In search of historical guidance and legal instruments to respond to the violent siege of the U.S. Capitol last week, members of Congress as well as jurists are investigating a little-known portion of a constitutional amendment from the Reconstruction era.
Section 3 of the 14th Amendment theoretically gives Congress the power to prevent public officials, who specifically took an oath of allegiance to the U.S. Constitution, from holding office if they act “against rebellion or rebellion” against the Constitution and therefore breaking their breach. oath. But the provision has seldom been used or tested, and therefore scholars are uncertain as to how exactly Congress can exercise authority under this provision and to what end today.
House President Nancy Pelosi, D-California, formally asked her colleagues on Sunday for their opinion on this part of the Constitution.
Rep. Alexandria Ocasio-Cortez told George Stephanopoulos, chief anchor of ABC News, that Congress is investigating many possible legal and political ways to respond to the attack and hold the president, if not other elected officials, accountable.
“This is not the 25th amendment or accusation, or, you know, our other avenues through the 14th amendment,” she said on ABC’s “This Week” Sunday. “I do not believe it is a matter of deciding whether to debate which of these paths we should follow. I believe we should take an overall approach.”
On Monday, Democrats also explicitly referred to it in their newly drafted article of accusation against President Donald Trump.
After the end of the Civil War, Congress was faced with questions about who should be able to retain power and hold public office while the country is reunited.
“They are fighting a war on slavery and losing it – 700,000 to 800,000 people have died,” said Columbia War historian and professor at Columbia University Stephanie McCurry about the southern states. “They lost in April 1865, but by December 1865 they were sending back to Congress – people like Alexander Stephens, the former Vice President of the Confederacy. It’s amazing that they thought they could do it. They are completely unrepentant and they were used to exercise power. ‘
Recall at the time, Congressmen refused to seat men like Stephens, and the debate spurred the drafting of Article 3 of the 14th Amendment, which was ratified three years later in 1868.
“It says nothing about the Confederates, it’s about anyone who does these kinds of things. My opinion is that it will apply to President Trump and prevent him from holding any office now or in the future,” the Pulitzer- award-winning Civil War historian Eric Foner told ABC News on Monday.
Foner emphasized the section of Article 3 that refers to political and military leaders who had previously taken an oath. He argued that the provision was not intended to ban average Confederate soldiers from public office, but especially those who had previously sworn to protect the U.S. Constitution.
“It was a punishment to rebel, but in a sense a rebellion after taking an oath. It was perjury for which they punished themselves,” he said. “(Trump) took an oath to support the Constitution and now he has revolted, and that’s the kind of thing the people who wrote the 14th Amendment tried to avoid. Although it’s only used a few times is American history, it’s there. ‘
According to Foner, the law was applied in the South for several years and there were examples of people having to leave their public offices under the leadership of the US Congress and local officials because they were formerly Confederates. But in 1872, Congress passed a major amnesty law, and Article 3 of the 14th Amendment was essentially suspended.
Trump urged his supporters to ‘show strength’ on Wednesday morning before many people marched in the crowd to Capitol Hill and trampled on the halls of Congress. Most of the talks surrounding the 14th Amendment since last week have been about whether Congress can use its authority, under this provision, to specifically remove President Trump or ban him from seeking his office again.
Some have wondered whether the same part of the Constitution could be applied in this case to also punish sitting members of Congress for their potential role in inciting violence by maintaining misinformation around the election.
First-year Rep. Cori Bush made her legislative debut this weekend and tabled a resolution aimed at ousting some of her colleagues who voted against confirming the 2020 election results. Her legislation, which was sponsored along with 47 members of the Democratic House, names Mo Brooks, Senator Josh Hawley and Senator Ted Cruz, accusing them of “taking unprecedented steps to defy the will of the American people.”
“Section 3 of the 14th Amendment of the Constitution states that no individual may serve in the House of Representatives who is unfaithful or rebellious against the United States. There is no place in the House of Commons for this heinous act. I firmly believe that this “Members are violating their sworn 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 each have their own rules for reprimanding and expelling members, respectively, and it is unclear whether Congress could have circumvented these rules by passing a law under parts of the 14th Amendment.
However, Michael Klarman, a scientist at Harvard Law School, told ABC News in an email that he believes the application of Section 3 of the 14th Amendment to disqualify a member who has questioned the legitimacy of the election, based on the events of last week. “a real piece.”
He added that “insurgency” and “rebellion” are “legal terms with an established meaning … I just do not think Wednesday’s event would qualify.”
“While (Sens.) Hawley and Cruz are contemptuous, and I signed the petition asking them to be discouraged, it seems to me a great piece to describe what they (Wednesday) did as ‘rebellion or revolt’. ”, Klarman wrote.
Stephen Vladeck, an expert on constitutional law at the University of Texas, was apparently in agreement during an interview with ABC affiliate WFAA.
“The idea is that this provision itself should disqualify the president from continuing to hold office,” Vladeck said. “I don’t think anyone ever thought it would be used to actually oust a sitting president who served for the better part of his entire term.”
After the Civil War, Americans had a clearer example of what was counted as insurrection than many do today. Probably, if members on these grounds have to remove someone from office or prevent them from the future office, members will first have to investigate the violent events of last week and make a formal decision or statement or plan the actions of the mob in advance. were, organized or if they were to make a coordinated attack on the federal government.
“I think it will require Congress to pass a law … and to say that what happened on January 6 before and around it was revolt under the constitution and therefore (Trump) was disqualified. They will make findings. should make about why it qualifies as insurgency. What does insurgency mean in 2021? “ABC News legal analyst and Cardozo law professor Kate Shaw said Monday.
“Even if you, as a scholar, say ‘this does not agree with my view of an uprising’, it does not in any way exclude Congress from reaching a different conclusion … they are entitled to fast themselves. set, “Shaw continued. and said the courts would then likely weigh in.
Shaw also added that Representative Jaime Raskin, one of the authors of the new indictment, is also a former professor of constitutional law.
ABC News’ Alisa Wiersema contributed to this report.