This Constitutional Amendment May be Used to Ban Trump from Running for President Again

On March 4th, 2022, a federal judge repealed a Constitutional challenge presented to Republican Representative Madison Cawthorn (R-NC), which sought to ban him from running in the upcoming midterm elections due to his involvement in last year's Capitol Riots.

This constitutional challenge was initially presented by a group of North Carolina citizens and legal advocacy organizations, led by a left-wing group known as Free Speech for the People. Earlier this year, they filed this challenge with the North Carolina State Board of Elections using the Disqualification Clause of the 14th Amendment. This Clause, originally instituted after the American Civil War, bans anyone participating in "insurrection or rebellion" from holding public office.

This obscure piece of legislation may have been deemed insufficient for now, but it may still play a significant role before the next presidential election rolls around.

The Disqualification Clause: Where did it come from?

The original Disqualification Clause is outlined in Section 3 of the United State's 14th Constitutional Amendment, initially passed in 1869.

At first glance, this seems contradictory: the 14th Amendment is the post-Civil War piece that sought to ensure that all citizens, regardless of their race, would have the same "privileges and immunities." Its original intention was to enshrine African Americans' citizenship rights in full, including voting and running for office.

The Disqualification Clause states that "no person shall be a Senator or Representative in Congress […] or hold any office[…], who having previously taken an oath, engaged in insurrection or rebellion against the State, or gave aid or comfort to the enemies thereof."

It was included as additional protection against former Confederate generals. At that time, it was feared that they would attempt to revert to pre-Civil War legislation once elected.

A few years later, the Amnesty Law of 1872 removed this restriction for anyone who had fought in the still-recent Civil War. According to Madison Cawthorn's attorney (and judge Richard Myers, who ruled in this favor), this Amnesty applies in perpetuity for future rebellions. Therefore, Rep. Madison Cawthorn should not be disqualified from participating in the upcoming elections.

Why Is It Relevant Now?

Despite Judge Myer's ruling, it is unlikely that this will be the last we hear of the Disqualification Clause.

Immediately after the ruling, Free Speech for the People attorneys began working towards an appeal. Attorneys believe that they will be aided by the fact that the case was presented unusually quickly, as it was deemed urgent: North Carolina is just a few weeks away from printing ballots for its primaries, so time was f the essence.

Furthermore, even Chief Judge Richard Myers admits that the Amnesty Law could be repealed, provided Congress votes. Both the Amnesty Law and the Disqualification Clause had fallen into obscurity for nearly a century. Furthermore, talk of "insurrection" had been nearly non-existent until last year, making the Clause irrelevant.

However, now that both are out into the public view, they cannot be hidden again. In the future, similar cases could be brought forward against other Republican Candidates, particularly against former President Trump, should he decide to run for a second term.

Applying the Disqualification Clause

Could this be done? In short – yes. But it would take a significant legal effort and a few appeals.

The Disqualification Clause is less than 70 words long, and as such, it doesn't provide many details about its applicability or the procedures attached to it.

Assuming the 1872 Amnesty Law is repealed, applying the Disqualification Clause would require defining three key factors.

1. Was this an insurrection?

The events of January 6th, 2021, marked a turning point in American politics. The term "insurrection" has been widely used in Congressional hearings and media alike, but there is no precise legal definition around it.

Therefore, would the events of that day count as an insurrection, unequivocally enough that they could be used to bar someone from public office permanently?

2. Are there clear guidelines to charge someone for being involved in the insurrection?

The Disqualification Clause has only been used once before, back in 1919, after Wisconsin representative Victor Berger was accused of spying for Germany. However, the decision was later overturned by the Supreme Court after Berger was found innocent.

Still, even the conflict with Germany in 1919 was part of a major, open conflict – the Great War. When it comes to domestic insurrections, the legal ground gets murkier. According to some Constitutional scholars, the Disqualification Clause doesn't activate automatically.

It would require Congress to declare the Capitol Riots of 2021 as an insurrection formally. Then, it should provide clear guidelines to try someone under the Clause to determine whether someone indeed partook in it.

This brings us to the last legal question:

3. What counts as "taking part in an insurrection"?

Representative Madison Cawthorn was not among the mob who, on that unforgettable afternoon, broke into the Capitol. He did take part in the "Stop the Steal" rally, where, hours before the riots began, he questioned the legitimacy of the 2020 election.

Afterward, he was accused of inciting the riot and being one of its intellectual authors. These claims have not been proven, and they bring to light the following question regarding the Disqualification Clause: how involved do you have to be in an insurrection to be barred from public office?

When the Disqualification Clause was originally written, it targeted a well-constituted Army with regiments and enrolment lists. In modern dissidence movements, membership is rarely straightforward and cut.

Should this Clause apply only to those arrested that day on-site? Is photographic or video evidence enough to prove a candidate participated in the insurrection? What are the limits of "giving aid or comfort" before citizens' rights are stripped away? Would donations for supplies count? Would public expressions of support be enough?

Clearly, the implications of this legal gray area could have a devastating impact on the democratic electoral process.

Are We Likely To See The Disqualification Clause Again?

According to Ron Fein, the legal director of Free Speech for People, the answer is yes. For his group, Cawthorn is just one among many who should be disqualified from participating in future elections.

Granted, the concerted effort and funds necessary for it may not be worth it for a single Congress member. Should a more high-profile candidate appear (in particular, President Donald Trump), this could become a defining moment for the U.S.'s electoral process.

Grassroots Pulse covers public policy and political issues aimed at engaging highly-active policy makers, donors, and grassroots leaders at the forefront of the political process in America today.

Image Credit: Photo by Jon Tyson on Unsplash

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