Conservative media attack constitutional argument over insurrection, whining about idea of holding GOP incumbents accountable

Right-wing media are lashing out in panic over the possibility that a little known provision of the 14th Amendment could prevent Republican incumbents involved in the January 6 insurrection from holding federal office.

The 14th Amendment was passed after the Civil War and deals with aspects of United States citizenship and the rights of citizens. Section 3, which was initially meant to prevent former Confederates from serving in public office during Reconstruction, states:

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 … 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.

Voting rights attorney Marc Elias has suggested Congress or the courts could disqualify former President Donald Trump and some other Republican representatives, including some current incumbents, from being seated based on the Constitution. (Media Matters is represented by Elias Law Group.) Some voters and legislators have also been focused on the provision.

Naturally, right-wing media have whined that relying on the Constitution to hold insurrection supporters in Congress to account is really an “attack on democracy” and an attempt at “purging Donald Trump” from politics so only “approved Republicans” can run: 

  • During the January 3 edition of Fox News’ Tucker Carlson Tonight, host Tucker Carlson denied that January 6 was an insurrection and suggested that the media were calling it that to enable use of the 14th Amendment to “ban the other side from running.” Carlson added that using Section 3 is really “an attack on democracy.” 
  • During the January 4 edition of Fox News’ The Ingraham Angle, host Laura Ingraham accused Democrats of trying to “change the rules” by using the 14th Amendment (which she called “an obscure Civil War-era law”) to disqualify “any Republican candidate who questioned the 2020 election results,” to which she retorted, “Good luck with that.”  
  • In a January 6 Gateway Pundit article, Joe Hoft accused “the Deep State” of “doing all they can to make it impossible for President Trump to run again for President” by using the 14th Amendment. 
  • During the January 6 edition of Premiere Radio Networks’ The Sean Hannity Show, host Sean Hannity claimed the “radical left” is “purging Donald Trump” by using the 14th Amendment, which he said was their plan from the beginning. 
  • On Twitter, failed California gubernatorial candidate and conservative radio host Larry Elder shared a January 8 opinion piece at The Hill by Fox News contributor Liz Peek, claiming that Democrats have been calling the Capitol attack an “insurrection” so that they can bar Trump from running again under the 14th Amendment.
  • In a December 23 Gateway Pundit article, Jim Hoft claimed Elias wants the U.S. to implement “Chinese-style censorship” by using the 14th Amendment so that “only approved Republicans” can run for office.  

Contrary to claims by some in right-wing media, there is nothing “radical” about ensuring that candidates for federal office are qualified under the U.S. Constitution to hold the offices they seek. 

Right-wing media figures trying to downplay the events of January 6 often bristle at calling the takeover of the Capitol an “insurrection.” But as Indiana University law professor Gerard Magliocca noted in a January 19, 2021, article published at Lawfare:

Almost immediately after the riot, members of Congress on both sides of the aisle described the violence as an insurrection. Why was that? The most logical answer is that the violence was intended to disrupt a constitutionally mandated process—the 12th Amendment’s electoral vote count—for the formal recognition of the presidential election results. In other words, this was not just a violent attack upon Congress, as bad as that would be.

Despite conservative media’s complaints, the argument for holding insurrection supporters to account under the 14th Amendment has continued to pick up steam.

On January 10, 11 voters in North Carolina filed a challenge with the State Board of Elections against Rep. Madison Cawthorn’s (R-NC) reelection campaign, claiming he is disqualified under Section 3 of the 14th Amendment. The challenge says his speech at Trump’s January 6 rally and other reported comments support a “reasonable suspicion or belief” that the GOP congressman played a role in the Capitol attack. Ron Fein, legal director of a group backing the complaint, “told The Associated Press the Cawthorn challenge will be the first of many his group intends to file against other members of Congress associated with the insurrection.”

And on January 11, Elias laid out a constitutional argument for using the 14th Amendment to bar lawmakers who aided the armed insurrection:

Preferably, the Department of Justice would lead this effort. Nonpartisan career lawyers should evaluate not just the criminal liability of people involved in the insurrection, but constitutional disqualification under the lower civil standard of proof.

However, if the Department fails or refuses to do so, Congress and private litigants will need to step in to vindicate this constitutional disqualification. One way or another, we cannot allow our government to be run by people who have violated their oaths of office and engaged in insurrection against the United States. Not acting to prevent this would itself be a violation of the Constitution.