What it means to say that Section 3 of the 14th Amendment is self-executing
Does Section 3 of the Fourteenth Amendment "automatically" disqualify Donald Trump from the Presidency in virtue of his having "engaged in insurrection or rebellion" after having "taken an oath, as . . . an officer of the United States . . . to support the Constitution?" So say Professors William Baude and Michael Paulsen, as well as Judge Michael Luttig and Professor Laurence Tribe. Summarizing the Baude/Paulsen conclusion, Judge Luttig and Professor Tribe state that "Section 3 requires no legislation, criminal conviction, or other judicial action in order to effectuate its command. That is, Section 3 is 'self-executing.'"
A couple of weeks ago, my co-blogger Professor Eric Segall questioned what he deemed the pervasively originalist methodology of Professors Baude and Paulsen, noting, among other things, that, in the very year that the Fourteenth Amendment was ratified, Chief Justice Salmon Chase ruled that Section 3 is not self-executing in a case that has come to be known as In Re Griffin. That fact, Professor Segall suggests, at least casts some doubt on the Baude/Paulsen/Luttig/Tribe view as a matter of the original meaning of Section 3.
I agree with the overall thrust of Professor Segall's essay: the original understanding of the constitutional text is very frequently under-determinate and therefore the real questions of constitutional law involve at least some substantial measure of policy judgment. But I also agree with the Baude/Paulsen/Luttig/Tribe view that Griffin is relatively easy to overcome. Consider three problems with reliance on the ruling.
(1) Griffin was a decision by Chief Justice Chase in his capacity as a circuit justice, not a decision of the full Supreme Court. Thus it lacks the full force of stare decisis.
(2) Chief Justice Chase cannot be trusted on this question. Before he decided Griffin, he ruled that Section 3 was self-executing, that it was a form of punishment, and that it operated as the exclusive punishment for Confederate traitors, thus immunizing Jefferson Davis from prosecution for treason. That determination was set for review in the Supreme Court but the issue was mooted when President Andrew Johnson pardoned all of the Confederates. In his Griffin opinion, Chief Justice Chase refers to the position he himself took on self-execution in Davis as the view of unnamed "enlightened jurists." As Professors Baude and Paulsen say, the quick flip-flopping shows "that Chief Justice Chase was not shooting straight in his applications of Section Three."
(3) Perhaps most importantly, the reasoning in Griffin is contrary to the obvious import of Section 3's text. To my mind, the crucial constitutional language is the last sentence of Section 3: "But Congress may by a vote of two-thirds of each House, remove such disability." That implies that Section 3 by itself disables insurrectionists and rebels from office, full stop, unless a super-majority of Congress acts. Yet, relying on the enforcement clause in Section 5 of the Fourteenth Amendment--a clause that empowers Congress to enforce all of the Amendment--Chief Justice Chase in Griffin reversed the default, concluding that in the absence of congressional legislation, there can be no Section 3 disqualification.
That's very peculiar. The more specific language in Section 3 itself should be more pertinent than the general enforcement power in Section 5. And in any event, Section 5 is not even read to render other provisions of the Fourteenth Amendment--especially the Due Process and Equal Protection Clauses--non-self-executing.
Accordingly, I am persuaded that there is no need for Congressional action to make Section 3 effective. Section 3 is self-executing. However--and this is an obvious but crucial point--that does not mean that it is literally self-executing. State and local election officials who attempt to place Donald Trump's name on a primary or general election ballot will not find their hands stayed by a mysterious force field or a lightning bolt.
Section 3 is self-executing in the way that other self-executing provisions of law are, not in the way that laws of nature are. To say that Section 3 is self-executing is to say only that government officials can and indeed must give it effect even absent implementing legislation. Section 3 is self-executing in the exact same way that a self-executing treaty is.
More strikingly, we might say (as Professor Tribe has said in media appearances) that Section 3 is self-executing in the same way that other qualifications for the Presidency are. If a 33-year-old sought to be listed as a candidate for the Presidency, state or local election officials would properly deny her a place on the ballot. If she then wished to contest the denial--perhaps on the ground that she was actually 35 and can prove it--she would be entitled to do so.
Or suppose that someone had sued to block Senator John McCain's place on the 2008 Presidential ballot on the supposed ground that he was not a natural born citizen. McCain and his campaign could have defended on the ground that although McCain was born in Panama, he was a citizen at birth (in virtue of the fact that both of his parents were citizens) and that, as a legal matter, that suffices to make him a natural born citizen. One way or another, contests over the law and facts regarding eligibility for office end up in court.
Judge Luttig and Professor Tribe acknowledge just that. They write:
As a practical matter, the processes of adversary hearing and appeal will be invoked almost immediately upon the execution and enforcement of Section 3 by a responsible election officer or, for that matter, upon the failure to enforce Section 3 as required. When a secretary of state or other state official charged with the responsibility of approving the placement of a candidate's name on an official ballot either disqualifies Trump from appearing on a ballot or declares him eligible, that determination will assuredly be challenged in court by someone with the standing to do so, whether another candidate or an eligible voter in the relevant jurisdiction. Given the urgent importance of the question, such a case will inevitably land before the Supreme Court . . . .
Hence, the Baude/Paulsen/Luttig/Tribe view is considerably more modest than terms like "automatic" and "self-executing" might be taken to imply. It is, at bottom, simply (and convincingly) that Section 3 of the Fourteenth Amendment means what it says.