In search of historical guidance and legal tools to respond to the violent siege of the United States Capitol last week, members of Congress and legal scholars are reexamining a little-known section of a constitutional amendment from the Reconstruction era.
Section 3 of the 14th Amendment, in theory, gives Congress the authority to prevent public officials, who have specifically taken an oath of allegiance to the United States Constitution, from taking office if they “engage in an insurrection or rebellion” against the Constitution and therefore, violate your oath. But the clause has rarely been used or tested, so scholars are unsure about exactly how Congress could exercise authority under this clause and for what purpose today.
House Speaker Nancy Pelosi, D-Calif., Formally asked her colleagues on Sunday for their views on this part of the constitution.
Congressman Alexandria Ocasio-Cortez told ABC News’ chief anchor George Stephanopoulos that Congress was exploring many possible legal and political avenues to respond to the attack and hold the president accountable, if not other elected officials.
“This is not the 25th Amendment or impeachment or, you know, investigating our other paths through the 14th Amendment,” she said on ABC’s “This Week” Sunday. “I do not believe that it is a matter of deciding or debating which of these paths we should take. I believe that we should adopt an approach with all of the above options.”
Then, on Monday, Democrats also mentioned it explicitly in their impeachment article against President Donald Trump.
After the end of the Civil War, Congress faced questions about who should be able to retain power and hold public office while the country was recovering.
“They fight a war for slavery and lose it – 700,000 to 800,000 people killed,” said Stephanie McCurry, a Civil War historian and professor at Columbia University, of the southern states. “They lose in April 1865, but in December 1865 they are sending back to Congress – people like Alexander Stephens, the former vice president of the Confederacy. It is unbelievable that they thought they could do this. They are completely unrepentant and are used to exercising power. “
Discouraged at the time, members of Congress refused to name men as Stephens and the debate stimulated the wording of Section 3 of the 14th Amendment, which was ratified three years later in 1868.
“It says nothing about the Confederates, it is about anyone who does that kind of thing. My opinion is that it would apply to President Trump and bar him for holding any position, either now or in the future,” winner of the Pulitzer Civil Prize. The historian Eric Foner told ABC News on Monday.
Foner emphasized the part of Section 3 that refers to political and military leaders who previously took an oath. He argued that the provision is not intended to bar ordinary Confederate soldiers from public office, but especially those who had previously vowed to protect the United States Constitution.
“It was a punishment for having rebelled, but in a sense, a rebellion after taking an oath. They were punishing them for perjury,” he said. “(Trump) took an oath to support the Constitution and now helped the insurrection and that’s the kind of thing that people who wrote the 14th Amendment were trying to avoid. Even though it has only been used a few times in American history, it is there . “
According to Foner, for some years the law was enforced in the South and there were examples of people who had to leave their public positions in the direction of the United States Congress and local authorities because they were previously confederated. But in 1872, Congress passed a broader amnesty law, and Section 3 of the 14th Amendment was basically shelved.
Trump urged his supporters to “show strength” on Wednesday morning, before many in the crowd marched to the Capitol and invaded the corridors of Congress. Most of the talk about the 14th Amendment since last week has been about whether Congress could use its authority under this provision to specifically remove President Trump or to forbid him to seek office again.
Some wonder whether the same part of the constitution could be applied in this case to punish members of Congress as well for their potential role in inciting violence through the perpetuation of disinformation around the election.
Freshman MP Cori Bush made her legislative debut by presenting a resolution over the weekend that aims to expel some of her colleagues who voted against certifying the results of the 2020 elections. Her legislation, co-sponsored by 47 Democratic members of the House, names the Congressman Mo Brooks, Senator Josh Hawley and Senator Ted Cruz, specifically, and accuses them of “taking unprecedented steps to defy the will of the American people”.
“Section 3 of the 14th Amendment to the Constitution postulates that no individual can serve in the House of Representatives if he has been involved in disloyalty or sedition against the United States. There is no place in the House of the People for these heinous actions. I firmly believe that these members are violating their official oath to support and defend the United States Constitution. They must be held accountable, “Bush said in a statement.
The House of Representatives and the Senate, respectively, have their own rules for rebuking and expelling members, and it is not clear whether Congress could circumvent these rules by passing a law under parts of the 14th Amendment.
Michael Klarman, a constitutional law scholar at Harvard Law School, told ABC News by email that he believes applying Section 3 of the 14th Amendment to disqualify a member who questioned the legitimacy of the election, based on the week’s events. last was “a real stretch.”
He added that “insurrection” and “rebellion” are “legal terms with an established meaning … I just don’t think Wednesday’s event qualifies.”
“Although (Sens.) Hawley and Cruz are negligible, and I signed the petition asking for their exclusion, it seems an exaggeration to describe what they did (Wednesday) as ‘insurrection or rebellion’,” wrote Klarman.
University of Texas constitutional law expert Stephen Vladeck seemed to agree during an interview with WFAA, an affiliate of ABC.
“The idea is that this provision in itself should, ipso facto, disqualify the president from continuing to hold office,” said Vladeck. “I don’t think anyone ever thought that this would be used to really remove an incumbent president who served for most of his entire term.”
After the Civil War, Americans had a clearer example of what was considered an insurrection than many have today. Most likely, for Congress to remove someone from office for these reasons or prevent him from future office, members would first need to investigate last week’s violent events and make a formal determination or statement about whether the crowd’s actions were premeditated, organized or if they constituted a coordinated attack against the federal government.
“I think it would require Congress to pass a law … saying that what happened on January 6, before and next to it, was an insurrection under the constitution and therefore (Trump) is disqualified. They would have to do some conclusions about why this qualifies as an uprising. What does uprising mean in 2021? “ABC News legal analyst and Cardozo law professor Kate Shaw said on Monday.
“Even if, as a scholar, you say, ‘this does not correspond to my conception of an insurrection’, it in no way means that Congress is prevented from reaching a different conclusion … they have the right to make their own determination, “Shaw continued, saying the courts would likely have an assessment.
Shaw also added that Rep. Jaime Raskin, one of the authors of the new impeachment article, is also a former professor of constitutional law.
Alisa Wiersema of ABC News contributed to this report.