In search of historical guidance and legal tools to respond to the violent siege of the U.S. Capitol last week, members of Congress and law scholars are re-examining a little-known section of a Constitutional-era constitutional amendment.
Section 3 of the 14th Amendment, in theory, gives Congress the authority to prohibit public officials, who specifically took an oath of allegiance to the United States Constitution, from “engaging in insurrection or rebellion” against the United States. Constitution and therefore break his oath. But the provision has rarely been used or tested, and therefore academics are unsure of how exactly Congress could exercise authority under that provision and to what end today.
House Speaker Nancy Pelosi, D-California, asked colleagues on Sunday for their views on this part of the Constitution.
Representative Alexandria Ocasio-Cortez told ABC News anchor chief 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.
“It’s not about the 25th Amendment or dismissal or, you know, investigating our other avenues through the 14th Amendment,” he told ABC’s “This Week” on Sunday. “I don’t think it’s about deciding or debating which of these paths we should follow. I don’t think we should take an approach to all of that.”
Then, on Monday, Democrats did the same in their new indictment against President Donald Trump.
After the end of the Civil War, Congress faced questions about who should be able to hold power and hold public office as the country united.
“They fight the war for slavery and lose it, 700,000 to 800,000 people dead,” Columbia War historian and Columbia University professor Stephanie McCurry said of the southern states. “They lost in April 1865, but in December 1865 they sent them back to Congress: people like Alexander Stephens, the former vice president of the Confederacy. It’s amazing that they thought they could do that. They’re completely unrepentant and they’re used to it. the power “.
Dismayed at the time, members of Congress refused to seat men like Stephens, and the debate prompted the wording of section 3 of the 14th Amendment, which was ratified three years later in 1868.
“It doesn’t say anything about the Confederates. It’s about anyone committing this kind of thing. My view is that it would apply to President Trump and prohibit him from holding any office at this time or in the future,” he won. Civil Pulitzer Prize War historian Eric Foner told ABC News Monday.
Foner highlighted the part of section 3 that refers to those political and military leaders who previously took the oath of office. He argued that the provision was not intended to prohibit average Confederate soldiers from holding public office, but especially those who had previously sworn to protect the United States Constitution.
“It was a punishment for having rebelled, but in a sense, a rebellion after taking an oath. It was a perjury for those who punished them,” he said. “(Trump) took an oath to support the Constitution and has now aided the insurgency and that’s the kind of thing the people who wrote the 14th Amendment were trying to avoid. Even though only a handful have been used. sometimes in American History, it’s already there. “
According to Foner, for a few years the law was enforced in the south and there were examples of people who had to step down from public office in the direction of the U.S. Congress and local officials because they had previously been Confederate. But in 1872, Congress passed a larger amnesty law and section 3 of the 14th Amendment was essentially filed.
Trump urged his supporters to “show strength” Wednesday morning before many of the crowd marched on Capitol Hill and raped Congress halls. Most of the talks around the 14th Amendment since last week have been about whether Congress could use its authority, under this provision, to specifically remove President Trump or ban him from returning to office. .
Some have questioned whether the same part of the Constitution could be applied in this case to punish incumbent members of Congress as well for their potential role in inciting violence by perpetuating misinformation around elections.
First-year Representative Cori Bush made her legislative debut by introducing a resolution over the weekend that seeks to oust some of her colleagues who voted against certifying the 2020 election results. Her legislation, sponsored by 47 members of the Democratic House, he specifically names Rep. Mo Brooks, Sen. Josh Hawley and Sen. Ted Cruz, and accuses them of having “taken unprecedented steps to challenge the will of the American people.”
“Section 3 of the 14th Amendment to the Constitution states that no person may serve in the House of Representatives who has participated in disloyalty or sedition against the United States. There is no place in the House of Commons for such heinous actions. I strongly believe that these members are violating their sworn oath of office to support and defend the U.S. Constitution. They must be held accountable, “Bush said in a statement.
The House of Representatives and the Senate, respectively, have their own rules for reprimanding and expelling members, and it is unclear whether Congress could circumvent those rules by passing a law in accordance with parts of the 14th Amendment.
Michael Klarman, a constitutional law scholar at Harvard Law School, told ABC News in an email that he considers applying section 3 of the 14th Amendment to disqualify a member from questioning the legitimacy of the election, according to last week’s events “a real stretch”.
He added that “insurrection” and “rebellion” are “legal terms with an established meaning … I don’t think Wednesday’s event is appropriate.”
“While (Sens.) Hawley and Cruz are despicable, and I have signed the petition to demand their dismantling, I find it great to describe what they did (Wednesday) as an ‘insurrection or rebellion,'” he said. write Klarman.
University of Texas constitutional law expert Stephen Vladeck appeared to agree during an interview with ABC affiliate WFAA.
“The idea is that this very provision should disqualify, ipso facto, the president from continuing to hold office,” Vladeck said. “I don’t think anyone ever thought that this would be used to oust an incumbent president who has been for most of his entire term.”
After the Civil War, Americans had a clearer example of what was considered an insurrection that many do today. Most likely, in order for Congress to remove someone from office for these reasons or ban them in future positions, members should first investigate last week’s violent events and make a formal determination or statement as to whether the actions of the mob were premeditated, organized or if they constituted a coordinated attack on the federal government.
“I think it would require Congress to pass a law … saying that what happened on and around January 6 was an insurrection under the constitution and therefore (Trump) is disqualified. They should do some findings on why this qualifies as insurrection. What does insurrection mean in 2021? ”ABC News legal analyst and Cardozo law professor Kate Shaw said Monday.
“Even if as a scholar you say,‘ this does not coincide with my conception of an insurrection ’, which in no way means that Congress cannot come to a different conclusion … they have a right to make their own determination Shaw continued, saying the courts would probably weigh.
Shaw also added that Rep. Jaime Raskin, one of the authors of the new dismissal article, is also a former professor of constitutional law.
Alisa Wiersema of ABC News contributed to this report.