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).
Cawthorn, slip op. 40, 60 n.16 (Richardson, J., concurring). 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.[fn1] (Apparently, Ould was himself a former confederate!)
Why is this apparently minor error in Cawthorn important?
In 1869, in Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) (No. 5,815), 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 also by Chief Justice Chase—that is, Chase presided over the court and Judge Underwood also sat on the two-judge panel. If Chase had stated that Section 3 was self-executing in In re Davis, then his two positions, in the two cases, decided within about two years of one another, were (arguably) in tension with one another—all without any reported explanation. Indeed, Judge Richardson, in his concurrence, draws just that very inference: “These contradictory [!] holdings, just a few years apart, draw both cases into question and make it hard to trust Chase’s interpretation.” Cawthorn, slip op. at 60 n.16 (Richardson, J., concurring). However, the error here is Judge Richardson’s (and, perhaps, others[fn2]), not Chase’s.
Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized. 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[fn3] 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.
Furthermore, if Griffin’s Case is good law or correctly states the law, then the Cawthorn plaintiffs lack a cause of action, as do other similarly situated plaintiffs in other Section 3 cases. If the plaintiffs lack any valid or cognizable cause of action, then the federal courts lack jurisdiction to hear the case. In those circumstances, jurisdiction should have been discussed prior to any discussion of Cawthorn’s Amnesty Act defense (and the plaintiffs’ responses to that defense), and the entire case should have been dismissed for lack of jurisdiction. So Judge Richardson’s footnote was not gratuitous; rather, it was a necessity: it was needed to obviate the arguably obvious jurisdictional flaw—i.e., Section 3 is not “self-executing.”
Finally, in the same footnote, Judge Richardson states: “Between the shifting legal conclusions, [Chief Justice] Chase’s pragmatic political concerns, and the obvious conflicts of interest, I do not take his discussion as much evidence of broader contemporary understanding [of Section 3 of the Fourteenth Amendment].” Cawthorn, slip op. at 60 n.16 (Richardson, J., concurring) (emphasis added). Richardson’s concurrence supplies no information what those purported “conflicts of interest” were, or how they were “obvious.” Why do this?
 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. Ould was acting as counsel in Davis.
 See, e.g., Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comm. 87, 88 (2021) (“Jefferson Davis contended in 1868 that Section Three was self-executing and barred his treason prosecution, and Chief Justice Salmon P. Chase agreed with those arguments as a circuit judge presiding over the proceedings in Virginia.” (emphasis added)), <https://conservancy.umn.edu/handle/11299/221946>. Professor Magliocca cites to page 102 of the Federal Cases report of In re Davis, but I see nothing at that page establishing that Chase adopted the position that the Fourteenth Amendment was self-executing. Perhaps, at some future juncture, Magliocca will clarify the specific language in In re Davis that he was referring to? See Magliocca, supra, at 88 n.8 (citing In re Davis, 7 F. Cas. at 102).
 Where the position is a state position, different legal principles (beyond this scope of this blog post) come into play. President, Vice President, Representative, and Senator—all are federal positions, even if elected in state or intra-state elections.
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>.