Forgotten insurrection clause of 14th Amendment used to force members of Congress to defend their actions on Jan. 6 – Brooklyn Daily Eagle

Lawyers representing voters inArizona,GeorgiaandNorth Carolinahave filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the14th Amendment.

Specifically,Section 3of the 14th Amendment reads:

No person shall be a Senator or Representative in Congress who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.

Proponents ofbarring these representativesfrom running for reelection argue thattheir active supportfor those who stormed the U.S. Capitolon Jan. 6, 2021, qualifies as involvement in insurrection or rebellion against the U.S. government.

As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.

That is not stopping those who want to hold accountable the elected officials who were involved in the storming of the Capitol on Jan. 6.

The challenges filed against GOP Reps.Marjorie Taylor Greeneof Georgia,Madison Cawthornof North Carolina andPaul Gosar and Andy Biggsof Arizona as well as Arizona Rep. Mark Finchem are part of a larger national campaign run by the nonprofit advocacy groupsFree Speech for PeopleandOur Revolution.

So far,judgeshave dismissed those argumentsin Arizonaand North Carolina. Both are on appeal.

The caseagainstRep. Greene of Georgia provides a useful lens through which to analyze this unique constitutional claim.

Thechallenge to her candidacycame to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled thatGreene should remainon the ballot because lawyers challenging Greenes runfailed to provethat she engaged in insurrection on Jan. 6, 2021

The evidence in this matter is insufficient to establish that Rep. Greene engaged in insurrection or rebellion under the 14th Amendment to the Constitution, Judge Charles Beaudrot wrote in his ruling.

The lawsuit against Greene claimed, for example, that she frequently referred to the protest effort againstthe 2020 presidential electionas our 1776 moment.

This reference, lawyers argued, is a clear allusion to indeed, code for a violent overthrow of the existing government.

They claimed Greene had, at a minimum, given aid or comfort to enemies of the United States or, at most, engaged in insurrection by deploying such rhetoric.

And, after hermost recent court hearingson April 22, 2022, text messagessurfacedin which she asked about the possibility of President Donald Trumps declaringmartial law.

In the text, which was uncovered by theHouse select committeeinvestigating the events of Jan. 6,Greene toldthen-White House Chief of StaffMark Meadowsthat some members of Congress were saying in a private chat group that the only way to save our Republic is for Trump to call for Marshall (sic) law. I dont know on those things. I just wanted you to tell him.

Greene argued thather statementsand social media posts encouraged lawful protest by those who believe that the 2020 election was stolen.

TheFirst Amendment, she argued, allows for a broad range of free and unfettered speech, particularly political speech.

Greene alsotestified under oaththat she had no knowledge that any protester intended to disrupt the joint session of Congress that had convened to count the electoral votes.

In response to many of the questions posed to her, she claimed more than 50 times during her hearing thatshe didnt recall.

Greenefurther testifiedthat while she did encourage people to come to Washington, D.C., for a peaceful march, she did not assist any protester in navigating through the Capitol complex, as some have alleged.

Section 3 of the 14th Amendment was passed shortly after the Civil War in 1866 to bar Confederates from federal government positions. But that ban didnt last long.

Ablanket amnestyfor former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed forthe last few hundredformer Southern congressmen and senators.

awthorns attorney, James Bopp Jr.,argued that the Amnesty Act of 1872nullified Section 3 of the 14th Amendment and allows Cawthorn to seek election in the upcoming May 17, 2022, GOP primary.

U.S. District Judge Richard Myersagreed and dismissedthe case against Cawthorn. The district judge ruled that the Amnesty Act of 1872, which exempted Confederates from proscriptions of Section 3, is still in force and shields Cawthorn from being prevented to run for office.

Unlike the case in North Carolina, the case against Greene in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenbergdenied Greenes motionto block the case against her and best summed up the constitutional morass the cases have raised.

This case, Totenbergwrote in her 73-page ruling, involves a whirlpool of colliding constitutional interests of public import. Greenehas appealedthat decision.

Political speech has and deserves special protection. To protest the government, even using strong, unpleasant or unpopular language, is central to the protections afforded by the First Amendment.

As such, courts tend to cast a wide net when defining speech covered by the First Amendment.

In addition to the First Amendment limitations, I think there is something anti-democratic about prohibiting a candidate from even running for office.

The notion that voters get to choose their elected representatives through free and fair elections represents a principle at the core of American democratic traditions.

To remove the voters ability to choose those whom they wish to elect to public office requires a weighty justification, and courts have long ruled this way. While aiding and abetting an insurrection is such a justification, it is an open question whether Greenes conduct fits within the definition of Section 3 of the 14th Amendment.

Clearly, had Greene charged the Capitol with a weapon demanding that Congress seat President Trump, her actions would be clear and her disqualification warranted. But instead of weapons and storming, Greene deployed words and electronic posts.

The distinction makes a difference.

In my view, given the First Amendments robust protection of speech, to bar a candidate from running for office requires evidence of intent toengage in insurrectionin far greater proportion than what has thus far been presented in the case against Greene.

Even Greenes call for martial law likely is not enough. Bizarre and wrongheaded statements are protected by the First Amendment just as cogent and thoughtful ones are.

Ronald Sullivan is a professor of law at Harvard University.

May 13 |Curtis Sliwa and Bob Capano

May 12 |The Guardian via AP

May 11 |Gabriel Pariente

May 9 |Emily Finchum-Mason, The Conversation

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Forgotten insurrection clause of 14th Amendment used to force members of Congress to defend their actions on Jan. 6 - Brooklyn Daily Eagle