by Guy Page

Have you wondered why House Speaker Nancy Pelosi and other House members, including VT Rep. Peter Welch, have specifically charged former President Donald Trump with inciting insurrection? Maybe at least part of the reason is that the 14th Amendment of the U.S. Constitution forbids anyone convicted of insurrection against the United States from holding office.

The 14th Amendment’s relevance to the ongoing impeachment trial, and other hot-button issues, will be discussed this Sunday noon, February 14, the Vermont Liberty Network and other supporters of the U.S. Constitution will gather at the Vermont State House lawn for the third in a series of rallies to celebrate the Bill of Rights. Ratified in 1868, the fourteenth amendment secured liberties to newly-emancipated slaves, guaranteeing all citizens “equal protection under the law.”

The 14^th amendment was one of three constitutional amendments resulting from the Civil War designed to fully eradicate slavery. The core language, crafted to protect former black slaves and ensure their full recognition as citizens, developed into a range of rights that are guaranteed under modern Constitutional law.

Vermont, of course, was “all in” the war fought to free the slaves. More Vermont soldiers died per capita than any other Union state. When the Senate approved the 14th Amendment 33-11 in 1866, both Vermont senators, George Edmunds and Luke Poland, supported the 14th Amendment. Poland said that because of the 14th Amendment “[The South] will be opened and expanded by the influence of free labor and free institutions . . . All causes of discord between North and South being over, we shall become a homogenous nation of freemen, dwelling together in peace and unity.”

Unlike some other states, motivated almost solely by a desire to preserve the union, Vermont was highly abolitionist.

Lawmakers and once-and-future visitors to the State House are reminded of Vermont’s abolitionist past by the portrait of one-armed Gov. Urban Woodbury, which hangs in the Governor’s ‘ceremonial office.’ Woodbury was a student at the UVM Medical School, an abolitionist hotbed, when war was declared. He immediately enlisted as a private soldier. At the First Battle of Bull Run he became Vermont’s first ‘sleeveless’ arm amputee when a when a Confederate cannonball killed a soldier in front of him and took off his right arm. Running as a Republican with a one-armed lieutenant governor on the slogan of “Two Good Arms Working for You,” he was elected governor in 1894 with 74% of the vote.

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The 14th Amendment has five sections. The first three, at least, are relevant and thought-provoking for today, as America again struggles with issues of race, citizen status, and insurrection.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Non-citizen voting: this week, Winooski’s two representatives in the Vermont House introduced a proposed city charter change, for which legislative approval needed, to allow non-citizen residents of the Onion City to vote in local elections. The Vermont Senate last year failed to approve a similar charter change for Montpelier. Yet senators expressed a willingness to consider the question at a future date. Will 2021 be the year? Probably not if the Legislature adheres to its promise to stay focused on pandemic recovery.

Does extending the right to vote in city elections weaken or ‘abridge’ the citizen’s privilege of voting?

The US Supreme Court has not directly ruled on that question – although in December it declined to hear an appeal by the State of Kansas of a lower-court ruling striking down the state law requiring voters to show drivers’ license ID. San Francisco, Chicago and several Maryland towns permit non-citizen voting in local elections.

According to Ballotpedia, “four arguments against allowing noncitizens to vote are that people should accept the duties of citizenship before being allowed to vote, that prohibiting noncitizens from voting is not discriminatory, that allowing noncitizens to vote would discourage them from seeking citizenship, and that allowing them to vote would not benefit society as a whole.”

Due Process – Do Gov. Scott’s pandemic-related executive orders restricting travel, lodging, and business operations “deprive any person of life, liberty, or property, without due process of law“? He would argue that state law and constitutional precedent give the governor these emergency powers. On the other hand, in the November, 2020 Supreme Court decision Roman Catholic Diocese v. Cuomo, Associate Justice Neil Gorsuch warns governors everywhere that “even in a pandemic, the Constitution cannot be put away and forgotten.” To summarize, Gorsuch says the Constitution doesn’t give emergency-empowered governors carte blanche powers of restriction.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the inhabitants of such state, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such citizens shall bear to the whole number of citizens in such state.

At present there’s a debate on the national level: should illegal immigrants and other non-citizens be included in the census? The Trump administration argued in 2020 that the “in” of “in each state” refers to legal residents and inhabitants. Illegal immigration supporters argue no it means “physically present in.” If the latter group – virtually all of whom voted for Joe Biden – get their way by regulation or law or Supreme Court decision, the next census and the next election could look very different.

Section 3.

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 an 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 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.

Section 3 may explain why the Democrats in Congress are so eager to impeach former President Donald Trump. It says that “no person shall….hold any office…..who….shall have engaged in insurrection or rebellion.” The January 13 US House impeachment articles charge Trump with “Incitement to Insurrection.” If convicted, he cannot hold office again. If anyone is looking for a reason why D.C. Democrats are pursuing this so strongly – beyond their general loathing of Trump – look no further. If convicted of these articles, he cannot run for office again. Not for US Senate in 2022 (Sen. Marco Rubio will be up for re-election) and not for president in 2024.

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” – U.S. Supreme Court Justice John Marshall Harlan, dissenting in Plessey v Ferguson, 1896.

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