Can Congress, by passing a new law, nullify a part of the Constitution? The answer would seem to be obvious, since Article V’s provisions for the amending process do not allow any such thing. But that appears to be a question looming in a case now making its way through the federal courts – possibly headed eventually to the Supreme Court.
Last week, a federal trial judge in Wilmington, N.C., ruled that laws passed by Congress in 1872 and 1898 mean today that a member of Congress who had a role in the January 6, 2021, attack on the Capitol in Washington cannot be disqualified under the Constitution from running for reelection this year.
That was the ruling by U.S. District Judge Richard E. Myers II in a 26-page opinion seeking to explain his earlier oral decision to stop a disqualification challenge to Rep. Madison Cawthorn of Hendersonville, N.C. — a Republican, serving his first term in the House.
Already, he has become one of the more controversial members of the House. He is an ardent supporter of former President Trump, and makes it a routine practice – as he himself claims – to “upset the status quo in Washington.” (His most recent gesture was to denounce the president of war-torn Ukraine as “a thug.”)
Cawthorn is seeking reelection to the House, but his eligibility has been challenged by a group of voters in his North Carolina district, based upon those constituents’ claims that he supported the January 6 rioters and has made public statements advocating violence as a political tactic. His aim regarding January 6 events, the challengers argue, was to prevent the constitutional process in Congress of counting the votes for the 2020 presidential election.
The basis of their challenge is Section 3 of the Fourteenth Amendment, added to the Constitution in 1868. The Amendment as a whole was designed to protect the rights of the freed slaves, hold Confederate leaders accountable, and help restore political normalcy after the Civil War.
Section 3 provides that a member of Congress who had previously taken an oath to defend the Constitution is disqualified if that person “shall have engaged in insurrection or rebellion against” the Constitution – plainly, aimed at former leaders of the Confederacy who had previously served in Congress. Section 3 gives Congress the authority to remove the disqualification.
One underlying issue now about Section 3 is whether it was intended to set an additional qualification for federal office, like the age, citizenship and residence requirements that the Constitution sets for Congress.
Although the Supreme Court has ruled that, without a constitutional amendment, no added qualifications can be created for members of Congress. But, twice, it has been asked to decide whether Section 3 as a part of the existing Constitution does add a qualification (essentially of loyalty to the Constitution), but it found no need to settle the question.
It is worth noting, though, that the non-partisan Congressional Research Service, in a study of Section 3 in the wake of the January 6 attack, has interpreted past history to mean that the provision did create “an enumerated constitutional qualification for holding office.”
The Supreme Court may have to decide this issue in Rep. Cawthorn’s case, since the answer could affect directly his right to be a candidate.
Until Judge Myers’s ruling, the challenge to Cawthorn’s eligibility under Section 3 was going ahead before the North Carolina State Board of Elections. That agency has the authority to decide eligibility under the federal Constitution, which allows states to decide how to conduct congressional elections, and under a state law that allows voters to challenge the eligibility of a candidate running for office.
Rep. Cawthorn moved to head off the challenge at the State Board, filing his own lawsuit in federal court, claiming that disqualifying his candidacy would violate his right to seek office and his free speech rights, that the state challenge law was unconstitutional, and that Section 3’s history protected his eligibility.
After Judge Myers’s ruled for the lawmaker, the congressman’s challengers appealed the case to a federal appeals court, and asked it to block the judge’s decision until the appeal can be decided. The congressman’s answer to that request is due Monday. The challengers are represented by Free Speech for People, a liberal advocacy group. Presumably, the case could go on to the Supreme Court. Since the case affects this year’s election cycle, the courts would be expected to act quickly.
Judge Myers, in an oral ruling from the bench and in his follow-up written opinion, relied upon interpretations of two amnesty laws that Congress had enacted, in 1872 and 1898, to lift all disqualification that had been imposed under Section 3.
Each amnesty law, the judge found, not only lifted the disqualification from office for those who led the Confederacy during the Civil War, but also did so for those who might engage in rebellion in the future. He said the meaning of the words in the two amnesty laws was straightforward and clear, and they shielded Cawthorn’s eligibility now. (The judge did not rule on Cawthorn’s constitutional complaint about the state challenge law.)
While the judge said he agreed that Congress did not have the authority to make Section 3 unenforceable today, he said the two amnesty laws as written represented action by Congress under Section 3 to relieve all disqualifications, future as well as past.
Section 3 has a lengthy history in constitutional law, but its full scope has never been clarified by the Supreme Court or by Congress in later legislation.
Among its historical oddities, the Section was cited by former Confederate President Jefferson Davis as a legal shield against his prosecution for treason after the Civil War. If he was being punished for rebellion, he argued, he could not be separately prosecuted for treason. He was actually never tried; President Andrew Johnson pardoned him before trial. Under Section 3, Davis had been disqualified because he had taken a constitutional oath when he was a member of the Senate before the Civil War.
In 1978, nearly 90 years after Davis died, Congress wiped out his disqualification under Section 3. Similarly, three years earlier, Congress did the same for Confederate General Robert E. Lee, 105 years after his death.
Both of those incidents, as well as an incident in Congress in the 1920s, appear to support the view that Congress must take specific action to relieve Section 3 disqualifications, and that the 19th Century amnesty laws did not do that for all time.
The 1920s brought the only case, other than those involving Confederate leaders, in which Section 3 has been used to disqualify an elected official for disloyalty. That incident involved a Wisconsin Socialist and pacifist, Victor L. Berger. The House disqualified him because, during World War I, he had argued against the military draft and had opposed U.S. entry into that war.
After winning election in 1918, he was barred from taking his seat in 1919. A special election was then held to fill the seat, but Berger won again. In 1920, the House again excluded him under Section 3.
While that, too, showed that Congress had to act explicitly to impose disqualification, it showed something more. It created a precedent that is recorded this way in congressional annals: “Congress has no power whatever to repeal a provision of the Constitution by a mere statute….Congress in the very nature of things would not have the power to remove any future disabilities.”
Judge Myers, however, interpreted the amnesty acts passed by Congress in 1872 and 1898 as doing just that for today’s world. That interpretation, it is worth noting, has been rejected in the Congressional Research Service study done right after the January 6 uprising. That report found that what Congress had done was intended to be “retrospective and apparently would not apply to later insurrections or treasonous acts.”
Thus, as the Cawthorn case develops further, and as the interest in Section 3 among legal scholars is spreading rapidly in the wake of the January 5 assault, some gaps in the history of that part of the Constitution may be filled.