Is the Challenge to Madison Cawthorn's Re-Election Eligibility For Real?
On Monday, a group of North Carolina voters filed a challenge to Republican Rep. Madison Cawthorn’s candidacy in 2022. Their complaint alleged that Cawthorn is constitutionally ineligible to serve in Congress because he “engaged in an insurrection against the United States” by facilitating the Jan. 6 attack on the Capitol. The complaint is a longshot, but it is firmly rooted in the 14th Amendment, as well as a series of state laws that are surprisingly favorable to Cawthorn’s challengers. Even if the challenge fails to keep Cawthorn out of Congress, it could still succeed in forcing him to reveal new details about his involvement in the Jan. 6 assault.
Although the 14th Amendment is best known for granting birthright citizenship, due process, and equal protection to newly freed slaves, it also contains several provisions designed to limit former Confederates’ influence in American governance after the Civil War. Most notably, its “disqualification clause” states that no one who “engaged in insurrection or rebellion” against the U.S. may hold public office—unless Congress grants them amnesty by a two-thirds vote. This provision was enforced only briefly, Indiana University McKinney School of Law professor Gerard Magliocca has documented, as Congress granted broad amnesty to erstwhile Confederates in 1872. Still, the disqualification clause remains on the books as an unused tool to keep insurrectionists out of the government they sought to topple.
On Monday, a group of North Carolina voters filed a challenge to Republican Rep. Madison Cawthorn’s candidacy in 2022. Their complaint alleged that Cawthorn is constitutionally ineligible to serve in Congress because he “engaged in an insurrection against the United States” by facilitating the Jan. 6 attack on the Capitol. The complaint is a longshot, but it is firmly rooted in the 14th Amendment, as well as a series of state laws that are surprisingly favorable to Cawthorn’s challengers. Even if the challenge fails to keep Cawthorn out of Congress, it could still succeed in forcing him to reveal new details about his involvement in the Jan. 6 assault.
Although the 14th Amendment is best known for granting birthright citizenship, due process, and equal protection to newly freed slaves, it also contains several provisions designed to limit former Confederates’ influence in American governance after the Civil War. Most notably, its “disqualification clause” states that no one who “engaged in insurrection or rebellion” against the U.S. may hold public office—unless Congress grants them amnesty by a two-thirds vote. This provision was enforced only briefly, Indiana University McKinney School of Law professor Gerard Magliocca has documented, as Congress granted broad amnesty to erstwhile Confederates in 1872. Still, the disqualification clause remains on the books as an unused tool to keep insurrectionists out of the government they sought to topple.
Enter Cawthorn, the young demagogue who cheered on Donald Trump’s efforts to overturn the 2020 election even as rioters scaled the walls of the Capitol. Consider his actions in the days leading up to the insurrection: On Dec. 21, the congressman-elect urged his supporters to “lightly threaten” their representatives. “Say: ‘If you don’t support election integrity, I’m coming after you,’ ” he instructed. “Madison Cawthorn’s coming after you. Everybody’s coming after you. ” Ten days later, Cawthorn announced his plan to protest the certification of Joe Biden’s victory. And on Jan. 4, one day after taking the oath of office, Cawthorn tweeted: “January 6th is fast approaching, the future of this Republic hinges on the actions of a solitary few. … It’s time to fight.”
On Jan. 6, Cawthorn spoke at the notorious “Stop the Steal” rally that preceded the Capitol attack. He faulted other Republicans for “not fighting” and praised the crowd for having “some fight.” At 1:31 p.m., as violent protesters breached the perimeter of the seat of government, Cawthorn declared that “the battle is on the house floor.” Shortly thereafter, rioters began smashing the windows of the Speaker’s Lobby to reach that very floor. After the horrific events of that day, Cawthorn voted to reject electoral results cementing Trump’s defeat and said he did not regret his speech at the rally. Later, he expressed sympathy for the insurrectionists held in jail, describing them as “political hostages” and “political prisoners” whom he would like to “bust” out. The congressman also warned of “bloodshed” if “our election systems continue to be rigged” and encouraged his fans to stockpile “ammunition” to prepare for the coming “bloodshed” over “stolen” elections.
Does this conduct disqualify Cawthorn from public office under the 14th Amendment? Several North Carolina voters think so—and they believe they have a legal opportunity to prove it.