In response, a group of North Carolina voters filed a challenge with the North Carolina State Board of Elections, arguing that Cawthorn is ineligible to stand for reelection under Section 3 of the Fourteenth Amendment to the Constitution, which expressly disqualifies from any state or federal office anyone who “having previously taken an oath . . . to support the Constitution of the United States” then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.” Enacted in the wake of the Civil War, this provision fundamentally transformed our national charter, providing a means to hold accountable past insurrectionists as well as others who might violate their oaths to uphold the Constitution in the future. The North Carolina voters plausibly argue that is exactly what Cawthorn did when he helped plan the Jan. 6 rally.

But even if Cawthorn’s argument was not flatly inconsistent with the Constitution, it would require twisting the 1872 Act beyond recognition. As its text makes clear, that statute was passed to lift only disqualifications that were already “imposed.” In the years following the Fourteenth Amendment’s ratification, numerous Confederates petitioned Congress to have their disqualification removed in accord with the two-thirds clause of Section 3. Congress frequently granted amnesty, usually through private bills containing long lists of thousands of names. The final private bill Congress considered before passing the 1872 statute included some 17,000 names.

As that bill was debated, one member proposed adding the words “and all other persons” at the end. But the sponsor of the bill, Representative Benjamin Butler of Massachusetts, rejected that proposal out of hand precisely because it suggested that amnesty would be extended to those who had not yet incurred Section 3 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 Cawthorn is advancing today, was literally laughable.

The 1872 Act was primarily a replacement for another in a long line of extraordinarily long bills listing individual Confederates. It was not the product of any considered judgment about the wisdom of letting potential future insurrectionists hold office but simply a practical solution to an administrative problem. Indeed, the campaign materials of Republicans and Democrats from that year’s presidential election indicate that both parties understood the 1872 Amnesty Act to be applicable only to former Confederates. Republicans celebrated the fact that they had passed a bill “extending amnesty to those lately in rebellion.” And while Democrats wanted the 1872 Act to go further, even their imagination did not extend beyond “disabilities imposed on account of the Rebellion.”