There’s a robust legal debate happening outside of the pure ballot access issues in the disqualification challenges to Representative Madison Cawthorn and Representative Marjorie Taylor Greene, among other challenges. Here’s Professor Josh Blackman and Professor S.B. Tillman in a New York Times op-ed:
An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.
After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.
Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”
In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.
And here’s Professor Gerard Magliocca over at Balkinization:
I think that Blackman and Tillman’s conclusion is incorrect, or is at least too broad.
First, Chief Justice Chase’s opinion in Griffin is not persuasive, as Blackman and Tillman say. I go into this at length in my law review article. For one thing, the Chief Justice concluded that Section Three was self-executing in the treason proceedings against Jefferson Davis but was not self-executing in the habeas corpus proceeding for Caesar Griffin. He did not explain this distinction in his Griffin opinion, and the result is that we really don’t know what his position was. There is also nothing in the text or original public meaning of Section Three to support Chase’s reading in Griffin. He just advanced a grab bag of policy arguments, which reflected his opposition to Section Three when the proposal was before Congress.