[Note: This is the fourth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first three essays can be found here, here, and here.]
Some critics have made the argument that Section Three cannot or should not be used to constitutionally disqualify a person from office for having engaged in insurrection or rebellion without that person first having been charged and convicted of the statutory federal crime of insurrection, under 18 U.S.C. §2383.
Professor Michael McConnell appears to have been the first to make this argument, in a post on this blog shortly after we first posted our draft article on SSRN in August, 2023. As McConnell put it:
