A Year After the January 6th Insurrection Democracy Must be Defended by Law
The US Capitol Building - Photo by Bjørn Ihler 2021
Today, a year after the insurrectionists stormed the US Capitol in Washington DC, calling for the death of those they viewed as political opponents in an attack that resulted in at least seven deaths, section 3 of the 14th Amendment of the US Constitution is perhaps more relevant than ever.
On the 9th of July 1868, the US constitution was amended and the 14th Amendment ratified. As part of section 3, the law thus in effect stated that nobody who has engaged in insurrection or rebellion against the United States and its Constitution or given aid or comfort to the enemies thereof can hold public office in the US. Many still do.
“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 and 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 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.”
The January 6th committee, established on July 1st, is currently undertaking important work to investigate the background for the insurrection and the events of the day and aftermath themselves. Criminal prosecution of individuals participating in the attack also continues in courts across America.
What remains to be seen is how the US, through the law, will continue to defend its democracy for the longer term, against those who have the most power to undermine it. Those in public office, or currently running for election, who engaged in the insurrection, or gave aid or comfort to those who did.
A bill (H.R. 1405) was introduced in February by Congressman Cohen, Democrat of Tennessee to provide a cause of action to remove and bar from holding office certain individuals who engage in insurrection or rebellion against the United States. This would, in theory, disqualify a range of individuals from serving in public office, and running for election. On January 10th last year Speaker of the House, Nancy Pelosi formally requested input on whether Section 3 should be applied against former US President Donald Trump as a result of his role in the attack. While a simple majority would be needed in order to apply the section this seems easier said than done.
In order to apply the section of the amendment, public officials and civil servants would actually have to be held accountable for supporting or taking part in the rebellion and insurrection, and for aiding and “providing comfort” to those who did. Something many evidently did and continue to do.
According to a circuit opinion from 1869 by Chief Justice Chase, the provision is not enforceable without implementing a congressional statute. A congressional statute would thus have to be made prior to the confirmation of the results of the 2024 election in order to prevent Trump from being able to run, and by the midterm elections this year to hold those responsible, yet running, to account. There might also be some leeway for state courts and election officials to take a lead in this in the lead-up to local elections.
Section 3 of the 14th Amendment has only been applied once since reconstruction, against Victor L. Berger of Wisconsin, a Social Democrat and member of the Socialist Party of America who was convicted of violating the Espionage Act for opposing US entry into the First World War. The conviction was later overturned in 1921 by the Supreme court, after which he served for three terms in the House of Representatives. It is intriguing, in a time where the illiberal far-right claims oppression from the left, that the only use of the section since reconstruction was against a Jewish Social Democrat immigrant pacifist who famously opposed lynchings and worked for the rights of workers. This did however happen more than a century ago.
Much surrounding the enforcement of the section seems indeed at this point to largely be ancient history. The first scholarly article written on the section was in fact published mere weeks before the January 6th insurrection on December 14th, 2020, prior to this, and indeed the January 6th insurrection the section seemed to largely have been forgotten. In its historic ties to the civil war and civil rights, it is evident that the section in itself and its surrounding discourse carries the weight of the issue at hand that underpins January 6th, that of American White Supremacy.
The real challenge faced by US democracy is not only the one of the far-right insurrection and rebellion itself but one of the systemic erosion and undermining of the structures put in place to uphold the Constitution and defend US Democracy, leading to impunity and a failure to hold public officials to account. This is nothing new, and stands only to benefit those who stand to benefit from authoritarianism and its fundamental underpinnings of supremacy.
This failure to hold democratically elected officials accountable for supporting those who wish to overthrow democracy through violent, fascist, and authoritarian means in order to implement structures without equality before the law, nor equality of rights is not unique to the US. Across the world we see this erosion of democracy taking hold in formerly liberal democracies, oftentimes in nations that in the past have cast off the shackles of dictatorships and imperialism, leading to impunity among elected officials pushing to reinstate authoritarianism. In their thirst for power, these authoritarians exploit the most vulnerable spot of representative democracy, namely the vote, weaponizing one segment, and narrow understanding of democracy in order to undermine other democratic principles, including human rights, the liberty of the individual, equality, justice and the rule of law. Often this is done under the guise of “protecting” democracy from some unknown enemy, by people who cherry-pick both which of democratic values they wish to protect, and indeed what groups of the population they wish to defend democratic values for - for those of us who believe in the sanctity of universalist democratic values as a whole, for all, this becomes an easy trap.
Democracy itself has in many cases been co-opted and exploited through populism, fear-driven narratives of “Us vs. Them”, narratives of victimhood, and polarization and radicalization of the public sphere deliberately promoted by individuals and political parties seeking the power to undermine the democratic principles upon which our nations are built. This is achieved through the systemic spread of misinformation, by politicians and media houses, public voices, and individual users on social media. By planting seeds of hatred and mistrust amplified through outrage, by promoting conspiracy theories and narratives of victimhood and existential war.
It is easy to draw parallels between this and the growth of other extremist and terrorist movements globally. So easy, in fact, that other governments, including the government of Canada, have been less hesitant in labeling organizations present at the Capitol in January as terrorist groups.
As illustrated by the Hate Map the global far-right movements supporting politicians undermining democracy, including those present at the Capitol on January 6th are in fact international, interconnected, and violent. While the increased focus on domestic terrorism in the US and across the world in the aftermath of January 6th is welcome and much needed it’s therefore also important to view the acts of the day, and subsequent acts internationally by far-right groups, not in a vacuum, but as parts that make up a larger, international picture of the threat posed by the global far-right.
Violent extremism exists in the balance between identities of supremacy and victimhood. Ultimately this leads to authoritarianism, enslavement, and the violent denial of the peaceful existence of diversity within a community. This is also a fact of the American far-right, a movement that predates the founding of the Republic, the establishment of liberal democracy, and the idea of elections, freedom of speech, the right to self-determination, and perhaps most significantly - equality.
The ideas of white supremacy and white victimhood are inseparably intertwined with the history of the United States. The goal of the insurrectionists was to build on this, to create a state of impunity. Where inequality remains a systemic and structural fact. Where rights and liberty only apply to a few.
In order to defend its democracy, the United States must use every legal tool at hand to reckon with this fact. With the entangled relationship between its formal politics, historically and present, and white supremacy, with the fact that elected officials and candidates in upcoming elections were directly involved in an attempt to overthrow and undermine the very democracy, they swear to protect.
Meanwhile, those of us in the rest of the world have to reckon with the fact that the insurrection was not an isolated case. That the insurrectionists in the US remain only the tip of the iceberg of eroding democracies. That we must continue to fight to promote the sanctity of democracy, equality, and justice if we are to protect liberty, dignity, and human rights everywhere.