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What a Civil War-era provision could mean for candidates accused of inciting violence


Voters in North Carolina are challenging the reelection bid of Republican Congressman Madison Cawthorn. The freshman lawmaker is a regular fixture in conservative media and has echoed lies about the 2020 presidential election. But his critics say the Republican rising star is not being challenged for what he thinks. It's all for what voters say he has done.

JOHN WALLACE: Madison Cawthorn is ineligible to seek this office because Section 3 of the 14th Amendment disqualifies those persons who have sworn an oath to support the Constitution and then have engaged in an insurrection.

MARTIN: That's John Wallace, a lawyer representing voters from Cawthorn's district. He's citing a Civil War-era provision that's at the heart of the legal challenge. We wanted to learn more about this challenge and what it could mean for candidates accused of inciting violence, so we have called Gerard Magliocca. He is a constitutional law professor at Indiana University's law school. He has studied the provision we're about to talk about and written about it. And he is with us now. Professor, thank you so much for joining us.

GERARD MAGLIOCCA: Thank you. It's a pleasure to be here.

MARTIN: So first of all, as briefly as you can, would you tell us a bit more about this provision and why it was established?

MAGLIOCCA: Section 3 of the 14th Amendment was ratified after the Civil War to - people who had been officeholders or military officers who then served the Confederacy from ever serving in office again unless they were given a kind of pardon by Congress. And it was enforced for the first few years after the end of the Civil War until sometime during the 1870s.

MARTIN: And has it been used since the 1870s, to your knowledge?

MAGLIOCCA: The only time it's been used since the 1870s was to exclude a member of Congress who was elected during the First World War and was accused of essentially being a pro-German speaker and someone who had undermined the war effort. His name was Victor Berger. So that is the only time that it was used since the early 1870s.

MARTIN: What do you think about the strength of this case against Representative Cawthorn? And then I guess it's a different question, but how likely do you think it might be that the North Carolina Board of Elections might rule based on this provision?

MAGLIOCCA: Well, under North Carolina law, the plaintiffs here have to show only that there is a reasonable suspicion that Representative Cawthorn was engaged in insurrection. And I think they have met that standard. Now, at that point, Representative Cawthorn would have to prove that he was not engaged in insurrection by presenting his case to the Board of Elections. Now, whenever this state proceeding happens, we will see what he has to say about who he met with, what emails were exchanged. And we'll learn more about January 6 and his involvement there. But I can't prejudge what he might say because he has not really presented his case or answered those accusations yet.

MARTIN: So not long after the voters filed their challenge, you wrote a piece for The Washington Post about this provision, about Section 3 of the 14th Amendment. You write, quote, "only a small number of people are potentially subject to the constitutional ineligibility bar because of January 6." You say that Section 3 is a scalpel rather than a club.

You can imagine where many people might say that this is an affront to the First Amendment, that people have a right to express views, even obnoxious views, even violent views. And Representative Cawthorn has made that argument already. Last week, he sought to block this by filing in Federal District Court in North Carolina. His suit claims that, quote, "running for political office is a quintessential First Amendment activity and afforded great protection," unquote. So your response?

MAGLIOCCA: The first thing to say about that is that Section 3 of the 14th Amendment modifies the First Amendment. It is something that came long after the First Amendment was ratified, so one can understand it as a very narrow exception to the First Amendment's broad protections. Now, the second thing you could say is that no one is saying that speech alone, unless it were to qualify as something like incitement to violence, is enough to say that someone has engaged in insurrection. There are - the question here is, what actions did Congressman Cawthorn take in terms of meeting, planning and so on that might be involved in leading to what occurred on January 6?

So what one says might shed light on what one did, right? But that's different from saying that what one said just by itself can trigger the disqualification bar. So everyone is entitled to make their claims about the election or engage, as you said, in critical speech, but there's a difference between that and then also engaging in actions that lead to violence.

MARTIN: So we are months away from November's midterm elections, and a number of states obviously will be having elections for state offices as well. We know that there was one West Virginia lawmaker who was involved in the mob attack on the Capitol. He's resigned his seat. And as you pointed out, a small number of elected officials evidently participated in that particular event. But do you think that this provision will be implicated more often? Do you think - are there other places where people are contemplating this kind of action?

MAGLIOCCA: I think you will see other lawsuits against officials, either potentially state officials, local officials or members of Congress. But the one person who is surely going to be subject to these kinds of challenges, if he runs again, is Donald Trump. And the Supreme Court is going to have to decide - and the sooner the better - whether Section 3 applies to former President Trump because we need to know whether he is eligible to serve again to have an election either for the Republican nomination or in a general election. So that's an issue that we really need to get resolved. And it is surely the case that if he runs, he will face Section 3 challenges.

MARTIN: Gerard Magliocca is the Samuel R. Rosen professor at Indiana University Robert H. McKinney School of Law. Professor Magliocca, thanks so much for talking with us.

MAGLIOCCA: Thank you - pleasure to be here.