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Friday, January 22, 2021

The Burden of Proof Under Section Three

I want to clear up a misconception about Section Three of the Fourteenth Amendment. Senator Durbin is quoted in a story saying that he is uncertain about whether a person must be convicted of a crime for Section Three to apply. The answer is no.

None of the people to whom Section Three was applied after the Civil War was convicted of a crime. Instead, a civil action (as described in Section Fourteen of the First Ku Klux Klan Act) enforced Section Three. This route implies, of course, that insurrection must be proved only by a "preponderance of the evidence" rather than by "beyond a reasonable doubt." Congress could, under its Section Five authority to enforce Section Three, use a higher standard like "clear and convincing evidence." This will, I would think, be an issue if new Section Three enforcement legislation is enacted.

One last point: The use of a civil action to enforce Section Three during Reconstruction is evidence that the provision was viewed more as an eligibility requirement than as a punishment, which is relevant for other questions such as the application of the Bill of Attainder Clause.  

Posted by Gerard Magliocca on January 22, 2021 at 07:12 AM | Permalink


just correcting it:

"Sitting" over "acting" of course in my comment down there.

Posted by: El roam | Jan 22, 2021 11:28:26 AM

Not to forget, if at first place that section can be implied on acting president( and, big, huge if...) then, we have here issue of law, or, question of law, rather than facts (speaking of findings). Such complicated question of law, and bearing on sitting president, and first amendment, how Houses shall or can deal with it at first place ? This is issue for courts. Let alone due process and fifth amendment and such. Doesn't really make sense...... Thanks

Posted by: El roam | Jan 22, 2021 11:26:15 AM

The history is interesting and informative but it does not settle the question.

Posted by: Joe | Jan 22, 2021 11:03:26 AM

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