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Congress could use a mysterious section of the 14th Amendment to hold Trump accountable for the attack on the Capitol
If the Senate absolves former President Donald Trump in the coming impeachment trial, there is another obscure way to punish him. iStock / Getty Images Plus Until recently, Section 3 of the 14th Amendment was an obscure part of the United States Constitution. The amendment is best known for its first section, which guaranteed individual rights and equality after the abolition of slavery. Section 3 of the 14th Amendment was created to deal with a different problem related to the Civil War: insurrection. It prohibits current or former military personnel, along with many current and former federal and state civil servants, from serving in various government positions if they “have been involved in an insurrection or rebellion” against the United States Constitution. This section was created after the Civil War as part of the 14th Amendment to ban military officers and civil servants who joined the Confederation from serving in the government again. This provision is now cited in the impeachment article against former US President Donald Trump, presented after the insurrectional violence at the Capitol on January 6, 2021. An impeachment trial is scheduled to begin in the Senate on February 8. Even if the trial is canceled or acquitted Trump, some senators are considering a resolution invoking Section 3 of the 14th amendment in an effort to prevent him from holding a future position. Sen. Tim Kaine, a Democrat from Virginia, is reportedly preparing a 14th Amendment alternative to the Senate impeachment trial. Tom Williams / CQ-Roll Call, Inc via Getty Images An amendment from the reconstruction era Right after the 14th Amendment was passed in 1868, Section 3 was applied vigorously. For example, Congress instructed the Union Army to expel any former Confederate officers who held positions in former Confederate states still under martial law. It is estimated that tens of thousands of men were considered ineligible to serve by Section 3. Article 1 of the impeachment charges against Donald Trump invokes the 14th Amendment. The Congress of the US House of Representatives enacted legislation as part of the First Ku Klux Klan Act in 1870, giving the Department of Justice the authority to prosecute in federal courts to enforce Section 3 against former Confederation officials who still held positions in other states. Three Tennessee Supreme Court judges were prosecuted under this law. One resigned; the other two contested their ineligibility in court. North Carolina and Louisiana also applied Section 3 in court, upholding in 1869 the dismissal of some state officials who served in the Confederation, including a sheriff, a police officer and a public prosecutor. In 1871, after the North Carolina Legislature elected Civil War-era governor Zebulon Vance to the Senate, the Senate found him ineligible to serve in Section 3. The state legislature was forced to choose someone else. Unity versus responsibility Less than five years after the reconstruction, however, many northerners began to ask Congress to grant amnesty to Southern officials prevented from exercising their positions by Section 3. The 14th Amendment gives Congress the power to restore the right to occupy posts with two-thirds voting in each chamber. This campaign, led by prominent New York newspaper editor Horace Greeley, reflected white fatigue with the burden of enforcing the entire 14th Amendment and a desire to overcome the bitterness of the Civil War. Greeley and his “liberal republicans” mounted a presidential campaign in 1872 based in part on a “universal amnesty” platform. President Ulysses S. Grant, who was running for re-election, knew that white public opinion was now in favor of amnesty. In a December 4, 1871 message to Congress, he asked lawmakers to grant amnesty to former Confederate officials. After a long and emotional debate, Congress did so in 1872 with the General Amnesty Law. Soon voters in the south sent many previously disqualified men back to Congress, including Alexander Stephens, the former vice president of the Confederation. Confederate President Jefferson Davis and a few hundred other former federal and military officials remained excluded from public office. Georgia’s Stone Mountain honors Confederate leaders Jefferson Davis and Robert E. Lee, both banned from office in the 1870s. Wikimedia Commons, CC BY In granting this amnesty, Congress rejected a proposal by Massachusetts Senator Charles Sumner, an eloquent advocate of racial equality, of coupling forgiveness to white southerners with a new civil rights law that, among other things, would have prevented racism and discrimination in schools. In 1898, with the Spanish-American War about to start, Congress removed Section 3 ineligibility from all living ex-rebels. It was widely seen as another gesture of national unity, but it was more of a nail in the Reconstruction coffin. Neglected, but not overlooked During the 20th century, Section 3 was largely ignored. It was used only once, during the First World War, to exclude Socialist Congressman Victor Berger from the Chamber for his anti-war speeches. In the 1970s, Congress granted the posthumous amnesty for Section 3 by Robert E. Lee and Jefferson Davis. This was done again in the name of “national reconciliation” after the Vietnam War divide. Today Section 3, created to overcome white supremacy, is seeing a revival. The Confederacy flag, which never entered the Capitol during the Civil War, was carried inside during the Capitol uprising on January 6. House Speaker Nancy Pelosi signs an impeachment article against then President Donald Trump on January 13, 2021. Stefani Reynolds / Getty Images Any member of Congress determined to have “been involved in an insurrection” can be expelled under this provision by two-thirds vote in their house of Congress. This potentially includes lawmakers who directly assisted or incited protesters. Capitol police are investigating several Republican representatives in Congress for allegedly leading “reconnaissance” trips to the building on January 5. While lawmakers can remove their colleagues from office, they cannot legally prevent those members from running for office and holding public office again. This is because there is currently no federal statute applying Section 3; those parts of the Ku Klux Klan Act were repealed a long time ago. Unless Congress passes a new law enforcement law, any expelled legislators can return later. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Likewise, Congress could at any time use Section 3 to state its constitutional opinion that Trump is not eligible to hold public office again, with a majority vote. But only the courts, interpreting Section 3 for themselves, can prevent someone from running for president. The problem may never arise. The Senate may disqualify Trump first, as part of the impeachment, or he may choose not to run again. If he runs, however, he may have to take the case to the Supreme Court. A bipartisan view of Congress on ineligibility would be a major blow to his candidacy. This article was republished from The Conversation, a nonprofit news site dedicated to sharing ideas from academic experts. It was written by: Gerard Magliocca, Indiana University. Read more: What are wrong with those who lament the fragility of American democracy? How does age diversity in a presidential office affect policies and programs? Gerard Magliocca does not work, consult, own shares, or receive funding from any company or organization that would benefit with this article, and did not disclose relevant affiliations beyond his academic appointment.