It’s been a busy few years for the Constitution. Nearly every clause and section has become suddenly relevant once more, including the parts that were moribund for decades or were largely noncontroversial before now. There have been lawsuits to enforce the Emoluments Clause, heated debates over the scope of the Pardon Clause, existential questions raised over the Electoral College’s mechanisms, and even a Third Amendment challenge to Covid-19 public health measures.
Now it’s the Disqualification Clause’s turn. Last month, a group of voters in North Carolina asked state election officials to disqualify Representative Madison Cawthorn, a freshman Republican who has attached himself to the party’s far right. They argued that Cawthorn’s alleged involvement in the January 6 attack on Congress falls under the clause’s ban on holding public office for officials who participated in insurrections and rebellions. This week, that claim got a boost from the North Carolina attorney general’s office, which asserts that “a constitutional prohibition on insurrectionists seeking federal office could be applied to GOP Rep. Madison Cawthorn if a state board determines he aided or encouraged the Jan. 6, 2021, attack on the Capitol.”
The Disqualification Clause itself dates back to the Reconstruction era. It initially served to exclude thousands of ex-Confederates from government positions after the Civil War. Since then there have been no civil wars or rebellions on American soil, and so no persons or groups of people have clearly fallen under its terms for more than a century. But Section 3 of the Fourteenth Amendment still reads as follows:
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.
In other words, if you served as an elected or appointed state or federal official, and then you engaged in insurrection, rebellion, or treason against the United States, you are permanently disqualified from holding any future public office in the United States. (The plain language of the amendment does not seem to include the president or vice president, but the Congressional Research Service recently noted that the amendment’s drafters said those offices fell under the catchall of “officer of the United States.”)
Does Cawthorn meet the criteria for disqualification? We’ll start with the basics. Cawthorn was sworn into his House seat on January 3, 2021. That means he had “previously taken an oath as a member of Congress” when the rioters stormed the Capitol on January 6. If he had been sworn in after January 6, like Georgia Senators Jon Ossoff and Raphael Warnock, the clause’s conditions wouldn’t apply. And if this was his first run for office, the Disqualification Clause also wouldn’t apply—it only targets those who had previously sworn oaths to the Constitution and then broke them.
What about his participation in the insurrection itself? Cawthorn did not personally assault any Capitol Police officers, nor did he storm the Capitol itself; he was already inside the building as a sitting member of Congress. So the challengers take a broader view of events: They argue that Cawthorn took part in “a coordinated effort to prevent the Vice President of the United States and the United States Congress from fulfilling their constitutional roles by certifying President Biden’s victory, and to illegally extend then-President Trump’s tenure in office.” They specifically point to his alleged role in organizing and encouraging the protests that led to the attack on the Capitol, as well as his history of “advocating for political violence.”
To support their conclusion, they cite Worthy v. Barrett, an 1869 decision by the North Carolina Supreme Court on the Disqualification Clause. Kenneth Worthy had served as sheriff of Moore County before the Civil War and under Confederate rule during the Civil War. After Worthy was reelected in 1868, the county commissioners refused to swear him in because he met the conditions of the Disqualification Clause of the newly ratified Fourteenth Amendment. He asked the state Supreme Court to compel them to administer the oath, and the court declined. The court concluded that one met the clause’s qualifications if they held office under Confederate rule or had “voluntarily aid[ed] the rebellion, by personal service, or by contributions, other than charitable, of any thing that was useful or necessary.”
A few weeks later, Cawthorn sued the North Carolina Board of Elections in federal court to block them from disqualifying him. While Cawthorn said that he “vigorously denies” that he took part in an insurrection, he noted that his lawsuit wasn’t based on his “factual defenses.” Instead, he maintained that the challenge statute itself was unconstitutional. Cawthorn argued that by triggering an investigation based on voters’ “reasonable suspicion,” the statute violates his First Amendment right to run for public office. He also argued that by placing the burden upon him to prove he did not participate in an insurrection, the statute also violates his due-process rights. Oh, and for good measure, he said the whole process usurped Congress’s power to set its own qualifications for members.
But Cawthorn’s most audacious argument came last: He claimed that the entire Disqualification Clause is now defunct because Congress passed the Amnesty Act of 1872. That federal law stated that the clause’s penalties “are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.” The Amnesty Act was designed to restore all but a handful of top Confederates to civil personhood, and most legal experts do not read it as forever deactivating the Disqualification Clause. Cawthorn, however, does: Since he is a member of the 117th Congress and not the thiry-sixth or thiry-seventh, he argued, the clause’s terms no longer apply to him.
The state board of elections handily disposed of those arguments in its response. The First Amendment right to run for office isn’t infringed merely by opening an investigation into a candidate’s qualifications, the board observed. Nor are his due-process rights violated: Cawthorn doesn’t have to meet a high evidentiary threshold, and he can seek judicial review if ruled against, it noted. As far as Congress’s role in determining members’ qualifications is concerned, the board pointed out that states “have long enforced the constitutional qualifications for congressional candidates, including through state administrative procedures to ensure only eligible candidates appear on the ballot.”
For the Amnesty Act claim, the board poked multiple holes in it. Some were more obvious than others: The act referred to disqualifications that had been “imposed,” an unambiguous use of the past tense that limited it to ex-Confederates and does not cover future insurrectionists or rebels. The board quoted from lawmakers at the time who explained that the Disqualification Clause itself was not meant to be limited to the ex-Confederates, even if the Amnesty Act was, buttressing the idea that it could be used to exclude qualified members today. To underscore its argument, the board also noted that Congress itself had used the Disqualification Clause to bar a would-be lawmaker from taking his seat in 1920—a step it could not have taken if the Amnesty Act had forever removed that option.
While the legal mechanism to exclude Cawthorn is constitutionally valid, the factual basis may not be. It’s true that Cawthorn has a history of using incendiary language, including one incident when he urged his supporters to “lightly threaten” members of Congress in December 2020. He also spoke to Trump supporters at a demonstration on the morning of January 6. Cawthorn then voted to delay the Electoral College count along with other House Republicans. And like many Republicans, he used violent rhetoric to describe his own actions on that day. “I’m fighting a battle for our Constitution on the house floor with other patriots,” he wrote on Twitter as rioters fought with Capitol Police outside the building. “The battle is on the house floor, not in the streets of D.C.”
Cawthorn’s behavior ahead of January 6 was extraordinarily reckless and dangerous. So is his apologia for the insurrectionists since then. But the facts laid out in the original complaint by voters don’t clearly prove that he “engaged in insurrection” himself within the bounds of the Disqualification Clause. He obviously did not storm the Capitol himself. And while he appears to support the insurrectionists in a moral and political sense, there is no evidence that such support was ever more than rhetorical. The most tangible step he took in the insurrection’s favor was to vote against certifying the election results in some states. As reprehensible as that was, it was not an act of insurrection. A lawfully cast vote by a member of Congress is, by definition, not a violent attack on civil authority.
It’s possible that the ongoing inquiries by the Justice Department and the House January 6 committee could uncover evidence that supports Cawthorn’s disqualification in the future. If he helped organize the protests with the intent of committing violence, or gave material support to any violent participants in it, or took other concrete steps to further its success, then the Disqualification Clause could be appropriate. And while Cawthorn might not qualify, many other far-right Republicans could fall under its conditions, including former President Donald Trump himself. Cawthorn is the first elected official for whom the Disqualification Clause has been contemplated in more than a century. Thanks to the events of January 6, I doubt he will be the last.
