A proposal from Senator Tim Scott and others to rid Congress of pro-Palestinian members would only jeopardize our principles of free speech and prove to be a very slippery slope.
became the latest figure in Washington to call for the expulsion of members of Congress for their controversial views.Scott cites pro-Palestinian or anti-Israel statements of members of “the Squad” as examples of officials giving “aid and comfort” to
It is now a familiar refrain. Ironically, it is analogous to the argument put forward by some Democrats to bar Republican members through an alternative means. Those members have called for the use of the 14th Amendment to disqualify Republicans for giving “” to those who sought to block the certification of President Joe Biden. They have been supported by a host of legal academics.
The Framers were well aware of this danger. Before the Revolution, a leading case in England involved a member of Parliament who was expelled for criticism in 1763 of the King for signing a peace treaty with France. John Wilkes was promptly arrested and expelled from the House of Commons. While he was forced to flee into exile, he continued to be reelected by an equally defiant constituency. He was again "excluded" from taking office and later convicted of sedition.
It is unlikely that the calls for expulsion by Sen. Scott or others will succeed given this history and these limitations. It is also far from clear that courts would allow the expulsion of a member for the exercise of free speech even with the history of deference to Congress. Moreover, the courts have rejected the use of exclusion in Powell v. McCormack in 1969 as unconstitutional.
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