If America fails to punish its insurrectionists, it could see a wave of domestic terror

We must not repeat the mistakes of the years after the 1860s war for white supremacy that we call the civil war

by Steve Phillips, The Guardian

The last time the United States failed to properly punish insurrectionists, they went on to form the Ku Klux Klan, unleash a reign of murderous domestic terrorism, and re-establish formal white supremacy in much of the country for more than 100 years. As the House select committee investigating the January 6 Capitol attack begins televised hearings this week, the lessons from the post-civil war period offer an ominous warning for this current moment and where we go from here.

It is often difficult to sustain the requisite sense of urgency about past events, however dramatic and shocking they may have been at the time. Memories fade, new challenges arise and the temptation to put it all behind us and move on is strong. On top of all that, Republicans quickly and disingenuously called for “unity”, mere days after failing to block the the peaceful transfer of power. If we want to preserve our fragile democracy, however, Congress and the president must learn from history and not make the same mistakes their predecessors did in the years after the 1860s war for white supremacy that we call the civil war.

In 1860, many people believed that America should be a white nation where Black people could be bought and sold and held in slavery. The civil war began when many of the people who held that view refused to accept the results of that year’s presidential election. They first plotted to assassinate President-elect Abraham Lincoln (five years later, they would succeed). Then they seceded from the Union, and shortly thereafter started shooting and killing people who disagreed with them. By the end of the war, 2% of the entire country’s population had been killed, the equivalent of 7 million people being killed based on today’s US population.

Despite the rampant treason and extraordinary carnage of the war, the country’s political leaders had little appetite for punishing their Caucasian counterparts who had done their level best to destroy the United States of America. After Confederate sympathizer John Wilkes Booth successfully assassinated Lincoln in 1865, Andrew Johnson ascended to the highest office in the land. Johnson, a southerner who “openly espoused white supremacy”, “handed out pardons indiscriminately” to Confederate leaders and removed from the south the federal troops protecting newly freed African Americans.

The historian Lerone Bennett Jr captured the tragedy of the moment in his book Black Power USA: The Human Side of Reconstruction, 1867-1877, writing: “Most Confederate leaders expected imprisonment, confiscation, perhaps even banishment. Expecting the worst, they were willing to give up many things in order to keep some. If there was ever a moment for imposing a lasting solution to the American racial problem, this was it. But the North dawdled and the moment passed. When the Confederates realized that the North was divided and unsure, hope returned. And with hope came a revival of the spirit of rebellion … this was one of the greatest political blunders in American history.”

With that revival of white supremacist hope came ropes and robes and widespread domestic terrorism. Mere months after the ostensible end of the civil war in April 1865, half a dozen southern young white Confederate war veterans gathered in Pulaski, Tennessee, in December 1865 to discuss what to do with their lives, and they decided to form a new organization called the Ku Klux Klan. The first Grand Wizard of the KKK, Nathan Bedford Forrest, was a Confederate general who had been pardoned by Johnson. In less than one year, Forrest would go on to orchestrate “336 cases of murder or assault with intent to kill on freedmen across the state [of Georgia] from January 1 through November 15 of 1868”.

[Forrest, BTW, was Shelby Foote's hero in his Civil War history. It tells us all we need to know about the trustworthiness of Foote's book, or lack thereof. Ken Burns has come out recently and admitted he was naive in abetting Foote in the Civil War doc]

The effectiveness of the domestic terrorism in crushing the country’s nascent multiracial democracy was unsurprising and undeniable. In Columbia county, Georgia, 1,222 votes had been cast for the anti-slavery party in April 1868, and after the reign of terror that year, the party received just one vote in November of that year.

Lest we think this was all a long time ago, the House committee hearings are about to remind us all that we had an insurrection just last year. Not only did a violent mob attack the country’s elected leaders and attempt to block the peaceful transfer of power, but even after the assault was repelled, 147 Republicans – the majority of the Republican members in Congress – refused to accept the votes of the American people in their attempt to overthrow the elected government of the United States of America.

And far from being chastened, the enemies of democracy in the Republican party have only become emboldened, like their Confederate counterparts of the last century. Just as happened in the years after the civil war when the prospect of large-scale Black voting threatened white power and privilege, the defenders of white nationalism have engaged in a legislative orgy of passing pro-white public policies. From trying to erase evidence of racism and white supremacy from public school instruction to laws making it increasingly difficult for people of color to cast ballots. As journalist Ron Brownstein has warned, “The two-pronged fight captures how aggressively Republicans are moving to entrench their current advantages in red states, even as many areas grow significantly more racially and culturally diverse. Voting laws are intended to reconfigure the composition of today’s electorate; the teaching bans aim to shape the attitudes of tomorrow’s.”

All of this is happening because the insurrectionists have not and believe they will not be punished. But it doesn’t have to be this way. Democrats control Congress and the White House, and they can take strong and decisive action to ensure appropriate consequences for people who seek to undermine democracy. The House of Representatives impeached Donald Trump in 2021 for incitement of insurrection, and Congress can still invoke the 14th amendment’s provision banning from office any person who has “engaged in insurrection”.

All those who aided and abetted Trump’s insurrection should face the full force of the laws that are designed to protect the multiracial democracy that the majority of Americans want. The fate of democracy in America is quite literally at stake.
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Published on June 10, 2022 09:39
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message 1: by Linda (new)

Linda Frightening, yet insightful analysis. Thanks fo sharing.


message 2: by Cecily (new)

Cecily "should face the full force of the laws". What your confidence that they will?


message 3: by Michael (new)

Michael Perkins It's not going well. The Attorney General refrained from indicting a top Trump aid, Mark Meadows, and another staff person.

It seems the AG and Biden are living in a different era with a bipartisan, gentlemanly approach, rather than borderline fascism.

When Biden was asked about using an Executive Order to enforce gun control, he said he was not going to do that, that he was going to "play it square." Whatever that means.

Presidents throughout history have used such orders for urgent matters. It's as if Biden does not understand the real threat here.


message 4: by Kimba (new)

Kimba Tichenor The author makes some really good points. The one place where I think that he has it wrong unfortunately is his assessment of what Congress can do at this point. The reality is that Democrats do not control the Senate. It is evenly divided. Although in theory the VP (Democrat) can provide the tie-breaker vote, the Republicans can and have used the filibuster to block legislation. This is why so little that the House has passed has become law, because Democrats in the Senate do not have the necessary 60 votes required to stop a filibuster.


message 5: by Michael (new)

Michael Perkins Yes, that's the reality.

But as my post above yours indicates, there are other courses of action that could be pursued by the Demos, but aren't.


message 6: by Kimba (last edited Jun 10, 2022 03:53PM) (new)

Kimba Tichenor Definitely, the 14th amendment disqualification clause (section 3) could be used although there are some serious legal issues that could make it difficult as one route of implementation takes it back to both houses (hence my reference to Senate composition; apologies I did not make clear why this could even matter for 14th amendment application) and another potential route could land it before a conservative Supreme Court. Not to mention where it gets really tricky is applying it to the former President. That does not mean that it should not be tried, as we certainly are standing on a precipice that does not bode well for the future of democracy in this country. I don't disagree with you at all! Just not optimistic.

See below excerpt from: "Unpacking the theory that the 14th Amendment could keep Donald Trump out of the Oval Office in 2024" by Louis Jacobson, in PolitiFact


While the 14th Amendment is best known for enabling African Americans to become citizens of the United States, Section 3 says that no person "shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military" who had previously taken an oath to support the Constitution and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

The language was included "to prevent current and former U.S. military officers, federal officers and state officials who served the Confederacy from serving again in public office unless their disability was removed by at least a two-thirds vote of each house of Congress," wrote Gerard N. Magliocca, a law professor at Indiana University.

The provision was most frequently applied in the immediate aftermath of the Civil War, but in 1872, Congress granted amnesty to most officials covered by the section, and in 1898, another statute lifted the remaining prohibitions. The provision was rarely invoked in the 20th century.

Is the provision still relevant today?
Despite the long lapse in usage of Section 3, it could still carry weight, experts said.

"I think a court could find a person aided and participated in an attempt to overturn the result of a valid election," said Mark Graber, a University of Maryland law professor. "This is in theory no more difficult than proving persons aided and supported any illegal activity. And I think attempting to overturn an election by violence (qualifies as) an insurrection."

Despite this, the provision may have somewhat limited reach.

For starters, it only applies to former officials who swore an oath, meaning that any rank-and-file participant who stormed the Capitol and who didn’t have any previous government or military service wouldn’t be barred from serving in office.

"I suspect the number of likely candidates who could reasonably be affected by Section 3 is fairly small, though Donald Trump is potentially among them," said Keith Whittington, a Princeton University political scientist.

A potentially larger universe of candidates could be affected if a court construes "a judicial officer" to include lawyers, who are often referred to as "officers of the court" and who all take an oath to defend their state and the federal constitutions when sworn-in, said James Robenalt, lawyer at the firm Thompson Hine.

Another possible limiting factor is that the prospect of a court battle may not be enough to "deter the most ardent Trump supporters who wish to run for office," said Michael J. Gerhardt, a law professor at the University of North Carolina. In fact, Trump allies may find that defending against such charges could be useful to demonstrate their loyalty to the party’s base.

What are the main challenges to leveraging the provision against Jan. 6 participants?
The biggest obstacle to using the Disqualification Clause against a potential candidate is the lack of a mechanism to implement it.

"It is unclear what is required to keep someone out of office," said Brian Kalt, a law professor at Michigan State University. "Some say that Congress would have to pass legislation declaring the insurrection to be covered under the amendment. Others say that a court could find the facts. Still others say that the last word would go to the House in voting whether or not to seat a winning candidate."

The most direct precedent comes from the post-Civil War period, when Congress passed an implementing law. But Republican resistance to labeling the events of Jan. 6 an insurrection could be a major obstacle to passing a new law; at the very least, a new law would be hard-pressed to meet the 60-vote threshold in the Senate to move to a final vote.

Leaving the decision to the courts could be an easier route, but that would take time. "It might take too long to resolve, after the inevitable appeals, to become decisive in the 2022 midterms," Kalt said.

Meanwhile, leaving it to Congress to expel someone would require a two-thirds vote, which is a heavy lift in these polarized times.

"If people were engaged in insurrection or rebellion, I think it much cleaner and better to charge them with federal crimes — especially the seditious conspiracy statute that I’d argue applies directly to Jan. 6," Robenalt said.

Would the events of Jan. 6 qualify as an insurrection?
Whether Jan. 6 qualifies as an insurrection is an open question.

Magliocca, a specialist in the matter, has written that the question of what constitutes an insurrection is "a point on which I have thus far been unable to find any particularly helpful authority. During the 1860s and 1870s, everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like."

The strongest argument for calling Jan. 6 an insurrection, Magliocca wrote, is that it "was not just a violent attack upon Congress, as bad as that would be. The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force."

Still, to prove in court that Jan. 6 amounted to an insurrection "would be a tough row to hoe," said Frank O. Bowman III, a University of Missouri law professor.


message 7: by Michael (new)

Michael Perkins What this reminds me of once again, Kimba, is that the Right has been very organized over time to get the country into this difficult position.

As you probably know, the Federalist Society was founded in 1982 and it seems, with the current SCOTUS, that it got the court it wanted.

And in different ways, it was aided and abetted by the Koch Brothers, among others....

https://www.goodreads.com/book/show/3...

https://www.goodreads.com/book/show/2...

Clearly the Democratic Party has been out-maneuvered by the GOP


message 8: by Kimba (last edited Jun 10, 2022 04:35PM) (new)

Kimba Tichenor Michael wrote: "What this reminds me of once again, Kimba, is that the Right has been very organized over time to get the country into this difficult position.

As you probably know, the Federalist Society was fo..."


Definitely. and now the question is: has the "sleeping giant" awakened too late?


message 9: by Michael (new)

Michael Perkins I belong to neither party and am a skeptic. I see the current Democratic Party as very ineffective. There are various reasons for that. One aspect is that we are living through a second Gilded Age that has had a corrupting influence across the spectrum.


message 10: by Luís (new)

Luís Thanks for sharing, Michael! Quite insightful.


message 11: by Michael (new)

Michael Perkins Agree, Randolph, the choices are dismal.

One problem is that the Democrats are corporatists. They prefer to expand their wealth and privilege over helping the people. I was amazed when I found out that members of Congress can engage in insider trading. No way that should be allowed.

Sinema was supposed to represent the working class, but she takes big donations from Big Pharma and banks to make sure she votes like a GOP. There's no integrity.

The level of cowardice among the pols is disgusting.

The late Roman Republic had an hourglass shaped class system. We are well on the way to that, if not already there.


message 12: by Michael (new)

Michael Perkins "Always expect the worst and you’ll never be disappointed!"

On that note, I've been revisiting my favorite book in the Bible, Ecclesiastes (Kohelth)


message 13: by Michael (new)

Michael Thanks, Michael. This offers a chilling historical perspective on what's going on.


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