In ordering the removal of Otero County Commissioner Couy Griffin from office, the judge cited a section of the 14th Amendment that barred any elected official “who, having previously sworn … to support the Constitution of the United States,” has subsequently ” engage in rebellion or insurrection against the same, or give aid or comfort to his enemies.’ The advocacy group that filed the lawsuit is also considering using it to disqualify former President Donald Trump from the 2024 presidential race, according to the New York Times. The exclusion clause, as it is sometimes called, was written in the post-Civil War Reconstruction era, the brief period when Republicans—some of the most progressive lawmakers in American history—were in the majority and determined to stop Confederate traitors rising from the return to public office. The amendment does not specify who is supposed to enforce it, so the responsibility has fallen on different agencies. Griffin was disqualified in court, but historically, Congress itself has sometimes taken votes to prevent elected members from being seated. Two of these cases highlight the inconsistency of the clause’s application: the last time it was used successfully, almost a century ago against the anti-war lawmaker Victor Berger (who was not, by any standard definition, an insurgent) and when it was applied against former Confederate Zebulon Vance—who, like Berger, was allowed to waltz back into power once the political winds had shifted in his favor. Vance grew up in a well-connected family that struggled financially but still enslaved more than a dozen people. After law school, he rose through the political ranks, first in the state senate and eventually as the youngest member of the 36th Congress, representing Asheville and surrounding areas. (Rep. Madison Cawthorn (RN.C.), who currently represents Asheville and was also its youngest member of Congress, faced a lawsuit seeking to disqualify him from Congress under the 14th Amendment. The lawsuit was dismissed as moot after Cawthorn missed primary in May.) As the march to the Civil War escalated, Vance initially opposed secession but eventually served in the Confederate Army. He also served as the Confederate governor of North Carolina. After the war, in 1870, he was nominated as a senator from North Carolina, but the Senate refused to seat him, citing the 14th Amendment. After spending two years in Washington trying to get amnesty, he gave up. Capitol statue collection gets first Black American, replacing Confederate But just a few years later, Washington was handing out amnesties like candy, defeating the entire purpose of the clause. Vance got his in 1875 and was elected to the Senate three years later. Not only did he serve until his death in 1894. In a sense, it’s still there today: A statue of Vance stands in National Statuary Hall in the U.S. Capitol, a 1916 gift from North Carolina that Congress can’t legally remove unless the state decides to replace it. Berger had a very different story, though he ended up in the same pickle as Vance. Born into a Jewish family in the Austrian Empire, he immigrated to the United States as a young man in 1878. He became a successful publisher in Milwaukee of English- and German-language newspapers. Berger was the leading voice of the “Sewer Socialists,” who believed that socialist goals could be achieved through elections and good government, without the need for violent revolution. Today, we would call it a “roads and bridges” platform. back then, it operated sewers and clean water owned by the city. Socialists were winning US elections long before Bernie Sanders and the AOC Berger served one term in Congress – the first member of the Socialist Party – from 1911 to 1913, peaking when he introduced the first old-age pension bill. (Today we call this Social Security.) He did not win re-election, but remained active in Wisconsin politics and publishing. Then the First World War began and with it came the First Red Scare. Berger was against the war and said so in his articles, and in 1918 this was enough to get him charged with “disloyal acts” under the Espionage Act. He ran for Congress again while under indictment, and soon after winning election in November, he was convicted and sentenced to 20 years in federal prison. The socialist who ran for president from prison — and won nearly a million votes While out on appeal, Berger appeared in Washington to be sworn in. The House refused to impeach him by a vote of 309-1, saying his words had “aided or comforted” the nation’s enemies, and so he was disqualified under the 14th amendment. In December 1919, he ran for a special election to replace himself, and incredibly, he won. The Parliament refused him a second time. In 1921, Berger’s conviction was overturned by the Supreme Court, and he returned unscathed to Congress in 1922, where he served three terms, pushing legislation to crack down on lynching and to end Prohibition.
