Cawthorn Targeted by Constitutional Challenge Similar to That Faced by Trump
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
While the events of January 6, 2021, are now more than a year old, for Representative Madison Cawthorn, 26, the youngest member of Congress, they may be only just beginning. The Republican of North Carolina, who spoke at the “Stop the Steal” rally that preceded the riot at the Capitol, now finds himself at the center of a constitutional challenge that could end his political career just as it’s getting started.
Lawyers for 11 Tar Heel voters on Monday filed a challenge with the state election commission seeking to bar Mr. Cawthorn from running to represent North Carolina’s newly redrawn 13th district in 2022. The basis of their claim? A relatively obscure clause of one of the most well-known constitutional amendments.
First, a little legal background. The 14th Amendment to the U.S Constitution was passed in 1868, in the tumultuous years following the end of the Civil War. Its most famous provision is Section 1, which promised equal protection and due process to “all persons born or naturalized in the United States,” including recently enslaved African-Americans. Some of the most important Supreme Court cases have turned on interpretations of the 14th Amendment, from Brown v. Board of Education (desegregated schools) to Roe v. Wade (legalized abortion) and Obergefell v. Hodges (overturned bans on gay marriage).
This part of the 14th Amendment feels timeless, and is often invoked as one of the great enshrinements of the values of equality and civil rights. But the 14th Amendment includes four other sections, and there is much in them related to the immediate context in which they were written and passed: a nation torn ragged by rebellion and war, trying to pick up the pieces.
Section 3, known as the Disqualification Clause, bans anyone from holding public office who had previously sworn an oath to uphold the Constitution and then “engaged in insurrection or rebellion” or “given aid or comfort to the enemies” of the United States. It could be overridden by a two-thirds congressional vote, to allow for rehabilitated Confederates to rejoin the government.
As an editorial in this newspaper points out, actual invocation of the Disqualification Clause has been exceedingly rare since Reconstruction. Its lone cameo came in 1919, when an anti-war socialist congressman was prevented from serving. He eventually was given his seat after appealing to the Supreme Court.
Constitutional arcana is now headline news, as the Disqualification Clause is the basis for the challenge to Mr. Cawthorn’s eligibility to run, which is being brought by an election and campaign reform group called Free Speech for People. They contend that January 6 constituted an insurrection under the terms of the Constitution, and that Mr. Cawthorn’s speech at the rally, where he accused “the Democrats … of trying to silence your voice,” makes him ineligible to run in 2022.
The Disqualification Clause is having a moment. The challenge to Mr. Cawthorn is being levied in the midst of a broader effort by Democrats to translate the events of January 6, 2021, into barriers to a Donald Trump candidacy in 2024 using the very same constitutional provision, which has gained steam in recent weeks alongside efforts to hold the former president liable for injuries resulting from the chaos.
Previous efforts to disqualify candidates, most notably President Obama, have faltered on both the merits and because courts ruled that the parties bringing the challenge did not meet the requirement for “standing”: They were not at risk of suffering harm or injury. Unfortunately for Mr. Cawthorn, however, a state-specific North Carolina statute puts the burden of proof on the candidate, not the challenger in cases like this.
Mr. Cawthorn’s case is moving quickly. On Wednesday, a five-member panel from his district (three Democrats, two Republicans) will convene to hear the challenge to his candidacy, and its decision will be reviewed by a state board and eventually an appeals court. A Cawthorn spokesperson promises that “a dozen activists who are comically misinterpreting and twisting the 14th Amendment for political gain” will not prevent him from serving.
At the Stop the Steal Rally, Mr. Cawthorn noted that “the crowd had some fight in it.” Now it is the congressman who will have to fight for his political life in the trenches of legal arcana.
Image: Madison Cawthorn at the 2020 Student Action Summit in West Palm Beach, Florida. File photo via Wikimedia Commons and Gage Skidmore.