Madison Cawthorn
A federal appeals court has ruled that a Civil War-era law that granted clemency to supporters of the Confederacy does not protect members of Congress today from candidacy challenges based on allegations that they participated in the Jan. 6 attack on the U.S. Capitol.
A group of North Carolina voters had challenged the candidacy of soon-to-be-former Rep. Madison Cawthorn (R-N.C.), the Donald Trump ally who spoke at the former president’s so-called “Stop the Steal” rally on Jan. 6 that preceded the violent breach of the Capitol building.
Cawthorn, the voters said, was disqualified from running for office because he violated the 14th Amendment’s provision prohibiting members of Congress from engaging in “insurrection or rebellion” against the United States or giving “aid and comfort to the enemies thereof.”
Cawthorn sued, arguing that even if he was deemed to have participated in the insurrection attempt, he was protected by the 1872 Amnesty Act. That post-Civil War era law granted clemency to former Confederates who had been barred from holding public office under the 14th Amendment.
U.S. District Judge Richard E. Myers II, a Trump appointee, agreed with Cawthorn, finding in March that the amnesty law applied both retrospectively (to those who fought against the Union in the Civil War) as well as prospectively (to elected officials like Cawthorn). The judge then granted the representative’s injunction request.
The North Carolina voters appealed, and on Tuesday, a three-judge panel from the U.S. Court of Appeals for the Fourth Circuit reversed the lower court, finding that “it erred in construing the [Amnesty] Act as a sweeping removal of all future Fourteenth Amendment disabilities.”
The key part of the Amnesty Act on which Cawthorn relies, the court said, “refers to those ‘political disabilities imposed’ in the past tense rather than new disabilities that might arise in the future.”
The Amnesty Act analysis that follows reads like a a grammar lesson:
The past tense is ‘backward-looking’; it refers to things that have already happened, not those yet to come. Of course, we must consider the text not just as a modern reader would but also its ‘plain meaning at the time of enactment.’ But Representative Cawthorn has not argued that this elementary rule of conjugation has changed in the last hundred and fifty years—likely with good reason (‘This declaration is in the past tense, and can have no reference by any fair construction to future engagements.’) [citations omitted].Representative Cawthorn ventures no direct rebuttal to this straightforward principle of grammar. Instead, he notes that, as used in the 1872 Amnesty Act, ‘imposed’ functions as a ‘participle’ because it occurs in an adjectival phrase modifying ‘disabilities.’ Appellee True enough, but that is beside the point. As Representative Cawthorn ultimately acknowledges, participles are a form of verbs—a form that comes in both ‘past’ and ‘present’ varieties. [Webster’s Third International 1646] defining “participle” as “a word having the characteristics of both verb and adjective; esp: the English verbal adjective . . . that has the function of an adjective and at the same time shows such verbal features as tense and voice and capacity to take an object’). Here, Congress employed the past-tense version, indicating its intent to lift only those disabilities that had by then been ‘imposed.’ [citations omitted]
The Amnesty Act, according to the appeals court, was focused only on the problem at hand when the act itself was passed.
“[T]he 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,” the judges wrote.
However, the judges took pains to point out they were not making any determination as to whether Cawthorn did actually violate the 14th Amendment in expressing support for the Jan. 6 attack.
“We express no opinion about whether Representative Cawthorn in fact engaged in ‘insurrection or rebellion’ or is otherwise qualified to serve in Congress,” the judges wrote. “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 opinion was written by Fourth U.S. Circuit Judge Toby J. Heytens, a Joe Biden appointee. Judge James Andrew Wynn, a Barack Obama appointee, joined in Heytens’ opinion and wrote a concurring opinion as well. Judge Julius N. Richardson, a Trump appointee, wrote a separate concurrence.
The judges reversed and remanded the decision back down to the district court.
Read the opinion below.
[Image via YouTube screengrab/PBS.]