The Constitution has an answer for seditious members of Congress

Ryan Cooper

Let's review two pieces of news from the last week. First, the American coronavirus pandemic is entering its worst stage yet, with cases and deaths skyrocketing across the country. Last Thursday saw over 3,000 deaths — more than 9/11 or Pearl Harbor — and with ICU beds at or near capacity in most of the country, absent serious change it is possible there will be double or even triple that number per day in a matter of weeks. We may yet top the deadliest day in American history, the Galveston hurricane of 1900 that killed an estimated 8,000 people, very soon. President Trump is doing precisely nothing about this.

Second, Texas Attorney General Ken Paxton, who is under investigation for bribery and abuse of office, filed a baldly seditious lawsuit calling for the Supreme Court to overturn the election results in Georgia, Pennsylvania, Wisconsin, and Michigan, and hand their electoral votes to Trump. It was flatly an attempt to overturn the 2020 election, end constitutional government, and install Trump in power. Before the Supreme Court threw the suit out Friday night, 17 other Republican state attorneys general had joined him, along with 126 members of the Republican caucus in the House, while Senator Ted Cruz (R-Texas) has agreed to represent Trump. And this is just one of dozens of attempts that Republicans at all levels of government have concocted to overturn Trump's loss.

In short, material conditions in this country have not been this bad since 1932 at least, and the political situation has not been this bad since 1860. The logical endgame of the rapidly-accelerating Republican attempt to destroy democracy while the country burns would be civil war — if it weren't for the high probability that Democratic leaders would be too cowardly to fight.
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But it's worth thinking about what a party seriously committed to preserving democracy would do when faced with a seditious opposition party — namely, cut them out of power and force them to behave. Democrats could declare all traitors ineligible to serve in national office, convene a Patriot Congress composed solely of people who have not committed insurrection against the American government, and use that power to re-entrench democracy.

The reasoning here is very simple. All members of Congress swear an oath to protect and defend the Constitution, which establishes a republican form of government. The whole point of a republic is that contests for power are conducted through a framework of rules and democratic elections, where all parties agree to respect the result whether they lose or win. Moreover, the premise of this lawsuit was completely preposterous — arguing in effect that states should not be allowed to set their own election rules if that means more Democrats can vote — and provides no evidence whatsoever for false allegations of tens of thousands of instances of voter fraud. Indeed, several of the representatives who support the lawsuit were themselves just elected by the very votes they now say are fraudulent. The proposed remedy — having Republican-dominated legislatures in only the four states that gave Biden his margin of victory select Trump electors — would be straight-up election theft.

In other words, this lawsuit, even though it didn't succeed, is a flagrant attempt to overturn the constitutional system and impose through authoritarian means the rule of a corrupt criminal whose doltish incompetence has gotten hundreds of thousands of Americans killed. It is a "seditious abuse of the judicial process," as the states of Georgia, Pennsylvania, Michigan, and Wisconsin jointly wrote in their response to Texas trying to steal their elections.

The Constitution, as goofy and jerry-rigged as it is, stipulates that insurrectionists who violate their oath are not allowed to serve in Congress. Section 3 of the Fourteenth Amendment, written to exclude Confederate Civil War traitors, says that "No person shall be a Senator or Representative in Congress … who … having previously taken an oath, as a member of Congress … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same[.]" How the Supreme Court ruled, or whether Republicans actually believe their lunatic claims, is irrelevant. It's still insurrection even if it doesn't work out.

Democrats would have every right, both under the Constitution and under the principle of popular sovereignty outlined in the Declaration of Independence, to convene a traitor-free Congress (also including similar acts committed by Republican senators like Lindsey Graham, David Perdue, Kelly Loeffler, and others), and pass such laws as would be necessary to preserve the American republic. That might include a national popular vote to decide the presidency, ironclad voting rights protections, a ban on gerrymandering either national or state district boundaries, full representation for the citizens of D.C. and Puerto Rico, regulations on internet platforms that are inflaming violent political extremism, a clear legal framework for the transfer of power that ends the lame duck period, and so on. States would be forced to agree to these measures before they can replace their traitorous representatives and senators. If the Supreme Court objects, more pro-democracy justices can be added.

This wouldn't be the first time such a thing has happened, either. Immediately after the Civil War, the Radical Republican Congress refused to seat delegations from the former rebellious states until they were satisfied with the progress of Reconstruction. Southern states were forced to ratify the Fourteenth and Fifteenth Amendments — which guaranteed due process and universal male suffrage — before their congressional delegations would be seated. (As a consequence, those delegations included numerous Black representatives, until Reconstruction was overthrown.)

It is virtually impossible to imagine the ancient, timid fossils that run the Democratic Party even considering this kind of thing (though remarkably, Rep. Bill Pascrell of New Jersey has) because it would require courage, vision, and honestly reckoning with the parlous state of the nation. It would not be illegal, but it would be a step beyond narrow legal proceduralism and into the uncharted waters of aggressive political innovation and raw will-to-power. It could conceivably touch off armed unrest in several states.

But it's not hard to see where the current conservative trajectory is headed. While elected Republicans have tried to overturn the election using increasingly blatant methods, top conservative pundits are mulling the idea of secession, as their treasonous fire-eater forebears did 160 years ago. The lie that Biden stole the election is now official GOP dogma. By the same token, it is not a coincidence that the Republican Party is ignoring the deadly pandemic (if not actively spreading the virus) while they try to overturn the Constitution. They feel they can safely ignore the welfare of the American people, because they are not accountable to them.

Unless this escalating conservative extremism halts from the inside somehow — which is not remotely in sight anywhere — this can only end eventually in a violent confrontation, or (much more likely) Democrats will simply give up and let themselves be defeated. Still, this country was founded by people who thought it was worth putting their lives at hazard to throw off tyrannical rule. Perhaps some of that spirit can once again be found.More stories from theweek.com
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