Something of a garden industry has developed on the fringe and mouthbreathing left that is seeking to harass any GOP incumbent who didn’t literally besh** themselves over the demonstrations in and around the US Capitol on January 6. They attempt to use Section 3 of the 14th Amendment to disqualify candidates from office by claiming against all empirical evidence that an “insurrection” took place.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Thus far, two Republicans have been targeted: Madison Cawthorn (NC-11) and Marjorie Taylor Greene (GA-14). The outcomes have been radically different. On March 4, a federal judge ruled that the effort against Cawthorn must fail because a general amnesty passed by Congress in 1872 removed the prohibition. On Monday, an Obama judge in Georgia allowed a challenge against Taylor Greene to proceed (see Judge Rules Group of Georgia Voters Can Proceed With Case to Disqualify Marjorie Taylor Greene From Office).
Anyone pushing this ludicrous idea is either profoundly stupid, deeply dishonest, or some combination of the two.
The 14th Amendment explicitly targeted Confederate officers and members of state legislatures of Confederate states to prevent them from being seated in the House or Senate as their states were readmitted to the Union. It doesn’t stop them from running for office; it prevents them from serving. More to the point, no “insurrection” took place on January 6. Literally, none of the people with misdemeanor trespassing tickets held without bail for the past year are charged with insurrection. Had an insurrection taken place, the plain text of the Constitutional language our homegrown Bolsheviks are using to try and force from office people they can’t defeat at the ballot box would have already forced Cawthorn and Taylor Greene from office. I mean, they ARE representatives, and the Constitution says they CAN’T be if they have engaged in insurrection.
But don’t take my word for it; even liberal law professors are starting to laugh in their sleeve at the issue and the people pushing it.
In a New York Times op-ed titled Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene, Josh Blackman, a constitutional law professor at South Texas College of Law, and , an associate professor at Maynooth University School of Law and Criminology, look at the issue and conclude the efforts to bar candidates from running for office are nonsense because the Supreme Court has already ruled on the subject.
An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.
After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.
Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”
In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.
As I noted above, even were the Constitutional provision appropriate, it does not prevent a candidate from running for and being elected to Congress. The provision prevents them from holding that office.
This is all bullsh**. Cawthorn and Taylor Greene have been targeted because they are freshmen members of Congress, they are undisciplined loose cannons, and they come from districts where they are bulletproof. Taylor Greene’s GA-14 is GOP+45, and Cawthorn’s NC-11 is GOP+14. They are also trying this gambit to label the GOP as the party of insurrection. This dishonest tactic will fail in its execution, but it will succeed in creating a media narrative that insurrectionists were seated because the GOP controls the judiciary.
Join the conversation as a VIP Member