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Sunday, May 29, 2022

The forgotten rebellion clause of the 14th Amendment forced GOP members of Congress to defend their actions on January 6.

Lawyers representing voters in Arizona, Georgia and North Carolina have filed suit alleging that their elected congressional representatives have been 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 had previously sworn … to uphold the Constitution of the United States, shall indulge in rebellion or rebellion against the United States of America, or aid or aid its enemies or Will be given rest.”

Proponents of barring these representatives from running for re-election argue that their active support for those who stormed the US Capitol on January 6, 2021 deserves to engage in a “rebellion or rebellion” against the US government.

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

That’s not stopping those who want to hold elected officials accountable for the January 6 storming of the Capitol.

Challenges Filed Against GOP Reps. Marjorie Taylor Green of Georgia, Madison Cawthorne of North Carolina and Paul Goser and Andy Biggs of Arizona – as well as Arizona Rep. Mark Finchem – part of a larger national campaign run by non-profit advocacy groups. Speech to the people and our revolution.

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

January 6. Green’s role in

The case against Georgia Representative Greene provides a useful lens through which to analyze this unique constitutional claim.

The challenge to his candidacy ended on May 5 when Georgia State Judge Charles Beaudrot Jr. ruled that Greene should remain on the ballot because attorneys challenging Greene’s run failed to prove that he was on January 6, 2021. was involved in the rebellion.

Judge Charles Beaudrot wrote in his ruling, “The evidence in this case is insufficient to establish that Representative Greene … ‘engaged in rebellion or rebellion’ under the 14th Amendment to the Constitution.”

For example, the lawsuit against Greene claimed that she often referred to her attempt to protest the 2020 presidential election as “our 1776 moment.”

Lawyers argued that the reference was a clear indication of what – indeed, the code – for a violent overthrow of the incumbent government.

They claimed that Green had, at the very least, aided or comforted the enemies of the United States, or at most, engaged in rebellion by deploying such rhetoric.

And, after her most recent court hearing on April 22, 2022, text messages surfaced in which she asked about the possibility of President Donald Trump declaring martial law.

In the text, which was uncovered by the House Select Committee probing the January 6 events, Green told then-White House Chief of Staff Mark Meadows that some members of Congress were saying in a private chat group that “save The only way out of our Republic is for Trump to call for Marshall (sic) law. I don’t know about those things. I just wanted you to tell him.”

Green argued that his statements and social media posts encouraged legitimate protests by those who believe the 2020 election was stolen.

The First Amendment, she argued, allows a wide range of free and absolutist speech, especially political speech.

Green also testified under oath that he had no idea that any of the demonstrators intended to disrupt the joint session of Congress that was convened to count the electoral votes.

In response to his many questions, he claimed more than 50 times during his hearing that he did not remember.

Marjorie Taylor Green testified that she did not remember her actions during January 6.

Green further testified that while he encouraged people to come to Washington, D.C. for a peaceful march, he did not assist any of the protesters in navigating through the Capitol complex, as some have alleged.

forgiving rebel soldier

Section 3 of the 14th Amendment was passed in 1866 to prohibit Confederates from positions in the federal government immediately after the Civil War. But this ban did not last long.

A blanket amnesty for former Confederate soldiers was passed in 1872, making most rebels eligible for office again. In 1898, the ban was lifted for the last few hundred former Southern Congressmen and Senators.

GOP Representative Madison Cawthorne of North Carolina speaks before a rally for former US President Donald Trump on April 9, 2022 in Selma, North Carolina.
Allison Joyce / Getty Images

Cawthorne’s attorney, James Bopp Jr., argued that the Amnesty Act of 1872 repealed Section 3 of the 14th Amendment and allowed Cawthorne to hold an election in the upcoming May 17, 2022, GOP primary.

US District Judge Richard Myers agreed and dismissed the case against Cawthorne. The district judge ruled that the Amnesty Act of 1872, which exempted unions from Section 3 indictments, was still in force and Cawthorne was being barred from running for office.

Unlike the case in North Carolina, the case against Green in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenberg rejected Greene’s motion to block the case against her, besting the constitutional quagmire that the cases had taken up.

“This case,” Totenberg wrote in his 73-page ruling, “consists of a whirlpool of conflicting constitutional interests of public import.” Green has appealed that decision.

protected free speech

Political speech has – and has special protection – and deserves. Using strong, offensive or unpopular language, even in order to oppose the government, is central to the protections provided by the First Amendment.

Crowds of people waving Trump banners and American flags gather outside the Capitol on January 6, 2021.
Protesters gather near the Capitol and block the joint session of the 117th Congress on January 6, 2021 in Washington, DC.
Kent Nishimura / Los Angeles Times via Getty Images

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

Aside from the limitations of the First Amendment, I think there’s something undemocratic about barring a candidate from running for office.

The notion of electors electing their elected representatives through free and fair elections represents a principle at the core of American democratic traditions.

Removing voters’ ability to choose the people they want to elect for public office requires an overwhelming justification, and courts have long ruled that way. While supporting and inciting a rebellion is one such justification, it remains 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 that the congressional seat President Trump sought, his action would be clear and warrant his disqualification. But instead of weapons and stormtroopers, Greene deployed words and electronic posts.

Difference makes a difference.

In my view, given the strong defenses of the First Amendment’s speech, intentions to engage in rebellion disproportionately exceed what has been presented in the case against Greene to prevent a candidate from running for office. proof is required.

Even Green’s call for martial law isn’t enough. Bizarre and false statements are protected by the First Amendment as are those that are concrete and thoughtful.

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