The Insurrection Bar to Holding Office: Appeals Court Issues Decision on Section 3 of the Fourteenth Amendment

"On May 24, 2022, the U.S. Court of Appeals for the Fourth Circuit issued a decision in Cawthorn v.Amalfi, a case involving Section 3 of the Fourteenth Amendment (Section 3). That constitutional provision bars certain people who have “engaged in insurrection or rebellion against” the United States from holding specified state and federal government offices. The specific question in the case was whether a Reconstruction-era statute granting amnesty to former Confederates barred application of Section 3 to persons who engage in any future rebellion or insurrection. The Fourth Circuit held that the 1872 statute did not have that effect and instead lifted the constitutional disqualification only for acts that had already occurred. The decision is relevant to Congress, both because Section 3 has been invoked against several legislators who allegedly participated in or supported the January 6, 2021, unrest at the Capitol and because the case raises broader constitutional considerations about what role state officials, federal courts, and Congress can play in determining the eligibility of congressional candidates.

Section 3 and the 1872 Amnesty Act

Section 3 of the Fourteenth Amendment provides, in its entirety:

No person shall be a Senator or Representative in Congress, or elector of President and VicePresident, 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.

Ratified after the Civil War, Section 3 was intended to bar individuals who had held government office before the war and then sided with the Confederacy from holding certain state or federal offices. Section 3 was occasionally invoked against former Confederates during the Reconstruction Era, but the provision also sparked opposition. Some viewed it as overly harsh or ineffective; others objected to the practical burden it placed on Congress to consider removing the office-holding bar on an individual basis. In 1872, Congress enacted a statute known as the 1872 Amnesty Act, which provided:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.

The 1872 Amnesty Act granted broad amnesty to many people who would otherwise be barred from office under Section 3, but it did not apply to certain groups whose participation in the Confederacy was deemed particularly culpable. Congress later enacted additional legislation granting amnesty to some of the excluded officials..."
Insurrection Bar