Last month a Federal District Court in North Carolina held that Representative Madison Cawthorn (R-NC) could not be excluded from the 2022 primary ballot for his role in the January 6th insurrection at the Capitol. The Court ruled that a ballot challenge brought against Representative Cawthorn by state voters under Section Three of the Fourteenth Amendment could not proceed because Congress gave him amnesty 150 years ago. If that conclusion sounds ridiculous, that’s because it is. Congress did not and could not waive this democratic safeguard in the Constitution for future insurrections.
Section Three of the Fourteenth Amendment states that members of Congress who have taken an oath to support the Constitution may not continue to serve if they “shall have engaged in insurrection” against the Constitution. But “Congress may by a vote of two-thirds of each House, remove such disability.” In 1872 Congress exercised this power to forgive most former Confederates for their actions during the Civil War, excluding the most notorious rebels such as Jefferson Davis. The stated purpose of this Amnesty Act was “to remove political disabilities imposed” by the Fourteenth Amendment. Representative Cawthorn and other officials whose eligibility is now being challenged because of their involvement in the January 6th Capitol riot contend that the Amnesty Act also waived the Section Three disqualification rule for all future insurrectionists. This argument is wrong for at least three reasons.
First, a reading of the 1872 Amnesty Act to cover future insurrectionists is unconstitutional because Congress has no such power. Section Three of the Fourteenth Amendment gave Congress rather than the President the power to grant the equivalent of a pardon and allow insurrectionists to return to office. Senator Jacob Howard, the drafter of Section Three, explained that the two-thirds waiver provision “gives to Congress full discretionary power to grant an amnesty in an individual case, when applied for, or as part of the whole. Any portion of persons here proscribed may be pardoned.” The pardon power, though, applies only to past misconduct. Neither a President nor a Governor may pardon people for future crimes. The same is true for Congress under Section Three.
Second, the “future insurrectionist” interpretation would mean that Congress basically repealed Section Three of the Fourteenth Amendment in 1872. But Congress cannot repeal a part of the Constitution by itself: only a constitutional amendment can do that. When the House of Representatives used Section Three to exclude a member-elect from taking his seat in 1919, the House rejected the argument that the amnesty given to former Confederates applied to others because “Congress has no power whatever to repeal a provision of the Constitution by a mere statute” and “would not have the power to remove any future disabilities.” The House added that the argument that Section Three “is no longer applicable is not worthy of serious consideration.”
Third, Congress did not waive Section Three for future insurrectionists in 1872. The Amnesty Act referred to disabilities that were “imposed,” which is in the past tense. This word cannot be understood as a clear command that applies to disabilities that might be imposed later. Furthermore, nobody inside or outside of Congress at that time thought that the Amnesty Act was giving relief to future insurrectionists. Indeed, nobody thought that this was true until 2022. And none of the officials claiming that they have amnesty have produced any evidence to support their position because they cannot.
Congress can give Section Three amnesty to the January 6th insurrectionists. But only this Congress or a future one may do so.
Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law and the author of a law review article on the history of congressional amnesty under Section Three of the Fourteenth Amendment.
Suggested citation: Gerard N. Magliocca, The January 6th Insurrectionists Do Not Have Amnesty, JURIST – Academic Commentary, April 13, 2022,
https://www.jurist.org/commentary/2022/04/gerard-magliocca-january-6-insurrectionists/.
This article was prepared for publication by Amanda March, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
