A Modest Proposal in Defense of Our Constitution

Winston Apple - January 26, 2021

In light of the events of January 6th, every member of Congress has a critical decision to make.  They will either uphold the oath they took to “support and defend the Constitution of the United States” or they will fail to uphold that oath.   

Section 3 of the 14th Amendment states that: "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." 

Section 5 of the 14th Amendment says that, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 

Over a two-month period between November 3, 2020 and January 6, 2021, by well-documented words and deeds and without any credible evidence of fraud, Donald Trump actively encouraged members of Congress, Vice-President Pence, numerous members of state legislatures, as well as executive and judicial officers in several states, to overturn the results of the 2020 presidential election, for the sole purpose of remaining in power despite losing that election.  In many cases the level of pressure he exerted rose to the level of threats and intimidation.  He broke state and federal laws.  By his words and actions, Donald Trump made himself an enemy of the Constitution of the United States.   

Regardless of whether or not he is convicted at his upcoming impeachment trial, legislation enforcing Section 3 of the 14th Amendment will allow Congress to bar Donald Trump from holding public office again with a simple majority vote in both Houses.   

If Donald Trump had been alone in this attack on our Constitution, his Big Lie would not have been accepted as reality by nearly as many of his supporters and the events of January 6th would not have taken place.  He did not act alone.  And he is not the only person who should be barred from holding public office.  He was given “aid and comfort” in his attack on our Constitution by 139 members of the U. S. House of Representatives and eight U. S. senators who voted to reject valid electoral votes even after the Capitol was attacked; by Senator Lindsey Graham (who made phone calls urging election officials in several states to find some way to help Trump win); by state legislators in Michigan and Pennsylvania (and possibly other states) who were willing to help overturn the election results in their states; and by the Attorneys General of 17 states who joined a lawsuit seeking to overturn the election results in some states.   

It is incumbent upon the members of Congress who did not give aid and comfort to Donald Trump in his attack on our Constitution to vote in favor of legislation expelling insurrectionists from Congress and barring Donald Trump and all of his co-conspirators from holding for public office again.  Any such members who fail to do so will themselves be guilty of violating their oath to support and defend the Constitution.  

There may be some confusion with regard to whether members of Congress can be expelled by a simple majority vote in each House or whether expulsion would require a two-thirds vote.  Article I, Section 5 of the Constitution, states that, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”   The 14th Amendment states categorically that “No person shall be a senator or representative in Congress” if they are guilty of insurrection or of giving “aid or comfort” to an “enemy of the Constitution” and makes no mention of requiring more than a simple majority to expel current members of Congress who participate in an insurrection.    

With Democrats having a majority in both Houses of Congress and all of the members who are accused of being part of the insurrection being Republicans, if only a simple majority is required it would be possible for Democrats to expel as many as 148 Republican members of Congress without the support of any Republicans in Congress.  That would set a bad precedent, but so would members of Congress failing to uphold their oath of office or enforce the 14th Amendment. 

The best way to resolve this potential conflict in this particular case, would be for the legislation enacted pursuant to Section 5 of the 14th Amendment to make it clear that any member of Congress who voted to reject electoral votes, by virtue of being among those who may be expelled, will not be allowed to vote on whether to expel members who stand accused of giving aid and comfort to an enemy of the Constitution.   

With that provision in place, it would be advisable to require “the Concurrence of two thirds” of the remaining members to pass the legislation providing for the expulsion of insurrectionists among the members.   

That would mean that 197 of the 294 House members who did not vote in favor of rejecting valid electoral votes would need to vote in favor of holding the 139 members who did accountable under the 14th Amendment in order to expel them.  With Democrats holding 222 seats, it would still be possible for Democrats in the House of Representatives to expel 139 Republicans without the votes of any Republican members.  That would be unfortunate.   

With only eight senators facing expulsion for voting to reject valid electoral votes, the same concern would not be present in the Senate.  It would take the votes of 62 of the 92 senators not facing expulsion to uphold the 14th Amendment.   

The facts are so clear in this case that an argument could be made that any member of Congress - Democrat, Republican, or independent - who fails to vote to expel insurrectionists and bar them from holding public office in the future, should themselves be subject to expulsion for giving aid and comfort to those who should have been sanctioned.  That should be a potent incentive for non-insurrectionists among the members to do the right thing in response to this unprecedented attack on our Constitution. 

The “Spirit of 1776” was invoked by some of the rioters who stormed the Capitol on January 6th -oblivious to the fact that they were trying to overthrow the very system of self-government instituted by the American Revolution. 

With that reference in mind, it is worth noting the final sentence of the Declaration of Independence: “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”  If we had lost the American Revolution, the signers of the Declaration would have been executed as traitors. 

No such punishment is contemplated for the insurrectionists of 2021, who were part of an attempt by a sitting president to remain in office by any means necessary, including inciting an angry mob to attack the Capitol and to intimidate and threaten members of Congress and the vice-president; with some members of the mob intending to take them hostage, assassinate, or execute them.  In light of the serious nature of their actions, being expelled from Congress and being barred from holding public office in the future is a very mild punishment. 

Despite the modest nature of this proposed punishment, it is highly unlikely that most members of Congress will rise to the challenge presented by this attack on our Constitution.  Should that prove to be the case, it will fall to voters who care more about our Constitution than many our elected "leaders" to remember which members of Congress (and other offices) joined Donald Trump in his attack on our Constitution and vote them out of office at the next opportunity.