In search of historical guidance and legal instruments to respond to last week’s violent siege of the US Capitol, members of Congress and legal scientists alike are examining a little-known portion of a reconstruction-era constitutional change.
Section 3 of the 14th Amendment theoretically gives Congress the power to prevent government officials who have specifically taken an oath of allegiance to the U.S. Constitution from holding office if they were “ involved in insurrection or rebellion ” against the Constitution and therefore violate their office. oath. But the provision has seldom been used or tested, so scientists are unsure how exactly Congress could exercise authority under this provision and for what purpose today.
House Speaker Nancy Pelosi, D-Calif., Formally asked her colleagues for their views on this part of the constitution on Sunday.
Rep. Alexandria Ocasio-Cortez told ABC News Chief Anchor George Stephanopoulos that Congress was exploring many possible legal and political avenues to respond to the attack and hold the president, if not other elected officials, to account.
“This is not the 25th amendment or the impeachment, or, you know, exploring our other options through the 14th amendment,” she said on ABC’s “This Week” Sunday. “I don’t believe this is a matter of deciding or debating which of these paths to take. I think we should take a completely above approach.”
On Monday, the Democrats explicitly referred to it in their newly drafted article about impeaching President Donald Trump.
After the end of the Civil War, Congress was faced with questions about who could maintain power and hold public office while the country bonded back together.
“They are waging a war over slavery and losing that – 700,000 to 800,000 people have died,” Stephanie McCurry, civil war historian and professor at Columbia University, said of the Southern states. “They lose in April 1865, but by December 1865 they are sending people back to Congress – people like Alexander Stephens, the former Vice President of the Confederacy. It’s incredible they thought they could do that. They have no remorse at all. and they are used to wielding power. “
Discouraged at the time, members of Congress refused to accommodate men like Stephens, and the debate led to the drafting of Section 3 of the 14th Amendment, which was ratified three years later in 1868.
“It doesn’t say anything about allies, it’s about anyone who commits things like this. My opinion is that it would apply to President Trump and prevent him from holding office now or in the future,” said the Pulitzer Prize. winning Civil War Historian Eric Foner told the ABC News Monday.
Foner emphasized the part of Section 3 that refers to those political and military leaders who have previously taken oaths of office. He argued that the provision was not intended to ban average Confederate soldiers from public office, but rather those who had previously vowed to protect the US Constitution.
“It was a punishment for rebelling, but in a sense a rebellion after taking an oath. It was perjury for which they punished them,” he said. “(Trump) has taken an oath to support the constitution and now he has helped the insurgency and that is the kind of thing that the people who wrote the 14th Amendment tried to avoid. Even though it has only been used a few times. in American history, it’s there. “
According to Foner, the law was enforced in the South for a few years and there were examples of people having to leave their public office at the direction of the US Congress and local officials because they had previously been allies. But in 1872, Congress passed a larger amnesty law, and Section 3 of the 14th Amendment was essentially suspended.
Trump urged his supporters to “show strength” Wednesday morning before many of the crowd marched to Capitol Hill and broke through the halls of Congress. Most of the talks surrounding the 14th Amendment since last week have focused on whether Congress could use its authority, under this provision, to specifically remove or ban President Trump from re-seeking office.
Some have questioned whether the same part of the constitution could be used in this case to punish also sitting members of Congress for their possible role in inciting violence by perpetuating election misinformation.
Freshman Representative Cori Bush made her legislative debut by tabling a resolution over the weekend that aims to strike out some of her colleagues who voted against the 2020 election results. Her legislation, co-sponsored by 47 members of the Democratic House, specifically cites Rep. 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 to the Constitution states that no one in the House of Representatives can serve who is guilty of disloyalty or incitement against the United States. There is no place in the People’s House for these heinous actions. convinced that these members are violating their sworn oath of office to support and defend the Constitution of the United States. They must be held accountable, “Bush said in a statement.
The House of Representatives and Senate each have their own rules for reprimanding and expelling members, and it is unclear whether Congress could get around those rules by instead passing a law under parts of the 14th Amendment.
However, Michael Klarman, a constitutional law scholar at Harvard Law School, told ABC News in email that he believes applying Section 3 of the 14th Amendment to disqualify a member who questioned the legitimacy of the election, was based on last week’s events “a real stretch.”
He added that “insurrection” and “rebellion” are “legal terms with a fixed meaning … I just don’t think Wednesday’s event qualifies.”
“While (Sens.) Hawley and Cruz are despicable, and I have signed the petition calling for their removal, it seems to me a huge challenge to describe what they did (Wednesday) as ‘insurrection or rebellion’, ” wrote Klarman.
Stephen Vladeck, constitutional law expert at the University of Texas, seemed to agree during an interview with ABC-affiliated WFAA.
“The idea is that this provision itself should ipso facto disqualify the president from remaining in office,” said Vladeck. “I don’t think anyone would have ever thought this would be used to actually impeach a sitting president who has served most of his entire tenure.”
After the Civil War, Americans had a clearer example of what counted as rebellion than many today. Most likely, if Congress wants to remove or disqualify someone from office on these grounds, the members must first investigate last week’s violent events and make a formal decision or statement as to whether the actions of the mafia premeditated, if they were a coordinated attack against the federal government.
“I think Congress should pass a law … that says that what happened on January 6, before and around it, was a constitutional uprising and therefore (Trump) is being disqualified. They should make some findings about it. why does this qualify as uprising? What does uprising mean in 2021? ”ABC News legal analyst and Cardozo Law professor Kate Shaw said Monday.
“Even if you say, as a scholar, ‘this does not agree with my understanding of an uprising’, it in no way prevents Congress from reaching a different conclusion … they have the right to make their own decision. , ”continued Shaw. , saying that the courts would then likely weigh.
Shaw added that Rep. Jaime Raskin, one of the authors of the new article on impeachment, is also a former professor of constitutional law.
ABC News’ Alisa Wiersema contributed to this report.