Rule of Law

Text and History Demonstrate Cawthorn Can’t Evade Accountability for January 6

On January 6, 2021, a crowd of thousands violently breached the U.S. Capitol in a bid to disrupt congressional certification of the 2020 presidential election results. This unprecedented attack resulted in five deaths, at least 140 assaults, and the most significant destruction of the Capitol complex since the War of 1812.

Thanks to an ongoing congressional investigation and in-depth news reporting, we are getting a clearer picture of the months of planning that former President Trump and some of his most fervent supporters in Congress appear to have put into undermining the integrity of the election and organizing the mass demonstration that preceded the insurrection.

Now, some concerned voters are seeking to hold those lawmakers accountable. Constituents of Representative Madison Cawthorn, a Congressman from North Carolina who spoke shortly before Trump at the January 6 rally and praised the crowd for having “some fight in it,” allege that he is barred from holding office by a little known but exceptionally important provision of the Constitution: Section Three of the Fourteenth Amendment.

That provision disqualifies from any state or federal office anyone who “having previously taken an oath . . . to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.”  That disqualification can be removed, but only by “a vote of two-thirds of each House.”

While this amendment was written with the Confederate rebellion most directly in mind, there is little question that Section Three applies to any “insurrection or rebellion” against the United States. An earlier version of the amendment explicitly limited its application to the former Confederacy, but the decision was made to omit this language from the final amendment text.  And during the debates over Section Three, at least one proponent pointed to historical examples (the Whiskey Rebellion and the Burr trial) that would have amounted to insurrection or rebellion.

It is also clear that Section Three applies not just to those who literally take up arms against the United States, but broadly includes anyone who supports those who do. An Attorney General opinion from the time explained that anyone “engaged in the furtherance of the common unlawful purpose, or persons who, in their individual capacity, have done any overt act for the purpose of promoting the rebellion, may well be said . . . to have engaged in rebellion.” An 1869 North Carolina Supreme Court opinion defined “engage in” as “[v]oluntarily aiding the rebellion, by personal service, or by contributions . . . of any thing that was useful or necessary in the Confederate service.”  And in 1868, shortly before the Fourteenth Amendment was ratified, the House explained its view that “‘aid and comfort’ may be given to an enemy by words of encouragement” spoken by someone “occupying an influential position.”

But instead of responding to his constituents’ concerns by providing some proof that he did not aid the January 6 attack, Representative Cawthorn instead has sought to enjoin their challenge, arguing that the states have no role to play in enforcing Section Three and that a law that gave amnesty to former Confederates protects him from accountability. History suggests that he is mistaken on both fronts.

Role of States in Enforcing Section Three

Representative Cawthorn is trying to escape scrutiny from the North Carolina State Board of Elections by arguing that it has no role to play in determining whether he has been constitutionally disqualified from running for federal office. He points to the Qualifications Clause of the Constitution, which states that “[e]ach House shall be the Judge of the . . . Qualifications of its own members,” to argue that the House has the exclusive right to make that determination.

But states help enforce other constitutional qualifications for federal office (age, residency, and citizenship), all the time when they verify candidates’ eligibility before granting them access to the ballot. Why would Section Three be any different? In fact, the history of Section Three indicates that it would be especially odd to prohibit states from enforcing this constitutional provision.

In the wake of the Civil War, as Congress began drafting new constitutional provisions to ensure that newly freed people could participate more fully as members of society, it realized that the rights guaranteed by those provisions had little chance of robust enforcement and our nation was unlikely to be able to knit itself together as long as Southern states were still controlled by those who had fought to preserve slavery and splinter the government.

Originally, Congress proposed to address this problem by temporarily preventing former Confederates from voting in federal elections.  But when that proposal failed to garner sufficient support, Congress instead crafted a new constitutional qualification for state and federal office. As Eric Foner has written, this revised version was even more transformational than the original, because it “reached directly into the states to reshape their governments.” As one proponent put it, Section Three would require “the citizens of the States lately in rebellion” to “raise up a different class of politicians.”

And it was plainly part of Congress’s plan that the states would play an active role in enforcing Section Three for offices in their own governments. Congress required that a number of former Confederate states, as a condition of readmission to the Union, ensure that:

“[N]o person prohibited from holding office under the United States, or under any State, by section three of the proposed amendment to the Constitution of the United States, known as article fourteen, shall be deemed eligible to any office in either of said States, unless relieved from disability as provided in said amendment.”

Notably, this condition for readmission to the Union was in addition to the requirement that those states ratify the Fourteenth Amendment, underscoring the importance of states actually enforcing Section Three’s disqualification provisions.

When states failed to enforce Section Three, Congress stepped in. In 1868, the Senate heard a challenge to the qualifications of a Georgia Senator-elect. While the candidate himself had not incurred Section Three disqualification, he had been chosen by members of the Georgia legislature who had. The Georgia state legislature had expelled all its Black members and admitted white members who were disqualified by Section Three. Congress then enacted a statute requiring Georgia’s governor to summon the legislature into a special session and ensure that all its members were constitutionally qualified to serve.

Section Three created one standard that applied to state and federal office equally. And while it explicitly reserved for Congress the ability to lift the disqualification, it did not place any limits on who could play a role in enforcing it. Indeed, at the time, United States Senators were still elected by state legislatures, not popular election, meaning that states would have to consider the constitutional qualifications of candidates for federal office. Reading the Constitution’s Qualifications Clause in isolation fails to honor the text and history of the whole Constitution, including the broad scope and transformational plan of Section Three of the Fourteenth Amendment.

1872 Amnesty Act

Cawthorn also seeks shelter in an 1872 statute that granted Section Three amnesty to most former Confederates. This shameful law allowed those who had recently taken up arms against the United States in defense of slavery to hold office once again; as a direct result, the former Vice President of the Confederacy took a seat in the House that same year. And now Cawthorn argues that the 1872 Amnesty Act lifted Section Three disqualification not only for those Confederates living at the time, but also for all potential future insurrectionists, essentially forever nullifying that provision of the Constitution.

There are a few problems with such a reading of this statute. For starters, this reading ignores the text of the statute, which uses the past tense to indicate that it only applies to Section Three disqualifications that were already “imposed.”

Moreover, the history of the statute is entirely consistent with the meaning of its text: that it only applies to those who had already been disqualified from holding office. Between the ratification of the amendment and passage of the 1872 Amnesty Act, Congress granted amnesty to thousands of individuals through a series of private bills. But this system for granting amnesty was cumbersome to say the least. The last private bill Congress considered before passing the 1872 statute included some seventeen thousand names and then had another 25 pages of names tacked onto it. Notably, as that bill was debated, and members kept on adding names to the list, one member proposed adding the words “and all other persons” at the end. The sponsor of the bill rejected that proposal out of hand precisely because it suggested that amnesty would be extended to those who had not yet incurred Section Three disqualification, quipping that he “did not want to be amnestied” himself. That remark elicited laughter on the House floor, indicating that the idea that amnesty could be granted to those who had not yet come to need it, the very argument Representative Cawthorn is advancing, was literally laughable.

But rather than take up this extraordinarily long bill consisting mostly of a list of names, the Judiciary Committee proposed “a general amnesty bill,” which became the 1872 Amnesty Act. The exceptions listed in the bill were crafted with the list of names contained in the longer private bill in mind, ensuring that “none of the names come within the classes which have been objected to upon the floor of this House.” In other words, the 1872 Act was primarily just a replacement for another in a long line of extraordinarily long bills listing individual Confederates. This statute was not the product of some considered judgment about the wisdom of letting potential future insurrectionists hold office, it was a solution to an administrative problem.

The campaign materials of Republicans and Democrats from that year’s presidential election also indicate that both parties understood the 1872 Amnesty Act applied only to former Confederates.  The Republican party platform celebrated the fact that they had passed a bill “extending amnesty to those lately in rebellion.”  The Democrats demanded that Congress go even further and eliminate the exceptions contained in the 1872 Act, but even their imagination did not extend beyond “disabilities imposed on account of the Rebellion.”

And the only other person who tried to make the kind of argument Cawthorn is making only succeeded in getting Congress to reiterate that Section Three disqualifications cannot be lifted prospectively. In 1919, the House investigated whether Victor L. Berger, who had been convicted of violating the Espionage Act of 1917, had incurred Section Three disqualification and therefore could not serve as a Member of Congress. Berger argued that Section Three had been “entirely repealed by an Act of Congress.” But instead of pointing to the 1872 Act, he pointed to a similar statute Congress had passed in 1898 which stated that “the disability imposed by section three of the fourteenth amendment to the Constitution of the United States heretofore incurred is hereby removed.” In defending his position against the contention that Congress cannot repeal a constitutional amendment by statute, Berger argued, much like Representative Cawthorn does now, that Section Three essentially allows for its own repeal by giving Congress the power to lift its disqualification by a two-thirds vote of both Houses of Congress.

But the House was not convinced. While it conceded that Section Three allows for the removal of its disqualification, the House determined that “manifestly it could only remove disabilities incurred previously to the passage of the [1898] act, and Congress in the very nature of things would not have the power to remove any future disabilities.” Indeed, the House looked to the words “heretofore incurred” in the 1898 statute as further evidence the Congress that enacted that statute understood that Section Three disqualifications can only be removed after they have been incurred.

Congress didn’t buy this argument a century ago, and the courts shouldn’t buy it now. While Cawthorn would extend the effects of the shameful 1872 Amnesty Act to the present day, the history of this statute makes clear that its reach is limited to the past.

Section Three of the Fourteenth Amendment remains an important mechanism for holding officeholders accountable when they violate their oaths of office. Representative Cawthorn and others like him who face scrutiny for their roles relating to the January 6 attack shouldn’t be able to evade accountability by relying on arguments that are contrary to the text and history of this constitutional provision.