A Short Note on
Cawthorn v. Amalfi, No. 22-1251, 2022 WL 1635116, --- F. 4th ----
(4th Cir. May 24, 2022), Doc. No. 113
Circuit Judge Julius N. Richardson wrote a separate opinion, concurring in the appellate panel’s judgment. His opinion states in a footnote:
While Andrew Johnson’s pardon of [Jefferson] Davis eventually mooted the case, Chief Justice Chase went on the record anyway. He agreed with the defendant’s argument that § 3 [of the Fourteenth Amendment] was a punishment and that “it executes itself.” In re [Jefferson] Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871).
Slip op. 40, 60 n.16. Judge Richardson’s restatement of the facts of In re Davis is not quite correct. The “it executes itself” language appears in In re Davis, but it was not Chief Justice Chase who made the ‘it executes itself” statement. Rather (Judge) Robert Ould made this statement. (Apparently, Ould was himself a former confederate!)
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. Rather, Section 3 required a congressional statutory enforcement scheme to put that provision into effect. In re Davis was decided in 1867—also by Chief Justice Chase. If Chase has stated that Section 3 was self-executing in In re Davis, then his two positions in the two cases, decided two years apart, contradicted one another—all without any explanation. Indeed, Judge Richardson draws just that very conclusion in his concurrence: “These contradictory holdings, just a few years apart, draw both cases into question and make it hard to trust Chase’s interpretation.” Slip op. at 60 n.16. The error here is Judge Richardson’s (and others), not Chase’s.Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized.
 See In re Davis, 7 F. Cas. 63, 90 (“Judge Ould then commenced the argument . . . .” (emphasis added)); id. at 91 (“When Judge Ould concluded . . . .” (emphasis added)). The “it executes itself” language appears between the two quotations listed here.
 In re Davis was decided in 1867. Richardson’s citation for that case lists 1871. I do not suggest Richardson erred in regard to the date in his footnote. Nineteenth century court reporters were odd. For example, Ex parte Merryman was reported as a case heard by the Circuit Court for the District of Maryland. But that was only where the decision was filed. It was not actually a decision of the Circuit Court.
Seth Barrett Tillman, ‘A Short Note on Cawthorn v Amalfi,’ New Reform Club (May 25, 2022, 5:38 AM), <https://reformclub.blogspot.com/2022/05/a-short-note-on-cawthorn-v-amalfi.html>;
See also Josh Blackman and S. B. Tillman, Opinion Editorial, ‘Only the Feds Could Disqualify Madison Cawthorn and Marjorie Taylor Greene,’ The New York Times, Apr. 23, 2022, A22, <https://www.nytimes.com/2022/04/20/opinion/madison-cawthorn-marjorie-taylor-green-section-3.html?searchResultPosition=1>, <https://tinyurl.com/59s8c6er>, <http://ssrn.com/abstract=4086516>.