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Congress could use an insane portion of the 14th Amendment to hold Trump accountable for Capitol attack
If the Senate acquits former President Donald Trump in the upcoming indictment, there is another way to punish him. iStock / Getty Images Plus Until recently, Section 3 of the 14th Amendment was an obscure part of the US Constitution. The amendment is better 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 address another issue related to the Civil War: insurgency. It prohibits current or former military officers, along with many current and former federal and government officials, from serving in a variety of government offices if they ‘rebel or rebel’ against the United States Constitution. This division was created after the Civil War as part of the 14th Amendment to prevent military officers and civilian officials who had joined the Confederacy from re-serving in government. This provision is quoted in the article of indictment against former US President Donald Trump, which was instituted after the January 6, 2021 resurrection violence in the Capitol. An indictment is expected to begin in the Senate on February 8. trial is adjourned or Trump acquits, some senators are considering a resolution citing Article 3 of the 14th Amendment in an attempt to prevent him from holding future office. Virginia Democrat Sen. Tim Kaine is reportedly proposing a 14th Amendment to a Senate hearing. Tom Williams / CQ-Roll Call, Inc. via Getty Images An Amendment from the Reconstruction Era Just after the 14th Amendment in 1868, Article 3 was heavily enforced. Congress, for example, ordered the army of the Union to expel any former Confederate officials who were then still held under martial law in the former Confederate states. It is estimated that tens of thousands of men were not eligible to serve under Article 3. Article 1 of the charge against Donald Trump appeals to the 14th Amendment. The US House of Representatives Congress then enacted legislation as part of the First Ku Klux Klan Act of 1870 which gave the Department of Justice the right to bring lawsuits in federal court to enforce Section 3 against former officials of the Confederates still in other states. Three judges in the Tennessee High Court have been sued under this law. One thank you; the other two dispute their disability in court. North Carolina and Louisiana also enforced Section 3 in court that upheld the dismissal of some Confederate civil servants in 1869, including a sheriff, a constable, and a district attorney. In 1871, after the North Carolina legislature elected their governor from the Civil War, Zebulon Vance, to the Senate, the Senate considered him unfit to serve under Article 3. The state legislature was forced to elect someone else. Unity Against Liability Less than five years after reconstruction, however, many Northerners began to appeal to Congress to grant amnesty to Southern officers excluded by Article 3. The 14th Amendment gives Congress the power to restore the right to hold office by a two-thirds majority. voice in every room. This campaign, led by prominent New York newspaper editor Horace Greeley, reflected white fatigue with the burdens of enforcing the entire 14th Amendment and a desire to move beyond the bitterness of the Civil War. Greeley and his ‘Liberal Republicans’ waged a presidential campaign in 1872, based in part on a platform of ‘universal amnesty’. President Ulysses S. Grant, who put himself up for election, knew that white public opinion now preferred amnesty. In a message to Congress of December 4, 1871, he asked that legislators grant amnesty to former officials of the Confederacy. After a long and emotional debate, Congress did so in 1872 with the General Amnesty Act. Soon, Southern voters returned many previously disqualified men to Congress, including Alexander Stephens, the former Confederate vice president. Confederate President Jefferson Davis and several hundred other former federal officials and military officers remain excluded from public office. Stone Mountain in Georgia commemorates Confederate leaders Jefferson Davis and Robert E. Lee, who both banned office in the 1870s. Wikimedia Commons, CC BY In granting this amnesty, Congress rejects a proposal by Massachusetts Senator Charles Sumner, an eloquent proponent of racial equality, to link forgiveness for white Southerners with a new civil rights law that would include race obstruct. discrimination in schools. In 1898, with the onset of the Spanish-American War, Congress removed Division 3’s incompetence 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 used only once during World War I to exclude Socialist Congressman Victor Berger from the House for his anti-war speeches. In the 1970s, Congress gave Robert E. Lee and Jefferson Davis posthumous amnesty. This was done again in the name of national ‘reconciliation’ after the divisive Vietnam War. Today, Section 3, created to overcome white supremacy, sees a revival. The Confederate flag, which never entered the Capitol during the Civil War, was carried inside the Capitol uprising on 6 January. House Speaker Nancy Pelosi signed an indictment against then-President Donald Trump on January 13, 2021. Stefani Reynolds / Getty Images Any members of Congress determined they were “engaged in an uprising” , may vote under this provision by a two-thirds majority in their House of Congress. This may include legislators who are found to have directly aided or abused the rioters. Capitol police are investigating several Republican congressmen for allegedly conducting ‘reconnaissance’ tours of the building on Jan. 5. Although legislators can remove their colleagues from office, they cannot legally restrain members from serving in a public office again. This is because there is no federal legislation that applies Article 3 today; those parts of the Ku Klux Klan Act have long been repealed. Unless Congress passes a new law on law enforcement, any legislators can return later. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Similarly, Congress may at any time use Section 3 to declare its constitutional view that Trump is incapable of holding public office again, by a majority vote. But only the courts, which interpret Article 3 for themselves, can prevent someone from electing him as president. The issue can never arise. The Senate may first disqualify Trump as part of an indictment, or he may choose not to run again. If he is a candidate, he may have to take his case to the Supreme Court. A bipartisan opinion from Congress on non-eligibility would be a major blow to his candidacy. This article was published from The Conversation, a non-profit news site dedicated to the exchange of ideas from academic experts. It was written by: Gerard Magliocca, Indiana University. Read more: What mourns those over the fragility of American democracy goes wrong How age diversity in a presidential cabinet can affect policies and programs Gerard Magliocca does not work, consult, own shares in or receive funding from any company or organization who benefit from this article. , and did not disclose any relevant commitments outside of their academic appointment.