The Sweep and Force of Section Three

142 Pages Posted: 14 Aug 2023 Last revised: 26 Feb 2024

See all articles by William Baude

William Baude

University of Chicago - Law School

Michael Stokes Paulsen

University of St. Thomas School of Law

Date Written: February 19, 2024

Abstract

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

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation.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

Keywords: Constitution, Fourteenth Amendment, Section Three, Insurrection, Rebellion

Suggested Citation

Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (February 19, 2024). University of Pennsylvania Law Review, Vol. 172, p. 605, Available at SSRN: https://ssrn.com/abstract=4532751

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Michael Stokes Paulsen

University of St. Thomas School of Law ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4831 (Phone)

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