Defining January 6 As Highly Criminal

I did a piece recently on the “habitual lying” of freshman Rep. Madison Cawthorn of North Carolina, but backbench congressmembers don’t interest me much and I rarely write about them. However, I was intrigued when I saw Slate’s Mark Joseph Stern’s article on the effort to knock Cawthorn off the ballot for the sin of being an insurrectionist. To understand what’s going on, you need to take a close look at a largely forgotten part of the 14th Amendment.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

In other words, if Cawthorn, while serving in the U.S. House of Representatives and having made an oath to uphold the Constitution, either engaged in rebellion or insurrection against the government or gave aid or comfort to others then he should no longer be a congressman. And, as Stern points out, the Supreme Court has ruled that states may keep people who are ineligible to serve off the ballot. For example, you need to be 25 to serve in the House, so an 18 year old can be barred from even running.

There’s an actual process for this in North Carolina which Stern ably explains, but I’m less concerned with whether it will actually succeed in ending Cawthorn’s pathetic career than in the impulse to make the effort. After all, everything depends on whether the January 6 riot is legally considered a rebellion or insurrection against the U.S. government. If that is established, and it’s largely a matter of will to insist that it was, then Cawthorn’s case comes down to his particular role that day. Was he a direct part of the rebellion? If not, was he lending aid or comfort to the insurrectionists?

And Cawthorn’s obviously not alone in being subject to this kind of scrutiny. But it starts with defining January 6 as a coup attempt and a rebellion. President Biden took a huge step in that direction on Tuesday during his speech on voting rights in Atlanta.

“That’s why we’re here today: to stand against the forces in America that value power over principle, forces that attempted a coup, a coup against the legally expressed will of the American people by sowing doubt, inventing charges of fraud and seeking to steal the 2020 election from the people.”

Section 3 of the 14th Amendment was intended for federal officeholders who had joined the Confederacy, and it could be considered obsolete or inapplicable to federal officeholders who tried to help Trump illegally stay in power. On the other hand, it could be considered as perfectly suited for the moment. It’s really up to us to decide. Maybe the Supreme Court won’t ultimately agree with us that people like Cawthorn should be barred from Congress, but we won’t find out if we don’t try. If we don’t try, then we don’t believe it ourselves.