Navigating Section Three from Griffin’s Case to the Case of Couy Griffin: Who Should Decide Its Longstanding Questions?

Authors

Austin Carpenter

Abstract

Section Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition.

Yet, use of Section Three to disqualify or remove elected officers has its own implications on democracy. Democratic ideals presuppose that individuals have the right to vote for candidates of their choosing. Can formalistic application of constitutional requirements for office burden that right? The United States’ constitutional structure contains a democracy restrained within a framework of rules and limits. This is well understood. But when there are questions about those constitutional rules — such as whether candidates are disqualified under Section Three — how does the system find answers? The states, courts, legislative bodies, and individual voters all must play diverse roles in deciding our rules of democracy.

Rights

© 2024 Brigham Young University Law Review

Recommended Citation

Austin Carpenter, Navigating Section Three from Griffin’s Case to the Case of Couy Griffin: Who Should Decide Its Longstanding Questions?, 49 BYU L. Rev. 1523 (2024).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss5/10