Madison Cawthorn achieved a huge victory in an N.C. federal court
A group of North Carolinians failed to get North Carolina Representative Madison Cawthorn kicked off November’s ballot. They’d argued that the 14th Amendment’s “Disqualification Clause” prohibits anyone who participated in an “insurrection” against the government of the United States from appearing on a ballot—and of course, within hours of events on January 6, Democrats started saying that a spontaneous protest at the Capitol constituted an “insurrection.” (The fact that there seem to have been government operatives herding people onto the Capitol grounds and into the building suggests it wasn’t a coincidence that they instantly had a narrative in place.)
Cawthorn was the first to be subject to a 14th Amendment, Section 3 (Disqualification Clause) attack, but the fact is that, back in December, all activities got their Marc Elias, Hillary Clinton’s attorney:
My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress.— Marc E. Elias (@marceelias) December 21, 2021
We may even see litigation. pic.twitter.com/pF7P2fw0kn
I am making clear that members of Congress who engaged in insurrection or rebellion against the United States are not eligible to serve in Congress.— Marc E. Elias (@marceelias) December 22, 2021
The fact that this is so triggering to the GOP speaks volumes. https://t.co/R0QEUDnmZo
Marc Elias, incidentally, is a person of interest in John Durham’s investigation into the origins of the Russia Hoax perpetrated against President Trump. In his recent filings, Durham alleged that Michael Sussman, whom Durham indicted, had communicated in substantive ways with an unnamed attorney believed to be Marc Elias. Elias and his firm Perkins Coie were Hillary Clinton’s attorneys. Insurrection, anyone?
The problem for this argument about the Disqualification Clause is that the clause, which applied to past and future insurrections and which was enacted three years after Civil War ended, explicitly allowed Congress to repeal it via “a vote of two-thirds of each House.” That vote came in 1872 when Congress passed the Amnesty Act, described as “An Act to remove political Disabilities imposed by the fourteenth Article of the Amendments of the Constitution of the United States.”
Image: Madison Cawthorn. YouTube screen grab.
The Amnesty Act explicitly held that “all political disabilities imposed by the third section of the fourteenth article of amendments of the constitution of the United States are hereby removed from all persons whomsoever....” It then stated a handful of narrow exceptions (Senators and Representatives from the 36th and 37th Congresses, military offices, legal officers, heads of departments, and foreign ministers).
These explicit exceptions trigger the ancient doctrine known as “inclusio unius est exclusio alterius” or “inclusion of one is the exclusion of another.” In practical terms, this means that, if the legislature goes out of its way to include something in a specific list, things not included are presumed excluded. Here, we have a statute removing “all political disabilities...from all persons whomsoever,” except for a short list of people, none of whom are 21st-century Republican politicians. Those politicians, therefore, get the benefit of being identified as “all persons whomsoever....” Voila!
That is how U.S. District Judge Richard E. Myers II (a Trump appointee) viewed the matter:
Judge Myers sided with the argument of James Bopp Jr., a prominent conservative campaign lawyer, who noted that section three concluded with a caveat: “Congress may by a vote of two-thirds of each House, remove such disability.” The Amnesty Act of 1872 did just that when it declared that “all political disabilities imposed by the third section” of the 14th amendment were “hereby removed from all persons whomsoever.”
Democrats tried to argue that the Amnesty Act applied only to the past Civil War but, as noted above, neither the 14th Amendment nor the Amnesty Act makes that distinction. Both are exceedingly broad, subject to specific exceptions that are not applicable here.
Cawthorn achieved a total victory and one that should be an easy-to-follow template for any other Republicans faced with the same spurious challenge.
HUGE VICTORY!— Madison Cawthorn (@CawthornforNC) March 4, 2022
The left’s lawfare tactics have failed.
On to re-election! https://t.co/LqzyMoNOC2