Mark A. Graber, Section Three of the Fourteenth Amendment from the Perspective of Section Two of the Fourteenth Amendment, 2025 Wis. L. Rev. 1121 (2025).
Section Three of the Fourteenth Amendment is better interpreted from the perspective of Section Two of the Fourteenth Amendment than, as in Trump v. Anderson, from the perspective of Section One. Apportionment was the heart of constitutional reform when the Fourteenth Amendment was framed and ratified. Section Two was the centerpiece of a tripartite scheme that proponents of congressional reconstruction designed to punish treason, reward loyalty, and realize their constitutional commitment to free labor and racial equality, in part by preventing “oathbreaking insurrectionists” from holding office. Black suffrage was the first line of defense. The persons responsible for the Fourteenth Amendment assumed that if most men of color in former Confederate states voted, former “oathbreaking insurrectionists” would not be elected and those persons who were elected would be committed to national union, free labor, and racial equality. Congress was the second line of defense. The persons responsible for Fourteenth Amendment assumed that, should states not enfranchise black men, Congress would still be staffed by persons committed to passing legislation, when necessary, that prevented oathbreaking insurrectionists from holding office and securing Republican commitments to national union, free labor, and racial equality. Federal courts were the last and weakest line of defense. The persons responsible for the Fourteenth Amendment did not think courts were a necessary or proper primary means of advancing constitutional purposes. Courts were expected to step in, if at all, only when both states and Congress failed to function as Section Two (or any other section) anticipated.
