“A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this.”
Upon leaving the Senate chamber, Mitch McConnell spoke to the nation in an unfamiliar voice — no longer as partisan leader of the Republican party, but as an agonized statesman who voted for acquittal only “because former President Trump is constitutionally not eligible for conviction” and he “refused to continue a cycle of recklessness by straining [the Senate’s] constitutional boundaries.”
Congress and the country should take McConnell at his word.
Despite Trump’s acquittal at his impeachment trial, a simple majority vote by the Senate suffices to disqualify him from holding elected office under an explicit provision of the 14th Amendment. Section 3 of the amendment authorizes a majority in both chambers to bar Trump from a second term if they find he engaged in an act of “insurrection” — allowing him to run again only if senators and representatives “by a vote of two-thirds of each House, remove such disability.”
This provision was of high importance to the Reconstruction Republicans who drafted it in the immediate aftermath of the Civil War. Without these specific textual safeguards, the white Southern elite that held seats in Congress before the Civil War, and then betrayed the country by taking office in the Confederacy, would be free to return to Washington after Lincoln’s assassination. Once reinstated as senators and representatives, they would sabotage Republican efforts to take affirmative legislative action on behalf of newly liberated people against further exploitation by former slaveholders.
In fact, Jefferson Davis had previously been a senator from Mississippi before becoming president of the Confederacy. Once the 14th Amendment was ratified in 1868, the House and Senate quickly passed joint resolutions in 1869 disqualifying rebel leaders and followed up with a broad statutory ban in 1871. So far as congressional leaders like Thaddeus Stevens and Charles Sumner were concerned, it was intolerable for men like Davis to suppose that their days of infamy could so easily be erased from collective memory. Only if these traitors could gain the self-conscious support of a loyal super-majority in Congress was it legitimate for them to reenter the political life of the nation.
According to McConnell, the same is true for Trump — except for the fact that the Founders’ constitutional limitations on impeachment precluded him from voting to convict the former president once he had left office. But if he takes himself seriously, this means that he should vote an emphatic yes to a Senate resolution disqualifying Trump under Section 3.
After all, Americans have enacted a number of amendments that have self-consciously moved beyond the original Constitution. For example, the Founding Fathers didn’t allow women to vote in federal elections. It took a long struggle by the women’s suffrage movement during the 19th century to finally gain enactment of the 19th Amendment, in 1920. Similarly, a half-million Union soldiers died for the United States before the Reconstruction Congress could gain the broad support required for the 14th Amendment to become higher law. In vindicating Section 3’s application to the tragedy culminating in the Jan. 6 attack on the Capitol, in which five people died, McConnell would be demonstrating that, despite the partisan passions of the present, he can proudly reaffirm his historical link to the Republican Party of Reconstruction.
The House should make the first move when the full Congress comes back in session next week. In their impeachment arguments before the Senate, the House impeachment managers have already recognized Section 3 as a possible alternative in case they failed to gain the super-majority required for a conviction. They should join Pelosi in backing a resolution disqualifying Trump under the 14th Amendment. Although only a simple majority is necessary, there is good reason to expect the resolution to win strong bipartisan support. Even before many damaging facts were made public, 10 House Republicans voted in favor of Trump’s impeachment in January. Despite the condemnation of hard-liners, Republicans from swing suburban districts will reinforce their reelection prospects by standing up for the Constitution.
This will set the stage for McConnell’s moment of truth. Although it would take only a simple majority to approve the House resolution, it will take 60 votes to close down a predictable filibuster by hard-line defenders of Trump. If McConnell joins the seven Republicans who joined the 50 Democrats in convicting Trump on Saturday, only two more Republicans would be needed to overcome a filibuster and pass the House resolution barring him from reelection in 2024.
Indeed, it is quite possible that, this time around, 67 Senators might vote in favor of a resolution disqualifying Trump for his acts of “insurrection.” Although this super-majoritarian act of condemnation is not constitutionally required, such a demonstration of bipartisanship on the Senate floor would serve as a significant symbol of national reconciliation at a time when it is desperately required.
Bruce Ackerman is the Sterling Professor of Law and Political Science at Yale University.