any “existing rebellion or insurrection.”283 It is worth paus-
ing to parse the linguistic resemblances to Section Three, and the ways in which like
terms are used and explained. Following Lincoln, secession and civil war are equated
with “rebellion or insurrection.” Those terms are described as involving acts “against
the authority of the United States, or the laws thereof” (a formulation closely con-
forming to our working definitions). Section 2 imposes criminal liability on persons
who “incite” such acts; who “set on foot” such acts; who “assist” such acts; who in any
other way “engage in” such conduct; or who “give aid and comfort to” such conduct.
All of these terms have close parallels in Section Three of the Fourteenth Amend-
ment.

Section 3 of the Act then imposed a sweeping disqualification from future of-
ficeholding—a kind of proto-Section Three of the Fourteenth Amendment: “every per-
son guilty of either of the offences described in this act shall be forever incapable and
disqualified to hold any office under the United States.”284 Section 5 directed the Pres-
ident to seize rebel property belonging to a long list of confederate officers plus anyone
in a loyal state who “shall hereafter assist and give aid and comfort to such rebel-
lion.”285 Officeholding in a rebel government or military was per se blameworthy par-
ticipation; but general giving of assistance or aid or comfort also qualified as partici-
pation in rebellion. Section 6 provided a further authorization for seizure of the prop-
erty of any person not already mentioned who, “being engaged in armed rebellion
against the government of the United States, or aiding or abetting such rebellion,”
and, after sixty days’ notice issued by the President, did not “cease to aid, counte-
nance, and abet such rebellion, and return to his allegiance to the United States.”286

283 12 Stat. 589, 590. (emphasis added). Section 2 provided penalties for conviction, which included
confiscation of slaves. A modified version of this provision remains a crime today, and continues to
incorporate the Confiscation Act’s disqualification from federal office, id., as well. 18 U.S.C. §2383
(“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority
of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title
or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the
United States.”). Needless to say, a prosecution under Section 2383 of Title 18 is neither a prerequisite
to nor preclusive of the self-executing application of Section Three of the Constitution.
284 12 Stat. 589, 590.
285 Id. (emphasis added.)
286 Id. at 591.

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Section 7 and Section 8 provided for in rem proceedings against property “found to
have belonged to a person engaged in rebellion, or who has given aid or comfort
thereto,” in which case it “shall be condemned as enemies’ property.”287 And Section 9
famously emancipated slaves of persons “who shall hereafter be engaged in rebellion”
against the Union or who “shall in any way give aid or comfort thereto.”288 Throughout
these sections, one can see the recurrent use of terms and concepts, and synonyms
for such terms, that would reappear in Section Three of the Fourteenth Amendment:
“engaged in,” “rebellion,” “aid or comfort,” “abet,” “countenance,” “enemies.”

Unlike the Ironclad Oath, the Second Confiscation Act did not give rise to many
opportunities for immediate application and further interpretation. In part, this was
simply due to the exigencies and realities of Civil War at the time. For example, the
civil forfeiture provisions contemplated in rem judicial proceedings against persons
in the district where property was located. At the time, such property was often lo-
cated in areas of rebel control. Often, the federal courts were not even functioning
there 289 Similarly, as a practical matter, criminal prosecutions of rebels for treason
and insurrection had to await Union military success. (And after success came, Pres-
ident Andrew Johnson ultimately pardoned a great many offenders.)290 The Lincoln
administration, focused on other matters, showed little interest in bringing legal ac-
tions to enforce the Act’s specific policies. The administration, according to one
scholar, “chose not to implement the law vigorously.”291 Attorney General Bates “ex-
erted no more than a minimal effort to make the first and second confiscation acts
work.”292 And the Act’s section authorizing limited military emancipation section was
rapidly overtaken—superseded in practical effect—by President Lincoln’s far more
comprehensive Emancipation Proclamation, issued pursuant to his constitutional
Commander in Chief power.

But in some ways the lack of enforcement cases is beside our point here, which
concerns the Act’s prominence in national discussions and its pervasive use of terms,
phrases, and concepts—rebellion, insurrection, engage in, aid or comfort—that would

287 Id.
288 Id.
289 See McPherson, supra note 228, at 500 (noting confusing aspects of the Second Confiscation Act

and the requirement of “in rem proceedings by district courts that were of course not functioning in
the rebellious states”); Foner, Fiery Trial, supra note 281, at 215 (“For most property, [the Act] estab-
lished a cumbersome judicial process that helps to explain why little land was actually seized and sold
under its provisions.”). See also Silvana R. Siddali, From Property to Person: Slavery and the Confis-
cation Acts, 1861-1862, at 238 (2005) (remarking that “[t]he confiscation bill that finally emerged was
neither sweeping nor enforceable” though opining that “if the law had not been hobbled by its own
internal inconsistencies, it might have affected the lives and property of a large majority of southern-
ers.”).
290 See Eric L. McKitrick, Andrew Johnson and Reconstruction 141-152 (1960).
291 John Syrett, The Civil War Confiscation Acts: Failing to Reconstruct the South 55 (2005).
292 Id. at 72; see also James G. Randall, Constitutional Problems Under Lincoln 288-292 (1926) (de-

scribing minimal enforcement of the Second Confiscation Act).

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reappear in only slightly different form in Section Three of the Fourteenth Amend-
ment. Like the Ironclad Oath, the Second Confiscation Act employed terminology
nearly identical to that employed in Section Three of the Fourteenth Amendment.
The usage of the terms in this landmark legislation we think helps explicate the
meaning, in public legal context, of the language in the amendment. In the context of
1860s public legal usage, engaging in or giving aid or comfort to rebellion and insur-
rection extended to a broad range of activity advancing or furthering efforts to un-
lawfully upend the lawful operation of the U.S. constitutional regime. This strongly
supports the conclusion that Section Three’s terms can fairly be read quite expan-
sively, as embracing a broad range of conduct directed against the authority of gov-
ernment under the Constitution.

c. The Supreme Court’s decision in The Prize Cases

The most important constitutional decision of the U.S. Supreme Court during
the Civil War was The Prize Cases.293 There, the majority upheld the constitutionality
of Lincoln’s unilateral military order, made very early in the Civil War, imposing a
blockade on Southern ports. In a truly landmark decision, the Supreme Court held
that the President’s war powers (including the power to impose a blockade) were trig-
gered immediately, as soon as the South’s rebellion took the form of organized mili-
tary resistance to the authority of the U.S. government. The President’s power to
wage civil war against rebel forces derived from his delegated statutory power to em-
ploy force to suppress rebellion, the Court held. A congressional declaration of war
was neither a prerequisite nor legally appropriate for this type of use of force: “This
greatest of civil wars was not gradually developed by popular commotion, tumultuous
assemblies, or local unorganized insurrections” but “sprung forth suddenly … in the
full panoply of war. The President was bound to meet it in the shape it presented
itself, without waiting for Congress to baptize it with a name.”294

The Court’s decision in The Prize Cases is today regarded as the leading judi-
cial exposition of the Constitution’s allocation of war powers. At the time, the case
had other hugely consequential implications: the principles set forth in the decision
essentially endorsed in advance (but of course without addressing the question di-
rectly) Lincoln’s constitutional justification for the Emancipation Proclamation,
which he had issued earlier that year.295 The decision of The Prize Cases was a very
big deal indeed.

Of special interest for our purposes is the Court’s usage and explanation—in a
highly prominent legal context—of the terms insurrection and rebellion, and their
relationship to war and the war powers of the national government: “Insurrection

293 67 U.S. (2 Black) 635 (1863).

294 Id. at 668-669; see also Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J.
149, 177-180 (2004).
295 Paulsen, Emancipation, supra 258, at, 814-823.

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against a government may or may not culminate in an organized rebellion, but a civil
war always begins by insurrection against the lawful authority of the Government,”
the majority said.296 A civil war “becomes such by its accidents—the number, power,
and organization of the persons who originate and carry it on.”297 Where a rebellion
has come to possess certain military characteristics, the “party in rebellion” might
come to be treated as a belligerent for law-of-war purposes, even though a domestic
rebellion stands on different constitutional legal ground than war with a foreign na-
tion. “It is not the less a civil war, with belligerent parties in hostile array, because it
may be called an ‘insurrection’ by one side, and the insurgents be considered as rebels
or traitors.”298

In a nutshell: insurrection or rebellion were forms of active resistance to the

lawful authority of the government. An insurrection might be something short of out-
right rebellion. But an insurrection against government authority sometimes grows
into full-on “rebellion.” A rebellion, in turn, need not take the form of civil war in
order to be a rebellion. But sometimes it does. At all events, rebellion seems its own
distinct, more general legal concept of repudiation or attempted overthrow of the law-
ful constitutional regime by unlawful means.

The Prize Cases also held that persons engaged in insurrection or rebellion
could be treated as “enemies” (as well as traitors) for legal purposes. Further, the war
power, such as imposition of a blockade, could lawfully affect the legal property rights
of persons engaged in “commerce” that “supplies” rebels or insurrectionists—and
could do so irrespective of the supposed loyalties of the property owner. Even “neu-
tral” powers’ shipping could be seized when it violated a blockade: “Whether property
be liable to capture as ‘enemies’ property’ does not in any manner depend on the per-
sonal allegiance of the owner. ‘It is the illegal traffic that stamps it as “enemies’ prop-
erty.”’299

The Prize Cases’ treatment of the concepts of insurrection and rebellion, of who
constituted “enemies,” and of what actions constituted support for rebellion, would
have been very much part of the legal culture of the day and provides important legal
background as to how these terms would have been understood at the time of the

296 67 U.S. at 666 (emphasis added).

297 Id. at 666
298 Id. at 668.
299 Id. at 674 (quoting 3 Wash. C.C.R. 183). That said, the Court also cautioned that “ ‘enemies’ prop-

erty” was “a technical phrase peculiar to prize courts, and depends upon principles of public policy, as
distinguished from the common law.” Id. at 674. The point that, in a military context, property could
be treated as “enemies’ property” irrespective of the allegiance of the owner was important to the law-
fulness of the Emancipation Proclamation: even though Lincoln’s proclamation purported to free the
slaves of all persons in rebel-controlled territory – including slaves held by persons claiming to be loyal
to the Union – such “property” constituted a resource assisting or supplying the rebellion and thus
could be declared seized, confiscated, and liberated as a matter of the military law of war. See Paulsen,
Emancipation, supra note 258. See generally John Fabian Witt, Lincoln’s Code (2012).

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drafting of Section Three of the Fourteenth Amendment, just a few years later. In-
surrection and rebellion involve varying degrees of concerted resistance to “the lawful
authority of the Government,” with insurrection being the arguably somewhat lesser
form and rebellion the somewhat greater. A rebellion or insurrection need not involve
acts tantamount to levying war. (War is sometimes a feature of rebellion but does not
define it.) The Civil War was an outgrowth of insurrection or rebellion. But the fun-
damental act of rebellion remains the attempt to displace the lawful authority of gov-
ernment by unlawful means. And those who give material assistance to the enemy
may also suffer legal consequences.

We find the overall evidence of prominent 1860s political and legal usage of the
same concepts and language as would soon be employed by Section Three—“insurrec-
tion,” “rebellion,” and what it meant to “engage in” or provide “aid or comfort” to the
same—highly probative of Section Three’s original public meaning. President Lin-
coln, repeatedly and insistently; Congress, pointedly and consistently; and the Su-
preme Court, decisively, used these terms in connection with secession, forcible re-
sistance to the legal authority of the Constitution, and participation to varying de-
grees in efforts to overthrow, subvert, or undermine the authority of lawful govern-
ment. These usages were public, prominent, legal, and essentially undisputed within
the Union. While the specific circumstances of secession and civil war gave rise to
these formulations, they did not define or limit the terms’ meanings, which were more
general. Secession, and civil war, were species of insurrection and rebellion—orga-
nized, group resistance to the authority of government to execute the laws and at-
tempts to substitute an unlawful legal regime for the lawful, constitutional one. But
insurrection and rebellion were the broader categories. It is hard to avoid the conclu-
sion that these 1860s Civil War usages of terms carried over into the meaning of
Section Three.

5. Other Extant Statutory Sources and Notorious Examples

a. The Insurrection Acts (and Insurrections Generally)

What about the Insurrection Acts themselves—the statutes that comprised the
statutory authority supporting Lincoln’s use of military force to suppress secession?
These statutes implemented Congress’s power “To provide for calling forth the Militia
to execute the Laws of the Union, suppress Insurrections and repel Invasions” as well
as its other war powers over the army and navy. The central statute was enacted in
1795 (superseding a similar enactment in 1792) and was amended in 1807 and 1861.
These statutes—the conduct they were understood to reach; the forms and degree of
opposition to government authority that were believed to trigger the statutes’ appli-
cation; and the circumstances in which they had been invoked and applied in the
past—also would have been part of the background understanding of the term “in-
surrection” as it came to be incorporated into Section Three.

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 The 1795 act explicitly recited that it was enacted in part to carry into execu-
tion the power to “suppress insurrections.” But it also applied to repel invasions and
to enforce federal law. Together, these were the three circumstances where Congress
had the power to provide for calling out the militia.300 Section One of the Act allowed
the President to call forth the militia “whenever the United States shall be invaded,
or be in imminent danger of invasion from any foreign nation or Indian tribe,” as well
as, upon request of state authorities, “in case of an insurrection in any state against
the government thereof.”301 Section Two allowed the President to call forth the militia
“whenever the laws of the United States shall be opposed, or the execution thereof
obstructed, in any state, by combinations too powerful to be suppressed by the ordi-
nary course of judicial proceedings, or by the powers vested in the marshals by this
act.”302 Section Two encompasses insurrections against the United States.303 (Section
One specifically deals only with insurrections against a state government.)

In 1807, Congress supplemented this power with the power to call out the army
and navy in similar circumstances: “in all cases of insurrection, or obstruction to the
laws, either of the United States, or of any individual state or territory, where it is
lawful for the President of the United States to call forth the militia for the purpose
of suppressing such insurrection, or of causing the laws to be duly executed, it shall
be lawful for him to employ, for the same purposes, such part of the land or naval
force of the United States as shall be judged necessary …” The 1807 act thus carried
forward and repeated the 1795 act’s understanding of insurrection.304

Finally, on July 29, 1861, Congress amended the trigger again to specifically
describe “rebellion.” It allowed the President to call forth the militia “whenever, by
reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion
against the authority of the Government of the United States, it shall become imprac-
ticable, in the judgment of the President of the United States, to enforce, by the ordi-
nary course of judicial proceedings, the laws of the United States . . .”305

The various versions of the Insurrection Act illustrate a common theme: insur-
rection is more than ordinary law violation; it entails “combinations” or “assem-

300 U.S. Const. art. I, sec. 8, cl. 15.

301 2 Stat. 424 (1795), sec. 1.
302 Id. sec. 2. (emphasis added).
303 That said, because Section Two is supported by both Congress’s power to “suppress Insurrections”

and its power “to execute the Laws of the Union,” U.S. Const. art. I, sec. 8, cl. 15. it could encompass
instances of law enforcement that do not rise to the level of a constitutional “insurrection.”
304 2 Stat. 443 (1807).
305 12 Stat. 281 (1861).

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blages,” acting together, to “oppose[s]” or “obstruct” the ability of government to “ex-
ecute” the law, in numbers “too powerful” to be suppressed by the usual means of law
enforcement.306

Moreover, several famous instances in which this statutory authority had been
(or might have been) invoked provide additional informative context for understand-
ing “insurrection” or “rebellion.” Consider just a few.

The “Whiskey Rebellion” was one famous such instance. In 1794, acting under
the 1792 predecessor statute, President George Washington personally led militia
forces into western Pennsylvania to suppress a large uprising against the government
spurred by resistance to the enactment of a federal tax on distilleries. Notably, the
Whiskey Rebellion involved armed mobs, organized and employed for the purposes of
intimidating and threatening federal officers, keeping them from performing their
duties under the law, and preventing others from assuming federal office (or inducing
them to renounce their authority).307

We believe the “Whiskey Rebellion” would have been regarded in the nine-
teenth century as a classic illustration of what was meant by the terms insurrection
and rebellion.308 Indeed, by the time of the drafting of Section Three, it seems to have
been regularly referred to in precisely those terms.309 In commonplace usage, as well
as in political, and legal discourse, the Whiskey Rebellion was a familiar illustration
of an “insurrection” or “rebellion.”

306 Myles Lynch has written that there can exist no insurrection within the meaning of the Insurrection
Acts unless the President proclaims that an insurrection exists and, further, that as a consequence,
there can exist no insurrection or rebellion within the meaning of Section Three of the Fourteenth
Amendment unless the President proclaims that such an insurrection exists. Lynch, supra note 5, at
168, 214-215. This seems plainly wrong. If the Insurrection Act defines insurrection, it is defined as
concerted and powerful obstruction of the execution of the laws by government. It is no part of this
definition that an insurrection exists only if the President declares it to exist. The President’s procla-
mation is a statutory prerequisite to the use of military force, not part of the definition of insurrection.
The President can use force if he proclaims that there is an insurrection; but it is not an insurrection
only because he proclaims it one.
307 See generally Elkins & McKitrick, The Age of Federalism 461-474 (1993) (detailing actions of orga-

nized resistance, intimidation, and threats preventing federal officials from performing their duties –
including tarring and feathering, whipping, surrounding of officials’ homes by armed mobs, and kid-
napping and coerced repudiation of federal authority); see also Ron Chernow, Alexander Hamilton
468-478 (2004) (similar); Robert W. Coakley, The Role of Federal Military Forces in Domestic Disor-
ders, 1789-1878, at 43-68 (1988) (documenting the resistance and military response).
308 To be sure, one scholar of the Acts suggests that “[i]t may have been dubious whether actions of the

Whiskey Rebellion farmers truly rose to the level of insurrection,” and that Washington may have
treated it as law-obstruction rather than insurrection. Vladeck, at 161 n. 46; see also Coakley, supra
note 307, at 67 (suggesting that to “characterize the . . . affair as a ‘riot’ and the participants as ‘rioters’”
is “far closer to the truth”). But later sources called it at least an insurrection, see infra note 309.
309 See Townsend Ward, The Insurrection of the Year 1794, in the western counties of Pennsylvania

(J.B. Lippincott 1858); H.M. Brackenridge, History of the western insurrection in western Pennsylva-
nia: commonly called the whiskey insurrection (W.S. Haven, 1859).

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 “Fries Rebellion,” in 1799, was another well-known anti-tax revolt, this time
in eastern Pennsylvania.310 President John Adams invoked the 1795 Act to suppress
the “insurrection,” as he called it,311 which had involved threats, intimidation, and
violence directed at federal tax assessors by organized bands of persons designed to
prevent the assessors from performing their duties, and further such acts directed
against the ability of the government to arrest tax resisters. In at least one instance,
armed opponents of the government successfully freed prisoners from federal custody.
The Adam’s administration’s suppression of the insurrection led to widely publicized
treason prosecutions312 of leaders and instigators of the unlawful resistance, includ-
ing John Fries. As with the Whiskey Rebellion, Fries Rebellion was characterized by
concerted acts of forcible interference with federal officials’ ability to perform their
duties under law.313

Nat Turner’s Rebellion, a violent slave revolt in 1831, did not lead to a presi-
dential invocation of the Insurrection Act.314 But it surely would have been a classic
illustration of at least an “insurrection” and perhaps even a “rebellion”—a concerted
uprising seeking forcibly to overturn the legal order and thwart government’s ability
to execute the law. A published report of Turner’s own account called it both an in-
surrection315 and in one instance an “open rebellion.”316 This example, too, likely
would have formed part of the background understanding of the terms insurrection
or rebellion at the time they were employed in Section Three.

More broadly, slavery and anti-slavery produced other prominent incidents

that would have been classed as small or large insurrections against government—
instances that went beyond individual instances of legal disobedience, or of resistance
to the laws themselves, and rose to the level of active, concerted, unlawful resistance
to the authority of government to execute the laws. Specifically, revolt against the

310 Coakley, supra note 307, 69-77.

311 John Adams, Proclamation on Insurrection in Pennsylvania, 12 March 1799, https://founders.ar-
chives.gov/documents/Adams/99-02-02-3377
312 These prosecutions also occasioned a widely-cited jury charge from Circuit Justice Chase, in which

he repeatedly discussed “insurrection,” describing it as a “rising of any body of the people” and arguing
that it qualified as treason because “an insurrection to resist or prevent, by force, the execution of any
statute of the United States, has a direct tendency to dissolve all the bands of society, to destroy all
order and all laws, and also all security for the lives, liberties and property of the citizens of the United
States.” Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa. 1800).
313 But see Elkins & McKitrick at 696-700 (questioning “whether the circumstances really called for

military force of any kind”).

314 Federal troops were used to suppress this and other slave rebellions, but “without following the

legal procedures laid down in the statutes of 1795 and 1807.” Coakley, supra note 307, at 92-94. Coak-
ley suggests that this the failure to go through the Insurrection Acts reflected “the universal dread of
slave revolts” at the time and the fact that “t]he slaves had no political constituency.” Id. at 94.
315 See The Confessions of Nat Turner, The Leader of the Late Insurrection in Southampton, VA, as

fully and voluntarily made to Thomas R. Gray, at 3, 5, 7, 20, 22 (1831) (calling it “insurrection”); see
also Thomas Wentworth Higginson, Nat Turner's Insurrection, 8 Atlantic Monthly 173 (1861)
316 See Turner, supra note 315, at 3 (“The late insurrection . . . is the first instance in our history of an

open rebellion of the slaves”) (emphases added).

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Fugitive Slave Act of 1850 sometimes took the form of slave liberation in open defi-
ance of government authority. For example, in Boston in 1850 and 1851, a local vigi-
lance committee invoked “the ‘higher law’ doctrine” to openly harbor freed slaves to
the point that President Millard Fillmore “threatened to send in federal troops.”317 In
Christiana, Pennsylvania in 1851, a Quaker community took up arms (!) to defend
fugitive slaves, shooting several slaveowners who had arrived from nearby Maryland.
This was denounced as an “act of insurrection,” and this time President Fillmore did
call out federal troops.318 In Wisconsin in 1859, resistance to federal authority became
so widespread as to prefigure the coming of the Civil War.319 And of course John
Brown’s fateful raid on Harper’s Ferry in 1859 was an explicit act of insurrection and
rebellion: a quixotic and ill prepared attempt to foment a massive slave insurrection
and to overthrow the power of proslavery governments in the South.320 These rebels
and insurrectionists were fighting deeply unjust laws, but there is no question that
they committed many acts of insurrection nonetheless. Rebellion for a good cause is
still rebellion.

Another prominently identified insurrection or rebellion would have been

Dorr’s Rebellion, in Rhode Island, in 1841-1842 which led to the Supreme Court’s
1849 decision in Luther v. Borden.321 There, a cabal claiming to constitute the new,
lawful government of Rhode Island engaged in forcible resistance to and sought to
overturn the authority of the prior, lawful state government (the “charter” govern-
ment that traced its authority to Rhode Island’s original colonial charter). The federal
government did not invoke the Insurrection Act to intervene, but it well might have.
When the Supreme Court ultimately adjudicated the case—through the vehicle of a
trespass suit by a member of one faction, against members of the other—the Court
held that the question of which government constituted the lawful government of the
state was a political question committed to the judgment of Congress and the Presi-
dent and that the judiciary lacked authority to interfere with the political branches’
actions (and inactions), which had tacitly supported the charter government. The
practical result of the decision—relevant to our inquiry– was that the losing side in
the struggle (the faction headed by Mr. Dorr) legally could be treated by the prevail-
ing side (the charter government) as having engaged in “insurrection” against the

317 See McPherson, supra note 228, at 81-84; Cf. Coakley, supra note 307, at 130-131 (noting debate
about whether this disturbance in Boston was sufficiently great to trigger the insurrection acts).
318 McPherson, supra note 228, at 84-85. See also Thomas Slaughter, Bloody Dawn: The Christian Riot

and Racial Violence in the Antebellum North (1991); and cf. id. at ix (“The line between riot and rebel-
lion was shifting during the antebellum period.”).
319 See generally H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution,

and the Coming of the Civil War (2006) (describing resistance, in the mid-to-late1850s, in Wisconsin
to federal legal authority to execute the Fugitive Slave Act).
320 McPherson, supra note 228, 202-208. Federal troops helped suppress this insurrection and rebellion

too. See Coakley, supra note 307, at 193 (“This intervention was, as in the case of Nat Turner’s Rebel-
lion, an emergency measure undertaken without the usual formalities.”).
321 Luther v. Borden, 58 U.S. (7 How.) 1 (1849). On Dorr’s Rebellion generally and the federal response,

see Coakley, supra note 307, at 119-127.

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rightful state government. The Court noted, and seemingly accepted, the charter gov-
ernment’s characterization of plaintiff and others having “assembled in arms . . . for
the purpose of overthrowing the government by military force”322 and as having at-
tempted “to assert the authority of [the Dorr government] by force,”323 as amounting
to having “engaged in the insurrection.”324 The Court also referred to the govern-
ment’s actions as having been designed to suppress that “insurrection.”325 The Court
appeared to equate with “insurrection” the Dorr group’s attempts to displace or su-
persede the existing government and forcibly assert its own claimed authority as a
replacement.

Finally, several notable invocations of the Insurrection Act occurred during the
period of Reconstruction during the presidency of Ulysses S. Grant.326 While these
events occurred after ratification of the Fourteenth Amendment (and thus could not
have formed any part of the subjective understanding of the drafters and ratifiers of
the meaning of Section Three), they nonetheless deserve mention as roughly contem-
poraneous evidence of the objective meaning of “insurrection” as displayed by im-
portant usage within a few years of adoption of the Fourteenth Amendment. Briefly
summarized: In South Carolina in 1871, Grant twice invoked the Insurrection Act (as
well as suspending habeas corpus, among other actions) to secure order in dealing
with the Ku Klux Klan.327 In Louisiana, in 1872, a contested gubernatorial election
spawned efforts by white supremacists to overthrow the elected pro-Reconstruction
Republican government, culminating in the infamous “Colfax Massacre” of April 13,
1873, in which a white mob attacked and massacred perhaps 150 black citizens who
had been defending a courthouse in Colfax, Louisiana and, more broadly, the Recon-
struction Republican government. President Grant invoked the Insurrection Act as
authority to suppress the insurrection that sought to overturn the election result.328
Later, in 1874, Grant again invoked the Insurrection Act in Louisiana, this time to
suppress a white supremacist coup d’etat that had overthrown the Republican gover-
nor by force.329 Federal troops reinstated the lawful government, but the insurrec-
tionists established a rival state government that effectively controlled much of Lou-
isiana outside of the capital—New Orleans at the time. (The conflict lasted until 1877,

322 Luther, 58 U.S. (7 How.) at 8.

323 Id. at 37
324 Id. at 46
325 Id. at 45.
326 By this time, the Act had been amended yet again. See 17 Stat. 13, 14-15 (1871), §§ 3-4.
327 Ulysses S. Grant, Proclamation No. 197, Law and Order in the State of South Carolina (Mar. 24,

1871); http://www.presidency.ucsb.edu/ws/?pid=70253; Ulysses S. Grant, Proclamation No. 200, Law

and Order in the State of South Carolina (Oct. 12, 1871); for background see Michael Bahar, The
Presidential Intervention Principle: The Domestic Use of the Military and the Power of the Several
States, 5 Harv. Nat'l Sec. J. 537, 613-14 (2014); Lou Falkner Williams, The Great South Carolina Ku
Klux Klan Trials, 1871-1872, at 39-49 (1996).
328 Ulysses S. Grant, Proclamation No. 213, Law and Order in the State of Louisiana (May 22, 1873)

http://www.presidency.ucsb.edu/ws/index.php?pid=70364
329 Ulysses S. Grant, Proclamation No. 220, Law and Order in the State of Louisiana (Sept. 15, 1874)

http://www.presidency.ucsb.edu/ws/index.php?pid=70422

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when Reconstruction was abandoned by the national government and white suprem-
acists took full control of the state.) In Mississippi, in 1874, white supremacists fab-
ricated criminal charges against the newly elected black sheriff, Peter Crosby, and
deposed him by mob action.330 Black citizens organizing an effort to reinstate Crosby
were attacked by white mobs, resulting in the massacre of as many as 300 black citi-
zens. Again, President Grant invoked the Insurrection Act and sent federal troops to
reinstate Crosby and prevent further violence. Also in 1874, in Arkansas, Grant in-
voked the Insurrection Act to quell violence in an ongoing dispute over the 1872 gu-
bernatorial election results.331 And in 1876, in South Carolina, Grant invoked the
Insurrection Act to protect the gubernatorial election process from white supremacist
groups.332 Common to each of these instances during the Grant administration was
the idea that concerted efforts to overturn lawful popular election results by mob ac-
tion, force, violence, and intimidation constituted “insurrection” against government.

It is difficult to evaluate precisely the probative force of all of these incidents,

and application of federal authority to suppress “insurrections,” for understanding
Section Three. But they were unquestionably part of the picture, contributing to the
background for understanding Section Three’s terms. They were very much part of a
common historical vocabulary of “insurrection” and “rebellion” and culpable partici-
pation in the same, familiar to those who drafted and ratified the Fourteenth Amend-
ment: The Whiskey Rebellion, Shay’s Rebellion, Nat Turner’s Rebellion, Dorr’s Re-
bellion, the insurrections against the Fugitive Slave Act in the 1850s, John Brown’s
raid on Harper’s Ferry in 1859—all of these incidents would have informed the gen-
eral understanding of what constitutes “insurrection or rebellion” and what actions
amount to having “engaged in” or given “aid or comfort” to such uprisings. They all
tend to support our working definitions of Section Three’s terms. Even President
Grant’s post-1868 invocations of the Insurrection Act, to combat attempts to over-
throw election results or displace lawful state authority, may shine some interpretive
light backward on Section Three’s meaning. If an uprising of similar nature to these
events were to occur, it seems to us that it likely would have been understood as an
insurrection or rebellion within the coverage of Section Three.

b. The Congressional Exclusion Debates

As noted above, the federal Ironclad Oath adopted during the Civil War closely
paralleled the requirements and consequences of Section Three. These parallels are
drawn more sharply by a series of cases where both houses of Congress enforced the
oath to exclude their own prospective members from being seated. As one scholar has

330Ulysses S. Grant, Proclamation No. 223, Law and Order in the State of Mississippi (Dec. 21, 1874),
http://www.presidency.ucsb.edu/ws/?pid=70459.
331 Ulysses S. Grant, Proclamation No. 218, Law and Order in the State of Arkansas (May 15, 1874)

http://www.presidency.ucsb.edu/ws/?pid=70420.
332 Ulysses S. Grant, Proclamation No. 232, Law and Order in the State of South Carolina (Oct. 17,

1876) http://www.presidency.ucsb.edu/ws/?pid=70542.

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put it, these debates “were littered with relevant concepts, and we can judge the For-
tieth Congress’s reception to those similar arguments as indicative of their expecta-
tions as to Section 3’s application.”333 Moreover, several of these proceedings occurred
right around the time of the proposal and ratification of the Fourteenth Amendment.
In some cases after the Fourteenth Amendment was ratified, Congress applied Sec-
tion Three itself, further demonstrating continuity and overlap with the Ironclad
Oath.

The familiar source compiling the houses’ debates on such matters of internal
administration is Hinds’ Precedents, which we rely on here.334

First, Kentucky: In 1867, Kentucky submitted eight members-elect to the

House, seven of whom were challenged as ineligible on the ground that they had given
aid or comfort to the Confederacy, during the Civil War. The Committee on Elections
concluded that “no person who has been engaged in armed hostility to the Govern-
ment of the United States, or who has given aid and comfort to its enemies during
the late rebellion,” ought to be sworn or seated.335 A subsequent report determined
that such charges needed to be “proved by clear and satisfactory testimony” and es-
tablish more than mere lack of active support for the Union or passive sympathy for
the rebellion but that “the claimant has by act or speech given aid or countenance to
the rebellion.”336 Such acts or speech need not rise to the level of constitutional trea-
son, but they “must have been so overt and public, and must have been done or said
under such circumstances, as fairly to show that they were actually designed to, and
in their nature tended to, forward the cause of the rebellion.”337

On this standard, the committee found that four of the challenged members-
elect were not proved to have either “engaged in armed hostility” to the Government
or provided “aid and comfort” to its adversaries. These four were admitted to their
seats. Three others—John Y. Brown, John D. Young, and Lawrence Trimble—posed
more serious difficulty, however. The House ultimately refused to seat either Brown
or Young but admitted Trimble. The facts of these cases are instructive explorations
of the boundaries between free speech and “aid or comfort” to rebellion.

The House addressed the John Y. Brown case first. “This election case,” Hinds’
reports, was “the first of its kind since the formation of the Constitution, and recog-
nized by the House as of the highest importance.”338 It also involved an incident of

333 Lynch, supra note 5, at 196. Lynch ably and accurately describes the most important such cases.
See id. at 196-201, 207-210. We find little or nothing to disagree with in his account and analysis of
these disputes and are indebted to Lynch’s research and analysis.
334 See generally 1 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United

States, ch. 14, pp. 431-486 (1907).

335 Id. §448 at 442.
336 Id. at 443 (emphasis added).
337 Id.
338 Id. at 445.

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pure speech as disqualifying a member-elect from office: John Y. Brown had explicitly
embraced and advocated violent resistance to the Union in Kentucky. Indeed, he had
gone so far as to urge the shooting of any man who volunteered for service in Union
forces. Brown’s disqualifying conduct consisted solely of such acts of speech. The com-
mittee relied on a letter Brown had written to the Louisville Courier in 1861 in which
Brown had gone to great lengths to affirm his support for the rebellion in unequivocal
terms:

Editors Louisville Courier:

My attention has been called to the following paragraph, which

appeared in your paper of this date:

“JOHN YOUNG BROWN’S POSITION.– This gentleman, in re-

ply to some searching interrogatories put to him by Governor Helm,
said, in reference to the call of the President for four regiments of volun-
teers to march against the South—
‘I would not send one solitary man to aid that Government, and
those who volunteer should be shot down in their tracks.’”
This ambiguous report of my remarks has, I find, been misunder-
stood by some who have read it, who construe my language to apply to
the government of the Confederate States! What I did say was this:
“Not one man or one dollar will Kentucky furnish Lincoln to aid
him in his unholy war against the South. If this northern army shall
attempt to cross our borders, we will resist it unto the death; and if one
man shall be found in our Commonwealth to volunteer to join them he
ought and I believe will be shot down before he leaves the State.”
This was not said in reply to any question propounded by ex-Gov-
ernor Helm, as you have stated, and is no more than I frequently uttered
public and privately prior to my debate with him.
Respectfully,
JOHN YOUNG BROWN.339

The House concluded, on the strength of this letter alone, that Brown had sup-
ported the rebellion and therefore voted to exclude him. This became a precedent for
the House’s subsequent actions in other cases. The standard applied—whether the
facts, “proved by clear and satisfactory testimony,” showed that an individual had, by
an “act or speech … overt and public … done or said under such circumstances, as
fairly to show that they were actually designed to, and in their nature tended to,
forward the cause of the rebellion”—had been satisfied by Brown’s letter.340

339 Quoted in id. at §449, p. 445.

340 Id. at §449, pp. 443, 448.

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 Similarly, in March 1868, the House excluded John D. Young under this stand-
ard. Young’s case also involved speech. The Young case involved numerous expres-
sions of support and sympathy for the South and against the Union, and the commit-
tee explicitly took the position “that ‘aid and comfort’ may be given to an enemy by
words of encouragement, or the expression of an opinion” by a person (like Young, a
county judge) in an “influential position.”341 But Young’s case was overdetermined,
because there was also testimony that Young had provided material assistance to
Confederate troops, by giving them food and provisions and assisting in the capture
by Confederate troops of a Union soldier. According to the committee, Young’s “ex-
pressions and admissions” of sympathy for the enemy, “taken in connection with the
open acts of ‘aid and comfort to the enemies of the United States,’” established that
he could not “’honestly and truly take the oath,’”342 and the full House agreed.

The contrasting case of Lawrence Trimble, however, showed that mere political
opposition did not establish disloyalty. Aside from some overly vague allegations that
he had traded with the enemy, the core of the case against Trimble were his political
speeches. Trimble had been the Union candidate for Congress in 1861 and “made
Union speeches in that canvass throughout the district.” Trimble opposed Lincoln’s
war policies after the Emancipation Proclamation, asserting that the North was wag-
ing “an abolition war” and reportedly was opposed to “voting any more men or money
to aid in carrying it on.” These views and statements, however, were not materially
different from other members’ statements in Congress opposing the administration’s
policy. The committee (and House) considered Trimble’s “loyalty unquestioned” and
found no case for disqualifying him.343

Next consider Tennessee: Tennessee supplied two interesting membership

cases, one in the House and one in the Senate. Both involved undoubtedly pro-Union
men who nonetheless had held state office under Tennessee’s secessionist regime and
sworn oaths under it, while seemingly using their positions to support Union inter-
ests and resist the secession government. This presented a distinct problem under
the Ironclad Oath, which required its swearer to disaffirm that he had ever accepted
or exercised office under a pretended government hostile to the United States. What
to do? In each case—Senator-elect David Patterson, who had served as a state court
judge in the eastern region of Tennessee during the Confederate regime; and Repre-
sentative-elect R.R. Butler, who had retained his seat in the state legislature during
secession, while opposing it—the respective house ultimately admitted the applicant
to his seat and permitted him to take a modified oath omitting the never-held-office-
under-a-hostile-regime sentence.344

341 Id. at §451, p. 452 (quoting House Report 40-29 (1868)) (emphasis added).
342 Id. at §451, p. 452 (quoting House Report 40-29 (1868)) (emphasis added).
343 Id. at §453, p. 459.
344 Id. at §453, 455, pp. 459-461, 462-465. In Butler’s case, two-thirds of both houses voted him am-

nesty. Id. at 464-465. In Patterson’s case, the Senate tried to pass a bill altering the oath for Patterson,
but the House tabled it, id. at 46, but perhaps that is okay, if application of the Ironclad Oath, to

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 A potentially broad understanding of “aid or comfort” also surfaced in the ex-
clusion of Maryland Senator-elect Philip Thomas in 1867.345 What had Thomas done
to support the South in its rebellion? Apparently, he had permitted his minor son, a
member of his household, to join the Confederate army, and given his son $100 on the
way out the door. The Senate debated whether Thomas had done anything more by
way of counsel or encouragement of his son’s taking up arms against the United
States and it is not clear how the senators evaluated such evidence. Some seemed to
have thought Thomas’s treatment of his son disqualifying. Others focused instead on
allegations that Thomas had resigned as President Buchanan’s Treasury Secretary
because he disagreed with the President’s decision to send federal reinforcements to
Charleston Harbor.346 Either theory of Thomas’s exclusion suggests that “aid or com-
fort” to rebellion was understood to sweep broadly and possibly include conduct of a
somewhat more passive or quiescent nature—allowing one’s son to become a rebel
soldier, under circumstances where such permission (and financial assistance) might
have been withheld; opposing, or resisting, measures to suppress insurrection and
defend national institutions and personnel, and resigning office in protest against
such measures.

Cases like these continued in the House and Senate after Section Three of the
Fourteenth Amendment had taken effect. By this point, the basic principles were
more established, and the cases were sometimes more factbound or less illuminating,
but they further confirm the continuity between Section Three and the Ironclad Oath,
and illustrate the understanding of Section Three very shortly after its adoption.

To recount them very briefly: In 1868, John Christy had received the most
votes for Congress in Georgia’s sixth district, but the House committee found that
Christy, by his own admission, had given “aid, countenance, counsel, and encourage-
ment” to persons in armed hostility against the Union and therefore, “in accordance
with the precedent in the case of John Y. Brown,” was disqualified by the Ironclad
Oath, and he was not seated.347 In 1869, the House sat John Rice from Kentucky
despite a divided House committee’s conclusion that he was disqualified by Section
Three.348 The pages of the Congressional Globe reveal a debate about whether Rice
had in fact joined the Confederate Army, which turned on the dubious credibility of

members of Congress, is a function of each house’s separate power to make rules governing its pro-
ceedings. U.S. Const. art. I §5.
345 Hinds’ at §§457, 458 at pp. 465-470.
346 Hinds’ at §459, pp. 470 (reporting that Senator Sumner withdrew a resolution focused on Thomas’s

son “it being urged that Mr. Thomas’s conduct as a Cabinet officer in 1860 afforded more certain
grounds for action.”). See also Cong. Globe 40th Cong. 2nd Sess. at 1260-1262 (Feb. 19, 1868).
347 Hinds’ at §459, pp. 470-472. Interestingly, the Governor of Georgia had concluded that Christy was

disqualified under Section Three while the House committee relied on the Ironclad Oath “inde-
pendently of any question as to ineligibility under the fourteenth amendment,” id.
348 Hinds’ at §460, pp. 472-473.

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two witnesses.349 In 1870, the House allowed Representative George Booker of Vir-
ginia to keep his seat, despite subsequent charges that he had directly supported the
militia of the rebel government in his role as justice of the peace. But Booker made
an apparently persuasive case that he had been loyal all along, even as he worked
within the Confederacy, and as a practical matter he had already been seated. For
one reason or the other, the House ultimately voted to table the issue, leaving Booker
in office.350 Also in 1870, the House allowed Representative Lewis McKenzie of Vir-
ginia to sit, despite various votes he had taken as a member of the Virginia house of
delegates in 1861—votes pledging Virginia’s commitment to “unite her destiny with
the slaveholding States of the South” should attempts to reconcile differences be-
tween North and South fail, supporting Virginia’s willingness to fight, and to provi-
sion Virginia fighters. Because all of these votes occurred before voter ratification of
Virginia’s secession ordinance on May 23, 1861, and because McKenzie remained “an
outspoken Union man” after secession and throughout the war, the House concluded
he had neither engaged in rebellion nor given it aid or comfort.

Finally, in 1871, the Senate declined to seat Senator-elect Zebulon Vance from
North Carolina.351 The exclusion of Vance was a particularly easy case. After serving
in Congress, he had led Confederate troops in battle against the Union and then be-
came the wartime governor of Confederate-regime North Carolina.352 If anyone had
engaged in rebellion and given aid or comfort to the Union’s enemies, it was Vance.
He was clearly barred by both Section Three and by the Ironclad Oath. He could be
seated only if Congress chose to exercise amnesty, which it did not do until later.353

These congressional seating challenges suggest some rough lines as to what

Congress thought was “aid or comfort” to the Confederacy. On one hand, direct ma-
terial support for the rebel cause—providing supplies or working with enemy forces—

349 Congressional Globe, 41st Cong, 2nd Sess. pp. 5442-5447 (July 11, 1870). Rice had also been in the
Kentucky legislature and voted for a resolution against the coercion of the southern states; but every-
body agreed this was not enough to count as aid or comfort, because it was only in January 1861: “No
war exist[ed] at the time” and it was before “the policy of the Government had been announced.” Id. at
5443 (Butler); see also id. at 5445 (Garfield). Nor could Rice be excluded solely because of his politics.
See id. at 5445 (“[T]his man was a Democrat. That is a political sin, but it is not a crime under the law.
He is a Democrat yet. I think he is very wrong in being that, but yet it is not a crime.”) (Logan).
350 Hinds’ at §461, pp. 474-475.
351 See generally Hinds’ at §463, pp. 478-486.
352 See generally Richard E. Yates, Zebulon B. Vance: as War Governor of North Carolina, 1862-1865,

3 J. Southern Hist. 43 (1937).

353 Vance ultimately had the last laugh. Vance was excluded from the 1872 amnesty statute because

he had served in the thirty-sixth Congress, Act of May 22, 1872, ch. 193, 17 Stat. 142; https://bi-
oguide.congress.gov/search/bio/V000021. Cf. Franklin Ray Shirley, Zebulon Vance, Tarheel Spokes-
man 71 & 152 n. 36 (1962) (claiming that Vance had been waiting for the 1872 amnesty until his
opponent Abbott had somehow engineered the amendment to the 1872 act that excluded Vance), but
Congress then passed a private bill granting him individual amnesty. 17 Stat. 691 (June 10, 1872).
Thanks to Gerard Magliocca for this source. Vance subsequently returned to the North Carolina gov-
ernorship, and then to the Senate until his death in 1884. Magliocca, Amnesty, supra note 5, at 111 n.
126.

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was clearly aid or comfort. On the other hand, disfavored political beliefs and pre-war
political stances were clearly not. In between lay contested territory. But there was
no bright line, for instance, protecting all speech or political activity. In some situa-
tions, speech alone could be disqualifying. A sufficiently clear and unequivocal state-
ment of disloyalty in the form of proposed active resistance to Union authority or
encouragement to violence against Union forces appears generally to have been
thought disqualifying. Voluntarily holding confederate office or advocating resistance
to the Union also could be enough to disqualify. We do not suggest these individual
applications—many of which were contested and complicated—are strictly binding.
But they provide useful concrete evidence for how parts of Section Three may well
have been understood and thought to work.354

6. Legislative History

There is only a little fruit to be gleaned from the legislative history of the Four-
teenth Amendment—the records of the proposing Congress’s debates over its various
provisions and of state ratification debates. The Fourteenth Amendment’s legislative
history is famously voluminous, and Section Three—like the other “forgotten” sec-
tions of the Amendment (Section Two and Section Four)—was much more salient to
the debates then than it is to today.355 As briefly noted above, the legislative history
supports the key propositions we have advanced earlier in this article—that Section
Three was designed to be general and prospective, and not limited to the situation of
the Civil War and Reconstruction; that Section Three’s disqualification was seen by
proponents and opponents alike to be self-executing and automatic; and that Section
Three was understood to supersede (or satisfy) prior constitutional limitations.356

Perhaps somewhat surprisingly, however, we have found relatively few inter-

pretive insights about the scope of conduct triggering disqualification under Section
Three. What evidence there is generally confirms the understanding that the provi-
sion would have sweeping consequences: there appears to have been substantial
agreement—by both opponents and proponents—that the provision would cover a
broad range of activity supporting or assisting the South’s efforts to throw off the
authority of the Union and the Constitution. The original proposal would have ex-
cluded all such persons from voting, not just officeholding and, further, would not
have been limited in its coverage to former oath-swearing federal and state office-
holders. However, the language concerning what conduct triggered disfranchisement
(and, as later revised, disqualification from officeholding) was carried forward

354 Finally, though it occurred long after this period, there has been one additional congressional ex-
clusion under Section Three: the 1919 exclusion of socialist newspaper editor Victor Berger from the
House. See supra notes 219-221 and accompanying text. The Berger episode of course has no probative
value about the original meaning of Section Three, since it occurred more than 50 years after Section
Three was enacted. In our view, the House’s decision was mistaken—an overzealous reading of the
law, the facts, or both.
355 See generally Graber, Volume 1, supra note 8.
356 See supra notes 12, 59, & 181.

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throughout the discussion. Opponents of what eventually became Section Three
thought the range of what was included in disability-triggering conduct (that is, when
one might be said to have “engaged in” insurrection or rebellion or given “aid or com-
fort” to it) was hugely broad in its reach, sweeping in nearly everybody in the rebel
South—and viewed the proposal as regrettable on account of such breadth. Signifi-
cantly, proponents of the amendment did not disagree with its opponents concerning
the breadth of the description of disability-triggering conduct. The proponents simply
thought such breadth appropriate, necessary, and valuable.357

As things proceeded, Congress narrowed the provision in two specific respects.

Congress backed away from complete disfranchisement to disqualification from hold-
ing office. And relatedly, it narrowed Section Three to cover only those who had sworn
a prior oath of loyalty to the U.S. Constitution as federal or state officeholders. Rather
than disenfranchising pretty much the entire white South, it would disqualify from
future office those who had held constitutional office and then rebelled.

But what did not change was the broad description of the conduct that trig-
gered disfranchisement (in the earlier proposal) or disqualification from office (in the
proposal eventually agreed to).358 As noted, there is not a great deal of explication of
what this conduct was, exactly. But the overall tenor of the debates over what became
Section Three suggest that all meaningful connection with, support for, or aid to the
Confederacy—officeholding, military service (whether voluntary or not), political sup-
port or endorsement, provision of material assistance to rebellion or rebel forces—
was regarded by the proposing Congress as covered. The legislative history of Section
Three—such as it is—supports a broad understanding of the prohibition contained in
its language.

7. Early Applications of Section Three

357See generally Graber Section Three manuscript, supra note 12.

358Congress also rejected a series of proposed amendments to Section Three that would have narrowed
or limited the conduct or persons to which the language would apply – e.g., only to persons who joined
the Confederacy while still holding prior office under the U.S. Constitution; only to persons who had
sworn oaths to the Constitution since 1851; only to persons who had not received presidential pardons;
and only to persons who had voluntarily served the confederacy. Republican defenders of Section Three
successfully opposed these proposed limitations on Section Three’s scope, arguing that limiting the
ban to persons who still held office under the Constitution when they joined the Confederacy would
indulge the pretext that resignation from office before engaging in or assisting rebellion absolved one
of any prior duty of loyalty to the United States Constitution. Cong. Globe, 39th Cong. 1st Sess. p.
2770 (statement of Sen. Howard). Republicans likewise rejected the proposed limitation to persons
who had “voluntarily” assisted or participated in rebellion, because it would raise unnecessary and
difficult proof problems and permit spurious claims of involuntary participation. Indeed, one senator
noted that Alexander Stephens, Vice President of the Confederacy, had testified before the Joint Com-
mittee on Reconstruction that he “never entered into the rebellion voluntarily”! Cong. Globe, 39th
Cong., 1st Sess. p. 2918 (statement of Sen. Willey).

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 A final set of evidence comes from the handful of cases applying Section Three
shortly after its adoption. Once again, because these examples come after the provi-
sion was adopted, they do not provide direct evidence of its original public meaning,
but they still can be informative.359 Section Three came up in a range of procedural
and institutional situations; each of these situations further confirms Section Three’s
broad substantive sweep.360

For instance, the 1867 Military Reconstruction Act—which imposed provi-

sional governments on the southern states until they obtained readmission to repre-
sentation in Congress by enacting new, republican, Reconstruction-compliant consti-
tutions—directly incorporated Section Three of the proposed (but not yet ratified)
Fourteenth Amendment as a restriction on those governments. Persons disqualified
under Section Three could not hold office under the provisional governments, nor
could they serve in—or even vote for those who would serve in—the state’s constitu-
tional convention.361

Andrew Johnson’s attorney general, Henry Stanbery, published a two-part

opinion in 1867 setting forth his interpretation of the Act and thus, indirectly, of Sec-
tion Three.362 Stanberry’s opinion is explicitly slanted toward a narrow construction
of Section Three, because of his concerns that it would be punitive and ex post facto
in this context.363 Even so, Stanberry’s opinion found Section Three’s definition of
what constituted participation in rebellion to be quite broad:

“All those who, in legislative or other official capacity, were engaged in

the furtherance of the common unlawful purpose, or persons who, in
their individual capacity, have done any overt act for the purpose of pro-
moting the rebellion, may well be said, in the meaning of this law, to
have engaged in rebellion.”364

As to individuals, Stanberry also reiterated several times that any voluntary support,
even if not violent, was covered and culpable. He found “it to be clear, that in the

359 See, e.g., Baude, Liquidation, supra note 237, at 61-62; Paulsen, Most Dangerous, supra note 237,
at 293, 303.
360 Additionally, some of Congress’s application of the Ironclad Oath to its own members also entailed

the application of Section Three, see supra Part IV.A.5.b.

361 An Act to provide for the more efficient Government of the Rebel States, 14 Stat. 428, 429, sec. 5-6

(March 2., 1867).

362 Henry Stanbery, The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867); Henry Stanbery, The Re-

construction Acts, 12 Op. Att’y Gen. 182 (1867).

363 12 Op. Att’y Gen. at 159-160. But see supra Part III.A-B (explaining why the constitutional ex post

facto and attainder principles do not apply to Section Three, especially as applied to new insurrections
and rebellions).
364 Id. at 161-162 (emphasis added)

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sense of this law persons may have engaged in rebellion without having actually lev-
ied war or taken arms,”365 and added that “wherever an act is done voluntarily in aid
of the rebel cause . . . it must work disqualification under this law.”366

Subsequent cases took even broader positions. For instance, in the 1869 deci-
sion of Worthy v. Barrett, the North Carolina Supreme Court concluded that a state
sheriff was disqualified under Section Three for holding basically the same office as
a sheriff when his state was in rebellion. The court’s reasoning on this issue was suc-
cinct but clear:

What will amount to having engaged in the rebellion?

(1st.) Holding any of these offices under the Confederate government.

2d Voluntarily aiding the rebellion, by personal service, or by contribu-

tions, other than charitable, of any thing that was useful or necessary
in the Confederate service.367

That is, the North Carolina Supreme Court embraced Stanberry’s view that
almost any voluntary assistance to the rebel cause was a form of engaging in rebel-
lion, but also held that holding any office, even an ordinary non-military office far
from the front lines, was a form of engaging in rebellion covered by Section Three.368

Shortly after this—and shortly after Chief Justice Chase’s unsound and unfor-
tunate decision in Griffin’s Case had held that Section Three required congressional
legislation in order to be put into operation – Congress enacted federal procedures to
directly enforce Section Three in federal court. The 1870 Enforcement Act, also known
as the First Ku Klux Klan Act, authorized district attorneys of the United States to
bring quo warranto actions to remove officials holding office “contrary to the provi-
sions of the third section of the fourteenth article of amendment of the Constitution”
and to bring criminal prosecutions against person who “shall hereafter knowingly
accept or hold” office in violation of Section Three.369 In proceedings brought under
both enforcement sections of the Act, in the short period between 1870 and 1872, the
scope of Section Three’s prohibition was interpreted broadly. (Recall that in 1872
Congress removed Section Three’s disqualification as to most former rebels.)

365 Id. at 161.

366 Id. at 165.
367 Worthy v. Barrett, 63 N.C. 199, 203 (1869). The court also applied the Worthy rule to the even

easier case of a county attorney who “took part in th[e] rebellion by serving in the Confederate army,
voluntarily.” In Re Tate, 63 N.C. 308 (1869).
368 By contrast, Stanberry had concluded that officers who “discharged official duties not incident to

war, but in the preservation of order and the administration of law, are not to be considered as thereby
engaging in rebellion.” 12 Op. Att’y Gen. 162.
369 16 Stat. 140, 142-143, sections 14 & 15. See supra note 54.

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 Consider first a notable criminal prosecution under the 1870 Act. In North
Carolina again, this time in federal court, the government brought criminal charges
against Amos Powell, for accepting an appointment as county sheriff despite being
covered by Section Three.370 Powell’s alleged act of rebellion was having “furnished a
substitute for himself to the Confederate army,” and Powell’s defense was that this
was involuntary, because he was about to be involuntarily conscripted himself. 371
This gave the federal court, through Judge Hugh Lennox Bond, occasion to instruct
the jury on the relevance of voluntariness to Section Three:

[T]he word “engage” implies, and was intended to imply, a voluntary

effort to assist the Insurrection or Rebellion, and to bring it to a success-
ful termination; and unless you find the defendant did that, with which
he is charged, voluntarily, and not by compulsion, he is not guilty of the
indictment. But it is not every appearance of force nor timid fear that will
excuse such actual participation in the Rebellion or Insurrection. De-
fendant’s conduct must have been prompted by a well grounded fear of
great bodily harm and the result of force, which the defendant was nei-
ther able to escape nor resist. And further, the defendant’s action must
spring from his want of sympathy with the insurrectionary movement,
and not from his repugnance to being in an army, merely.372

In other words, only great duress and pure heart would be a defense if one’s conduct
otherwise provided material support to the rebellion. Section Three’s disqualification
for having “engaged” in insurrection covered a wide swath of voluntary participatory
acts supporting or assisting rebellion, some bordering on near-passive acquiescence.

Meanwhile, in Tennessee. the U.S. Attorney brought dozens of federal enforce-

ment actions, including against three members of the Tennessee Supreme Court.373
Many of those charged were unquestionably covered by Section Three because they
had fought in the Civil War, for the Confederacy. But some were charged for more
remote participation. For instance, Thomas Nelson, one of the Tennessee Justices,
had been a unionist during the war, and indeed at one point a prisoner of the Confed-
eracy. His participation in the rebellion appears to have been limited to being elected
to the U.S. House of Representatives from Tennessee, after Tennessee’s purported

370 United States v. Powell, 27 F. Cas. 605 (C.C.D.N.C 1871).

371 Id. at 607.
372 Id. Additionally, Powell had served as a justice of the peace under the Confederate government, but

the federal court held this not to qualify, for reasons similar to those articulated by Attorney General
Stanberry. Id.
373 Sam D. Elliott, When the United States Attorney Sued to Remove Half the Tennessee Supreme Court:

The Quo Warranto Cases of 1870, 49 Tenn. B.J. 20 (2013); see also Magliocca, Amnesty, supra note 5,
at 109-110.

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secession, and traveling to Washington to attempt to represent the state in Con-
gress.374 While these Section Three claims were never adjudicated, the fact that they
were brought in the first place is consistent with the broad sweep of Section Three.375

The other scattered discussion of Section Three we have found are more am-
biguous, but still consistent with these broad interpretations of Section Three’s sub-
stantive disqualification—broad interpretations of insurrection, rebellion, “engaged
in,” and so on. Recall, for instance, that in Griffin’s Case, it was essentially taken as
given that Judge Hugh Sheffey would be disqualified by Section Three (if it applied)
because he was “a member of the legislature of Virginia in 1862 during the late Re-
bellion, and as such voted for measures to sustain the so-called Confederate States in
their war against the United States.”376 Other cases are consistent with similarly
broad assumptions.377 We have found none that took a substantially narrower view
of Section Three, and even if some exist, they would seem to be the minority and
inferior construction.

The application of Section Three immediately after its enactment is consistent

with what the text, structure, context, and history of Section Three all tell us: to have
“engaged] in,” or given “aid or comfort” to, insurrection and rebellion, was understood
to embrace an incredibly broad sweep of voluntary conduct that provides support,
material assistance, or specific encouragement to such actions.

In the end, essentially all the evidence concerning the original textual meaning
of Section Three—contemporaneous dictionary definitions; parallel constitutional use
of the same or similar language; the inferences that fairly may be drawn from the
legislative history of Section Three’s drafting; the especially strong evidence from
1860s Civil War era political and legal usage of nearly the precise same terms (in
prominent presidential statements, congressional enactments and their implementa-
tion, and a landmark Supreme Court constitutional decision employing the same
terms); the general legal backdrop of eighteenth century Insurrection Acts and the
myriad and familiar historical incidents of “insurrection” and “rebellion” to which
they applied; and finally early practice enforcing Section Three—points in the same
direction: toward a broad understanding of what constitutes insurrection and rebel-
lion and a remarkably, almost extraordinarily, broad understanding of what types of
conduct constitute engaging in, assisting, or giving aid or comfort to such movements.

374 For one fawning account of Nelson, see Oliver P. Temple, Notable Men of Tennessee From 1833 to
1875. at 166-215 (1912).
375 Justice Nelson resigned while these actions were pending, and the rest of the actions were aban-

doned with the passage of the 1872 Amnesty Act and a change in the federal attitude towards Section
Three. Elliott, supra note 373.
376 In re Griffin, 11 F. Cas. 7, 22 (C.C.D.Va. 1869).
377 Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 873, 885–87 (1872). There is reason to think there

were hundreds of other Section Three actions brought during this time period, but few records of the
specifics of the cases. Magliocca, Amnesty, supra note 5, at 109-110.

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B. What Prior Officeholders are Covered? What Future Offices are Barred?

The next step in the analysis of Section Three is rather more tedious than dif-
ficult. But it is important to get it right: Holders of what prior offices or positions are
covered by Section Three’s disqualification from future office if they engaged in in-
surrection or rebellion? And from what future offices or positions are they thereby
disqualified? The text of Section Three takes up these points in reverse order (and so
we shall too) and uses slightly different language for each category.

First, the offices or positions from which a disqualified person is barred:

No person shall be a Senator or Representative in Congress, or an

elector of President and Vice President, or hold any office, civil or mil-
itary, under the United States or under any State … 378

Second, the offices or positions previously held, and for which an oath to the Consti-
tution was taken, that trigger Section Three’s disqualification:

… who, having previously taken an oath as a member of Congress, or

as an officer of the United States, or as a member of any State legis-
lature, or as an executive or judicial officer of any State, to support
the Constitution of the United States … 379

We begin with a few observations.

First, the language of these provisions should be read in as straightforward

and common-sense a manner as possible. The text must be read precisely, of course,
but also sensibly, naturally and in context, without artifice or ingenious invention
unwarranted by that context. Some constitutional provisions embody precise terms
of art that must be attended to. But a reading that renders the document a “secret
code” loaded with hidden meanings discernible only by a select priesthood of illumi-
nati is generally an unlikely one.380 Keep this in mind as we proceed: we think readers

378 U.S. Const. amdt. XIV, sec. 3.

379 Id.
380 See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpre-

tation: Some Modest Proposals from the Twenty-third Century, 59 Albany L. Rev. 671, 674-76 (1995).
For instance, consider the story, passed down from Albert Gallatin to Max Farrand to William Treanor,
that Gouverneur Morris slyly attempted to replace a comma with a semicolon in Article I in order to
convert the “General Welfare” Clause from a limitation on the tax power into a freestanding power of
regulation. William Michael Treanor, The Case of the Dishonest Scrivener: Guverneur Morris and the
Creation of the Federalist Constitution, 120 Mich. L. Rev. 1, 20-24 (2021). Putting aside whether this
story is really true, David S. Schwartz, Framing the Framer: A Commentary on Treanor’s Governeur
Morris as Dishonest Scrivener, 120 Mich. L. Rev. 51, 69-73 (2022), a sensible approach to constitutional
interpretation should obviously resist such antics. Even if Morris had succeeded in smuggling in the
semi-colon, that maneuver should not be decisive in interpreting the Clause. See Kesavan & Paulsen,
West Virginia, supra note 127, at 338-339 & n. 151.

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should be wary of any interpretation of Section Three that would impute to the text
a hyper-technical set of hidden distinctions not fully warranted by the language.
Where the simplest and most plausible explanation of minor textual differences is
merely stylistic or accidental variation, that explanation should not lightly be cast
aside.

Second, it appears that the list of disqualification-triggering offices tracks

closely, but not identically, the listing of positions for which the original Constitution
imposed an oath requirement. Article VI of the Constitution dictates that “Senators
and Representatives . . . Members of the several State legislatures, and all executive
and judicial officers, both of the United States and of the several states, shall be
bound by Oath or Affirmation, to support this Constitution.”381 Article II, overlapping
this general oath mandate, prescribes a specific oath for the President, who swears
both that he will “faithfully execute the Office of President of the United States” and
“’to the best of my Ability, preserve, protect, and defend the Constitution of the United
States.’”382

Section Three’s listing of triggering positions largely tracks the substance (and
to some extent even the sequence) of the all-offices-legislative-executive-judicial-fed-
eral-and-state oath mandates. Section Three’s list of positions from which a covered
person is disqualified builds on this list. All positions that trigger disqualification are
disqualified-from. In addition, the disqualified-from list includes, notably, presiden-
tial electors, who are not listed in the Constitution as persons required to swear an
oath to the Constitution. The wording also appears designed to clarify that the ban
extends to “military” offices—including state military offices—whether or not they
would be considered “executive” offices under state law or Article VI. Thus, in general:
If the original Constitution required an oath for a position, Section Three treats hav-
ing held such a position as the trigger for Section Three’s application. And if a person
who once held any such position is disqualified under Section Three for engaging in
or supporting insurrection, that person is barred (absent congressional relief) from
holding any of those same positions plus disqualified from being an elector for Presi-
dent and Vice President. That seems to be the basic structure of the provision.

Our third observation is related. It appears to us that the text’s overall project
of office-listing, in both clauses, was designed to be reasonably comprehensive, cover-
ing the waterfront: both taking care not to accidentally leave out anything considered
important—including everybody who was constitutionally required to have sworn an
oath—and adding positions where appropriate, as with adding the category of elec-
tors to the list of positions from which a covered person is disqualified.

U.S. Const. art. VI, cl.3.

381

U.S. Const. art. II, §1, cl. 8. On the Presidential Oath Clause generally, see Michael Stokes Paulsen,
382

The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1260-1267 (2004); on “to the best of my
Ability,” see William Baude, Signing Unconstitutional Laws, 86 Ind. L.J. 303, 310 (2011).

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 With these principles in mind, it appears to us that the two clauses—describing
what past positions trigger disqualification and what future positions fall within the
scope of that disqualification—can and should be read, together, in a straightforward
manner. First, as to the persons to whom the provision applies (the second, “trigger-
ing” clause): Section Three’s disqualification attaches to persons who previously
swore an oath to support the Constitution as:

[i] a “member” of Congress, or as

[ii] an “officer of” the United States, or as
[iii] a “member” of any State legislature, or as
[iv] an “executive or judicial officer of” any State.383

These four categories are then closely paralleled (with differences noted) in the de-
scription of offices from which covered persons are excluded (the first clause). Covered
insurrectionists, rebels, and aid-and-comforters are disqualified from being:

[i] “a Senator or Representative” in Congress (paralleling “member,” a seem-

ingly purely stylistic variation) or
[ii] an elector for President or Vice President (a new exclusion from a position
that is not an oath-required triggering position); or
[iii] holding “any office, civil or military,” “under” either federal or state gov-
ernment (paralleling “officer” of the United States or of any State, respectively,
in the second and fourth triggering categories above—with the noted clarifica-
tion of the inclusion of “military” officers).

The description “civil” office, in the disqualified-from list seems designed to embrace
the categories of “executive or judicial” officer in the triggering list. Though somewhat
more awkward, we think an elected office in a state legislature also qualifies as a
“civil” office within the language and design of Section Three, reading the word “of-
fice” in this context in an ordinary, non-technical sense.384

The overall result is a broad list of disqualification-triggering positions cover-

ing essentially every major federal or state legislative, executive, and judicial office;
and a list of barred-from positions embracing all of the above plus electors for presi-

383 U.S. Const. amdt. XIV, sec. 3.

384 Hemel, How-to Guide, supra note 5 (setting forth arguments why state legislative offices are in-
cluded within the general catch-all category of excluded-from “civil” offices.); contra John Randolph
Tucker, General Amnesty, 126 N. Am. Rev. 53, 54 (1878). None of this in our view affects the question
whether a Member of Congress may properly be designated as an “Officer” to whom the duties of the
office of President may devolve upon presidential and vice-presidential death, resignation, or inability,
which turns on different considerations. Compare Akhil Reed Amar & Vikram David Amar, Is the
Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995) with John F. Manning, Not
Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 Stan. L. Rev. 141
(1995).

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dent and vice president (and clarifying “military”). The legislative positions in ques-
tion are the relevant elected offices—members of the legislature, whether a state leg-
islature or the federal Congress—and do not embrace unelected staff positions. The
executive positions embrace anyone in the executive branches of federal or state gov-
ernment who holds an “office” within that branch.

To be sure, there might be ancillary questions concerning what federal execu-

tive and judicial positions qualify as an “office,” held by an “officer”—as opposed to
non-officer, non-“office”-holding employees. That is: exactly how far down the organ-
izational chart does the list of triggering and disqualified-from positions go?385 Like-
wise, for the federal judicial branch, Article III judges and justices are plainly cov-
ered. (Other officers in the judicial branch, such as the clerks in Ex Parte Hennen,386
are presumably covered as well—as well as perhaps bankruptcy judges, magistrate
judges and the like.)387 Non-office-holding employees, again, would not be covered.
And of course there might be similar residual questions as to what state government
positions constitute state executive “office” held by “officers” (thus, perhaps, the spe-
cial need for designation “military,” to be sure state military positions are included),
and what state judicial-branch positions constitute a judicial office. But in the main,
the description of who all is covered by Section Three and what offices such person, if
disqualified, is excluded from holding strikes us as fairly straightforward.

The only challenge anyone has raised concerning this general description is
the argument by professors Josh Blackman and Seth Tillman that a person who has
served as President (and the same argument is made as to Vice President), while
perhaps having held an office “under” the United States, is not properly classified as
an “officer of” the United States.388 On this view, disqualified persons might be barred
from being President or Vice President—the authors are somewhat non-committal
about this389—but having been President or Vice President, and engaged in insurrec-
tion or rebellion, does not trigger disqualification of an individual from anything! On
this argument, the President and Vice President—alone among constitutional oath-
takers—are exempt from Section Three’s consequences for committing treason to that
oath.

385 Serious scholarship has explored those questions with respect to the Appointments Clause. Jennifer
L. Mascott, Who Are “Officers of the United States”?, 70 Stan. L. Rev. 443 (2018). We do not address
that somewhat peripheral question here, but leave such issues for another day.
386 38 U.S. 230, 258 (1839) (“[T]hat a clerk is one of the inferior officers contemplated by [the Appoint-

ments Clause] cannot be questioned”). To be clear, Hennen dealt with the clerk of court, not what we
would now call a term judicial law clerk.
387 That said, to the extent that one maintains that magistrate judges and bankruptcy judges cannot

lawfully exercise judicial power or executive power of their own, see William Baude, Adjudication Out-
side Article III 133 Harv. L. Rev. 1511, 1554-56, 1574-75 (2020), one might question whether they are
truly “officers” at all. Again, we leave this issue for another day.
388 Josh Blackman & Seth Barrett Tillman, Is The President An “Officer of the United States” For

Purposes of Section Three of the Fourteenth Amendment?, 15 N.Y.U. J. L. & Liberty 1 (2021).
389 See, e.g., id. at 6, 17, 21.

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 We do not buy it, for many reasons: First, it adopts precisely the type of “secret
code” hidden-meanings hermeneutic we think should be viewed extremely skepti-
cally. Moreover, the code has a facially implausible consequence: an insurrectionist
President is not covered by Section Three’s disqualification (though nearly every other
federal or state officeholder is); the President is (perhaps?) a disqualified-from office
but not a disqualification-triggering office. This makes little sense.390

Second (and relatedly), the argument rather implausibly splits linguistic hairs.
No one denies that the President is an executive branch officer holding executive of-
fice. At the risk of belaboring the obvious: Article II refers to the “office” of President
innumerable times. It specifies the length of term for which the President “holds his
Office,” certain minimum qualifications for eligibility “to that Office,” what happens
upon the President’s removal “from Office,” or inability to discharge “the Powers and
Duties of said Office,” and the oath he shall take before entering “on the Execution of
his Office.”391 If the Presidency is not an office, nothing is.

So the argument must rely instead on the fine parsing of prepositional phrases.
The President (perhaps?) holds an “office under” the United States but is not an “of-
ficer of” the United States? This seems to defy textual common sense. Far more sen-
sible and straightforward to conclude, we think, that the officeholder holding the of-
fice of President is an officer “of” the United States who holds office under the author-
ity of the United States. The minor textual difference between the triggering clause
(“officer of”) and the positions-disqualified clause (“office under”)—a choice between
prepositions—appears to be of no significant substantive consequence in Section
Three, much as other minor textual variations in or among constitutional provisions
often do not support differences in meaning.392 Indeed, one far simpler and more
straightforward explanation for the Constitution’s use of “office under” and “officer
of” in Section Three and elsewhere is that “office” and “officer” simply take different

390 To be sure, faithful readings of the Constitution sometimes yield counterintuitive outcomes. See
Michael Stokes Paulsen, Someone Should Have Told Spiro Agnew, 14 Const. Comm. 245 (1997); (sug-
gesting the possibility that a straightforward reading of the constitutional text yields the “stupid” –
and surely inadvertent – result that the Vice President would be the presiding officer over his own
impeachment trial in the Senate and that this is a result to be rectified); Baude & Sachs, Grounding,
supra note 9, at 1468. But that does not mean we should close our eyes to plausibility and common
sense, especially when the proposed textual reading is such a stretch. See also Paulsen, supra, Nothing
But the Text, supra note 10, at 1439-1440 (noting cautions concerning use of the “absurdity” canon to
deny plain textual meaning, but noting how the canon is a sometimes useful tool in discerning actual
textual meaning.).
391 See generally U.S. Const. Art. II.
392 For instance, consider the differently phrased, but seemingly identical enforcement clauses of the

Reconstruction Amendments. U.S. Const. amdt. XIII, sec. 2 (“Congress shall have power to enforce
this article by appropriate legislation.”); id. amdt. XIC, sec. 5 (“The Congress shall have power to en-
force, by appropriate legislation, the provisions of this article.”); id. amdt. XV, sec. 2 (“The Congress
shall have power to enforce this article by appropriate legislation.”). Or consider the Constitution’s
“gratuitous (one could also say strange) punctuation marks.” Kesavan & Paulsen, West Virginia, supra
note 127, at 348 (giving examples).

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prepositions: the Constitution uses “of” when referring to an officer and “under” when
referring to an office.

Finally, even if a plausible argument can be constructed that the difference

might have once been thought capable of sustaining a term-of-art distinction with
respect to different prepositional phrases in the original Constitution—surmounting
the presumption against “secret code” interpretation—there is no evidence of such a
distinction in Section Three and little logic to such a distinction either.393

Third, a variant of the Blackman-Tillman argument was explicitly made and

explicitly refuted in the congressional debates proposing Section Three. Senator
Reverdy Johnson of Maryland charged that the language employed was defective be-
cause the offices of President and Vice President had inadvertently been omitted from
Section Three. The amendment “does not go far enough,” Johnson averred.394 “I do
not see but that any one of these gentlemen may be elected President or Vice Presi-
dent of the United States, and why did you omit to exclude them?”395 Johnson was
complaining that these two officers should be included in Section Three and there
was no good reason to omit them. Whereupon Senator Morrill of Vermont interrupted:
“Let me call the Senator’s attention to the words ‘or hold any office, civil or military,
under the United States.’”396 Senator Johnson promptly, and somewhat sheepishly,
retreated: “Perhaps I am wrong as to the exclusion from the presidency; no doubt I
am; but I was misled by noticing the special exclusion in the case of Senators and
Representatives.”397

The Blackman-Tillman argument is not quite the same, but it is the mirror
image of Johnson’s concern. Johnson’s inquiry was whether a covered, insurrectionist
nonetheless might become president. The Blackman-Tillman argument is that an in-
surrectionist president is not an “officer of” the United States whose prior position

393 One of us has previously complimented Tillman’s prior scholarship that attempts to prove such a
systematic term-of-art/secret code in the original Constitution. William Baude, Constitutional Offic-
ers: A Very Close Reading, JOTWELL (Jul. 28, 2016) https://conlaw.jotwell.com/constitutional-officers-
a-very-close-reading/. But the very pieces of evidence that are most arresting in that context also con-
firm extensive linguistic drift or changing understandings in the decades after the founding. Compare
id. (foreign gifts to Washington) with Seth Barrett Tillman, The Original Public Meaning of the Foreign
Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 190 (2013)
(contrary practice by Presidents Van Buren, Tyler, and Jackson); compare Baude, supra this note
(Hamilton’s list) with Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated, at 20-
21 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3037107 (describing a scrivener’s “condensed”
version of this document likely made “circa 1830” that may reflect a different understanding of the
constitutional terms); cf. Blackman & Tillman, supra note 388, at 24-31 (acknowledging, and arguing
against, the possibility of linguistic drift). In other words, such secret code (if any) turns out to have
been written in disappearing ink.
394 Cong. Globe, 39th Cong., 1st sess. at 2899 (1866)
395 Id.
396 Id.
397 Id.

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triggers Section Three’s restrictions on future office. The Johnson-Morrill colloquy
does not specifically address that reverse-image argument. But it certainly suggests
that the framers of Section Three were not parsing it as a secret code with facially
implausible consequences. The question whether Section Three applied to former
Presidents and Vice Presidents does not appear to have been raised again, by any-
one.398 Nor did anybody else involved in drafting or ratifying Section Three suggest
that the mirror-image question would be any different. Subject to all the usual reser-
vations about the use of legislative history (and legislative silence) in determining
textual meaning, this further confirms the more natural reading. The only time any-
thing like the question was raised, the point was answered by a proponent of Section
Three, clearly and unequivocally, and the questioning Senator accepted the answer
as correct.

Fourth and finally, in an additional piece of prepositional jujitsu, Blackman

and Tillman tellingly equivocate about whether the President holds “office under” the
United States as well. (If he does, Section Three stops covered insurrectionists from
becoming President, and if not, not.) Blackman and Tillman do not deny this possi-
bility, but they do not confirm it either. The difficulty for them is that both answers
show the implausibility of their position.

If Blackman and Tillman maintain that the President does not hold “office un-
der” the United States, then they must fly in the face of the directly on point discus-
sion between Senators Johnson and Morrill. They must claim to understand Section
Three better than its framers. This seems unlikely. But if they confirm that the Pres-
ident does hold “office under” the United States, then they must maintain a sharp
and crucial distinction between “office under” and “officer of.” As Mark Graber has
observed, this distinction was also contradicted by Section Three’s framers: “[T]he
members of the Congress who framed Section 3 of the 14th Amendment often indi-
cated—and sometimes explicitly stated—that all persons who held office ‘under the
United States’ were officers ‘of the United States.’ During the debates over Section 3,
no representative or senator alluded to the existence of a distinction between ‘of’ and
‘under’. Representatives and senators often described the president as having an ‘of-
fice under the United States’ and being an ‘officer of the United States.’”399 If a secret

398 Former President John Tyler of Virginia subsequently sided with the Confederacy and was elected
to the Confederate congress (but died before assuming office). And former Vice President John Breckin-
ridge subsequently served as a Confederate general and, later, as Confederate Secretary of War. See
Blackman & Tillman, supra 388, at 45-46 (acknowledging this). While Tyler and Breckinridge had
served in other disqualification-triggering posts, if the text really had failed to include the offices of
President and Vice President as triggering disqualification these incidents would have shown that to
be a glaring and dangerous omission.
399 Mark Graber Disqualification From Office: Donald Trump v. the 39 th Congress, Lawfare (Feb. 24,

2023). Professor Graber notes further that a “unanimous House select committee report issued barely
a month after Congress sent the 14th Amendment to the states concluded that ‘a little consideration
of this matter will show that ‘officers of’ and ‘officers under’ the United States are ‘indiscriminately
used in the Constitution.’’” In addition, “[t]he most comprehensive study of state ratification . . . does
not point to a single example of any journalist or participant in a state convention who distinguished

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code was really at work, it was an extraordinarily well-kept secret. The implausibility
of both horns of the Blackman-Tillman straddle demonstrates the implausibility of
their position.

In short, the ordinary sense of the text; the structure and logic of its provisions;
the evident design to be comprehensive; the text’s many references to the office of the
Presidency as an “office”; the seeming absurdity of the prospect of exclusion of the
offices of President and Vice President from triggering the disqualification fashioned
by the Radical Reconstruction Congress that drafted the Fourteenth Amendment; the
fact that the only legislative debate over the language discussing whether Section
Three inadvertently omitted the offices of President and Vice President rejected any
such suggestion; and the fact that no one ever suggested that the “under/of” difference
meant the presidency was not a covered office triggering Section Three, all convince
us that the natural conclusion is the correct one: Section Three includes in its cover-
age, or “triggering” language, insurrectionists who once served as President and Vice
President. And Section Three excludes disqualified insurrectionists from subse-
quently holding the office of either President or Vice President.

C. The Attempted Overthrow of the 2020 Presidential Election

We come finally to the urgent question of the day: How does Section Three
apply to the events of 2020-2021—the efforts by Donald Trump (and others) to over-
throw the results of the 2020 presidential election and install Trump as president for
another term, despite his loss to Joseph Biden?

Consider the overall package of events: the dishonest attempts to set aside
valid state election results with false claims of voter fraud; the attempted subversion
of the constitutional processes for states’ selection of electors for President and Vice
President; the efforts to have the Vice President unconstitutionally claim a power to
refuse to count electoral votes certified and submitted by several states; the efforts of
Members of Congress to reject votes lawfully cast by electors; and, finally, the foment-
ing and incitement of a mob that attempted to forcibly prevent Congress’s and the
Vice President’s counting of such lawfully cast votes, culminating in a violent and
deadly assault on the Capitol (and Congress and the Vice President) on January 6,
2021.

between ‘officers under’ and ‘officers of’ or who otherwise thought a president who participated in an
insurrection could not be disqualified under Section 3.’” John Vlahoplus, Insurrection, Disqualification,
and the Presidency, 13 Brit. J. Am. Legal Stud. (forthcoming), https://papers.ssrn.com/sol3/pa-
pers.cfm?abstract_id=4440157; see also Lynch, supra note 5, at 158-160 (collecting authorities sup-
porting the same point); Magliocca, Foreground, supra note 62, at 16 n. 48 (“My research . . . shows
that President Andrew Johnson repeatedly referred to himself as “the chief executive officer of the
United States”).

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 Taken as a whole, these actions represented an effort to prevent the lawful,
regular, termination of President Trump’s term of office in accordance with the Con-
stitution. They were an attempt to unlawfully overturn or thwart the lawful out-
come of a presidential election and to install, instead, the election loser as president.
They constituted a serious attempt to overturn the American constitutional order.
Does Section Three cover this conduct? Did these events constitute “insurrection” or
“rebellion” within the meaning of the Constitution? And if so, who all might be said
to have “engaged in” that conduct, or given “aid or comfort” to those who did? We
will consider those questions in turn.

1. The Question of Coverage: Insurrection and Rebellion

We begin with the general legal question whether the attempted overturning
of the result of the 2020 presidential election is covered by Section Three in any re-
spect. Do such efforts, in part or in whole, qualify as insurrection or rebellion, dis-
qualifying prior-oath-swearing persons who participated in such acts from future of-
fice? In our view, based on all the foregoing analysis, the answer is yes.

There are multiple arguments for how Section Three would apply to the events
of 2020-2021, but let us first focus on the events of January 6, 2021.400 These include
first the cluster of actions taken in assembling, encouraging, charging, and inciting
an armed (in part) mob, producing the January 6, 2021 attack on the Capitol, Con-
gress, and the Vice President. For some, importantly including Trump, these acts
would also include subsequent deliberate inaction against the January 6 attack—by
persons with duties and capacity to act to suppress, halt, or quell the insurrection in
progress—that effectively facilitated, permitted, aided, and encouraged such insur-
rectionary violence.

Overall, it seems to us to be quite clear that the specific series of events leading
up to and culminating in the January 6, 2021 attack qualifies as an insurrection
within the meaning of Section Three: “concerted, forcible resistance to the authority
of government to execute the laws in at least some significant respect.” 401 The large
group of people who descended upon, entered, and occupied the U.S. Capitol building
used force to prevent a key step in the constitutional transfer of power. The group
was in part coordinated, not merely a riot.402 Some members of the group were

400 In describing these events, we rely generally here and throughout on the public record assembled
by the House January 6th Committee. Final Report, Select Committee to Investigate the January 6th
Attack on the United States Capitol, H.R. 117-000 (117th Cong., 2nd Sess.). Of course, to the extent
that a potentially disqualified officer wished to prove that this public record was inaccurate or incom-
plete as relevant to them, they could attempt to do so in the relevant proceedings and to the relevant
decisionmaker. See generally supra Part II.B.
401 Supra Part IV.A.1. The fact that President Trump may have supported the insurrection, see infra

II.C.2.b, does not change this. In our system the President is not “the government,” and especially not
when Congress is carrying out a constitutionally mandated role in supervising the transfer of power.
402 See, e.g., January 6 Report, supra note 400, at 499-502, 530-531.

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armed,403 and many used force to breach the Capitol, to overpower law enforcement
there, and to effectuate their unlawful aim.404

Furthermore, it seems that, as a whole, the group’s goal—to the extent the
group had a specific objective in mind—was to disrupt the constitutional transfer of
power, by disrupting a necessary formal step in the constitutional process.405 The in-
vasion of the Capitol on January 6 was not simply a violation of the law (though it
was that of course). It was not merely a protest of a particular legal measure, but a
forcible prevention and disruption of it. And it was not the disruption of just any legal
measure, but of one that was itself central to the allocation of authority under our
Constitution. If this is a fair description of what happened on January 6, then that
day was something quite different from more common acts of protest, even disruptive
protest. January 6 was an insurrection.

To be sure, the events of January 6 itself—the attack on Congress and the

Capitol—did not remotely rival in overall magnitude, or in sheer carnage, the expe-
rience of the U.S. Civil War, where more than 600,000 people died. Still, considered
as discrete events, it is notable that more people died, and many more were injured,
as a result of the January 6, 2021 attack on the Capitol than died or suffered injuries
as a result of the attack on Fort Sumter. The events of January 6 match, in their
essential elements—concerted resistance to federal authority, serious attempts to
frustrate execution of national law, attacks on government officials and facilities, in-
timidation and violence—and arguably exceeded in their seriousness, the events of
the Whiskey Rebellion, Fries’ Rebellion, and other more limited historical insurrec-
tions. And at all events, it is less the magnitude or degree of disruption occasioned by
an insurrection than whether it fits within the broad meaning of Section Three, as
illuminated by evidence of its original meaning and historical understandings. As the
Prize Cases teach, not every insurrection or rebellion ripens into a full-fledged war.406
Most of the time, the authority of the state can nip it in the bud. But it is still an
insurrection.407

Our assessment of the events of January 6, specifically, as an “insurrection”

confirms the judgment made by public authorities: An act of Congress, to “award four

403 Id. at 640-642.

404 Id. at 646-647, 651-659.
405 Id. at 502-510, 521-530.
406 See supra Part IV.A.4.c.
407 What about other disruptive, disorderly, even violent protests during the same year? For in-

stance, the many such events that erupted during the summer of 2020 in the wake of the police kill-
ing of George Floyd? So far as we can tell, none of these were covered by Section Three. Of course
mere protest is not insurrection. Some of these protests devolved into riots, but even a riot is not nec-
essarily an insurrection. And even if some of them went further, amounted to “concerted, forcible re-
sistance to the authority of government to execute the laws in at least some significant respect,” and
met the definition of insurrection, they would seem to be insurrections against the state govern-
ments, not the United States, and thus outside the scope of Section Three. But of course if there were
other insurrections against the United States, Section Three applies to them all.

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congressional gold medals to the United States Capitol Police and those who pro-
tected the U.S. Capitol on January 6, 2021,”408 found that the events of January 6
constituted an insurrection. The text of the act contains an official finding: “On Jan-
uary 6, 2021, a mob of insurrectionists forced its way into the U.S. Capitol building
and congressional office buildings and engaged in acts of vandalism, looting, and vi-
olently attacked Capitol Police officers.”409 Another finding noted the historic magni-
tude and symbolic importance of that insurrection against democracy: “The desecra-
tion of the U.S. Capitol, which is the temple of American Democracy, and the violence
targeting Congress are horrors that will forever stain our Nation’s history.” 410 The
impeachment charges brought against President Trump as a result of January 6 were
equally explicit in concluding that the events of January 6 constituted an insurrec-
tion. A majority of the House of Representatives approved (232 to 197) an article of
impeachment charging then-President Trump with “incitement of insurrection” for
the events of January 6th.411 The Senate’s vote to convict Trump of this charge, while
falling short of the two-thirds majority required by the Constitution’s impeachment
process, constituted a substantial majority (57 to 43) of the Senate endorsing the
House’s charge and characterization. Majorities of both houses of Congress thus de-
termined—at least twice—that January 6th was an insurrection; and in the impeach-
ment proceedings majorities of both houses determined that Trump was responsible
for having incited that insurrection.412

Finally, there is an additional possibility that we should see the events of Jan-
uary 6, 2021, as just one part of a broader “rebellion” against constitutional govern-
ment, much like secession—actions seeking unlawfully to displace or replace the au-
thority of lawful constitutional government and substitute a constitutionally unau-
thorized governmental authority in its stead.

408 Pub. Law. 117-32 (Aug. 5, 2021), 135 Stat. 322.

409 Id. sec. 1(1). In the state Section Three proceedings against Marjorie Taylor Greene, supra notes
68-73 and accompanying text, the hearing officer cited this statute to conclude “Congress has charac-
terized the Invasion as an insurrection.” Initial Decision, Rowan v. Greene, No. 2222-582-OSAH-SEC-
STATE-CE-57-Beaudrot, at 9-10 (Georgia Office of State Administrative Hearings, May 6, 2022). The
hearing officer found it unnecessary to decide for himself, however, “Whether the Invasion of January
6 amounted to an insurrection.” Id. at 18.
410 Pub. Law. 117-32, sec. 1(4).
411 H. Res. 24 (117th Cong., 1st Sess. Jan 25, 2021).
412 For what it is worth, other scholars have also agreed that January 6th was an insurrection. See

Magliocca, Foreground, supra note 62, at 23 n.65 (“January 6th was an insurrection within the mean-
ing of Section Three, in part because the mob disrupted a constitutionally required act – the formal
counting of the electoral votes under the Twelfth Amendment –and prevent the lawful transfer of
authority.”); Vlahoplus, supra note 399, at 1 (referring to “The insurrection of January 6.”); Farah
Peterson, Our Constitutionalism of Force, 122 Colum. L. Rev. 1539, 1622-25 (2022); see also Hemel,
How-to Guide, supra note 5 (“[T]he constituted government in the United States is not any single
individual but the constellation of institutions that facilitate the lawful exercise and peaceful transfer
of power. A sitting president who seeks to subvert those institutions through violence is no less an
insurrectionist than a lower-level official or private citizen who seeks to do the same.”).

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 We acknowledge that applying the term “rebellion” to the events of 2020-2021
goes beyond the Civil War era dictionaries. The attempt to overturn the 2020 election
was neither an “open and avowed renunciation of the authority of the government,”
as Webster would have it, nor (outside of the insurrection of January 6) “the taking
up of arms” or “forcible opposition” as Bouvier would have it.413 It is not a perfect fit.

Nonetheless, consider the argument that the term “rebellion” could be used
more broadly to describe a coup d’etat seeking to overthrow the constitutional order—
including a so-called "bloodless” coup d’etat (where no force is used) and a successful
“self-coup” of the bloodless variety414 (where the existing unlawful regime commands
such force that it need not be used). Consider the following chain of logical steps: 1.
A military coup d’etat upending lawful government by use of force surely qualifies,
constitutionally, as a “rebellion.” It is literally an effort unlawfully to overthrow con-
stitutional government, by force. 2. It follows that a military coup d’etat upending
lawful government by show or threat of force should be treated the same way, even
though force was not used. 3. A military coup d’etat by the existing regime—a “self-
coup,” would seem, legally, to be the same thing. In such a case the regime does
not seize power, by show or threat of force; it retains power by show or threat of
force. But it is logically identical to situations #1 and #2. 4. A “bloodless" self-coup
against the lawful regime, where no force is used because none is needed, should be
treated the same as #3. Indeed, it seems fair to say that situation #4 is merely an
instance of situation #3. 5. The same self-coup attempt, but that styles itself as not
renouncing but instead as restoring or maintaining, the constitutional regime—but
that in truth seeks to overthrow or defeat that regime—logically should be treated
the same as #4. If one accepts this chain of reasoning, one might then fairly conclude
that the entirety of the course of conduct attempting dishonestly and unlawfully to
overthrow the 2020-2021 election constituted a “rebellion,” even though this might
stretch somewhat the dictionary definitions of the term.415

Calling the events of 2020 and 2021 “insurrection” or potentially even “rebel-
lion” might seem to some exaggerated or hyperbolic. It is not. It is simply being legally
precise and not shying away from difficult or upsetting consequences that flow from

413 See supra Part IV.A.2.

414 See generally Daniel J. Hemel, Self-Coup and The Constitution, 37 Const. Comm. (forthcoming
2023).
415 In similar fashion, we note that—at least at first—the purported “secession” of a state from the

Union was not universally acknowledged to be itself an act constituting “rebellion” as a legal matter
It too did not fit perfectly the standard dictionary definition (unless and until force was used or threat-
ened). But the logic of the matter led Lincoln—and Congress, and the Supreme Court—to conclude
that secession, in practical and legal terms, was a species of “rebellion” and legally to be treated as
such. See supra Part IV.A.4. As set forth in the text, the same logic suggests that conduct tantamount
to an attempted coup d’etat (including attempting to maintain a defeated incumbent president in of-
fice, dishonestly and unlawfully) may fairly be characterized, legally, as “insurrection or rebellion.”

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legal precision. We believe it is important to call the events of 2020 and 2021 by their
true legal names, their right names, unshielded by artful euphemism.416

2. The Question of Participation: “Engaged in” and “Aid or Comfort”

This brings us to the rubber-hits-the-road question: Who all, by virtue of their

personal, voluntary conduct, can be said to have “engaged in” insurrection or rebellion
in connection with the efforts to overthrow the result of the presidential election of 2020
and unlawfully maintain Donald Trump in office as President of the United States?
Who, while perhaps not a direct or indirect participant in insurrectionary or rebellious
conduct, provided “aid or comfort” to those who did?

As detailed at great—perhaps excruciating—length above, “engaged in” under

Section Three is properly understood to embrace a broad range of willful participatory
conduct. This includes, certainly, deliberate acts in the nature of planning, promot-
ing, encouraging, counseling, supporting, materially assisting, advancing, or facili-
tating activity or plots that can fairly be characterized, legally, as “insurrection” or
“rebellion.” And, as noted, in certain circumstances it might well include inaction
supporting insurrection. Finally, giving “aid or comfort” to insurrection or rebellion
arguably expands the range of acts of participation, support, and encouragement that
qualify as triggering Section Three’s disqualification.417

Who, then, engaged in such behavior?

a. General Principles Concerning Culpable Participation

Some applications of Section Three are factually straightforward. Others

might involve potentially more difficult questions of fact and proof concerning the
degree and nature of an individual’s voluntary and intentional participation in (i) the
overall plot and concrete efforts to overthrow the election and install Trump as pres-
ident re-elect; (ii) the assembly, instigation, and incitement of a mob to attack the
Capitol on January 6, 2021 to prevent certification of the election outcome; or (iii) the
willful failure to take action to suppress the attack on Congress while it was in pro-
gress.

As discussed in Part II, above, judgments concerning the application of the

legal standards of Section Three to specific individuals may and must be made by a
variety of public actors—all those whose responsibilities call for application of the
Constitution’s criteria for eligibility to hold office. The ultimate judgment will rest
with different actors and institutions in different circumstances: sometimes by state

416 For the sake of completeness, we add that we think the events of 2020-2021 probably do not rise to
the level of “treason” or “levying war” against the United States, though of course it is possible that
further investigation will reveal truly treasonous conduct that is not yet on the public record.
417 See generally supra Part IV.A.

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election officials; sometimes by presidential electors; sometimes by state and federal
executive branch officials; sometimes by the respective houses of Congress or by state
legislatures. In many cases, the judgment ultimately will fall to state and federal
courts, including the U.S. Supreme Court. Everybody in such positions is bound to
apply Section Three faithfully and enforce its commands rigorously.

That said, from our interpretation of Section Three’s broad sweep, it is clear
that at least two purported factual defenses are simply immaterial:

First, it is no defense that an individual might claim that his or her conduct
does not constitute having engaged in or supported “insurrection” or “rebellion” be-
cause the election was in fact stolen—that is, that Trump in fact won the election—
making it legitimate to “stop the steal.” The problem is that the premise is simply
false. Decisionmakers can and should act on the well settled factual understanding
that Joe Biden won, and Donald Trump lost, the election of 2020.418

Second, it likewise is no defense that an individual believed (even if mistak-

enly) that the election had in fact been stolen, or believed that their insurrectionary
conduct was somehow lawful. That one may have been deluded or deceived by disin-
formation does not excuse acts of insurrection or rebellion. And as the South’s seces-
sion and the resulting Civil War illustrate, a bogus and unsuccessful constitutional
theory does not excuse them either. In other words, there is no mistake-of-insurrec-
tion defense to Section Three.419 Acts intentionally done as part of what is in fact
and in law insurrection or rebellion are covered, irrespective of an individual’s
wrong subjective belief that no such insurrection or rebellion occurred, or the rea-
sons for such wrong belief.420

b. Section Three Disqualifies Donald Trump from Future Office

The most politically explosive application of Section Three to the events of Jan-
uary 6, is at the same time the most straightforward. In our view, on the basis of the
public record, former President Donald J. Trump is constitutionally disqualified from
again being President (or holding any other covered office) because of his role in the

418 See not only the January 6 Report, supra note 400, but also John Danforth, Benjamin Ginsburg,
Thomas B. Griffith, David Hoppe, J. Michael Luttig, Michael W. McConnell, Theodore B. Olson &
Gordon H. Smith, Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020
Presidential Election (2022), https://lostnotstolen.org.
419 This is consistent with principles of mens rea that distinguish knowledge of what one is doing from

knowledge of the proper legal characterization of what one is doing. See, e.g., Counterman v. Colorado,
600 U.S. ___, at 4 n.2 (2023).
420 Now what if the shoe were on the other foot? What if Trump had somehow succeeded in unlawfully

holding apparent office after January 20, 2021? Would comparable actions by Biden supporters have
constituted “insurrection”? We think not. The true facts matter. A rebellion against lawful government
is rebellion, but acts of counter-insurgency against an attempted coup d’etat are not.

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attempted overthrow of the 2020 election and the events leading to the January 6
attack.

The case for disqualification is strong. There is abundant evidence that Trump
deliberately set out to overturn the result of the 2020 presidential election result,
calling it “stolen” and “rigged”;421 that Trump (with the assistance of others) pursued
numerous schemes to effectuate this objective; that among these were efforts to alter
the vote counts of several states by force, by fraud, or by intended intimidation of
state election officials,422 to pressure or persuade state legislatures and/or courts un-
lawfully to overturn state election results,423 to assemble and induce others to submit
bogus slates of competing state electors,424 to persuade or pressure Congress to refuse
to count electors’ votes submitted by several states,425 and finally, to pressure the
Vice President unconstitutionally to overturn state election results in his role of pre-
siding over the counting of electors’ votes.426

Leading up to January 6, Trump repeatedly solicited, suborned, and pressured

Vice President Mike Pence to prevent the counting of the electoral votes in favor of
President-elect Biden.427 Not only that: Trump assembled a large crowd to march on
the Capitol and intimidate Congress and the Vice President into complying with his
wishes and thereby prevent the official counting of the votes of electors confirming
Trump’s defeat. Trump had announced on Twitter a protest to be held on January 6,
2021: “Big protest in D.C. on January 6th. Be there, will be wild!”428 According to
testimony amassed by the House’s January 6th Commission, Trump’s supporters in-
terpreted this as a call to arms, sometimes literally.429

Then there are the events of January 6 specifically. When January 6 arrived,
Trump delivered an incendiary address at the White House Ellipse to the crowd of
supporters he had effectively summoned to the Capitol to oppose what he had been
calling the “steal” of the election. Trump reiterated his false claim that he had in fact
won the election—“we won this election and we won it by a landslide”—but that the
Democrats and the media had “stolen” the election and “rigged” a false outcome.
“They rigged it like they’ve never rigged an election before,” he charged. “Make no
mistake, this election was stolen from you, from me and from the country. … This [is]
the most corrupt election in the history, maybe of the world.” The crowd was “gath-
ered together in the heart of our nation’s capital for one very, very basic and simple

421 And not that it matters, see supra Part IV.C.2.a, but it also appears that Trump knew that these
accusations were false. See January 6 Report, supra note 400, 100-01, 103-04, 203, 213, 789.
422 Id. at 202-203, 263-265; see also id. at 223-231,
423 Id. at 296-300.
424 Id. at 341-354.
425 Id. at 431.
426 Id. at 441-458.
427 Id. at 441-458.
428 Quoted in id. at 499.
429 Id. at 499-540.

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reason: To save our democracy.” Trump called on the crowd to march on the Capitol.
“Our country has had enough. We will not take it anymore and that’s what this is all
about. … We will stop the steal.” He urged the assembled mass of thousands, some of
whom Trump knew to be armed, to “fight like hell, and if you don’t fight like hell
you’re not going to have a country anymore.”430

Some might quibble that the speech is ambiguous.431 Not all of Trump’s ram-
bling address called literally for the crowd to “fight.” Some of his statements were
ambiguous and at one point he remarked that the crowd would be marching “peace-
fully and patriotically.”432 He never directly and literally called for attacking the Cap-
itol or the Vice President. Much of what might be thought incitement to lawlessness
was innuendo. Nonetheless, the general and specific message was that the election
had been stolen; that a constitutional fraud of colossal proportions and cataclysmic
consequence was in the process of being perpetrated on the nation; that the crowd
needed to take “strong” and direct action to protect the country; and that immediate
action was necessary to prevent Vice President Pence and Congress from ratifying
the unconstitutional election of an illegitimate president and doing irreparable dam-
age to the nation.

These ambiguities have given rise to a debate about whether Trump’s speech
did or did not cross the strict incitement threshold of Brandenburg v. Ohio.433 It could
well be that it did cross the line: Trump had deliberately assembled the mob of sup-
porters, steeled them to action, knew that they were ready to take immediate action,
and directed them to take it.434 But the most important thing is that the Brandenburg
question is beside the point. Section Three of the Fourteenth Amendment does not
enact the legal standard of Brandenburg v. Ohio. It enacts the standard of having
“engaged] in insurrection,” or given “aid or comfort” to those doing so, and qualifies,

430 For the quotations in this paragraph, see “Transcript of Trump’s Speech at Rally Before US Capitol
Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election-2020-joe-
biden-donald-trumpcapitol-siege-media-e79eb5164613d6718e9f4502eb471f27. See also id. (“And
again, most people would stand there at 9 o’clock in the evening and say, ‘I want to thank you very
much,’ and they go off to some other life. But I said something is wrong here, something is really wrong,
can’t have happened, and we fight. We fight like hell, and if you don’t fight like hell you’re not going
to have a country anymore.”).
431 See Michael Conklin, Capital Offense: Is Donald Trump Guilty of Inciting a Riot at the Capital?, 15

U. St. Thomas J.L. & Pub. Pol’y 483 (2022); see also Alan Z. Rozenshtein & Jed Handelsman
Shugerman, January 6, Ambiguously Inciting Speech, and the Overt-Acts Rule, 37 Const. Comm. at 2-
3, 20-21 (forthcoming 2023).
432 Transcript, supra note 430.
433 395 U.S. 444 (1969); compare Conklin, supra note 431, with Alexander Tsesis, Incitement to Insur-

rection and the First Amendment, 57 Wake Forest L. Rev. 971 (2022); see also Rozenshtein &
Shugerman, supra note 431, at 3 n.3 (citing these and other sources and describing this disagreement).
434 As Rozenshtein and Shugerman also emphasize, “Trump’s speech was accompanied by several overt

acts in furtherance of inciting an attack against the Capitol,” which they argue takes it outside of the
Brandenburg framework for that reason. Rozenshtein & Shugerman, supra note 431, at 38.

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modifies, or simply satisfies the First Amendment to the extent of any conflict be-
tween these constitutional principles.435 First Amendment or no, the speech was part
of Trump’s participation in and support for the insurrection.

Finally, as events unfolded and the violence began, Trump maintained si-
lence—and indeed deliberate indifference bordering on tacit encouragement—for
what had by that time clearly become a forcible insurrection. For three hours after
learning that his supporters had forcibly invaded the Capitol and were disrupting the
constitutional process, Trump took no action to urge them to leave, despite being
begged to do so by his advisors and despite having a constitutional duty to take care
that the laws be faithfully executed.436 During this same period, while the insurrec-
tion was in progress and after the Capitol had been breached, he again condemned
Vice President Pence for not “hav[ing] the courage to do what should have been done
to protect our Country and our Constitution,”437 a statement that the January 6th
Commission concluded was “a statement that could only further enrage the mob” and
that in fact apparently did so.438 Once Trump finally did – after several hours and
with great reluctance—direct his supporters to leave the Capitol, they quickly dis-
persed.439

This culpable inaction—failing to intervene to stop an insurrection in progress,

declining to act to arrest a violent uprising, despite having both the capacity and
responsibility to intervene—is another crucial part of Trump’s responsibility for the
January 6 insurrection. Section Three reaches a broad range of conduct providing
meaningful assistance to or support for acts of insurrection or rebellion performed by
others, even quite passively.440 Sitting by and doing nothing—declining to act to ar-
rest a violent uprising, despite possessing the material capacity and legal responsi-
bility to intervene—might qualify. Additionally and equally important, Trump’s de-
liberate inaction renders his January 6 speech much more incriminating in hindsight,
because it makes it even less plausible (if it was ever plausible) that the crowd’s re-
action was all a big mistake or misunderstanding.

435 See supra Part III.D (arguing that Section Three is not limited by the free speech principles of the
First Amendment).
436 January 6 Report, supra note 400, at 577-606.
437 Donald J. Trump, Tweets of January 6, 2021, available at https://www.presidency.ucsb.edu/docu-

ments/tweets-january-6-2021
438 January 6 Report, supra note 400, at 577.
439 Even as he urged peace in a video to the insurrectionists (“we can’t play into the hands of these

people. We have to have peace”) he continued to express affection for them (“So go home. We love you.
You’re very special.”) and to reiterate that the “election was stolen from us.” Donald J. Trump, Vide-
otaped Remarks During the Insurrection at the United States Capitol, at https://www.presi-
dency.ucsb.edu/documents/videotaped-remarks-during-the-insurrection-the-united-states-capitol.
Later that night he tweeted: “These are the things and events that happen when a sacred landslide
election victory is so unceremoniously & viciously stripped away from great patriots who have been
badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” Trump
Tweets, supra note 437.
440 Cf. notes 345-346 and accompanying text (describing the exclusion of Senator-elect Phillip Thomas).

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 Taking these events as a whole, and judging them under the standard of Sec-
tion Three, it is unquestionably fair to say that Trump “engaged in” the January 6
insurrection through both his actions and his inaction. Officials—administrators,
courts, legislators—whose responsibilities call upon them to apply Section Three
properly and lawfully may, indeed must, take action within their powers to preclude
Trump from holding future office,

Moreover, if one accepts the broader argument that the entire campaign to
overthrow the results of the 2020 election was a form of constitutional rebellion,441
then Trump’s complicity is even more obvious—as the leader, motive force, and chief
attempted perpetrator of that rebellion. Indeed, it would not be going too far to say
that Trump, having previously sworn a constitutionally required oath to preserve,
protect, and defend the Constitution of the United States knowingly attempted to
execute what, had it succeeded, would have amounted to a political coup d’etat
against the Constitution and its system of elections and overturn the results of the
constitutional process, in order to maintain himself in office as President contrary to
law. If that itself constitutes “rebellion” against the Constitution, Trump’s overall
course of conduct disqualifies him under Section Three, even apart from the specific
incitement to storm the Capitol on January 6.

The bottom line is that Donald Trump both “engaged in” “insurrection or re-
bellion” and gave “aid or comfort” to others engaging in such conduct, within the orig-
inal meaning of those terms as employed in Section Three of the Fourteenth Amend-
ment. If the public record is accurate, the case is not even close. He is no longer eligi-
ble to the office of Presidency, or any other state or federal office covered by the Con-
stitution. All who are committed to the Constitution should take note and say so.

c. Beyond Trump

Donald Trump is at the top of the list of Section Three disqualifications, but
the list does not end with him. The public record to date shows many others who are
or may be connected to either the insurrection of January 6 or to a possible broader
rebellion. These include government lawyers, executive branch officials, state office-
holders, and even members of Congress. It is not for us to definitively say who all
these may be—that, as we have said, is ultimately the responsibility and judgment
of all those whose public duties call upon them to apply the Constitution’s provisions
concerning officeholder qualifications. But to see why this responsibility is urgent,
consider the following categories:

Consider first those who marched with—who rose up with—the January 6 mob
itself. Some of these folks, such as Couy Green of New Mexico, and Derrick Evans of
West Virginia, have already been stripped of or resigned from their state offices, as

441 See supra notes 413-415 and accompanying text.

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Section Three contemplates.442 They present the easiest case of “engag[ing] in . . .
insurrection.” Open and shut.

But many more cases follow. Consider those who were not part of the uprising
itself, but who provided planning, encouragement, assistance, or other material sup-
port to those who rose up on January 6. Recent proceedings against U.S. Represent-
atives Biggs, Gosar, and Greene, for instance, raise this as a serious possibility. 443
Pennsylvania State Senator Doug Mastriano—who is also a retired military officer
and recent gubernatorial candidate—is said to have transported busloads of people
to what became the insurrection and “was near the Capitol during the attack.”444
Former New York City Mayor Rudolph Giuliani worked extensively to overturn the
election, and likewise riled the mob at the Ellipse on January 6.445 Trump Chief of
Staff (and former legislator) Mark Meadows planned and organized parts of the Jan-
uary 6 rally and apparently also “directed that [Giuliani] be allowed to speak” to the
crowd.446 These current and former officeholders are also subject to serious challenge
under Section Three.

And if one entertains the argument that the entire course of conduct to over-
throw the 2020 election was a broader rebellion,447 the list just grows longer and
longer. According to the public record: Former National Security Advisor General Mi-
chael Flynn proposed a plan to seize voting machines, invalidate election results, and
rerun the vote in swing states won by Biden.448 Would-be Trump electors (some of
whom came from state political offices covered by Section Three) met on December
14 even in states where Biden’s electors had been chosen, thus laying the groundwork
for Trump’s schemes.449 Assistant Attorney General Jeffrey Clark sought to use the
power and authority of the Department of Justice to fraudulently upend state election
results.450 At least one member of Congress pressed for the removal of more senior
Department of Justice officials who opposed Clark’s scheme, and lobbied for the ap-
pointment of Clark as Acting Attorney General, thus providing aid and comfort.451
These officials, too, would be subject to challenge.

We could go on, but we have made the point: All persons who betrayed their
earlier constitutional oaths by subsequently engaging in conduct (in any of a number

442 See supra notes 85-88, 111-113 and accompanying text.

443 See supra notes 68-80 and accompanying text.
444 January 6 Report, supra note 400, at 294. Such a claim was brought against Mastriano in federal

court but dismissed on jurisdictional grounds. See supra note 89.

445 January 6 Report, supra note 400, at 536, 577, 581, 593-594, 608; https://www.rev.com/blog/tran-

scripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat
446 January 6 Report, supra note 400, at 533, 535-536.
447 See supra notes 413-415 and accompanying text.
448 January 6 Report, supra note 400, 222.
449 January 6 Report, supra note 400, at 352-353. Several of these would-be electors previously held

state and local offices, and so are covered by Section Three.

450 January 6 Report, supra note 400, at 50.
451 Id. at 50 (discussing actions of Pennsylvania U.S. Representative Scott Perry).

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of forms) directed at overthrowing the result of a lawful presidential election or sup-
porting an attack on Congress and the Capitol, should face serious inquiry under
Section Three. If they try to hold, retain, re-obtain, or seek public office, their eligi-
bility for such positions should be stringently scrutinized. That inquiry should be con-
ducted by every relevant level of government, from state election officials to the halls
of Congress, to the courts throughout the country. In many cases we may not yet even
know the full extent of the participation and support for acts of insurrection or rebel-
lion in 2020-2021. But we must find out.

Taking Section Three seriously as part of our nation’s operative, ongoing fun-
damental law means that such inquiries are constitutionally necessary. Indeed, they
are constitutionally required. Taking Section Three seriously, as binding constitu-
tional law, means faithfully ascertaining and fearlessly applying the objective, origi-
nal meaning of its words and phrases, understood in their historical context, whether
we like that meaning or not, and tirelessly following the logic of the text’s meaning to
its fair conclusions. The upshot of doing so, we think—the consequence of adhering
to constitutional principle—may well be the disqualification from public office of a
great many more individuals than is generally recognized. In many cases, the inquiry
has not yet begun. It is past time to start the reckoning.

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Conclusion

Despite its long slumber, Section Three of the Fourteenth Amendment is alive
and in force. It remains fully legally operative. It is constitutionally self-executing—
that is, its command is automatically effective, directly enacted by the Constitution
itself. And it is sweeping: It sweeps over earlier and inconsistent constitutional pro-
visions. It sweeps in a broad range of conduct attacking the authority of the United
States. And it sweeps in a broad category of former oath-swearing officeholders
turned insurrectionists or aiders and comforters of insurrection or rebellion. It is en-
forceable by anybody whose duties provide occasion for judging legal eligibility for
office. Indeed, each of these actors has a duty to faithfully apply Section Three. All
possess legitimate constitutional interpretive authority to construe and apply this
constitutional prohibition, many of them independently of other actors, including
courts.

All of this has obvious, important, and immediate legal implications.

We the People should honor and vigorously enforce this important provision of
our Constitution. It should not be allowed to become a dead letter from disuse. Its
purpose, while inspired by specific historical events, is one of general and continuing
importance. The idea that men and women who swore an oath to support the Consti-
tution as government officials, but who betrayed that oath by engaging in or abetting
acts of insurrection or rebellion against the United States, should be disqualified from
important positions of government power in the future (unless forgiven by superma-
jorities of both houses of Congress) remains a valid, valuable, and we think vital pre-
cept. Disqualifying candidates and official from office is not something to be done
lightly, but Section Three was not enacted lightly. Section Three remains part of our
Constitution, part of our nation’s fundamental law. If we honor the Constitution, we
must honor Section Three of the Fourteenth Amendment.

That means that those who possess the power and duty to apply and enforce
Section Three have a constitutional responsibility to do so, fairly but vigorously. If
state election boards or secretaries of state determine that a candidate for state elec-
tive office or a candidate seeking to represent that state in Congress is constitution-
ally disqualified from holding that office, those state authorities should exercise the
state-law powers they possess to remove ineligible candidates from the ballot. If the
House or Senate determines that a person elected to serve as a member of such body
is constitutionally disqualified from holding such a position, they should refuse to
seat or expel that person. And if a candidate for President, or an already-elected Pres-
ident, is constitutionally disqualified from office by Section Three, then that disqual-
ification should be enforced by state election officials, by electors, by Congress
through the impeachment process, and by the Vice-President, cabinet and, Congress
in carrying out the Twenty-fifth Amendment. In any and all these situations, and
more, where the enforcement of Section Three’s constitutional disqualifications is

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properly presented to the judiciary in a case over which a court possesses jurisdiction,
it is the constitutional duty, province, and responsibility of federal and state judges
exercising the judicial power to faithfully apply and enforce Section Three according
to its terms.

No official should shrink from these duties. It would be wrong – indeed, argu-
ably itself a breach of one’s constitutional oath of office—to abandon one’s responsi-
bilities of faithful interpretation, application, and enforcement of Section Three. It is
wrong to shrink on the pretext that some other officials may or should exercise their
authority—as if one’s own constitutional obligations cease to exist if others fail to act.
And it is wrong to shrink from observing, and enforcing, the Constitution’s commands
on the premise that doing so might be unpopular in some quarters, or fuel political
anger, or resentment, or opposition, or retaliation. The Constitution is not optional
and Section Three is not an optional part of the Constitution.

Importantly, it is also wrong to shrink from applying Section Three on grounds

of “democracy,” whether on the premise that Section Three should be ignored or nar-
rowly construed because it limits who voters may choose, or on the premise that only
the voters should enforce Section Three. It is true, as we have said, that limiting
democratic choice is not something to be done lightly, but it is something the Consti-
tution does, and for serious reasons.452 The Constitution cannot be overruled or dis-
regarded by ordinary election results. (And we note that there is particular irony in
invoking democracy to shrink from applying Section Three to the insurrectionists of
2020-2021, who refused to abide by election results and instead sought to overthrow
them.)453

Finally, we believe it would be wrong for courts to refuse to decide cases, oth-
erwise lawfully within their jurisdiction, concerning Section Three on the pretense
that such matters are “political questions.” Outside of certain exercises of power to
exclude, expel, or impeach and try, committed to each House’s judgment, Section
Three is enforceable by the judiciary as well as by other officials.454 Section Three’s
terms embody rules and standards, enforceable as any other constitutional provision
is enforceable. There is no freestanding judicial power to abstain from enforcing the
Constitution whenever doing so might be difficult or controversial.

452 See Magliocca, Foreground, supra note 62, at 14-24 (arguing at length that “the democracy canon
in a seductive but mistaken way of reading Section Three of the Fourteenth Amendment,” and that it
“elevates a background constitutional principle in a way that is inconsistent with the text, purpose,
and history of Section Three”).
453 See William Baude, The Real Enemies of Democracy, 109 Cal. L. Rev. 2407, 2418-20 (2021) (“The

real enemies of democracy, at a more fundamental level, are those who try to ignore the rules of the
game after they have already lost it. This past election, that means the real enemies of democracy
were President Donald Trump and those who fought for him.”).
454 Supra note 95.

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 We think that if these constitutional duties are taken seriously, there is a list
of candidates and officials who must face judgment under Section Three. Former pres-
ident Donald Trump is at the top of that list, but he is not the end of it. As we have
said, it is not for us to say who all is disqualified by virtue of Section Three’s consti-
tutional rule. That is the duty and responsibility of many officials, administrators,
legislators, and judges throughout the country. Where they are called on to decide
eligibility to office, they are called on to enforce Section Three, applying the Consti-
tution’s legal standard to the facts before them in a given instance. Our point is to
emphasize Section Three’s continuing force, and broad sweep.

At all events, if a President or former President of the United States; a current

or former officer of the federal executive branch; a Member or former Member of Con-
gress; a current or former state legislator or state executive official; or a current or
former federal or state court judge, planned, supported, assisted, encouraged, en-
dorsed, or aided in a material way those who engaged in the insurrection of January
6, or otherwise knowingly and willfully participated in a broader rebellion against
the constitutional system, such persons are constitutionally disqualified from office.
In such situations, Section Three’s constitutional disqualifications can, should, and
must be carried out.

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