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OPINION

Confederate Amnesty Act must not insulate the Jan. 6 insurrectionists

In the lead-up to the insurrection, Madison Cawthorn participated in planning meetings and promoted the confrontation with Congress on social media. He has invoked a post-Civil War statute to render him immune from consequences imposed by North Carolina voters.

Even if Rep. Madison Cawthorn's argument was not flatly inconsistent with the Constitution, it would require twisting the 1872 Act beyond recognition.Jacquelyn Martin/Associated Press

Earlier this month, a federal district judge in North Carolina stopped the effort by North Carolina voters to hold Republican Representative Madison Cawthorn accountable for his role in organizing and promoting the violent Jan. 6, 2021, attack on the US Capitol by disqualifying him from running for reelection. As stunning as this decision was, the reasoning the court used to get there is more so. It held that the Amnesty Act of 1872, which granted amnesty to former Confederates, applies to Cawthorn and overrides an explicit constitutional prohibition in the 14th Amendment barring those who “have engaged in insurrection” from holding office. This decision is at odds with the text, history, and logic both of that statute and of the Constitution itself, and cannot be allowed to stand.

In the lead-up to the insurrection, Cawthorn participated in numerous planning meetings and promoted the confrontation with Congress on social media. He spoke at a “Save America” rally outside the White House, praising the crowd for having “some fight in it” and leaving little doubt that he was inciting it to imminent action. Shortly thereafter, the mob’s attempt to disrupt the election certification process turned deadly.

In response, a group of North Carolina voters filed a challenge with the North Carolina State Board of Elections, arguing that Cawthorn is ineligible to stand for reelection under Section 3 of the 14th Amendment to the Constitution, which expressly disqualifies from any state or federal office anyone who “having previously taken an oath . . . to support the Constitution of the United States” then “engaged in insurrection or rebellion against the same, or g[ave] aid or comfort to the enemies thereof.” Enacted in the wake of the Civil War, this provision fundamentally transformed our national charter, providing a means to hold accountable past insurrectionists as well as others who might violate their oaths to uphold the Constitution in the future. The North Carolina voters plausibly argue that is exactly what Cawthorn did when he helped plan the Jan. 6 rally.

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Cawthorn’s lawyers responded that even if he did aid an “insurrection or rebellion” against the government, it doesn’t matter because in 1872 Congress passed a law that lifted Section 3′s disqualification from all but the most prominent Confederate leaders. According to Cawthorn, this law erased the Constitution’s disqualification not only for those Confederates then living, but for all potential future insurrectionists.

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This argument is absurd. Not only would that contravene Article VI, which makes the Constitution “the supreme Law of the Land,” but it would render senseless the specific provision in the 14th Amendment stating that the disability imposed by Section 3 “may by a vote of two-thirds of each House” be “remove[d]” from anyone subject to it. That provision would of course be incoherent if a mere act of Congress could render the disability clause null and void across the board and for all time. Only a constitutional amendment ratified by three-fourths of the states could have that effect.

But even if Cawthorn’s argument was not flatly inconsistent with the Constitution, it would require twisting the 1872 law beyond recognition. As its text makes clear, that statute was passed to lift only disqualifications that were already “imposed.” In the years following the 14th Amendment’s ratification, numerous Confederates petitioned Congress to have their disqualification removed in accord with the two-thirds clause of Section 3. Congress frequently granted amnesty, usually through private bills containing long lists of thousands of names. The final private bill Congress considered before passing the 1872 statute included some 17,000 names.

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As that bill was debated, one member proposed adding the words “and all other persons” at the end. But the sponsor of the bill, Representative Benjamin Butler of Massachusetts, rejected that proposal out of hand precisely because it suggested that amnesty would be extended to those who had not yet incurred Section 3 disqualification, quipping that he did “not want to be amnestied” himself. That remark elicited laughter on the House floor, indicating that the idea that amnesty could be granted to those who had not yet come to need it, the very argument Cawthorn is advancing today, was literally laughable.

The 1872 law was primarily a replacement for another in a long line of extraordinarily long bills listing individual Confederates. It was not the product of any considered judgment about the wisdom of letting potential future insurrectionists hold office but simply a practical solution to an administrative problem. Indeed, the campaign materials of Republicans and Democrats from that year’s presidential election indicate that both parties understood the 1872 Amnesty Act to be applicable only to former Confederates. Republicans celebrated the fact that they had passed a bill “extending amnesty to those lately in rebellion.” And while Democrats wanted the 1872 law to go further, even their imagination did not extend beyond “disabilities imposed on account of the Rebellion.”

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Section 3 of the 14th Amendment remains an important mechanism for holding officeholders accountable when they violate their oaths of office and for ensuring that they be disabled from doing so ever again. Cawthorn and others like him who face congressional and potential Justice Department scrutiny for their roles relating to the Jan. 6 attack should not be able to evade its strictures by relying on the 1872 Amnesty Act.

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard University. Follow him on Twitter @tribelaw. Elizabeth B. Wydra is president of the Constitutional Accountability Center. Follower her on Twitter @ElizabethWydra.