Madison Cawthorn
Representative Madison Cawthorn, Republican from North Carolina, speaks to Trump supporters from the Ellipse at the White House in Washington on Wednesday, Jan. 6, 2021, as the Congress prepares to certify the electoral college votes. (Bill Clark/CQ Roll Call via AP Images)

On January 10, a group of North Carolina voters filed a complaint with the state board of elections alleging that Representative Madison Cawthorn is ineligible to run for another term in the House. The voters cite Section 3 of the Fourteenth Amendment—which states that no person shall be a senator or representative in Congress, “or hold any office, civil or military under the United States or under any State,” if they “engaged in insurrection” against the U.S. government after taking an oath to support the Constitution. This, they say, makes Cawthorn ineligible to serve, unless he is granted amnesty by a two-thirds vote of the U.S. Congress.

Cawthorn, their petition alleges, worked closely with former White House Chief of Staff Mark Meadows to organize the January 6 “Stop the Steal” demonstration in Washington; encouraged Trump’s supporters beforehand to “lightly threaten” members of Congress who did not vote to block the certification of Joe Biden’s election; and spoke at the January 6 rally, stating that the crowd of Trump supporters had “some fight” against the certification process. That crowd then proceeded to the Capitol, where rioters breached the building, attacked police, and disrupted the electoral count. (This past Sunday, the North Carolina Board of Elections delayed consideration of the petition because there is a case pending in the state supreme court challenging the boundaries of the new congressional districts drawn in the state following the 2020 census.)

In its own time, Section 3 of the Fourteenth Amendment was largely a failure. But applying this little-known provision to the January 6 insurrection is one means of holding those responsible accountable without resorting to criminal punishment.

The Framers of the Fourteenth Amendment in 1866 thought that barring former officials who served the Confederacy from returning to power would raise up a new generation of leaders in the South who would honor “the principles that are contained in the Declaration of Independence.” That did not happen. As President Ulysses S. Grant explained in 1871, the problem was that “majorities are sure to elect officers reflecting the views of the majority.” In other words, excluding some politicians from office does not significantly change the views of the voters. Consequently, Grant argued that Congress should give Section 3 amnesty to most of the ineligible officials and military officers. Congress did that in 1872, excluding only the highest-profile insurrectionists, like Jefferson Davis. 

Using Section 3 to address the January 6 attack will present the same problem that Grant discussed. The polarization of our politics long predates January 6 or Donald Trump. Even if Trump and others are found ineligible to serve again, it likely will not change what voters believe or the representation of those beliefs by the new people who get elected. Nevertheless, Section 3 did and can serve an important role in defining conduct that is unacceptable in a democracy.

America has a long and distinguished tradition of not criminalizing political disputes. Aaron Burr, after killing Alexander Hamilton, was involved in an apparent plot to detach some of the western territories from the United States. Though he had served as Thomas Jefferson’s vice president, the Jefferson administration charged him with treason. But Supreme Court Chief Justice John Marshall, who presided over the treason trial, ensured that Burr was treated fairly, and the jury returned a not-guilty verdict. 

After the Civil War, Jefferson Davis and virtually all former Confederates were given presidential pardons and therefore did not go to prison for secession. Gerald Ford famously pardoned Richard Nixon. This tradition is in part why the chant of “Lock her up” at Donald Trump rallies in 2016 was so offensive. 

Disqualifying Trump or other officials from office is proportionate to their alleged misconduct. The Framers of Section 3 insisted that the exclusion from office for engaging in insurrection was just an additional eligibility requirement. Senator Waitman Willey explained that Section 3 is not “penal in its character . . . It is therefore not a measure of punishment; but a measure of self-defense.” Accordingly, when Congress enacted statutes to enforce Section 3 in 1870, they provided a civil, not criminal, process for ousting ineligible officials in an action brought by a United States attorney. The noncriminal nature of Section 3 means, of course, that the “beyond a reasonable doubt” standard of proof in criminal law need not govern whether someone is ineligible. A less demanding standard of proof, such as “clear and convincing evidence” or a “preponderance of the evidence,” would suffice in a court or before a state election board.       

Section 3 as applied by impartial courts is also far superior to political enforcement. Take Cawthorn’s case. Suppose that no challenge had been brought in North Carolina, he was reelected, and the question of his ineligibility was left entirely to Congress. Then the decision would be made at the start of the new Congress, which could decide by a simple majority whether he was eligible to take his seat. Inevitably this would be a partisan act that would not involve a careful examination of the law or the facts. It is hard to see how that process would inspire confidence in the fairness of the outcome. Fortunately, there is no need to rely exclusively on Congress to enforce Section 3, as federal and state courts often decided those matters during Reconstruction and can do so again.   

The mob that invaded the Capitol on January 6 waved a Confederate flag inside the building. It is only fitting, therefore, that the only part of the Constitution directed specifically at white supremacists—Section 3 of the Fourteenth Amendment—should be used against the perpetrators of that outrage and any officials who engaged in the insurrection with them.   

Gerard N. Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. His books include American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. His law review article “Amnesty and Section Three of the Fourteenth Amendment” was published late last year in Constitutional Commentary.