CAC:

On January 6, 2021, a crowd of thousands violently breached the U.S. Capitol in a bid to disrupt congressional certification of the 2020 presidential election results. This unprecedented attack resulted in five deaths, at least 140 assaults, and the most significant destruction of the Capitol complex since the War of 1812.

Thanks to an ongoing congressional investigation and in-depth news reporting, we are getting a clearer picture of the months of planning that former President Trump and some of his most fervent supporters in Congress appear to have put into undermining the integrity of the election and organizing the mass demonstration that preceded the insurrection.

Now, some concerned voters are seeking to hold those lawmakers accountable. Constituents of Representative Madison Cawthorn, a Congressman from North Carolina who spoke shortly before Trump at the January 6 rally and praised the crowd for having “some fight in it,” allege that he is barred from holding office by a little known but exceptionally important provision of the Constitution: Section Three of the Fourteenth Amendment.

That provision disqualifies from any state or federal office anyone who “having previously taken an oath . . . to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.”  That disqualification can be removed, but only by “a vote of two-thirds of each House.”

While this amendment was written with the Confederate rebellion most directly in mind, there is little question that Section Three applies to any “insurrection or rebellion” against the United States. An earlier version of the amendment explicitly limited its application to the former Confederacy, but the decision was made to omit this language from the final amendment text.  And during the debates over Section Three, at least one proponent pointed to historical examples (the Whiskey Rebellion and the Burr trial) that would have amounted to insurrection or rebellion.

It is also clear that Section Three applies not just to those who literally take up arms against the United States, but broadly includes anyone who supports those who do. An Attorney General opinion from the time explained that anyone “engaged in the furtherance of the common unlawful purpose, or persons who, in their individual capacity, have done any overt act for the purpose of promoting the rebellion, may well be said . . . to have engaged in rebellion.” An 1869 North Carolina Supreme Court opinion defined “engage in” as “[v]oluntarily aiding the rebellion, by personal service, or by contributions . . . of any thing that was useful or necessary in the Confederate service.”  And in 1868, shortly before the Fourteenth Amendment was ratified, the House explained its view that “‘aid and comfort’ may be given to an enemy by words of encouragement” spoken by someone “occupying an influential position.”

But instead of responding to his constituents’ concerns by providing some proof that he did not aid the January 6 attack, Representative Cawthorn instead has sought to enjoin their challenge, arguing that the states have no role to play in enforcing Section Three and that a law that gave amnesty to former Confederates protects him from accountability. History suggests that he is mistaken on both fronts….