Dr. Della A Scott-Ireton

Dr. Graber is a regents professor of government at the University of Maryland. He is recognized as one of the leading scholars in the country on constitutional law and politics.

Section Three of the Fourteenth Amendment declares “No person shall . . . have any office . . . under the United States, or under any State,” who having previously taken an oath . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies therein." Courts in the contemporary United States have disqualified under Section 3 persons who physically participated in the Jan. 6, 2021 insurrection, but have so far refrained from disqualifying persons who merely supported or encouraged that insurrection.

This talk explores the scope of Section Three disqualification for insurrectionary speech in light of the predominant understandings of free speech and insurrection at the time Section Three was ratified. Evidence suggests that during the Civil War and Reconstruction most legal authorities did not think the First Amendment protected speech encouraging or supporting an insurrection, and that persons who engaged in such speech were disqualified from present and future office under Section Three. The talk will conclude with a discussion of whether and to what extent we ought to be guided by Civil War understandings in a time when constitutional protections for free speech are much broader and the constitutional understanding of participating in an insurrection much narrower.