Impeachment May Not Work. Here’s the Next Best Way to Dump TrumpRoundup
tags: Reconstruction, Confederacy, 14th Amendment, insurrection, Capitol Riots
Eric Foner is the DeWitt Clinton Professor Emeritus of History at Columbia University and the author, most recently, of The Second Founding: How the Civil War and Reconstruction Remade the Constitution.
Democrats and even some Republicans now agree President Trump should face serious consequences for goading a mob to attack Congress last week. But how? Vice President Pence has ruled out an invocation of the 25th Amendment, which would allow him (perhaps only temporarily) to assume the presidency. While the House of Representatives may approve an article of impeachment, the Senate is out of session until the day before Joe Biden’s inauguration. There is no time for an impeachment trial while Trump is still in office, and Biden does not want a trial to dominate his first weeks in office. Trump may escape without punishment.
But there is a way of dispensing some justice, even just the first dose: The long-forgotten Section Three of the 14th Amendment bars from occupying public office anyone who takes an oath to uphold the Constitution and subsequently participates in or gives “aid or comfort” to rebellion or insurrection. The amendment gives Congress the power of enforcement. (The House impeachment article contains an allusion to this provision.) Congress can use this authority to prohibit anyone who on Jan. 6 violated an oath in this way, up to and including the president, from ever again serving in a government post, local, state, or national.
Ratified in 1868 during Reconstruction, the 14th Amendment is the most important change in the Constitution since the Bill of Rights. Its first section establishes the principle of birthright citizenship; requires the states to guarantee “equal protection of the laws” to all people, and bars states from denying to any person life, liberty, or property without due process of law. It is the backbone of titanic 20th- and 21st-century Supreme Court decisions such as those outlawing racial segregation in public schools; establishing a constitutional right to privacy; requiring states to abide by the principle of one person, one vote; and legalizing same-sex marriage.
Section Three reached directly into the state and federal governments to try to weaken the Southern ruling class (known to Republicans as the Slave Power) in the wake of the Civil War. It aimed to ensure political power was held by those truly loyal to the nation and to the principles of liberty and equality so powerfully strengthened by Union victory and the destruction of slavery. White Southerners, said Joseph H. Defrees, a Republican member of Congress from Indiana, must henceforth elect officials who had “some regard for the principles that are contained in the Declaration of Independence.”
The 14th Amendment allows Congress to repeal the bar on officeholding by a two-thirds vote. Congress did this for a good number of individual Confederates who were willing to join the Republican Party and accept the expansion of the rights of African Americans during Reconstruction. One of the most prominent was Gen. James Longstreet, who headed the Metropolitan Police of New Orleans, which battled the White League during the latter’s violent uprising attempting to overthrow the biracial Reconstruction government of Louisiana — a kind of precursor to the events of Jan. 6. In 1872, the House and Senate, in a gesture of reconciliation, removed political disabilities from all but the most prominent former Confederates.