Innocent Until Proven Guilty: The Case of Unconvicted Accusations

This is the fourth essay responding to objections to enforcing Section Three of the Constitution. Critics argue that Section Three should not be used to constitutionally disqualify a person from office without them first being charged and convicted of the federal crime of insurrection. This argument, first made by Professor Michael McConnell, is also echoed by others including two amicus briefs and a Supreme Court brief by Trump’s lawyers. This argument is legally meritless as it is wrong as a matter of the text, history, and structure of Section Three. Section Three does not contain any requirement of criminal-law conviction as a prerequisite to its operation. The history of Section Three does not reflect a need for criminal trials. Even Chief Justice Chase did not suggest that enforcement must take the form of criminal prosecutions and criminal trials. The federal criminal statute in question was enacted in 1862 – several years before the drafting of the Fourteenth Amendment and cannot limit or narrow the meaning of a provision of the Constitution. Therefore, it is impossible to suggest that the criminal statute punishing insurrection was designed as a “mode” of effectuating Section Three. It is simply wrong to identify this criminal-law statute as Congress’s chosen “mode of enforcement” of Section Three. The idea that Section Three requires a criminal conviction for insurrection before its constitutional rule can be applied has no legal merit. Each of the commenters, pundits, and advocates above has misunderstood or ignored these basic points.