Response to Hans Von Spakovsky

I want to concur in part and dissent in part from this new essay on Section 3 by Hans Von Spakovsky.

I agree with his point that voting against the certification the electoral votes on January 6th, 2021 does not-- standing alone--constitute engaging in insurrection under the Constitution. The vast majority of GOP members in the House are not subject to disqualification. I said as much in a piece written shortly after the Capitol riot.

I disagree with the rest of what Von Spakovsky says. First, he makes the same erroneous argument that the District Court in North Carolina embraced; namely, that the 1872 Amnesty Act applies to future insurrectionists. As I've said before, this is wrong because: (1) Section Three gives Congress no such prospective power; (2) the text of the 1872 Act does not support a prospective interpretation; (3) the legislative history of the 1872 Act does not support that interpretation; and (4) the House of Representatives applied Section Three in 1919.

Second, Von Spakovsky claims that U.S. Term Limits v. Thornton supports the proposition that the only qualifications for serving in Congress are age, citizenship, and residency. This is incorrect. A footnote in Thornton makes clear that Section Three of the Fourteenth Amendment is another possible qualification for Congress, though of course the issue was not presented in the case. Von Spakovsky's argument is therefore much weaker than the one by Professor Muller that Section Three is a qualification that only Congress may enforce. (I disagree with Professor Muller on that, as I've explained before.)

I will soon have more to say on the new Section Three action filked against Representative Taylor Greene.