Judge Tosses Bid To Use 14th Amendment To Bar Cawthorn in North Carolina

Cawthorn’s argument that 1872’s Amnesty Act covered not only its own historical context but future Americans accused of insurrection as well wins the day.

Representative Madison Cawthorn speaks at the U.S. Capitol, January 7, 2021. House Television via AP, file

Voters in North Carolina will have the option of supporting Representative Madison Cawthorn’s re-election, after a district judge ruled that efforts to use the 14th Amendment’s Disqualification Clause to bar him from the ballot as a January 6 insurrectionist failed in the face of an 1872 law that lifted “all political disabilities” from those accused of that very crime. 

In a battle of obscure 19th century provisions forged in the wake of the Civil War to help America chart a course forward, Judge Richard Meyers II sided with Mr. Cawthorn’s argument that 1872’s Amnesty Act covered not only its own historical context but future Americans accused of insurrection as well.

Mr. Cawthorn’s attorney, James Bopp Jr., pointed to its expansive language, which offers clemency to “all persons whatsoever,” arguing that meant that the Amnesty Act’s reach extends all the way to the present, in effect offering a shield to Mr. Cawthorn against efforts to toss him from American politics.   

Mr. Bopp also told the Sun that the legislation was approved by a two-thirds congressional supermajority, and thus activated a provision within the Disqualification Clause itself that allows Congress to offer clemency in perpetuity. That offer, Judge Meyers ruled, still stands.

This decision will come as a surprise to many. An Indiana law professor, Gerard Magliocca, previously told the Sun that this“exotic argument” was “creative but wrong,” while the Congressional Research Service observed that the “Amnesty Act appears to be retrospective.”

Mr. Cawthorn’s victory comes just as the North Carolina State Board of Elections was set to hear the challenge to his candidacy. By seeking and securing federal intervention, Mr. Cawthorn ensures that the hearing will not take place and he will be able to contest the GOP primary this spring. 

The good news for Mr. Cawthorn does not end there. 

Because Judge Meyers’s injunction to allow Mr. Cawthorn to run is aimed at the Tar Heel State itself, it cannot be appealed directly by either Free Speech for People, the advocacy organization spearheading the effort, or the North Carolina voters whom it represents. That prerogative lies with the North Carolina attorney general, a Democrat, or the State Board of Elections. They seem unlikely to wade into such fraught terrain for what was a novel legal argument.    

As the Sun has reported and Mr. Cawthorn has noted repeatedly, the push to tie him to the events of January 6, 2021, with an eye toward blocking him from the ballot began with him but would likely not have ended there, with his case widely seen as a harbinger of similar efforts against other members of Congress and even President Trump. 

Because of an unusual provision of state law that puts the burden of proof on the candidate to prove eligibility, North Carolina was seen as particularly fertile terrain for a challenge. For now, this particular long shadow from the events of January 6 — not to mention the Civil War — seems to have dissipated. 

Representative Victor Berger is the last member of Congress barred from that body under the Disqualification Clause. He suffered that ignominious fate in 1919, though he eventually prevailed at the Supreme Court. 

The New York Sun

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