Counter-argument: would slavery only be abolished if Congress passed laws to enforce the 13th Amendment?
Further comment: the enforcement clause is s. 5 of the 14th Amendment:
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 5 applies to the entire 14th Amendment, including the due process and equal protection clauses in s. 1. Those provisions are self-enforcing; no federal legislation was needed for Brown v Board of Education, for example.
If s. 1 of the 14th Amendment is self-enforcing through the courts, why would s. 3 of the 14th Amendment need congressional legislation before the courts can enforce it?
Which didn’t stop this Court from overturning the Civil Rights Act, which enforced the provisions of that article.
As far as I can tell, and this may be wrong, the slaves in remaining slave states, apparently just Kentucky and Delaware, auto-emancipated as soon as they heard the 13th amendment had been ratified, as it was in December 1865. I’m presuming, or hoping, there were free Blacks around who promptly gave them the news. But until congress passed the 1867 Peonage Act, maybe there was some ambiguity as to the legal basis for stopping a long-time slaveholder from acting like slavery was still legal. Is there case law on this?
I do agree that the 14th amendment is self-executing. But SCOTUS is free to give whatever justification they want for their rulings, however well or poorly reasoned. So who knows what they will say?
It also had a time limit apparently. We shall see.
The argument that everyone knows s. 3 was really only aimed at Confederate soldiers, so it doesn’t have any effect to future insurrections, strikes me as being similar to the critique of the equal protection that I’ve seen, that everyone knows that the equal protection clause was really only aimed at giving rights to black people, so shouldn’t have the expanded scope for women, gays, etc. that the courts have given it.
To my read, neither s. 1 nor s. 3 has a textual limit to its application to the particular situation after the Civil War. It would have been very easy to write s. 3 more narrowly, and make it clearly apply to the late unpleasantness, nothing more.
But there is no language there to that effect.
And, the nature of constitutional provisions is that they tend to be passed in general terms, for the future as well as the present.
To put it another way, if you had asked the drafters of s. 3 whether it would apply to a future armed insurrection against the United States, would you expect them to say, “Oh no, we’re just worried about this insurrection. No problem with future insurrectionists.”
Or would you expect them to say, “Yes, having seen what can happen if an insurrection gets going, we’re setting an ongoing prohibition on future insurrectionists getting into the government.”
I’d expect them to say the latter; but I genuinely don’t get how it’s relevant. By which I mean: we can see what they wrote, right? They could’ve, but didn’t, limit it to the insurrection that had just taken place. If they meant it to apply to future insurrectionists, as I believe they did, then they wrote the law accordingly; but if it were the case that they didn’t mean for it to so apply, then — oopsie, they still wrote the law that way.
There’s a provision in the Constitution about presidential eligibility and the age of 35. If you were to ask me whether I’d expect for them to say they meant that someone could become president at 12, I’d say, uh, no, I don’t think they meant that — but in the unlikely event that they had meant that, I’d still say, well, oopsie: they wrote the law the other way.
I think it’s relevant because the contrary argument is being made, that s. 3 only applies to the Civil War. To my mind, the onus is on someone advancing that argument to explain how the general language of s. 3 should actually be interpreted narrowly, and that thought experiment helps to frame the issue.
The problem with purely BS arguments is there’s so many that they can often win in the court of public opinion simply through Gish Galloping.
You’re quite right that a moment’s thought says “s.3 is for Confederates only.” doesn’t even pass the laugh test. The problem is the 10 minutes of cajoling and frame-setting it takes to get some people to give that moment’s thought.
If we are going to take a purely literal approach to Section 3, there is nothing stopping an insurrectionist from running. Literally, all that Trump should be stopped from doing is to “hold any office.” Nothing in there about running, or being elected. Heck, literally, Roberts can swear him in again. All that an insurrectionist can’t do is hold onto the slippery pole of office.
And, conceivably, SCOTUS can rule that way! They can say there’s no reason to decide whether Donald is an insurrectionist unless Roberts swears him in again!
This would IMHO be unfair to swing voters. They wouldn’t know who on the GOP ticket (Trump or veep) was the real potential president. But maybe SCOTUS will rule just that way. Because if you go by the other conservative interpretation principle – original intent – Trump is just the kind the Radical Republicans were hoping to stop from gaining office. And I doubt the current SCOTUS wants to stop Trump.
If the framers of the fourteenth amendment came back, and was shown Trump’s Central Park Five execution ad, they’d ask why Trump wasn’t put in prison for violating their 1871 Ku Klux Klan Act long ago. Those guys were, by temperament, the purest never-Trumpers.
Outstanding analysis! You have an excellent take, which answers some of the questions I’ve posed (e.g., how did anyone get removed without Congress’s intervention, if that clause meant Congress alone can enforce).
Adjacent news:
Someone has filed a lawsuit to kick House Rep Scott Perry (R-PA) off the ballot in PA.
As President Obama almost said:
Insurrections have consequences.
Here’s a link to a story about it and the lawsuit.
The Republicans are idiots. Sorry, should have spoilered that.
If they were smart and given this is a one-time event, they should pas legislation under the 14th Amendment making disqualification through insurrection require such a high standard that there is no way Trump’s opponents could meet it.
And how would they do that with the current senate and Biden’s veto?
Just another reason to impeach him for … reasons.
One-time, as in one continous event ongoing for the last three and a half years and showing no signs of stopping?
One time as in 2024 election … well maybe 2028 too.