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Wednesday, December 16, 2020

Excluding Members-Elect from Congress

As a comment to my prior post noted, Representative Bill Pascrell of New Jersey wrote Speaker Pelosi last week and suggested that the Republican members who signed an amicus brief in the Texas lawsuit challenging the presidential election result should be excluded. Pascrell quoted Section Three of the Fourteenth Amendment and asserted: 

"[M]en and women who would act to tear the United States government apart cannot serve as Members of the Congress. These lawsuits seeking to obliterate public confidence in our democratic system by invalidating the clear results of the 2020 presidential election attack the text and spirit of the Constitution."

He goes on, but you get the point. Pascrell's request is absurd. Joining a brief is not "insurrection or rebellion" against the Constitution under any standard. If it were, the number of Representatives that could have been subject to exclusion would be quite long. We want people to use peaceful and lawful means to contest election results so that they don't use violent and unlawful means.

I would also point out that many people called President Rutherford B. Hayes "His Fraudulency"  during his Administration because of the murky circumstances of the 1876 election. Were they all engaged in insurrection or rebellion against the Constitution? Hardly. They were exercising their First Amendment rights.

Posted by Gerard Magliocca on December 16, 2020 at 08:46 AM | Permalink


It won't happen, but one scenario would be what would happen if -- under the House power to judge elections -- they determine the House Republicans (and they alone) could not be seated because they weren't legally elected.

Posted by: Joe | Dec 17, 2020 11:31:41 AM

Bit absurd indeed. But just bit and under current circumstances. Not generally speaking. This is because, an offence can be committed, even under appearance of lawful or peaceful action. It is called, secondary offenses, or derivative offenses. Like: aiding, abetting, and so forth, inciting for example is good illustration.

So, the respectable author of the post, has ignored by the way, the foot of the clause, I quote relevant part:

"....or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

And indeed, all this, has led, to violence, and several people were wounded and stabbed in violence. Not that it is necessarily related in criminal terms. Yet, it is not that simple theoretically at least.


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