Congress could use an arcane section of Amendment 14 to hold Trump accountable for attacking the Capitol
If the Senate acquits former President Donald Trump in the upcoming impeachment trial, there is another dark way to punish him. iStock / Getty Images Plus Until recently, Section 3 of the 14th Amendment was a dark part of the US Constitution. The change is better known for its first section, which guarantees individual rights and equality after the abolition of slavery. Section 3 of the 14th Amendment was created to address another problem related to the Civil War: the insurrection. It prohibits current or former military personnel, along with many current and former federal and state officials, from serving in a variety of government offices for “committed rioting or revolt against the United States Constitution”. This section was created after the Civil War as part of the 14th Amendment to exclude military officers and civil servants who have joined the Confederation from returning to government service. This provision is now cited in the impeachment proceedings against former US President Donald Trump, which were introduced after the violence of the insurgents in the Capitol on January 6, 2021. Impeachment proceedings are due to begin in the Senate on February 8, the process will be canceled or Trump acquitted. Some senators are considering a resolution invoking Section 3 of the 14th Amendment to prevent him from holding future offices. Senator Tim Kaine, Democrat of Virginia, is reportedly preparing an alternative to the 14th amendment to impeachment proceedings against the Senate. Tom Williams / CQ Appeal, Inc via Getty Images A Reconstruction Time Change Immediately after the 14th Amendment was passed in 1868, Section 3 was vigorously enforced. For example, Congress ordered the Union Army to oust all former Confederate officials who then held office in the former Confederate States still under martial law. It is estimated that tens of thousands of men have been disabled from service under Section 3. Article 1 of the indictment against Donald Trump refers to the 14th amendment. The U.S. House of Representatives Congress then passed laws under the First Ku Klux Klan Act of 1870 that gave the Department of Justice the power to bring charges in federal court to enforce Section 3 against former Confederate officials serving in others States are in office. Three Tennessee Supreme Court justices have been sued under the bill. One stepped back; The other two denied their inadmissibility in court. North Carolina and Louisiana also enforced the dismissal of several state officials who had served the Confederation, including a sheriff, a police officer, and a district attorney, in 1869. In 1871, after the North Carolina Legislature elected its Civil War-era Governor Zebulon Vance to the Senate, the Senate found him inadmissible to serve under Section 3. The state legislature was forced to choose another person. Unity Versus Accountability Less than five years after the reconstruction, many northerners called on Congress to grant amnesty to southern officers who were excluded from office under Section 3. The 14th amendment gives Congress the power to restore the right to take office with two-thirds voting in each chamber. This campaign, led by noted New York newspaper editor Horace Greeley, reflected white fatigue with the burden of enforcing the entire 14th Amendment and a desire to overcome the bitterness of the Civil War. Greeley and his “Liberal Republicans” carried out a presidential campaign in 1872, partly based on a “universal amnesty” platform. President Ulysses S. Grant, who was standing for re-election, knew that white public opinion was now in favor of amnesty. In a message to Congress on December 4, 1871, he called on lawmakers to grant amnesty to former Confederate officials. After a long and emotional debate, Congress did so with the General Amnesty Act in 1872. Soon, southern voters were sending many previously disqualified men back to Congress, including Alexander Stephens, the former Confederate Vice President. Confederation President Jefferson Davis and several hundred other former federal officials and military officials were excluded from public office. Georgia’s Stone Mountain commemorates Confederate leaders Jefferson Davis and Robert E. Lee, both of whom were exiled from office in the 1870s. Wikimedia Commons, CC BY In granting this amnesty, Congress rejected a proposal by Senator Charles Sumner of Massachusetts, an eloquent supporter of racial equality, to combine the forgiveness of southern white people with a new civil rights law that would, among other things, rule out racial discrimination Schools. In 1898, when the Spanish-American War was about to begin, Congress removed Section 3 bans from all living ex-rebels. It was widely regarded as another gesture of national unity, but it was another nail in the coffin of reconstruction. Neglected but not forgotten In the 20th century, Section 3 was largely ignored. It was used only once in World War I to expel Socialist Congressman Victor Berger for his anti-war speeches. In the 1970s, Congress gave Robert E. Lee and Jefferson Davis a posthumous Section 3 amnesty. This was again in the name of national “reconciliation” after the divisive Vietnam War. Today Section 3, created to defeat white supremacy, is experiencing a revival. The Confederate flag, which never entered the Capitol during the Civil War, was carried in the Capitol during the January 6 uprising. House spokeswoman Nancy Pelosi signs impeachment proceedings against then President Donald Trump on January 13, 2021. Stefani Reynolds / Getty Images All members of Congress who are determined to “riot” can be expelled by two people under this provision. Thirds vote in their congress house. This may include legislators found to have directly supported or incited the rioters. Capitol Police are investigating several Republican Congress officials for allegedly leading “scouting tours” of the building on January 5th. Although lawmakers can remove their colleagues from office, they cannot legally prevent those members from running for and holding public office again. That’s because there is no federal law enforcing Section 3 today. These parts of the Ku Klux Klan Act were repealed long ago. Unless Congress passes new enforcement law, all designated lawmakers could return later. [Deep knowledge, daily. Sign up for The Conversation’s newsletter.] Likewise, Congress could at any time use Section 3 to state its constitutional opinion that Trump is no longer eligible to return to public office by majority vote. But only the courts that interpret Section 3 for themselves can prevent someone from running for president. The problem may never occur. The Senate can first disqualify Trump as part of his impeachment, or choose not to run again. However, if he runs, he may have to take his case to the Supreme Court. A bipartisan Congressional opinion on the inadmissibility would be a severe blow to his candidacy. This article was republished by The Conversation, a non-profit news site dedicated to exchanging ideas from academic experts. It was written by: Gerard Magliocca, Indiana University. Read More: What Those Who Mourn the Fragility of American Democracy Get WrongHow Age Gaps in a Presidential Cabinet Could Affect Policies and Programs Gerard Magliocca does not work for, and does not consult, any company or organization that would benefit from this article or does not receive funding from them and has not disclosed any relevant affiliations beyond their academic appointment.