A three-judge panel in the Fourth Circuit Court of Appeals ultimately rejected the judge’s interpretation of the 1872 law—though it declined to either disqualify Cawthorn himself or delve into Section Three in greater detail. (Cawthorn was later defeated in a GOP primary, which made the entire matter moot.) But the issue will arise again as the 2024 presidential election creeps closer. And it will only take a single state or local election official’s invocation of Section Three to make it a live controversy for the courts to resolve.
To that end, Baude and Paulsen stress that Section Three is still the law of the land. They dispel counter-arguments made by other legal scholars that the provision is a dead letter, or that it is no longer applies outside of its historical context. “While evidence of intention, usage, purpose, and political context can assist in ascertaining the meaning of the enactment, it is that objective meaning that constitutes the law, not the ostensible purposes or motivations that supposedly lay behind it. This is ‘originalism,’ our system’s basic method for interpreting the Constitution and its amendments.”
Most importantly, they make a compelling case for its urgency. “Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution,” the authors argued. “It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies.”