An interesting idea is being floated these days about one particular clause in a constitutional amendment. What it boils down to is the question of whether Democrats (or anyone else) should make a concerted effort to bar from ever seeking office those Republicans who in some way participated in the January 6th insurrection attempt. On the face of it, this seems a rational thing to contemplate -- no one who has tried to overthrow the government should be allowed to participate in that government in the future. The Constitution should not become a suicide pact, in other words. But actually applying it in this particular case will almost certainly set us all on an even slipperier slope than we're already on, in terms of partisan warfare in Congress.
Here's the relevant text, Section 3 of the Fourteenth Amendment:
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.
That's the whole section. Again, on first reading it, it's understandable the impetus toward barring certain Republicans from seeking office or getting re-elected. But a larger context might be necessary.
The Fourteenth Amendment was ratified during the post-Civil War period. At the time, many who had served in either the Confederate army or government wanted to run for office in the newly-readmitted southern states. This was an explicit way to bar them from doing so. But later during the Reconstruction Era the text of this law was drastically narrowed, by the passage of the Amnesty Act of 1872. This limited who could be barred from office, and it allowed most Confederate rank-and-file soldiers to run for office and serve from that point on. This was part of a general easing of retribution, as President Ulysses S. Grant then went on to pardon all but 500 former top Confederate officials. So back then, the foot soldiers were not held as accountable as the leaders and were allowed to serve in Congress or any other office they could get elected to.
Now, please remember, the Confederate States of America was unquestionably either an insurrection or rebellion (take your pick). It's beyond debate. But it had a structure -- a government, an army, a navy, and all the minor trappings of government below them. They issued their own currency and stamps, for example. Though never recognized diplomatically on the world stage, they did have a functioning governmental structure. There was no question about who had served in this government or armed forces -- it was all public knowledge.
So let's go back to the text of that amendment. The first part of the clause is pretty clear-cut -- you can't serve in any government office, period, whether state or national. The second part, however, already limits who this would apply to in today's situation: "...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...."
This would seem to mean sitting or former political officeholders and those who had ever been a commissioned officer in the United States military (I leave it for those more well-versed in legalisms to determine whether "an officer of the United States" would apply to the rank-and-file members of the military, who also have to swear an oath of service). But this would indeed include anyone serving in the current Congress (and not just "any previous Congress") because of the timing of the insurrection attempt. The new Congress officially convenes on January 3rd. Three days later, the insurrection attempt happened. So all sitting members would be covered, as well as those (like Devin Nunes, for instance) who were sitting members of the current Congress but have since quit. It would also cover any other politician who had sworn an oath to defend the Constitution previous to that date (up to and including President Donald Trump).
But then there's the third clause: "...shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Republicans are already arguing that what took place doesn't qualify as an "insurrection or rebellion." And what definition should be used for "engaged in" or "given aid and comfort to"? That's a much more nebulous question than: "Did you serve in the Confederate government or armed forces?" And remember that it wouldn't even cover those who did actively participate but had not previously sworn any oath to defend the Constitution. There are dozens of people who were part of the mob who stormed the U.S. Capitol who are now running for office nationwide. Those who had never previously sworn such an oath are still perfectly free to do so, even under the most Draconian reading of the amendment's language.
Let's say for the sake of argument that a Draconian reading is what is necessary here. There is certainly a strong moral argument to make that those who swore to defend the Constitution but then turned around and attacked it should be barred forever from serving in any office, but again this was not the Civil War. So there are no paymasters' lists of who participated and who didn't. So how many should it be applied to? The people who directly participated in storming and ransacking the seat of democracy in America? Well, they'd be the most obvious, of course. Members of Congress who were in contact with the leaders of the insurrectionist groups? Those who egged them on at Trump's pre-attack rally, including Trump himself? Well, you could certainly make a strong "given aid and comfort" argument for all of them. But how about those Republicans who voted against certifying the results from all the states, even after the insurrection attempt had happened? Does that qualify as "aid and comfort" or "insurrection or rebellion"? That's a harder case to make, obviously, since no matter how much you disagree with them you have to admit they were following the correct constitutional procedure and not rampaging through the halls chanting: "Hang Mike Pence!" So where does the line get drawn?
Up until now, the Justice Department hasn't even charged any of the defendants from January 6th with sedition or domestic terrorism, much less insurrection or treason. There is no requirement in the Fourteenth Amendment clause for a conviction of such crimes, but it would certainly be a lot easier for Congress to bar someone from office who had already been proven in court to have attacked the government. But it's pretty farfetched to imagine that the Justice Department would ever (at least not without overwhelming proof of guilt being uncovered by the Select Committee) charge sitting members of Congress with such high crimes. So while it would indeed be convenient to just see who the courts decide is guilty of such crimes, that's almost certainly not going to happen any time soon.
There is no real mechanism in the Fourteenth Amendment for enforcement, either. Does Congress merely vote (with a simple majority in both chambers) on whether to bar some particular person or entire class of persons from ever holding office? The only procedure outlined is the one to waive the law, not to enforce it, which is a problem for those who want to now invoke it. No matter what route is chosen in any attempt to utilize this provision, it is likely it will end up in the courts, meaning the heavily-conservative Supreme Court would have the final say on the matter.
There is one larger thing to consider as well. Those now arguing for invoking the clause and using it on as many Republicans as possible should really take a deep breath and ask themselves if this is really what we should be doing in America. Because it would almost certainly prove to be a very slippery slope. After all, we scoff at countries who summarily bar people from ever running for office -- as happens regularly in places like Russia and Iran and China -- for being nothing more than "fake democracies." There is no real democracy if the people in power get to decide who can challenge them in the next election, after all. And that is exactly what going after those Republicans who did nothing more than voting against certifying the Electoral College results would indeed look like: political retribution, plain and simple.
If that's not enough to give pause, consider what would happen going forward. Say Democrats enforce the provision to the hilt. Even attempting to bar sitting Republicans from ever running for Congress again would absolutely enrage the entire party, from Trump on down. Attempting to bar Trump himself from office would be even worse, because then he'd be personally involved. Say such an attempt largely failed (one way or another, perhaps at the Supreme Court). Think for a minute what Republicans would do, once they regained power in either chamber of Congress or the White House. They would then seek to turn this effort around and use it against any Democrat they didn't like, for any reason under the sun. They'd call "supporting Black Lives Matter" aiding and abetting an enemy of the government. They'd widen the definition to include as many Democrats as possible -- they are already getting ready to essentially run their entire 2022 campaign on the sole issue of "Vengeance!" so adding this in would be a piece of cake for them.
Personally, I can certainly understand the temptation to use this obscure part of a constitutional amendment to bar the most unrepentant Republicans from ever seeking or holding office again. It would be fitting indeed. But other than individual groups at the local level suing in a pre-emptive move to keep certain candidates off the ballot, I don't really think Democrats as a whole should give in to the urge to try this route. Again, if the Select Committee provides solid evidence of involvement or if anyone who actually participated in the violence of that day is convicted in court of sedition or domestic terrorism, then I would agree that this should be a clear disqualification and Democrats should indeed act. But without such a smoking gun, I think any wider application would wind up coming back to bite Democrats in the end.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
