One Observation About Cawthorn v. Circosta

On Tuesday the Fourth Circuit held that the Amnesty Act of 1872 did not extend prospective relief under Section Three of the Fourteenth Amendment to any and all future insurrectionists. I hope that this opinion will extinguish the preposterous contrary argument, which is a distraction from the main issues in the current and future Section Three challenges.

I want to make one further observation about the separate opinion if Judge Richardson, who concurred in the judgment. In Footnote 16, he states that In Re Griffin, a Section Three case decided on circuit by Chief Justice Chase in 1869, is "too confused and confusing to help much." He then explains why that is so at some length, drawing on my law review article and on other scholarly sources. I agree that Griffin is an unhelpful source of authority and should not be relied upon in future Section Three cases.