The Volokh Conspiracy

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Madison Cawthorn and the Mischief Rule


Eugene has a post on today's decision by the Fourth Circuit (per Judge Heytens) on Rep. Madison Cawthorn's challenge to the disqualification litigation. I wanted to highlight one point. After giving a close textual read to the 1872 Amnesty Act, and concluding that it does not provide a blanket future amnesty to all insurrectionists, Judge Heytens turns to historical context. And the context to which he appeals, though he doesn't use the word, is manifestly the mischief. The relevant pages of the opinion are 24-26, and here's a quote:

the available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness. See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 111-21 (2021).

If you want to read more about the mischief rule, there's an article on that.