Legislators: The Constitution requires you to protect your institutions from insurrectionists. Don’t be afraid to do it.
The January 6th attack on the U.S. Capitol was the culmination of an attempt to prevent the peaceful transfer of presidential power. Those who planned, mobilized, incited, aided, or participated are now on the ballot from coast to coast. Their presence is not only a threat to the institution they are hoping to serve, but to the survival of American democracy. With some of them on the verge of being elected to the U.S. Congress and state legislatures across the country, our Constitution demands that they be excluded from office.
After the Civil War, our democracy was faced with the daunting task of protecting itself from people who had waged war to destroy it. Congress came up with an answer: Section 3 of the Fourteenth Amendment, also known as the Disqualification Clause. The clause bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” and then “engaged in insurrection or rebellion” against the Constitution. Our organization, Citizens for Responsibility and Ethics in Washington, spent much of the past year litigating this constitutional provision on behalf of three New Mexico residents in the first successful case to disqualify a January 6th participant from office and prevent them from holding office in the future. In our clients’ case removing and disqualifying former New Mexico County Commissioner and January 6th participant Couy Griffin, the court found what we all knew to be true: that January 6th was an “insurrection” and that those who “engaged” in it should be removed from office.
Up until now, legal efforts to disqualify January 6th insurrectionists have focused on removing officers, like Couy Griffin, from their positions or striking their names from the ballot. But there is another way the Disqualification Clause can and should be used: legislators can challenge the constitutional qualifications of newly elected members and refuse to seat anyone who engaged in insurrection.
Disqualifying an elected official, even for insurrection, is a serious step, and we do not take lightly the idea that an elected member of the legislature should be refused their seat and their constituents refused their chosen representative. But the Disqualification Clause is a part of the Constitution and therefore embodies the “supreme Law of the Land.” The clause imposes a qualification for office – no different from the age, citizenship, and residency qualifications set forth elsewhere in the Constitution. The framers knew it was essential for protecting our republic from those who would harm it.
At the federal level, the U.S. Congress has the constitutional power to judge the “qualifications of its own members” to ensure they are eligible to serve. Congress has used this provision in the past to exclude insurrectionists from office, including in 1870 when the U.S. Senate refused to seat North Carolina’s wartime Confederate Governor, Zebulon Vance, for violating Section 3.
But preventing insurrectionists from serving isn’t just about members of Congress or other national political figures. It is also about people who occupy positions of power in county commissions or city hall; who determine what our children learn in school and whether our votes count. That is why the Disqualification Clause applies to “any office” – federal, state, or local – and is in fact the only qualification for state-level office found in the United States Constitution. An attack on democracy at any level is an attack on the whole, and legislators at every level of government have a constitutional duty to exclude any newly elected member who engaged in insurrection by preventing the peaceful transition of presidential power.
There are insurrectionists at all levels of government on the ballot this November. Thankfully, we have the means to find out who they are and what they were doing on and during the lead up to January 6th. Not only have there been hundreds of prosecutions, but there have also been countless news stories, extensive social media coverage, and a wealth of information that the January 6th Select Committee has uncovered and will no doubt make public in their upcoming report. Congress also has unique investigatory powers, and should there be a question about an individual’s qualifications for office under Section Three, Congress can and must investigate and determine that individual’s qualifications before they are admitted to the chamber.
In Federalist 59 Alexander Hamilton wrote, “Every government ought to contain in itself the means of its own preservation.” If the people elect to a representative body a person who does not believe that body should continue to exist, who has engaged in insurrection against it, then the institution has a constitutional duty to protect itself.
This is why we require elected officials to take an oath of office to “support and defend the Constitution…against all enemies foreign and domestic.” This oath establishes the preconditions under which they serve, including supporting and defending the constitutional process of certifying election results and, in turn, the will of the people. If officials cannot or will not swear to abide by these baseline expectations then they cannot be given any power in a democratic government.
We have a constitutional obligation to prevent people from serving in the government they tried to destroy. Legislatures throughout the country have the power and duty to exclude insurrectionists from taking their seats at the local, state, and federal level. This is not a matter of politics or policy preferences: our Constitution demands it.