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Wednesday, November 16, 2022

A Changing Vantage Point

In the new Section Three paper that I'm writing, I will make the following point about a basic difference in constitutional attitude between 2022 and 1868.

When Section Three of the Fourteenth Amendment was written and applied, the discussion focused almost entirely on the wisdom of taking away the civil right of some citizens to run for office. Indeed, the Supreme Court was asked (though did not decide) if Section Three could be squared with the Privileges or Immunities Clause. The premise was that running for office was a privilege or immunity of citizens. You see this thinking even in the 1970s, as the Section Three amnesty given to Robert E. Lee and Jefferson Davis talked specifically about restoring their citizenship. In other words, you were not an equal citizen if were ineligible to hold office.

Today, though, we think of exclusion from office as more about the interests of voters. When the disqualification litigation against Donald Trump gets underway, litigants are more likely to concentrate on whether his voters are being harmed (or democracy in general) rather than on Trump's personal right to serve.

What accounts for this shift? Well, democracy is given more weight in 2022 than in 1868 due to the expansion of suffrage and the direct election of Senators. I'm not sure if there is more.

Posted by Gerard Magliocca on November 16, 2022 at 12:13 PM | Permalink


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