January 15, 2021
The 14th Amendment to the United State Constitution
has been proposed as a means to disqualify President Donald Trump from running
for a second term.
Section Three was cited in the article resulting in
the Presidents second impeachment. The articles alleges that Trump disqualified
himself from office by inciting his followers to violently obstruct the
congressional certification of President-elect Joe Biden’s victory.
The history of disqualification from public office
goes back to the earliest years of the republic. In 1861, Sen. John C.
Breckinridge of Kentucky was expelled from the United States Senate. The
resolution, which passed unanimously, declared Breckinridge “has joined the
enemies of his country, and is now in arms against the government he had sworn
Between 1856 and 1860 Breckinridge was a heartbeat
away from being president of the United States. He was President James
Buchanan’s Vice-President. Within months of being elected to the U.S. Senate he
was a general in the Confederate army.
Following the Civil War, in what some have called
the second Constitution, the Congress passed, and the states ratified, the
13th, 14th and 15th Amendments to the Constitution. The Reconstruction
Amendments were meant to abolish slavery, lessen the power of states and extend
the right to vote to all former slaves.
The 14th Amendment is best known for the Equal
Protection Clause which made the Bill of Rights applicable to the states and
set in motion a plethora of Supreme Court decisions defining the rights of
those accused of a crime.
The 14th Amendment has another, lesser known, rarely
used, provision that in light of the Capitol insurrection, may have renewed
Section Three of the amendment was enacted to prevent
Confederate officials who had served in the Unites States government or armed
forces before the Civil War from regaining a position of authority in the
post-bellum government. Former Confederates were barred until 1872 when
Congress granted amnesty to civil and military officials of the Confederacy.
If Section Three is good enough to impeach the
president why not use it to expel senators or house members who helped incite
the Capitol insurrection?
Section Three provides, “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 . . . shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof.”
According to the St. Louis Post-Dispatch, U.S.
Rep. Cori Bush, D-Mo., introduced a resolution in the House with 47 co-sponsors
directing the House Ethics Committee to commence a review of more than 100
Republicans who voted to overturn the election results to see if they should be
censured or expelled.
There have been calls for U.S. Sens. Josh Hawley,
R-Mo., and Ted Cruz, R-Texas, to resign for their role in the Capitol
Hawley was the first senator to say he would object
to the certification of November’s election, based on patently false
accusations that the presidential election was stolen. Hawley and Cruz led a
group of Senate Republicans who helped Trump turn what is normally a routine
certification vote into an attack on democracy. Even after the insurrection,
Hawley, Cruz and four other senators continued to object to the certification.
U.S. Sen. Sherrod Brown, D-Ohio, has called for
Cruz’s and Hawley’s resignation, saying they “betrayed their oaths of office
and abetted a violent insurrection on our democracy.”
According to the HuffPost, Brown said, “If they do not
resign, the Senate must expel them.”
U.S. Sen. Sheldon Whitehouse, D-R.I., also has
called for an ethics investigation to consider expulsion of Cruz and Hawley.
Inciting, or actively participating in, an
insurrection must have consequences. A two-thirds majority of the House
or Senate can insure that no one in Congress is above the law.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George, in New Castle, Pa. He is the author of The
Executioner’s Toll, 2010. His weekly syndicated column is distributed by
GateHouse Media. Readers may contact him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
His work appears occasionally on the Capital-Star’s Commentary Page.
To visit the column CLICK HERE