Federal judge: The 14th Amendment's insurrection clause applies to current and future candidates

A federal appeals court in North Carolina has rejected outgoing Republican Congressman Madison Cawthorn's petition to dismiss a lawsuit demanding that he be removed from the ballot because of his support for the January 6th, 2021 Capitol insurrection.

Scandal-riddled Cawthorn is one of two right-wing congressional lawmakers that have faced such a challenge. The case against his colleague, Representative Marjorie Taylor Greene (R-Georgia), was dismissed earlier this month.

Cawthorn lost his primary contest last Tuesday. But Chief District Judge Richard E. Myers II of the United States District Court for the Eastern District of North Carolina at Raleigh nevertheless ruled in a 73-page opinion obtained by Politico that the Constitution's 14th Amendment clause banning participants in coups to overthrow the government can be applied to current and future candidates.

"Cawthorn’s primary argument about standing is that the challengers cannot establish such an injury because they assert only a generalized grievance shared by all voters in their district. We disagree," Myers wrote. He explained that the plaintiffs' argument that all voters share a "personal stake" in the matter is valid and that the lower court's denial of the original complaint against Cawthorn "exceeded the bounds of its discretion."

In that decision, the court determined that the 1872 Amnesty Act – which eliminated the roadblocks ex-Confederates faced toward holding elected office – could only be applied to individuals who lived before it was adopted. That was Cawthorn's principal argument based on the past tense language used in the 14th Amendment:

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. But Congress may by a vote of two-thirds of each House, remove such disability.

Myers eviscerated Cawthorn's claim.

"The most fundamental problem with Representative Cawthorn’s proposed interpretation is that the Act’s operative clause refers to those 'political disabilities imposed' in the past tense rather than new disabilities that might arise in the future. The past tense is 'backward-looking'; it refers to things that have already happened, not those yet to come," he said.

"The operative clause’s principal verb—'removed'—reinforces this conclusion. In the mid-nineteenth century, as today, that word generally connoted taking away something that already exists rather than forestalling something yet to come," Myers continued. "Without question, that phrase conveys broad action, and granting political amnesty to nearly all ex-Confederates in one fell swoop surely was a remarkable act. But the subject of the relevant sentence is the 'disabilities' that are being 'removed.' Thus, to understand what Congress did, we must look to any phrases modifying those 'disabilities.'"

Myers added that "the available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness."

Thus, Myers said, "the district court’s ruling was based solely on its view of the 1872 Amnesty Act, we reverse its decision and vacate the permanent injunction."

Myers, however, carefully avoided directly accusing Cawthorn of behaving badly.

"We express no opinion about whether Representative Cawthorn in fact engaged in 'insurrection or rebellion' or is otherwise qualified to serve in Congress," he said. "We hold only that the 1872 Amnesty Act does not categorically exempt all future rebels and insurrectionists from the political disabilities that otherwise would be created by Section 3 of the Fourteenth Amendment. The judgment of the district court is therefore REVERSED, VACATED, AND REMANDED."