Can the 14th Amendment Be Used Against Insurrectionist Members of Congress?

 by Nomad

As civil rights lawyers will tell you, the 14th Amendment has been a bulwark against institutionalized racism in America. 

Ratified in the Reconstruction Era following the Civil War, the amendment granted citizenship to all persons born or naturalized in the United States—including formerly-enslaved people—and guaranteed all citizens “equal protection of the laws.” civil and legal rights for Black Americans were- (at least, in theory, if not in practice) guaranteed by federal law. 

In the 1950s and 60s, it was to prove a reliable foundation upon which to abolish the second-class status for African-Americans in the Deep South.

Historical Background on the 14th

Let's back up and review the creation of this amendment. 

Little known fact: In the election of 1864, Republican Abe Lincoln sought to unify the nation by selecting as his running mate, a Democrat, Andrew Johnson. (It was the one-off National Union ticket.) It might have sounded like a swell idea at the time but it was to have devastating and unforeseen consequences.

The end of the war was in sight and Lincoln's next challenge was to rebuild the destroyed South and to bring the country together again. The problem with Lincoln's mixed ticket was that South Carolina-born Johnson was considered by the Republican Congress to be a Confederate sympathizer.

Everybody's worst fears came true when Lincoln was murdered by an unhinged actor and Confederate sympathizer, John Wilkes Booth. The nightmare, however, had just begun. Vice-president Johnson then became president, exactly as the Constitution mandated. Suddenly, to Congress's horror, the defeated South was apparently now in charge of running the country. How could this have happened? 

As president, Johnson indeed used his executive powers to unify the nation. There was one complication: how could the former rebel states be held accountable? What was to keep the South from using states' rights to return to the legalized slavery? What was to keep former rebel leaders from holding office? 

Employing powers of proclamation and pardon, Johnson moved state by state, requiring each returning rebel state to create a state constitution repudiating slavery and a new legislature to ratify the 13th Amendment. The strategy was effective. Of the first 27 states required for ratification, seven were from the former Confederacy. But in doing so, Johnson had allowed former Confederates to vote and hold public office, effectively restoring white-dominated state governments that were free to obstruct black enfranchisement.

To put a stop to Johnson's too-soft approach, Congress proposed a 14th constitutional amendment. Congress faced a difficult legislative problem: how to prevent democratically-elected insurrectionists from infiltrating the US government again. 

One provision was particularly useful in preventing a relapse. Section 3 of the 14th Amendment to the Constitution reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

This provision was known informally as the disqualification clause and was originally enacted to limit the influence of former Confederates in the Reconstruction era. 

In effect, it mandated that anyone who “engaged in the insurrection” against the United States could not hold civil, military, or elected office (without the approval of two-thirds of the House and Senate).

"Kicking Some Ass"

Fast forward to last week in which radicalized Republican members of both the House and the Senate openly incited the crowds with lies and inflammatory rhetoric. Once energized, those crowds proceed to march -as directed- to the Capitol building where Congress was in session, certifying the Electoral College vote.  Like a scene from a zombie film, the mob then raided and vandalized government property. 

At least among some in that crowd, the intention was to physically harm ranking members of Congress, as well as the Vice-president. For example, Rep. Mo Brooks of Alabama stood before the angry crowds on Wednesday and said:

"Today is the day American patriots start taking down names and kicking ass." 

It's hard to imagine that mob taking such a statement as just a joke or a rhetorical flourish.

The latest allegations against members of Congress are even more disturbing. According to one unverified report by Rep. Mikie Sherrill, a Democrat from New Jersey, some members of Congress led people through the Capitol on Jan. 5 in what she termed a "reconnaissance for the next day" when insurrectionists took part in a deadly siege on the legislative branch.

An investigation is likely to reveal the truth behind the claims. Were members of Congress in on the planning of the attack? Hopefully not but if so, then there has to be some kind of full-bodied censure.

But this much is clear: What ensued on Wednesday was one of the darkest moments in American history. Insurrectionists are now being hunted down, even as extremist right-wing groups continue to threaten further disruptions in the lead-up to Biden's swearing-in.

  

But how can members of Congress ever be held accountable for their part in provoking the crowds? And without true accountability, what is to stop it from happening again?

On Sunday, Rep. Cori Bush, a freshman Democrat from Missouri, wrote  on Twitter:

"Tomorrow, I'm introducing my resolution to expel the members of Congress who tried to overturn the election and incited a white supremacist coup attempt that has left people dead. They have violated the 14th Amendment..We can't have unity without accountability."

Yesterday Bush called for support from the public

There are GOP members of Congress who worked with the President for months to sabotage our democracy, ultimately inciting the white supremacist insurrection. They must be investigated and expelled. H.Res. 25 will do just that. Call your rep to sign on: 202-224-3121

“Our democracy," Bush said "cannot be attacked — especially from within — and we do nothing,” 

But what are the chances of success? Firstly, since her resolution only applies to the House and not the Senate, it would not apply to the two worst offenders, Missouri senator Josh Hawley, and Texas senator Ted Cruz. (It would however apply to House Representative Mo Brooks, Louis Gohmert of Texas, and possibly quite a few others.)

As CNN noted, it would certainly set a precedent. Does Section 3 actually apply? If Congress actually used the provision, there's no doubt a challenge would wind up in the Supreme Court. 

Since its ratification, no lawmaker has ever been dismissed using the Section 3 provision. And yet these are extraordinary times and if the provision is to mean more than simply a theoretical threat, this could be the right moment. 

What do you think? Should Section 3 of the 14th amendment be invoked? Should the Democrats risk dividing the Congress still further? 

UPDATE:

WATCH LIVE: House takes up second Trump impeachment | PBS NewsHour Special Coverage

 

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