What a Civil War-era provision could mean for candidates charged with inciting violence: NPR


Voters in North Carolina are contesting Rep. Madison Cawthorn’s re-election eligibility. NPR’s Michel Martin explains why with Indiana University law professor Gerard Magliocca.


North Carolina voters are contesting the re-election bid of Republican Congressman Madison Cawthorn. The freshman lawmaker is a regular in the conservative media and has echoed lies about the 2020 presidential election. But his critics say the rising Republican star is unchallenged for what he thinks. That’s it for what voters say he did.

JOHN WALLACE: Madison Cawthorn is ineligible to run for this office because Section 3 of the 14th Amendment disqualifies people who have sworn an oath to support the Constitution and then engage in an insurrection.

MARTIN: This is John Wallace, a lawyer representing voters in the Cawthorn district. He cites a Civil War-era provision that is at the heart of the legal challenge. We wanted to know more about this challenge and what it could mean for the candidates accused of incitement to violence, so we called Gérard Magliocca. He is a professor of constitutional law at Indiana University School of Law. He studied the layout we are going to talk about and wrote about it. And he is with us now. Professor, thank you very much for joining us.

GERARD MAGLOCCA: Thank you. It’s a pleasure to be here.

MARTIN: So first of all, as briefly as possible, could you tell us a bit more about this provision and why it was established?

MAGLIOCCA: Section 3 of the 14th Amendment was ratified after the Civil War to prevent people who had been office holders or military officers who later served the Confederacy from serving again unless they received some sort of pardon from the Congress. And it was applied during the first years after the end of the Civil War until some time during the 1870s.

MARTIN: And has it been in use since the 1870s, to your knowledge?

MAGLIOCCA: The only time it has been used since the 1870s was to exclude a member of Congress elected during World War I and accused of being essentially a pro-German orator and someone who had undermined the war effort. His name was Victor Berger. It is therefore the only time it has been used since the early 1870s.

MARTIN: What do you think about the strength of this case against Rep. Cawthorn? And then I guess that’s a different question, but how likely is the North Carolina Board of Elections to rule based on this provision?

MAGLIOCCA: Well, under North Carolina law, plaintiffs here need only show that there is a reasonable suspicion that Rep. Cawthorn was engaged in an insurrection. And I think they met that standard. Now, at that point, Rep. Cawthorn would have to prove he was not engaged in an insurrection by presenting his case to the Board of Elections. Now, whenever this state procedure happens, we’ll see what he has to say about who he met, what emails were exchanged. And we will learn more about January 6 and its involvement there. But I can’t prejudge what he might say because he hasn’t really made his case or responded to these accusations yet.

MARTIN: So shortly after the voters filed their challenge, you wrote an article for the Washington Post on this provision, on Section 3 of the 14th Amendment. You write, in quotation marks, “only a small number of people are potentially subject to the constitutional ineligibility bar because of January 6”. You say Section 3 is a scalpel rather than a club.

You can imagine a lot of people might say that’s an affront to the First Amendment, that people have a right to express opinions, even hateful opinions, even violent opinions. And Rep. Cawthorn has made this argument before. Last week, he sought to block that by filing in federal district court in North Carolina. His lawsuit claims that, in quotes, “running for office is a quintessential First Amendment activity and affords great protection,” no quotes. So your answer?

MAGLIOCCA: The first thing to say about this is that Section 3 of the 14th Amendment modifies the First Amendment. This is something that came long after the First Amendment was ratified, so it can be understood as a very narrow exception to the broad First Amendment protections. Now the second thing you might say is that no one is saying that this speech, unless it’s qualified as incitement to violence, is enough to say that someone has engaged in the insurrection. There’s – the question here is, what actions did Congressman Cawthorn take in terms of meeting, planning and so on that might be involved in what happened on January 6th?

So what we say might shed some light on what we did, right? But that’s different from saying that what you said in itself can trigger the disqualification bar. So everyone has the right to make their demands on the election or to engage, as you said, in critical discourse, but there’s a difference between that and also engaging in actions that lead to violence.

MARTIN: So we’re months away from November’s midterm elections, and a number of states will also be holding elections for state offices. We know there was a West Virginia lawmaker who was involved in the mob attack on the Capitol. He resigned from his seat. And as you pointed out, obviously a small number of elected officials participated in this particular event. But do you think that this provision will be questioned more often? Do you think – are there other places where people are considering this kind of action?

MAGLIOCCA: I think you’ll see other lawsuits against public officials, either potentially state officials, local officials, or members of Congress. But the only person who will surely be subjected to these kinds of challenges, if he presents himself again, is Donald Trump. And the Supreme Court is going to have to decide – and the sooner the better – whether Section 3 applies to former President Trump, because we need to know if he’s eligible to serve again to have an election either for President Trump. Republican nomination or in a general election. election. So this is a problem that we really have to solve. And it is surely the case that if he shows up, he will have to face the challenges of Section 3.

MARTIN: Gerard Magliocca is the Samuel R. Rosen Professor at Indiana University’s Robert H. McKinney School of Law. Professor Magliocca, thank you very much for speaking to us.

MAGLIOCCA: Thank you – nice to be here.


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