In their famous paper on Section Three of the Fourteenth Amendment, Baude and Paulsen consider the argument that their interpretation of section 3 may lead to disqualifications for actions protected by the First Amendment.
The authors set forth three possible ways of resolving a potential conflict between the First and Fourteenth Amendments:
There are, crudely, three possible ways of describing the relationship. The first is to find Section Three (implicitly) limited by the First Amendment. The second is, in contrast, to view Section Three as properly understood as carving out a zone of exception to, supersession of, or satisfaction of First Amendment principles. The third, which we believe correct, lies somewhere in the middle: Section Three should be construed, to the extent fairly possible, consistently with the free speech principles memorialized in the First Amendment. But to the extent of a true conflict between them, Section Three must control.
I agree with the authors that the third possibility is the correct one. The reason is that at the time of the Bill of Rights and the Fourteenth Amendment, a legal interpretive rule existed that basically said “repeals by implication are disfavored.” In other words, when an earlier provision and a later provision appeared to conflict, one should not interpret the later provision to repeal the earlier provision unless there is no reasonable to make the two provisions cohere.
While the authors acknowledge this principle, I am skeptical that they apply it correctly. They write:
In the end, in a case where free speech principles conflict with the best original understanding of “engaged in insurrection” or “aid or comfort,” we think that free speech principles must give way. We stress that we do not think that all or even most disloyal speech will rise to the level of triggering Section Three’s disqualifications. But where it does, where “it becomes a matter of necessity to give effect to one in exclusion of the other,” it is the more recent Fourteenth Amendment that “shall be preferred” to the earlier rule.
Why is this problematic? Baude and Paulsen appear to be saying that one first looks at the meaning of the 14th Amendment without considering the possible conflict with the First Amendment. If the “best original understanding” of the 14th Amendment conficts with the First Amendment, then it supersedes the First Amendment.
But if that is their position, I think it is mistaken. Instead, one should first look at the 14th Amendment. If there are two reasonable interpretations of the 14th Amendment, and one of them conflicts with the First Amendment and the other does not, then one should choose the second one, even if the first interpretation seems stronger when judged without considering the conflict with the First Amendment.
How much weaker can the second position be than the first position before one goes with the first position? That is a good question. Alexander Hamilton in Federalist 82 writes: “So far as [two conflicting laws] can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other.” I interpret "fair construction" to mean something like a reasonable interpretation.
What would this mean for the Fourteenth Amendment and the First Amendment? Here is one possibility. I am not necessarily arguing for this interpretation but just using it to illustrate the point. But I do believe that it a quite plausible example.
Section Three prohibits people from serving in certain high offices if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” One way to read this is to say that actions of the type that an accessory to a crime would take are only covered by “giving aid or comfort to the enemies,” that “enemies” refers to wars (rather than mere insurrections), and that “engag[ing] in insurrection” is limited to direct acts rather than accessory type actions. Another way – the one preferred by Baude and Paulsen – is to argue that "engaging in insurrection" includes accessory type actions.
While I tend to think that the first interpretation is the stronger one, suppose that Baude and Paulsen are correct that the second interpretation is stronger. Still one would not choose the second interpretation if the first interpretation was a reasonable one and if it avoided a conflict with the first amendment. There is a plausible argument that this is exactly the case. Under the first interpretation, one only applies accessory type liability – the type of liability that creates First Amendment problems for actions such as urging a crowd to engage in certain activities – when the actions involve giving aid or comfort to an enemy during a war. And presumably giving aid or comfort to an enemy during a war does not violate the First Amendment even though certain accessory type actions that are done for purposes of insurrection do violate the First Amendment.
If all of this is true, it means that Baude and Paulsen cannot choose the second interpretation unless they conclude not merely that the first interpretation is weaker but that the first interpretation is unreasonable. That is a much harder argument to make.
Posted at 8:00 AM