Section 3 of the Fourteenth Amendment

[Paul Mulshine]

I meant to say "Kerry's remarks might be read as ..."
----- Original Message ----- 
From: "Paul Mulshine" <pmulshine at starledger.com>
To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <conlawprof at lists.ucla.edu>
Sent: Wednesday, October 20, 2004 6:45 PM
Subject: Re: Section 3 of the Fourteenth Amendment


> 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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