May 25, 2022

SETH BARRETT TILLMAN: A Short Note on Cawthorn v. Amalfi. “Why is this apparently minor error in Cawthorn important? In 1869, in Griffin’s Case, Chief Justice Chase explained that Section 3 of the Fourteenth Amendment was not self-executing. . . . To put it another way, if Griffin’s Case was correctly decided, then state and federal executive branch officers (and other applicants in ballot contests) cannot rely on Section 3 of the Fourteenth Amendment to disqualify an alleged insurrectionist candidate from the ballot for a federal position[3] absent federal statutory authorization. Apparently, no such federal statutory authorization (now) exists. Likewise, if an alleged insurrectionist already holds a federal office, then federal executive branch officers cannot remove the person from office (e.g., in quo warranto proceedings) based on Section 3 absent federal statutory authorization to do so.”

Then, of course, there’s the absence of any actual insurrection.

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