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Congress could use an arcane section of the 14th Amendment to hold Trump accountable for Capitol attack

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Professor of Law, Indiana University
Gerard Magliocca does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Until recently, Section 3 of the 14th Amendment was an obscure part of the U.S. Constitution.
The amendment is better known for its first section, which guaranteed individual rights and equality following the abolition of slavery. Section 3 of the 14th Amendment was created to tackle a different problem related to the Civil War: insurrection.
It prohibits current or former military officers, along with many current and former federal and state public officials, from serving in a variety of government offices if they “shall have engaged in insurrection or rebellion” against the United States Constitution.
This section was created after the Civil War as part of the 14th Amendment to bar military officers and civil officials who joined the Confederacy from serving in government again.
Now, this provision is cited in the article of impeachment against former U.S. President Donald Trump, introduced after the insurrectionist violence at the Capitol on Jan. 6, 2021. An impeachment trial is slated to begin in the Senate on Feb. 8.
Even the trial is called off or acquits Trump, some senators are considering a resolution invoking Section 3 of the 14th amendment in an effort to bar him from holding future office.
Right after the passage of the 14th Amendment in 1868, Section 3 was enforced vigorously.
For example, Congress directed the Union Army to oust any former Confederate officials then holding office in the ex-Confederate states still under martial law. It is estimated that tens of thousands of men were made ineligible to serve by Section 3.
Congress then enacted legislation as part of the First Ku Klux Klan Act in 1870 giving the Justice Department authority to bring lawsuits in federal court to enforce Section 3 against former Confederate officials still holding office in other states.
Three justices on Tennessee’s Supreme Court were sued under this law. One resigned; the other two contested their ineligibility in court. North Carolina and Louisiana also enforced Section 3 in court upholding in 1869 the dismissal of some state officials who had served the Confederacy, including a sheriff, a constable and a district attorney.
In 1871, after the North Carolina Legislature elected their Civil War-era governor, Zebulon Vance, to the Senate, the Senate deemed him ineligible to serve under Section 3. The state legislature was forced to choose someone else.
Less than five years into Reconstruction, however, many Northerners began calling on Congress to grant amnesty to Southern officers barred from office by Section 3. The 14th Amendment gives Congress the power to restore the right to hold office with a two-thirds vote in each chamber.
This campaign, led by the prominent New York newspaper editor Horace Greeley, reflected white fatigue with the burdens of enforcing the entire 14th Amendment and a desire to move past the bitterness of the Civil War. Greeley and his “Liberal Republicans” mounted a presidential campaign in 1872 based in part on a platform of “universal amnesty.”
President Ulysses S. Grant, who was running for reelection, knew white public opinion now favored amnesty. In a Dec. 4, 1871 message to Congress, he asked lawmakers to grant amnesty to former Confederate officials. After a long and emotional debate, Congress did so in 1872 with the General Amnesty Act.
Soon Southern voters sent many previously disqualified men back to Congress, including Alexander Stephens, the former Confederate vice president.
Confederate president Jefferson Davis and a few hundred other former federal officials and military officers remained excluded from public office.
In granting this amnesty, Congress rejected a proposal by Massachusetts Sen. Charles Sumner, an eloquent advocate for racial equality, to couple forgiveness for white Southerners with a new civil rights law that would, among other things, have barred racial discrimination in schools.
In 1898, with the Spanish-American War about to begin, Congress removed Section 3 ineligibility from all living ex-rebels. It was widely seen as another gesture of national unity, but it was another nail in the coffin of Reconstruction.
During the 20th century, Section 3 was largely ignored. It was used just once, during World War I, to exclude the socialist Congressman Victor Berger from the House for his anti-war speeches.
In the 1970s, Congress gave Robert E. Lee and Jefferson Davis posthumous Section 3 amnesty. This was again done in the name of national “reconciliation,” after the divisive Vietnam War.
Today Section 3, created to vanquish white supremacy, is seeing a revival. The Confederate flag, which never entered the Capitol during the Civil War, was carried inside during the Jan. 6 Capitol insurrection.
Any congressional members determined to have “engaged in insurrection” may be expelled under this provision by a two-thirds vote in their house of Congress. That includes, potentially, lawmakers who are found to have directly aided or incited the rioters. Capitol police are investigating several Republican congressional representatives for allegedly leading “reconaissance” tours of the building on Jan. 5.
Though lawmakers can remove their colleagues from office, they cannot legally keep those members from running for, and occupying, public office again. That’s because there is today no federal statute enforcing Section 3; those parts of the Ku Klux Klan Act were repealed long ago. Unless Congress passes a new enforcement law, any expelled lawmakers could return later.
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Similarly, Congress could at any time use Section 3 to declare its constitutional opinion that Trump is ineligible to hold public office again, with a majority vote. But only the courts, interpreting Section 3 for themselves, can bar someone from running for president.
The issue may never come up. The Senate may disqualify Trump first, as part of impeachment, or he may choose not to run again. If he does run, though, he may have to take his case to the Supreme Court. A bipartisan congressional opinion of ineligibility would be a big blow to his candidacy.
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Liberals in Congress and the White House have faced a conservative Supreme Court before

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Visiting Teaching Assistant Professor of Political Science, University of Denver
Lucy Cane does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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With control of the White House and both houses of Congress, Democrats are looking to make major changes in government initiatives – including on climate change, immigration and education.
But many of those ideas may end up in court – where they will face a Supreme Court dominated by conservatives.
Donald Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett make the Supreme Court more conservative than it has been at any time since the 1930s, when Franklin Delano Roosevelt was president. Many court watchers expect that the current court’s decisions will lean much further to the right than Congress, the president and public opinion do.
Fearing a clash between the branches, some have even suggested that President Joe Biden consider adding justices to the court – as Roosevelt considered but ultimately didn’t pursue – to prevent key legislation from being struck down.
As scholars of U.S. legal history know, the court is often less insulated from politics than many people assume. Roosevelt’s threat to pack the courts, and what happened next, illustrate the pressures the Supreme Court faces to limit how far it strays from the other branches and from public opinion.
Most Americans today are not accustomed to a right-leaning Supreme Court. Instead, they have viewed the judicial branch as a reliable – or lamentable – champion of liberal values. That dates back to the 1950s and 1960s, when the court, led by Chief Justice Earl Warren, made a series of landmark liberal rulings generally expanding civil rights on issues from school desegregation to criminal defendants’ rights.
But the liberalism of the Warren court was itself a major shift.
From the late 19th century through to the 1930s, federal courts, including the Supreme Court, were generally considered to be the most conservative branch of the federal government, especially on economic issues. The courts championed limited government and broad freedom for corporations.
That period of pro-business jurisprudence came to be known among legal scholars as the “Lochner era,” named for the 1905 case of Lochner v. New York.
In that case, the Supreme Court struck down a New York law that, to protect employees, had regulated working conditions in bakeries. The majority of the justices held that the law violated bakeshop owners’ liberty to contract with their employees as they wished.
The court also continued to limit Congress’ power to regulate interstate commerce to a narrow range of economic activity that excluded most manufacturing and services.
In 1933, Roosevelt came to power with a strong mandate to tackle the Great Depression. He quickly established several new government agencies, reformed financial regulations and sought to regulate business in unprecedented ways.
The National Industrial Recovery Act, for instance, called for industrywide codes of fair competition that set minimum wages, prices, maximum working hours, production quotas and regulations for the process of selling goods. Although Congress saw the need for such a transformative piece of legislation, it was challenged in the courts by a poultry company that had been charged with violating a new code governing the poultry industry. Schechter Poultry’s violations included selling chickens on an individual basis and selling them to nonlicensed purchasers. The right-wing majority on the Supreme Court ruled in favor of Schechter and struck down key parts of the NIRA, drawing in part on its restrictive understanding of the commerce clause.
In this and other cases during Roosevelt’s first term, the Supreme Court demonstrated a growing divergence from the other branches and public opinion. The public had expressed its hunger for strong and far-reaching economic legislation by electing New Deal Democrats to Congress and the presidency. But unelected lifetime appointees on the court held onto a more conservative understanding of the scope of governmental power.
When Roosevelt was reelected in a landslide in 1936, he proposed a bill to reform the federal judiciary in an attempt to stop the Supreme Court’s obstruction of his policy initiatives.
This bill included what became known as his “court-packing plan,” which would have potentially allowed Roosevelt to appoint six more justices, tilting the majority in his favor.
The Constitution doesn’t prohibit expanding the court, but even Roosevelt’s supporters were wary, so the eventual bill was passed without that provision.
As the bill was being debated in Congress, court-packing became less urgent to Roosevelt and his supporters because a change occurred within the Supreme Court itself. Nobody died, but someone switched sides. Associate Justice Owen Roberts had previously voted with the right-wing opponents to the New Deal, but in 1937 he joined the more liberal justices to uphold a minimum-wage law in the state of Washington.
From that point on, the court expanded its interpretation of the commerce clause to give Congress much broader powers to regulate the economy.
Some commentators claim that Justice Owen Roberts shifted his opinion in direct response to Roosevelt’s threat to pack the Supreme Court, seeking to avoid executive and congressional interference in the judicial branch and therefore preserve its apparent independence.
But Owen Roberts actually had decided his position in that case before Roosevelt publicly proposed the judicial reform bill.
Perhaps Owen Roberts already suspected that a court-packing plan, or something like it, was on the horizon when he decided to shift his position. But he might have been sufficiently concerned about the court’s departure from public opinion and the other branches even without such a threat.
When the court diverges drastically from the political mainstream, the public views it as less legitimate. That is an outcome Supreme Court justices are usually eager to avoid.
There are perhaps more differences than similarities between Roosevelt’s confrontation with the court and the relationship between the Biden administration and the court today. For one thing, this court has not had a decadeslong rightward slant. Biden’s record is also as a centrist, and with a narrow majority in the Senate and a divided American public, he may not seek as transformative an agenda as Roosevelt did.
But the lesson from the 1930s remains: It is difficult for the Supreme Court to sustain a drastic divergence from other branches or public opinion without its legitimacy coming into question. To maintain the reputation of the institution, Supreme Court justices often limit their own divergence from the political mainstream, whether or not the other branches explicitly threaten to interfere.
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Impeachment trial: Research spanning decades shows language can incite violence

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Assistant Professor of Public Communication, American University School of Communication
Kurt Braddock receives funding from The U.S. Department of Homeland Security to perform research on disinformation and right-wing violent extremism.


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Senators, acting in the impeachment trial of former President Donald Trump that begins on Feb. 9, will soon have to decide whether to convict the former president for inciting a deadly, violent insurrection at the Capitol building on Jan. 6.
A majority of House members, including 10 Republicans, took the first step in the two-step impeachment process in January. They voted to impeach Trump, for “incitement of insurrection.” Their resolution states that he “willfully made statements that, in context, encourage – and foreseeably resulted in – lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore.’”
Impeachment proceedings that consider incitement to insurrection are rare in American history. Yet dozens of legislators – including some Republicans – say that Trump’s actions leading up to the Jan. 6 attack on the Capitol contributed to an attempted insurrection against American democracy itself.
Such claims against Trump are complicated. Rather than wage direct war against sitting U.S. representatives, Trump is accused of using language to motivate others to do so. Some have countered that the connection between President Trump’s words and the violence of Jan. 6 is too tenuous, too abstract, too indirect to be considered viable.
However, decades of research on social influence, persuasion and psychology show that the messages that people encounter heavily influence their decisions to engage in certain behaviors.
The research shows that the messages people consume affect their behaviors in three ways.
First, when a person encounters a message that advocates a behavior, that person is likely to believe that the behavior will have positive results. This is particularly true if the speaker of that message is liked or trusted by the target of the message.
Second, when these messages communicate positive beliefs or attitudes about a behavior – as when our friends told us that smoking was “cool” when we were teenagers – message targets come to believe that those they care about would approve of their engaging in the behavior or would engage in the behavior themselves.
Finally, when those messages contain language that highlights the target’s ability to perform a behavior, as when a president tells raucous supporters that they have the power to overturn an election, they develop the belief that they can actually carry out that behavior.
Consider something we have all encountered in a more lighthearted context – messages designed to motivate exercise. These messages often tell us one (or more) of three things. They tell us that exercise will lead to positive outcomes – “You will get physically fit!” They tell us that others exercise or would approve of our taking part in exercise – “Work out with a friend!” And they tell us that it is within our power to begin an exercise program – “Anybody can do it!”
In this context, these messages are likely to increase the message target’s likelihood of exercising.
Unfortunately, as we saw on Jan. 6, these principles of persuasion apply to less benign behaviors as well.
Now let us return to what happened in Washington on Jan. 6.
Even in the weeks before the election, Trump’s rhetoric was belligerent. His campaign solicited supporters to “enlist” in the “Army for Trump” to help reelect him. Following the election and in the lead-up to the attack on the Capitol, President Trump made repeated false claims of election fraud, arguing that something needed to be done to remedy the alleged fraud. His language often took an aggressive tone, suggesting that his supporters must “fight” to preserve the integrity of the election.
By inundating his supporters with these lies, Trump made two key beliefs acceptable to his followers. First, that aggression against those accused of trying to undermine his “victory” is an acceptable and useful means of political action. Second, that aggressive, possibly violent attitudes against Trump’s political adversaries are common among all his supporters.
In the weeks following the election, allies of President Trump, including Rudy Giuliani, Republican U.S. Rep. Matt Gaetz, GOP Sens. Ted Cruz and Josh Hawley and others, only reinforced these beliefs among Trump supporters by perpetuating his lies.
With these beliefs and attitudes in place, Trump’s Jan. 6 speech outside the White House served as a key accelerant to the attack by sparking the raucous crowd to action.
In his pre-attack speech, Trump said that he and his followers should “fight like hell” against “bad people.” He said that they would “walk down Pennsylvania Avenue” to give Republican legislators the boldness they need to “take back the country.” He said that “this is a time for strength” and that the crowd was beholden to “very different rules” than would normally be called for.
Less than two hours after these words were spoken, violent insurrectionists and domestic terrorists breached the Capitol.
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In the case of Donald Trump, the relationship between words and actions never seems clear. But make no mistake, there is a scientifically valid case for incitement.
Decades of research have demonstrated that language affects our behaviors – words have consequences. And when those words champion aggression, make violence acceptable and embolden audiences to action, incidents like the insurrection at the Capitol are the result.
This is an updated version of an article originally published on Jan. 12, 2021.
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Talking politics in 2021: Lessons on humility and truth-seeking from Benjamin Franklin

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Executive Vice Chancellor for Academic Affairs, Indiana University
Mark Canada does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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The previous year in the United States was a turbulent one, filled with political strife, protests over racism and a devastating pandemic. Underlying all three has been a pervasive political polarization, made worse by a breakdown in civic – and civil – discourse, not only on Capitol Hill, but around the nation.
In a new year, with a new president and a new Congress, there appears to be opportunity. Americans, starting with the president, are talking about turning away from the division of the recent past and choosing a different direction: talking civilly and productively about the problems the country faces.
But how to do that? As a literary scholar, I appreciate the power of carefully crafted language, and I believe that Americans – from those in government to those around the dinner table – could take a lesson from one of this nation’s founders and greatest communicators: Benjamin Franklin.
Before he achieved fame as a statesman, scientist and diplomat, Franklin, who was born in 1706 and died in 1790, made his living in Philadelphia from words – as a printer, journalist and essayist.
Having worked early in his life in Boston for his brother James, a fiery journalist, he knew the kind of war that could be waged with words and had even made a hobby of debating with a young friend.
“We sometimes disputed,” Franklin recalled in his autobiography, “and very fond we were of Argument, & very desirous of confuting one another.”
Everything changed for Franklin, however, after he came across some examples of Socratic dialogue, in which questions figure prominently. “I was charm’d with it,” Franklin wrote, “adopted it, dropt my abrupt Contradiction, and positive Argumentation, and put on the humble Enquirer & Doubter.”
The inspired Franklin eventually changed his entire manner of discourse, communicating “in terms of modest Diffidence” instead of positive assertion, dropping words such as “certainly” and “undoubtedly” and substituting “I should think it so or so” and “it is so, if I am not mistaken.”
After all, Franklin wrote, “a positive, assuming manner” tends to turn off an audience and thus undermines one’s own intentions.
Such positive assertion can interfere with the exchange of valuable information. “If you wish information and improvement from the knowledge of others,” Franklin wrote, “and yet at the same time express yourself as firmly fix’d in your present opinions, modest, sensible men, who do not love disputation, will probably leave you undisturbed in the possession of your error.”
In 2021, replacing positive assertions in conversations with some “terms of modest Diffidence” just might lead to exchanges that are not only more civil, but also more productive.
More important than modest expression is actual intellectual humility, and here again Franklin’s example is instructive. Even before he turned his inquiring mind to groundbreaking discoveries in electricity, he showed a scientist’s dedication to open, objective investigation with only truth as its object.
In 1727, when he was still in his early 20s, he founded a group called the Junto. Members, including a number of tradesmen like Franklin, took up political, philosophical and other questions such as “Does the Importation of Servants increase or advance the Wealth of our Country?” and “Wherein consists the Happiness of a rational Creature?”
The goal of these discussions, as Franklin explained, was not victory – as it apparently had been for Franklin and his friend years earlier – but something far more valuable for all concerned. Franklin explained that the discussions were to take place “in the sincere Spirit of Enquiry after Truth, without fondness for Dispute, or Desire of Victory.” Anyone who spoke too confidently or contentiously had to pay a small fine.
This preference for pursuing truth over seeking victory found expression in a question that initiates were required to answer: “Do you love and pursue truth for its own sake?” Franklin did, and the results speak for themselves.
Franklin also had a prescient understanding of biases that color humans’ understanding of reality.
Today, scientists have shown that people are susceptible to mere exposure effect, a preference for information we have encountered multiple times and confirmation bias, an inclination toward information that aligns with a person’s current beliefs. In an essay he published in the 1730s, Franklin wrote of the effect of “Prevailing Opinions” on the individual mind and observed, “A Man can hardly forbear wishing those Things to be true and right, which he apprehends would be for his Conveniency to find so.” He added, “That Man only, who is ready to change his Mind upon proper Conviction, is in the Way to come at the Knowledge of Truth.”
Franklin lived up to this principle. In 1751, he published an essay expressing reprehensible, racist views that were all too common in his era. Years later, however, he helped found schools to educate black children and, after visiting one, saw that the students were equal to white children in their ability to learn.
He wound up changing not only his mind but also his essay when he reprinted it almost two decades later, changing the passage that said that most slaves were thieves “by Nature” to say that they were thieves because of slavery.
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Near the end of his life, Franklin became president of the Pennsylvania Society for Promoting the Abolition of Slavery and submitted to Congress a petition to abolish slavery and end the slave trade.
At the Constitutional Convention of 1787, Franklin expressed his belief in intellectual humility. As James Madison recorded his words, Franklin said, “For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise.”
“It is therefore that the older I grow,” he added, “the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.”
Near the end of the speech, he implored others to adopt this same humility: “On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”
As these words and experience testify, political polarization and dispute are nothing new. But Franklin managed to rise above the discord, biases and close-mindedness that are common in any era.
He spoke and wrote in ways that, if taken up now, could begin to erode the polarization of the current era: with modesty, diffidence, sincere consideration of others’ positions, doubt in his own infallibility and love of truth for its own sake.
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