The Constitution won’t save Greene and Cawthorn

If after a due process hearing Rep. Marjorie Taylor Greene (R-Ga.) or Rep. Madison Cawthorn (R-N.C.) are found to have engaged in insurrection against the United States by attempting to prevent Vice President Mike Pence from counting state-certified electoral votes on Jan. 6, 2021, they are disqualified from seeking reelection under Section 3 of the 14th Amendment. Both incumbents are confronting challenges to their eligibility for reelection. 

Section 3 is self-executing, meaning it takes effect immediately and without the need for congressional intervention. 

It adds a constitutional requirement for holding federal office, namely, refraining from insurrection or rebellion against the United States after taking an oath to support the Constitution. All other constitutionally prescribed limits on holding federal office are self-executing: the two-term limit on the presidency; age and citizenship requirements for the House, Senate, and president; and residency requirements for the House and Senate. There is no policy or textual reason for Section 3 to be interpreted differently.   

Indeed, the text argues in favor of self-execution. Section 3 provides that “Congress may, by vote of two-thirds of each House, remove such disability [from holding public office].” That language presumes a preexisting disability imposed by Section 3 without further congressional action.  

Moreover, constitutional prescriptions are inherently shielded from the legislative process, a precept that contradicts an argument for requiring federal legislation to implement Section 3. Constitutional rules do not depend on the outcome of elections, as Justice Robert Jackson underscored in 1943 in West Virginia State Board of Education v. Barnette. 

Additionally, the 14th Amendment was one in a triptych of Civil War amendments. The 13th Amendment prohibition of slavery and the 15th Amendment prohibition of racial discrimination in voting are both self-executing. The United States Supreme Court amplified this in 1883 during The Civil Rights Cases: “This [Thirteenth] amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom.”    

It is argued that Section 3 is incomplete by neglecting to establish specific procedures for determining whether a candidate has engaged in insurrection or rebellion. The argument overlooks the prohibitions in Section 1 of the 14th Amendment and the Fifth Amendment against state governments or the federal government depriving any person of the liberty to pursue public office without due process of law. Procedures that satisfy due process may vary and should include notice, an opportunity to respond, adduce favorable evidence, cross-examine adverse testimony and an impartial decisionmaker. 

The detractors of self-execution, including a judge in a recent Arizona decision, fall back on an ill-considered 1869 circuit court decision of Chief Justice Salmon Portland Chase, hungry to run as a Democrat in the 1872 presidential elections, in the case In re Griffen. There, a defendant convicted of shooting with intent to kill argued the conviction was void because the presiding judge, properly appointed before the ratification of the 14 Amendment, became disqualified from office by Section 3 for engaging in rebellion. Chase could have rejected the challenge by relying on the de facto officer doctrine as later explained in Ryder v. United States: 

“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. ‘The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by ensuring the orderly functioning of the government despite technical defects in title to office. The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.” 

Chief Justice Chase gratuitously declared Section 3 was not self-executing to avoid these consequences in lieu of invoking the de facto doctrine. Moreover, he failed to consider that the due process clauses of the Fifth and 14 Amendments safeguard against any arbitrary or discriminatory application of Section 3. Finally, the circuit court opinion was rejected by the Supreme Court in The Civil Rights Cases which concluded that the 14th Amendment “is undoubtedly self-executing.” 

In sum, the candidacies of Greene and Cawthorn will be stillborn if they are proven to have engaged in insurrection against the United States on Jan. 6.   

Bruce Fein is the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy”. He was associate deputy attorney general under President Reagan. 

Editor’s note: This piece was updated on April 29 at 10:07 am.