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 to support.”
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 relevance.
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 insurrection.
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.
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