Radical Republicans Reach Out From the Grave: Congress Must Expel Some Members and Punish States

The 14th Amendment gives us tools that haven’t been used in over a century

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Four days after President Donald Trump and several members of Congress incited an angry mob to attack the Capitol and overturn an election he’d lost by over 7 million votes, Speaker of the House Nancy Pelosi sent a note to her Democratic colleagues.

She called for Vice President Pence to invoke the 25th Amendment, to begin a new impeachment process, and wrapped the memo up by saying “Your views on the 25th Amendment, 14th Amendment Section 3, and impeachment are valued as we continue.”

Pence ignored her call on the 25th Amendment (which would’ve allowed him and a majority of Trump’s Cabinet members to remove Trump from office) and the House moved quickly to impeach Donald Trump for the second time, an effort that succeeded in the House but failed in the Senate.

So, to hold Trump and his elected cronies accountable for their traitorous act on that day — and their seditious attempts since then to change election laws in state after state to make it harder for largely Democratic voters to have their votes counted — we’re left with the 14th Amendment.

Three amendments were passed after the Civil War to end slavery (except when a person has been convicted of a crime), establish equal protection under the law, punish insurrectionists, and establish the right of formerly enslaved people to vote. These are the 13th, 14th and 15th Amendments. 

They were written and pushed into law by the Radical Republicans, a group of anti-enslavement legislators who emerged as the country’s main power brokers after the Civil War.

They were led in the House by Representative Thaddeus Stevens, a former Massachusetts lawyer who defended Black escapees from the South trying to gain their freedom, and in the Senate by Charles Sumner, who’d been the victim of a vicious cane attack on the floor of the Senate by South Carolina’s Preston Brooks in 1856 over the issue of slavery.

The 14th amendment, ratified in 1868, establishes, in it’s first section, birthright citizenship and demands that all Americans be treated equally under the the law (an explicit effort to end the Black Codes).  

Its second and third Sections, however, are the most intriguing in this context.

Section 2 eliminated the 3/5ths provision in the Constitution, noting that “Representatives shall be apportioned among the several states according to their respective numbers…”

But there was a gotcha in there for states that continued to deny formerly enslaved people the right to vote.

It’s second sentence says: “But when the right to vote at any election… is denied to… Citizens of the United States, or in any way abridged… the basis of representation therein shall be reduced in proportion which the number of such… citizens shall bear to the whole number of… Citizens … in such state.”

In other words, if a state won’t let, say, a third of their citizens vote in elections, they lose a third of their seats in the House of Representatives.

With appropriate enabling legislation, this could provide a basis for requiring states that passed restrictive voting laws that disenfranchise measurable portions of their electorate to forfeit some of their members of Congress.

It’s a large stick that has never been swung in the history of our republic. 

And if it’s a challenge to define how many citizens have been disenfranchised by hard (like voter roll purges) or soft (like 8-hour lines) techniques, legislation could simply use the percentage of people in a state who actually cast counted votes. This would incentivize states to expand, rather than contract voters.

Section 3 is even more explicit about the members themselves.

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, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In other words, if you took an oath of office and then “engaged in insurrection or rebellion” or gave “aid or comfort” to other insurrectionists, you will be expelled from the House or Senate.

And this is so serious, it will take a two-thirds vote of both the House and the Senate (as they did with some Confederates) to “remove such disability” from a legislator after they were determined to have “given aid or comfort” to those “engaged in insurrection or rebellion.”

Based on this, Representative Cori Bush introduced a resolution the day after Nancy Pelosi’s memo, joined by a number of her Progressive Caucus colleagues (including Rep. Mark Pocan), asking the House Committee on Ethics to determine whether any of the actions taken by House members in support of Trump’s sedition, “should face sanction, including removal from the House of Representatives…”

There’s also a public call to use that section of the 14th Amendment to prevent Donald Trump from running for any sort of elected office in the future.

Following the passage of the 14th Amendment, until the collapse of reconstruction in 1876, Section 3 was used this way on multiple occasions, including to block elected Sheriffs from holding their seats or running for office.

At the moment, there’s no specific law on the books that provides details, in the modern era, for how Sections 2 or 3 of the 14th Amendment would be enforced. (Congress blew up its ability to do this with the Amnesty Act of 1872.)

But section 5 of the 14th Amendment clearly gives Congress the authority to pass such a law or laws that would give teeth to this Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

While the Department of Justice and Congress are sorting out who among its members may have participated in this traitorous insurrection, Congress should also be preparing and passing legislation to enforce Sections 2 and 3 of the 14th Amendment.

And even if it’s going to be difficult or impossible to pass such laws, just proposing and discussing them opens the national conversation about voter suppression and the Trump insurrection.

So far, not a single elected Republican at the federal level has been held accountable for their complicity in Donald Trump‘s treason, although much of it was conducted in public and is still a badge of honor for some. The more time passes, the more difficult it will be to hold them to account.

Given how extraordinary an act of insurrection is (it’s only happened twice in our history), this new legislation should empower the House and Senate, with simple majority votes, to both bar insurrectionists like Trump from running for office in the future, as well as removing those members who gave “aid or comfort” to the insurrectionists.

Unleash the 14th Amendment! Congress needs to act now.