The Congressional GOP is loaded with extremists, insurrection sympathizers who traffic in deliberate disinformation and conspiracy theories. They are dangerous. Their very presence is a threat to some Democratic Members of Congress and no-one should have to endure that in their workplace.
The US Constitution provides the means for both House and Senate to impose a range of disciplinary measures on their members, including expulsion. That is the measure required here. Congress needs to expel these dangerous members.
But contrary to popular notions about Amendment XIV Section 3, it is not about how to expel a member, it’s the exact opposite. It actually describes how to prevent a member from being expelled – and that’s the good news.
Stick around and I’ll explain how the framers of this Section of the Constitution very cleverly worked out how to win by losing.
Amendment XIV, Section 3* states:
No person shall be a Senator or Representative in Congress, …who, having previously taken an oath, as a member of Congress, …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.
Section 3 of the Fourteenth was originally a temporary measure proposed in 1866 to limit confederate participation in politics after the Civil War. In an article for Just Security, the foremost legal historian on this Amendment, Mark A. Graber, explained:
[It was] Senator Jacob Howard of Michigan [who] proposed, with a few tweaks, the Section 3 we have today. That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution.
Professor Graber added,
Section 3 would, of course, apply to any future insurrection.
It does. However, Amendment XIV doesn’t include any kind of process for adjudging culpability. Does there need to be an investigation by law enforcement or a judicial process? XIV §3 doesn’t say and those who framed this Amendment were completely silent on the subject.
Gerard Magliocca tackled the issue in Lawfare on January 19:
A review of the basic parameters of Section 3 suggests it is the best legal framework available for addressing the extraordinary events at the Capitol with respect to the eligibility of participants to hold public office.
The first question under Section 3 is who decides whether someone is ineligible. […] With respect to sitting members of Congress, Section 3 must be enforced internally, because the Constitution contemplates no other disciplinary process.
In summary, with respect to a sitting member:
• culpability is determined internally by the members of the US House or Senate
• when the misconduct involves insurrection or giving aid or comfort to the Government’s enemies, XIV §3 specifies one and only one punishment: expulsion
• when expulsion is on the table, there is a two-thirds vote requirement.
This last stipulation is written into XIV §3 in its second and final sentence:
But Congress may by a vote of two-thirds of each House, remove such disability.
It is this two-thirds requirement that is seen as the insurmountable stumbling block because of the political party ratios in both chambers. In the US House, Democrats hold a majority that’s just a fraction over 51%; in the Senate, it’s a fraction over 50% with VP Harris being a member by virtue of her position as President of the Senate.
Neither is anywhere near the two-thirds needed to rid Congress of its treacherous members via a motion to expel. In terms of numbers, two-thirds in the Upper House would be 67 Senators, and 288 Representatives in the Lower House. Of one thing we can be absolutely certain: 17 Republican Senators and 67 Republican Representatives will not be co-operating with any attempt to remove their members, regardless of how unfit those members are for office.
Republicans are therefore confident that none of them can be expelled. They shouldn’t be. Because they are wrong.
They are wrong because they are foolishly misreading the crucial last sentence in §3:
But Congress may by a vote of two-thirds of each House, remove such disability.
The three crucial words are these: remove such disability.
Let’s begin by clarifying what the framers meant by disability.
The disability in this instance refers to the US Constitution excluding from office anyone who has engaged in insurrection or supported insurrectionists. In the simplest terms, the Constitution dis-ables them from holding office.
To make it simpler still, the modern equivalent of “remove such disability” is “nullify the disqualification”. So the modern translation of XIV §3 is:
If any person who, having sworn an Oath to uphold the US Constitution, then engages in insurrection or supporting and helping insurrectionists, they are disqualified from holding a seat in Congress. But Congress may by a vote of two-thirds, nullify the disqualification.
Even simpler still: if a sitting member engages in or supports an insurrection, XIV §3 unequivocally disqualifies them from holding office and the only way to lift the disqualification is if two-thirds of the chamber vote to let them off the hook.
To reiterate: contrary to popular notions about Amendment XIV §3, it isn’t about how to expel a member, it’s the exact opposite. It describes how to stop a seditious member from being expelled. In essence, Amendment XIV §3 requires two-thirds of the US House or Senate to vote to exonerate seditious members so they can stay in Congress.
To ensure the expulsion of the seditious scofflaws in Congress, Democrats need to file two motions. The first is a motion declaring that
Representative/Senator [full name] publicly supported the insurrectionists who stormed the Capitol Building on January 6, 2021. Therefore, under the US Constitution Amendment Fourteen, Section 3, they have given aid and comfort to seditious enemies who breached the building and engaged in vandalism, theft, terrorism, assault, grievous bodily harm and murder.
The aim of this motion is to establish the disability and it needs only a simple majority. Once that motion is passed and the disability formerly established, a second motion is now required by XIV §3 to “remove the disability”, i.e. a motion stating that the member should be permitted to keep their seats in spite of violations under Amendment XIV §3.
It is mandated by the US Constitution, Amendment XIV, Section 3, that to override the penalty prescribed – that [name] may never hold office at any level in the United States – this chamber can by a two-thirds vote remove the disability so that [name] may remain in office.
I therefore move to remove from [name] the disability of aiding and abetting the insurrection of January 6, 2021, in order for [name] to remain in elected office.
It should be noted here that the mover of a motion may vote against their own motion. Therefore a Democrat can move this motion and vote against it.
I have no doubt whatsoever that every Democrat in the House and Senate would vote against removing such disabilities from the seditionists among them, thereby ensuring that none receive the two-thirds majority needed for them to keep their seats.
It may have been framed that way in 1866 to more easily rid Congress of Confederate dissidents who were already seated. It certainly appears to be the only way the two houses of Congress can remove the current crop of incumbent dissidents.
It’s somewhat ironic that the Republicans of 1866 provided a means of dealing with a Republican insurrection in 2021. Thank goodness they did. Without it, Members of Congress would be reliant on law enforcement agencies and the courts to deal with the hostile element in their midst, a process likely to take several months if not years. No-one should have to live and work in an atmosphere of unpleasantness, uneasiness and stress with those who have time and again demonstrated a total lack of respect for the lives and wellbeing of those they oppose.
For this reason alone, I urge Democrats in both houses to consider filing motions they want and expect to lose. In the short term, losing may be the best tactic they have to gain the justice they sorely need.
*Amendment XIV, Section 3, was trimmed down to show only the wording relevant to the issue under discussion. Click on the link provided to read the clause in full.
Brilliant! I love it! I just hope there is someone in congress who will actually act on this.
I hope so too. I’m trying to get it in front of as many eyes as I can!
Much as I love this idea, I see a flaw: ie nothing to stop Repugnicans from doing exactly the same to any Democrats they want out. Only if a burden of proof is required, would this measure work as intended, to get rid of proven wrongdoers.
I thought about that too and I suspect you’re right; this may well be why they don’t use it as written. The republicans are unprincipled and unscrupulous and we can’t rule out that they’d deliberately and with malice present a fraudulent case against every Democrat. Unfortunately, it would work. They’re already blaming Pelosi for the insurrection.
It just occurred to me that the way to get around that problem is by first requiring the House or Senate to vote on a pre-requisite resolution declaring that a majority of the members (not two-thirds because this is just a statement regarding known facts, not a motion to expel) hold the member responsible for violations under XIV §3. When the member’s culpability is determined, that would then allow the motion (to keep them in Congress) to be brought.
It would seem that all the constitutional experts in Congress already understand how the it works. It is a matter of having the will to open that can of political worms. However, you point to a larger corollary. As time passes, the constitution is becoming less and less comprehensible to average Americans. Call it the Shakespeare Syndrome, or maybe the Beowulf Syndrome. Maybe we could use a translation into modern English.
Yes, I agree. This is how republicans manage to get away with so much blatant misdirection, by deliberately misinterpreting the archaic language – the Second Amendment is the classic example of mangling the language and intent of the framers. The Bible is regularly updated with modern translations, it’s long past time the US Constitution was too. I’m wondering to whom we should give that task? I might suggest it to Glenn Kirschner and see what he thinks.
Well, Michelle, the problem with the Second Amendment is that the Supreme Court (at least the right-wing nutcases there) decided that the opening clause (that whole “well-regulated militia” bit) no longer meant what it said. A textbook case of how “original intent” right-wingers put personal beliefs over their principles. They can’t seem to find anything in the Constitution to suggest the idea of a right to privacy (even though one needs some “privacy” to develop a freedom of speech and “privacy” certainly goes hand in hand with one’s religious beliefs) but they can certainly say that something IN the Constitution doesn’t really mean what it says.
I remember reading in increasing disbelief the ruling of that particular SCOTUS. It is so obviously wrong and not only that, it has cost countless lives over the years.
While privacy is essential to good mental health, it’s a tricky one legally in that it may complicate certain legal situations, especially if willfully misinterpreted as has been done to the Second Amendment.
But the right to vote and the obligation of all governments, state and federal, to facilitate voting with ease and convenience, should be in every nation’s Constitution.
Do always refer to the LIST (there was one on NYTIMES and HuffPost too I think) One has since died.
The 147 Republicans Who Voted to Overturn Election Results
By Karen Yourish, Larry Buchanan and Denise LuUpdated January 7, 2021
But voting to overturn the election results doesn’t come under Amendment 14, Section 3, nor is it subject to expulsion or any other punishment. It’s covered under the congressional Speech or Debate Clause because they have the option in their rules to reject electoral votes. The fact that the rules, when set, never anticipated that they’d be used in this way, ie to overturn an election, is, I’m afraid, beside the point. It’s legal.
You believe Manchin and Sinema will go for it? IDK.
This is the problem with congress! They complicate the simplest things! THIS IS WHY OUR GOVERNMENT MOVES SOOO EFFING SLOW! STOP COMPLICATING EVERYTHING, in an attempt to show how intelligent you are!????. Don’t put riddles/games/codes, etc…in things! Make it SIMPLE & very very clear so that “EVERYONE” including the most uneducated American will understand! I.E. ANYONE, who aids or found to have participated in an insurrection against American or Foreign governments; may NEVER hold or be involved with “ANY” type of Political office NOW or in the FUTURE for the rest of their lives! With IMMEDIATE EXPULSION and IMPRISONMENT. Thereby, forfeiting any and all benefits attached to their political office in question! Mandatory FINES and confiscation of private properties purchased during their terms in office. All FUNDS/PROPERTIES will be Sold and will be pd to aid with SSI/SSD, EDUCATION, HEALTHCARE, POVERTY & HOUSING for the American public w/out taxation or penalties