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Congress could use obscure section of 14th Amendment to hold Trump accountable for attack on Capitol Hill
If the Senate acquits former President Donald Trump in the next 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 U.S. Constitution. The amendment is best known for its first section, which guarantees individual rights and equality after the abolition of slavery. Section 3 of the 14th Amendment was created to tackle a different problem related to civil war: insurgency. It prohibits current or former military officers, as well as many current and former federal and state officials, from serving in various government offices if they “have engaged in an insurgency or rebellion” against the Constitution of the United States. . This section was created after the Civil War as part of the 14th Amendment to prohibit military officers and civilian officials who joined the Confederacy from serving in government again. Now, this provision is cited in the article of impeachment against former US President Donald Trump, introduced after the insurgent violence on Capitol Hill on January 6, 2021. An impeachment trial is scheduled to begin in the Senate on February 8. trial quashed or acquitted Trump, some senators are considering a resolution invoking Article 3 of the 14th Amendment in an attempt to prevent him from performing his future duties. Senator Tim Kaine, Democrat of Virginia, is said to be preparing an alternative to the 14th Amendment to a Senate impeachment trial. Tom Williams / CQ-Roll Call, Inc via Getty Images A Reconstruction Era Amendment Immediately after the passage of the 14th Amendment in 1868, Section 3 was vigorously implemented. For example, Congress ordered the Union Army to oust all former Confederate officials then stationed in former Confederate states still under martial law. It is estimated that tens of thousands of men have been made ineligible to serve under Section 3. Section 1 of the impeachment charges against Donald Trump invokes the 14th Amendment. The Congress of the United States House of Representatives then enacted legislation as part of the first Ku Klux Klan Act in 1870, giving the Department of Justice the power to sue in federal court to enforce section 3 to former Confederate officials still serving in other states. Three justices of the Tennessee Supreme Court were prosecuted under this law. One resigned; the other two contested their ineligibility in court. North Carolina and Louisiana also applied Section 3 to court, upholding in 1869 the dismissal of certain state officials who had served the Confederacy, including a sheriff, constable, and district attorney. In 1871, after the North Carolina Legislature elected its Civil War-era Governor Zebulon Vance to the Senate, the Senate ruled him ineligible to sit under Section 3. The State Legislature was forced to choose someone else. Unity Against Liability Less than five years after reconstruction began, however, many northerners began asking Congress to grant amnesty to Southern officers banned from office by Section 3. The 14th Amendment gives the Congress had the power to restore the right to hold office with two-thirds votes in each chamber. This campaign, led by prominent New York newspaper editor Horace Greeley, reflected white fatigue with the burden of implementing the 14th Amendment and the 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 the amnesty. In a December 4, 1871 message to Congress, he asked lawmakers to grant amnesty to former Confederate officials. After a long and moving debate, Congress did so in 1872 with the General Amnesty Act. Soon, voters in the South sent many previously disqualified men back to Congress, including Alexander Stephens, the former Confederate Vice President. Confederate President Jefferson Davis and a few hundred other former federal public servants and military officers remained excluded from public service. Georgia Stone Mountain commemorates Confederate leaders Jefferson Davis and Robert E. Lee, both banned from their posts in the 1870s. Wikimedia Commons, CC BY In granting this amnesty, Congress rejected a proposal by Massachusetts Senator Charles Sumner, a vocal advocate for racial equality, to couple forgiveness for white Southerners with a new civil rights law that, among other things, would have banned race discrimination in schools. In 1898, as the Spanish-American War was about to begin, Congress removed Section 3 ineligibility from all living ex-rebels. It was widely seen as another gesture of national unity, but it was another nail in the coffin of reconstruction. Neglected but not forgotten During the 20th century, Section 3 was largely ignored. It was only used once, during World War I, to exclude Socialist Congressman Victor Berger from the House for his anti-war speeches. In the 1970s, Congress granted Robert E. Lee and Jefferson Davis a posthumous Section 3 amnesty. This was again done in the name of national “reconciliation” after the divisive Vietnam War . Today, Section 3, created to defeat white supremacy, is experiencing a revival. The Confederate flag, which never entered the Capitol during the Civil War, was carried inside during the January 6 uprising at the Capitol. House Speaker Nancy Pelosi signs an article of impeachment against then President Donald Trump on January 13, 2021. Stefani Reynolds / Getty Images Any member of Congress determined to be “engaged in a insurrection ”can be expelled under this provision by two-thirds vote in their house of Congress. This potentially includes lawmakers who directly aided or incited the rioters. Capitol Police are investigating several Republican congressional officials for allegedly leading “reconnaissance” visits to the building on January 5. While lawmakers can remove their colleagues from office, they cannot legally prevent such members from running for office and re-assuming public office. This is because there is no federal law implementing section 3 today; these parts of the Ku Klux Klan law were repealed a long time ago. Unless Congress passes new implementing legislation, any expelled lawmaker could return later. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Likewise, Congress could at any time use Section 3 to declare 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 first disqualify Trump, as part of impeachment, or he may choose not to run again. If he does show up, however, he may have to take his case to the Supreme Court. A bipartisan congressional opinion on ineligibility would be a blow to his candidacy. This article is 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 those mourning the fragility of American democracy are wrongHow age diversity in a presidential cabinet could affect policies and programs Gerard Magliocca does not work, consult, own shares or does not receive funding from any company or organization that would benefit from this article, and has not disclosed any relevant affiliations beyond their academic appointment.
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