Democrats and even some Republicans now agree that President Donald Trump should face serious consequences for goading a mob to attack Congress last week. But how? Vice President Mike Pence has ruled out an invocation of the 25th Amendment, which would allow him (perhaps only temporarily) to assume the presidency. And while the House of Representatives may approve an article of impeachment, the Senate is out of session until the day before Joe Biden's inauguration. There is no time for an impeachment trial while Trump is still in office, and Biden does not want a trial to dominate his first weeks in office. Trump may escape without punishment.
But there is a way of dispensing some justice, even just the first dose: The long-forgotten Section Three of the 14th Amendment bars from occupying public office anyone who takes an oath to uphold the Constitution and subsequently participates in or gives "aid or comfort" to rebellion or insurrection. The amendment gives Congress the power of enforcement. (The House impeachment article contains an allusion to this provision.) Congress can use this authority to prohibit anyone who on Jan. 6 violated an oath in this way, up to and including the president, from ever again serving in a government post, local, state, or national.
Ratified in 1868 during Reconstruction, the 14th Amendment is the most important change in the Constitution since the Bill of Rights. Its first section establishes the principle of birthright citizenship; requires the states to guarantee "equal protection of the laws" to all people; and bars states from denying to any person life, liberty, or property without due process of law. It is the backbone of titanic 20th- and 21st-century Supreme Court decisions such as those outlawing racial segregation in public schools; establishing a constitutional right to privacy; requiring states to abide by the principle of one person, one vote; and legalizing same-sex marriage.
Section Three reached directly into the state and federal governments to try to weaken the Southern ruling class (known to Republicans as the Slave Power) in the wake of the Civil War. It aimed to ensure that political power was held by those truly loyal to the nation and to the principles of liberty and equality so powerfully strengthened by Union victory and the destruction of slavery. White Southerners, said Joseph H. Defrees, a Republican member of Congress from Indiana, must henceforth elect officials who had "some regard for the principles that are contained in the Declaration of Independence."
The 14th Amendment allows Congress to repeal the bar on officeholding by a two-thirds vote. Congress did this for a good number of individual Confederates who were willing to join the Republican Party and accept the expansion of the rights of African Americans during Reconstruction. One of the most prominent was Gen. James Longstreet, who headed the Metropolitan Police of New Orleans, which battled the White League during the latter's violent uprising attempting to overthrow the biracial Reconstruction government of Louisiana — a kind of precursor to the events of Jan. 6. In 1872, the House and Senate, in a gesture of reconciliation, removed political disabilities from all but the most prominent former Confederates.
Once Reconstruction ended, Section Three fell into disuse. But it remains in the Constitution. Its language — "no person," "any office" — makes no exception for the president. Applying the 14th Amendment to Trump via a new law or congressional resolution would require a majority vote in both houses, not two-thirds of the Senate as in the case of impeachment. That means it would rely on fewer GOP members who feel they need to stay on the good side of Trump's base. It might even be more palatable to Republicans than impeachment, the most infamous and damning answer to a reckless president. Trump would undoubtedly try to veto such a measure, although whether he could legally do so has not been tested. But if Congress acted after the inauguration that threat would disappear. And it wouldn't require the same rigmarole as an impeachment trial.
Like many parts of the Constitution, Section Three is not self-executing. In 1870, Congress passed a law directing local district attorneys to take steps to oust officeholders barred by Section Three and a number — it is unclear how many — did lose their positions. That law was repealed in 1948. Today, Congress should again specify a procedure for ascertaining to whom Section Three applies. Such a procedure would be a political process, not a full-fledged trial with witnesses and legal briefs, and so could happen quickly. It would have to include safeguards protecting free speech. One of the few times Section Three has been enforced since Reconstruction came in 1918, when the House of Representatives expelled the Wisconsin Socialist Victor Berger. His crime was a far cry from inciting a riot or aiding insurrection — he had been convicted under the Espionage Act because he opposed American participation in World War I. The Supreme Court later overturned his conviction and Berger went on to serve three more terms in the House.
Congress does not have to choose one path or the other. The House can vote to impeach as a statement of principle even though it is probable that a trial will be months away. At the same time, Congress can declare Trump and any other public officials and military veterans who incited or took part in the riot ineligible to hold future public office. They took an oath to defend the Constitution and, on Jan. 6, they violated it. This would be the mildest of punishments for inciting an uprising that left five people dead, threatened the lives of members of Congress, caused havoc in the Capitol, and sought to overturn the results of the presidential election. Such a step would be an affirmation of the vitality of our wounded democracy. And invoking a constitutional provision meant to limit the political power of Confederate leaders would mark an appropriate end to the career of a president who so closely identified himself with the memory of the Confederacy and with a culture of white resentment that reaches all the way back to the overthrow of Reconstruction.
Foner is the DeWitt Clinton Professor Emeritus of History at Columbia University and the author, most recently, of "The Second Founding: How the Civil War and Reconstruction Remade the Constitution." This piece was written for The Washington Post.