Forgotten insurrection clause of 14th Amendment used to force GOP members of Congress to defend their actions on Jan. 6

<span class="caption">Republican Rep. Marjorie Taylor Greene of Georgia speaks outside the U.S. Capitol on April 28, 2022. </span> <span class="attribution"><a class="link " href="https://www.gettyimages.com/detail/news-photo/rep-marjorie-taylor-greene-speaks-during-a-press-conference-news-photo/1394252510?adppopup=true" rel="nofollow noopener" target="_blank" data-ylk="slk:Win McNamee/Getty Images">Win McNamee/Getty Images</a></span>
Republican Rep. Marjorie Taylor Greene of Georgia speaks outside the U.S. Capitol on April 28, 2022. Win McNamee/Getty Images

Lawyers representing voters in Arizona, Georgia and North Carolina have filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the 14th Amendment.

Specifically, Section 3 of 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 of barring these representatives from running for reelection argue that their active support for those who stormed the U.S. Capitol on 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 Greene of Georgia, Madison Cawthorn of North Carolina and Paul Gosar and Andy Biggs of Arizona – as well as Arizona Rep. Mark Finchem – are part of a larger national campaign run by the nonprofit advocacy groups Free Speech for People and Our Revolution.

So far, judges have dismissed those arguments in Arizona and North Carolina. Both are on appeal.

Greene’s role in Jan. 6

The case against Rep. Greene of Georgiaprovides a useful lens through which to analyze this unique constitutional claim.

The challenge to her candidacy came to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled that Greene should remain on the ballot because lawyers challenging Greene’s run failed to prove that 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 against the 2020 presidential election as “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 her most recent court hearings on April 22, 2022, text messages surfaced in which she asked about the possibility of President Donald Trump’s declaring martial law.

In the text, which was uncovered by the House select committee investigating the events of Jan. 6, Greene told then-White House Chief of Staff Mark Meadows that 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 don’t know on those things. I just wanted you to tell him.”

Greene argued that her statements and social media posts encouraged lawful protest by those who believe that the 2020 election was stolen.

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

Greene also testified under oath that 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 that she didn’t recall.

Greene further testified that 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.

Forgiving rebel soldiers

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 didn’t last long.

A blanket amnesty for former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed for the last few hundred former Southern congressmen and senators.

<span class="caption">GOP Rep. Madison Cawthorn of North Carolina speaks before a rally for former U.S. President Donald Trump on April 9, 2022, in Selma, North Carolina.</span> <span class="attribution"><a class="link " href="https://www.gettyimages.com/detail/news-photo/rep-madison-cawthorn-speaks-before-a-rally-for-former-u-s-news-photo/1239877345?adppopup=true" rel="nofollow noopener" target="_blank" data-ylk="slk:Allison Joyce/Getty Images">Allison Joyce/Getty Images</a></span>
GOP Rep. Madison Cawthorn of North Carolina speaks before a rally for former U.S. President Donald Trump on April 9, 2022, in Selma, North Carolina. Allison Joyce/Getty Images

Cawthorn’s attorney, James Bopp Jr., argued that the Amnesty Act of 1872 nullified 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 Myers agreed and dismissed the 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 Totenberg denied Greene’s motion to block the case against her and best summed up the constitutional morass the cases have raised.

“This case,” Totenberg wrote in her 73-page ruling, “involves a whirlpool of colliding constitutional interests of public import.” Greene has appealed that decision.

Protected free speech

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.

<span class="caption">Protesters gather near the Capitol and halt a joint session of the 117th Congress on Jan. 6, 2021, in Washington, D.C.</span> <span class="attribution"><a class="link " href="https://www.gettyimages.com/detail/news-photo/protesters-gather-storm-the-capitol-and-halt-a-joint-news-photo/1230458732?adppopup=true" rel="nofollow noopener" target="_blank" data-ylk="slk:Kent Nishimura / Los Angeles Times via Getty Images">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
Protesters gather near the Capitol and halt a joint session of the 117th Congress on Jan. 6, 2021, in Washington, D.C. Kent Nishimura / Los Angeles Times via Getty Images

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 Greene’s 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 Amendment’s robust protection of speech, to bar a candidate from running for office requires evidence of intent to engage in insurrection in far greater proportion than what has thus far been presented in the case against Greene.

Even Greene’s 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.

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