Considering the plausible constitutional theory behind Sec. 3 of the 14th Amend., as well as wrestling with whether January 6th was an insurrection & if Donald Trump offered aid & comfort to the same.
Yeah, this is one of the reasons I chose not to write too terribly much on some of the specific questions such as these. Such treatments as yours and others are just far more persuasive than anything else I see out there. From what I can tell, the vast majority of counter-arguments to use of Section 3 in the present circumstance are extremely consequentialists, concerned with what might come of such an exercise of Section 3 and then working backward to avoid such use. While I can respect the prudential concern with fallout, my discomfort is that this isn't how originalists and textualists typically interpret the Constitution in any other situation. Isn't this, for example, the same argument against overturning Roe?
Well researched and well argued, but not entirely persuasive to me (though I have no legal training). If failure to stop the alleged insurrection is “aiding” it, then surely the Speaker’s failure to direct the Capitol police should make her equally culpable. I am also wary of any definition of insurrection that can be easily lobbed at any politician whose followers resort to violence. The BLM and Antifa riots clearly fit your definition of insurrection and were clearly aided by sitting members of Congress who organized their bail. Will all future elections be decided by preventing opposition candidates from being electable?
Not going to lie, I was a bit disappointed to see you never mentioned section 5 of the 14th Amendment or the definitions of insurrection/rebellion passed by Congress: the 1870 statute or the 1948 criminal insurrection law which repealed the 1870 statue and codified what is insurrection/rebellion under law.
This was a key component of the dissenting judges in the case heading towards the Supreme Court. Between both the section stating how Congress is to enforce the 14th Amendment, and Congress passing a law those definitions at minimum should be considered. We should especially see what changes/clarifications were made between the 1870 statute & 1948 law, and how/if it applies to the current claims.
I see little evidence to suggest that Section 5 can be construed to grant Congress a form of impeachment power far broader and with less checks on its exercise than the original impeachment power. And, Congress already has the ability to refuse to seat members and expel members to its own institutions. Indeed, in the reconstruction era, it exercised its power in such a way several times, but it did not, in so doing, claim to be exercising powers given them under the 14th Amendment. On the original impeachment power, it has a very specific and laid out process, whereas Section 3 has no such specificity. Further Section 3 does specifically offer a negative power to Congress in that they can "remove such disability" through 2/3 vote, and I don't think a fair reading can provide a positive power where a negative power is specifically laid out simply based on the language of Section 5. In addition, the original provisions of the Constitution establishes considerable power at the State level when it comes to elections, and, again, without specific language to the contrary, the specifics of electoral process can be reasonably inferred to remain with the states. Based on all of these observations, my interpretation of both Section 3 and Section 5 is that the power granted Congress regarding disqualification from office is a negative power, while the positive power is held by the states or, to some extent, by the Courts if asked by the state(s) or an interested party to consider the question. This view is backed up by the way other challenges to provisions regarding qualifications for holding office are handled, such as age and nation of birth. For example, we don't need a vote from Congress to determine someone is under 35 and therefore cannot hold office. That is a determination based on state level processes.
As for the various statutes establishing insurrection as a crime defined by statute, I would simply refer you back to Hamilton's quote: “Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” The meaning of Constitutional provisions cannot be altered through ordinary legislation, even if such legislation utilizes similar terms and concepts. We would, for example, not accept as binding a law passed by Congress that attempts to alter the meaning of "keeping and bearing arms" in a way conducive toward passing sweeping gun control laws. In a similar vein, the interpretation of the word insurrection cannot be based upon the use of the word in ordinary legislation or in criminal law. If that were the case, a Democratic Congress in the future could pass a law defining insurrection in the loosest terms possible, opening the door for the utilization of Section 3 in the most arbitrary way imaginable.
I think you're missing my point: I'm not referring to an impeachment power but clearly a defined law. No one from Jan 6, as of yet, has been charged as such. Determining a charge as serious as insurrection/rebellion out to be subject to a court of law not a mere election board on their own interpretation. Congress has through legislation defined it & has a mechanism to do so. This goes back to your argument that should someone believe the codified version (passed by a bias Congress) infringing on their rights can challenge it in court. The rights of an individual being told their ineligible because they're guilty of a crime which they've never been charged (or convicted) seens to infringe upon due process.
The current case as it stands was not a definition through the courts described by Congress but by a committee decision before being challenged in court. An election committee has a much easier time creating its own standards of what defines insurrection/rebellion than Congress. Loose local definitions of such a charge, especially in a case where it's focused on his speech not actions, is a very dangerous precedent to set.
These actions by both parties on such soft grounds are in line with the actions of January 6th itself, are borne of the same undemocratic attitude. A lack of respect and decorum for thier fellow American citizens who disagree.
The most dangerous part of this insurrection/rebellion talk is if you compare it to what clearly was an act of rebellion in the civil war. It is not a dated amendment only to that, because the concept of state governments formally declaring succession or rejection of the authority of the federal government is still within the realm of possibility. An actual rebellion where a disgruntled candidate rejects election results and formally declares himself the winner without relinquishing power and/declaring martial law could happen. A charge so harsh as insurrection/rebellion should be so definitive it's not on a technicality or legal loophole unclearly defined.
It's not that I'm missing the point, it's that the argument is incredibly unpersuasive to me. As I've read all the arguments on both sides of this issue, the thing that left me unimpressed with the arguments against applying Section 3 in the present case is that there is simply no unifying theory to the arguments, no rational connective tissue.
For example, in the length of our brief discussion you have both claimed, on the one hand, that Section 5 places the enforcement of Section 3 solely in the hands of Congress while, at the same time, making arguments that a criminal conviction of insurrection is required before Section 3 can be enforced and that due process of law must be afforded anyone facing possible consequences pursuant to Section 3. Which is it? Is the enforcement of Section 3 a political question or a criminal question? It can't be both. The demand for due process would put the question in the purview of the courts. The demand for a criminal conviction would put the question in the hands of prosecutorial discretion. The assertion that Section 5 affords Congress sole authority in Section 3 would put the question in the hands of Congress alone. The combined ramifications of these arguments reminds me too much of the conflicting arguments over Trump's other legal problems, that he can't be impeached until charged with crime but that he can't be charged with a crime because the President holds absolute immunity from prosecution. It's an argument that combines toward stripping the efficacy of impeachment altogether. And, in the same vein, the various arguments against the use of Section 3 similarly combine toward stripping the efficacy of Section 3 altogether.
So much of the back on forth on this issue, as we can observe in our own discussion, is a confusion of the lines of separation between political processes, criminal processes, and civil processes. While political and civil processes can be informed by criminal processes, they do not stand frozen and ponderous at the mercy of criminal processes. This is why OJ Simpson escaped criminal consequences for murder but was nevertheless held liable for murder in civil court (and why Trump hasn't been convicted of rape in criminal but has nevertheless been held liable for rape in civil court). Take, for example, your demand for due process of law on the question of Section 3. Due process under the 14th amendment refers only to depriving "any person of life, liberty, or property." Depriving someone the ability to run for office is not a deprivation of any of these things. No one has a right to run for office. Running for office is a privilege. Section 3, as I mentioned in the piece, is not a criminal statute. It is a civil statue. Criminal and civil questions have very different processes and very different requirements. It's not a crime to be 34 and attempt to run for President, but the civil statutes of the Constitution forbid it. It's not a crime to be born outside the country and attempt to run for President, but the civil statutes forbid it. And since these are civil questions, a criminal conviction of some law is not required for the courts to judge on the questions. And if Congress chose to enact a law making either of these acts criminal offense, their chosen definition of the crimes would not weigh upon the separate civil process of denying them the ability to run for office and neither would conviction on a lesser crime based upon either prosecutorial discretion or by plea agreement. The enforcement of fundamental law Section 3 cannot reasonably rest upon either alterations of definitions by non-fundamental law or upon the choices of prosecutors in what crimes to prosecute.
The criminal conviction is Congress enforcing through legal code passed in Congress -- not an impeachment. A impeachment makes sense as well, but Congress passed a statute in 1870 then replaced it with an updated law in 1948. That's the only one I'm referring to which is Congress enforcing through appropriate legislation as stated in article 5. Both the laws passed and an impeachment are powers granted to Congress in article 5 to enforce the amendment. Not some rando civil charge in arbitrary states.
In either a court proceeding or impeachment there's a case to be determined. Just like if the committee said to prove your age or citizenship status you could produce documentation to prove it. If there's no court using Congress' defined code. When this Amendment was written you could produce simple proof "the candidate was a member of the Confederacy: here's his enlistment/commission papers, proof of his/her membership in Confederate government, etc. The 1870 statute did allow for civil action, but the 1948 code put it squarely in criminal code. Even under the 1870 statue it was a federal district attorney that had to bring forth the civil case.
If we have the case as it's currently being brought forward, we'll need to Supreme Court to determine a final ruling for each candidate on a case by case basis, since it will always be appealed and we have 50+ states & territories that each can push their own lower judgment before it gets to SCOTUS. Political rivals & PACs may take advantage of such a system. We could have a circus of different timelines & claims on eligibility where (Presidential) candidates are on the ballot in one state but not another while we wait for a federal ruling. This especially concerning as specifically Trump wasn't present at the alleged "insurrection" but was giving political speech on it -- will EVERY person that spoke in favor Trump's looney conspiracy theories prior to Jan 6 be liable to be barred from running in this same manner as well. Beyond POTUS what happens to cases not beyond a state? Suppose one state declares a candidate for any office ineligible but they move to another state that disagrees & runs in that state? A federal law which is currently established is the best way to determine candidate eligibility in the 11th hour of a campaign -- all the more so on this current case being a primary election.
I don't see that the language you reference in Section 5 of the 14th Amendment is all that different in effect than the language in Section 8 of Article 1: "The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." If, as you contest, Section 5 of the 14th Amendment grants Congress the power to redefine the textual meaning of the 14th Amendment, then Article 1 Section 8 would similarly grant Congress the power to redefine the textual meaning of any provision in the entire Constitution. Such a situation would frustrate the entire premise of constitutional governance and the power and force of judicial review. And such a view has clearly not been held to be the case in constitutional law, given that the 14th Amendment provides the basis for an extensive amount of the case law in the 20th century, suggesting that the courts, not Congress, holds the role of interpreting the 14th Amendment as it does for the entire Constitution. The power of enforcement and the power of interpretation are separate powers. Congress passes the laws and the Courts interpret the law. If Congress wishes to change the meaning of the text of the Constitution, it must do so through the amendment process. That the power of enforcement is granted Congress, first in Article 1 Section 8 and reiterated in Section 5 of the 14th Amendment, cannot be construed to subvert the power of interpretation from the Judicial Branch, allowing a "soft amendment" process by passing non-fundamental legislation that can redefine the textual meaning of the Constitution at a whim. The fact of the matter is, I can see no argument that Section 3 relies upon a criminal conviction nor that the word insurrection must be defined according to definitions in non-fundamental law that doesn't weaken important underpinnings of the Constitution itself.
As an addendum, I would point out three things: First, that if your assertion is correct, Section 3 would essentially have not been in force between 1868 when the 14th Amendment was adopted and 1870 when Congress passed the statute you cite. This is not the case in that the first four instances of Section 3 disqualifications occurred in 1868 and 1869: John H. Christy, Kenneth H. Worthy, William L. Tate, and J.D. Watkins. Secondly, that the first instance in 1868 was a sole determination by the Governor of Georgia to refuse to certify the election predicated on Section 3, and that each of the 1869 instances had their disqualification considered and determined by state supreme courts (2 in North Carolina, 1 in Louisiana). And third, of the six confirmed instances of disqualification from office under Section 3 between 1868 and 1872, and 2 other instances in 1919 and 2022, not a single one was preceded by a criminal conviction of insurrection.
As to the question of incitement, I addressed my view in the essay that this shouldn't, and I believe cannot, be grounds for giving aid and comfort to an insurrection unless the speech in question can be reasonably asserted as "fighting language" according to the doctrines laid out by court precedent in regards to freedom of speech protections. Donald Trump, in my estimation, gave aid and comfort to the January 6th insurrection through dereliction of duty and by violating his oath of office. The concern you offer, "will EVERY person that spoke in favor Trump's looney conspiracy theories prior to Jan 6 be liable to be barred from running in this same manner as well?" is precisely why I dismissed the notion of incitement as grounds for giving aid and comfort in my essay.
Finally, I don't see how my interpretation of Section 3 would create a "circus" unless insurrection as I define it has run rampant in the country, which would mean we have a far more serious problem on our hands. January 6th was a singular instance of political violence, which is precisely why we face singular constitutional quandaries in dealing with it. In all the riots that took place in 2020, for example, the only instance of political violence that I would say meets my criteria for insurrection was the "Capitol Hill Autonomous Zone" in Seattle, Washington. And even instances of armed confrontation, such as the Bundy Ranch standoff and the Malheur Occupation, seem to fall short of my criteria for insurrection. I think too often in this debate, we make mistakes in assuming there is not very clear lines of separation between what happened on January 6th and most other instances of political violence in the history of country, and we're very wrong to assume that considering January 6th as an insurrection opens the door for a host of other forms of political violence to suddenly be considered insurrection. The fair reading definition I arrive upon of insurrection may not be the highest bar possible for defining insurrection, but it is still a sufficiently high bar as to avoid so loose a definition as to extend it toward other lesser forms of political violence.
In the early Republic, the court system faced a similar question regarding the definition of treason, in that the Constitution did not specifically define what constituted treason. When the Courts determined precedent of how it was to be defined, a circus did not ensue based upon claims of treason, because the Supreme Court established a clear doctrine that the lower courts then followed. However the courts decide this question in the coming month, we can rest assured given the predispositions of these justices that will establish a clear doctrine that the lower courts can follow. And, I conceded in my essay that one of the most likely outcomes will consider your concerns about how this question may impact an electoral process already underway, that they could rule that Jan. 6 was an insurrection and that Trump gave aid and comfort to the same while staying execution of the rule in light of the fact that votes have already been passed in a political contest. However, I hope this isn't how they rule in that it could lead to the real circus that I fear is more likely in this case, that the Democratic Party gains majorities in both Houses of Congress while Trump wins the election and that Congress would then seek to utilize Section 3 according to their own contrived mechanisms to disallow Trump from taking office even after having won the election, that they would attempt to wield the pseudo-impeachment power detractors to the present attempt to utilize Section 3 claim Congress holds. I think Donald Trump winning the election followed by such a utilization of Section 3 to bar him from office would be a far worse scenario than the Supreme Court utilizing Section 3 now, even though the primary process has already begun.
Great point on state level oaths. James Heilpern and I have cites that support that point here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4681108
We wrote this before I saw your piece
Excellent research!
Yeah, this is one of the reasons I chose not to write too terribly much on some of the specific questions such as these. Such treatments as yours and others are just far more persuasive than anything else I see out there. From what I can tell, the vast majority of counter-arguments to use of Section 3 in the present circumstance are extremely consequentialists, concerned with what might come of such an exercise of Section 3 and then working backward to avoid such use. While I can respect the prudential concern with fallout, my discomfort is that this isn't how originalists and textualists typically interpret the Constitution in any other situation. Isn't this, for example, the same argument against overturning Roe?
Well researched and well argued, but not entirely persuasive to me (though I have no legal training). If failure to stop the alleged insurrection is “aiding” it, then surely the Speaker’s failure to direct the Capitol police should make her equally culpable. I am also wary of any definition of insurrection that can be easily lobbed at any politician whose followers resort to violence. The BLM and Antifa riots clearly fit your definition of insurrection and were clearly aided by sitting members of Congress who organized their bail. Will all future elections be decided by preventing opposition candidates from being electable?
Not going to lie, I was a bit disappointed to see you never mentioned section 5 of the 14th Amendment or the definitions of insurrection/rebellion passed by Congress: the 1870 statute or the 1948 criminal insurrection law which repealed the 1870 statue and codified what is insurrection/rebellion under law.
This was a key component of the dissenting judges in the case heading towards the Supreme Court. Between both the section stating how Congress is to enforce the 14th Amendment, and Congress passing a law those definitions at minimum should be considered. We should especially see what changes/clarifications were made between the 1870 statute & 1948 law, and how/if it applies to the current claims.
I see little evidence to suggest that Section 5 can be construed to grant Congress a form of impeachment power far broader and with less checks on its exercise than the original impeachment power. And, Congress already has the ability to refuse to seat members and expel members to its own institutions. Indeed, in the reconstruction era, it exercised its power in such a way several times, but it did not, in so doing, claim to be exercising powers given them under the 14th Amendment. On the original impeachment power, it has a very specific and laid out process, whereas Section 3 has no such specificity. Further Section 3 does specifically offer a negative power to Congress in that they can "remove such disability" through 2/3 vote, and I don't think a fair reading can provide a positive power where a negative power is specifically laid out simply based on the language of Section 5. In addition, the original provisions of the Constitution establishes considerable power at the State level when it comes to elections, and, again, without specific language to the contrary, the specifics of electoral process can be reasonably inferred to remain with the states. Based on all of these observations, my interpretation of both Section 3 and Section 5 is that the power granted Congress regarding disqualification from office is a negative power, while the positive power is held by the states or, to some extent, by the Courts if asked by the state(s) or an interested party to consider the question. This view is backed up by the way other challenges to provisions regarding qualifications for holding office are handled, such as age and nation of birth. For example, we don't need a vote from Congress to determine someone is under 35 and therefore cannot hold office. That is a determination based on state level processes.
As for the various statutes establishing insurrection as a crime defined by statute, I would simply refer you back to Hamilton's quote: “Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” The meaning of Constitutional provisions cannot be altered through ordinary legislation, even if such legislation utilizes similar terms and concepts. We would, for example, not accept as binding a law passed by Congress that attempts to alter the meaning of "keeping and bearing arms" in a way conducive toward passing sweeping gun control laws. In a similar vein, the interpretation of the word insurrection cannot be based upon the use of the word in ordinary legislation or in criminal law. If that were the case, a Democratic Congress in the future could pass a law defining insurrection in the loosest terms possible, opening the door for the utilization of Section 3 in the most arbitrary way imaginable.
I think you're missing my point: I'm not referring to an impeachment power but clearly a defined law. No one from Jan 6, as of yet, has been charged as such. Determining a charge as serious as insurrection/rebellion out to be subject to a court of law not a mere election board on their own interpretation. Congress has through legislation defined it & has a mechanism to do so. This goes back to your argument that should someone believe the codified version (passed by a bias Congress) infringing on their rights can challenge it in court. The rights of an individual being told their ineligible because they're guilty of a crime which they've never been charged (or convicted) seens to infringe upon due process.
The current case as it stands was not a definition through the courts described by Congress but by a committee decision before being challenged in court. An election committee has a much easier time creating its own standards of what defines insurrection/rebellion than Congress. Loose local definitions of such a charge, especially in a case where it's focused on his speech not actions, is a very dangerous precedent to set.
Conservative states election committees could (and are trying to https://www.newsweek.com/republicans-pull-trigger-plan-remove-joe-biden-ballots-1855042) do the same thing based off their own interpretations of the law to candidates they don't like.
These actions by both parties on such soft grounds are in line with the actions of January 6th itself, are borne of the same undemocratic attitude. A lack of respect and decorum for thier fellow American citizens who disagree.
The most dangerous part of this insurrection/rebellion talk is if you compare it to what clearly was an act of rebellion in the civil war. It is not a dated amendment only to that, because the concept of state governments formally declaring succession or rejection of the authority of the federal government is still within the realm of possibility. An actual rebellion where a disgruntled candidate rejects election results and formally declares himself the winner without relinquishing power and/declaring martial law could happen. A charge so harsh as insurrection/rebellion should be so definitive it's not on a technicality or legal loophole unclearly defined.
It's not that I'm missing the point, it's that the argument is incredibly unpersuasive to me. As I've read all the arguments on both sides of this issue, the thing that left me unimpressed with the arguments against applying Section 3 in the present case is that there is simply no unifying theory to the arguments, no rational connective tissue.
For example, in the length of our brief discussion you have both claimed, on the one hand, that Section 5 places the enforcement of Section 3 solely in the hands of Congress while, at the same time, making arguments that a criminal conviction of insurrection is required before Section 3 can be enforced and that due process of law must be afforded anyone facing possible consequences pursuant to Section 3. Which is it? Is the enforcement of Section 3 a political question or a criminal question? It can't be both. The demand for due process would put the question in the purview of the courts. The demand for a criminal conviction would put the question in the hands of prosecutorial discretion. The assertion that Section 5 affords Congress sole authority in Section 3 would put the question in the hands of Congress alone. The combined ramifications of these arguments reminds me too much of the conflicting arguments over Trump's other legal problems, that he can't be impeached until charged with crime but that he can't be charged with a crime because the President holds absolute immunity from prosecution. It's an argument that combines toward stripping the efficacy of impeachment altogether. And, in the same vein, the various arguments against the use of Section 3 similarly combine toward stripping the efficacy of Section 3 altogether.
So much of the back on forth on this issue, as we can observe in our own discussion, is a confusion of the lines of separation between political processes, criminal processes, and civil processes. While political and civil processes can be informed by criminal processes, they do not stand frozen and ponderous at the mercy of criminal processes. This is why OJ Simpson escaped criminal consequences for murder but was nevertheless held liable for murder in civil court (and why Trump hasn't been convicted of rape in criminal but has nevertheless been held liable for rape in civil court). Take, for example, your demand for due process of law on the question of Section 3. Due process under the 14th amendment refers only to depriving "any person of life, liberty, or property." Depriving someone the ability to run for office is not a deprivation of any of these things. No one has a right to run for office. Running for office is a privilege. Section 3, as I mentioned in the piece, is not a criminal statute. It is a civil statue. Criminal and civil questions have very different processes and very different requirements. It's not a crime to be 34 and attempt to run for President, but the civil statutes of the Constitution forbid it. It's not a crime to be born outside the country and attempt to run for President, but the civil statutes forbid it. And since these are civil questions, a criminal conviction of some law is not required for the courts to judge on the questions. And if Congress chose to enact a law making either of these acts criminal offense, their chosen definition of the crimes would not weigh upon the separate civil process of denying them the ability to run for office and neither would conviction on a lesser crime based upon either prosecutorial discretion or by plea agreement. The enforcement of fundamental law Section 3 cannot reasonably rest upon either alterations of definitions by non-fundamental law or upon the choices of prosecutors in what crimes to prosecute.
The criminal conviction is Congress enforcing through legal code passed in Congress -- not an impeachment. A impeachment makes sense as well, but Congress passed a statute in 1870 then replaced it with an updated law in 1948. That's the only one I'm referring to which is Congress enforcing through appropriate legislation as stated in article 5. Both the laws passed and an impeachment are powers granted to Congress in article 5 to enforce the amendment. Not some rando civil charge in arbitrary states.
In either a court proceeding or impeachment there's a case to be determined. Just like if the committee said to prove your age or citizenship status you could produce documentation to prove it. If there's no court using Congress' defined code. When this Amendment was written you could produce simple proof "the candidate was a member of the Confederacy: here's his enlistment/commission papers, proof of his/her membership in Confederate government, etc. The 1870 statute did allow for civil action, but the 1948 code put it squarely in criminal code. Even under the 1870 statue it was a federal district attorney that had to bring forth the civil case.
If we have the case as it's currently being brought forward, we'll need to Supreme Court to determine a final ruling for each candidate on a case by case basis, since it will always be appealed and we have 50+ states & territories that each can push their own lower judgment before it gets to SCOTUS. Political rivals & PACs may take advantage of such a system. We could have a circus of different timelines & claims on eligibility where (Presidential) candidates are on the ballot in one state but not another while we wait for a federal ruling. This especially concerning as specifically Trump wasn't present at the alleged "insurrection" but was giving political speech on it -- will EVERY person that spoke in favor Trump's looney conspiracy theories prior to Jan 6 be liable to be barred from running in this same manner as well. Beyond POTUS what happens to cases not beyond a state? Suppose one state declares a candidate for any office ineligible but they move to another state that disagrees & runs in that state? A federal law which is currently established is the best way to determine candidate eligibility in the 11th hour of a campaign -- all the more so on this current case being a primary election.
I don't see that the language you reference in Section 5 of the 14th Amendment is all that different in effect than the language in Section 8 of Article 1: "The Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." If, as you contest, Section 5 of the 14th Amendment grants Congress the power to redefine the textual meaning of the 14th Amendment, then Article 1 Section 8 would similarly grant Congress the power to redefine the textual meaning of any provision in the entire Constitution. Such a situation would frustrate the entire premise of constitutional governance and the power and force of judicial review. And such a view has clearly not been held to be the case in constitutional law, given that the 14th Amendment provides the basis for an extensive amount of the case law in the 20th century, suggesting that the courts, not Congress, holds the role of interpreting the 14th Amendment as it does for the entire Constitution. The power of enforcement and the power of interpretation are separate powers. Congress passes the laws and the Courts interpret the law. If Congress wishes to change the meaning of the text of the Constitution, it must do so through the amendment process. That the power of enforcement is granted Congress, first in Article 1 Section 8 and reiterated in Section 5 of the 14th Amendment, cannot be construed to subvert the power of interpretation from the Judicial Branch, allowing a "soft amendment" process by passing non-fundamental legislation that can redefine the textual meaning of the Constitution at a whim. The fact of the matter is, I can see no argument that Section 3 relies upon a criminal conviction nor that the word insurrection must be defined according to definitions in non-fundamental law that doesn't weaken important underpinnings of the Constitution itself.
As an addendum, I would point out three things: First, that if your assertion is correct, Section 3 would essentially have not been in force between 1868 when the 14th Amendment was adopted and 1870 when Congress passed the statute you cite. This is not the case in that the first four instances of Section 3 disqualifications occurred in 1868 and 1869: John H. Christy, Kenneth H. Worthy, William L. Tate, and J.D. Watkins. Secondly, that the first instance in 1868 was a sole determination by the Governor of Georgia to refuse to certify the election predicated on Section 3, and that each of the 1869 instances had their disqualification considered and determined by state supreme courts (2 in North Carolina, 1 in Louisiana). And third, of the six confirmed instances of disqualification from office under Section 3 between 1868 and 1872, and 2 other instances in 1919 and 2022, not a single one was preceded by a criminal conviction of insurrection.
As to the question of incitement, I addressed my view in the essay that this shouldn't, and I believe cannot, be grounds for giving aid and comfort to an insurrection unless the speech in question can be reasonably asserted as "fighting language" according to the doctrines laid out by court precedent in regards to freedom of speech protections. Donald Trump, in my estimation, gave aid and comfort to the January 6th insurrection through dereliction of duty and by violating his oath of office. The concern you offer, "will EVERY person that spoke in favor Trump's looney conspiracy theories prior to Jan 6 be liable to be barred from running in this same manner as well?" is precisely why I dismissed the notion of incitement as grounds for giving aid and comfort in my essay.
Finally, I don't see how my interpretation of Section 3 would create a "circus" unless insurrection as I define it has run rampant in the country, which would mean we have a far more serious problem on our hands. January 6th was a singular instance of political violence, which is precisely why we face singular constitutional quandaries in dealing with it. In all the riots that took place in 2020, for example, the only instance of political violence that I would say meets my criteria for insurrection was the "Capitol Hill Autonomous Zone" in Seattle, Washington. And even instances of armed confrontation, such as the Bundy Ranch standoff and the Malheur Occupation, seem to fall short of my criteria for insurrection. I think too often in this debate, we make mistakes in assuming there is not very clear lines of separation between what happened on January 6th and most other instances of political violence in the history of country, and we're very wrong to assume that considering January 6th as an insurrection opens the door for a host of other forms of political violence to suddenly be considered insurrection. The fair reading definition I arrive upon of insurrection may not be the highest bar possible for defining insurrection, but it is still a sufficiently high bar as to avoid so loose a definition as to extend it toward other lesser forms of political violence.
In the early Republic, the court system faced a similar question regarding the definition of treason, in that the Constitution did not specifically define what constituted treason. When the Courts determined precedent of how it was to be defined, a circus did not ensue based upon claims of treason, because the Supreme Court established a clear doctrine that the lower courts then followed. However the courts decide this question in the coming month, we can rest assured given the predispositions of these justices that will establish a clear doctrine that the lower courts can follow. And, I conceded in my essay that one of the most likely outcomes will consider your concerns about how this question may impact an electoral process already underway, that they could rule that Jan. 6 was an insurrection and that Trump gave aid and comfort to the same while staying execution of the rule in light of the fact that votes have already been passed in a political contest. However, I hope this isn't how they rule in that it could lead to the real circus that I fear is more likely in this case, that the Democratic Party gains majorities in both Houses of Congress while Trump wins the election and that Congress would then seek to utilize Section 3 according to their own contrived mechanisms to disallow Trump from taking office even after having won the election, that they would attempt to wield the pseudo-impeachment power detractors to the present attempt to utilize Section 3 claim Congress holds. I think Donald Trump winning the election followed by such a utilization of Section 3 to bar him from office would be a far worse scenario than the Supreme Court utilizing Section 3 now, even though the primary process has already begun.