Background as Foreground: Section Three of the Fourteenth Amendment and January 6th

15 Pages Posted: 31 Dec 2022 Last revised: 25 Jan 2024

See all articles by Gerard N. Magliocca

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: December 21, 2022

Abstract

The fallout from the January 6th insurrection may require the Supreme Court to interpret Section Three of the Fourteenth Amendment for the first time. This Symposium Essay argues that in interpreting Section Three the Court must avoid an error made in its earliest Fourteenth Amendment cases. The error was the Court’s elevation of background constitutional principles, most notably states’-rights, at the expense of the Fourteenth Amendment’s text and purpose. Chief Justice Salmon P. Chase made a similar mistake, in his capacity as a Circuit Justice, when he explained in Griffin’s Case that the text of Article One and the Fifth Amendment support a restrictive reading of Section Three as not self-executing.

Today the Court is at risk of making a related error by reading Section Three narrowly in the name of democracy. Democracy is a bedrock constitutional principle. But democracy provides the wrong framing for the January 6th disqualification cases given Section Three’s text and purpose. The Fourteenth Amendment’s background must not control its foreground again.

Suggested Citation

Magliocca, Gerard N., Background as Foreground: Section Three of the Fourteenth Amendment and January 6th (December 21, 2022). 25 U. Pa. J. Const. L. 1059 (2023), Available at SSRN: https://ssrn.com/abstract=4306094 or http://dx.doi.org/10.2139/ssrn.4306094

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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