Jurisprudence

What Does Madison Cawthorn Have in Common With Ex-Confederates?

The congressman thinks a shameful post–Civil War amnesty law exonerates him. He’s wrong.

Madison Cawthorn striking a pose of skepticism with demonstrators in the background.
Rep. Madison Cawthorn at a press conference on Nov. 1 in Washington. Pete Marovich/Getty Images

What does Madison Cawthorn have in common with an ex-Confederate running for public office after the Civil War? They both think that Congress granted them amnesty—but only one of them is right, and it isn’t Cawthorn.

On Tuesday, the beleaguered North Carolina Republican congressman asked a federal judge to block a challenge to his candidacy in 2022. The challengers claim that Cawthorn is ineligible to run because he allegedly facilitated the Jan. 6 insurrection, an argument with surprising force under North Carolina law and the U.S. Constitution. Rather than adjudicate this challenge through the normal process, Cawthorn seeks an injunction holding that federal law forbids the state from investigating, let alone disqualifying, his candidacy. But the legal team contesting his reelection has boxed in the congressman so dexterously that he has resorted to an argument of eye-popping gall and inanity: Cawthorn asserts that the Amnesty Act of 1872—a shameful law that perpetuated white supremacy in the South—absolves him of disqualification from office even if he engaged in an insurrection.

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Some background: The 14th Amendment’s disqualification clause states that no one who “engaged in insurrection or rebellion” may hold public office unless Congress grants them amnesty by a two-thirds vote. That’s a problem for Cawthorn, because before, during, and after Jan. 6, the congressman made multiple statements that seemingly condoned or outright encouraged violence against the federal government. Did Cawthorn have advance knowledge of the insurrection? Did he directly abet the participants? We don’t know, and the Jan. 6 committee hasn’t found out because it probably can’t compel sitting members of Congress to testify.

North Carolina law, however, may provide a route around this roadblock. It allows any voter to challenge a candidacy if they have “reasonable suspicion or belief” that the candidate “does not meet the constitutional … qualifications.” The candidate must then “show by a preponderance of evidence” that they are, in fact, qualified. A panel of local election officials conducts this inquiry and has the power to compel witnesses—including the candidate—to testify under oath. If the panel removes the candidate from the ballot, its decision can be appealed to the state courts. A progressive nonprofit, Free Speech for People, triggered this process by filing a challenge to Cawthorn’s candidacy in January.

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Currently, that challenge is on hold while the North Carolina Supreme Court evaluates the state’s new congressional maps. Cawthorn—along with his lawyer, longtime Republican litigator James Bopp—thinks he can head off this headache by filing a federal suit in the Eastern District of North Carolina, where every active judge was appointed by a Republican. Their arguments are remarkably scattershot and weak. First, they claim that North Carolina law violates Cawthorn’s “First Amendment right to run for political office.” There isn’t much precedent establishing or defining this right, so it’s unlikely that a state violates free speech by simply allowing voters to contest a candidacy. Moreover, the whole point of this challenge is that the 14th Amendment does not permit Cawthorn to run for office. The First Amendment cannot require what the 14th Amendment prohibits.

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Second, Cawthorn and Bopp assert that North Carolina’s voting procedures violate due process; it’s hard to see how that could be since the state provides notice and a hearing before an impartial tribunal. Third, they argue that only Congress can judge the qualifications of its members, so states cannot disqualify congressional candidates. Although this theory has gained a bit of traction among Federalist Society professors, it is not rooted in any precedent and would lead to absurd results; for instance, a state could not prevent a 15-year-old from running for Congress, even though they are constitutionally ineligible to serve.

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Finally, we get to the zaniest argument: The 14th Amendment’s disqualification clause cannot disqualify Cawthorn from running for office because Congress already absolved him under the Amnesty Act of 1872. This law, the product of a shameful chapter in American history, allowed most ex-Confederates to serve in public office, removing the disqualification so recently imposed by constitutional amendment. It stated that this disqualification was “hereby removed from all persons whomsoever,” save for a list of specific exceptions. In doing so, the law allowed these traitors to seize political power, which they used to ruthlessly suppress Black civil rights after Reconstruction.

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All available evidence suggests that, with this law, Congress intended to grant amnesty to almost everyone who rebelled against the U.S. in the Civil War. Cawthorn and Bopp read it more broadly: They argue that the act extended amnesty to future insurrectionists, as well. “The plain language of the 1872 Act,” they write, “removed the political disability” from “any Representative,” including those not yet born. Thus, the application of the disqualification clause to Cawthorn “is prohibited by federal law.”

This claim rests on one factual presumption and one constitutional theory. Both are wrong. Gerard Magliocca—an Indiana University McKinney School of Law professor and expert on both the disqualification clause and the Amnesty Act—told me that Congress “did not intend to give amnesty to the unborn.” Even if lawmakers had wanted to do so, they could not: Much like the president can’t pardon someone for future crimes, Magliocca said, Congress lacks the power to grant amnesty for future insurrections. In addition, Cawthorn and Bopp’s reading would mean that Congress amended the disqualification clause “out of existence forever.” But any effort by the legislative branch to amend the Constitution by itself “would contradict Article V and the actual amendment process.”

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The fact that Cawthorn is turning to absurd arguments rooted in an old, odious law to defend himself helps to illustrate the bind he’s in. Free Speech for People’s challenge cannot be dismissed out of hand; it was, after all, crafted with the help of two former North Carolina Supreme Court justices, James G. Exum and Robert Orr. Bopp is no crank: He has argued before SCOTUS five times and played a major role in dismantling the nation’s campaign finance regulations. Yet even he appears to be so flummoxed by this challenge that he is turning to metaphysical arguments about the Amnesty Act of 1872 to keep his client on the ballot—and out of a deposition. Even if he ultimately prevails, the lawyers contesting Cawthorn’s candidacy have already succeeded in transforming a largely forgotten constitutional provision into a genuine threat to the insurrectionist caucus.

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