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156 Years and Counting: Reparations for Slavery in 2021

Posted on by Scot Wilson

In the wake of this past summer’s demonstrations and civil unrest spurred by accusations of wrongful police killings and systemic racism, Congress is considering legislation regarding reparations for Black Americans who are descended from enslaved people. The bill, H.R. 40: Commission to Study and Develop Reparation Proposals for African Americans Act, was introduced by Representative Sheila Jackson Lee, D-Texas. It does not detail a specific set of reparations; rather, it seeks to establish a commission of elected officials and scholars who would explore the options available and determine the extent to which, if at all, the federal government owes compensation for the economic impacts of slavery on Black Americans.1

The concept of reparations is not a new idea. It has been debated for centuries, even before the Civil War ended and the nation officially abolished slavery.2 The H.R. 40 reparations bill is also not new, having been introduced by Lee in 2019 under the same title.3 What sets the current conversation apart is that for the first time ever, the White House has expressed direct support for establishing a commission on reparations, with press secretary Jen Psaki stating that President Joe Biden supports such a study.4

Complicated, But Not Unprecedented

The U.S. government has never given any direct compensation, financial or otherwise, for slavery. In fact, the United States only officially apologized for slavery in 2009.5 While the government has made few moves towards reparations for slavery, it has compensated other groups for the historical injustices they faced. There are many examples of reparations, but we will take a look at two cases—one (reparations for Japanese Americans) that is generally thought to be well-executed, and another (reparations for Native Americans) largely regarded as unsuccessful.6

After decades of petitions, elections, demonstrations, and lobbying, Congress passed the Civil Liberties Act of 1988 to make restitution to the victims of Japanese internment during World War II.7 Recipients included the 120,000 internees themselves, as well as their heirs in the event that an internee had died since the war. Compensation included a formal apology on behalf of the government, funding for public education about the crimes of Japanese internment, and monetary restitution in the amount of $20,000 per victim (approximately $40,000 today).8

Alternatively, spurred in large part by recognition of the key role that Native Americans played during World War II, the government attempted to compensate Native Americans for the lands and livelihoods taken by the United States throughout history.9 In 1946, the Indian Claims Commission was formed to hear the historical grievances of Native Americans and to determine restitution.10 As a result of the commission’s findings, the government set aside $1.3 billion as compensation for 176 tribes and organizations.11 To the disappointment of many Native American peoples and tribes, a multitude of issues emerged, including much of the money being held in a federal trust, which led each recipient to be awarded roughly $1,000—if they received a direct payment at all.12

What Form Would Reparations Take?

The idea of issuing reparations for slavery in the United States has never been popular. Recent studies show that roughly 20-25 percent of the population supports reparations, with Black Americans being the only group offering majority approval.13 Many people have spoken on the subject over the centuries, both in fierce opposition and in strong support. However, even supporters do not widely agree on the precise form that reparations could or should take. In fact, one of the primary purposes of the H.R. 40 reparations commission is to, at the very least, build some form of consensus around a proposal.

Regardless of support or opposition, one of the most challenging aspects of the reparations for slavery debate is the passage of time and incomplete documentation.14 The relative success of reparations for Japanese internment versus the poor outcome for Native Americans helps illustrate the challenge. Japanese internment was meticulously documented and had a specific start and end date. This made identifying the victims easier and their claims much harder to refute. Most of the direct victims of internment were also still alive at the time Congress passed reparations legislation, making the process that much easier.

By contrast, the taking of Native American lands, the forceful removal of Native American peoples, and the violence connected to it all took place over a protracted period with no specific timeframe and without thorough, reliable records to account for who was impacted. In the case of slavery, there is a specific end date, but observers disagree about whether that date is a sufficient determinant for reparations. Some scholars and proponents of reparations believe that the government should factor in the legalized discrimination that Black Americans faced for another century after the abolition of slavery.15

Some suggest that reparations for Black Americans should be monetary compensation to all, both for the labor of their enslaved ancestors and for the ongoing discrimination they face. Others suggest that in order to receive compensation, Black Americans should be required to provide proof of ancestry (which is complicated by incomplete records). Some have suggested that monetary compensation is not sufficient on its own, and that reparations should come in the form of government programs, education initiatives, and funding for community organizations. Others do not believe reparations are necessary at all.16

At this point, the issue of reparations is far from resolved. But most people would benefit from learning more about the history of reparations, the history of the government’s treatment of minority groups, and the historical contribution of Black people to U.S. history since long before the country existed. Some of these links may help you:

Discussion Questions

  1. Should the U.S. government provide some form of reparations for slavery? If so, what form do you think those reparations should take? If not, why not?
  2. Some opponents of reparations argue that the extended time that has passed since slavery ended makes reparations infeasible and/or inappropriate. Do you agree? Why or why not?
  3. Are there other groups who could argue that they are owed reparations? If so, how do you believe they should be compensated, if at all?
  4. Some supporters of reparations argue that even though most people living in the United States today have no direct connection to slave ownership, the government is legally considered to be an unbroken institution since the signing of the Constitution onward. Therefore, the government of today is the same government that enforced and profited from slavery but has never compensated the victims of that injustice. Do you agree with this view? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below!

Related Posts:

 

Sources

Featured Image Credit: Mario Tama/Getty Images
[1] Congress.gov: https://www.congress.gov/bill/117th-congress/house-bill/40?s=1&r=6
[2] New York Times: https://www.nytimes.com/2019/05/23/business/economy/reparations-slavery.html
[3] Congress.gov: https://www.congress.gov/bill/116th-congress/house-bill/40?q=%7B%22search%22%3A%5B%22Rep+Jackson+Lee+Sheila+TX18%22%2C%22Rep+Jackson+Lee+Sheila+TX18%22%5D%7D
[4] Reuters: https://www.reuters.com/article/us-usa-biden-slavery/white-house-says-biden-supports-study-of-slavery-reparations-idUSKBN2AH2K9
[5] FacingSouth.org: https://www.facingsouth.org/2009/06/senate-passes-resolution-apologizing-for-slavery.html
[6] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html
[7] Congress.gov: https://www.congress.gov/bill/100th-congress/house-bill/442
[8] Densho Encyclopedia: https://encyclopedia.densho.org/Civil_Liberties_Act_of_1988/
[9] National Park Service: https://www.nps.gov/parkhistory/online_books/laro/adhi/adhi4c.htm
[10] National Archives: https://www.archives.gov/research/guide-fed-records/groups/279.html
[11] Department of the Interior: https://www.doi.gov/sites/doi.gov/files/T-0810.pdf
[12] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html
[13] The Hill: https://thehill.com/homenews/news/504511-1-in-5-supports-reparations-in-new-poll
[14] New York Times: https://www.nytimes.com/2019/06/19/us/reparations-slavery.html
[15] The Atlantic: https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/
[16] Quartz: https://qz.com/1912770/how-would-reparations-work/

 

The 14th: Why A Reconstruction-Era Amendment is in the News

Posted on by Scot Wilson

Now that former President Donald Trump’s second impeachment trial has concluded with another acquittal, some lawmakers and voters remain unsatisfied with the results.1 Had President Trump been found guilty by the Senate, he would have been barred from holding federal office again in the future. With an acquittal, President Trump remains eligible to run once again in 2024, as many have speculated he plans to do.2 

With some Americans arguing that President Trump’s acquittal was the result of partisanship instead of a consideration of the evidence, there have been calls to use the 14th Amendment to bar President Trump from being elected again.3 But now, 150 years after its ratification, how does the 14th Amendment apply to these issues today?

The 14th Amendment passed after the Civil War, as one of the Reconstruction-Era amendments intended to solidify the rights and citizenship of formerly enslaved people. The 13th Amendment formally abolished slavery, and the purpose of the 14th Amendment was to establish citizenship for any person, including the formerly enslaved, born in the territory of the United States.4 This establishment of birthright citizenship is why the 14th Amendment is often discussed in relation to immigration reform.5 But those hoping to use the 14th Amendment to keep President Trump out of office are citing the lesser-known Section 3, which reads: 

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, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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.6 

14th Amendment Reconstruction and the History of Section 3

Originally, Section 3 was included in the 14th Amendment to protect post-war reforms in the South by barring members of Congress, state government officials, and military leaders who had sided with the Confederacy from holding office in the future.7 The 14th Amendment also helped lift some of the barriers to Black Americans holding federal office. 

For the brief period of 1870-1887, Black senators and representatives served in the halls of Congress, beginning with Senator Hiram Revels of Mississippi and Representative Joseph Rainey of South Carolina, both of whom were elected in 1870. Also during this period, Senator Blanche K. Bruce of Mississippi would serve a full term and an additional 15 Black congressmen would serve.8  

However, most of their tenures in office were brief, as the resurgence of white supremacists in Southern governments saw them removed from office or defeated in elections. As Reconstruction ended, marked by the withdrawal of federal troops from the South, nearly all of these senators and representatives were out of office by 1876. Black Americans were sporadically elected to the House of Representatives until 1901, but their time in office was usually brief. It would not be until 1943 that more than one Black representative served in Congress again with any consistency. Another Black senator was not elected until 1966—more than 90 years after Senator Bruce’s term ended.9  

The Current 14th Amendment Debate

In the wake of the Capitol attack, some lawmakers believe the language of the 14th Amendment gives them the power to prevent President Trump’s return. However, opponents and even neutral legal scholars have raised several issues with this argument. First, the 14th Amendment specifies that a two-thirds vote in both the House and the Senate could undo someone being barred from office on these grounds, but it offers no formal process for barring them to begin with. Second, the language of the 14th Amendment is tied to “a Senator or Representative in Congress, or elector of President and Vice President,” but it makes no direct mention of the office of the president itself.10 To combat this argument, proponents of invoking the 14th Amendment cite the rest of the clause, which states “or hold any office, civil or military, under the United States.” It could be argued that the president, as a civilian leader and commander-in-chief of the military, falls under this category.11  

Yet with the impeachment trial now concluded with an acquittal, the validity of invoking the 14th Amendment becomes even less clear. Under its tenets, barring someone from office requires them to have taken an oath to support the Constitution and “have engaged in insurrection or rebellion against the same.” President Trump most certainly took that oath when he was sworn in as president, but he has been constitutionally acquitted of having engaged in insurrection.12 

Discussion Questions 

  1. Should Congress be allowed to bar anyone from holding office? If so, under what circumstances do you think that would be appropriate? If not, why not? 
  2. If Congress was to decide to ban a citizen from holding federal office, what should be required to make that happen? Is a simple majority vote in the House and the Senate enough? Should the process be more involved/require greater approval? 
  3. The purpose of the 14th Amendment was to establish the criteria for U.S. citizenship and to guard against pro-slavery/white supremacist officials undermining Reconstruction in the South. Some people suggest that Congress could use more reforms to help protect democracy and to make itself more representative of all citizens. Do you agree or disagree? What reforms do you think would improve representation in Congress? Or, why do you think Congress does not need such reforms? 

We encourage you to join the discussion on the 14th Amendment on the current event with your comments or questions below!

Related Posts: 

Historic Second Impeachment: Part 2

Historic Second Impeachment: Part 1

How Would You Vote in the Senate Impeachment Trial?

 

Sources

Featured Image Credit: Public Domain
[1] Politico: https://www.politico.com/news/2021/02/15/poll-trump-impeachment-conviction-469051
[2] NPR: https://www.npr.org/2021/01/30/961919674/could-trump-make-a-comeback-in-2024 
[3] The Nation: https://www.thenation.com/article/politics/14th-amendment-trump-foner/ 
[4] Senate.gov: https://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm 
[5] Vox: https://www.vox.com/2018/7/23/17595754/birthright-citizenship-trump-14th-amendment-executive-order 
[6] National Archives: https://www.archives.gov/founding-docs/amendments-11-27#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws. 
[7] Lawfare Blog: https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6 
[8] House.gov: https://history.house.gov/baic/ 
[9] Ibid. 
[10] Voice of America: https://www.voanews.com/usa/us-politics/some-lawmakers-experts-eye-14th-amendment-bar-trump-future-office 
[11] Lawfare Blog: https://www.lawfareblog.com/practical-path-condemn-and-disqualify-donald-trump 
[12] NPR: https://www.npr.org/sections/trump-impeachment-trial-live-updates/2021/02/13/967098840/senate-acquits-trump-in-impeachment-trial-again 

 

Building Bridges – The Presidential Pardon

Podcast Host: Joe Geraghty  |  Podcast Contributors: Dr. Dan Wallace and Sante Mastriana

This episode of Building Bridges looks at the history of the Presidential Pardon. We will focus on a range of Presidential Pardons and Commutations given to people from all different backgrounds and crimes committed. Starting with pardons to Noah Hansen, Marcus Garvey, George Wilson, Robert E. Lee, Jefferson Davis, Oscar Collazo, and wrapping up with Patty Hearst. Their crimes range from attempted presidential assassination to liberating slaves escaping on the Underground Railroad.

Part 1: Noah Hansen Pardon (00:51)
Part 2: Marcus Garvey Pardon (05:42)
Part 3: George Wilson Pardon (16:22)
Part 4: Brigham Young Pardon (20:03)
Part 5: Robert E. Lee/Jefferson Davis Pardons (27:19)
Part 6: Oscar Collazo Pardon (33:41)
Part 7: Patricia Hearst Pardon (53:04)

 

The Debate Over School Resource Officers and the #CounselorsNotCops Campaign

Posted on by Scot Wilson

#CounselorsNotCopsThe debates over defunding or reforming the police and addressing the school-to-prison pipeline have merged to focus on the issue of police officers in schools. School resource officers (SROs) are career law enforcement officers who work in one or more schools.1 According to the Department of Justice, SROs are “responsible for safety and crime prevention in schools.”2 In addition to enforcing laws, SROs are expected to act as informal counselors and educators.3

As people across the country have raised questions about the role of police,4 it is unsurprising that those debates have spilled over into schools. Some large districts are already taking steps to reduce, or even remove, police officers from schools. Shortly after a Minneapolis police officer killed George Floyd, the city voted to remove SROs from their schools. The cities of Denver, Milwaukee, and Portland, Oregon, have taken or announced similar steps5 in the face of mounting protests and public pressure.6

What Is the Debate Over Officers in Schools About?

Over the last two decades, there has been a significant increase in the number of School Resource Officers in public schools.7 In 2017, the American Civil Liberties Union released a report about the rise and consequences of police officers in schools. According to the report, students of color, and particularly Black students, are overpoliced and often significantly more likely to be criminally charged for misbehavior in school.8 The ACLU found that some students were charged with assault for throwing baby carrots or paper airplanes, or charged with larceny for stealing milk.

There have been several incidents caught on camera in which police officers used excessive force against children as young as six.9 Some students of color and students with disabilities have spoken up to say that they feel threatened by police officers in schools, or that their SROs treat them differently than their white, able-bodied counterparts.10

In North Carolina, there are debates about SROs at the state level and in many of the state’s larger school districts. For example, in Wake County, student activists are demanding that officials remove SROs from schools and replace them with counselors. Black Students Matter and the Wake County Black Student Coalition led demonstrations in Raleigh and surrounding communities to raise public awareness and put pressure on local officials after they voted to keep officers in schools.11 In that district, 61 percent of all SRO referrals to criminal courts are Black students, who make up only 22 percent of the student population.12

WATCH: #CounselorsNotCops, from the Wake County Black Student Coalition

In Maryland, two bills in the state legislature are compelling residents to consider the role of police officers in schools. One bill, the Counselors Not Cops Act, would shift a significant portion of the state’s funding away from SROs and toward investment in counselors, social workers, and other school support staff.13 The other bill, the Police Free Schools Act, would remove police from the state’s public schools.14

Maryland, like many states, increased funding for SROs and their training after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida.15 States and schools recognize the need to keep students safe and are struggling to balance this priority against calls for racial justice and educational equity. While some jurisdictions are removing SROs from schools, others are considering reforming their approaches.

LISTEN: “Inside the National Movement to Push Police Out of Schools,” from NPR

Many large educational organizations, such as the National PTA, the National Association of Secondary School Principals, and the National Association of School Psychologists, support the presence of SROs in schools but are calling for reforms.16 These organizations signed an open letter calling for more training and stricter standards for the selection of SROs, the inclusion of school principals in the hiring process, and annual evaluations that take into account disproportionate rates of enforcement by race, gender, and ability.17

Discussion Questions

  • Are there SROs in schools in your community? What have been your experiences, if any, with SROs?
  • Are there any reform efforts in your community or state? Are there any bills or policy changes being considered?
  • Do you think reform is needed? Do you believe SROs should be removed from schools? Why or why not?
  • How, if at all, do you think we should reform schools to address the school-to-prison pipeline?

Additional Resources

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: CNN.com
[1] National Association of School Resource Officers: https://www.nasro.org/faq/
[2] Department of Justice: https://cops.usdoj.gov/supportingsafeschools
[3] Ibid.
[4] ABC News: https://abcnews.go.com/US/defund-police-movement-months-killing-george-floyd/story?id=74296015
[5] CNN: https://www.cnn.com/2020/06/28/us/police-out-of-schools-movement/index.html
[6] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08
[7] National Center for Education Statistics: https://nces.ed.gov/surveys/ssocs/tables/tab_my01_2016_all.asp
[8] American Civil Liberties Union: https://www.aclu.org/report/bullies-blue-origins-and-consequences-school-policing
[9] Today.com: https://www.today.com/tmrw/what-school-resource-officer-t184614
[10] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08
[11] ABC 11 Eyewitness News: https://abc11.com/education/wake-co-teens-march-in-downtown-raleigh-to-pull-police-from-schools/6273010/
[12] Charlotte News & Observer: https://www.newsobserver.com/news/local/education/article246154015.html
[13] Fox 45 Baltimore: https://foxbaltimore.com/news/local/some-maryland-lawmakers-have-introduced-legislation-that-would-remove-sros-from-schools
[14] CBS 13 Baltimore: https://baltimore.cbslocal.com/2021/02/03/counselors-not-cops-act-school-resource-officers-maryland/
[15] Ibid.
[16] Education Week: https://www.edweek.org/education/the-police-in-schools-debate-needs-more-nuance-ed-groups-say/2020/08
[17] National Association for Secondary School Principals: https://files.nassp.org/archive/nassp/2020/08/Framework-Authors-SRO-Statement_Final.pdf

 

Athletes and Activism: Exploring Race, Sports, and Social Issues

During this Close Up Conversations webinar, Close Up’s, Joe Geraghty, discusses race, social issues, athletes, and activism in the world of sports, with Curtis Harris, PhD History candidate and adjunct professor at American University.

Curtis M. Harris is a PhD History candidate and adjunct professor at American University. His research focuses on the struggle for rights in the United States. His soon-to-completed dissertation examines the efforts of professional basketball players in the mid-20th century to secure their civil and labor rights. Since 2012, Curtis has also managed ProHoopsHistory, his independent blog and newsletter focused on exploring the history and complexities of professional basketball in North America. Curtis’s academic research has been presented at the North American Society for Sports History; his popular work on basketball history has appeared at ESPN, Bleacher Report, Sporting News, and NPR; and his time as a public historian has included work and research at President Lincoln’s Cottage, the National Museum of American History, the National Museum of African American History and Culture, and the Philadelphia 76ers.

 

Tackling Climate Change: Zero-Emission Vehicles

Posted on by Scot Wilson

President Joe Biden has made addressing climate change one of his administration’s seven “immediate priorities,” requiring “bold action” by the government to improve the lives of the American people and protect the environment.1 On his seventh full day in office, President Biden signed an “Executive Order on Tackling the Climate Crisis at Home and Abroad” which, among other directives, calls for reducing greenhouse gas emissions, obtaining zero-emission vehicles for the government, and achieving net-zero emissions by 2050 at the latest.2 These goals are very ambitious—225,000 electric, zero-emission vehicles would be needed for the U.S. Postal Service alone—and they would dramatically shift our society away from the fossil fuels on which it is so dependent. Yet President Biden’s plan to address climate change almost immediately received a boost from the private sector.

The day after the president signed his executive order, General Motors made the unprecedented announcement that it would phase out gas-powered cars and produce only zero-emission vehicles (those that do not expel greenhouse gases or other pollutants) by 2035.4 GM is investing billions of dollars in manufacturing its electric vehicles, including 30 new models to be released within the next five years.5 A White House spokesperson praised the decision, saying, “We applaud efforts by the private sector to further embrace renewable and clean energy technologies. As the president and many others have said, efforts like this will help grow our economy and create good-paying union jobs.”6

During the Super Bowl, GM ran a series of star-studded ads featuring Will Ferrell7 and Timothée Chalamet8 as it highlighted its push to be a global leader in selling electric cars and showcased its new all-electric Cadillac LYRIQ. While zero-emission vehicles have become increasingly popular among buyers (sales increased in 2020), they still represent less than two percent of all vehicles on the road in the United States today.9

With the Biden administration and GM pursuing common goals, there is a new opportunity for both to work together though innovation and partnership, rather than relying solely on pressure or policy. Previously, GM had pushed back against federal and state government guidelines, including emission and fuel-efficiency standards from President Barack Obama’s administration and the state of California.10 GM no longer has competing priorities that would prevent it from implementing effective solutions to deal with the climate crisis.

Having the support of this automotive industry leader may make it easier for President Biden to pursue his environmental agenda; it could also encourage him to go even further with his policies and pursue more aggressive action to combat climate change. Other auto manufacturers may follow GM’s example and make similar changes themselves, as they shift away from fossil fuels in an attempt to remain competitive and keep up with a changing market and energy landscape.11

This movement could even expand to other industries that seek to work alongside the Biden administration, to adapt their practices, to invest in a burgeoning economy, and to improve their own bottom line. The actions of private companies would complement the White House’s climate change priorities, which aim to take “swift action to tackle the climate emergency” and ensure “we meet the demands of science while empowering American workers and businesses to lead a clean energy revolution.”12

Discussion Questions

  1. Do you know anyone who owns a zero-emission vehicle? Do you see any in your community? If not, why do you think that is?
  2. What are some benefits of the government having the support of businesses, corporations, or industry leaders for its policy agenda?
  3. Do you support President Biden’s plan? Does it go too far, or not far enough?
  4. Do you think addressing climate change is more the responsibility of the government or the private sector? Is one currently doing a better job than the other?

As always, we encourage you to join the discussion with your comments or questions below!

 

Sources

Featured Image Credit: Joe Biden via Washington Post
[1] White House: https://www.whitehouse.gov/priorities/
[2] White House: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/
[3] Washington Post: https://www.washingtonpost.com/climate-solutions/2021/01/28/biden-federal-fleet-electric/
[4] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html
[5] CNBC: https://www.cnbc.com/2021/02/03/watch-gms-2021-super-bowl-ad-with-will-ferrell-before-it-airs.html
[6] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html
[7] YouTube: https://www.youtube.com/watch?v=LxBQ2Q39Tq4
[8] YouTube: https://www.youtube.com/watch?v=0KAlqthD6Gc
[9] Washington Post: https://www.washingtonpost.com/climate-solutions/2021/01/28/biden-federal-fleet-electric/
[10] New York Times: https://www.nytimes.com/2020/11/23/climate/general-motors-trump.html
[11] New York Times: https://www.nytimes.com/2021/01/28/business/gm-zero-emission-vehicles.html
[12] White House: https://www.whitehouse.gov/priorities/

 

 

Historic Second Impeachment, Part Two: Questions of Crime and Punishment

Posted on by Scot Wilson

This week, the Senate commences an historic second trial of former President Donald Trump, stemming from his actions pertaining to the January 6 Capitol riot.1 Against a backdrop of heightened security, threats made against members of Congress,2 and tensions within the Republican Party,3 senators must determine President Trump’s innocence or guilt, as well as what consequences, if any, he should face. Their decisions may affect elections for years to come.4

The Constitution allows impeachment for “Treason, Bribery, or other high Crimes and Misdemeanors.”5 The document does does not specifically list those offenses, leaving it to Congress to determine what exactly merits impeachment and conviction.6 The charge by the House of Representatives, “incitement of insurrection,”7 uses language from Section 3 of the 14th Amendment,8 likely foreshadowing certain members’ hopes to disqualify President Trump from holding future office.9 That possibility could turn on whether or not senators find President Trump guilty of incitement.10

The constitutional right to free speech11 sets a high bar for what is considered incitement.12 To qualify as unprotected, criminal speech, President Trump’s words would have needed to encourage immediate lawbreaking and to be likely to produce that lawbreaking.13 While separate criminal charges for incitement are theoretically possible14 (but unlikely15), they are not part of the Senate trial, so senators can decide individually if they want to use the criminal burden of proof or a different, lower standard.16

House Democrats contend that First Amendment protections should not allow a government official to abuse their power and avoid impeachment.17 They argue, on the basis of President Trump’s January 6 speech,18 that his responsibility for the attack is “unmistakable.”19 President Trump’s legal team denies those claims, arguing that those responsible—people who entered and vandalized the Capitol—are being prosecuted and that President Trump did not incite anyone to “engage in destructive behavior.”20 Some of the accused rioters seemingly disagree, blaming President Trump in their legal defense.21 President Trump’s lawyers also assert that the trial itself is unconstitutional22 (a debate addressed in a previous post), although Democrats have criticized this argument as a way for Republicans to avoid judging his words.23

READ: Full Transcript of President Trump’s January 6 Speech, from U.S. News & World Report

In the event of a Senate conviction, President Trump would lose his post-presidency benefits (including his pension for security and travel expenses).24 An additional, simple-majority vote25 in the Senate could disqualify him from holding future office.26 If the Senate does not convict, President Trump’s opponents have considered trying to disqualify him from future elected office anyway, by using Section 3 of the 14th Amendment.27 This provision initially sought to keep leaders of the Confederacy28 (who had “engaged in insurrection or rebellion”29) from holding federal office.30 Experts caution that using this provision against President Trump would almost certainly result in lawsuits,31 as there is little historical precedent and no enforcement mechanism for Section 3.32 University of Chicago law professor Daniel Hemel notes that even if Congress does not pursue this path, citizens in some states could set off a similar legal battle by appealing to their board of elections to bar a candidate from the ballot.33 “All it takes is one registered Republican in New York state to say Donald J. Trump is not qualified to be president because he violated Section 3,” said Hemel.34

Discussion Questions

  1. Do you think President Trump’s actions make him guilty of inciting an insurrection? Why or why not?
  2. What standard of proof should senators use to determine if President Trump is guilty of incitement?
    • People who favor the highest standard of proof note that the Constitution’s use of the words “try” and “convicted” are similar to language used in criminal trials.35 Those who advocate a lower standard of proof assert that an impeachment trial cannot result in criminal penalties such as jail sentences.36 Which argument do you find more persuasive? Why?
    • Based on the highest standard of proof (the one criminal prosecutors would have to satisfy) that President Trump’s actions encouraged and produced immediate lawbreaking, should senators find him innocent or guilty? Why?
  3. House Democrats argue that there is a difference between a private citizen’s right to free speech, in which they could advocate for an overthrow of the government, and a president’s right to say the same thing because it would be an abuse of power.37 Do you agree or disagree? Why?
  4. Based on his actions, do you think President Trump should be disqualified from holding federal office in the future? Why or why not?
  5. If the Senate does not convict President Trump of incitement of insurrection, do you think Congress should try to disqualify him from holding federal office again by using Section 3 of the 14th Amendment, even if doing so results in a lengthy court battle? Why or why not?
  6. Professor Hemel thinks that because Section 3 of the 14th Amendment is not clear about what amounts to an insurrection and how penalties would be enforced, there will be number of lawsuits preceding the 2024 election.38 Hemel said, “My guess is it’ll be made against a bunch of candidates in a bunch of states. For Congress, an important question is, do you want to be in the driver’s seat here setting forth the rules of the road for Section 3 litigation, or do you just want to wait for 2023 to come around and let it rip?”39
    • Which branch of government do you think should settle questions about insurrections and how penalties should affect political candidates? Do you think Congress should pass laws in the next two years to clarify these issues, or do you think judges, up to and including Supreme Court justices, should interpret laws as cases come up?

How to Get Involved

Contact your state’s two senators to share your opinions on whether or not they should convict President Trump of incitement of insurrection, and what (if any) penalties you think he should receive. Find contact information here:

Other Resources

Have students review crowd reactions to President Trump’s January 6 speech.

Ask students to answer the following question in writing and/or deliberate in class: Based on this evidence, did President Trump incite an insurrection? Why or why not?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Senate Television via AP
[1] NPR: https://www.npr.org/2021/01/25/960389715/sen-patrick-leahy-to-preside-over-trumps-senate-impeachment-trial
[2] Associated Press: https://apnews.com/article/lawmakers-trump-impeachment-trial-b9a44a269d6cfeee28e79b46572d28a6
[3] CNN: https://www.cnn.com/2021/01/28/politics/adam-kinzinger-impeach-trump-axe-files/index.html
[4] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[5] Constitution Annotated: https://constitution.congress.gov/browse/essay/artII-S4-2-1/ALDE_00000690/
[6] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[7] Representative David Cicilline’s Official Website: https://cicilline.house.gov/sites/cicilline.house.gov/files/documents/ARTICLES%20-%20Final%201030%20-%20011121.pdf
[8] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/
[9] New York Magazine: https://nymag.com/intelligencer/2021/01/dont-impeach-trump-for-insurrection-use-the-14th-amendment.html
[10] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[11] National Constitution Center: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/266
[12] The Marshall Project: https://www.themarshallproject.org/2021/01/08/a-civilian-s-guide-to-insurrection-legalese
[13] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes
[14] Washington Post: https://www.washingtonpost.com/business/insurrection-seditionunpacking-the-legal-issues-from-the-capitol-riot/2021/01/14/4fe1f618-5631-11eb-acc5-92d2819a1ccb_story.html
[15] Christian Science Monitor: https://www.csmonitor.com/USA/Justice/2021/0115/Incitement-sedition-and-conspiracy-explaining-Capitol-crimes
[16] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[17] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[18] The Guardian: https://www.theguardian.com/us-news/2021/feb/02/trump-capitol-riot-powder-keg-impeachment-prosecutors
[19] Ibid.
[20] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[21] Yahoo! News: https://www.yahoo.com/news/lawyers-for-accused-capitol-rioters-outline-a-defense-the-president-made-them-do-it-014900543.html
[22] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[23] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial
[24] ABC News: https://abcnews.go.com/Politics/impeachment-democrats-seek-bar-trump-post-presidency-financial/story?id=75178231
[25] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/constitution-conan/article-2/section-4/judgment-removal-and-disqualification
[26] Vox: https://www.vox.com/22220495/impeachment-trump-2024-election-bar-from-office
[27] ABA Journal: https://www.abajournal.com/news/article/could-the-14th-amendment-be-used-to-disqualify-trump-from-office
[28] ABC News: https://abcnews.go.com/Politics/democrats-cite-rarely-part-constitution-impeachment-article/story?id=75177543
[29] Constitution Annotated: https://constitution.congress.gov/browse/amendment-14/section-3/
[30] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment-explainer/impeachment-or-the-14th-amendment-can-trump-be-barred-from-future-office-idUSKBN29I356
[31] Ibid.
[32] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[33] Ibid.
[34] Ibid.
[35] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[36] Ibid.
[37] Associated Press: https://apnews.com/article/donald-trump-trials-impeachments-trump-impeachment-michael-pence-605886eb7c49cceb99c89a6f3d21abb7
[38] CBS News: https://www.cbsnews.com/news/14th-amendment-insurrection-rebellion-trump-post-presidency/
[39] Ibid.

 

 

Historic Second Impeachment, Part One: Questions of Constitutionality and Unity

Posted on by Scot Wilson

Last week, the House of Representatives delivered an article of impeachment to the Senate, accusing former President Donald Trump of inciting violence against the U.S. government on the basis of his actions relating to the January 6 storming of the Capitol.1 Already the first U.S. president to be impeached twice, President Trump will also become the first to face a Senate trial after leaving office.2 Before the trial starts on February 9, members of Congress face a unique historical and political context as they consider whether they can, and should, convict a former president.3

One week after the Capitol riot,4 ten House Republicans joined with Democrats to impeach President Trump, making it the most bipartisan impeachment vote in U.S. history.5 However, for the evenly split Senate to reach the two-thirds majority required to convict, 17 Republican senators would need to join with every member of the Democratic caucus.6 A Senate vote on January 26 cast doubt on that scenario.7 Although Democrats quashed an attempt led by Senator Rand Paul, R-Ky., to declare the upcoming trial unconstitutional, only five Republicans joined them,8 prompting Paul to characterize the upcoming case as “dead on arrival.”9

Most Senate Republicans have echoed conservative legal scholars, arguing that the impeachment trial is unconstitutional10 because its primary purpose is to remove a sitting president.11 They contend that the Senate’s constitutional impeachment and removal powers do not extend beyond the incumbent office holder.12 Senate Majority Leader Chuck Schumer, D-N.Y., has said that this argument “defies basic common sense.”13 Like-minded law professors point to the constitutional provision which allows the Senate to disqualify a convicted president from seeking office again—a separate consequence that would still apply in this case.14

A bipartisan group of over 150 constitutional law scholars (including members of the conservative Federalist Society) signed a letter highlighting disqualification as “an important deterrent against future misconduct.”15 Without it, they warned, “an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote.”16 An example of both points arose in 1876, when the Senate tried a secretary of war after he resigned his office in a failed attempt to avoid the trial.17

The Congressional Research Service (CRS) has weighed the 1876 example against cases in which resignation did indeed halt impeachment proceedings.18 CRS details how the judicial branch, out of concern for the separation of powers, would not review the Senate’s judgment on matters of impeachment.19 Many legal experts agree that senators could set aside facts and vote to acquit if they thought the Senate lacked jurisdiction to convict a private citizen.20 Such a determination would neither depend upon nor establish a precedent.21

Many Republicans also argue that a trial will sow further division and undercut cooperation with President Joe Biden’s agenda22 and calls for unity.23 Senator John Cornyn, R-Texas, cautioned of possible partisan retribution if former officials become open to impeachment trials,24 at one point musing, “Could we go back and try President Obama?”25 Senator Marco Rubio, R-Fla., has called the trial “counterproductive,” believing it will further “fuel these divisions that have paralyzed the country.”26 But Democrats have dismissed those claims, emphasizing the importance of holding President Trump accountable for the insurrection.27 According to Schumer, “Healing and unity will only come if there is truth and accountability. And that is what this trial will provide.”28

Discussion Questions

  1. Should the Senate be able to put a former president on trial after he or she leaves office? Why or why not?
  2. How concerned are you that future presidents could commit impeachable offenses in the final days of a term and resign or leave office before facing a trial?
    • Optional: Answer on a scale of 1-5, where 1 is “not at all concerned” and 5 is “extremely concerned.”
  3. How concerned are you are you that allowing trials of former officials will lead to political retribution by the majority party?
    • Do you think Republicans would attempt to impeach and convict President Obama? Why or why not?
    • Do you think Democrats would attempt to impeach and convict President George W. Bush? Why or why not?
  4. How important is the goal of unifying the country? How important is the goal of holding President Trump accountable for the insurrection?
    • Is it possible to achieve both goals?
    • Would you prioritize one of these goals over the other? If so, which one? If not, why not?
  5. What impact do you think a Senate trial of President Trump will have on the goal of national unity? Will it help the cause by providing truth and accountability? Will it hurt the cause by fueling divisions? Will it not make an impact in either direction?

How to Get Involved

Check the websites of your state’s two senators to learn their thoughts on the constitutionality and value of a Senate trial. Contact them to share your opinions on the Senate trial and your thoughts about the goals of national unity and accountability for insurrection. Find contact information here:

Other Resources

Have students read a pair of opinion pieces on whether the Senate trial is constitutional, and ask them which side is more convincing.

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Tasos Katopodis, Pool Photo via AP
[1] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G
[2] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021
[3] Reuters: https://www.reuters.com/article/us-usa-trump-impeachment/u-s-house-to-bring-trump-incitement-charge-to-senate-launching-second-impeachment-trial-idUSKBN29U13G
[4] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021
[5] NPR: https://www.npr.org/2021/01/14/956621191/these-are-the-10-republicans-who-voted-to-impeach-trump
[6] The Guardian: https://www.theguardian.com/us-news/2021/jan/25/us-house-delivers-article-of-impeachment-trump-2021
[7] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655
[8] The Hill: https://thehill.com/homenews/senate/535925-senate-rejects-paul-effort-to-declare-trump-impeachment-trial
[9] Politico: https://www.politico.com/news/2021/01/26/rand-paul-impeachment-462655
[10] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday
[11] Ibid.
[12] Washington Post: https://www.washingtonpost.com/opinions/2021/01/12/once-trump-leaves-office-senate-cant-hold-an-impeachment-trial/
[13] Fox News: https://www.foxnews.com/politics/professor-said-impeachment-trial-is-unconstitutional-to-attend-senate-gop-lunch-tuesday
[14] NBC News: https://www.nbcnews.com/think/opinion/pro-trump-republicans-claim-senate-s-impeachment-trial-unconstitutional-nice-ncna1255621
[15] Politico: https://www.politico.com/news/2021/01/21/legal-scholars-federalist-society-trump-convict-461089
[16] Ibid.
[17] Bloomberg: https://www.bloomberg.com/news/articles/2021-01-25/trump-impeachment-trial-poised-to-open-with-march-across-capitol
[18] Congressional Research Service: https://crsreports.congress.gov/product/pdf/R/R46013
[19] Ibid.
[20] Roll Call: https://www.rollcall.com/2021/01/26/legal-issues-are-political-in-trump-impeachment-trial/
[21] Ibid.
[22] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641
[23] Al Jazeera: https://www.aljazeera.com/news/2021/1/21/pelosi-impeachment-trial-of-trump-will-not-harm-unity
[24] Associated Press: https://apnews.com/article/82c0a1035ee55e6a8bda4d289943c641
[25] The Morning Call: https://www.mcall.com/news/pennsylvania/capitol-ideas/mc-nws-pa-pat-toomey-senate-trump-trial-20210126-za2uqkxgknbpzj5ai2hl7upuxi-story.html
[26] NBC News: https://www.nbcnews.com/politics/donald-trump/trial-stupid-senate-republicans-throw-cold-water-trump-impeachment-n1255454
[27] The Hill: https://thehill.com/homenews/administration/533739-the-memo-democrats-scorn-gop-warnings-on-impeachment
[28] Associated Press: https://apnews.com/article/joe-biden-donald-trump-capitol-siege-biden-cabinet-trials-462425af29b02c43e24913b6fd191b6f

 

 

The Inaugural COVID-19 Memorial

Posted on by Scot Wilson

The Lincoln Memorial is usually bustling with energy and activity on the eve of a presidential inauguration, when it takes center stage for concerts, crowds, and celebrations.1 This year was different. The Biden Inaugural Committee struck a deeply somber tone in the midst of the pandemic, holding what was the first national memorial service for those who have died from COVID-19. That day, the United States surpassed 400,000 deaths from the virus since the first case was reported nearly one year ago.2

Until that moment, there had been no national recognition of the true cost of the pandemic. As BuzzFeed News reporter Amber Jamieson noted months prior, “Despite the enormous number of deaths—and the impact felt deeply by survivors of the virus, loved ones of the dead, and those suffering the enormous economic fallout—there has been no official national mourning. No minute of silence, no plans for a memorial to be erected in their honor, no collective grieving.”3 People stayed home to stay away from each other. They were barred from visiting loved ones in hospitals. Funerals were restricted to immediate family members only. Then-Vice President-elect Kamala Harris acknowledged this private pain that so many have felt. “For many months, we have grieved by ourselves,” she said. “Tonight, we grieve and begin healing together. Though we may be physically separated, we the American people are united in spirit.”4

WATCH: The COVID-19 Memorial Service, from ABC News

As the sun set, 400 rectangular lights—spanning the entire length of the Reflecting Pool on both sides—were simultaneously illuminated, with each light representing 1,000 lives lost to the virus.5 They stretched toward the World War II Memorial, which prominently features over 4,000 gold stars in memory of the 400,000 Americans killed in that conflict. At that moment, landmarks across the country were lit in solidarity, and a nurse from Michigan and a gospel singer performed “Amazing Grace” and “Hallelujah” as part of the service.6

With the national spotlight on his inauguration, then-President-elect Joe Biden planned this memorial as his first event in our nation’s capital. He stressed unity in his remarks, underscoring his desire to move the country past the pandemic by first paying tribute to the lives that have been lost. “To heal, we must remember. It’s hard sometimes to remember. But that’s how we heal,” he said. “It’s important to do that as a nation. That’s why we’re here today.”7

Discussion Questions

  1. Look at this photo gallery of the Inaugural COVID-19 Memorial. How do the images make you feel? What stands out to you?
  2. How is this memorial similar to or different from any other memorial you have seen?
  3. How does this memorial express or shape the public feelings of the pandemic?
  4. What can the memorial tell us about the Biden administration’s messaging, vision, or priorities in addressing the COVID-19 pandemic?

As always, we encourage you to join the discussion with your comments or questions below!

Sources

Featured Image Credit: Alex Brandon/AP
[1] Time: https://time.com/4640346/donald-trump-lincoln-memorial/
[2] CNN: https://www.cnn.com/2021/01/19/health/us-coronavirus-tuesday/index.html
[3] BuzzFeed News: https://www.buzzfeednews.com/article/amberjamieson/coronavirus-200000-mourning-the-dead
[4] NPR: https://www.npr.org/sections/biden-transition-updates/2021/01/19/958548751/we-must-remember-biden-harris-memorialize-covid-19-victims
[5] New York Times: https://www.nytimes.com/2021/01/19/world/joe-biden-coronavirus-us-deaths.html
[6] Billboard: https://www.billboard.com/articles/news/politics/9513523/yolanda-adams-hallelujah-joe-biden-covid-19-memorial/
[7] New York Times: https://www.nytimes.com/2021/01/19/world/joe-biden-coronavirus-us-deaths.html

 

 

Inside the President’s First 100 Days – How does a new administration set their priorities?

During this Close Up Conversations webinar, Close Up’s, Mia Charity, discusses the President’s first 100 days in office, with Gregg Rothschild, Partner at Finsbury Glover Hering. 

The President’s first 100 days of any administration and a new Congress are always a crucial time. Both are putting every effort into jump starting their most important initiatives and demonstrating their political priorities.  With the Inauguration of President Joseph Biden and the swearing in of a new Congress, this Close Up Conversation will focus on the new administration and their goals for the first 100 days.