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Originalism in the Cawthorn Litigation
Michael Ramsey

Last week in Cawthorn v. Amalfi, the Fourth Circuit (Judge  Heytens, joined by Judge Wynn) concluded that the 1872 Amnesty Act wasn't prospective (and therefore doesn't shield Representative Cawthorn from potential disqualification):

In 1868—three years after the end of "the late wicked Rebellion"—the Constitution was amended to disqualify from future federal or state office certain public officials "who … shall have engaged in insurrection or rebellion against" the United States "or given aid and comfort to the enemies thereof." Four years later, Congress exercised its constitutional authority to "remove such disabilit[ies]" by enacting legislation lifting the "political disabilities imposed by" Section 3 of the Fourteenth Amendment "from all persons whomsoever" with the exception of certain high-ranking federal officers who had joined the Confederacy.

The issue currently before us is whether that same 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it. Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment.


The most fundamental problem with Representative Cawthorn’s proposed interpretation is that the Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. The past tense is “backward-looking”; it refers to things that have already happened, not those yet to come. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Of course, we must consider the text not just as a modern reader would but also its “plain meaning at the time of enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). But  Representative Cawthorn has not argued that this elementary rule of conjugation has changed in the last hundred and
fifty years—likely with good reason. Cf. Blair v. City of Chicago, 201 U.S. 400, 465 (1906) (“This declaration is in the past tense, and can have no reference by any fair construction to future engagements.”).


...[T]he available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness. See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 111–21 (2021). Those problems were partly logistical: Using individual “private bills to remove Section Three disabilities” fostered  favoritism,” and the “thousands” of applications threatened to “overwhelm[]” Congress. Id. at 112; accord Cong. Globe, 42d Cong., 2d Sess. 3253 (1872) (Senator Pratt) (“[T]he exclusion of these men from office is a fruitful source of discontent . . . . These disabled people are constant grumblers. They parade their griefs every day.”). But matters of principle were also at stake, because President Grant and others argued that keeping large categories of people out of office was ineffective in excluding noxious ideas if those ideas were held by a majority of their constituents. See Magliocca at 115–16. And even though the debates over amnesty occupy scores of pages in the Congressional Globe,
neither the district court nor Representative Cawthorn has cited any statement by any member of Congress referencing the treatment of future insurrectionists.

Agreed, as noted here (criticizing the district court decision to the contrary).  I like the structure of the court of appeals decision:  close textual analysis (some of which is omitted in the quotes above), which establishes a presumptive textual reading, and then a look at the history and context to confirm.

At Volokh Conspiracy, Samuel Bray notes that this is in part an application of the "mischief rule" -- that is, interpreting a provision in accordance with the "mischief" at which it was directed.  As this case illustrates, I think that rule is an appropriate tool of originalist interpretation if used carefully.  In particular, it can be used to resolve a textual ambiguity or (as here) to confirm a probable textualist  interpretation; it shouldn't be used, though, to go against the text (as it is sometimes).

But:  I also agree with Judge Richardson, concurring in the judgment, that the whole issue is precluded (as to Members of Congress) by Article I, Section 5 of the Constitution:

[U]nder Article I, section 5, clause 1 of the Constitution, the House "shall be the Judge of the Elections, Returns and Qualifications of its own Members." The House of Representatives here is not just a judge, it "is the sole judge of the qualifications of its members."

To reach that conclusion, I work through four premises. I start by explaining that Art. I, § 5, cl. 1 of the Constitution is a jurisdictional bar on a federal court's power to determine the qualifications of a member of Congress. Then I explain how, under Supreme Court precedent, there is no meaningful distinction between judging a member's qualifications and pre-judging a candidate's qualifications. Next, I show why Section 3 of the Fourteenth Amendment is one of the "Qualifications" of membership in the House of Representatives, under the meaning of Art. I, § 5, cl. 1. Those premises together show that courts have no jurisdiction to "judge" a candidate's qualifications under § 3. From there, I conclude by showing why the district court's interpretation of the 1872 Amnesty Act as applied to Representative Cawthorn amounts to a judging of his § 3 qualification. Taken together, these premises prove that the district court had no jurisdiction to proceed on Representative Cawthorn's claim under the 1872 Amnesty Act. While I respect the district court's hesitation to decide core constitutional questions and rely on a statutory ground, that choice was unavailable because the Constitution leaves this question—how the 1872 Amnesty Act applies to Representative Cawthorn's qualifications for office—to the House of Representatives alone….

I would call this a rare case of a "political question" in the form of a determination textually committed to another branch.  Or to put it another way, giving courts the power to decide the qualifications of Members in contested cases is "repugnant to" (in Hamilton's words for an irreconcilable conflict) the House's power to decide them.

RELATED: At New Reform Club, Seth Barrett Tillman presses an alternative reason the whole case should have been dismissed: Section 3 of the Fourteenth Amendment (he says) isn't self-executing per Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869):

Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized. To put it another way, if Griffin’s Case was correctly decided, then state and federal executive branch officers (and other applicants in ballot contests) cannot rely on Section 3 of the Fourteenth Amendment to disqualify an alleged insurrectionist candidate from the ballot for a federal position absent federal statutory authorization. Apparently, no such federal statutory authorization (now) exists. Likewise, if an alleged insurrectionist already holds a federal office, then federal executive branch officers cannot remove the person from office (e.g., in quo warranto proceedings) based on Section 3 absent federal statutory authorization to do so.

Furthermore, if Griffin’s Case is good law or correctly states the law, then the Cawthorn plaintiffs lack a cause of action, as do other similarly situated plaintiffs in other Section 3 cases. If the plaintiffs lack any valid or cognizable cause of action, then the federal courts lack jurisdiction to hear the case. In those circumstances, jurisdiction should have been discussed prior to any discussion of Cawthorn’s Amnesty Act defense (and the plaintiffs’ responses to that defense), and the entire case should have been dismissed for lack of jurisdiction.

Judge Richardson doubted that Griffin’s Case is good law due to an apparent conflict with another early case, In re Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871), but in the post Professor Tillman explains why he sees no conflict.