Over the last several months, concerned citizens around the United States have challenged the right of politicians who supported or took part in the Jan. 6 insurrection to hold their offices, asserting that Section 3 of the U.S. Constitution’s 14th Amendment blocks the right of those politicians to participate in government.
Heritage Foundation senior legal fellow Hans von Spakovsky recently wrote a Tribune opinion piece asserting that these citizens are wrong, because in his view Section 3 does not apply (“Trying to use Jan. 6 to block reelection bids is baseless,” March 29). Von Spakovsky’s argument overlooks legislative history, logic and both the structure and language of the Constitution itself.
Reading Section 3 myopically, von Spakovsky first ignores the transformative changes brought about by not only the 14th Amendment but the 13th (which abolished slavery) and 15th (which prohibited denial of voting rights based on race), which were ratified and made part of the Constitution in 1865, 1868 and 1870, respectively.
Eminent historians such as Eric Foner call these three post-Civil War Amendments our “Second Founding” because together, they sought to transform the Constitution into a bulwark protecting individual rights, redefining United States citizenship, establishing the principle of equal protection under the law, enabling the application of due process to the states and making clear that those states could not abridge anyone’s constitutional rights.
Only by reading Section 3 against the background of these sweeping changes can we make sense of Section 3’s specific words, which prohibit anyone who has “engaged in insurrection or rebellion against” the Constitution from holding a wide range of federal and state offices.
The second mistake von Spakovsky makes lies in his assumption that the Congress that passed the 14th Amendment meant for it to have a limited scope — barring only Confederates from office. His conjecture also implies that the amendment would fade from history when ex-Confederates had all passed on.
This is false. Congressional proponents of Section 3 specifically stated in floor debates that it would apply prospectively to future insurrectionists as well as retrospectively to members of the Confederacy. Sen. Waitman Willey of West Virginia emphasized that Section 3, as “a permanent provision of the Constitution, … is intended to operate as a preventive of treason hereafter by holding out to the people of the United States that such will be the penalty of the offense if they dare commit it.”
The history is unequivocal: Section 3 was intended not only to keep Confederates out of government but as a forward-looking deterrent to future insurrectionists.
Third, von Spakovsky implies that the amnesty laws of 1872 and 1898 that allowed former Confederates to hold certain offices were Congress’ sole pronouncements on the scope of Section 3. Again, untrue. If von Spakovsky was right, then the 1898 law would have been the end of Section 3. But it wasn’t.
In 1919, Congress used Section 3 to deny a seat in the House to Victor Berger, a duly elected Socialist from Milwaukee who had opposed the United States’ entry into World War I. The resolution expelling Berger specified that the disqualification of insurrectionists under Section 3 still existed, despite the previous amnesty statutes: “Congress has no power whatever to repeal a provision of the Constitution by a mere statute.” In the same way, von Spakovsky fails to realize that his main premise — that a statute can negate part of the Constitution — is inconsistent with the Supremacy Clause of the Constitution.
Finally, von Spakovsky asserts that the Supreme Court’s holding in U.S. Term Limits, Inc. v. Thornton precludes a state from using Section 3 to bar participants in the Jan. 6 insurrection from the ballot, but his argument misconstrues the Supreme Court’s decision.
The decision in Thornton, which struck down state-imposed limitations on how many terms a senator or representative could serve in Congress, restricts a state’s power to impose qualifications not found in the Constitution on candidates for the Senate and House. Thornton does not address restrictions imposed by the U.S. Constitution on Federal office-holding — such as Section 3 of the 14th Amendment.
None of these flaws should surprise an attentive reader. Indeed, when von Spakovsky proffered an analysis of purported voter fraud in a 2018 lawsuit, U.S. District Judge Julie Robinson disregarded his testimony because von Spakovsky’s assertions of fraud were misleading and unsupported by the evidence he cited. As a result, von Spakovsky’s “clear agenda and misleading statements … render his opinions unpersuasive.” Robinson might as well have been describing von Spakovsky’s groundless assertions about Section 3 of the 14th Amendment.
Mark Leitner and Joseph Goode are partners in the Milwaukee law firm Laffey, Leitner & Goode LLC. Kirk Bangstad is owner of the Minocqua Brewing Co. and founder of the Minocqua Brewing Co. Super PAC..
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