Section 3 of the Fourteenth Amendment

[Paul Mulshine]

Might I suggest, as a journalist who spent considerable time covering the 
guerrilla wars in El Salvador, Guatemala and Nicaragua, might  be read as 
descriptive rather than prescriptive. In other words a realist might argue 
that yes, the U.S. killed a lot of civilians in Vietnam but that given the 
history of such insurgencies, the path to victory might have lain in killing 
even more.
That is indeed the way guerrilla war seems to work. I'm still trying to find 
the guerrilla war where the nice guys finished first.
----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <conlawprof at lists.ucla.edu>
Sent: Wednesday, October 20, 2004 6:36 PM
Subject: Re: Section 3 of the Fourteenth Amendment


    I much appreciate Prof. Larson's points, and he may well be quite
correct.

    Might I ask, though, if this might affect the result:  The loyalty
oath statute, which as I understand it section 3 was supposed to place
on firmer constitutional footing, required someone to swear that he had
neither "voluntarily borne arms against the government of the United
States" nor "voluntarily given . . . aid, countenance, counsel or
encouragement to persons engaged in armed hostility thereto."  That
seems to track the "insurrection or rebellion" clause and the "aid or
comfort" clause, respectively; yet if section 3 was meant to be similar
to the Act, then it suggests that "enemies" includes "persons engaged in
armed hostility" generally, and not just foreigners.  If that's so, then
it suggests that the English distinctions were largely forgotten in the
U.S. by the time of the Civil War, and "enemies" includes domestic
rebels who "engage[] in armed hostility" as well as foreign enemies.  Or
am I mistaken?

    Eugene
-----Original Message-----
From: Carlton Larson [mailto:clarson at ucdavis.edu]
Sent: Wednesday, October 20, 2004 3:19 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: Section 3 of the Fourteenth Amendment


I think this is a fascinating issue.  My comments are limited to the
"enemies" issue in point 5 below.

There are strong reasons for believing that the phrase, "shall have
engaged in insurrection or rebellion against the same, or given aid or
comfort to the enemies thereof" in Section Three of the Fourteenth
Amendment tracks the traditional distinction in treason law between
internal/domestic rebels and foreign enemies.  The Treason Clause
restricts treason to "levying war against the United States," or
"adhering to their enemies, giving them aid or comfort."  These phrases
are terms of art taken almost verbatim from the 1351 English treason
statute of 25 Edward III, a statute with which the framers were quite
familiar.  Under English law, it was widely understood that the offense
of "levying war" referred to internal rebellions, and that "enemies"
referred specifically to non-English foreigners.  For example, Coke
explained, "Inimicus in legall understanding is hostis, for the subjects
of the king, though they be in open war or rebellion against the king,
yet they are not the king's enemies, but traytors; for enemies be those
that be out of the allegiance of the king."  Or, as Blackstone put it,
an enemy is "always the subject of some foreign prince, and one who owes
no allegiance to the crown of England."  The treatises of Hale and
Hawkins are to similar effect, and I see no reason to read the same
terms in the Treason Clause any differently.  The Fourteenth Amendment
seems to follow this distinction almost exactly, other than substituting
"insurrection or rebellion" for "levying war," which by the time of
Civil War likely amounted to the same thing.  And this would be
consistent with the view that the southerners had engaged in
insurrection and rebellion, but never truly left the union - that is,
never truly became foreign "enemies."  I would read the disqualification
provision as intended primarily to deal with those persons who had
supported the Confederacy, but as written broadly enough to capture any
future acts that fall within the definition of treason.

Carlton Larson
Acting Professor of Law
UC-Davis School of Law
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