pageok
pageok
pageok
Kerry and 14th Amendment, section 3:

Is John Kerry disqualified from being President by section 3 of the 14th Amendment? Several readers — starting with Pierce Wetter, with whom I've corresponded on the subject, and who has just blogged about it, referring partly to our correspondence — have e-mailed me to ask this question, and I noticed more chatter about it on the Web. And the question turns out to be more interesting than it at first seems (though I think the answer ends up being pretty clear).

Here's what section 3 says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Kerry, the argument goes, gave "aid or comfort" to the North Vietnamese by opposing the war, and by apparently meeting with a North Vietnamese peace delegation in Paris in 1971. One or both of these things (probably the former much more than the latter) may have emboldened our enemies and sapped our soldiers' morale, thus giving the enemy aid or comfort. Kerry had previously taken an oath to support the Constitution when an officer of the United States (military officers, including lieutenants, definitely count). The Presidency is an "office" (see, e.g., art. II, sec. 1, cl. 5.) Therefore, the argument concludes, Kerry is disqualified.

1. The bottom line: I think this argument is unsound, because section 3 can't possibly apply to all people whose actions end up helping the enemy. During the Civil War itself, for instance, which prompted section 3, many government officials spoke out in favor of the North's agreeing to peace on terms that are favorable to the South. That too would have aided the South — quite possibly much more than Kerry's statements, if the speaker was a prominent Northern politician. But I'm fairly certain that section 3 wasn't understood as disqualifying them; "aid or comfort" must have been understood to mean actions intended to help the enemy that actually gave it aid, and not simply actions that had the effect of helping the enemy but that were motivated solely by a sincere desire to help the United States save lives or prevent the United States from acting immorally, rather than by a desire to help the enemy win.

That is certainly the way that modern treason law operates: As I explained here, quoting the Supreme Court, "[A] citizen may take actions, which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." And this is true even if the actor knew his actions would help the enemy: The test is purpose, not knowledge of likely (or even certain) effects.

Now some might argue that Kerry's actions might have been more reprehensible than the actions of the Northern politician I describe above. Perhaps they were too intemperate, or perhaps his statements were inaccurate, or whatever else. (I haven't followed the exact factual allegations closely enough to make a definitive judgment, but for these purposes I don't need to.)

But for the purposes of the Treason Clause, and I suspect of section 3, the test isn't simply whether the actions help the enemy, or help the enemy through improper means, or help the enemy through improper means with the knowledge that they will help the enemy. If Kerry's purpose was not to help the North Vietnamese, but to help the United States or to help maintain U.S. compliance with its own laws and policies related to military conduct, then he's not covered. And I have no reason to think that Kerry's purpose was indeed anything other than to help the United States, whether or not his actions in pursuit of that purpose may have been misguided or excessive.

So that's my bottom line, and I want to stress it up front: Section 3 should not be read as disqualifying Kerry. That's the only sensible way of interpreting the provision, and I think the only way of interpreting it that's faithful to its likely original meaning.

But it turns out that under a purely textual analysis, the matter is a lot more complex. The section 3 argument against Kerry is, for the reasons, I gave above, a loser, but it's far from the harebrained theory that it might at first appear to be. And analyzing the text closely provides a fascinating example of the troubles we run into when analyzing constitutional provisions that were, after all, written many decades ago, by drafters who had experience with different situations than we do now.

2. Omission of "adhering to their Enemies": Let's start with the textual objection to the point I made above: First, "aid or comfort" literally means any aid or comfort, intentional or not. But good textualism doesn't just look at the literal English meaning of an isolated phrase; it also looks to the legal meaning of the phrase, and to other provisions of the Constitution. And the closest provision to this one in the Constitution is the Treason Clause itself, which defines treason to cover "only . . . levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." I don't think the "and" / "or" difference is that relevant here. But note that section 3 does not include the "adhering to their Enemies" language.

And the Supreme Court's treason precedents that stress that treason includes only intentional aid rely on the "adhering to their Enemies" language as the source of the intent requirement. (See, for instance, the Court decision I quote three paragraphs above.) In the Court's mostly 20th-century understanding, "aid and comfort" means help to the enemy, and "adhering to their Enemies" qualifies this to require intent to help the enemy.

So if one reads the text of section 3 literally, perhaps "aid or comfort" would mean all actions that help the enemy, even if the actor doesn't "adher[e] to [the] Enem[y]" by intending to help the enemy. I suspect this is not how the section was understood by those who ratified; I suspect they understood it as tracking the Treason Clause. But literally, it might indeed cover Kerry's actions.

3. Speech as aid or comfort: It's also pretty clear that speech can be treated by the law as providing aid or comfort. Decisions by Congress shortly before section 3 was enacted, under a loyalty oath regime that as I understand it section 3 was meant to clearly validate, took the view that publishing a pro-rebellion newspaper or letters qualified as aid or comfort, see Christy and Wimpy, Rowell's Digest of Contested Election Cases 725 (1901); Smith v. Brown, id. at 220; Switzler v. Anderson, id. at 219-20. (I have not had the time to check the original reports, in volume 2 of the Bartlett compilation, which Rowell's purports to condense.)

Modern treason law takes the same view: For instance, spreading Axis propaganda was found to be treason (see here). The main barrier to applying the section to antiwar speech lies in the intent requirement; but antiwar speech whose purpose was to help rebels would, I think, be disqualifying under section 3. (Whether the First Amendment would be a barrier to that is a difficult question that turns both on the scope of First Amendment rights for speech whose purpose is to aid the enemy, and on complex questions related to repeals by implication; I will set them aside here.)

4. Application beyond the Civil War: But wait, you may ask: Obviously this provision was just meant to deal with rebels during the Civil War. Isn't it a dead letter?

I don't think so. The provision was enacted because of the Civil War, but its language is broad enough to cover other wars. The drafters could have chosen more focused language, but they didn't. As the Court held in Perry v. United States (1935), when dealing with section 4 of the Fourteenth Amendment, which confirmed the federal government's obligations to pay the federal debt, "While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation." Likewise with the language here; it clearly applies at least to all domestic rebellions.

5. Helping foreign enemies: Does section 3 even apply to people who help foreign enemies, rather than domestic ones? The answer to this might seem to obviously be yes, but note that the language is "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." The first half specifically doesn't cover people who fight in a foreign war against the U.S. (unlike the Treason Clause, which covers all enemies).

One can argue that the second half should be read as referring back to the first half, and thus covering only people who gave aid or comfort to enemies who were themselves engaging in insurrection or rebellion. And if that's so, then none of this could possibly apply to Kerry. (I set aside claims that he was present at some meeting of Vietnam Veterans Against the War at which there was talk of assassination. Even if he was present, a matter that is disputed, I think mere talk of assassination isn't enough to qualify as insurrection or rebellion, and mere presence at mere talk is likewise not enough to qualify as aid or comfort to insurrection or rebellion.)

I think that on balance the provision should be read as covering aid and comfort to all enemies who are fighting the U.S., whether they're fighting it overseas or whether they're rebelling against it here. "Enemies" is broad enough to cover both, and it's hard to see why the provision would have been understood, when enacted, as treating those who help enemy foreign armies better than those who help enemy domestic armies. Yet this isn't obvious: There's a powerful textual argument for treating the second clause ("enemies") as being linked to the first (enemies "engaged in insurrection or rebellion").

6. Congressional removal of disability: I don't think Congress has "remove[d] such disability by a vote of two-thirds of each House." The 1872 Amnesty Act, ch. 193, 17 Stat. 142, provided that:

all political disabilities imposed by the third section of the fourteenth [amendment] . . . are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth [1859-61] and thirty-seventh [1861-63] Congresses, officers in the judicial, military, and navel service of the United States, heads of departments, and foreign ministers of the United States.

An 1898 Act, ch. 389, 30 Stat. 432, provided that:

the disability imposed by section three of the Fourteenth Amendment . . . heretofore incurred is hereby removed.

The second Act clearly applies only to disqualifications for pre-1898 conduct ("heretofore incurred"). The first doesn't limit itself so explicitly, but it stands to reason that "disabilities . . . are hereby removed" likewise refers to disabilities that had already been incurred, rather than disabilities for future misconduct, the nature of which Congress wouldn't have even known.

7. Automatic disqualification? Is disqualification automatic, or does it require some statute to implement it (e.g., a statute that says that everyone who did this-and-such during this-and-such war is hereby stripped of office)? In re Griffin, 11 F. Cas. 7 (C.C. Va. 1869), a lower court case, suggests that disqualification happens only if there's a statute providing for such disqualification. But this is only a lower court case (written by Chief Justice Salmon P. Chase, riding circuit, but not endorsed by the Supreme Court). And it's in any event not clear that its logic would apply to federal Senators and Representatives, as to whose qualifications Congress traditionally acts not through legislation but through direct examination of a candidate's qualifications (see below), or to the President, whose qualifications Congress likewise probably has the power to directly test when counting the electoral votes (see below).

8. Who decides? Who decides whether whether the provision applies — would it be a court, Congress, or someone else? I would assume that it would be Congress, which is the body that is supposed to count the electoral votes; presumably this includes the power to reject votes that are cast for ineligible candidates (whatever the cause of the eligibility). But who knows?

9. The Presidency as different: Finally, one could argue that the Presidency is outside the scope of section 3's purpose. Section 3 was justified by the fear that voters in one state or district might elect candidates who are disloyal to the country as a whole. But when the electorate is national, as it is for the President and the Vice-President, we needn't worry about that: The judgment as to whether the person can be trusted to be loyal to the United States can be safely left in the national electorate's hands. I think this is a good policy argument; but a textualist would quickly reject it, because the text of section 3 covers all "office[s] . . . under the United States," which includes the Presidency, and our guess as to the purpose of section 3 cannot modify that.

* * *

I've gone on at such length partly because of a compulsive and likely unhealthy professional desire to be relatively complete, and partly because exploring these mostly forgotten constitutional provisions reminds us how complex the supposedly simple act of reading a sentence and applying it to the facts can be. I stress again that, for the reasons I gave in item 1, section 3 doesn't and shouldn't bar Kerry's candidacy. But the issue is considerably more complex than one might at first think.

Related Posts (on one page):

  1. "Enemies" and declarations of war:
  2. Kerry and 14th Amendment, section 3:
"Enemies" and declarations of war:

Some people replied to the post below on section 3 of the Fourteenth Amendment by asking whether the nation can have "Enemies" for section 3 purposes without a declaration of war.

Well, the Civil War itself, to which section 3 clearly applies, was not a declared war. That suggests that "Enemies" include actual enemies with whom we are in a state of war (which included the Confederacy and North Vietnam) regardless of whether there has been a formal declaration of war. What's more, as I've argued often before, U.S. law generally does not distinguish between declared wars and undeclared wars. The question is whether we are in an armed conflict with an entity, not whether there has been a Congressional declaration of war.

Related Posts (on one page):

  1. "Enemies" and declarations of war:
  2. Kerry and 14th Amendment, section 3: