Democrats cite rarely used part of Constitution in new impeachment article

Scholars are unsure how Congress could exercise authority under this provision.

January 12, 2021, 10:02 AM

• 11 min read

In search of historical guidance and legal tools to respond to the violent siege of the U.S. Capitol last week, members of Congress and legal scholars alike are re-examining a little known section of a Reconstruction-era constitutional amendment.

Section 3 of the 14th Amendment, in theory, gives Congress the authority to bar public officials, who specifically took an oath of allegiance to the U.S. Constitution, from holding office if they “engaged in insurrection or rebellion” against the Constitution and therefore broke their oath. But the provision has rarely been used or tested, and so scholars are unsure about how exactly Congress could exercise authority under this provision and to what end today.

House Speaker Nancy Pelosi, D-Calif., formally asked her colleagues on Sunday for their views on this part of the Constitution.

Rep. Alexandria Ocasio-Cortez told ABC News Chief Anchor George Stephanopoulos that Congress was exploring many possible legal and political avenues to respond to the attack and hold the president, if not other elected officials, accountable.

“This is not either the 25th Amendment or impeachment or, you know, investigating our other avenues through the 14th Amendment,” she said on ABC’s “This Week” Sunday. “I do not believe that this is a question of deciding or debating between which of these avenues we should pursue. I believe we should take an all-of-the-above approach.”

Following the end of the Civil War, Congress faced questions about who should be able to retain power and hold public office as the country stitched itself back together.

“They fight a war over slavery and lose it — 700,000 to 800,000 people dead,” Civil War historian and Columbia University professor Stephanie McCurry said of the Southern states. “They lose in April of 1865, but by December of 1865 they are sending back to Congress — people like Alexander Stephens, the former vice president of the Confederacy. It’s unbelievable they thought they could do that. They are completely unrepentant and they are used to exercising power.”

Dismayed at the time, members of Congress refused to seat men like Stephens and the debate spurred the drafting of Section 3 of the 14th Amendment, which was ratified three years later in 1868.

“It doesn’t say anything about Confederates, it’s about anybody who commits this kind of thing. My view is it would apply to President Trump and bar him for holding any office either right now or in the future,” Pulitzer Prize-winning Civil War historian Eric Foner told ABC News on Monday.

Foner emphasized the part of Section 3 that refers to those political and military leaders who previously took an oath of office.

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