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.

Comments

[Rev. Arthur L. Kirkland]

Speaking of immature jerks enabled by our society's lesser elements, on the day of another mass shooting . . .

if your 18-year-old has access to firearms and body armor, you are a lousy person and a shitty parent who requires and, I am confident, will have adult supervision imposed on you by better Americans.

The mainstream backlash against antisocial gun nuts will be as severe as it is predictable. I hope that snapback spares the right to possess a reasonable firearm in the home for self-defense, but if that right is a victim of the mainstream reaction to gun nuttery, the gun absolutists will have only themselves to blame.

Carry on, clingers . . . so far as better Americans permit, that is.

[Sebastian Cremmington]

Just think—George W Bush beat Ann Richards in 1994 by basing his campaign around signing concealed carry bill which was being promoted by a victim of a mass shooting in Killeen. After Bush signed that bill America has been a mass shooting free zone instead of the gun free kill zone libs want America to be!! Thanks God these grade school students were trained to arms and locked and loaded and they shot this potential mass shooter before he could pull off the first mass shooting since Killeen. God bless America and God bless Texas and God bless Bush!!!!!

[Rev. Arthur L. Kirkland]

The God you describe is a fairy tale for gullible children of all ages.

[Sebastian Cremmington]

I like the people advocating more police officers at schools after Parkland had a police officer and Buffalo had a retired police officer that actually got a shot off and failed to kill the shooter and then the shooter killed him. Once again—MASS SHOOTERS WANT TO DIE!!!

[Stephen Lathrop]

If mass shooters want to die, then society will benefit greatly by limiting them to less efficient guns, so their killing rate diminishes during the interval it takes to subdue or kill them. Luckily, because deterrent effect is overwhelmingly the source of most legitimate gun benefit to society, arming everyone with less efficient guns will do little to reduce legitimate benefits of being lawfully armed.

Even a single shot target pistol can serve as a considerable deterrent to a would-be criminal. Perhaps optimal gun benefit for society might be furnished by semi-automatic pistols equipped with non-interchangeable internal magazines limited to a 3-round capacity. Careful consideration of such designs, with an eye to a good ammunition choice might be a useful next step for gun policy.

[Sebastian Cremmington]

And this shooting involved an 18 year old nut that apparently might have shot an elite federal law enforcement officer…so heavily armed 18 year old nuts that want to die can go toe to toe with cops and elite law enforcement officers.

[Stephen Lathrop]

Anyone armed with a gun, however lightly, is an overwhelming favorite over any other person, however heavily armed and armored, if the former gets the drop on the latter. That unalterable fact goes far to explain why pro-gun romantics who suppose it makes sense to carry guns against undefined contingencies are likely endangering themselves more than they benefit.

[not guilty]

Texas Attorney General Ken Paxton in the wake of the Uvalde school shooting is calling for teachers to be armed. That calls to mind Garry Wills´ commentary following the Sandy Hook shooting about how firearms have become objects of religious veneration:
blockquote>That horror cannot be blamed just on one unhinged person. It was the sacrifice we as a culture made, and continually make, to our demonic god. We guarantee that crazed man after crazed man will have a flood of killing power readily supplied him. We have to make that offering, out of devotion to our Moloch, our god. The gun is our Moloch. We sacrifice children to him daily—sometimes, as at Sandy Hook, by directly throwing them into the fire-hose of bullets from our protected private killing machines, sometimes by blighting our children’s lives by the death of a parent, a schoolmate, a teacher, a protector. Sometimes this is done by mass killings (eight this year), sometimes by private offerings to the god (thousands this year).

The gun is not a mere tool, a bit of technology, a political issue, a point of debate. It is an object of reverence. Devotion to it precludes interruption with the sacrifices it entails. Like most gods, it does what it will, and cannot be questioned. Its acolytes think it is capable only of good things. It guarantees life and safety and freedom. It even guarantees law. Law grows from it. Then how can law question it?

Its power to do good is matched by its incapacity to do anything wrong. It cannot kill. Thwarting the god is what kills. If it seems to kill, that is only because the god’s bottomless appetite for death has not been adequately fed. The answer to problems caused by guns is more guns, millions of guns, guns everywhere, carried openly, carried secretly, in bars, in churches, in offices, in government buildings. Only the lack of guns can be a curse, not their beneficent omnipresence.

[not guilty]

https://www.nybooks.com/daily/2012/12/15/our-moloch/

[Sebastian Cremmington]

And this shooting involved an 18 year old nut that apparently might have shot an elite federal law enforcement officer…so heavily armed 18 year old nuts that want to die can go toe to toe with cops and elite law enforcement officers.

[Noscitur a sociis]

And you're saying it's the pro gun people who sound nuts?

[not guilty]

The proliferation of guns is not something that decent people celebrate (unlike the Governor of Texas). https://www.nydailynews.com/news/national/ny-greg-abbot-gun-tweet-uvalde-texas-school-shooting-20220524-yhsatc7w5ne5hhrrflirtoyonu-story.html

[Rev. Arthur L. Kirkland]

Gun absolutists are nuts.

[Kazinski]

I'll believe liberals care about homan life when they agree to ban abortion.

As a libertarian I'm unwilling to think the government should make our decisions for us like abortion or owning guns.

Despite the cost in human lives.

[Sarcastr0]

Another liberarian who wants the government to come in heavy on social issues they agree with.

Whatever, dude. You're just a conservative with some self-image issues.

[Kazinski]

Once again Sarcastro you have trouble reading, I don't think the government should ban guns or abortion, but guns are protected by the constitution, but abortion isn't.

[santamonica811]

Kaz,
I think you meant to write that you believe that the Constitution should not protect a right to abortion. Post Roe (and Doe, etc etc), the Sup. Ct clearly and repeatedly has held that, in fact, the Const. *DID and DOES* protect such a right for women. Now, of course, many people think that the Court got that wrong. And, in a few days / weeks / months, there may no longer be a (federal) Constitutional right to an abortion. But for now, and for the past 50-odd years; you're just wrong about the law.

[Brett Bellmore]

No, I'm pretty sure he knows exactly what he meant to write.

The Supreme court holding that, and that actually being the case, are not the same thing. The Supreme court is perfectly capable of being wrong.

We're not all legal 'realists', remember. Some of us remember that there's actually a Constitution, not just a Court.

[bevis the lumberjack]

The Supreme Court has found, years ago, that civil asset forfeiture somehow does not violate the very plain language of the 5th Amendment regarding the requirement of due process before taking someone’s property.

The Supreme Court just last week found that somehow the Constitution does not prohibit the execution of someone who is actually innocent.

Let’s not pretend that if the SC finds it to be true then if absolutely must be true.

[Sarcastr0]

Kaz thinks it's okay when state governments do it, I guess.

Letting people make the personal moral decision for themselves is the libertarian thing.

Yelling at how liberals are all evil killer hypocrites due to not agreeing with you about abortion is the conservative thing.

Welcome to the party, pal.

[Brett Bellmore]

You do seem to be having trouble with reading comprehension today, he's right about that.

[Sarcastr0]

I'll believe liberals care about homan life when they agree to ban abortion

is culture war nonsense. Which is not really in the libertarian bag.

But it is conservative. Since they have discovered a love for wedge issues and government power, so long as it owns the libs.

[Brett Bellmore]

He specifically said he wanted the government to stay out of both choices, and merely noted that the 2nd amendment WAS in the constitution, but abortion wasn't.

And you came back with "Another liberarian who wants the government to come in heavy on social issues they agree with."

Exactly what he said he DIDN'T want. Thus the complaint about your lack of reading comprehension.

[Sarcastr0]

He seems pretty fine with banning abortion to me, Brett:
"I'll believe liberals care about homan life when they agree to ban abortion"

Just maybe not on the federal level.

Your distinction about written/unwritten rights is explicitly anti-constitutional. As many have told you.

[Brett Bellmore]

Yup, total block on reading comprehension.

[Sarcastr0]

He wants liberals to agree to ban abortion, which you seem to not be comprehending.

[Brett Bellmore]

Let me explain this to you, Sarcastro.

Kazinski asserts that he believes four things.

1) That people should be free to own guns.
2) That people should be free to have abortions.
3) That the former is actually mandated by the Constitution, while the latter is not, it's just a good idea.
4) That if Democrats really cared about human life they'd agree to ban abortion.

Can you believe all four? Sure.

See, while Kaz thinks the government shouldn't be banning abortion, he believes that Democrats, (Who typically don't believe the government is barred from doing ANYTHING that's 'a good idea.') if THEY cared about human life, would be in favor of banning it.

[not guilty]

I take a pro-choice position regarding both gun possession and abortion rights. Government should ban neither one, absent extraordinary circumstances.

That doesn't mean I won't ridicule those who lack the proper combination of brains and testicular fortitude required to walk around unarmed.

[Brett Bellmore]

My interest in a concealed carry permit is that, under SC law, if you have one, you're allowed to carry about a sword cane.

I've got arthritis, and if/when it gets so bad I need a cane, then it's at least going to be a sword cane, damn it. Because at least that would have some compensating cool factor.

[Brett Bellmore]

George Will brings to mind how firearms have become articles of religious hatred for a segment of society.

They're just tools, all the agency is in the people using them, but the anti-gun cult can't bear to face the fact that murder is due to murderers, not the weapons they use. It's like they envision a world full of homicidal maniacs who go through life frustrated because they can't lay their hands on a gun.

[Stephen Lathrop]

It's like they envision a world full of homicidal maniacs who go through life frustrated because they can't lay their hands on a gun.

You do not need to fill the world with those. It takes only a few to tip toward chaos the social balance on gun possession.

And of course you are deluded about how many such nuts there are. So are a great many of the nuts themselves.

They imagine themselves sane. They imagine their problem drinking is not; they imagine their distractibility doesn't matter; they imagine their marginal eyesight to be good enough; they imagine their hard-to-govern tempers were misdescribed; they imagine chronic depression doesn't exist; they imagine their angry racism is justified; they imagine their oppressive loneliness in fear; they imagine all of that, and more, to be irrelevant. They imagine themselves disciplined. Most imaginatively of all, they imagine gun range training confers prowess equal to any emergency.

On a bad day, among any few thousands of such romantically imaginative souls, you can count on finding material to deliver a homicidal-trending person, whether or not a maniac. More than 75,000 Americans are treated for non-fatal gunshots every year—more than 200 every day. Something accounts for that fact, and it cannot be the inherent stability of the gun wielding population.

[Brett Bellmore]

My point was simply that if somebody is homicidal, denying them a gun, (Even assuming a law could actually accomplish that.) is not the same as rendering them harmless.

Gun controllers, obsessed with one particular means of homicide out of many, and seemingly unconcerned about why people wanted to kill in the first place, must either imagine firearms themselves have agency, are somehow demonically causing otherwise innocent people to kill, or imagine that denied one means of killing, the homicidal will not turn to another.

But instead will just wander around, homicidal but frustrated.

Anyway, your closing paragraph reminds me of a quote by the founders' favorite criminologist, Cesare Beccaria:

“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that it has no remedy for evils, except destruction. The laws that forbid the carrying of arms are of such a nature. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Finally, I will note that most homicide victims are actually criminals shot by other criminals. The numbers are from Milwaukee, but stats are similar elsewhere:

"In non-fatal shootings in 2011, 97 percent of the 177 suspects and 86 percent of the 473 victims had at least one prior arrest. The report doesn’t say how many.

However, O’Brien said a closer analysis of non-fatal shootings during a six-week period in July and August 2011, when non-fatal shootings increased, found that suspects had an average of 7.5 prior arrests and victims had an average of about six. O’Brien said that based on her past studies, she would expect that the rest of the suspects and victims in the non-fatal shootings in 2011 had a similar number of prior arrests.

So, more than 85 percent of the people involved in non-fatal shootings had at least one prior arrest. And there’s a strong indication, though not complete numbers, that most people involved in the non-fatal shootings had at least several prior arrests."

"For all homicides in 2011 -- those involving guns and those that didn’t -- 57 percent of the 72 suspects and 62 percent of the 66 homicide victims had at least six prior arrests.

O’Brien said that based on past studies she has done, most homicides involve guns and it’s unlikely that arrest records would vary greatly between the people involved in shooting homicides versus non-shooting homicides.

So, a clear majority, but less than 85 percent, of the people involved in fatal shootings likely had at least six prior arrests; although, again, the study doesn’t provide hard numbers on that point."

Most shootings are criminals shooting criminals. Most homicides are criminals killing criminals. Are you really so sure we want to stop them from doing that?

[Stephen Lathrop]

Bellmore — Virginia Tech shooter, Sandy Hook shooter, Las Vegas shooter, Buffalo shooter, Uvalde shooter: hundreds of people shot. How many prior arrests total among them?

Most shootings are criminals shooting criminals. Most homicides are criminals killing criminals. Are you really so sure we want to stop them from doing that?

Yeah, I'm really sure I want that stopped. I think it is time for folks to just STFU who think this uniquely American carnage is just the price of greatness. What is wrong with you?

[Stephen Lathrop]

. . . how many prior arrests among those shooters?

[Brett Bellmore]

More to the point, how many mass murders among the people whose rights you'd strip away?

You're proposing to stake away the rights of the innocent to reduce the ease with which the guilty can harm people. How many other constitutional rights are you ready to abolish on this principle?

[Stephen Lathrop]

You're proposing to take away the rights of the innocent to reduce the ease with which the guilty can harm people.

Yes! Exactly. Except for the part about taking away rights.

It has become vitally, indispensably important to reduce the ease with which the guilty can harm people, and to do that before the harm occurs. To accomplish that, rights must be preserved, but recalibrated, while leaving the benefits rights deliver undiminished or improved.

I cited examples in which literally hundreds of people were shot, by assailants who as far as I can find out, had never been arrested for anything. That made you decide the subject you yourself had broached needed to be changed.

But now you want to edge back, to reassert the paradoxical notion that a privileged status for some (the, "innocent") must be assumed as a matter of policy. As a practical matter, that forbids all policy to reduce harm before it happens. Which may be your intention.

That is unacceptable. Policy to reduce harm from guns must treat everyone alike, including alike with regard to an expectation that anyone with a gun could become dangerous. That does nothing more than acknowledge an undeniable truth. Today's model of normal cognition can always become tomorrow's manic depressive psychopath. Gun rights policy, as a matter of practical necessity, must assume that will be an armed manic depressive psychopath.

I continue as an advocate for gun rights. I have always been an advocate for guns rights. I do not, however, suppose that gun rights can ever be unqualified, nor defined as insufficient unless rights can be exercised to the limit of every rights holder's ambition.

In particular, with regard to a right to use a gun for self defense, I think there are two general classes of limitations which can be applied without meaningfully reducing—at least in the aggregate—any benefit to be had from gun rights. Those two classes are first, that rights can be protected state-by-state instead of nationally, and second, that legitimacy of the right of self-defense cannot be gauged except with regard to the effects of policy applied alike to everyone.

Events and effects delivered by existing policy have taken the nation past the point where it is any longer morally acceptable to insist on supposed, "rights," which privilege some people above others, or which get defined in any way superfluous to the benefits which supposedly justify the rights in the first place. Any self-defense policy which allows self-defense with a firearm, and which delivers enhanced safety to each person, and enhanced safety in the aggregate, must be judged acceptable and legitimate.

The nation cannot decree categorically innocent people, and it cannot permit individuals their understandable ambitions to enjoy perfect safety—especially if that can only be had at the price of increased danger to others as individuals, or to others in the aggregate. The self-defense arms race must be wound down. The objective must be self-defense rights which work alike for everyone, and which collectively reduce the burden of public danger the nation must endure.

[Brett Bellmore]

You do realize that these mass shootings, while they garner a lot of press, are actually pretty rare, and thus the last sort of shooting you'd go after if your motivation was actually saving lives, right? The effort you expend going after them is utterly out of proportion to the number of deaths you could save even if your efforts worked.

Mostly we hear so much about them because the left sees them as a great PR opportunity to go after gun owners in general, and doesn't really care about the resulting death toll from copycats that they're generating.

[MatthewSlyfield]

The carnage of mass shootings is in no way shape or form uniquely American. In point of fact, on a per capita basis, the US doesn't even make the worst 10.

https://worldpopulationreview.com/country-rankings/mass-shootings-by-country

[MatthewSlyfield]

While some of the countries that are worse than the US are shitholes, the list of countries with more mass shootings per capita than the US includes Belgium(9th), Finland(8th), Switzerland(7th), France(3rd) and Norway(1st by a wide margin).

[Stephen Lathrop]

As usual, follow the link, to see how the cherry-picking gun enthusiast distorts what he presents. This is a particularly good one, because the linked article discusses as an example of bad statistical practice the very conclusions Slyfield offers above. Here is the discussion from the link:

As eye-opening as the CRPC study was, many statisticians believe the reason the results seem so counterintuitive is that they’re incorrect. One of the more detailed analyses appeared on the fact-checking website snopes.com and concluded that the CRPC report used “inappropriate statistical methods” which led to misleading results.

According to the snopes analysis, one of those inappropriate methods was the leaving out of the many European countries that had not experienced a single mass shooting between 2009-2015. This data would not have changed the position of the U.S. on the list, but its absence could lead a reader to believe—incorrectly—that the U.S. experienced fewer mass shooting fatalities per capita than all but a handful of countries in Europe. A more important oversight, again according to snopes, was the report's use of average deaths per capita instead of a more stable metric. Thanks to the smaller populations of most European countries, individual events in those countries had statistically oversized influence and warped the results. For example, Norway’s world-leading annual rate was due to a single devastating 2011 event, in which far-right extremist Anders Behring Breivik gunned down 69 people at a summer camp on the island of Utøya. Norway had zero mass shootings in 2009, 2010, 2012, 2013, 2014, and 2015.

An easy, though arguably insensitive, way to illustrate the shortcomings of this approach is to imagine it applied to the 9/11 attacks, which killed 2,977 people in the United States on a single day in 2001. Running that data through the CRPC formula yields the following statistic: Plane hijackings by terrorists caused an average of 297.7 deaths per year in the U.S. from 2001-2010. This is mathematically accurate, but it paints a badly distorted picture of what actually happened during those ten years.

In addition, the CRPC study went a step further and computed average annual deaths per capita. Critics argue this further warps the data, because Norway’s population is a fraction of the U.S. population. As a result, Norway’s death rate came out more than 20 times higher than that of the U.S.—which tallied 66 deaths in 2012 alone (nearly matching Norway's total for the full study) and averaged at least one death per month for the entire seven-year data set.

[Sarcastr0]

There are some people who are pretty silly about guns.

But they aren't a cult. Don't be silly.

[Brett Bellmore]

Tell George Will not to be silly, too, then.

[Sarcastr0]

He's not the one commenting here.

I will note your appeal to the authority of George Will is also silly.

[damikesc]

So, do not imprison people AND remove people's ability to defend themselves.

LIBERTARIANISM~!

[Sarcastr0]

You're half right.

Libertarians like gun rights.

But a libertarian who is into heavy use of imprisonment is not really much of a libertarian, don't you think?

[Brett Bellmore]

No, he was the one quoted above (By not guilty.) who I was mocking.

[Stephen Lathrop]

Bellmore, like incompetent gun nuts everywhere, you don't know what you are shooting at. You think you are shooting at Garry Wills, and you hit George Will by mistake. Then you brag about it.

That substandard alertness ought to disqualify you for guns, but glory be, not in this crapped-out violence-worshipping nation. Here, your incompetent gun-crazed idiocy just counts as normal.

By the way, did you read that Gary Wills piece? Or just mock it (via your, accidental, shoot-first-without-checking-the-target, potshot at bystander George Will) without reading. If you did read it, why aren't you sitting stunned, asking yourself, "How did I go so wrong?"

[wolfefan]

Are the teachers that he wants armed the same ones that he also says are busy indoctrinating students with CRT and grooming them?

[DaivdBehar]

Rev, anyone who liked the slaughter of our innocent children should thank the Supreme Court. It took over psychiatry to give 3 lawyers make work. Instead of medical necessity of involuntary treatment attested to by 2 unrelated doctors, a tribunal must conducted. It only happens after the person has done something physically harmful. The lawyer in the middle makes a decision about a subject he knowsnothing about. The majority of rampage killershave untreated psychosis. Now the shooter qualifies for treatment according to the Supreme Court. Only he and 14 people are dead. Thank the lawyer for almost all rampage killings.

[Intelligent Mr Toad]

Off-topic post (I can't wait for the usual Thursday open thread):

I'm gonna go out on a limb here, and say: I think the gun problem is more likely to be the deal-breaker of constitutional democracy than any other issue - that is, I think it's more likely than any other issue to drive Americans to accept an autocratic, unconstitutional response by the government. At this point, the proposition: "fixing this problem is more important than following the Constitution (as the current Supreme Court interprets it)" appeals more and more strongly to more and more people, even to people who, regarding all other questions, revere the Constitution.

Suppose a president, in the near future, were to say:

"Effectively immediately, I'm voiding the Second Amendment, and I'm going to start by banning private ownership of high-muzzle-velocity guns (except for members of the military on active duty, and a few very special elite law-enforcement people) and if anyone challenges me in court (or in any other forum or venue), I will summarily have that person arrested and thrown in prison, even if the person is a lawyer or a judge, and I will keep him there, separated from the general population of the prison, until my anti-gun policies are fully implemented and secure, and I will do the same to anyone who tries to help him get out, including any defense lawyer, or any other lawyer, or any judge. Furthermore, I will not recognize any legal or constitutional protections or rights for anyone who violates this new ban or any future restrictions on firearms I may choose to add. I know that this will be illegal and unconstitutional, but we are going to fix this problem now, no matter what the Constitution, or any other vestigial abstraction from before the industrial revolution, has to say about it."

I'm willing to bet that right now a large fraction of the public - maybe somewhere between 40% and 50% - would privately (or un-privately) think: "GOOD! We should have gone this way years ago."

I don't think this has been true of any other issue, at least, not since the 1950s.

[Rev. Arthur L. Kirkland]

We will beat the gun nuts — to a pulp, ideally — with better ideas, better people, ballots, legislative votes, and better laws.

[DaivdBehar]

Rev, what about the lawyer nuts who protect the insane and the criminal? If you do not like these ramapge killings, impeach the Supreme Court protecting the insane and the criminal.

[Brett Bellmore]

I really don't see how 'the gun issue' is going to be a deal breaker of the sort you imagine. That would require gun ownership to be both constitutionally protected AND radically unpopular. That last part is kind of important.

And you're just delusional about that last part. Haven't you watched over the last 20 years as the concealed carry movement marched across the country, winning at the ballot box in state after state? The anti-gun states and jurisdictions are outliers, Mr. Toad, in a country where people are generally quite comfortable with the legality of gun ownership.

So, suppose your President makes that statement? I expect he'd be impeached. Even your average Democratic member of Congress wouldn't be able to publicly justify leaving in office a President who openly announced his intention to shitcan the Constitution and start herding Americans into concentration camps.

[Martinned]

A minority of Americans care passionately about being able to own machine guns, are willing to weigh that heavily during elections and referendums, and make campaign donations on that basis. The question for Intelligent Mr Toad's prediction is how the (silent) majority feel about this issue.

My view: America has been in a low-level civil war for decades without anyone taking serious action to fix it.

I was doing the maths on the troubles in Northern Ireland the other day. About 3,500 deaths over 30 years works out to 58 per million population per year. US gun deaths are twice that. Even if you take out the suicides, you're still talking about a level of violence comparable to what made the UK government declare a state of war in Ulster. In the US, nobody does anything, and nobody will continue to do anything.

[Toranth]

You're right, the US should declare war.
A War on those doing almost all of the shootings.
And what would we call this War on the drug gangs?
Oh, I know!

We'll declare a War on Drugs! I'm sure that will go swimmingly.

[Intelligent Mr Toad]

Oops, I wrote "effectively" when I should have written "effective". My hands have "Dr. Strangelove syndrome". Sorry!

[F.D. Wolf]

Now that Cawthorn has lost his primary election, so his name will not be on the ballot regardless, it would seem this case is moot.

Regardless, I have yet to see a particularly compelling case that Section 3 was meant to have any future application and did not refer solely to past insurrection, namely the Civil War.

[not guilty]

The Court of Appeals indicated that the District Court could consider mootness upon remand.

[Brett Bellmore]

Perhaps you meant the Amnesty act, not Section 3?

[Armchair Lawyer]

Section 3 (of the 14th amendment) was really directed at ex-confederate officers. Otherwise the House has the ability to seat who it chooses to (and who it chooses not to). It doesn't need the courts to step in and play a role.

The key test case here is Victor Berger, Congressman from Wisconsin. Originally in office in 1910, he was voted out, but ran again in 1918 and won. Critically here, the House chose not to seat him, because he was found guilty violating the Espionage Act. Not the courts. The House's logic was he violated the 14th amendment. In the 1919 special election, Berger ran again, and won again, and the House didn't seat him again. The courts didn't disqualify him from running. And the House logic against seating him wasn't dependent on the court's ruling, but their own logic.

The Espionage case was overturned on appeal due to a technicality. But the House's logic against seating Berger still held...nothing there had changed. Yet in 1922 Berger ran again, and won again, and this time the House chose to seat him. There was never a law made (by 2/3rds of Congress) that "removed" his impediment to running.

Point being, if Berger really had been disqualified, he would've needed such a law to remove his disqualification. Ultimately Congress itself decided (via majority vote) who to seat and who not to.

[Brett Bellmore]

Well, yes, it clearly was directed at Confederate officers. OTOH, it was written in general terms, so that it would also apply to any future insurrections, too.

This contrasts with the Amnesty act, which not only was directed at Confederate officers, but was also worded in a way that indicated that it was only intended to apply to them, it used the past tense, and specifically exempted members of two sessions of Congress from the amnesty.

It's true that there's an argument Congress didn't need Section 3 to bar Confederates from serving in Congress. But I find it lacking.

First, of course, Section 3 applies to state offices, and federal offices other than Congress, so wouldn't be redundant even if Congress could exclude insurrectionists from their own number without it.

But, secondly, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members"; Section 3 made insurrection into an actual "qualification" Congress could judge.

I know we're used to extremely expansive interpretations of Congressional powers, under which Congress could judge somebody unqualified for membership in Congress for any reason or none at all, but that's not how they thought at the time; Congress would have been judging under that power whether the people elected met the actual, official qualifications for office, not inventing new ones on the fly. So Section 3 gave them an actual qualification to enforce against Confederates.

"There was never a law made (by 2/3rds of Congress) that "removed" his impediment to running."

Section 3 doesn't impose any impediment to running for office. Just holding it. Even if it applied to you, you could run for the office, and get elected, you just wouldn't be seated. As happened with Berger.

As I occasionally point out, the notion that the government has any authority to limit who people can vote for is of relatively recent origin.

But, anyway, they didn't need a law removing the disqualification, because the factual predicate for applying Section 3 to him had been removed when his conviction was overturned.

[StellaLink_the dog]

"Ultimately Congress itself decided (via majority vote) who to seat and who not to."

My understanding of the ruling in the Powell case is that Congress can only deny an elected candidate a seat by following the rules for expulsion, not just a majority vote. That is, since 1969, to deny a seat to clearly elected candidate requires the concurrence of two-thirds.

Judging elections is a different matter.

[Michael P]

I would bet courts will not dismiss it as moot because he could in theory be elected on a write-in campaign.

[Rev. Arthur L. Kirkland]

That is a good point.

[mydisplayname]

"seeking forgiveness" -- who did that?

Even today, I wonder. Are the "never Trump-ers" seeking forgiveness for their foibles? How many members of the academy have stepped forward to say "I followed the false flag of Hillary Clinton and for that I seek forgiveness!"? How many of the gullible now admit their wrongness and seek forgiveness?

No, forgiveness is most often unsought. The statue of Sherman still stands in New York... for the moment.