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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Legal Effort Expands to Disqualify Republicans as ‘Insurrectionists’

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      New lawsuits target Representatives Paul Gosar and Andy Biggs, as well as Mark Finchem, a candidate for Arizona secretary of state, claiming they are barred from office under the 14th Amendment.A legal effort to disqualify from re-election lawmakers who participated in events surrounding the Jan. 6, 2021, attack on the Capitol expanded on Thursday, when a cluster of voters and a progressive group filed suit against three elected officials in Arizona to bar them under the 14th Amendment from running again.In three separate candidacy challenges filed in Superior Court in Maricopa County, Ariz., voters and the progressive group, Free Speech for People, targeted Representatives Paul Gosar and Andy Biggs and State Representative Mark Finchem, who is running for Arizona secretary of state with former President Donald J. Trump’s endorsement.It was unclear whether the challenges would go anywhere; an initial skirmish, also led by Free Speech for People, failed to block Representative Madison Cawthorn’s candidacy in North Carolina. But they were the latest bids to find a way to punish members of Congress who have encouraged or made common cause with those who stormed the Capitol on Jan. 6.In all three suits, the plaintiffs claim that the politicians are disqualified from seeking office because their support for rioters who attacked the Capitol made them “insurrectionists” under the Constitution and therefore barred them under the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy.That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”A separate action is being pursued by a Democratic-aligned super PAC against Senator Ron Johnson and Representatives Tom Tiffany and Scott Fitzgerald, all Wisconsin Republicans.And on Friday, a federal judge in Atlanta will hear Representative Marjorie Taylor Greene’s effort to dismiss a case filed against her to strike her from the ballot in Georgia. Unless the judge, Amy Totenberg of Federal District Court for the Northern District of Georgia, issues a temporary restraining order, an administrative law judge is set to hear arguments next Wednesday on whether Ms. Greene should be removed from the ballot.Ron Fein, the legal director of Free Speech for People, said the effort was putting pressure on the Justice Department and the House committee investigating the Jan. 6 attack to take action against individual members of Congress — and to find remedies in court.“Our goal is to reach a ruling by a competent state tribunal, which of course can be appealed to the highest levels if need be, that these individuals are in fact disqualified under Section 3 of the 14th Amendment,” he said. “These are even stronger cases. We’re not going after people who have a tenuous connection to the insurrection.”James Bopp Jr., a conservative election lawyer who is defending Ms. Greene and Mr. Cawthorn, said the groups ultimately could take action against as many as two dozen Republican lawmakers, hoping to establish some legal precedent for trying to bar Mr. Trump from the presidential ballot in 2024. And with enough test cases, one might succeed.“Judges do make a difference,” he said.Mr. Gosar, Mr. Biggs and Mr. Finchem did not immediately respond to requests for comment.The legal fight in the cases has come down to two questions: What is an insurrectionist, and did Congress in 1872 not only grant amnesty to those who supported and fought for the Confederacy but also to those who would take part in future insurrections, effectively nullifying Section 3?In Mr. Cawthorn’s case, a federal judge appointed by Mr. Trump blocked an inquiry into the congressman’s role in the Jan. 6 attack by ruling that the Amnesty Act of 1872 did indeed confer amnesty on all future insurrectionists.The judge, Richard E. Myers II, focused on a caveat within Section 3 of the 14th Amendment that said “Congress may by a vote of two-thirds of each House remove” the disqualification — or “disability” — for insurrection. The Amnesty Act was passed by that wide of a margin.That ruling remains in dispute and is on appeal.In the run-up to Jan. 6, Representative Andy Biggs repeatedly posted the falsehood that President Donald J. Trump had won the election.Cooper Neill for The New York Times“The waiver of disability is the functional equivalent of a pardon,” said Gerard N. Magliocca, a constitutional law professor at the Indiana University Robert H. McKinney School of Law who has studied the insurrection clause. “Pardons by presidents or governors cannot be for the future. You cannot license future illegality.”The lawyers bringing the new suits believe they have a stronger case to show that the elected officials in question are insurrectionists.In the run-up to Jan. 6, Mr. Gosar and Mr. Biggs repeatedly posted the falsehood that Mr. Trump had won the election. Mr. Gosar organized some of the earliest rallies to “Stop the Steal,” the movement to keep Mr. Trump in office, coordinating with Ali Alexander, a far-right activist, and with Mr. Finchem.Capitol Riot’s Aftermath: New DevelopmentsCard 1 of 5The effort to disqualify “insurrectionists.” More

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      Madison Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectionist’?

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      The challenge to Representative Madison Cawthorn’s re-election bid could set a precedent to challenge other Republicans who encouraged the Jan. 6 attack.WASHINGTON — A group of lawyers is working to disqualify from the ballot a right-wing House Republican who cheered on the Jan. 6 rioters unless he can prove he is not an “insurrectionist,” disqualified by the Constitution from holding office, in a case with implications for other officeholders and potentially former President Donald J. Trump.The novel challenge to the re-election bid of Representative Madison Cawthorn, one of the House’s brashest supporters of Mr. Trump and the lie that the 2020 election was stolen, could set a precedent to challenge other Republicans who swore to uphold the Constitution, then encouraged the attack.While the House committee investigating the assault on the Capitol has so far been unsuccessful in its effort to force key members of Congress to cooperate with the inquiry, the North Carolina case has already prompted a legal discussion — one that is likely to land in court — about what constitutes an insurrection, and who is an insurrectionist.And for the first time, a lawmaker who embraced the rioters may have to answer for his actions in a court of law.“I don’t think we can have those persons who have engaged in acts of insurrection elected to office and serving in office in violation of their constitutional duties and oath,” said John R. Wallace, one of the lawyers on the case and a campaign finance and election law expert in Raleigh, N.C. He added, “It should not be difficult to prove you are not an insurrectionist. It only seems to be difficult for Madison Cawthorn.”Cases challenging the legitimacy of a candidate before election boards usually hinge on a candidate’s age, legal residency, place of birth or citizenship status, or the legitimacy of signatures in a candidacy petition.This case revolves around the little-known third section of the 14th Amendment, adopted during Reconstruction to punish members of the Confederacy who were streaming back to Washington to reclaim their elective offices — and infuriating unionist Republicans.That section declares that “no person shall” hold “any office, civil or military, under the United States, or under any state, who, having previously taken an oath” to “support the Constitution,” had then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”Mr. Cawthorn, 26, who is in his first term in Congress, has denounced the case as an egregious misreading of the 14th Amendment, but he has retained James Bopp Jr., one of the most prominent conservative campaign lawyers in the country, as counsel.Mr. Bopp, in an interview, declared the matter “the most frivolous case I’ve ever seen,” but allowed that what he called an “unethical” exploitation of North Carolina law by “competent” lawyers could pose a real threat to Mr. Cawthorn — and by extension, to others labeled “insurrectionists” by liberal lawyers.“This is the real threat to our democracy,” he said. “Just by bringing the complaint, they might jeopardize a member of Congress running for re-election.”“They have multiple targets,” he added. “It just so happens that Madison Cawthorn is the tip of the spear.”That is because North Carolina’s election statute offers challengers a remarkably low bar to question a candidate’s constitutional qualifications for office. Once someone establishes a “reasonable suspicion or belief” that a candidate is not qualified, the burden shifts to the officeseeker to prove otherwise.If Mr. Cawthorn is labeled an “insurrectionist,” that could have broader ramifications. Other Republican House members, such as Marjorie Taylor Greene of Georgia, Mo Brooks of Alabama, Paul Gosar of Arizona, and Lauren Boebert of Colorado, face similar accusations, but their state’s election laws present higher hurdles for challenges to their candidate qualifications. If one of their colleagues is disqualified for his role in encouraging the rioters, those hurdles might become easier to clear.The lawyers challenging Mr. Cawthorn’s eligibility are using an amendment last invoked in 1920, when Representative Victor L. Berger, an Austrian-American socialist, was denied his seat representing Wisconsin after criticizing American involvement in World War I.If nothing else, the lawyers, including two former justices of the North Carolina Supreme Court, want to depose Mr. Cawthorn as part of discovery to question his actions before, during and after the attack on the Capitol.“There is, of course, much that we don’t know, and the statute allows discovery by deposition and the production of records,” Mr. Wallace said.There is much that is known. Whether it makes Mr. Cawthorn an “insurrectionist” would have to be determined by North Carolina’s Board of Elections, or more likely, by the state’s courts, where the board might punt the matter.Weeks after the 2020 election, Mr. Cawthorn told a conservative gathering to “call your congressman” to protest the results, adding, “you can lightly threaten them.” He promoted the “Save America” rally behind the White House on Jan. 6, writing on Twitter, “the future of this Republic hinges on the actions of a solitary few,” then adding “It’s time to fight.” At the rally, he riled the crowd from the stage with talk of election “fraud.”He later called those jailed for storming the Capitol “political hostages” and “political prisoners” that he would like to “bust” out of prison.A mob rushing the Capitol on Jan. 6 were met with tear gas.Kenny Holston for The New York Times“The Second Amendment was not written so that we can go hunting or shoot sporting clays. The Second Amendment was written so that we can fight against tyranny,” he would later say in Franklin, N.C. He added, “If our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed.”Key Figures in the Jan. 6 InquiryCard 1 of 17The House investigation. More

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      Does Jan. 6 Disqualify Some Republicans From Re-election?

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      Representative Madison Cawthorn has breezily dismissed a candidacy challenge filed by voters in his home state, North Carolina, seeking to bar him from re-election to the House of Representatives based on his role in the events of Jan. 6.The plaintiffs, a spokesman from the pro-Trump Republican’s office said, are “comically misinterpreting and twisting the 14th Amendment for political gain.”Mr. Cawthorn is being too quick to scoff. The 14th Amendment provision in question, while little known and not employed since 1919, is a close fit for his conduct around Jan. 6 — as well as that of at least a half-dozen Republican colleagues who the organization spearheading the challenge, Free Speech For People, suggests will be next.Passed in the wake of the Civil War to prevent former rebels from serving in Congress, Section 3 of the 14th Amendment 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.”The critical point to understand is that Section 3 added a qualification to hold office, one of the very few in the Constitution. The others are that members of the House must be at least 25, a U.S. citizen for seven years and live in the state the individual represents. It is no different in this respect from the qualification that the president be at least 35 and a natural-born citizen.So, if the voter challenge succeeds in establishing that Mr. Cawthorn engaged in “insurrection or rebellion,” he would be as ineligible to serve in Congress as if it were revealed that he is 24 years old. Under North Carolina law, once challengers advance enough evidence to show reasonable suspicion that a candidate is not qualified, the burden shifts to the would-be candidate to demonstrate the contrary.The North Carolina State Board of Elections will create a five-member panel composed of people from counties in the new district in which Mr. Cawthorn intends to run (which is more Republican leaning than his current one). The panel’s decision could be appealed to the entire State Board of Elections, and after that to the state’s court system. The board’s decision will be delayed until after a state court rules on a separate redistricting challenge in North Carolina. But the issue will have to be resolved in time for the state’s primary election, currently set for May, so the normal Trump playbook of stalling until the issue becomes moot is not an option.The key question in the challenge will be whether Mr. Cawthorn’s acts of support for the Jan. 6 uprising rise to the level of engaging in an insurrection against the government.Here is what the first-term congressman did, based on public reports and allegations in the challenge: In advance of the riot at the Capitol, he met with planners of the demonstrations and tweeted that “the future of this Republic hinges on the actions of a solitary few … It’s time to fight.” He spoke at the pre-attack rally at the Ellipse, near the White House, where he helped work the crowd into frenzy, saying the crowd had “some fight in it” and that the Democrats were trying to silence them. And in the aftermath of the mob violence, he extolled the rioters as “political hostages” and “political prisoners,” and suggested that if he knew where they were incarcerated, he would like to “bust them out.”The constitutional term “insurrection” is less cut-and-dried than, say, whether a candidate is 25 years old. In other contexts, courts have defined it as a usually violent uprising by a group or movement acting for the purpose of overthrowing the legitimately constituted government and seizing its powers. That accurately describes the collective pro-Trump effort to undermine the certification of the November 2020 election.In the hours after the riot, Mitch McConnell, then the Senate majority leader, described the attack as a “failed insurrection”; one of President Trump’s own lawyers in the impeachment trial stated that “everyone agrees” there was a “violent insurrection”; and Mr. Cawthorn himself voted for a resolution that described the attackers as “insurrectionists.” He’ll be hard pressed to run from that label now.As for whether Mr. Cawthorn “engaged” in the insurrection, in an 1869 case, the North Carolina Supreme Court interpreted that term in Section 3 to signify “voluntarily aiding the rebellion, by personal service, or by contributions … of anything that was useful or necessary” to it. Even before more facts are developed in the case — including a possible deposition of Mr. Cawthorn — the tweet exhorting demonstrators to fight because the future of the Republic hinges on it seems plainly designed to aid the enterprise.The indictment of Stewart Rhodes, the leader of the far-right Oath Keepers, and 10 other Jan. 6 participants on seditious conspiracy charges reinforces the notion that the crimes of Jan. 6 were not simply offenses of property or disorder but were attacks against the government itself, the same core idea as with insurrection.If the North Carolina courts rule against him, expect Mr. Cawthorn to make a quick dash to the U.S. Supreme Court, arguing that it has final authority to interpret the federal constitutional term “insurrection.” At that point, a conservative majority that includes three justices appointed by Donald Trump might well sympathize with Mr. Cawthorn.But while it may be rare, the North Carolina voter challenge is no joke. The challengers have a strong case, and Mr. Cawthorn would be foolish to take it lightly.Harry Litman (@harrylitman), a former U.S. attorney and deputy assistant attorney general, teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science. He is also host of the podcast Talking Feds.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Cori Bush and AOC Are Right About Jan. 6 and 1866

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      When, in the early morning hours of Jan. 7, Congress finally certified the 2020 Electoral College count, more than 140 Republican members of Congress had voted, in one way or another, to reject the outcome. They had embraced the spirit of the mob that stormed the Capitol the day before, even if they had not physically joined it.With that said, there was a smaller number of congressional Republicans who may have gone further than simply casting a vote the way President Donald Trump wanted them to, in the days leading up to Jan. 6. According to a new report by Hunter Walker in Rolling Stone, “Multiple people associated with the March for Trump and Stop the Steal events that took place during this period communicated with members of Congress throughout this process.”Walker’s sources, two unnamed organizers who say they helped plan the rallies, claim that Representatives Marjorie Taylor Greene, Andy Biggs, Paul Gosar, Lauren Boebert, Mo Brooks, Madison Cawthorn and Louie Gohmert or members of their staffs spoke to or collaborated with pro-Trump activists in the days, weeks and months before the attack on the Capitol. Gosar, a staunch defender of the former president, reportedly told potential rally goers that Trump would give them a “blanket pardon” for their activities.Greene, Gohmert, Boebert, Brooks, Cawthorn and Biggs have all pushed back strongly on the Rolling Stone report, which appeared over the weekend. Gosar called it “categorically false and defamatory.”“There was a meeting at the White House about voter fraud and election theft activity,” Brooks said. “But I have no recollection of any kind of organizational activity regarding the speeches on Jan. 6.”For his part, Gohmert released a statement Monday: “No one in my office, including me, participated in the planning of the rally or in any criminal activity on Jan. 6. We did not attend or participate at all.”Boebert also issued a statement on Monday: “Let me be clear. I had no role in the planning or execution of any event that took place at the Capitol or anywhere in Washington, D.C. on Jan. 6th.”The organizers who spoke to Rolling Stone apparently plan to testify before the Jan. 6 select committee to provide more details about what they say was collaboration between Republican lawmakers and the pro-Trump activists who planned the events that ultimately led to the attack.In the meantime, some Democrats are already calling for their removal from office.“Any member of Congress who helped plot a terrorist attack on our nation’s Capitol must be expelled,” Representative Alexandria Ocasio-Cortez wrote on Twitter. “Those responsible remain a danger to our democracy, our country, and human life in the vicinity of our Capitol and beyond.”Likewise, Representative Cori Bush of Missouri said on Twitter that the House must “investigate and expel members of Congress who helped incite the deadly insurrection on our Capitol.”Bush had actually introduced a House resolution for this purpose just days after the attack. “There is no place in the people’s House for these heinous actions,” she said at the time, referring to “members who attempted to disenfranchise voters and incited this violence.”“I firmly believe,” she went on, “that these members are in breach of their sworn Oath of Office to support and defend the Constitution of the United States. They must be held accountable.”They weren’t. There was simply no appetite, among House leadership, for such drastic and decisive action. There still isn’t. But it was a serious demand, and we should take it seriously.Bush’s resolution rests on Section 3 of the 14th Amendment to the Constitution, which cleared Congress in 1866 and was ratified in 1868: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 plain English, Congress has the power and authority to expel from office any constitutional officer who engages in sedition and takes up arms against the Constitution of the United States.The original context for this, obviously, was the Civil War and its immediate aftermath. By the summer of 1865, President Andrew Johnson, a conservative unionist from Tennessee, had taken charge of Reconstruction with a plan to restore the Southern states as equals, their political and constitutional status essentially unchanged from what it was before the war.Under Johnson’s arrangement, the former Confederate states could operate under their antebellum constitutions, the end of slavery notwithstanding. All-white electorates could elect all-white legislatures and send all-white delegations to Washington. Some of these men were, like Johnson, conservative unionists. Many more were former rebel leaders. Alexander Stephens — of the infamous Cornerstone Speech — was elected to represent Georgia in the Senate in 1866 after he was arrested and imprisoned as the former vice president of the Confederacy in 1865.Either way, neither group supported anything like fundamental change to the social and political fabric of the South. If seated, these delegations to Congress would stymie and block any Republican effort to reconstruct the South as an open society with free labor.Indeed, had every Southern representative been seated, Republicans would not have had the votes to get the 14th Amendment through Congress in the first place, on account of the two-thirds majority requirement for passage.Worse than potential obstruction was the real chance that the South would re-enter Congress with as much, or more, political power than it had before the war. The 13th Amendment had abolished chattel slavery, which effectively gutted the three-fifths compromise. And thanks to Johnson, recalcitrant Southern elites could form new governments without extending the vote to free and recently freed Blacks. When the 14th Amendment repealed the three-fifths compromise outright, the effect would be to give the South a considerable bonus in Congress.“Beginning with the reapportionment of 1870,” the legal scholar Garrett Epps writes in “The Antebellum Political Background of the Fourteenth Amendment,” “the Southern states would receive full representation for each freed slave rather than a mere sixty percent, a change that would give the region thirteen more House seats and electoral votes without the extension of minimal political rights, much less the franchise, to the freed slaves who formed the basis of the representation.”To head off this threat, Republicans took two steps. First, they refused to recognize, much less seat, members from the states readmitted under Johnson’s policies. And then, looking to the future, they wrote this prohibition on former Confederate leaders into the Constitution as Section 3 of the 14th Amendment. Republicans would prevent the re-ascendence of this “slave power” with a blockade of federal office deployed against Southern elites.If the ultimate goal of Section 3, in other words, was to preserve the integrity of Congress against those who would capture its power and plot against the constitutional order itself, then Representative Bush is right to cite the clause against any members of Congress who turn out to have collaborated with the plotters to overturn the election and whose allies are still fighting to “stop the steal.”There is a movement afoot to undermine electoral democracy for the sake of a would-be strongman. We have the tools to stop it. Congress, and by this I mean the Democratic majority, should use them.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Raphael Warnock and the Solitude of the Black Senator

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      In late January 1870, the nation’s capital was riveted by a new arrival: the Mississippi legislator Hiram Rhodes Revels, who had traveled days by steamboat and train, forced into the “colored” sections by captains and conductors, en route to becoming the first Black United States senator. Not long after his train pulled in to the New Jersey Avenue Station, Revels, wearing a black suit and a neat beard beneath cheekbones fresh from a shave, was greeted by a rhapsodic Black public. There were lunches with leading civil rights advocates; daily congratulatory visits from as many as 50 men at the Capitol Hill home where he was the guest of a prominent Black Republican; and exclusive interracial soirees hosted by Black businessmen, including the president of the Freedman’s Savings Bank.

      1870-1871
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      Congress Should Bar Trump From Ever Holding Office

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      #masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentliveLatest UpdatesHouse Introduces ChargeHow Impeachment Might Work25th Amendment ExplainedAdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyImpeachment Isn’t the Only Option Against TrumpCongress can invoke its constitutional power to bar the president from holding office again.Deepak Gupta and Mr. Gupta is the founder of an appellate litigation law firm in Washington, D.C. Mr. Beutler is the editor in chief of Crooked Media.Jan. 12, 2021, 5:00 a.m. ETCredit…Illustration by The New York Times; photograph by Doug Mills/The New York TimesCongress should use its constitutional power to prohibit instigators and perpetrators of last week’s violent siege of the Capitol, including President Trump, from holding public office ever again.On Monday, House leaders introduced an article of impeachment against the president for “inciting violence against the government of the United States,” an obligatory action, given the gravity of the president’s transgression. But this is not the only route for ensuring accountability. The Constitution has another provision that is tailor-made for the unthinkable, traitorous events of Jan. 6 that goes beyond what impeachment can accomplish.Emerging from the wreckage of the Civil War, Congress was deeply concerned that former leaders of the Confederacy would take over state and federal offices to once again subvert the constitutional order. To prevent that from happening, Congress passed the 14th Amendment, which in Section 3 bars public officials and certain others who have “engaged in insurrection or rebellion” against the Constitution from serving in public office. Although little known today, Section 3 was used in the post-Civil War era to disqualify former rebels from taking office. And, in the wake of perhaps the boldest domestic attack on our nation’s democracy since the Civil War, Section 3 can once again serve as a critical tool to protect our constitutional order.The 14th Amendment gives Congress the power to enforce Section 3 through legislation. So Congress can immediately pass a law declaring that any person who has ever sworn to defend the Constitution — from Mr. Trump to others — and who incited, directed, or participated in the Jan. 6 assault “engaged in insurrection or rebellion” and is therefore constitutionally disqualified from holding office in the future.Congress can also decide how this legislation will be enforced by election officials and the courts, based on all the facts as they come out. The Constitution prohibits Congress from enacting so-called bills of attainder, which single out individuals for guilt. But, in addition to the legislation we suggest, Congress could also pass nonbinding sense-of-Congress resolutions that specify whom they intend to disqualify. This would provide a road map for election officials and judges, should any people named in those resolutions seek to run for or hold public office. And Congress can do this by a simple majority — far less of a hurdle than the two-thirds majority in the Senate that removing the president requires.We believe legislators of conscience should brandish this option not as a substitute for impeachment but as a complement to it. Senators shouldn’t be allowed to escape or indefinitely delay a vote on Mr. Trump’s conduct simply by running out the clock on his term. (The Senate majority leader, Mitch McConnell, has suggested no trial will happen before the inauguration.) Republicans should be on notice that whether or not they face a vote on conviction and removal of Mr. Trump, they will at the very least be compelled to vote by a Democratic-controlled Congress on barring Mr. Trump from ever holding public office again.This option also has power that the impeachment process lacks. As we learn more in the coming months about who is culpable for the siege, the ranks of those disqualified from office will likely swell. The legislation we envision would allow future courts and decision makers to apply the law after the investigations are complete. Eventually, we should have a 9/11 Commission-style report on what led to these events; the facts marshaled there can be deployed under the legislation we propose.We don’t suggest this course of action lightly. It would not have applied to a peaceful protest on the Capitol grounds — even one made to make lawmakers feel uncomfortable as they attended to their ministerial duties. It still would not have applied if the Jan. 6 protests had culminated only in street violence, as several other pro-Trump gatherings in recent months did. The First Amendment protects unruly dissent.But this was a unique event in American history: an obstruction by force of a constitutional process, at the very seat of our government. Parading the Confederate battle flag through the halls of Congress, the insurrectionists interrupted the certification of the election results for several hours and cemented this presidential transition as one marked by deadly violence. Washington’s mayor and congressional leaders concluded that it was necessary to call in the National Guard to quell the insurrection. Had a single additional layer of security failed, many elected officials, including the vice president and the speaker of the House — both of whom are constitutional officers — might have been killed. All to the end of preventing the winner of the 2020 election from taking power.Make no mistake: This was an insurrection. The 14th Amendment disqualifies its instigators from public office, whether the president is convicted in a Senate trial or not.Deepak Gupta is the founder of the appellate litigation firm Gupta Wessler in Washington and a lecturer at Harvard Law School. Brian Beutler is the editor in chief of Crooked Media, which covers politics and culture. He previously was an editor at The New Republic.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More