[Note: This is the fourth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first three essays can be found here, here, and here.]
Some critics have made the argument that Part Three can not or shouldn’t be used to constitutionally disqualify an individual from workplace for having engaged in rebel or riot with out that individual first having been charged and convicted of the statutory federal crime of rebel, beneath 18 U.S.C. §2383.
Professor Michael McConnell seems to have been the primary to make this argument, in a post on this blog shortly after we first posted our draft article on SSRN in August, 2023. As McConnell put it:
Congress has enacted a statute, 18 U.S.C. §2383, which covers participation in riot or rebel, and which gives that these discovered responsible “shall be incapable of holding any workplace beneath the US.” This mode of enforcement has been enacted by the entity entrusted with accountability to implement the Fourteenth Modification; it proceeds by way of the atypical course of prosecution by the manager, trial by a court docket, choice by a jury, and enchantment to appellate courts, with due course of at each step. It’s vital that the Division of Justice has prosecuted lots of of individuals for his or her involvement within the January 6 incursion on the Capitol, however has not charged anybody, together with Trump, with rebel beneath this or some other statute.
Others have echoed this suggestion. The Wall Avenue Journal in September 2023 editorialized against making use of Part Three to disqualify Trump, saying that “[i]t is unquestionably related that Mr. Trump hasn’t been charged with rebel beneath 18 U.S.C. Part 2383.” Trump’s brief on the merits in the Supreme Court in Trump v. Anderson asserts (pp. 38-40) that Part Three can solely be enforced following a legal conviction beneath 18 U.S.C. §2383. No less than two amicus briefs supporting Trump make the identical declare.
With all due respect, the argument is legally meritless, high to backside. It’s fallacious as a matter of the textual content, historical past, and construction of Part Three. Nevertheless it is also fallacious on the main points of §2383 itself.
Start with Part Three. The textual content of Part Three nowhere comprises or references any requirement of criminal-law conviction as a prerequisite to, or situation of, Part Three’s operation. To learn such a requirement into Part Three is to make up one thing that’s not there. Reasonably, as we put it in our original article, Part Three’s “disqualification, the place triggered, simply is.” It parallels the Structure’s different {qualifications} for workplace, resembling age, residency, and citizenship, none of which after all requires a legal trial.
The historical past of Part Three nowhere displays a necessity for legal trials. Certainly, Part Three was enacted as an various to widespread prosecutions for treason or different crimes – prosecutions that had been thought each virtually troublesome and needlessly punitive. After Part Three was enacted it instantly disqualified many former Accomplice officers from holding workplace; none of those individuals was ever criminally prosecuted (not to mention convicted) of the federal crime of rebel, regardless that the offense was on the books on the time. Early reported state judicial circumstances holding former Accomplice rebels disqualified from workplace didn’t require or recommend the necessity for prior criminal-law conviction. And even Chief Justice Chase, in Griffin’s Case, who did fairly wrongly recommend that solely Congress may implement Part Three, by no means prompt that the enforcement should take the type of legal prosecutions and legal trials. If this argument had been thought non-frivolous on the time, certainly Chase would have been among the many first to make it.
And the construction and logic of the Structure confirms that there isn’t a want for legal regulation prosecution both. The existence of legislative energy in Congress “to implement” the Fourteenth Modification (together with by way of legal regulation) doesn’t imply that Part Three, or different elements of the modification, lie dormant till Congress acts. Congress doesn’t deliver the Fourteenth Modification to life; it has energy to add its enforcement arm to the modification’s self-executing authorized drive, not subtract from it. Even when the criminal-law rebel statute had been believed to have been enacted as a mode of enforcement of Part Three, it’s fundamental that such a statute can not restrict or slender the which means of a provision of the Structure.
These factors must be sufficient to finish the matter, however this wrongheaded objection is so persistent, so insidiously deceptive, that it’s value saying extra.
In actual fact many of those invocations of 18 U.S.C. §2383 misunderstand §2383 itself. The federal legal statute in query was not enacted as a tool for imposing Part Three. As we set forth in our original article (see pp. 82-84), the legal prohibition of rebel, now codified at 18 U.S.C. §2383, was enacted in 1862 – in the midst of the Civil Battle, as Part Two of the “Second Confiscation Act” – a number of years earlier than the drafting of the Fourteenth Modification. The Act made it a criminal offense to “incite, set on foot, help, or interact in any riot or rebel towards the authority of the US or the legal guidelines thereof” or to “give help or consolation thereto” or to “interact in or give help and luxury to” any “present riot or rebel.” As such, the statute was actually a precursor of a few of the phrases and ideas later employed in Part Three, and to that extent a helpful marker in understanding the which means of the same phrases utilized in Part Three. (The identical is true, we argue within the article, for different provisions of the Second Confiscation Act.) As we state within the article, the Second Confiscation Act “is virtually a glossary of phrases utilized in Part Three of the Fourteenth Modification proposed by Congress simply 4 years later.” (Ms. at 82.)
However it’s fairly merely fallacious – certainly, a fairly embarrassing error of historic reality – to determine this criminal-law statute as (in McConnell’s phrases) Congress’s chosen “mode of enforcement” of Part Three, pursuant to Congress’s legislative energy beneath Part 5 to implement the provisions of the Fourteenth Modification. That will have been unattainable. The provisions of the Fourteenth Modification didn’t exist on the time the statute was adopted. The notion that the legal statute punishing rebel was designed as a “mode” of effectuating Part Three is solely ahistorical – somewhat like saying that Lincoln’s election was attributable to his assassination.
Part Three is one thing Congress selected to add to the Structure on high of the already-existing federal crime of rebel, not the opposite method round. To carry a brand new constitutional provision hostage to a pre-existing federal statute would strangle the all-important energy of constitutional modification. The concept that Part Three requires a legal conviction for rebel earlier than its constitutional rule could be utilized has no authorized advantage no matter.
Every of the commenters, pundits, and advocates above has misunderstood or ignored these fundamental factors.
As famous above, Professor McConnell (who has since shifted his place) was an early proponent of the speculation that the federal legal rebel statute must be understood as Congress’s chosen “mode of enforcement” of Part Three. It was not. Equally, the brief of former attorneys general Meese, Mukasey, and Barr, professors Calabresi and Lawson, and two organizations, argues that “[t]he massive drawback for these advocating for the Colorado choice is that President Trump has not been convicted of violating Part 2383,” which they wrongly describe as a part of “the Enforcement Act of 1870.” It was not; they’ve confused §2383 with a special legal prohibition which was repealed in 1909 (as we clarify in footnote 54 of our manuscript).
And the amicus brief of U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress makes the identical declare in an much more emphatic, and embarrassing style, arguing that Part Three should not be self-executing as a result of if it had been “there would have been no purpose for Congress to state expressly in §2383 {that a} conviction for rebel would lead to disqualification from holding sure places of work. Below Baude and Paulsen’s view, Part 3 would have already got routinely barred such people from workplace.” Not in 1862, when the legal statute was first enacted! Once more, that is like saying that there would have been no purpose for Congress to enact the First Modification to the Structure in 1789 as a result of fashionable precedents resembling New York Instances v. Sullivan already protected the liberty of speech.
Within the Supreme Court docket, Trump’s legal professionals provide yet one more variation of this argument, claiming that “Part 3 Must be Enforced Solely Via Congress’s Chosen Strategies of Enforcement.” They don’t seem to disclaim that the Structure itself is self-executing and could be utilized by state actors. However they nonetheless argue that Congress has restricted enforcement of Part Three to legal prosecution beneath the statute, describing 18 U.S.C. §2383 because the “unique technique of imposing Part 3.” However once more, that’s not what 18 U.S.C. §2383 was and that’s not how Part Three works or has ever labored. It’s an argument that even Salmon Chase didn’t consider, and albeit for good purpose.
McConnell has, much more recently, taken a new stance. He now concedes that legal prosecution for rebel is not required for disqualification beneath Part Three: “I’m not saying that conviction beneath 18 U.S. Code §2383 is a authorized prerequisite to disqualification beneath Part Three,” he writes. Nonetheless, McConnell argues, the absence of a federal legal prosecution for rebel beneath the statute implies that the occasions resulting in and culminating within the assault on the Capitol of January 6, 2021 should not be an rebel inside the which means of the Structure both: “The very best purpose to be skeptical that the occasions of January 6 had been an ‘rebel’ within the authorized sense is that not one of the January 6 defendants have even been charged with, not to mention convicted of that crime. Riot is a criminal offense beneath 18 U.S. Code §2383, however not a single participant within the January 6 unrest has been charged with rebel.”
However as soon as one concedes, as McConnell now does, that criminal-law prosecution and conviction are usually not conditions for making use of Part Three, it isn’t in any respect clear why we must always draw factual inferences from the absence of that prosecution. The operation of a legally distinct criminal-law statute beneath which an individual would possibly or won’t be prosecuted doesn’t outline or restrict the which means of a constitutional disqualification provision that’s not keyed to prosecutions or convictions beneath the statute. (In his amicus brief, Ilya Somin provides the instance of “O.J. Simpson, who was famously acquitted of legal prices within the homicide of his ex-wife Nicole Brown Simpson, and Ron Goldman, however later misplaced a civil case filed by the victims’ households.” As Somin observes: “The legal and civil circumstances had been distinct, and the results of one didn’t decide that of the opposite.”)
McConnell’s argument appears to imagine that federal prosecutors are so persistently aggressive of their charging selections that if there have been any probability that January 6 was an rebel beneath any definition they might have introduced prices beneath §2383. However the fact is that §2383 could be very not often charged beneath any circumstances, that prosecutors have complicated motivations particularly in high-profile circumstances, and that legal trials are usually not the identical as civil-law disqualifications from workplace. In any occasion, the which means of the Structure is to be decided by goal interpretation of the Structure’s textual content, historical past, and construction, not by deferring to the charging selections of Twenty first-century legal prosecutors.
Whether or not the occasions of January 6, 2021 had been an rebel, and whether or not Donald Trump engaged in that rebel, are severe questions of constitutional regulation – questions that we addressed in our authentic article, and that had been addressed in a five-day trial in Colorado in addition to a prolonged opinion on enchantment. Nevertheless it belittles and misunderstands the Structure to assume that solely a federal prosecutor and legal jury can reply such questions. And it’s merely a historic fabrication to recommend that Congress or the Structure has ever made a legal prosecution a situation for imposing the Structure.