Trump v. Anderson: Amici Curiae Briefs

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Part 1 of 2

No. 23-719

In the Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.

-- The Sweep and Force of Section Three, by William Baude & Michael Stokes Paulsen, 172 U. PA. L. REV. (forthcoming 2024), 8/9/23

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF COLORADO

BRIEF OF AMICI CURIAE AMERICAN HISTORIANS IN SUPPORT OF RESPONDENTS

January 29, 2024

JONATHAN B. MILLER
Counsel of Record
JOSHUA A. ROSENTHAL
MICHAEL ADAME
EUSHRAH HOSSAIN
PUBLIC RIGHTS PROJECT
490 43rd Street, Unit #115
Oakland, CA 94609
(510) 738-6788
[email protected]

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST .................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ................................................................ 2
ARGUMENT ................................................................ 4
I. THE ORIGINS OF SECTION THREE ........... 4
A. From the Start of the Civil War, the Federal Government Took Steps to Ensure Loyalty and Disqualify Insurrectionists in its Midst ........................ 4
B. At the End of the War, Disqualification Became a Pressing Concern as Insurrectionists Were Elected to Congress ....................................................... 9
II. THE DRAFTING AND RATIFICATION OF SECTION THREE .................................... 15
A. A Congressional Inquiry Discovered Widespread Rebelliousness in the South .......................................................... 15
B. The Development of Section Three Demonstrates Congress’s Intent to Make Disqualification Targeted and Permanent .................................................. 20
C. Southern States Resisted Ratification, in part, Because of the Disqualification of ex-Confederates ..................................... 24
III. THE PERSISTENCE OF SECTION THREE ............................................................ 26
A. The Jefferson Davis Case Showed That Section Three Required No Criminal Conviction and Was Self-Executing .......... 27
B. Requests for Amnesty Underscore the Broad and Immediate Impact of Section Three .......................................................... 30
CONCLUSION ........................................................... 33

TABLE OF AUTHORITIES

CASES

In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869) ...... 29, 30

CONSTITUTIONS AND STATUTES

U.S. Const. amend.
XIV, § 3 .......................... 2-4, 15, 18-22, 24-30, 32-34

N.Y. Const. of 1777, art. XXXIII ............................... 20

Act of Feb. 16, 1787, ch. VI, 1787 Mass. Acts 555 .... 20

Act of July 2, 1862, ch. 128, 12 Stat. 502. ................... 7

Act of May 22, 1872, ch. 193, 17 Stat. 142 ................ 32

Act of June 6, 1898, ch. 389, 30 Stat. 432 ................. 33

Act To Remove the political disabilities of Colonel John Taylor Wood, Febr. 11, 1897, 54th Congr., ch. 17, 29 Stat. 801 ................................................ 33

Second Confiscation Act, ch. 195, Sec. 1, 12 Stat. 589 (July 17, 1862). ................................................. 7

OTHER AUTHORITIES

HERMAN V. AMES, PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY (US Gov. Printing Office, 1897) ............................................ 21

Belleville Advocate, May 7, 1880 .............................. 33

Bill, 39th Cong., Feb. 16, 1866 .................................. 20

Bill, 39th Cong., Feb. 19, 1866 .................................. 20

Bill, 39th Cong., Mar. 8, 1866 ................................... 20

Bill, 39th Cong., Mar. 19, 1866 ................................. 20

Blackhawk, M., Carpenter, D., Resch, T. and Schneer, B., Congressional Representation by Petition: Assessing the Voices of the Voteless in a Comprehensive New Database, 1789–1949, Legislative Studies Quarterly (2021), https://doi.org/10.1111/lsq.12305 .......................... 13

WILLIAM A. BLAIR, WITH MALICE TOWARD SOME: TREASON AND LOYALTY IN THE CIVIL WAR ERA (2014) ................................................ 10, 14

DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN AMERICAN MEMORY (2001) ........................ 29

Buffalo Morning Express, Apr. 28, 1882 .................. 33

Burlington Weekly Hawkeye, Jan. 20, 1876 ............ 32

Charleston Mercury, Nov. 8, 1860 .............................. 4

Chicago Tribune, Jan. 12, 1876 ................................. 32

Cong. Globe, 36th Cong., 2d Sess. (1860) ................... 5

Cong. Globe, 37th Cong., 2d Sess. (1862) ................... 7

Cong. Globe, 38th Cong. 1st Sess. (1864) ................. 14

Cong. Globe, 39th Cong., 1st Sess. (1866) .............................. 3, 18-24, 28, 34

Cong. Globe, 42nd Cong., 2d Sess. (1872) ................. 31

44 Cong. Rec. 325 (1876) ........................................... 32

Jefferson Davis, 3 Jefferson Davis, Constitutionalist: His Letters, Papers, and Speeches (1923) ...................................................... 29

Jefferson Davis, First Inaugural Address (Feb. 18, 1861) ................................................................... 5 v

Frederick Douglass, The Progress of the War, IV Douglass’s Monthly, Sept. 1861 .............................. 7

DREW GILPIN FAUST, THIS REPUBLIC OF SUFFERING: DEATH AND THE AMERICAN CIVIL WAR (2008) ............................................................. 10

ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863-1877 (1988) .. 15, 26

ERIC FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION (2019) ............................................. 18

Gallipolis Journal, Feb. 21, 1867 .............................. 25

Ulysses S. Grant, Third Annual Message to Congress, Dec. 4, 1871 ........................................... 31

H.R. Journal, Jan. 5, 1869 ......................................... 30

H.R. Journal, Feb. 9, 1869 ......................................... 30

HAROLD MELVIN HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION (1954) ............ 5, 7, 9, 10

ROBERT ICHENHAUER-RAMIREZ, TREASON ON TRIAL: THE U.S. V. JEFFERSON DAVIS (2019) ........... 9

Joseph B. James, Southern Reaction to the Proposal of the Fourteenth Amendment, 22 J. of Southern History 477 (1956) ............................. 25

BENJAMIN B. KENDRICK, ED., THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, 39TH CONGRESS, 1865-1867 (1914) ...................................................................... 15

Jill Lepore, What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President, The New Yorker, Dec. 4, 2023 ............................... 28

Francis Lieber, Lieber to Sumner, November 8, 1865, Charles Sumner Papers, Houghton Library, Harvard University and available at https://dpul.princeton.edu/microfilm/catalog/dc 6m312077g ............................................................. 12

Abraham Lincoln, First Inaugural Address (Mar. 4, 1861) ..................................................................... 3

GERARD N. MAGLIOCCA, AMERICAN FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE FOURTEENTH AMENDMENT (2013) .................. 18

Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Commentary 87 (2021). ................................... 30, 31

Gerald N. Magliocca, Shooting Fish in a Barrel: The Presidency and Section 3, Balkinization (Jan. 2, 2024), https://balkin.blogspot.com/#767468603544 1372191 ............................................................ 25, 32

JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA (1989) ...................................... 2

Milwaukee Sentinel, July 26, 1865 ........................... 12

1 Frank Moore, Speech of A. H. Stephens in Rebellion Record: A Diary of American Events, with Documents, Narratives, Illustrative Incidents, Poetry, etc. (New York: 1861) ................ 5

WILLIAM NELSON, THE FOURTEENTH AMENDMENT (1988) ...................................................... 2, 11, 17, 24

N.Y. Herald, Nov. 23, 1867 ........................................ 28

N.Y. Times, Feb. 14, 1861 ............................................ 5

CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS (2017) ............................................................ 9, 28, 29

Petition, 39th Cong. Feb. 13, 1866 ............................ 13

Petition, 39th Cong. Feb. 14, 1866 ............................ 13

Petition, 39th Cong., Feb. 19, 1866 ........................... 13

Petition, 39th Cong., Feb. 20, 1866 ........................... 13

Petition, 39th Cong., Mar. 5, 1866 ............................ 13

Petition, 39th Cong., Mar. 9, 1866 ............................ 14

Petition, 39th Cong., Mar. 16, 1866 .......................... 13

Petition, 39th Cong., Mar. 19, 1866 .......................... 13

Petition, 39th Cong., Mar. 23, 1866 .......................... 14

Petition, 39th Cong., Apr. 4, 1866 ............................. 13

Petition, 39th Cong., Apr. 5, 1866 ............................. 13

Philadelphia Inquirer, Apr. 2, 1868 ............................ 9

Public Ledger, Oct. 3, 1871 ........................................ 30

Report of the Joint Committee on Reconstruction (1866) .......................................... 3, 11, 12, 16, 17, 23

Richmond Dispatch, Nov. 26, 1867 ........................... 28

S. Exec. Doc., 39th Cong., 1st Sess., No. 2, p. 13 (1866) (report by Gen. Carl Schurz) ..................... 11

S. Journal, 36th Cong., 2d Sess. 63 (1860) ................. 5

Sioux City Daily Journal, Mar. 5, 1879 .................... 33

MANISHA SINHA, THE RISE AND FALL OF THE SECOND AMERICAN REPUBLIC, 1860-1920 (2024) .. 18

Charles Sumner, Oath for Senators in Works, Jan. 25, 1864 ............................................................ 8

The Amendments Project, edited by Jill Lepore and Tobias Resch, 2023, https://amendmentsproject.org ............................. 13

JOHN FABIAN WITT, LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY (2012) ............. 25, 27

STATEMENT OF INTEREST

Amici curiae are distinguished scholars whose expertise includes the histories of federal constitutional amendment, the laws of war, and the Civil War and Reconstruction.1

1. No party or counsel for a party authored the brief in whole or in part. No person, other than amici or their counsel, made a monetary contribution intended to fund the preparation or submission of the brief. University affiliation of amici is provided for identification purposes only.

All amici are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both.

Jill Lepore is the David Woods Kemper ’41 Professor of History at Harvard University and director of the Amendments Project, a digital historical archive. Her fourteen books include the internationally acclaimed These Truths: A History of the United States (2018).

David Blight is the Sterling Professor of History and African American Studies at Yale University, the author of Race and Reunion: The Civil War in American Memory (2011) and winner of the Pulitzer Prize for Frederick Douglass: Prophet of Freedom (2018).

Drew Gilpin Faust is President Emerita of Harvard University and the Arthur Kingsley Porter University Professor. Her books include This Republic of Suffering: Death and the American Civil War (2008), a finalist for the National Book Award.

John Fabian Witt is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School and the author of Lincoln’s Code: The Laws of War in American History (2012).

Amici’s interest in this appeal arises from the gravity of the case before the Court and the necessity of grounding any decision in a proper historical understanding of Section Three of the Fourteenth Amendment. As eminent American historians with expertise in the relevant era, actors, and events, amici are well qualified to assist the Court by establishing the original intent, meaning, and public understanding of the Disqualification Clause.

INTRODUCTION AND SUMMARY OF ARGUMENT

In the aftermath of the Civil War, Congress devised the Disqualification Clause of the Fourteenth Amendment out of concern that office-holders who had violated their oaths to the Constitution would reassume positions of authority, destabilize state and federal governments, and suppress freedom of speech. The Republican framers of the Amendment believed that anything short of the disqualification of insurrectionists risked surrendering the government to anti-Constitutionalist rebels.2

2 See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA (1989).

In a speech in 1866, Benjamin Butler, soon afterward elected to Congress, declared that secessionists had left their offices “for the purpose of destroying this government” and “now desire to return to their seats for the same purpose.”3

3 WILLIAM NELSON, THE FOURTEENTH AMENDMENT, at 41–42 (1988) (quoting Benjamin Butler, Aug. 1866).

“Plainly, the central idea of secession is the essence of anarchy,” Lincoln had said in his First Inaugural Address.4

4 Abraham Lincoln, First Inaugural Address (Mar. 4, 1861).

Five years and seven hundred thousand war deaths later, the framers of the Fourteenth Amendment hoped not only to prevent a resurgence of secessionism but also to protect future generations against insurrectionism. An early draft of Section Three limiting its reach to those who had participated in “the late insurrection” was eliminated in favor of language that disqualified both past and future insurrectionists who had taken an oath to uphold the Constitution. “This is to go into our Constitution and to stand to govern future insurrection as well as the present,” said one senator during floor debate.5

5 Cong. Globe, 39th Cong., 1st Sess., 2900 (1866) (remarks of Sen. Van Winkle).

Without a disqualification clause that would endure, a Congressional committee warned, “flagrant rebellion, carried to the extreme of civil war,” would become “a pastime.” Future insurrections could be defeated by force of arms but “the battle may be still fought out in the legislative halls of the country.”6

6 Report of the Joint Committee on Reconstruction, at xi (1866).

Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility. Its framers intended Section Three: (1) to automatically disqualify insurrectionists; (2) to apply not only to the Civil War but also to future insurrections; and (3) to bar anyone who has betrayed an oath to uphold the Constitution from becoming President of the United States. It remains in place and in force today.

ARGUMENT

I. THE ORIGINS OF SECTION THREE

During the Civil War, concern about Confederate sympathizers in government posts led Congress to conduct investigations, employ oaths and loyalty tests, and remove individuals from office. At the end of the war, as ex-Confederate leaders attempted to assume positions in state and federal governments, Congress considered whether and how to bar them from office.

A. From the Start of the Civil War, the Federal Government Took Steps to Ensure Loyalty and Disqualify Insurrectionists in its Midst

When Abraham Lincoln was elected on November 6, 1860, many Democrats in the South refused to accept the outcome. “The election of Lincoln is the dissolution of the Union,” a Charleston, South Carolina, newspaper announced, urging citizens, “the sooner we arm and organize the better.”7

7 Charleston Mercury, Nov. 8, 1860.

On November 13, the South Carolina legislature called for a convention to consider secession. Constitutional amendments designed to appease secessionists illustrate their demands. Mississippi senator Jefferson Davis introduced an amendment that would have established owning human beings as a constitutional right, guaranteed the extension of slavery to the territories, and reinforced the Fugitive Slave Clause.8

8 S. Journal, 36th Cong., 2d Sess. 63 (1860).

Tennessee Congressman Andrew Johnson proposed that half the justices on the Supreme Court should be from slave states, and half from free states.9

9 Cong. Globe, 36th Cong., 2d Sess. 82–83 (1860).

Georgia secessionists demanded a constitutional amendment reading, “No person of African descent shall be permitted to vote for Federal Officers, nor to hold any office or appointment under the government of the United States.”10

10 Journal of the Public and Secret Proceedings of the Convention of the People of Georgia (Milledgeville, GA), Jan. 16, 1861, at 18.

In February of 1861, delegates from seceding states convened in Montgomery, Alabama, formed the Confederate States of America, and elected Jefferson Davis president. They drafted a constitution that, as the Confederacy’s vice president Alexander H. Stephens proclaimed, established that “subordination to the superior race” is the “natural and moral condition” of Africans and their descendants.11

11 1 Frank Moore, Speech of A. H. Stephens in Rebellion Record: A Diary of American Events, with Documents, Narratives, Illustrative Incidents, Poetry, etc., 45–46 (New York: 1861).

In Washington, on the day slated for the Electoral College certificates to be counted at the Capitol, a pro-southern mob assembled and there were fears of what the New York Times described as “plots to take the city, blow up the public buildings, and prevent the inauguration of Lincoln.”12

12 N.Y. Times, Feb. 14, 1861.

Days later, Davis delivered his inaugural address in Montgomery, declaring that the Confederate Constitution differed “only from that of our fathers in so far as it is explanatory of their well-known intent,” which he claimed was to sanction slavery.13

13 Jefferson Davis, First Inaugural Address (Feb. 18, 1861).

The outbreak of war in April 1861 raised the question of the loyalty of office-holders. Within weeks of Confederate forces firing on Fort Sumter, Lincoln’s attorney general proposed that “all the employees of the Department—from the head Secretary to the lowest messenger, be required to take, anew, the oath of allegiance.”14

14 HAROLD MELVIN HYMAN, ERA OF THE OATH: NORTHERN LOYALTY TESTS DURING THE CIVIL WAR AND RECONSTRUCTION, at 1 (1954).

Northerners undertook to purge Confederate sympathizers from positions of authority both inside and outside of government and, in mass meetings, called upon Congress to do the same. Newspaper reporters were required to take loyalty oaths; so were telegraph operators. In July, Congress established a committee, headed by Wisconsin Republican John F. Potter, to investigate disloyalty within the federal government. In August, Lincoln signed a bill establishing a new loyalty oath for all civil servants.15

15 Id. at xii–xiv, 1, 2, 13, 18.

Yet Frederick Douglass charged that many Confederate sympathizers remained within the federal government “where they could be of the utmost service to the rebels.”16

16 Frederick Douglass, The Progress of the War, IV Douglass’s Monthly, Sept. 1861, at 513.

The Potter Committee investigated some 500 federal government employees; many were forced to leave their positions.17

17 See Hyman, supra n.14, at 7.

After the Committee published its report in January 1862, Congress ruled that “no pension shall be paid … to any person who has engaged in the present rebellion … or who has in any way given aid and comfort to those engaged in the rebellion.”18

18 Cong. Globe, 37th Cong., 2d Sess., Appx., 334 (1862)

In July, Congress passed an act requiring the swearing of a new oath by “every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military or naval department of the public service, excepting the President of the United States.” Known as the Ironclad Oath, it read, in part:

I, A B, do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto.19

19 Act of July 2, 1862, ch. 128, 12 Stat. 502.

Two weeks later, Lincoln signed the Second Confiscation Act. “[E]very person who shall hereafter commit the crime of treason against the United States,” the statute provided, “shall suffer death.”20[/quote]

20 Second Confiscation Act, ch. 195, Sec. 1, 12 Stat. 589 (July 17, 1862).

A second offense outlined in the Act punished persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection.”21

21 Id. at Sec. 2.

Finally, the Act provided that “every person found guilty of either of the offenses described in this act shall forever be incapable and disqualified to hold any office under the United States.”22

22 Id. at Sec. 3.

This language (“incite… assist or engage… give aid or comfort”) and these measures established both the meaning and consequences of insurrection.

Questions of loyalty and qualification for office intensified as the war neared its end and Congress considered how to reconstruct the Union. In 1864, Congress passed the Wade-Davis Bill, which would have required a majority of all white men in any state in the former Confederacy to take the Ironclad Oath before readmission to the Union; Lincoln pocket-vetoed the bill. Republicans in Washington remained concerned about ex-Confederates returning to office. “It is our duty to guard the loyalty of this chamber,” insisted Massachusetts senator Charles Sumner.23

23 Charles Sumner, Oath for Senators in Works, Jan. 25, 1864 at 8: 53–57.

“We can manage the traitors in our front,” a Union veteran wrote to Illinois senator Lyman Trumbull, “if you will keep them out of the Legislative Halls of our Government.”24

24 See Hyman, supra n.14, at 84 (quoting a letter written by W. F. Munroe to Lyman Trumbull, dated June 18, 1864).

B. At the End of the War, Disqualification Became a Pressing Concern as Insurrectionists Were Elected to Congress

After Appomattox, Congress determined to use its power to bring order from chaos. This meant, by design and necessity, the creation of civil and political rights for the freed people, the disqualification of former rebels, and the prevention of future insurrections.

Robert E. Lee surrendered to Ulysses S. Grant on April 9, 1865; days later, Lincoln was assassinated. Union troops captured Jefferson Davis in Georgia in May; he was charged with treason. If Davis could not be convicted of treason, the Philadelphia Inquirer remarked, “we may as well ... expunge the word at once from our dictionaries.”25

25 Philadelphia Inquirer, Apr. 2, 1868.

But Davis’s trial was repeatedly delayed, partly out of fear that Davis would use a trial to argue the constitutionality of secession. With his case unresolved, other treason prosecutions were put on hold.26

26 CYNTHIA NICOLETTI, SECESSION ON TRIAL: THE TREASON PROSECUTION OF JEFFERSON DAVIS (2017); ROBERT ICHENHAUER-RAMIREZ, TREASON ON TRIAL: THE U.S. V. JEFFERSON DAVIS (2019).

After so terrible a war, few Americans had an appetite for mass trials and executions. “I would deprive them of power but not of life,” wrote abolitionist Lydia Maria Child to a Republican congressman from Indiana.27

27 WILLIAM A. BLAIR, WITH MALICE TOWARD SOME: TREASON AND LOYALTY IN THE CIVIL WAR ERA, at 268 (2014) (quoting a letter from Lydia Maria Child to George W. Julian dated Apr. 8, 1865).

Many also lost their nerve for prosecuting Davis. While the nation grieved its staggering wartime losses, President Johnson, driven by his bedrock beliefs in states’ rights and white supremacy, sought the swift readmission of the former Confederacy and pursued a policy of leniency and pardon.28

28 On the scale and impact of the losses, see DREW GILPIN FAUST, THIS REPUBLIC OF SUFFERING: DEATH AND THE AMERICAN CIVIL WAR (2008).

He hoped to convince Congress to abandon the Ironclad Oath, which made making federal appointments in the South nearly impossible. An agent wrote to the President from Wilmington, about men seeking positions, that “like nearly everybody in North Carolina, from 17 to 55 years of age, they may have in some form or other been mixed up with the rebellion.”29

29 See Hyman, supra n.14, at 55.

The more generous Johnson’s pardons, and the clearer it became that prominent ex-Confederates were not likely to be prosecuted for treason, the more concerned became Congress about their possible return to power. In 1865 and early 1866, reports reached Washington that secession was “rampant again” in the South and that white Southerners were “more out & out rebels than they were in 1861.”30

30 See Nelson, supra n.3, at 41 (quoting a letter from William Mithoff to John Sherman, dated Dec. 17, 1865 and a letter from John Kirkwood to Salmon P. Chase, dated Dec. 4, 1865).

Ex-Confederates founded the Ku Klux Klan in December 1865.“Treason does, under existing circumstances, not appear odious in the south,” former Union major general Carl Schurz reported, and “there is as yet among the southern people an utter absence of national feeling.”31

31 S. Exec. Doc., 39th Cong., 1st Sess., No. 2, p. 13 (1866) (report by Gen. Carl Schurz) (emphasis in original).

Reports circulated widely about the suppression of freedom of speech. “Northern men have been subjected to the Gun knife the pistol the rope & tar & feathers for opinion sake all over the South,” one correspondent informed Ohio senator John Sherman.32

32 See Nelson, supra n.3, at 42 (quoting a letter from M. Stone to John Sherman dated Dec. 27, 1865).

Southern states began passing Black Codes, restricting the rights of freed people. Equally common were reports of white Southerners’ violent campaign to reduce newly freed Black Americans, as one Union commander testified, “to a condition which will give the former masters all the benefits of slavery.”33

33 Report of the Joint Committee on Reconstruction at 142 (testimony of General Alfred H. Terry).

Disqualification grew in urgency when, in elections held in the fall of 1865, two former Confederate senators and four former Confederate congressmen were elected to the Thirty-Ninth Congress. “The members from the Southern States who will come to Washington asking for seats in Congress next winter, will be in sympathy with all there is left of treason at the South,” a Milwaukee newspaper reported.34

34 Milwaukee Sentinel, July 26, 1865.

In November, Columbia constitutional law professor Francis Lieber, who had written the laws of war for the Union Army and had also proposed a series of constitutional amendments, wrote to Sumner to sound an alarm by asking whether, in the event that Jefferson Davis were not convicted of treason, “is he not, in that case, completely restored to his citizenship, and will he not sit by your side again in the Senate? And be the Democratic candidate for the next presidency? I do not joke.”35

35 Francis Lieber, Lieber to Sumner, November 8, 1865, Charles Sumner Papers, Houghton Library, Harvard University and available at https://dpul.princeton.edu/microfilm/catalog/ dc6m312077g (frames 29–30).

In January, these fears were all but realized when the Democrat Alexander H. Stephens, the former vice president of the Confederacy, was elected to the U.S. Senate. The clerk of Congress refused to call the names of the ex-Confederates at roll and they were never seated. The Joint Committee on Reconstruction resolved to devise a means beyond the Ironclad Oath to bar “from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.”36

36 Report of the Joint Committee on Reconstruction, at xviii.

The public, too, clamored for a means to disqualify ex-insurrectionists. Groups of citizens from all over the country presented petitions to Congress urging security “against a renewed attempt to secede,” many signed by hundreds of people, including from Illinois,37

37 Petition, 39th Cong. Feb. 13, 1866; The Amendments Project, edited by Jill Lepore and Tobias Resch, 2023, https://amendmentsproject.org, Record No. p_s58-p42_00017 (last accessed Jan. 28, 2024). Record Source: Blackhawk, M., Carpenter, D., Resch, T. and Schneer, B., Congressional Representation by Petition: Assessing the Voices of the Voteless in a Comprehensive New Database, 1789–1949, Legislative Studies Quarterly, 46: 817–49 (2021), https://doi.org/10.1111/ lsq.12305]. Unless otherwise indicated, all petitions cited are from this dataset.

Indiana,38

38 Petition, 39th Cong. Feb. 14, 1866, Record No. p_s58- p43_00003.

Maine,39

39 Petition, 39th Cong., Feb. 19, 1866, Record No. p_s58- p46_00019; Petition, 39th Cong., Apr. 5, 1866, Record No. p_s58-p77_00003.

Massachusetts,40

40 Petition, 39th Cong., Feb. 20, 1866, Record No. p_s58- p47_00024; Petition, 39th Cong., Mar. 5, 1866, Record No. p_s58-p55_00019.

New Jersey,41

41 Petition, 39th Cong., Mar. 5, 1866, Record No. p_s58- p55_00011.

New York,42

42 Petition, 39th Cong., Feb. 13, 1866, Record No. p_s58- p42_00024; Petition, 39th Cong., Mar. 19, 1866, Record No. p_s58-p65_00000.

Ohio,43

43 Petition, 39th Cong., Apr. 4, 1866, Record No. p_s58- p76_00020; Petition, 39th Cong., Mar. 16, 1866, Record No. p_s58-p64_00000; Petition, 39th Cong., Mar. 5, 1866, Record No. p_s58-p55_00004.

and Wisconsin.44

44 Petition, 39th Cong., Mar. 23, 1866, Record No. p_s58- p69_00020.

One hundred and fifty-one citizens of Bucksport, Maine, submitted a petition requesting that the House “impose such conditions upon the Rebel States, as shall punish treason—at least with ineligibility to office and loss of power, and reward loyalty with confidence and honor.”45

45 See Blair, supra n.27, at 296–97 (petition of N. T. Hill and 150 Others, Bucksport, Maine, Mar. 12, 1866, from Chester, Pa., Mar. 5, 1866, and from Lewis Holmes and Others from Bridgewater, Mass., Mar. 2, 1866, RG 233, Committee on the Judiciary, Petitions and Memorials, NARA).

Other petitions adopted different language, including one asking Congress to devise a constitutional amendment providing “that no person who has been engaged in the late rebellion shall ever be eligible to any office of honor, trust, or profit under the government.”46

46 Petition, 39th Cong., Mar. 9, 1866, Record No. p_s58- p59_00003; see also Petition, 39th Cong.., Mar. 9, 1866, Record No. p_s58-p59_00005.

The challenge confronting Congress at the end of the war, according to Massachusetts senator Henry Wilson, was to deprive both the leaders of the former Confederacy and any future insurrectionists of power in such a way, and with such permanence, that “the curse of civil war may never be visited upon us again.”47

47 Cong. Globe, 38th Cong. 1st Sess., 1203 (1864).

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Part 2 of 2

II. THE DRAFTING AND RATIFICATION OF SECTION THREE

After the war, a congressional investigation uncovered substantial and disturbing evidence of continued hostility in the southern states. Congress drafted Section Three out of concern about the security of the republic and, in revision, both strengthened and extended it. The bite of Section Three contributed to the initial refusal of the states of the former Confederacy to ratify the Fourteenth Amendment.

A. A Congressional Inquiry Discovered Widespread Rebelliousness in the South

When the Thirty-Ninth Congress began its second session in December 1865, it immediately confronted the problem of the return to power of ex-Confederates. To address this and other challenges of Reconstruction, including the vital matters of equal citizenship and representation, Congress established a fifteen-man Joint Committee on Reconstruction.48

48 See BENJAMIN B. KENDRICK, ED., THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON RECONSTRUCTION, 39TH CONGRESS, 1865-1867 (1914); ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863-1877, at 246–47, 252–61 (1988).

Inquiring into conditions in the South, the Joint Committee heard testimony from 145 witnesses, including military leaders, elected officials, federal judges, former Confederates, and Black freedmen. It sought to determine whether the readmission to the Union of the states of the former Confederacy “should only be granted upon certain conditions and guarantees which would effectually secure the nation against a recurrence of evils so disastrous as those from which it had escaped at so enormous a sacrifice.”49

49 Report of the Joint Committee on Reconstruction, at x.

A representative example from the more than 800 pages of testimony is that of J. W. Alvord, who worked for the Freedman’s Bureau. He was questioned about conditions in Virginia and in other southern states.

Question. Now state what, among the rebel people, is the general feeling towards the Government of the United States.

Answer. It is hostile, as it seems to me, in the great majority of the southern people. I mean that part of them who were engaged in the rebellion. There is evidently no regret for the rebellion, but rather a defence of it. …

Question. What great object do they seem to contemplate in their being readmitted to Congress by their senators and representatives?

Answer. They seem to suppose that by re-admission they can get political power and obtain again the supremacy which they once had, and with the exception of slavery, they expect to be still a prosperous and dominant portion of our government. Slavery they have given up in the old form, but they want to subdue and keep in a low place the negroes, by some compulsion which it seems to me they are trying to effect not only privately but by all the legislation that I learned of or witnessed.50

50 Id. at 242–43 (testimony from Virginia, North Carolina, and South Carolina, including the testimony of J.W. Alvord).

From across the South, the testimony tended in the same direction. To the question, “If they could have their way would the rebel people generally remain in the Union?” a tax commissioner answered, “No; I think they have a stronger aversion and dislike of the Union than when they seceded.”51

51 Id. at 21 (testimony from Virginia, North Carolina, and South Carolina, including testimony of John Hawkshurst).

Asked what accounted for this aversion in Mississippi, a major general answered, “Their greatest antipathy seems to arise from the fact that the negro has been employed against them, and that they cannot control them now as they please.”52

52 Id. at 5 (testimony from Arkansas, Georgia, Mississippi, and Alabama, including testimony of Major General Edward Hatch).

Even as the hearings took place, members of Congress continued to receive alarming reports from the South. One South Carolinian warned Republican leader Thaddeus Stevens about ex-Confederates, “trust them not, though they be willing to swear fealty and devotion morning, noon and night!”53

53 See Nelson, supra n.3, at 41 (quoting a letter from S. Cerley to Thaddeus Stevens dated Feb. 6, 1866).

A prominent member of the Joint Committee, John Bingham, a staunch abolitionist from Ohio, led the way in constructing the Fourteenth Amendment.54

John Armor Bingham, Library of Congress. Photograph by the Brady-Handy Studio, ca. 1860-1875

54 See generally ERIC FONER, THE SECOND FOUNDING: HOW THE CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION, ch. 2 (2019); MANISHA SINHA, THE RISE AND FALL OF THE SECOND AMERICAN REPUBLIC, 1860-1920, ch. 3 (2024).

On January 25, 1866, Bingham raised the disqualification of insurrectionists. “There are men now within these walls who may learn, when it is too late, that the ballot in the hand of the conspirator is more dangerous to the safety of the Republic than the bayonet.” As they re-imagined the Constitution that winter, Bingham urged his colleagues to not allow the ex-Confederate states to be “restored with the governing power … in the hands of the very men who but yesterday waged war against the life of the Republic.”55

55 Cong. Globe, 39th Cong., 1st Sess., 429 (1866) (remarks of Rep. Bingham). See also GERARD N. MAGLIOCCA, AMERICAN FOUNDING SON: JOHN BINGHAM AND THE INVENTION OF THE FOURTEENTH AMENDMENT, at 113 (2013); Foner, supra n.54, at 82–87.

Bingham spoke for those Republicans who had lived the entire crisis over slavery, its severing of the American political system, the shuddering impact of Dred Scott, secession and the war for the Union. All of these revolutionary events had occurred on their watch and they carried the heavy weight of responsibility for their consequences. Bingham named the fundamentals at the core of Section Three. States had “defiantly disregarded” the equal rights of the freedpeople and, for that matter, all citizens, because of a “want of power in Congress to enforce that guarantee.”56

56 Cong. Globe, 39th Cong., 1st Sess., 429 (1866) (remarks of Rep. Bingham).

Bingham insisted on federal protection of equal rights under law because the “late rebel states” would surely not do it themselves. The former Confederate states, he acknowledged, might not pose an immediate military threat in their defeated condition. “But,” Bingham warned, in telling words, “unless you put them in terror of your laws, made efficient by the solemn act of the whole people to punish the violators of oaths, they may defy your restrictive legislative power when reconstructed.”57

57 Id. at 1094.

In this historical reality and logic Section Three found its place at the heart of the Fourteenth Amendment. Bingham and his colleagues did not intend it as a political measure to fit their historical moment alone. “This legislation will be felt,” he said, “by generations of men after we all have paid the debt of nature.”58

58 Id. at 1088.

And against partisan critics he claimed the Amendment “towers above all party consideration; it touches the life of the Republic, and not the miserable inquiry whether this or that party should be successful in the coming contest.”59

59 Id. at 429.

Reconstruction would only be as good or as worthy as its laws, if indeed Constitutional law could be newly forged so as to curb the urges of embittered, defeated men.

B. The Development of Section Three Demonstrates Congress’s Intent to Make Disqualification Targeted and Permanent

In determining how disqualification might be enacted, Congress looked to earlier measures but largely devised its own. Precedent existed for disqualifying insurrectionists both by constitutional provision and by statute.60

60 Some early state constitutions provided for disqualification upon impeachment. See, e.g., N.Y. Const. of 1777, art. XXXIII.

In 1787, in the aftermath of Shays’ Rebellion, an uprising of farmers in western Massachusetts, that state’s legislature had passed a law decreeing that for a period of three years those who had participated in the insurrection “shall not serve as Jurors, be eligible to any Town-Office, or any other Office under the Government of this Commonwealth.”61

61 Act of Feb. 16, 1787, ch. VI, 1787 Mass. Acts 555.

Early in 1866, four constitutional amendments either disenfranchising or disqualifying insurrectionists were introduced in Congress.62

62 Bill, 39th Cong., Feb. 16, 1866, The Amendments Project, supra n.37, Record No. b039-h18660216cu (“No officer, civil or military, of the so-called southern confederacy, shall ever be eligible to hold any office under this government”); Bill, 39th Cong., Mar. 19, 1866, Record No. b039-h00094 (“No person, except a citizen of the United States who has at all times borne true allegiance thereto, shall ever hold office under the United States”); Bill, 39th Cong., Feb. 19, 1866, Record No. b039- h00070 (“No person shall be qualified or shall hold the office of President or Vice President of the United States, Senator or Representative in the national Congress, ... who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the Government of the United States … or who has voluntarily aided, or who shall hereafter voluntarily aid, abet, or encourage any conspiracy or rebellion against the Government of the United States”); and Bill, 39th Cong., Mar. 8, 1866, Record No. b039-s00040 (“No person who has been or shall be willingly engaged in rebellion against the United States shall exercise the elective franchise or hold any office under the authority of the United States or any State”); HERMAN V. AMES, PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES DURING THE FIRST CENTURY OF ITS HISTORY, 223–24, Appx. A (U.S. Gov. Printing Office, 1897).

In April, the Joint Committee presented a disenfranchisement provision as the third section of an omnibus amendment. This early version read:

Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives in Congress and for electors for President and Vice-President of the United States.63

63 Cong. Globe, 39th Cong., 1st Sess., 2545 (1866).

When Stevens opened the floor for debate on May 8, he suggested about Section Three that “Among the people I believe it will be the most popular of all the provisions,” confessing that he himself found it too lenient: “Here is the mildest of all punishments ever inflicted on traitors.”64

64 Id. at 2460.

Section Three was the subject of considerable debate. At each stage of revision, Congress chose more narrowly directed and yet harsher and more enduring measures, eventually abandoning near-universal but temporary disenfranchisement in favor of permanent disqualification of former officeholders, not only for ex-Confederates but also for future insurrectionists. Representative James Garfield of Ohio, for instance, asked what was so magical about the year 1870: “If the persons referred to are not worthy to be allowed to vote in January of 1870, will they be worthy in July of that year?”65

65 Id. at 2463.

On May 10, the amendment passed the House, as written, 128-37.66

66 Id. at 2545.

In the Senate, it was re-written. On May 23, Michigan senator Jacob Howard said that he “should prefer a clause prohibiting all persons who have participated in the rebellion, and who were over twenty-five years of age at the breaking out of the rebellion, from all participation in offices, either Federal or State, throughout the United States.” New Hampshire senator Daniel Clark proposed limiting the measure to previous oath-takers: “That no person shall be a Senator or Representative in Congress or permitted to hold any office under the Government of the United States who, having previously taken an oath to support the Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the United States, or given aid or comfort thereto.”67

67 Id. at 2768 (remarks of Sen. Clark).

This sharpening of Section Three elicited the suggestion that barring prominent men from office would backfire. Maryland senator Reverdy Johnson asked, “Do you not want to act upon the public opinion of the masses of the South? Do you not want to win them back to loyalty? And if you do, why strike at the men who, of all others, are most influential and can bring about the end which we all have at heart?”68

68 Id. at 2898–99 (statement of Sen. Johnson).

To this, those who favored the House draft countered, “Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war. The tendency of continuing the domination of such a class, by leaving it in the exclusive possession of political power, would be to encourage the same spirit, and lead to a similar result.”69

69 Report of the Joint Committee on Reconstruction, at xiii.

Senator Howard introduced what was essentially the final version on May 29:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; Congress may by a vote of two-thirds of each House, remove such disability.70

70 Cong. Globe, 39th Cong., 1st Sess., 2869, 2921 (1866).

The version adopted by Congress declined the invitation of the earlier omnibus amendment to intervene in and regulate the manner prescribed by state legislatures for holding elections of senators or representatives, or for appointing electors for President and Vice-President, by disenfranchising insurrectionists. Instead, the drafters of the final version of Section Three chose to regulate who was eligible to hold state or federal office, a more precisely targeted and stricter measure. They did not place either former presidents or presidential candidates beyond its reach, exceptions that would have defied the logic of Section Three.

C. Southern States Resisted Ratification, in part, Because of the Disqualification of ex-Confederates

The Fourteenth Amendment passed the Senate on June 8 and was concurred in by the House five days later.71

71 See Nelson, supra n.3, at 58.

Nearly all Republicans voted for it and nearly all Democrats against. During the ratification debates, the public avidly inquired into the consequences of Section Three. In February 1867, for instance, an Ohio newspaper noted that not having Section Three “would render Jefferson Davis eligible to the Presidency of the United States.”72

72 Gallipolis Journal, Feb. 21, 1867. See also Gerald N. Magliocca, Shooting Fish in a Barrel: The Presidency and Section 3, Balkinization (Jan. 2, 2024), https://balkin.blogspot.com/#7674686035441372191.

The Amendment initially fell short of ratification, as every southern state but Tennessee rejected it. Southern legislators objected in particular to Section Three. The Texas legislature decried the Amendment as involving the “loss of our honor as a people, and our self respect as individual men”; the Arkansas legislature complained that Section Three would lead to the disqualification of “many of our best and wisest citizens”; and the North Carolina legislature proposed an alternative amendment, omitting Section Three.73

73 Joseph B. James, Southern Reaction to the Proposal of the Fourteenth Amendment, 22 J. of Southern History 477, 485, 491, 495–96 (1956).

These Southern reactions reflected the emerging ideology of the Lost Cause, a tenet of which was the argument by ex-Confederates that they had never engaged in “rebellion,” should never be considered “rebels,” and had merely exercised legitimate rights of “sovereignty” with secession and war. Section Three had always been intended to thwart these claims. In March 1867, over President Johnson’s veto, Congress passed the Military Reconstruction Act, which stipulated that no state could re-enter the Union without first ratifying the Fourteenth Amendment.74

74 JOHN FABIAN WITT, LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY, 313–14 (2012).

The Fourteenth Amendment was ratified on July 9, 1868. Unlike the Thirteenth and later the Fifteenth Amendment, no overt celebrations ensued in Congress or elsewhere. The Fourteenth Amendment represented a series of compromises, fully satisfying almost no one. But in the Fourteenth Amendment the United States now possessed the blueprint of a new Constitution, a new kind of federalism, a commitment to equality before the law, and a method to legally guarantee the essential results of the Civil War.75

75 See Foner, supra n.48, at 90–92.

That blueprint included prohibiting past office-holders from holding federal or state office after engaging in an insurrection against the Constitution.

III. THE PERSISTENCE OF SECTION THREE

The star-crossed prosecution of Jefferson Davis both shaped and illuminated the meaning of Section Three. After the ratification of the Fourteenth Amendment, continued concern about a possible presidential bid by Davis informed subsequent Congressional action on amnesty. Section Three remains in place and in force in the twenty-first century.

A. The Jefferson Davis Case Showed That Section Three Required No Criminal Conviction and Was Self-Executing

Amici curiae briefs filed in support of the Petitioner by individuals who are not historians claim that “Historical records ... reveal that the Framers and ratifiers of the Fourteenth Amendment were not concerned that a Confederate leader could attain the presidency” and that “No Republican seriously feared that the national electorate would place a former rebel like Jefferson Davis in the White House.”76

76 Brief of Former Attorneys General Edwin Meese III, Michael B. Mukasey, and William P. Barr, et al. as Amici Curiae Supporting Petitioner, at 3 (Jan. 18, 2024) (No. 23-719) (hereinafter “Br. of Meese et al.”); Brief for Professor Kurt T. Lash as Amicus Curiae in Support of Petitioner, at 2 (Jan. 16, 2024) (No. 23-719).

These assertions are mistaken. Obstacles to prosecuting Davis had made it increasingly likely that he would not be convicted on treason charges, thus underscoring the need for Section Three. As Lieber had worried, the failure to convict would mean that Davis would not fall under the disqualification provisions of the Second Confiscation Act. Section Three augmented that Act’s disqualification provision by eliminating the need for a treason conviction before a federal jury, at least insofar as prior oath-takers were concerned.77

77 By 1866, Lieber discouraged further treason proceedings out of a growing fear that Davis would be acquitted, which made Section Three’s disqualification more urgent. See Witt, supra n.74, at 320–21.

Moreover, once underway, the Davis prosecution illuminated the meaning of Section Three by showing that lawyers and judges understood it to be self-executing. 78

78 Petitioner’s amici offer Thaddeus Stevens’s May 10, 1866 assertion that Section Three “will not execute itself” as evidence that Section Three requires enabling legislation. Br. of Meese et al. at 22 (quoting Cong. Globe, 39th Cong., 1st Sess. 2544 (remarks of Rep. Stevens)). Crucially, though amici do not mention it, Stevens’s assertion referred to the earlier disenfranchisement version of Section Three, not the amended disqualification version passed by Congress. Even had Stevens’s argument applied to the provision at issue here, he offers both federal and state examples of enabling legislation.

A pretrial hearing in the Davis case took place before a circuit court in Richmond in December 1868.79

79 Jill Lepore, What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President, The New Yorker, Dec. 4, 2023.

Chief Justice Salmon P. Chase, riding circuit, presided over the court alongside U.S. District Court Judge John C. Underwood for the District of Virginia. Underwood had impaneled Black men as potential jurors, which had elicited widespread public outrage in both the North and the South.80

80 N.Y. Herald, Nov. 23, 1867; Richmond Dispatch, Nov. 26, 1867.

Davis’s lawyer complained, “I find it impossible to believe that we are destined to play parts in a farce so contemptible as a trial before Underwood and a set of recently emancipated Negroes.”81

81 Nicoletti, supra n.26, at 275 (quoting a letter from Charles O’Conor to Varina Davis, dated Oct. 29, 1867).

This furor contributed to [Chief Justice Salmon P. Chase] Chase’s interest in derailing the trial: his political ambitions made presiding over the trial a no-win proposition. Privately, he suggested to Davis’s attorneys that Davis could no longer be prosecuted for treason because, having been automatically disqualified for office upon the ratification of the Fourteenth Amendment, he had already been punished. Davis’s defense made this argument. “It needs no legislation by Congress to give it effect,” his lawyer said.82

82 See Nicoletti, supra n.26, at 293–95. See also JEFFERSON DAVIS, 3 JEFFERSON DAVIS, CONSTITUTIONALIST: HIS LETTERS, PAPERS, AND SPEECHES, 199–200 (1923).

The prosecution countered that the Constitution is not a criminal code and that being disqualified for office is not a penalty.83

83 Id. at 204–08.

Chase agreed with the defense; Underwood agreed with the prosecution.84

84 See DAVID W. BLIGHT, RACE AND REUNION: THE CIVIL WAR IN AMERICAN MEMORY, 57–61 (2001) (On the use of the entire affair for an early form of national reconciliation).

On February 15, 1869, the prosecution entered a nolle prosequi. That May, in Griffin’s Case, Chase issued an opinion (Section Three is not self-executing) that contradicted his view in Davis (it is self-executing). In Griffin, Chase invoked the “inconveniences” that would follow from the retroactive disqualification of judges under a “literal interpretation” of Section Three and crafted an interpretation purpose-built to suit his preferred outcome.85

85 In re Griffin, 11 F. Cas. 7, 25 (C.C.D. Va. 1869); Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Commentary 87, 102–08 (2021).

It had no effect on Section Three.

For decades, Jefferson Davis stood as the cautionary tale through which Congress and the public understood Section Three.86

86 Public Ledger, Oct. 3, 1871. This Memphis newspaper noted that “Fred Douglass might be President” but “Every Southern man who lies under the ban of the Fourteenth Amendment cannot.”

No danger better illustrated the peril the nation would have faced without Section Three than the prospect of the leader of an insurrection running for President.

B. Requests for Amnesty Underscore the Broad and Immediate Impact of Section Three

After the Fourteenth Amendment was ratified, ex-rebels petitioned Congress seeking removal of the disabilities automatically imposed by the Disqualification Clause. Congress received hundreds of these petitions before the 1870 Enforcement Act. They came in droves, sometimes nearly a dozen a day.87

87 See, e.g., H.R. Journal, Jan. 5, 1869, at 100.

And, because individual petitions were often submitted on behalf of large numbers of people—for example, an 1869 petition for “26 members of the Georgia legislature”—they likely represent thousands of petitioners.88

88 H.R. Journal, Feb. 9, 1869, at 306.

Johnson’s successor urged Congress to favor reconciliation. “More than six years having elapsed since the last hostile gun was fired between the armies then arrayed against each other,” President Ulysses S. Grant told Congress in 1871, “it may well be considered whether it is not now time that the disabilities imposed by the Fourteenth Amendment should be removed.”89

89 Ulysses S. Grant, Third Annual Message to Congress, Dec. 4, 1871.

By 1872, Congress estimated the number of petitioners at “fifteen or sixteen thousand.”90

90 Cong. Globe, 42nd Cong., 2d Sess., 3381 (1872) (remarks of Rep. Butler).

When Congress considered a general amnesty bill, some members tried, without success, to attach civil rights provisions. As Black congressman Joseph Rainey declared about ex-confederates: “we are willing to accord them their enfranchisement, and here today give our votes that they may be amnestied” but “there is another class of citizens in this country who have certain dear rights and immunities which they would like you, sirs, to remember and respect.”91

91 See Magliocca, supra n.85 at 87–130; Cong. Globe, 42nd Congr., 2d Sess. 3382–83 (1872) (remarks of Rep. Rainey).

Congress in 1872 passed a blanket amnesty, decreeing that

all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.92

92 Act of May 22, 1872, ch. 193, 17 Stat. 142.

The 1872 Amnesty Act specifically did not extend to anyone who had served in Congress between 1859 and 1863, which included Jefferson Davis. Disqualification remained in full force for those not covered by the Act. Newspapers continued to observe that, without Section Three, Davis or another ex-Confederate might become President of the United States.93

93 See Magliocca, supra n.72.

Ex-Confederates would indeed soon be elected to governorships and other offices all across the South. In 1876, Maine Republican James Blaine argued in Congress against extending amnesty to Davis because it would make him “eligible and worthy to fill any office up to the Presidency of the United States.”94

94 44 Cong. Rec. 325 (1876) (remarks of Rep. Blaine).

The Chicago Tribune complained that a new amnesty bill before Congress was “a bill to make DAVIS eligible to the presidency”95

95 Chicago Tribune, Jan. 12, 1876.

and a Burlington, Vermont, newspaper regretted that the legislation seemed designed to make Davis “the Democratic candidate for President in 1876 or 1880.”96

96 Burlington Weekly Hawkeye, Jan. 20, 1876.

In 1879, Northerners expressed gratitude that Section Three meant that Davis could not run for president.97

97 Sioux City Daily Journal, Mar. 5, 1879. See also, e.g., Belleville Advocate, May 7, 1880 (stating that holding President Grant ineligible to a third term of office would “be placing him on a par with Jefferson Davis so far as ‘eligibility’ for the presidency is concerned”); Buffalo Morning Express, Apr. 28, 1882 (warning that a universal amnesty would mean that Davis could be “Commander-in-Chief of the Army of the United States”).

(As late as 1896, Jefferson Davis’s nephew, John Taylor Wood, who had been a U.S. Naval officer before serving in the Confederate Navy, and who was never convicted of any crime, petitioned Congress for the removal of his Section 3 disabilities.98)

98 An Act To Remove the political disabilities of Colonel John Taylor Wood, Febr. 11, 1897, 54th Congr., ch. 17, 29 Stat. 801.

In the South, Jefferson Davis became an emblem of the Lost Cause. After having been honored in one ceremony after another across the South and delivering a fierce defense of secession in his memoirs, Davis died in 1889. In 1898, with a new generation in power, Congress enacted a blunderbuss amnesty for past oath violators, closing a chapter in the story of the Civil War.99

99 Act of June 6, 1898, ch. 389, 30 Stat. 432.

Yet it left Section Three in place for future generations, a bulwark against disunion and lawlessness.

CONCLUSION

The meaning of Section Three of the Fourteenth Amendment is best discerned in the actual history of Reconstruction. Haunted by the nation’s suffering and fearful of disloyalty and ongoing political violence, Congress conducted an investigation into conditions in the South and determined that the disqualification of office-holders who had engaged in an insurrection against the Constitution was necessary for the security of the republic. Their concerns included a possible bid for the presidency by Jefferson Davis. Section Three also gave the federal government the authority to guide reconstructed ex-Confederate states to find new leadership committed to equal rights for all. With an eye toward establishing enduring fundamental law and ensuring domestic tranquility, they framed a provision designed to hold future insurrectionists accountable by the same means. They knew that no one in the United States is above the law, not even the President, and that no republican government can afford to return insurrectionists to office. As Missouri Republican John B. Henderson declared the day he cast his vote for the Fourteenth Amendment in the Senate, “The language of this section is so framed as to disenfranchise from office the leaders of the past rebellion as well as the leaders of any rebellion hereafter to come.”100

100 Cong. Globe, 39th Cong., 1st Sess., 3035–36 (1866).

May the curse of that hereafter never come again.

Respectfully submitted,

JONATHAN B. MILLER
Counsel of Record
JOSHUA A. ROSENTHAL
MICHAEL ADAME
EUSHRAH HOSSAIN
PUBLIC RIGHTS PROJECT
490 43rd Street, Unit #115
Oakland, CA 94609
(510) 738-6788
[email protected]

Counsel for Amici Curiae

January 29, 2024

[admin]

Supreme Court Filing PUTS THE SCREWS into Gutless Trump
by Michael Popok
MeidasTouch
Feb 1, 2024

25 of the world’s greatest Civil War legal scholars have banded together to tell the United States Supreme Court that the drafters of the 14th Amendment in 1868 would be SHOCKED that Trump was not INSTANTLY DISQUALIFIED and banned from the ballot by his actions. Michael Popok of Legal AF explains their key historical arguments and why they should defeat Trump’s half baked theories that a president can’t be disqualified without an act of congress.



Transcript

this is Michael popok legal AF the United States Supreme Court in about 3 weeks time is going to hear oral argument about whether Donald Trump should be banned from the ballots in any state including Colorado and Maine as an insurrectionist and someone who committed Rebellion against the Constitution by failing to properly transfer power and fight the peaceful transfer of power to Joe Biden under the Constitution 14th Amendment section three what we call the disqualification vision and now we have a new Amicus or friend of the court brief filed by the 25 most influential and well-respected Scholars in the area of civil war and reconstruction in the United States who have all banded together uh to file a brief including John mcferson at Princeton who's considering considered by all to be the world's most preeminent Civil War scholar having gone back through the legislative history of the passage of the 14th Amendment Section 3 in 1868 during our reconstruction period after the Civil War after the assassination of Lincoln and having looked at all of the contemporaneous documents legislative history Congressional Record testimony at the time and then and then tracking how individuals who were insurrectionists like Jefferson Davis who left the Union become the first president of the Confederacy and others were treated both by Congress as insurrectionist barred from ever holding office again and in general to make the to make the very compelling argument against Donald Trump and his band of unscholarly Scholars that the 14th Amendment section three doesn't apply to the president of the United States or to somebody that takes the exact oath of office to defend the Constitution that the presidency does to to hear Donald Trump tell it he's the only his office is the only federal or state office in in the entire United States that can't be disqualified if the person is an insurrectionist or commits Rebellion against the Constitution whereas everybody else can everybody else can from dog catcher to civil servant to elected official to Congress person to Senator to vice president Secret of State a member of the cabinet you name it but not the presidency and these 25 Scholars who have been who brief has been accepted by the United States Supreme Court which I'm sure will be cited by the majority When It ultimately rules we hope that the 14th Amendment Section 3 applies to the presidency including somebody named Donald Trump let me go through the arguments that's in their brief because it's very compelling very very compelling and I'm going to read to you from their arguments at bottom they're basically saying that when the during the debate about the various different versions different redlines if you will different drafts of history of the 14th Amendment section three when they made the final change it was to make it more inclusive and to grab the presidency not make it less inclusive for Donald Trump who's trying to argue to the originalists the textualists on the United States Supreme Court the ones that just you know a year or so ago ripped away a woman's right to choose saying they couldn't find it anywhere in the Constitution well look carefully at the 14th Amendment Section 3 because it applies by its terms and by its expressed language to anybody including the president of the United States who holds an office under the United States and that's what these 25 historians led by John mcferson says let me read to you the parts that I found most compelling and I think the United States Supreme Court will too first their expertise can be un it's unchallenged against Donald Trump Group which can barely barely hold on to their law licenses let alone have any heft gravitas when it comes to constitutional interpretation or or more importantly more directly reconstruction Civil War era legislation and Constitutional Amendments of which there was only a couple and one in 1868 and bring this level of synthesis and Analysis can only come from a group led by John mcferson at Princeton speaking directly to the nine members of the United States Supreme Court they he they say in their brief not by way of brag adashia or bragging but just by way of of expertise um uh of experience that our expertise this is on page uh one of the brief our experti encom encompasses the Civil War and reconstruction the southern redemption in American history more broadly including politics voting and elections we understand that assessing historical precedent is crucial for resolving ing whether Section 3 of the 14th Amendment covers the president and whether its implementation requires an additional act of Congress right that's Donald Trump's other argument Congress has to do something it's not self aecting the language of the Constitution as amended right but the language is self- affecting it doesn't say go back to Congress it says only go back to Congress if you want to have your disability your disqualification removed then Congress can remove it but there's nothing to be done for congress in fact as they pointed out in their briefing to the Supreme Court every disqualified uh former insurrectionist or or person for Rebellion under the 14th amendment in and around the period of its passage in 1868 every one of them was disqualified by the language of the Constitution itself and no further Congressional Act Congress did not pass any act to further disqualify or reinforce the disqualification they had been disqualified on their face by way of an application of this Constitutional Amendment that's powerful evidence that no one at the time and and at the time is what matters right we're taking a time machine this is what the rightwing of the Supreme Court wants us to do take the time machine take a can opener get inside the minds of the framers of the Constitution of the framers of a particular provision of the Constitution okay that's what we're doing back in 1868 this is how they would have interpreted these words um and so they go on to say in their summary of argument on page two that during the Congressional debates about 14th Amendment section three Senator Ry Johnson of Maryland I love old timey names Senator Ry Johnson of Maryland a democratics opponent of the 14th Amendment challenged the sponsors as to why Section 3 omitted the President right he read it as omitting the president Republican senator lot Morel of Maine an influence backer of congressional reconstruction and the 14th Amendment right he's a he's a member of Lincoln's party corrected the senator on the on the on the floor of the Senate which is recorded in the Congressional Record Morel replied quote let me call the Senator's attention to the words or hold any office civil or military under the United States Senator Johnson admitted his error admitted his error no other Senator questioned whether section three covered the President right it was answered by Senator Morell saying it covers the president it covers anyone holding an office civil or military under the United States and that of course has to include the presidency the brief goes on to say similarly debate over the amnesty Act of 1872 in which certain of the disqualified disabled former Confederates were allowed to come back to public office by an act of Congress demonstrate that decision makers understood that section three barred former Confederate President Jefferson Davis from running for president of the United States again a disqualification that amnesty would remove Republican senator James Flanigan of Texas warned that quote Jefferson Davis is living and if the disabilities of Jeff Davis were removed the Democrats in finding candidates for the presidency and vice presidency would go no further than Jefferson Davis then they go on to say let's turn to the Andrew Johnson impeachment which happened in and around the same time of the 1860s they said that was a president who was first impeached during the Andrew Johnson impeachment trial decision makers who back section three explicitly recognize the president as a civil or constitutional officer of the US which completely defeats Trump's argument is I'm not the right C officer under the 14th Amendment you are because those in power at the time in our time machine model believe that you were even Andrew Johnson a president routinely identified himself as the chief executive officer of the United States so he is obviously an officer under the United States in many instances the framers of the original US Constitution the brief goes on did not limit the Des the designation of officers to appointed officials but recognized the president as a national officer to which the 14th Amendment Section 3 would apply contemporary information the brief continues provides direct evidence of the enduring reach of the 14th Amendment that's these 25 Scholars other point this is a forward looking provision it's modern it's alive it's vibrant and you can enforce it by its terms as written by the framers with their quill pen and their parchment or whatever they used in 1868 right there's no and it doesn't say go back to Congress if you can't figure it out they continue on page three of their brief that Republican senator Peter Van wikl of West Virginia said quote this is to go to our Constitution and to stand to govern future Insurrection as well as the president that it was forward-looking to this end the amnesty Act of 1872 and 1898 did not pardon future insurrectionists only those that were insurrectionists at that period other evidence the brief goes on demonstrates that implementation of Section 3 did not require additional acts of Congress the brief continues by the historians including mcferson no former Confederate instantly disqualify from holding office under Section 3 listen to those words section three instantly disqualifies somebody from holding office without further Court action or further congressional action in seeking to quash his indictment for treason right we had a former member of the Union who became president of the Confederacy Jefferson Davis who was indicted for treason he argued that he was already already punished through his automatic disqualification to whole public office under Section 3 which executes itself according to Jefferson Davis it needs no legislation on the part of Congress to give it effect this is like the words from the grave of Jefferson Davis that he was a he was an officer and that the con that the Constitution and the amendment automatically disqualified him he went on to say the government agreed the government agreed with Jeff Davis's position about automatic DQ but uh did not dismiss the indictment and then the Supreme Court chief justice salmon Chase salmon Chase also agreed so this is the Constitutional analysis legislative history analysis you know this this is the Ouija board of History During the Reconstruction of the Civil War that these people led by scholar John mcferson are bringing to the attention of the Supreme Court so they don't have to do their own research through the their law clerks they have it right here and I want to just repeat this one this debate right here because this kills in its tracks the one of the two major arguments by Trump which is that that the language of the section three of the 14th Amendment doesn't apply to the presidency right here's here's the debate again listen to this in the May 30 1866 Senate session right leading to the passage in 1868 of the provision we're talking about Democratic senator Ry Johnson an opponent the 14th Amendment challenged backers as to why Section 3 excluded the president he said quote I do not see that but any of these disqualified gentlemen may be elected president or vice president of the United States and why did you admit to exclude them Republican senator lot Morel of Maine a backer of the 14th Amendment uh noted the language of section three Incorporated the president he replied let me call the Senator's attention to the words or hold any office civil or military under the United States Senator Johnson admitted his errors saying perhaps I was wrong I don't know what's any more powerful than the people the old white guys at the time believed that this applied to the presidency in other words they the framers of the 14th Amendment Section 3 if we could bring them back from the dead would be shocked that we were debating now up to the United States Supreme Court that that provision applies to the president of the United States who is an insurrectionist or did Rebellion against the Constitution just as they would be shocked by any argument that there needed to be further congressional action that this provision didn't instantly and automatically disqualify the person to this end we don't even need a constit we didn't even need a court hearing to do this I know we've had trials and a version of trials in Maine and Colorado but to my argument under the originalist contextual interpretation literal which is what you're supposed to do of of the Constitution we didn't need a judge to declare it whoever was in charge of putting people on the ballot was enough the Secretary of States of those states of Colorado and Maine and that's where this should end up and this is what the argument is by the 25 um uh Scholars that I've just cited and they end their brief with this way for the forging reasons the court should take cognizance that section three of the 14th Amendment covers the present is forward-looking and requires no additional acts of Congress for implementation signed those 25 Scholars and other Scholars like Shawn W of princeton have come out and said almost the exact same thing that that it's a risible laughable argument by Donald Trump to either argue that there needs to be further congressional action to implement the disqualification of somebody under the 14th Amendment section three or that the presidency is not at such an office that's covered by it that you can have an insurrectionist rebellious presidency who who refuses to transfer power which is his obligation as expressed in the Constitution itself for that office and get away with it and be able to run for office again and hasn't been disqualified right hasn't Dishonored himself so that he should never occupy that office again there's a hearing oral argument it'll the audio will be available we'll put it on the Meidastouch Network and the commentators legal commentators me Ben Meiselas and Karen Friedman Agnifilo will jump on to do running comment concerning it we'll see the final briefing we've seen the final briefing the advocus briefs that are coming in there's one more brief by Donald Trump and then on February 8th is going to be an oral argument and we'll get a ruling hopefully hopefully within 30 days of that by the United States Supreme Court it's going to be up to Chief Justice Roberts to hold this court together and make a decision he's got two major decisions that are G that have now been placed on him right they say that A History either crushes or it makes a person rise to the occasion person's you know it's either a piece of coal Under Pressure it becomes a diamond or dust which is it chief justice Roberts are you going to be able to get five votes to simultaneously find on one hand that Donald Trump and anybody like him that commits crimes while in office does not enjoy absolute presidential immunity from further or future indictment yes or no yay or nay and are you with your same band of colleagues this term right in historical feat also find that somebody like Donald Trump or Donald Trump himself who commits acts of insurrection or Rebellion against the very Constitution that he took an oath to defend is banned and barred and disqualified from serving in that office and being on that ballot right and the only act of Congress would be to take away that disability or disqualification in a vote which they could do relatively quickly by the way that's a we keep talking about it like he'll be disqualified and take it off the ballot not if the MAGA Congress which is still in power pulls together enough votes but you need 2third votes and even they don't have that they don't have that they barely have a majority so that part probably isn't going to happen so in any event we'll follow at one place on the two million subscribers strong Meidas Touch network no outside investors you are the investors by investing your time and efforts and thumbs in leaving positive comments on content like this and thumbs up because it helps keep the ratings on on the uh uh uh up and keeps the network on the air and um so if you like what we're doing here you'll love legal AF our full length podcast on Wednesdays and Saturdays at 8:00 pm eastern time and on audio podcast platforms of your choice so until my next hot take till my next legal AF this is Michael Popok reporting.


**************************************

https://www.supremecourt.gov/DocketPDF/ ... 0Brief.pdf

No. 23-719

In the Supreme Court of the United States

Donald J. Trump,
Petitioner,
v.
Norma Anderson, et al.,
Respondent.

On Writ of Certiorari to the Colorado Supreme Court

BRIEF FOR PROFESSORS ORVILLE VERNON BURTON, ALLAN J. LICHTMAN, NELL IRWIN PAINTER, JAMES M. MCPHERSON, MANISHA SINHA, ET AL. AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Michael J. Kasper
Counsel of Record
151 North Franklin Street,
Chicago Illinois 60606
(312) 704-3292
[email protected]
Attorney for Amici Curiae

[admin]

https://www.supremecourt.gov/DocketPDF/ ... 0Brief.pdf

No. 23-719

In the Supreme Court of the United States

Donald J. Trump,
Petitioner,
v.
Norma Anderson, et al.,
Respondent.

On Writ of Certiorari to the Colorado Supreme Court

BRIEF FOR PROFESSORS ORVILLE VERNON BURTON, ALLAN J. LICHTMAN, NELL IRWIN PAINTER, JAMES M. MCPHERSON, MANISHA SINHA, ET AL. AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Michael J. Kasper
Counsel of Record
151 North Franklin Street,
Chicago Illinois 60606
(312) 704-3292
[email protected]
Attorney for Amici Curiae

QUESTION PRESENTED

The Court granted certiorari (23-719) on the following question presented:

Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . .iv
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. The Disqualification Clause of Section 3 of the 14th Amendment Covers the President of the United States . . . . . . . . . . . . . . . 4
A. Contemporary Evidence From Congressional Debates Over Section 3 and Later Amnesty Demonstrates That the Section Covers the President . . . . . . . . . 4
B. Other Evidence Shows that Contemporaries Regarded the President as a civil officer of the U.S. . . . . . . . . . . . . . . 6
C. Also probative is the explicit recognition by the framers of the original Constitution of 1787 that the President is a “national officer of the United States” . . . . . . . . . . . . . 9
II. Section 3 Enduringly Protects the Nation From Future Insurrections, With No Further Action Required of Congress . . . . . . . 14
A. Congressional debates demonstrate that framers of Section 3 advisedly choose to disqualify insurrectionists enduringly by a constitutional amendment rather than by statute . . . . . . . . . . . . . . . . . 14
B. Amnesty Acts passed by Congress after ratification of the 14th Amendment did not pardon future insurrectionists . . . . . . . 19
C. Adverse consequences followed from requalifying former Confederates under amnesty . . . . . . . . . . . 22
D. The framers did not require any additional actions by Congress to effectuate Section 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

TABLE OF APPENDICES

Appendix — AMICI CURIAE . . . . . . . . . . . . . . . . . 1a

TABLE OF CITED AUTHORITIES

U.S. Const. Amend. XIV . . . . . . . .1, 2, 3, 4, 5, 6, 7, 14, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27
U.S. Const., Art.2, Sec. 1, Clauses 1, 5, 6, 8 . . . . . . 13, 14
U.S. Const., Art.1, Sec.3, Clause 7 . . . . . . . . . . . . . . . . . . 11
U.S. Const., Art.1, Sec. 9, Clause 8 . . . . . . . . . . . . . . . . . . 11
17 Stat. 142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Abraham Lincoln, “Proclamation 92 - Warning to Rebel Sympathizers,” July 25, 1862, American Presidency Project, https://www. presidency.ucsb.edu/documents/proclamation- 92-warning-rebel-sympathizers . . . . . . . . . . . . . . . . 15
Adam H. Domby, The False Cause: Fraud, Fabrication, and White Supremacy in Confederate Memory (University of Virginia Press, 2020) . . . . . . . . . . . . . 24
Allan J. Lichtman, The Embattled Vote in America, From the Founding to the Present (Harvard University Press, 2018) . . . . . . . . . . . . . . .
Berger et al. v. United States, 255 U.S. 22, 41 S.Ct. 230 (1921) . . . . . . . . . . . . . . . . . 22
Case of Davis, Chase, 1; 3, p. 55; Am. Law Rev. 368 . . . . . . . . . . . . . . . . . . . . . . . . . 25, 27

Cited Authorities

Congressional Globe, 39th Congress, First Session, 1866 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18, 19
Congressional Globe, 40th Congress, First Session, 1867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Congressional Globe, 42nd Congress, Second Session, 1872 . . . . . . . . . . . . . . . . . . . . .6, 20, 21
Congressional Globe, 55th Congress, Second Session, 1898 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Ellen C. Connally, “The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis,” Akron Law Review: 42 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
First Reconstruction Act, March 2, 1867, https: //loveman.sdsu.edu/docs/ 1867FirstReconstructionAct.pdf . . . . . . . . . . . . . . . 17
“If Discovered, He May Be Impeached: President Trump and the Foreign Emoluments Clause,” American Constitution Society for Law and Policy, February 2, 2017, http://www.acslaw. org /acsblog/%E2%80%9Cif-discovered-hemay- be-impeached %E2%80%9D-presidenttrump- and-the-foreign-emoluments-clause . . . . . . 12
J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880–1890 (Yale University Press, 1979) . . . . . . . . . 23
James A. Heilpern and Michael T. Worley, “Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment,” January 1, 2024 https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=4681108 . . . . . . . . . . . . . . 7, 8
James D. Richardson, A Compilation of the Messages and Papers of the Presidents, Andrew Johnson, June 17, 21, & 30 1865, July 13, 1865, April 10, 1867, September 7, 1867, https:// http://www.gutenberg.org/files/12755/12755.txt/ . . . . . . . . 8
Karen L. Cox, No Common Ground: Confederate Monuments and the Ongoing Fight for Racial Justice (University of North Carolina Press, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Kent Redding and David R. James, “Estimating Levels and Modeling Determinants of Black and White Voter Turnout in the South, 1880 to 1912,” Historical Methods 34 (2001): 141–158 . . . . . 23
Max Farrand, The Records of the Federal Convention of 1787, volume 2, https://oll. libertyfund.org/title/farrand-the-records-ofthe- federal-convention-of-1787-3vols . . . . . . . . . . . . 12
“On the Eve of Battle,” Montpelier Daily Journal, Oct 17, 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Orville Vernon Burton and Armand Derfner, Justice Deferred: Race and the Supreme Court (Belknap Press, 2021) . . . . . . . . . . . . . . . . . . . 24
“Rebels and Federal Officers,” Gallipolis [OH] Journal, Feb 21, 1867, 2 . . . . . . . . . . . . . . . . . . . . . . . . 6
“Speech of Hon. John A. Bingham,” Tiffin Tribune, July 18, 1872, 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stephen M. Hood, Patriots Twice: Former Confederates and the Building of America after the Civil War (Savas Beatie, 2020) . . . . . . . . . . . . . . 22
The Confederate Records of the State of Georgia,, Reconstruction Act, March 2, 1867, p. 136, The Confederate records of the State of Georgia: Georgia. General Assembly: Free Download, Borrow, and Streaming : Internet Archive . . . . . . 25
“Trial of Jeff Davis,” New York Times, 4 December 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States Circuit Court District of Virginia. Ex parte Cæsar Griffin The American Law Register (1852-1891), Vol. 17, No. 6, New Series Volume 8 (Jun., 1869) . . . . . . 26, 27
United States Court of Appeals for the Fourth Circuit, Madison Cawthorn v. Constitutional Accountability Center, No. 22-1251, May 24, 2022 . . . . . . . . . . . . . . . . . . . . . 19
War Department, Adjutant General’s Office, June 20, 1867, 40th Congress, First Session, House and Senate Documents, compiled 11 July 1867 . . . . . . . . 9
William Baude and Michael Stokes Paulsen, “The Sweep and Force of Section Three,” University of Pennsylvania Law Review, 172 (forthcoming 2024) . . . . . . . . . . . . 27

INTEREST OF AMICI CURIAE1 [No counsel for a party authored this brief in whole or in part, and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than the amici curiae or their counsel made a monetary contribution to its preparation or submission.]

We are twenty-five professional Ph.D. historians with appointments as faculty at institutions of higher learning in the United States.2 [A complete list of the amici is set forth in the Appendix to this Brief.] Most of us have many decades of experience as researchers and teachers and are current or emeritus faculty with endowed chairs and positions as distinguished professors, the highest academic ranking. Several of us have testified extensively in civil and voting rights litigation. Our more than one hundred books have won numerous national prizes. Among other positions, some of us have served as President of the American Historical Association, the Organization of American Historians, the Southern Historical Association, the Society for Historians of the Early American Republic, and the Alabama Historical Association.

Our expertise encompasses the Civil War and Reconstruction, the Southern “redemption,” and American history more broadly, including politics, voting, and elections. We understand that assessing historical precedent is crucial for resolving whether 1) Section 3 of the 14th Amendment covers the president and 2) whether its implementation requires an additional act of Congress. We have professional interests in helping the Court reach its decision by appropriately analyzing probative historical evidence.

SUMMARY OF ARGUMENT

For historians, contemporary evidence from the decision-makers who sponsored, backed, and voted for the 14th Amendment is most probative. Analysis of this evidence demonstrates that decision-makers crafted Section 3 to cover the President and to create an enduring check on insurrection, requiring no additional action from Congress.

During the congressional debates, Senator Reverdy Johnson of Maryland, a Democratic opponent of the 14th Amendment, challenged sponsors as to why Section 3 omitted the President. Republican Senator Lot Morrill of Maine, an influential backer of congressional Reconstruction and the 14th Amendment, corrected the Senator. Morrill replied, “Let me call the Senator’s attention to the words ‘or hold any office civil or military under the United States.’” Senator Johnson admitted his error; no other Senator questioned whether Section 3 covered the President.

Similarly, debates over the Amnesty Act of 1872 demonstrate that decision-makers understood that Section 3 barred former Confederate President Jefferson Davis from running for President of the United States, a disqualification that amnesty would remove. Republican Senator James Flanagan of Texas warned that “Jefferson Davis is living,” and if “the disabilities of Jefferson Davis were removed,” the Democrats in finding “candidates for the Presidency and Vice Presidency … would go no further than Jefferson Davis.”

During the Andrew Johnson impeachment and trial, decision-makers who backed Section 3, explicitly recognized the President as a civil or constitutional officer of the U.S. In presidential proclamations, Andrew Johnson routinely identified himself as the “chief executive officer of the United States.” In many instances, the framers of the original U.S. Constitution did not limit the designation of officers to appointed officials, but recognized the President as a national officer.

Contemporary information provides direct evidence of the enduring reach of the 14th Amendment. Congress had previously enacted disqualifying statutes but now chose to make disqualification permanent through a constitutional amendment. Republican Senator Peter Van Winkle of West Virginia said, “This is to go into our Constitution and to stand to govern future insurrection as well as the present…” To this end, the Amnesty Acts of 1872 and 1898 did not pardon future insurrectionists.

Other evidence demonstrates that implementation of Section 3 did not require additional acts of Congress. No former Confederate instantly disqualified from holding office under Section 3 was disqualified by an act of Congress. In seeking to quash his indictment for treason, Jefferson Davis argued that he was already punished through his automatic disqualification to hold public office under Section 3, which “executes itself … It needs no legislation on the part of Congress to give it effect.” The government agreed but opposed quashing his indictment. Supreme Court Chief Justice Salmon Chase, serving as a Circuit Court judge, also agreed. Later, in Griffin’s Case, Chase seemed to take a different position. However, his ruling that Section 3 disqualification required congressional action applied only to officials lawfully in office before the states ratified the 14th Amendment.

ARGUMENT

I. The Disqualification Clause of Section 3 of the 14th Amendment Covers the President of the United States.

A. Contemporary Evidence From Congressional Debates Over Section 3 and Later Amnesty Demonstrates That the Section Covers the President.

For historians, contemporary evidence from decision-makers is most probative of the intent of a constitutional provision. The following colloquy between Senators during congressional debates demonstrates directly that backers of the 14th Amendment included the Presidency under the rubric of an “officer under the United States.” In the May 30, 1866, Senate session, Democratic Senator Reverdy Johnson of Maryland, an opponent of the 14th Amendment who would vote against it, challenged backers as to why Section 3 excluded the President. He said, “I do not see that but any one of these [disqualified] gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them?” Republican Senator Lot Morrill of Maine, an influential backer of congressional Reconstruction and the 14th Amendment, corrected Johnson by noting that the language of Section 3 incorporated the President. Morrill replied, “Let me call the Senator’s attention to the words “or hold any office civil or military under the United States.” Senator Johnson then admitted his error, saying, “Perhaps I am wrong as to the exclusion of the presidency, no doubt I am, but I was misled by noticing the specific exclusion in the case of Senators and Representatives.”3 [Congressional Globe, 39th Congress, First Session, 30 May 1866, p. 2898-2899.]

No other Senator challenged Morrill’s construction of Section 3. Senator Morill used the phrase “under the United States” when explaining that Section 3 covered the President, although the actual wording was “of the United States.” His unchallenged statement shows that decision-makers in Congress regarded the two phrases as interchangeable.

The congressional debates over amnesty demonstrate that decision-makers in Congress regarded Section 3 as disqualifying insurrectionists like Jefferson Davis, who had previously sworn to support the U.S. Constitution, from running for President, among other federal offices. The fervently partisan, anti-Confederate Republicans who crafted, backed, and voted for Section 3 worried that if the Amnesty Act of 1872 included Jefferson Davis, the lifting of his Section 3 disqualification would enable him to run for President on the Democratic ticket. During debates over the Act, Republican Senator James Flanagan of Texas advocated for excluding Davis from amnesty on this ground. He said:

“Now, sir, be it remembered that Jefferson Davis is living. He is not numbered with the dead. I think I understand the spirit of the South. I think I comprehend to some extent (for the man does not live who does comprehend to the whole extent) the intention of the Democrats of the country. If the disabilities of Jefferson Davis were removed, the Democrats would not find it necessary to ask the Congress of the United States to incorporate an additional amendment in the fundamental law to enable them to go broadcast throughout the civilized world to find candidates for the Presidency and Vice Presidency. No, sir; they would go no further than Jefferson Davis.”4 [Congressional Globe, 42nd Congress, 2nd Session, 25 January 1872, p. 586.]

John Bingham noted in a speech in July 1872 that because of the 14th amendment Jefferson Davis remained ineligible for the presidency as Confederate leaders had been excluded from the 1872 Amnesty Act. Bingham, chief drafter of the 14th Amendment, clearly believed that the Amendment applied to the presidency.5 [“Speech of Hon. John A. Bingham,” Tiffin Tribune, July 18, 1872, 2. For a sample of the numerous Reconstruction-era mentions of how the 14th Amendment disqualification clause includes the presidency see “Rebels and Federal Officers,” Gallipolis [OH] Journal, Feb 21, 1867, 2; “On the Eve of Battle,” Montpelier Daily Journal, Oct 17, 1868, 2.]

B. Other Evidence Shows that Contemporaries Regarded the President as a civil officer of the U.S.

During the 1868 impeachment and trial of President Andrew Johnson, held after Congress had adopted the 14th Amendment, which occurred while it was still pending in the states, decision-makers in Congress identified the President as a federal officer. Republican Representative John Bingham of Ohio, the principal author of the 14th Amendment, said, “Did not the gentlemen know that it is written in the Constitution that the President, the Vice President, and every other civil officer of the United States shall be removed from office on impeachment for and conviction of high crimes and misdemeanors.”6 [Quoted in James A. Heilpern and Michael T. Worley, “Evidence that the President is an ‘Officer of the United States’” for Purposes of Section 3 of the Fourteenth Amendment,” SSRN, 1 January 2024, pp. 47-48, https://papers.ssrn.com/sol3/papers. cfm?abstract_id=4681108, p. 48.] (emphasis added)

Influential Republican Senator John Sherman said: “The power of removal is expressly conferred by the Constitution only in cases of impeachment, and then upon the Senate, and not upon the President”:

“The electors may elect a President and Vice-President, but the Senate only can remove them. The President and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal are fixed by the Constitution.”7 [Id. The lack of the word “military” did not exclude the President from this designation. The President’s constitutional authority included that of “Commander-in-Chief” of the armed forces.]

Sherman was a moderate Republican who voted for the 14th Amendment. He had previously served in the U.S. House and would later serve as President Pro Tem of the Senate, Secretary of the Treasury, and Secretary of State.

Contemporary evidence from presidential proclamations confirms that Section 3 covered the President as an “officer of the United States.” President Andrew Johnson said that upon Lincoln’s death, “it became my duty to assume the responsibilities of the chief executive officer of the Republic.” In numerous subsequent proclamations, President Andrew Johnson continued to term himself the “chief executive officer of the United States.” (emphasis added) He also referred to the President and Vice President of the Confederacy as “chief executive officers.” He further noted that these Confederate officers were excluded from the benefits of “this proclamation and of the said proclamation of the 29th day of May 1865,” which issued pardons to certain former Confederates.8 [See James D. Richardson, A Compilation of the Messages and Papers of the Presidents, Andrew Johnson, June 17, 21, & 30 1865, July 13, 1865, April 10, 1867, September 7, 1867, https:// http://www.gutenberg.org/files/12755/12755.txt/.] James A. Heilpern and Michael T. Worley also provide compilations of statements by members of the U.S. House and Senate identifying the President as an executive officer.9 [Id., Heilpern and Worley, pp. 47-48.]

On June 20, 1867, the Adjutant General of the War Department responded to a request from southern military commanders for analysis of the Military Reconstruction Act of 1867 that disqualified from participation in reconstructed southern governments, those “excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States.” Congress had passed the Amendment, which the states had not yet ratified. He wrote:

“Officers of the United States. As to these the language is without limitation. The person who has at any time prior to the rebellion held any office, civil or military, under the United States, and has taken an official oath to support the Constitution of the United States, is subject to disqualification.”

This official clarified that disqualification applies to elected executives and judges (when elected) in the states:

“All the executive or judicial officers of any State who took an oath to support the Constitution of the United States are subject to disqualification, including county officers. They are subject to disqualification if they were required to take, as a part of their official oath, the oath to support the Constitution of the United States.”10 [War Department, Adjutant General’s Office, June 20, 1867, 40th Congress, First Session, House and Senate Documents, compiled 11 July 1867.]

C. Also probative is the explicit recognition by the framers of the original Constitution of 1787 that the President is a “national officer of the United States.”

Debates in the Constitutional Convention of 1787 demonstrate that the framers of the original Constitution did not limit the designation of national officers to appointed officials but included the President. For example, an early version of the impeachment clause in the Convention placed the impeachment process in the judiciary, not the Congress, and generically referred to “national officers:”

The clause read: “That the jurisdiction of the national Judiciary shall extend to cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony” (emphasis added)

The rationale for later substituting Congress for the courts demonstrates that the term “national officers” in the original clause included the President. On July 14, 1787, the Convention unanimously approved an amendment to strike the words “ impeachments of national Officers out of the 13th resolution,” which had lodged the impeachment process in the judiciary. As explained by delegate George Mason of Virginia, the Convention removed the impeachment powers from the judiciary because the President -- a potential subject of impeachment and trial as a “national officer” -- appointed federal judges. He explained, “The mode of appointing the Judges may depend in some degree on the mode of trying impeachments, of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive.”

Gouverneur Morris agreed, saying, “It would be improper for an impeachment of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated.” During the impeachment trial of U.S. Supreme Court Justice Samuel Chase, Luther Martin, a delegate to the Constitutional Convention, further explained, “Who are the officers liable to impeachment? The President, the Vice President, and all civil officers of Government. In the election of the two first, the Senate have no control.”

The final form of the impeachment clause relating to trial by the Senate adopted by the Convention recognizes that presidents are officers of or under the United States. The clause (Article 1, Section 3, Clause 7) reads:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Given that the President is subject to impeachment, he must hold an office of the United States, or the phrase “removal from Office,” would have no meaning. Similarly, the presidency must be one of the “offices of honor, trust, or profit under the United States,” otherwise a convicted president could run for the presidency again. The terms “honor, trust, or profit” add nothing to the term office; all federal offices, whether elected or appointed, convey honor, require trust, and are paid.

As enacted in the Convention, the Constitution’s foreign emoluments clause covered the President, even if the President is not explicitly cited as in Section 3. The clause (Article 1, Section 9, Clause 8) reads:

“No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The framers intended this generic prohibition to cover the President, who holds the most powerful and influential federal office. Gouverneur Morris of Pennsylvania (known as the “Penman of the Constitution”) observed that “no one would say that we ought to expose ourselves to the danger of seeing the first magistrate [the president] in foreign pay, without being able to guard against it by displacing him.” Governor Edmund Randolph of Virginia, a delegate to the Constitutional Convention, told his state’s ratifying Convention that the Constitution guarded against “the President receiving emoluments from foreign powers. If discovered, he may be impeached . . . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”11 [“If Discovered, He May Be Impeached: President Trump and the Foreign Emoluments Clause,” American Constitution Society for Law and Policy, February 2, 2017, http://www.acslaw. org/acsblog/%E2%80%9Cif-discovered-he-may-be-impeached %E2%80%9D-president-trump-and-the-foreign-emolumentsclause.]

James Madison worried that the corruption of the powerful American President by foreign interests could shatter America’s fragile republic. He warned that the President “might betray his trust to foreign powers ... In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”12 [Max Farrand, The Records of the Federal Convention of 1787, vol. 2, Friday, July 20, 1787, https://oll.libertyfund.org/title/ farrand-the-records-of-the-federal-convention-of-1787-vol-2. Although it is not clear whether the foreign emoluments clause applies to commercial transaction that is a separate issue from its application to the president.]

Other clauses of the Constitution as adopted in 1787 refer to the presidency as an office and the President as an officer (Article 2, Section 1, emphases added in every example):

The President “shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows.” (Clause 1)

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” (Clause 5)

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.” (Clause 6)

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:- I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” (Clause 8)

The President’s constitutional oath does not include the word “support.” However, the presidential oath represents the functional equivalent of support for the Constitution, in especially compelling terms: I “will to the best of my ability, preserve, protect and defend the Constitution of the United States.” During debates over the 14th Amendment, no U.S. Senator or Representative made this allegedly exclusionary claim about the presidential oath. The oath requirement of Section 3 was supposed to apply broadly, and the word “support” is not talismanic.

II. Section 3 Enduringly Protects the Nation From Future Insurrections, With No Further Action Required of Congress.

A. Congressional debates demonstrate that framers of Section 3 advisedly choose to disqualify insurrectionists enduringly by a constitutional amendment rather than by statute.

Contemporary evidence demonstrates that Section 3 of the 14th Amendment was not limited to keeping ex-Confederates from holding federal or state offices. The framers crafted it to guard against the corruption of government by anyone involved in future insurrections who had taken an oath to support the U.S. Constitution. The framers did not require further action from Congress to effect the disqualifications under Section 3.

The framers could have achieved the limited goal of disqualifying former Confederates by statute. Before it adopted the 14th Amendment, Congress had already included a disqualification clause in the 1862 Confiscation Act: “To suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” Sections 2 and 3 of the Act read as follows:

“SEC. 2. And be it further enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States or the laws thereof, or shall give aid or comfort thereto, or shall engage in or give aid and comfort to any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for a period not exceeding ten years, or by a fine not exceeding $10,000, and by the liberation of all his slaves, if any he have; or by both of said punishments, at the discretion of the court.

SE C. 3. And be it further enacted, That every person guilty of either of the offenses described in this Act shall be forever incapable and disqualified to hold any office under the United States.” (emphasis added)13 [Full text in Abraham Lincoln, “Proclamation 92 - Warning to Rebel Sympathizers,” July 25, 1862, American] Presidency Project, https://www.presidency.ucsb.edu/documents/ proclamation-92-warning-rebel-sympathizers.

On July 25, 1862, President Lincoln issued a Proclamation based on the Act directed against Confederates. He referred to Section 6 on the confiscation of rebel property. Lincoln warned:

“All persons within the contemplation of said sixth section to cease participating in, aiding, countenancing, or abetting the existing rebellion or any rebellion against the Government of the United States and to return to their proper allegiance to the United States on pain of the forfeitures and seizures as within and by said sixth section provided.”14 [Id.]

Congress enacted another disqualification law targeted at former Confederates. After the Civil War, Southern states under President Johnson’s lenient Reconstruction plan held constitutional conventions with only whites eligible to vote for delegates. The succeeding all-white governments enacted so-called “Black Codes” that restricted the freedom of African Americans and facilitated their domination by white supremacists. Outrage in the North and landslide Republican victories in the midterm elections led to the Military Reconstruction Act of 1867 that Republicans enacted over President Johnson’s veto.

Congress passed this Act after it enacted the 14th Amendment but during a stalled state ratification process. The Act required as conditions for readmission to the Union by former Confederate states (except Tennessee), ratification of the 14th Amendment, and convening of new constitutional conventions, with Blacks authorized to vote for delegates, but not “such as may be disfranchised for participation in the rebellion or for felony at common law.” The law additionally disqualified former rebels from serving in the reform conventions:

“That no person excluded from the privilege of holding office by said proposed amendment to the Constitution of the United States, shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, nor shall any person vote for members of such convention.”15 [First Reconstruction Act, March 2, 1867, https://loveman. sdsu.edu/docs/1867FirstReconstructionAct.pdf.]

The 14th Amendment was not yet part of the Constitution. So, only this disqualification statute had the force of law.

In defense of disqualification under the Reconstruction Act, Republican Senator Charles Sumner of Massachusetts stressed the need for Congress to control former rebels. He said, “As loyalty, beyond suspicion, must be the basis of permanent governments, republican in form, every possible precaution must be adopted against rebel agency or influence in the formation of these governments.” He added, “The new governments must be founded on an unalterable basis of loyalty, and to that end no rebels must be allowed to exert any influence or agency in the formation of the new governments.”16 [Congressional Globe, 40th Congress, 1st Session, March 11, 1867, pp. 50-51.]

Contrary to many laws that targeted former Confederates in southern states, Section 3 enshrined disqualification in the Constitution with generic language that does not reference the rebellion or former rebels. Unlike statutes, as part of the Constitution, Section 3 endures indefinitely, free of tampering by future Congresses. Republican Senator Peter Van Winkle of West Virginia said during debates over the 14th Amendment, “This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood.”17 [Congressional Globe, 39th Congress, First Session, May 30, 1866, p. 2900.] (emphases added)

Decision-makers in Congress rejected versions of Section 3 that would have limited its temporal reach. One version that came to a vote in the Senate would have restricted the future application of the proposed Section 3 by limiting its coverage to those who had taken an oath to support the Constitution “at any time within ten years of January 1st 1861.” The Senate rejected this proposal by a vote of 32 to 10.18 [Id.] Another rejected version of Section 3, would have limited its application to the year 1870.Republican Representative Rufus Spalding of Ohio found this proposal “objectionable … for the reason the duration of the period of incapacity is not extended more widely.” He explained:

“I take my stand here that it is necessary to ingraft into that enduring instrument, called the Constitution of the United States, something which shall admonish this rebellious people and all who shall come after them that treason against the Government is odious; that it carries with it some penalty, some disqualification…”19 [Congressional Globe, 39th Congress First Session, 9 May 1866, p. 2509.]

B. Amnesty Acts passed by Congress after ratification of the 14th Amendment did not pardon future insurrectionists.

In 1872 and 1898, Congress enacted amnesty laws under Section 3. These laws were backward, not forward-looking. They pardoned persons previously disqualified under Section 3 but did not vitiate this provision of the Constitution by exempting future insurrectionists or rebels from its coverage.20 [In the case of Madison Cawthorn v. Constitutional Accountability Center, the Fourth Circuit Court of Appeals considered whether the “1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct.” It ruled that the legislation did not do so, but only applied to prior disqualifications: “We hold only that the 1872 Amnesty Act does not categorically exempt all future rebels and 29 insurrectionists from the political disabilities that otherwise would be created by Section 3 of the Fourteenth Amendment.” United States Court of Appeals for the Fourth Circuit, Madison Cawthorn v. Constitutional Accountability Center, No. 22-1251, 24 May 2022, at 4, 28-29.] The 1872 law reads as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each house concurring therein), That all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States.”21 [17 Stat. 142. The 36th and 37th Congress sat from 1865 through 1869.]

The plain meaning of this statute shows that it applies to persons previously disqualified from holding office. It does not constitute a blanket exemption for all those who might fall under the rubric of Section 3 in future insurrections or rebellions. It refers in the past tense to “disabilities imposed.” (emphasis added) Second, even for those already disqualified from holding office, the statute is not a comprehensive amnesty but includes exceptions.

Our study of the records of Congress demonstrates that debates centered on amnesty for those involved in the Southern Rebellion, not on amnesty for future insurrectionists. Decision-makers affirmed that the bill only applied to removing disqualification, with exceptions, from persons already disqualified under Section 3 for involvement in the Southern Rebellion. Senator Charles Sumner of Massachusetts said without dissent that the amnesty bill involved “the removal of the disabilities of rebels.”22 [Congressional Globe, 42nd Congress, Second Session, 13 February 1872, p. 983.] Republican Representative Benjamin Butler of Massachusetts further elaborated:

“The committee have instructed me to report a general bill, removing disabilities from all persons, with the exception of four classes … this is done with a desire to pass a bill which will remove disabilities from as many as can be done in the present juncture of affairs.”23 [Congressional Globe, 42nd Congress, Second Session, 13 May 1872, p. 3382.]

The report of the House Committee on the Judiciary during the consideration of a second amnesty bill in 1898 explained that the 1872 bill “removed political disabilities from all persons who had participated in the rebellion,” except for the specified classes.24 [Congressional Globe, 55th Congress, Second Session, 1 June 1898, p. 5404.] The Committee “was satisfied that the survivors or those once engaged in rebellion against this Government are loyal to the Union, and that it would be a fitting act before they all pass away, and while some of them are left, to remove the disability imposed by this amendment.”25 [Id., 5405.]

In 1898, Congress enacted a second amnesty law that removed the exceptions of the 1872 Act. The bill stipulated that (“[T]he disability imposed by section three of the Fourteenth Amendment to the Constitution of the United States heretofore incurred is hereby removed.” This legislation, too, is backward rather than forward-looking. It refers to disqualifications “heretofore incurred,” not to future eventualities. As explained by the Judiciary Committee’s Report, the bill was designed to eliminate the disqualification of those few former, still living Confederates excluded from the 1872 amnesty law. The Committee Report referenced Republican Representative James G. Blaine of Ohio, who, during debates on the 1872 amnesty bill, said that he had ascertained “the number of gentlemen in the South still under disability.” The Judiciary Committee’s Report noted that:

“The committee are satisfied that the survivors or those once engaged in rebellion against this Government are loyal to the Union, and that it would be a fitting act before they all pass away, and while some of them are left, to remove the disability imposed by this amendment.”26 [Id., p. 5405. The amnesty acts of 1872 and 1898 did not deter the US House from attempting in 1919 to disqualify Socialist Victor Berger from an elected House seat under Section 3. Berger had been convicted under the Espionage Act of 1917. The action became mooted when the US Supreme Court overturned his conviction. Berger et al. v. United States, 255 U.S. 22, 41 S.Ct. 230 (1921).]

C. Adverse consequences followed from requalifying former Confederates under amnesty.

After amnesty, many former Confederates gained election to leadership positions in southern states. The offices included governorships and other statewide offices, state legislative positions, and local offices. None were elected before amnesty. At least 20 ex-Confederates who had previously sworn an oath to support the U.S. Constitution served as governors of former Confederate states after amnesty.27 [Stephen M. Hood, Patriots Twice: Former Confederates and the Building of America after the Civil War (Savas Beatie, 2020).]

Pardoned former Confederates participated in the imposition of racial discrimination in the South that vitiated the intent of the Reconstruction 14th and 15th Amendments to protect the civil and political rights of the formerly enslaved people. White supremacists who regained power in the 1870s suppressed Black rights through violence and intimidation and during the rest of the century through laws and constitutional provisions that established Jim Crow discrimination. Ironically, the former Confederates under amnesty, who had the freedom to vote and hold office, participated in snuffing out Black voting in the South, first through intimidation and then through mechanisms such as literacy tests, poll taxes, and white primaries.28 [On the development of post-Reconstruction discrimination as related to voting and elections, see Allan J. Lichtman, The Embattled Vote in America, From the Founding to the Present (Harvard University Press, 2018), pp. 93-98.]

Some states enacted “Grandfather Clauses” that exempted from literacy tests persons whose ancestors had previously voted, essentially ruling in former Confederates and ruling out Black people. A study by J. Morgan Kousser found that although state-sanctioned and sponsored violence and intimidation had reduced Black suffrage in elections before legal disfranchisement, it declined more steeply after that. Another study by Kent Redding and David R. James found that Black presidential turnout in the eleven former Confederate states tumbled from an average of 61 percent in 1880 to but 2 percent in 1912.29 [J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880–1910 (Yale University Press, 1974), pp. 238-264; Kent Redding and David R. James, “Estimating Levels and Modeling Determinants of Black and White Voter Turnout in the South, 1880 to 1912,” Historical Methods 34 (2001): 141–158. For the implications of Reconstruction and its aftermath see, Orville Vernon Burton and Armand Derfner, Justice Deferred: Race and the Supreme Court (Belknap Press, 2021). See also, Adam H. Domby, The False Cause: Fraud, Fabrication, and White Supremacy in Confederate Memory (University of Virginia Press, 2020); Karen L. Cox, No Common Ground: Confederate Monuments and the Ongoing Fight for Racial Justice (University of North Carolina Press, 2021]

D. The framers did not require any additional actions by Congress to effectuate Section 3.

Section 3 was very explicit about what Congress was required to do and not to do: Congress could lift any disqualification for office only by a two-thirds vote. Strikingly, however, the Section did not require any action by Congress to disqualify insurrectionists. Section 3 mirrored other constitutional disqualifications based on age, residence, and birth that did not require any action from Congress.

No former Confederates whom Section 3 instantly disqualified from holding office were disqualified by an act of Congress or a criminal conviction for insurrection or rebellion. Former Confederate President Jefferson Davis recognized, for example, that Section 3 had automatically disqualified him from holding public office on the day the states ratified the 14th Amendment. Davis argued that he should be immune from prosecution for treason because of the penalty already imposed by this disqualification. Section 3, said Davis’ lawyer, “executes itself, acting proprio vigore. It needs no legislation on the part of Congress to give it effect.” Thus, the disqualification “punishment of Mr. Davis commenced upon the date of the adoption of the fourteenth article, and he therefore could not now be punished in any other way.” (emphasis added).

The government did not dispute the self-executing impact of Section 3 but opposed quashing the indictment. Chief Justice Salmon Chase, who was serving as a Circuit Court Judge, indicated he accepted Davis’ claim and would quash the indictment. Circuit Court Judge John Underwood did not agree to quash. However, the prosecution dropped the indictment prior to any resolution of the matter. Davis lived freely, although still under disqualification for a presidential run.30 [“Trial of Jeff Davis,” New York Times, 4 December 1868, p. 1; Case of Davis, Chase, 1; 3, p. 55; Am. Law Rev. 368, at 54- 55; Ellen C. Connally, “The Use of the Fourteenth Amendment by Salmon P. Chase in the Trial of Jefferson Davis,” Akron Law Review: 42 (2009), pp. 1198-1199.]

Statutory disqualifications, during the pendency of the 14th Amendment in the states, did not require congressional action or court order. Yet, they were essential for restoring loyal governments in the South, readmitting rebel states to the Union, and eradicating the Black Codes. As indicated by the memo of the Adjutant General of the War Department on June 20, 1867 cited above, disqualifications, based on the text of Section 3, were enforced summarily by military commanders under the authority of the Reconstruction Act of 1867.31 [The Confederate Records of the State of Georgia, Reconstruction Act, March 2, 1867, p. 136, The Confederate records of the State of Georgia: Georgia. General Assembly: Free Download, Borrow, and Streaming: Internet Archive.]

In the 1869 Griffin’s Case, Justice Chase, again sitting as a Circuit Judge, denied the habeas corpus claim of convicted defendants to abrogate their sentences because the presiding judge was disqualified under Section 3. Justice Chase recognized that “The amendment applies to all the states of the Union, to all offices under the United States or under any state, and to all persons in the category of prohibition, and for all time present and future.”32 [United States Circuit Court. District of Virginia. Ex parte Cæsar Griffin The American Law Register (1852-1891), Vol. 17, No. 6, New Series Volume 8 (Jun., 1869), at 362-363.] (emphasis added) He thus recognized no limitation of the offices to which Section 3 applied or any temporal restrictions. However, he ruled narrowly that the prohibition cannot be applied to invalidate the actions of officials lawfully seated before the ratification of the 14th Amendment:

“It results from this examination that persons in office by appointment, or election, before the promulgation of the fourteenth amendment, are not removed therefrom by the direct and immediate effect of the prohibition to hold office contained in the third but that legislation by Congress is necessary to give effect to the prohibition, by providing for such removal.”33 [Id., at 366.]

Griffin’s was not a U.S. Supreme Court case but a ruling by a single justice sitting as a Circuit Court judge. Legal authorities have criticized the ruling.34 [William Baude and Michael Stokes Paulsen, “The Sweep and Force of Section Three,” University of Pennsylvania Law Review, 172 (forthcoming 2024).] Regardless, his ruling applies only to those in lawful office before July 9, 1868, the date of ratification.

In the Davis case, with no lawfully elected official involved, Chase had agreed with Davis’ argument that he had already been punished under the “self-executing” Section 3 and “the indictment should be quashed, and all further proceedings barred by the effect of the fourteenth amendment to the constitution of the United States.”35 [Id., Case of Davis, p. 80.] Thus, Griffin’s ruling has no bearing on the issue of disqualifying candidates for office.

CONCLUSION

For all the foregoing reasons, the Court should take cognizance that Section 3 of the 14th Amendment covers the present, is forward-looking, and requires no additional acts of Congress for implementation.

Respectfully submitted,

Michael J. Kasper
Counsel of Record
151 North Franklin Street, Suite 2500
Chicago, Illinois 60606
(312) 704-3292
[email protected]

Attorney for Amici Curiae

APPENDIX

TABLE OF APPENDICES

APPENDIX — AMICI CURIAE 1a

APPENDIX — AMICI CURIAE

(University affiliation provided for identification purposes only)

Orville Vernon Burton is the Judge Matthew J. Perry Distinguished Professor of History at Clemson University, and University Distinguished Teacher/Scholar Emeritus, University of Illinois.

Allan J. Lichtman is Distinguished Professor of History at American University.

Nell Irvin Painter is the Edwards Professor of American History Emerita, of Princeton University.

James McPherson is the George Henry Davis ’86 Professor Emeritus of United States History, Princeton University.

Manisha Sinha holds the Draper Chair in American History at the University of Connecticut.

Erik B. Alexander is Associate Professor of History at Southern Illinois University Edwardsville

Shawn Leigh Alexander is Professor of African and African-American Studies at the University of Kansas

Karen L. Cox is Professor of History at the University of North Carolina at Charlotte and the 2024 Lewis P. Jones Professor of History at Wofford College.

Adam H. Domby is Associate Professor of History at Auburn University.

Paul Escott is the Reynolds Professor of History, Emeritus Wake Forest University.

Terence R. Finnegan is Professor of History at William Paterson University.

Hilary N. Green is the James B. Duke Professor of Africana Studies at Davidson College.

Steve Hahn is Professor of History at New York University.

Peter C. Hoffer is Distinguished Research Professor at the University of Georgia.

J. Morgan Kousser is Professor of History and Social Science Emeritus at the California Institute of Technology.

Lawrence McDonnell is Associate Professor of History at Iowa State University

Scott Nelson is the UGA Athletic Association Professor of History, University of Georgia

Kenneth W. Noe is the Draughon Professor of Southern History Emeritus, Auburn University.

Lawrence Powell is the James H. Clark Endowed Chair in American Civilization and History Emeritus, Tulane University.

George C. Rable, Charles G. Summersell Chair of Southern History, Emeritus University of Alabama

David Roediger is the Foundation Distinguished Professor at the University of Kansas

Brooks D. Simpson is ASU Foundation Professor of History at Arizona State University.

Harry L. Watson is the Atlanta Distinguished Professor in Southern Culture, Emeritus Department of History ,University of North Carolina at Chapel Hill.

Thomas C. Holt is the James Westfall Thompson Distinguished Service Professor, Emeritus Department of History, at the University of Chicago.

Thomas J. Brown is Professor of History of the University of South Carolina.

[admin]

Part 1 of 5

Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment
by James A. Heilpern1 & Michael T. Worley2
January 1, 2024

1 Senior Fellow at BYU Law School. The authors would like to thank Daniel Ortner, Sarah Jenkins Dewey, Christian Sanchez Leon, Alex Worley, and Samuel Clemence for their editorial help, as well as Kindra Heilpern and Robert Forsberg for facilitating access to important research materials. The authors would also like to thank Josh Blackman, Seth Tillman, and Will Baude for comments on previous drafts of this article.
2 Attorney, Provo, UT. The work of this paper should not be attributed for good or ill to my employer or any other entity. These entities had nothing to do with this paper, which was written off the clock.

CONTENTS

INTRODUCTION……………………………………………………………………….3  
I. Summary of Past Scholarship and its use in the Colorado proceedings ................... 6  
A. Summary of the Blackman-Tilman Interpretation .................................................. 6  
B. Reliance by Lower Colorado Court ..................................................................... 10  
C. Rejection by Colorado Supreme Court ............................................................... 11  
D. The Colorado GOP’s Petition for Certiorari ......................................................... 12  
II. The Phrase “Officer of the United States” included the President at the time of the Founding ......................................................................................................................... 13  
A. Corpus Linguistics Evidence Supports that the President is an Officer of the United States. .............................................................................................................. 13
B. At the time of the Founding, “appoint” and “elect” were used interchangeably ... 17  
1. Text of the Constitution ................................................................................... 19  
2. Early State Constitutions ................................................................................. 20  
3. Articles of Confederation ................................................................................. 21  
4. Addresses to and from George Washington ................................................... 23  
C. The Text of the Constitution Identifies the Presidency as an Office .................... 26  
D. Additional context about the original meaning of “officer of the United States” in the 1789 Constitution. ................................................................................................. 27  
1. Appointments Clause ...................................................................................... 27  
2. Impeachment Clause ...................................................................................... 31  
3. The Presidential Oath and the Article VI Oath ................................................ 33  
4. Commission Clause ........................................................................................ 35  
III. A Primer on Linguistic Drift ...................................................................................... 37
IV. Evidence that Officers (Including Officers of the United States) May Be Elected .... 39  
A. Evidence from the text of the Fourteenth Amendment ........................................ 39
B. Evidence from the Legislative History of the Fourteenth Amendment ................ 41
C. Evidence from the Ratification Debates of the Fourteenth Amendment in the States .......................................................................................................................... 45
D. Evidence from Legislative History of the Fifteenth Amendment .......................... 47
E. Evidence from Popular Sources that Officers are Elected. ................................. 48
V. Evidence that the President is an officer of the United States for purposes of the Fourteenth Amendment .................................................................................................. 53
A. Evidence from the Legislative History of the Fourteenth Amendment ................ 53
B. Evidence from the Impeachment Trial of Andrew Johnson ................................. 55
C. Evidence from President Andrew Johnson’s Appointment Proclamations .......... 59
D. Evidence from the Amnesty Proclamations of Presidents Lincoln and Johnson 60
E. Evidence from Other Contemporary Sources ..................................................... 63
VI. Hartwell and Mouat revisited ................................................................................... 69
A. United States v. Hartwell Supports Our Conclusion that the President is an Officer of the United States. ........................................................................................ 69
B. United States v. Mouat’s test misconstrues the Appointment Clause by ignoring the modifying clause .................................................................................................... 70
CONCLUSION ………………………………………………………………………………... 72
APPENDIX A ……………………………………………………………………………….…. 73
APPENDIX B ……………………………………………………………………………….…. 79
APPENDIX C …………………………………………………………………………………. 84

INTRODUCTION

In 1868, three years after the conclusion of the Civil War and the assassination of Abraham Lincoln, the 14th Amendment was ratified and became part of the United States Constitution. The Amendment officially overturned the notorious Dred Scott decision and was designed to grant citizenship and ensure equal protection under the law for recently freed slaves. But Section 3 of the Amendment also contained a provision that limited the ability of a small class of a former Confederates—those that had previously taken oaths to support the U.S. Constitution—from holding public office in the future:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Six months ago, William Baude and Michael Stokes Paulsen made headlines by publishing an article on SSRN, The Sweep and Force of Section Three,3 [William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 118-22), https://ssrn.com/abstract=4532751. Our primary focus for this article is answering whether the President is an “officer of the United States.” We do not purport to cite every piece addressing the meaning of Section 3, nor do we purport to address every topic relating to Section 3. Specifically, it appears to us that enforcement of Section 3 was lax, and we do not view this fact as probative of the original meaning of the text. For additional reading on these topics related to Section 3, the reader is directed to Baude and Paulsen’s article. For an alternative view, see Kurt T. Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment 42 (Oct. 3, 2023) (unpublished manuscript), https://ssrn.com/abstract=4591838; but see id. at 2-3 n.5 (declining to discuss whether the President is an “officer of the United States” under Section 3).] in which they argued that Donald Trump’s actions on January 6, 2021 qualified as an insurrection and that Section 3 therefore disqualified him from being elected President again. At the time, Trump was (and remains) the front runner for the Republican nomination for President in 2024. Baude and Paulsen’s paper inspired lawsuits in 21 states, seeking to remove President Trump from the upcoming primary ballots.

Most of the media attention has focused on whether Trump actually “engaged in insurrection.” This paper focuses on a far less titillating question. In order for Section 3 to apply to Donald Trump, he must have been an “officer of the United States” prior to committing the alleged insurrection. Baude and Paulsen argue that, as President of the United States, Trump was an officer of the United States.4 [Id. at 109; U.S. CONST. amend. XIV, § 3.] In making that argument, Baude and Paulsen disagreed with an earlier piece by Josh Blackman and Seth Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?5 [Josh Blackman & Seth Barrett Tillman, Is President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 NYU J.L. & Liberty 1 (2021).] Blackman and Tillman examined the original 1789 constitution and concluded that the founding generation understood that the President was not an “officer of the United States.”6 [Id. at 21–24.] Their analysis focused on the text of the constitution and subsequent sources. Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.”7 [Id. at 24.] This implies that “the elected President is not an ‘officer of the United States.’”8 [Id.]

The answer to this dispute has undeniable urgency: On December 19, 2023, the Colorado Supreme Court concluded that Donald Trump is ineligible to be on the Colorado Republican primary ballot for President because he is disqualified under Section 3.9 [Anderson v. Griswold, — P.3d —, No. 23SA300, 2023 Colo. LEXIS 1177, at *141-42 (Co. Dec. 19, 2023) (holding that “because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot.”).] The opinion reversed a trial court judge who had found Trump did commit insurrection but that Section 3 did not apply because Presidents are not officers of the United States.10 [Anderson v. Griswold, No. 23CV32577, ¶¶ 241, 298, 313 (Dist. Ct., City & Cnty. of Denver, Nov. 17, 2023) (“The Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 . . . [Here] the Court is persuaded that ‘officers of the United States’ did not include the President of the United States . . . As a result, [Section 3 of the 14th Amendment] does not apply to Trump.”). None of the dissenting Justices at the Colorado Supreme Court addressed this issue, leaving the majority’s conclusion that the President is an officer of the United States unchallenged. See Anderson, No. 23SA300, at *142-228.] Rejecting Trump’s contention that “officer of the United States” was a term of art, the state supreme court concluded that “[i]f members of the Thirty-Ninth Congress and their contemporaries all used the term ‘officer’ according to its ordinary meaning to refer to the President, we presume this is the same meaning the drafters intended it to have in Section Three.”11 [Id.] The court cited examples of the contemporaries of the Fourteenth Amendment referring to the President as an officer,12 [Id. at 83–84 (using one quote from the first session of the 39th Congress and one Supreme Court decision).] but only cited limited evidence about the use of the full term “officer of the United States.”13 [See generally id.] Baude and Paulsen similarly cite limited historical evidence, spending under ten pages on this issue, which they spend discussing logical reasoning more than historical evidence.14 [Baude & Paulsen, supra note 3, at 104-112.]

This article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and other arguments made in the Colorado litigation, including the argument that the President is not an officer because he is “elected” not “appointed,” and the argument that he is not an officer because he does not take an oath to “support” the Constitution as required by Article VI, but instead takes the Article II oath to “preserve, protect, and defend” the Constitution.15 [See infra Part I.] In Part II, we respond to these arguments as a textual matter, ultimately concluding that the President was an “officer of the United States” at the time of the Founding. Here, we (1) provide corpus linguistic evidence that the full phrase “officer of the United States” was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words “appoint” and “elect” were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an “officer of the United States” or otherwise indicate that he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President’s and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Part III, we briefly discuss the phenomenon of “linguistic drift.” In Part IV and V, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part IV, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including “officers of the United States.”16 [See infra Part III.] Part V then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified— explicitly referring to himself as either the “chief executive officer of the United States” or “chief civil executive officer of the United States.” Other evidence comes from numerous texts, including legislative history, Johnson’s impeachment trial, and newspapers.17 [See infra Part III.] Part VI reexamines case law that Blackman and Tillman rely on. We then conclude.

In his brief to the Colorado Supreme Court, President Trump argued that “not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” We have done our best to collect and catalog extensive evidence to the contrary.

Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States” was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1799, which lists the President with officers of the United States. Additionally, there is strong probative evidence that, in 1868, President was considered an officer of the United States.

I. Summary of Past Scholarship and its use in the Colorado proceedings

This section attempts to fairly familiarize the reader with Blackman and Tillman’s points, and walk through how their article informed the proceedings in the Colorado case regarding President Trump’s eligibility to appear on the Colorado Republican Primary ballot.

A. Summary of the Blackman-Tilman Interpretation

Blackman and Tillman argue that Section 3 of the 14th Amendment cannot bar President Trump from holding future office because the only office he has held is that of President, and the President is not an officer of the United States. They compare the text of the 14th Amendment to the text of the original constitution and infer that (1) “Section 3’s ‘officer of the United States’ language was imported from the Oath or Affirmation Clause[,]”18 [Blackman & Tillman, supra note 5, at 22.] and (2) “[i]n 1788, the President was not an ‘officer of the United States.’”19 [Id. at 24.] They also tentatively state a third conclusion: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.20 [Id. at 25.]

Blackman and Tillman first look at the constitution’s text, specifically the use of the term “officers of the United States” in the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath and Affirmation Clause. They claim that none of these clauses suggest the existence of officers who are elected, only officers who are appointed.

● First, Blackman and Tillman emphasize that the Appointments Clause states that the President shall appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”21 [Id. at 22 (citing U.S. CONST. art. II, § 2, cl. 2). They fail to quote the entire relevant language, see nn. ___ - ____ and accompanying text here.] Because the President does not appoint himself, they reason that he cannot be an officer of the United States.

● Next, they rely on the Impeachment Clause’s reference to “The President, Vice President and all civil Officers of the United States.”22 [Id. at 22 (citing U.S. CONST. art. II, § 4).] From this language, they conclude that “the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves. Otherwise, the Framers would have stated that ‘all other civil officers’ were subject to impeachment.”23 [Id. (emphasis in original).]

● Third, they cite the Oath or Affirmation Clause, which requires the “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States”24 [U.S. CONST. art. VI, § 3.] to take an oath to “support the Constitution.” But because the President takes a different oath specified at the end of Article II, they conclude he must not be an officer of the United States.

● Finally, they note that Article II, Section 3, states that the President “shall Commission all the Officers of the United States.”25 [U.S. CONST. art. II, § 3.] Here, they argue, “All means all. This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a president, vice president or a member of Congress, ever receiving a [presidential] commission.”26 [Blackman & Tillman, supra note 5, at 22 ( quoting U.S. CONST. art. II, § 3).]

Based on their analysis, Blackman and Tillman claim that “Section 3’s ‘officer of the United States’ language was imported from the Oath or Affirmation Clause.”27 [Id. at 23.] They make this claim because both clauses “reference the same four categories of office holders who swore an oath to support the Constitution: [1] Senators and Representatives, [2] members of the state legislatures, [3] executive and judicial officers of the United States, and [4] executive and judicial officers of the states.”28 [Id. at 11.] Based on the parallel structure of these clauses, they conclude that because the President is not mentioned in the Oath or Affirmation Clause, the parallel language of Section 3 excludes him.

Blackman and Tillman next argue that “[i]n 1788, the President was not an ‘officer of the United States.’”29 [Id. at 24.]To support this conclusion, they first state that “[e]lected officials like the president are not ‘Officers of the United States.’”30 [Id. at 23.] Second, they rely on the drafting process surrounding the original Constitution:

For example, in the Succession Clause, the phrase “officer of the United States” was changed to “officer.” In the Impeachment Clause, the phrase “[President, Vice President,] and other Civil officers of the U.S.” was changed to “President, Vice President, and Civil Officers of the U.S.” And in its final form, the Impeachment Clause became: “President, Vice President, and all civil Officers of the United States.” The Framers changed the word that preceded “Civil Officers of the United States” from “other” to “all.”31 [Id. at 10 (citing 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 791, at 260 (Boston, Hilliard, Gray, and Co. 1833)).]

From these changes, they conclude:

This and other similar alterations to the draft constitution’s “office”- and “officer”-language were significant. First, these revisions show that this language was not modified indiscriminately. The Framers paid careful attention to the words they chose. Second, the use of “other” in the draft constitution shows that at a preliminary stage, the Framers used language affirmatively stating that the President and Vice President were “Officers of the United States.” But the draft constitution’s use of “other” was, in fact, rejected in favor of “all.” The better inference, arising in connection with the actual Constitution of 1788, is that the President and Vice President are not “Officers of the United States.”32 [Id. at 9–10.]

Finally, Blackman and Tillman tentatively conclude: “[W]e do not think linguistic drift occurred with respect to the phrase ‘officer of the United States’” between the founding in 1788 and the enactment of the Fourteenth Amendment in 1868.33 [Id. at 25.] They cabin this conclusion carefully, noting repeatedly that this conclusion was based on the lack of “direct, clear, or compelling evidence.”34 [Id. at 24.] They cite two cases—United States v. Mouat (1888) and United States v. Hartwell (1867)—as evidence.35 [Id. at 26 (citing United States v. Mouat, 124 U.S. 303 (1888) and United States v. Hartwell, 73 U.S. 385 (1867)).] They also cite to statements from two individuals who viewed the President as not an officer of the United States:

[quote]In 1876, the House of Representatives impeached Secretary of War William Belknap. During the trial, Senator Newton Booth from California observed, “the President is not an officer of the United States.” Instead, Booth stated, the President is “part of the Government.”

Two years later, David McKnight wrote an influential treatise on the American electoral system. He reached a similar conclusion. McKnight wrote that “[i]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’36 [Id. at 30 (citing Congressional Record Containing the Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War, on the Articles of Impeachment Exhibited by the House of Representatives 145; David A. McKnight, The Electoral System of the United States: A Critical and Historical Exposition of Its Fundamental Principles in the Constitution, and of the Acts and Proceedings of Congress Enforcing It 346 (Philadelphia, J.B. Lippincott & Co. 1878).]

However, Blackman and Tillman admit that they “do not suggest that there is no counter-authority” but ask for evidence “as probative as” their own before they accept the proposition of linguistic drift.37 [Id. at 31.] We do not suggest that, if Blackman and Tillman were right about these core points, that they would be wrong in the conclusion they draw: that a President who had not otherwise served as an officer of the United States would not be subject to the Fourteenth Amendment.38 [We, however, note that Blackman and Tillman concede that, had President Trump served as a member of Congress or been a governor prior to being elected president, he would be subject to Section 3. Id. at 47. Indeed, they note President Trump is “the only President in American history to have never held prior state or federal, civilian or military, public office.” Id. Correct. But this precedent has a bite. Accept that every President prior to Trump indeed had previously served “ as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State” until President Trump. Did the drafters of the Fourteenth Amendment really both anticipate that some future President would not have held such a position, and specifically intend to exclude him— but not the other Presidents— from the disability anticipated by Section 3?] Instead, we believe they are wrong on these points.39 [See Sec. II, III, IV, infra.]

Blackman and Tillman have written a more recent article, Sweeping and Forcing the President into Section 3, where they respond directly to Baude and Paulsen at length.40 [Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President Into Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming 2024).] Much of their substantive discussion is indistinguishable from their earlier discussion as they focus their attention on their existing scholarship on the term “officer of the United States.” As they did in their original article, they cite Senator Booth and David McKnight.41 [Id. at 535. (internal cites)] They discuss the other Clauses their first paper discussed, and spend time critiquing Baude and Paulsen’s discussion of this issue.42 [Id. at 535-36.]

But they continue to convey a commendable level of humility about their position: “Maybe Booth and McKnight were right, or maybe they were wrong. No doubt, there are other competing authorities.”43 [Id. at 537.] “We do not say this question has an obvious answer. Rather, we say it does not have an obvious one. If so, ambiguity leans against extending disqualifications.”44 [Id. at 543.] In discussing if there was linguistic drift regarding “Office … under the United States,” they say, "[w]e would prefer to add to the body of scholarship and be correct, rather than overreach and be wrong.”45 [Id. at 551 (italics removed).]

In their response to Baude and Paulsen, Blackman and Tillman point to the Oath and Affirmation Clause as the source of the meaning of terms in Section 3, suggesting that “[i]f we are correct, it illustrates that constitutional draftspersons, in 1789–1788 and 1866–1868, closely adhered to parliamentary drafting conventions,” and critique the legal academy for not understanding those conventions.46 [Id. at 541.] They also repeat an argument made in the Colorado litigation: that because the Presidential Oath says “preserve, protect and defend” and the Article VI oath says “support,” Section 3 includes the latter and excludes the former.47 [Id. at 542.] Blackman and Tillman also cite contemporary opinions by Attorneys General and others that link Article VI and Section 3.48 [Id. at 543–46.]

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Part 2 of 5

B. Reliance by Lower Colorado Court

In late 2022, Donald Trump announced he would run for President again.49 [Federal Election Commission, FEC Form 2; Statement of Candidacy, FEC-1661552 (2023), https://docquery.fec.gov/cgi-bin/forms/ ... 1/1661552/.] In September 2023, five Colorado residents sued Colorado’s Secretary of State, arguing that Trump was ineligible to be on the ballot in Colorado because he had violated Section 3.50 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *5 (Co. Dec. 19, 2023).] Obviously, Trump intervened.51 [Id.] Trump cited Blackman and Tillman in support of the proposition that the President was not an officer of the United States.52 [Anderson v. Griswold, Intervenors’ Proposed Findings of Fact and Conclusions of Law, 43, 57, Nov. 11, 2023.] Trump quoted the examples Blackman and Tillman gave: Senator Booth and Treatise writer David McKnight stating that the President was not an officer of the United States.53 [Id. at 43.] He also cited recent Supreme Court precedent, including the statement by Chief Justice Roberts that “[t]he people do not vote for the ‘Officers of the United States.’”54 [Id. (citing Free Enterprise Fund v. Public Company, Accounting Oversight Board, 561 U.S. 477, 497-98 (2010)).] Finally, Trump cited the Appointments Clause, the Impeachment Clause, the Commission Clause, and the Oath and Affirmation Clause, closely tracking Blackman and Tilman in some detail as to why each Clause supports the idea that the President is not an officer of the United States.55 [Id. at 44-46.]

The trial court ultimately ruled against Trump on every dispositive issue except whether the office of the President was an officer of the United States.56 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *14 (Co. Dec. 19, 2023).] While the court did not cite Blackman and Tillman, it did cite to the same four clauses that Blackman and Tillman and Trump’s briefing rely on—the Appointments Clause, the Commission Clause, the Impeachment Clause, and the Oath and Affirmation Clause.57 [Anderson v. Griswold, No. 23CV32577, ¶ 311 (Dist. Ct., City & Cnty. of Denver, Nov. 17, 2023).] The trial court also noted that the President takes a different oath than Article VI officers, suggesting that his oath was not covered by Section 3.58 [Id. ¶¶ 311, 313 n.19.]

However, part of the reason for the trial court’s decision was the implications of an alternative conclusion. The court stated:

To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.59 [Id. at 314.]

C. Rejection by Colorado Supreme Court

Trump’s core argument at the Colorado Supreme Court was that the catch-all phrase “officer of the United States” excludes the President as “no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion” supports the conclusion that the President is an officer and by contrast, three Constitutional provisions— the Appointments Clause, Impeachment Clause, and Commissions Clause in Article II— all distinguish the President from ‘officers of the United States.’ And ‘officers of the United States’ in Article VI take an oath different from the Presidential oath in Article II.”60 [Anderson v. Griswold, Intervenors’ Opening-Answer Brief, 11.] Trump also argued that the Presidential oath does not qualify as an oath under Section 3’s requirements for disqualification.61 [Id. at 12.]

The Colorado Supreme Court disagreed. The court concluded:

● “[T]he normal and ordinary usage of the term ‘officer of the United States’ includes the President.”62 [Anderson v. Griswold, No. 23SA300, 2023 Colo. LEXIS 1177, at *83 (Co. Dec. 19, 2023).]

● “Section Three’s drafters and their contemporaries understood the President as an officer of the United States.”63 [Id.]

● Trump was incorrect to argue that “‘officer of the United States,’... is a constitutional term of art” because the court “perceive[d] no persuasive contemporary evidence demonstrating some other, technical term-of-art meaning.”64 [Id. at 84.] In other words, if “officer of the United States” was a term of art, someone would have said so.

● Attorney General Stanbery’s opinions on the subject suggest that the term “officer of the United States was to be broadly understood.65 [Id. at 111.]

However, the Colorado Supreme Court did not cite much historical evidence referring to the President by the term “officer of the United States.” Many of the examples concerned referring to the President as an officer.

While three Justices dissented from the holding of the majority, none of them argued that the President was not an officer of the United States.66 [Id. at 155, 200-01 n.1 (using the term “officer of the United States” to reincorporate the language from Section 3 of the Fourteenth Amendment and from the holding of the majority). In his dissent, Justice Samour recognized the “vital need for definitional counsel” on questions such as who is an “officer of the United States.” Id. at 186. Yet Justice Samour declined to consider this issue. Id.]

D. The Colorado GOP’s Petition for Certiorari

The Colorado Republican Party has filed for certiorari, represented by Jay Sekulow, a long-time ally of Trump who has argued fourteen 14 or more cases at the Supreme Court. The leading question presented concerns whether the President is an officer of the United States.67 [Anderson v. Griswold, Petition for Writ of Certiorari, No. 23-696,(Dec. 27, 2023), i.] Their brief for certiorari reads like a merits brief.

In arguing that the President is not an officer of the United States, the brief makes the following core points: First, the President is not an officer because officers are commissioned by the President under the Commissions Clause, not elected.68 [Id. at 11-12.] Second, “officers of the United States” is a term of art that is only used in three places in the Constitution: Section Three of the Fourteenth Amendment, the Commissions Clause, and the Appointments Clause.69 [Id. at 12.] Trump argues that, “The Constitution uses a distinct, specific term, ‘officer of the United States.’ Generic references to the term officer do not overcome the more specific meaning evidenced by the constitutional language.”70 [Id. at 13.] Third, they rely on the same sources of Senator Booth and David McKnight that were previously explained.71 [Id.] Fourth, they make a distinction between the Presidential oath and the Article VI oath, relying on Attorney General Stanberry’s discussion of the Article VI oath.72 [Id. at 14.] Finally, they posit that this exclusion of the President from Section 3 makes sense as a policy matter:

Every Senator or Representative represents a geographic area where sympathy for insurrection was (at the time of the post-Civil War era) a real and legitimate concern. Lower federal officers, meanwhile, are not elected and thus do not face national electoral scrutiny. Only the President (and Vice-President) face nationwide electoral accountability. And if an electoral majority of the voters determine that they want a certain individual as Chief Executive, regardless of alleged or even actual past transgressions, that is their national choice under the Constitution.73 [Id. at 15.]

(This last argument appears poorly reasoned; if a President had previously served as a Senator, Governor, or General, as many Presidents have, it would not matter that “an electoral majority of the voters determine that they want [that former President] as Chief Executive” if that President committed insurrection; they would be ineligible to run for a second term. This argument does not explain why the Fourteenth Amendment’s drafters would have wanted to exclude only Presidents who had never held offices such as Senator, Governor, or General.)

II. The Phrase “Officer of the United States” included the President at the time of the Founding

Despite Blackman and Tillman’s articles being an impressive examples of careful scholarship, there are at least four reasons we disagree with the conclusion that the original public meaning of “officers of the United States” did not include the President or Vice President: (1) corpus linguistics evidence—including our own past research— demonstrates that at the time of the Founding, “officer of the United States” was not a term of art but instead referred to any federal official; (2) the assumption that there was a rigid distinction between “elections” and “appointments” is at odds by the historical record which shows that the words were instead used interchangeably; (3) the text of the Constitution specifically identifices the Presidency as an “office”; and (4) additional contextual considerations complicate Blackman and Tillman’s otherwise straightforward textual analysis. While this topic merits an article of its own, we will address each reason briefly below.

A. Corpus Linguistics Evidence Supports that the President is an Officer of the United States.

First, many who argue that the President is not an officer of the United States— including President Trump and Steven Calabresi—do so based on the assumption that the phrase “officer of the United States” is a term of art74 [74 See id. at 12; see also Steve Calabresi, Donald Trump Should be on the Ballot and Should Lose, The Reason (Sep. 16, 2023), available at: https://reason.com/volokh/2023/09/16/ steve-calabresi-donald-trump-should-be-on-the-ballot-and-should-lose/ (“Thirty-three years of academic research and writing on the presidency has persuaded me that the words ‘officer of the United States’ are a legal term of art, which does not apply to the President”). It should be noted that Blackman and Tillman agree that the phrase “was not a fixed term of art.” Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. TEX. L. REV. 349, 444 (2023).] —an assumption that past research refutes. In 2018, we wrote an amicus brief on behalf of fifteen scholars of corpus linguistics which was submitted to the U.S. Supreme Court in the case Lucia v. SEC.75 [Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Lucia v. SEC, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm ... id=3132688.] As part of that brief, a corpus linguistic analysis of the phrase was performed, from which we drew the following conclusions:

The phrase “Officer(s) of the United States” appears in [BYU’s Corpus of Founding Era American English (“COFEA”)] just 109 times between 1789 and 1799, with just over a third of those being direct quotations of the Constitution. This is a tiny minority of the 5,353 times the word “officer” appears in the database overall during this same period―even though 59.8% of the time the word “officer” appears in COFEA it is clearly referencing a federal [official].

While the relative obscurity of the longer phrase does not prove that it was not a legal term of art at the time of the Founding, we perceive no specialized meaning attached to its use [to suggest that it was]. Instead, the appellation was often used simply to clarify that the agent was in the employ of the federal government, as opposed to a private actor or employee of a state or territory.

For example, in a letter to George Washington, General Arthur St. Clair expressed concern that the Attorney General of the new Ohio territory “would be an Officer of the Territory only, whereas he should be an Officer of the United States.” Likewise, Alexander Hamilton wrote to New York merchant William Seton, requesting he purchase public debt on behalf of the federal government since the government had yet to “employ some officer of the United States” for the task.

We did not see then—and do not see now—any evidence to suggest that the term excluded the President or was limited to some special subclass of federal officials. To the contrary, it applied broadly to all government officials—“civil and military”―exercising any nontrivial federal authority. For instance, in his Eighth Annual Address to Congress at the end of 1797, George Washington called for “legislative revision” of “[t]he compensation to the officers of the United States,” particularly “in respect to the most important stations.” Congress responded the following March, raising the salaries of sundry government officials, starting with “the President and Vice President of the United States.”76 [Act of March 19, 1798, ch. 18, 5 Stat. 542.] The fact that Congress did not use the phrase “officers of the United States” in this appropriations bill, but instead referred generally to “officers,” “offices,” and “persons employed,” even when referring to positions such as the Secretary of State, Attorney General, Secretary of the Treasury, Secretary of War, Chief Justice, and Consuls—positions that neither Blackman and Tillman nor President Trump would dispute are “officers of the United States” —further demonstrates that the larger phrase was not considered a term of art.

In fact, a corpus search of BYU’s Corpus of Early Statutes at Large—which the authors of the Lucia brief created and which contains all of the Statutes at Large from the first five Congresses—reveals that Congress almost never used the phrase “officer(s) of the United States” during this time period, despite being an era when Congress was constantly exercising its power to “establish[] by law”77 [U.S. Const., art. II, sec. 2.] such positions within the new government. In its first decade, Congress used the phrase just thirteen times, while using the word officer or officers 1,481 times and office or offices 630 times. This would be baffling if “officer of the United States” was a legal term of art but makes perfect sense if the phrase merely designated a federal official—after all it was the Congress of the United States creating the positions, what other type of office would we expect? One for Virginia? Japan? In the absence of clear textual clues to the contrary—such as perhaps territorial officers—the default assumption should be that all of such positions created by Congress are officers of the United States.

In addition, of the thirteen times the full phrase appears, one—a postal bill specifying which “officers of the United States” should be granted a franking privilege—specifically listed both the President and Vice President as officers of the United States.78 [Act to Establish the Post Office of the United States, 5 Stat. 733.] The Postal Act of 1799 stated:

Sec. 17. And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster . . .; each member of the Senate and House of Representatives of the Congress of the of the United States; the Secretary of the Senate and Clerk of the House of Representatives . . .; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the Revenue.

The conclusion that the phrase “officer of the United States” was not a term of art at the time of the Founding is further buttressed by the research of Professor Jennifer Mascott, who used aspects of corpus linguistics to demonstrate that the phrase was in use prior to the creation of the Constitution.79 [Jennifer L. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443 (2018).] Using a corpus of 340,000 issues of early American newspapers, she found twenty uses of the phrase “prior to the signing of the Constitution on September 17, 1789.”80 [Id. at 478.] The first reference was in 1780, describing Benedict Arnold as a “general officer of the United States.”81 [Id.] It appeared again in 1783 referring simply to continental officers. Other uses included “Judicial Officers of the United States” and “commissaries and other officers of the United States” who gave out certifications of debt under the Constitution.82 [Id. at 479.]

Mascott also performed a corpus analysis of the Journals of the Continental Congress, “a highly relevant source for identifying the well-understood meaning of legally relevant terms and phrases in the time period just prior to… the drafting and ratification of the Constitution.”83 [Id. at 477.] The Journals contain forty-one references to “officer(s) of the United States.” Often the phrase was “just another way to describe continental military officers or to identify continental-level, as opposed to state-level, officers.”84 [Id. at 477-78.] For example, one letter distinguished between the time a military officer served as an “officer of the United States” and the time he served as a captain for his State.85 [Id. at 478 n.175.]

From both a legal and linguistic perspective, we think the importance of the full phrase “officer of the United States” not being a term of art at the time of the Founding cannot be overstated. It narrows the scope of the linguistic inquiry: the meaning of the word “officer” standing alone becomes the relevant question, with “of the United States” simply being a prepositional phrase functioning as an adjective. A comment by Alexander Hamilton in Federalist 67 supports this conclusion:

The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."86 [The Federalist 67 (Alexander Hamilton). (Capitalization in original).]

While we will return to the substance of Hamilton’s statement later, what’s important for present purposes is his interesting use of capitalization for emphasis. If he had understood the term “officers of the United States” to be a term of art, he would have written “OFFICERS OF THE UNITED STATES.” But he didn’t. He focused on just the word “OFFICERS.”

The addition of a modifier—whether it’s “tall,” “red,” or “of the United States” —can rarely change the meaning of the underlying noun it is modifying. As we observed in another corpus linguistics-based amicus brief we wrote in a different Supreme Court case:

An adjective is a word that modifies nouns and pronouns, primarily by describing a particular quality of the word that it is modifying. In syntactic representations the adjective is a subordinate category, a dependent of the noun . . . that it modifies. In layman’s terms, this means that in the relationship between adjectives and their nouns, the noun is king—an adjective’s meaning and scope is always relative to the noun it is modifying. . . . Put another way, an adjective can hardly ever decontextualize a noun.87 [Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Rimini Street v. Oracle, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley) (cleaned up and internal quotation marks and citations omitted).]

We think that this is important for evidentiary purposes: it dramatically expands the universe of helpful examples relevant in determining the original public meaning of the phrase in at least three ways. First, we can assume that references to “federal officers,” “national officers,” “officers of the federal government,” “United States officers” and similar phraseology are also references to “officers of the United States” —unless, of course, there is evidence that one of those phrases is a term of art.

Next, we also think that it makes historical details about state and local officers more relevant. While the fact that a state constitution might allow for a governor or other state officer to be elected doesn’t tell us anything about whether the U.S. Constitution allows for a federal officer to be elected, it does provide evidence that there was nothing inherently wrong about officers generally being elected.

Finally, in his brief to the Colorado Supreme Court, President Trump argued, that “despite the many words and citations that treat the President as an officer[,] not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” While our discovery of the Postal Act of 1799 has already proven that the former President’s assertion is not true, even if it were, it wouldn’t matter. Those many “words and citations that treat the President as an officer” are absolutely relevant unless it can be shown that the full phrase “officer of the United States” means more than the sum of its parts. Which it does not.

B. At the time of the Founding, “appoint” and “elect” were used interchangeably

Second, the argument that the President is not an officer of the United States is built on the assumption that there is a rigid distinction between appointments and elections. Blackman and Tillman have repeatedly stated this:

● “In order to reach this . . . conclusion [that the President could be an “Officer of the United States”], the interpreter must reject the distinction we drew between elected and appointed federal positions.”88 [Blackman & Tillman, supra n. 74, at 391.]

● “The Constitution hardwired this distinction between appointment and election.”89 [Id.]

● “The President is in ‘the service of the government,’ but is not appointed by a President, a court of law, or a department head; indeed, he is not appointed at all . . . the Constitution expressly states that the President ‘shall . . . be elected.’ Under the rule in Mouat, the President is not ‘strictly speaking’ an officer of the United States.’”90 [Blackman & Tillman, supra n. 5, at 27.]

● “Presidents are not appointed; they are elected.”91 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Defendant-Appellee Secretary of State Jocelyn Benson and in Support of Affirmance of the Court of Claims’ Order Denying Plaintiffs’ Prayer for Relief, Dkt Nos. 368615 & 368628 (Mich. Court of Appeals Dec. 6, 2023) (file, Available at SSRN: https://ssrn.com/abstract=4655777.]

● “Presidents are not ‘appointed’ by the ‘government.’ Rather, Article II describes the President as an ‘elected’ position in several clauses.”92 [Tillman, supra n. 132, at 23.]

And they are not alone: Steven Calabresi93 [Calabresi, supra n. 76.] and Michael Mukasey94 [Michael B. Mukasey, Was Trump ‘an Officer of the United States’?, Wall Street Journal (Sept. 7, 2023), available athttps://www.wsj.com/articles/was-trum ... amendment- 50b7d26.] have all made similar arguments. But there is one really good reason to “reject the distinction [they all draw] between elected and appointed federal positions”: It didn’t exist at the time of the Founding. It’s a linguistic anachronism. The words appear to have been used interchangeably, at least to the extent that an election was considered a mode of appointment. For example, in a speech given during the Constitutional Convention, James Madison discussed different options for selecting the President: “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.”95 [“Method of Appointing the Executive, [25 July] 1787,” Founders Online, National Archives, https://founders.archives.gov/documents ... 10-02-0072. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 115–117.]] Likewise, during the impeachment trial of Senator William Blount, Congressman Robert Harper of South Carolina—one of the House Impeachment Managers—stated, “[T]he President himself is liable to be impeached, as well as the officers whom he appoints. So also is the Vice President. And yet these two great officers are appointed by the people themselves, in a manner far more direct and immediate than Senators, and removable at shorter periods.”96 [8 Annals of Cong. 2315 (1799) (Gales and Seaton ed., 1851). V]

And these comments were not one-offs. As we will show below, the historical record— including the text of the Constitution itself, the Articles of Confederation, early state constitutions, and repeated statements to and by George Washington — overwhelmingly shows that the Founding generation used the word “elect” and “appoint” largely as synonyms.

1. Text of the Constitution

To begin with, the text of the Constitution itself demonstrates that the founding generation did not use the words “appoint” and “elect” in the same binary fashion we do today. This is evident in the original Constitution’s discussion of the Electoral College. It is often easy to forget that while the President is “elected” (as it states in the Constitution), he is not elected by the people. He is elected by the Electoral College—a non-standing, multi-member body of sorts whose members choose the President and Vice President by vote. But how are these Electors chosen? There is no Constitutionally required method. Article II, Section 1 simply states: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”

Ten states participated in the first Presidential Election of 1788-89.97 [North Carolina and Rhode Island had not yet ratified the Constitution. New York failed to appoint electors by the deadline set by Congress.] While the methods for appointing electors varied, none followed the pattern we are accustomed to today with a single individual or council (with or without the approval of a legislative body) unilaterally making the decision. Instead, four states “appointed” these electors through popular elections. Unlike today where the voters generally cast ballots for Presidential candidates (with slates of electors who support the winner of the popular vote in the state being appointed behind the scenes in accordance with state law) in several states in 1789, the citizenry voted for individual electors. For example, “Virginia chose presidential electors by popular vote. The state was divided into electoral districts. The voters in each district selected one presidential elector, who was then certified to the governor by the sheriffs of the counties comprising that district.”98 [Library of Virginia, Presidential and Congressional Election Returns at the Library of Virginia, available at:https://www.lva.virginia.gov/public/guides/rn21_election.pdf.] Delaware followed a similar procedure.99 [The Papers of George Washington, The Electoral Count for the Presidential Election of 1789, archive available at: https://web.archive.org/web/20130914141 ... l/electora l.html.] And Pennsylvania and Maryland chose their electors through state-wide elections, with the highest vote getters at-large being “appointed.”100 [Id.]

Massachusetts and New Hampshire followed hybrid models. In Massachusetts, a popular election was held in each of eight districts, but then the legislature appointed one of the two highest vote getters.101 [Id.] In New Hampshire, a state-wide election was held, and then the legislature selected five of the top ten vote getters.102 [Id.] In three states—Connecticut, Georgia, and South Carolina—the state legislatures appointed their respective electors entirely themselves.103 [Id.] But how does a multi-member legislative body “appoint” someone? As one newspaper article about the legislative component of the Massachusetts process explained, “the Members of the two Houses [of the Legislature], assembled together in one room for the choice of Electors of President and Vice President of the United States, and proceeded to the choice by joint ballot.”104 [ ] In other words, they voted.

Thus in nine of the ten states, the electors were chosen through some sort of election— either by the people, the legislature, or both. But these elections did not mean that the electors were not appointed. Instead, it demonstrates that at the time of the Founding, appointments and elections were not thought to be mutually exclusive.

2. Early State Constitutions

Next, we find evidence that the founding generation used the words “appointed” and “elected” interchangeably in the first constitutions of the thirteen original states. We collect the relevant text of these Constitutions in Appendices A and B. At the time, popular elections for chief executives and judges were almost unheard of.105 [ But see, Const. of Mass. (1780).] Instead, executive and judicial officers were typically chosen by a state’s General Assembly. But while some of the states used the word elect to describe this process,106 [See, Const. of N.J., art. VII (1776) (“That the council and assembly jointly in their first meeting after each annual election, shall by a majority of votes, elect some fit person with the Colony to be a governor for a year.”).] others used the word appoint.107 [Const. of Del., art. 12 (1776) (“The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county, one of whom in each court shall be styled "chief justice," (and in case of division on the Ballot the president shall have an additional casting voice,); Const. of Va. (1776) (““The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, and the Attorney-General.”] Often the same Constitution would use both words to describe the same process, often in the same sentence! For example, under the Georgia Constitution of 1776, the Governor was “cho[sen] . . . by ballot” by the legislature—that the drafters of Constitution considered this process to be both an election and an appointment is demonstrated by the governor’s Constitutionally-mandated oath of office: ““I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously' according to law . . .” Likewise, the Maryland Constitution states that “a person of wisdom, experience, and virtue, shall be chosen as Governor . . . by the joint ballot of both houses.” The ballots were to be counted by “a joint committee of both Houses” and the results then reported to the rest of the Assembly so “that the appointment may be entered.” However, the Constitution then specified that if after two rounds of voting, two or more candidates received the same number of votes, “then the election of the Governor shall be determined by lot.”

3. Articles of Confederation

Similarly, there is ample evidence that Continental Congress under the Articles of Confederation used the two words interchangeably as well. The Articles of Confederation were adopted by the Continental Congress on November 15, 1777, as the new nation’s first constitution. It used the word “appoint” (or one of its variations) twenty times, but for present purposes we will focus on just one. Article IX—the predecessor to the Constitution’s Appointment Clause—gave the “united states in congress assembled . . . [the] authority . . . to appoint civil officers as may be necessary for managing the general affairs of the united states under their direction.”108 [Articles of Confederation, art. IX.] But despite this verbage, the Journals of the Continental Congress often used the word “elect” for such actions. We have reproduced just a handful of the many examples below:109 [We found these and many more examples using the Corpus of Founding Era American English. Our search can be replicated by searching for the word “secretary” within six words on either side of “elect*” during the time frame 1777-1788.]

● “Pursuant to the resolution of the 7th of March last, Congress proceeded to the election of a minister plenipotentiary, to succeed Mr. J. Adams at the court of the United Netherlands, and, the ballots being taken, William Livingston, esqr was elected having been previously nominated by Mr. Stewart.”110 [1785 Journals of the American Congress 541 (1823), available at http://tinyurl.com/ymu6udjw.]

● “Congress proceeded to the election of a secretary and paymaster to the navy board in the middle district, and the ballots being taken, Mr. Joseph Pennel was elected.”111 [1779 Journals of the Continental Congress 345 (1909), available at http://tinyurl.com/2j748b9p.]

● “According to the order of the day, Congress proceeded to the election of a Secretary for foreign affairs, but not agreeing in the choice, Resolved, That the order for electing a Secretary for foreign affairs, be postponed til Monday next.”112 [1784 Journals of the American Congress 340 (1823), available at http://tinyurl.com/5n733cxe.]

● “Ordered, That the election of a secretary for foreign affairs be postponed till Friday next.”113 [1781 Journals of the Continental Congress 637 (1912), available at http://tinyurl.com/4mhe4haf.]

While some of these “elections” were undoubtedly uncontested—reminiscent to Senate confirmations today—others clearly featured multiple candidates, as demonstrated by a letter from James Mitchell Varnum, a delegate to the Continental Congress from Rhode Island, to General George Washington: “We have attempted to elect a Secretary at War— Genls Greene, Lincoln & Knox are in Nomination; all the Votes for one or other of those Gentlemen. We effected nothing.”114 [Letter from James Mitchell Varnum, delegate to the Continental Congress, to George Washington (October 2, 1781), available at https://founders.archives.gov/documents ... 1-02-07078.]

We also found evidence that in their private correspondence, many delegates (and former delegates) to the Continental Congress used the words “appoint” and “elect” as synonyms, even when talking about the same position! For example, in 1781, George Washington wrote a letter to Phillip Schuyler—the father-in-law of his young protegee Alexander Hamilton—informing Schuyler of his “prospect of . . . election” as “Minister of War” and urged him not to refuse the post “if the choice should fall on you.”115 [Letter from George Washington to Philip John Schuyler (Feb. 20, 1781), available at https://founders.archives.gov/?q=%20Aut ... %22your%20 election%22&s=1111311111&r=2.] But four years later, Washington wrote to Henry Knox after the latter was appointed to the same position, saying “It gave me great pleasure to hear of your appointment as Secretary at War – without a complimt [sic], I think a better choice could not have been made.”116 [Letter from George Washington to Henry Knox (June 18, 1785), available at https://founders.archives.gov/documents ... 03-02-0057.] Likewise, in 1779, John Adams wrote to Samuel Huntington, the President of the Continental Congress, stating: “I had Yesterday the Honor of receiving your Letter of the twentieth of October inclosed with two Commissions, appointing me Minister Plenipotentiary, from the United States, to negotiate Peace and Commerce with Great Britain.”117 [[September and October 1779] ,” Founders Online, National Archives, https://founders.archives.gov/documents ... -0002-0001. [Original source: The Adams Papers, Diary and Autobiography of John Adams, vol. 4, Autobiography, Parts Two and Three, 1777–1780, ed. L. H. Butterfield. Cambridge, MA: Harvard University Press, 1961, pp. 173–191.]] Yet he told the Comte de Vergennes, ““The Congress of the United States of America did me the honor to elect me their Minister Plenipotentiary, to negotiate a Peace with Great Britain[.]”

As in state constitutions, sometimes the terms were used interchangeably even in the same document. Consider the following letter from Samuel Huntington, President of the Continental Congress, to Thomas Jefferson, informing the latter of his appointment as a peace commissioner:

Before this comes to Hand your Excellency will have received my Letter of the 2d Instant with it’s Enclosures, by which you will be informed that a Negotiation for Peace between the Belligerent Powers may probably take Place through the Mediation of the Empress of Russia and Emperor of Germany.

In Consequence of which Congress have thought proper to add four other Plenipotentiaries to the Honorable John Adams Esquire to assist in the expected Negotiation, of which you are elected one . . . . Your Appointment is ordered to be kept secret that the Enemy may not get Intelligence of your Embarkation.

With very great Respect I have the Honor to be Your Excellency’s Most obedient & most humble Servant,

SAM. HUNTINGTON President

Enclosure
By the United States in Congress assembled

June 14. 1781

Resolved That four persons be joined to Mr. Adams in negotiating a peace between these United States and Great Britain.

The following were elected

The honble. Benjamin Franklin
The honble John Jay
The honble. Henry Laurens
The honble. Thomas Jefferson118 [Letter from Samuel Huntington, President of the Continental Congress, to Thomas Jefferson (June 15, 1781), available at http://tinyurl.com/2aw9jerj.]

Given this clear linguistic pattern in both early state Constitutions and the Articles of Confederation, it seems odd to suggest that a rigid distinction between the two words would suddenly appear in 1787 in the U.S. Constitution.

4. Addresses to and from George Washington

We have shown that the Founding generation frequently used the word “elect” to describe the process of appointment, but is the inverse true as well? Were the “elected” positions in the Constitution ever referred to as “appointments?” The answer is a resounding yes.

When George Washington was elected president in 1789, he was universally “sated with adulation.”119 [Ron Chernow, WASHINGTON: A LIFE 563 (2010).] His trip from Mount Vernon to New York for his inauguration took longer than he expected because he was constantly delayed by public feasts. As one biographer described his procession through Pennsylvania, “[a]s Washington entered Philadelphia, he found himself, willy-nilly, at the head of a full-scale parade. Twenty thousand people lined the streets, their eyes fixed on him in wonder.”120 [Id.] Newspapers around the country reprinted a host of “addresses” from prominent citizens and government figures given that day congratulating the President on his electoral victory. These messages often spoke of Washington as having been appointed President. The “President and Supreme Executive Council of Pennyslvania” stood to “to congratulate you upon the establishment of the faederal constitution, and felicitate ourselves, and our country, upon your unanimous appointment to the Presidency of the United States.”121 [An Address to the President of the United States, from the President and Supreme Executive Council of Pennsylvania, Pennsylvania Gazette (April 22, 1789), available at http://tinyurl.com/n29ep8am.] The “Mayor, Recorder, Alderman and Common Council of the city of Philadelphia . . . assembled[] to present you our sincerest congratulations on your appointment to the station of President of the United States.”122 [Id.] The “standing committee of the Pennsylvania State Society of the Cincinnati” congratulated Washington on his “appointment, by the people, to the office of first Magistrate of this great empire[.]123 [Id.] “The Synod of the Reformed Church in North-America” met for the first time since Washington’s “appointment” in order to congratulate him and “join that great and general joy testified by all descriptions of citizens on your acceptance of the highest office in the nation.”124 [Dunlap and Claypoole’s American Daily Advertiser (Nov. 26, 1789), available at http://tinyurl.com/yxhc863s.] Not to be outdone, the leadership of the German Lutheran Church “announce[d] the joy we entertain” in Washington’s “appointment to the station of President in Chief.”125 [The Address of the Ministers, Church Wardens and Vestrymen of the German Lutheran Congregation, in and near the city of Philadelphia, to his Excellency George Washington, President of the United States, The Philadelphia Inquirer (May 20, 1789), available at http://tinyurl.com/2df6b7e4.] To be sure, other speeches spoke of his election or ascension to the Presidency, but references to his “appointment” were commonplace.

The newspapers also reprinted the President-elect’s response to each elegy, where we see Washington himself employing appointment language to describe his election. He thanked the leadership of Pennsylvania for their “affectionate congratulations . . . on my appointment to the Presidency of the United States.”126 [Letter from the President of Pennsylvania to George Washington, President of the United States, available at http://tinyurl.com/n29ep8am.] To the leaders of Philadelphia, he said he felt “particularly obliged . . . for your congratulatory address on my appointment to the station of the President of the United States.”127 [Id.] In response to praise from the governor of New Hampshire, Washington promised, that “[ i]n discharging the duties of my civil appointment . . . the love of my country will be the ruling influence of my conduct.”128 [See note 122.] He also accepted “with peculiar pleasure, the address of the University of the state of Pennsylvania, upon my appointment to the first office in the Union,” but conceded that he suspected that his “fellow-citizens anticipate[d] too many and too great advantages from the appointment.”129 [See note 124.]

Nor was this appointment-language limited to the celebrations in Philadelphia. Two months later, Vice President John Adams gave a speech on behalf of the Senate, thanking the President for his address to Congress:

We the Senate of the United States return you our sincere thanks for your excellent speech, delivered to both houses of Congress; congratulate you on the complete organization of the federal government, and facilitate ourselves, and our fellow-citizens, on your elevation to the office of President—an office, highly important by the powers constitutionally annexed to it, and extremely honorably from the manner in which the appointment is made. The unanimous suffrage of the elective body in your favor, is peculiarly expressive of the gratitude, confidence and affection of the citizens of America.”130 [Address by John Adams, Vice President of the United States and President of the Senate, to George Washington, President of the United States, available at https://www.newspapers.com/image/399583 ... Vice%20Pre sident%22&match=1. Letter from the Ministers, Churchwardens, and Vestrymen of the German Lutheran Congregation in and near the city of Philadelphia, to George Washington, President of the United States, available athttps://www.newspapers.com/image/3995 ... 22Vice%20P resident%22&match=1.]

In light of these examples, we feel comfortable concluding that the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.

* * * * *

To summarize, we have shown extensive evidence—including the text of the Constitution itself, early state constitutions, the Articles of Confederation and Journals of the Continental Congress, and statements to and from George Washington, John Adams, and James Madison—to demonstrate a consistent linguistic pattern of using the words “appoint” and “elect’ interchangeably. In light of this, we feel confident in rejecting “the distinction [Blackman, Tillman, and others] dr[a]w between elected and appointed federal positions.”

[admin]

Part 3 of 5

C. The Text of the Constitution Identifies the Presidency as an Office

Third, the original Constitution of 1789 repeatedly refers to the Presidency as an “Office” — a fact that is undisputed. For example, in Article I, it states “The Senate shall chuse . . . a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.”131 [U.S. Const., art I, sec. 3.] Likewise, in Article II, it states that the President “shall hold his Office during a Term of four Years” and limits eligibility “to the Office of President” to “natural born citizens” who have “attained the age of thirty-five years.”

In an amicus brief submitted to the Colorado Supreme Court, Tillman acknowledges this. But he claims that “although the President holds an ‘office,’ he is not an ‘Officer of the United States.’”132 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Intervenor-Appellant/Cross-Appellee Donald J. Trump, Anderson v. Griswold, Supreme Court Case No. 2023SA300 (Colo. Nov. 27, 2023, 1:13 PM) (filed by Reisch Law Firm, LLC and Josh Blackman et al.), 2023 WL 8188397, Available at SSRN: https://ssrn.com/abstract=4644676.]

We find this distinction difficult to square with early case law. In United States v. Maurice—an important Appointments Clause case Chief Justice John Marshall heard while riding the Circuit—Chief Justice Marshall concluded that “an office is defined to be a public charge or employment, and he who performs the duties of the office, is an officer. If employed on the part of the United States, he is an officer of the United States.”133 [Seth Barrett Tillman, Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Intervenor-Appellant/Cross-Appellee Donald J. Trump, Anderson v. Griswold, Supreme Court Case No. 2023SA300 (Colo. Nov. 27, 2023, 1:13 PM) (filed by Reisch Law Firm, LLC and Josh Blackman et al.), 2023 WL 8188397, Available at SSRN: https://ssrn.com/abstract=4644676.] While not binding precedent, Maurice was frequently cited by lower courts both before and after the ratification of the 14th Amendment and has been cited approvingly by the U.S. Supreme Court seventeen times, including in the majority opinion of Metcalf & Eddy v. Mitchell,134 [Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1926) (“The term ‘officer’ is one inseparably connected with an office.”).] and more recently in Justice Thomas’ concurring opinion in Lucia v. SEC. Blackman and Tillman have repeatedly quoted Justice Felix Frankfurter’s quip that when language is “obviously transplanted from another legal source”—as the phrase “Officers of the United States” in Section 3 clearly is—“it brings the old soil with it.”135 [Blackman & Tillman, supra n. 5, at 23 (citing United States v. Castleman, 572 U.S. 157, 176–77 (2014) (Scalia, J., concurring) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 537 (1947))).] We see no reason why that soil should not include Chief Justice Marshall’s early definition of an officer of the United States explicitly linking offices with officers.136 [Critiquing a previous draft of this paper, Blackman and Tillman argued that “Marshall limited the construction of the phrase ‘officer of the United States’ to ‘an individual [who] is appointed by government.’” Josh Blackman & Seth Barrett Tillman, ‘A New, Rushed, Flawed Article In The Section 3 Debate,’ Reason—Volokh Conspiracy (Jan. 4, 2024, 3:50 PM), <https://reason.com/volokh/2024/01/04/a-new-rushed-flawed-article-in-the-section-3-debate/>, <https://ssrn.com/abstract=4684487>. We do not disagree. Presidents are appointed by the Electoral College, which is just as much an organ of the government as Congress or the Secretary of State is. Blackman and Tillman’s argument is based on the assumption that there is a rigid distinction between appointments and elections, which we have already shown to be a linguistic anachronism in Part II.B.]

D. Additional context about the original meaning of “officer of the United States” in the 1789 Constitution.

Third, we find Blackman and Tillman’s textual analysis of the original meaning of the phrase “officers of the United States” to be incomplete because it overlooks important contextual details. The phrase appears in the original Constitution of 1789 four times: in the Appointments Clause, the Impeachment Clause, the Oath and Affirmation Clause, and the Commission Clause. Context leads us to disagree with Blackman and Tillman’s readings of three out of four of these clauses. Along the way we critique the argument recently presented that suggests the President is not an Officer of the United States because he does not take an oath that has the words “support the Constitution” drawn from Article VI of the Constitution.

1. Appointments Clause

With respect to the Appointment Clause, it is not true that the Constitution empowers the president to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,” as has been asserted by Trump. He only has the authority to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” We think the most natural reading of this proviso is that at least some of the other positions specifically enumerated elsewhere in the Constitution are (1) officers of the United States and (2) are potentially appointed through alternative channels other than those spelled out in the Appointments Clause.

We are not alone in that view. One of the original students of the Constitution, Alexander Hamilton, paraphrased the Appointments Clause for Federalist 67 as follows:

The second clause of the second section of the second article empowers the President of the United States "to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW."137 [The Federalist 67 (Alexander Hamilton). (Capitalization in original.)]

The capitalization—which was in the original—shows that Hamilton viewed the phrase “whose appointments are not herein otherwise provided for” as a modifier of “officers,” and that that the phrase is making reference to officers mentioned elsewhere in the Constitution outside of the Appointments Clause.

Justice Antonin Scalia also reached this conclusion. Writing a concurrence in Noel Canning v. NLRB, Justice Scalia explained: “Except where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’”138 [NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring).] Thus, Justice Scalia stated that there are Officers of the United States listed in the Constitution but not appointed by the President. Tillman actually wrote the Justice to ask what he meant by this statement. Justice Scalia surprised him by responding and left no doubt as to his position:

I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.139 [Letter from Hon. Antonin Scalia, U.S. Sup. Ct. J., to Seth Barrett Tillman, Lecturer at Nat’l University of Ireland Maynooth (emphasis added), available at: https://perma.cc/JX3Z-DDYB.]

The same view was taken by Professor Thomas Merrill in a 2004 article, although he did not specifically mention the President and Vice President like Justice Scalia did.140 [Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2136 n.157 (2004) (“This Appointments Clause provides that the President shall appoint ambassadors, judges, ‘and all other Officers of the United States, whose Appointments are not herein otherwise provided for. .. .’ The most likely referent of "herein otherwise provided for" would be the Members of Congress, whose method of appointment is detailed in Article I.”).]

Blackman and Tillman disagree, arguing for an alternative reading of “whose appointments are not herein otherwise provided for” in their third article in their ten-part series on Office and Officers:

The phrase . . . is admittedly a mouthful. We think this phrase tells the reader that the appointment of “Officers of the United States” is limited to the processes announced in Section 2. This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or appointment. In other words, the Appointments Clause’s “not herein otherwise provided for” language is not an invitation to search for other constitutional provisions providing authority to create or fill federal offices; rather this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2.

In their view, anyone advocating for an “alternative reading that leads readers to look for other constitutional mechanisms to fill ‘Officers of the United States’ positions is mistaken.” They critique the statements of both Hamilton and Scalia mentioned above, calling the former unclear141 [Blackman & Tillman, supra n. 74, at 444 (“We do not know for certain why Hamilton made this modification to the text of the Appointments Clause. Nor can we be sure that Hamilton intended this revision to advance any substantive arguments.”).] and the latter wrong.142 [Id/ at 448. (“We have some trepidation with stating that Justice Scalia, whose correspondence is sorely missed, was mistaken. But on balance, Scalia’s short statement does not hold up. Even Homer sometimes nods.”).]

But why? Because if Hamilton, Scalia, and Merrill are correct, the other officers “whose appointments are . . . provided for” elsewhere in the Constitution almost certainly includes at least some positions who are elected, either by the people or a multi-member body such as the Electoral College or legislature, as shown in Table 1 below.

Position / Appointment Mechanism

Members of the House of Representatives / “Chosen every second Year by the People of the Several states”143 [U.S. Const., art. I, sec. 2.]

Electors [of Members of the House] / “Shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”144 [Id.]

Speaker and other Officers of the House145 [Id.] / Chosen by House

Senators / “[C]hosen by the Legislature [of each state]”146 [U.S. Const., art. 1, sec. 3.]

President Pro Tempore and “Other Officers” of the Senate / Chosen by the Senate147 [Id.]

President of the United States / Electoral College148 [U.S. Const., art. 2, sec. 1.]

Vice President / Electoral College149 [Id.]

Electors for President and Vice President / “[ i]n such Manner as the Legislature thereof my direct.”150 [Id.]

As Blackman and Tillman explain, in their view “[o]nly appointed positions can be ‘Officers of the United States,’ i.e., positions ‘whose Appointments are not herein otherwise provided.’ Therefore, it would be a mistake to scour the Constitution for positions that are filled by election.” Professor Chad Squiteri reached a similar conclusion for similar reasons:

Article II, Section 2, Clause 2’s reference to “Appointments . . . not herein otherwise provided for” should not be understood as a reference to [other positions such as] Members of Congress. Instead, the use of ‘herein’ in Article II, Section 2, Clause 2 is best understood as a reference to Article II, Section 2, Clause 2 itself. Specifically, when Article II, Section 2, Clause 2 states “herein,” it references the types of appointed officers mentioned within the very same clause – i.e., “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court.”151 [Chad Squitieri, Towards Nondelegation Doctrines, 86 MO. L. REV. 1239, 1263 (2021).]

For this reason Squiteri did not feel that “Members of Congress” could be officers of the United States:, “Article I does not speak to the ‘appointment’ of Members of Congress – it speaks to their election.”152 [Id. at 1262.]

But we have already shown that the “the distinction [these scholars draw] between elected and appointed federal positions” is a linguistic anachronism that did not exist at the time of the Founding. The Articles of Confederation, Journals of the Continental Congress, state constitutions, various founding fathers including George Washington, John Adams, and James Madison—not to mention the text of the Constitution itself—all used the terms “appoint” and “elect” interchangeably, at least to the extent that an election was a valid form of appointment. Once one understands this linguistic convention, we think the meaning of “whose Appointments are not herein otherwise provided for” is clear and see no reason that it would not include the President.

But what about Chief Justice Roberts’ statement in Free Enterprise that Blackman and Tillman frequently invoke to support their conclusion that officers of the United States cannot be elected: “[t]he people do not vote for the ‘Officers of the United States’”?153 [Even if Chief Justice Roberts was wrong in his conclusion that “officers of the United States” cannot be voted upon, this would not undermine his conclusion that the Constitution forbids the granting of executive power without the Executive’s oversight.] We do not think that our reading of the Appointments clause is at odds [with] Roberts’ statement. The people don’t vote for the President, the Electoral College does!154 [In a critique of a previous version of this article, Blackman and Tillman cite a number of quotes by Chief Justice Roberts, including elsewhere in Free Enterprise (“But where, in all this, is the role for oversight by an elected President?”), Seila Law (“. . . but that authority remains subject to the ongoing supervision and control of the elected President”), and Trump v. Vance (“[The President] is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again."), to show that the Chief Justice would “disagree” with our position. Blackman & Tillman, supra n. 136. But all of these quotations are irrelevant. We have never suggested that the President is not elected, only that he is (1) elected by the Electoral College and that (2) elections by multi-member bodies is a mode of appointment well attested to in the Founding Era. The only position in Table 1 that Chief Justice Roberts’ statement in Free Enterprise would eliminate are Members of the House of Representatives, which is an issue we take no position on.] As our discussion in Section II.B and Appendix A and B demonstrates, there was a long history of multimember bodies “appointing” chief executives (and other officers) by ballot. That is exactly the process followed by the Electoral College. If the 152-member Virginia Legislature could “appoint” a judge, surely the Electoral College—which in 1789 had only 69 members—could “appoint” a President and Vice President as well.

There is a second reason we disagree with Blackman and Tillman’s reading of the Appointments Clause: it would limit the scope of the word herein to just that specific clause. And while that may not sound totally absurd when looking at the Appointments Clause alone, it makes no sense in the two other places the word appears in the Constitution. Take for example, the direct tax clause in Article I, Section 9: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” There are only two other references to an enumeration or census in the 1789 Constitution, neither of which is in Article I, Section 9. They’re earlier, side-by-side in Article I, Section 2! The third and final use of the word herein is in the first sentence in the Constitution following the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States[.]” Such a narrow construction of herein there would completely destroy the Separation of Powers. Surely, Blackman and Tillman are not suggesting that there might be some legislative powers reserved for the President in Article II, so we are not sure why they insist on such a narrow construction of the inverse phrase in the Appointments Clause.

2. Impeachment Clause

We likewise are unpersuaded by Blackman and Tillman’s reading of the impeachment clause. They conclude that the “the president and vice president’s [express] enumeration in the Impeachment Clause in addition to ‘all civil Officers of the United States’ shows that the president and vice president are not deemed ‘officers of the United States’ themselves.” We concede that this is a plausible reading of the clause, [but] we do not think it is the best reading. In English, this grammatical construction is often used to highlight the most important or most famous member of a broader group. Consider the following actual line from a 1963 speech given by Congressman Hale Boggs of Louisiana on the floor of the House of Representatives: “He leads the orchestra when his records are playing. He’s Dave Seville and Alvin and all the Chipmunks. He dances the twist like his life depended on it.”155 [109 Cong. Rec. A7410 (Dec. 4, 1963).] Was Representative Boggs really suggesting that Alvin was not a chipmunk? Or consider this line from an article from the Detroit Free Press: “[Vice President] Pence told Hannity Monday that all of his discussions with Zelensky, and all of the administration’s contacts, ‘were based upon proper considerations of how we support Ukraine.”156 [It should be noted that the “Alvin and the Chipmunks” convention was employed at the time of the 14th Amendment, as well. For example, in a dispatch, Secretary of War Edwin M. Stanton stated “The duties of the President, his Secretary, and every officer of the Government and especially in the War Department and military service, are at this moment urgent and solemn duties.” If not for the Chipmunk convention, one might be forced to conclude that the Secretary of War was not an officer of the Government! Edwin M. Stanton, Arrest of a Newspaper Spy, Boston Evening Transcript, Pg. 2 (Feb. 11, 1862). Likewise, Senator Timothy O. Howe of Wisconsin quoted and summarized a letter from W.L Sharkey to Secretary of State William H. Seward “in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices.” 1866 Cong. Globe 3042. Context makes clear that the governor was an officer “elected by the people” in the same way that the President is an “officer of the United States.”] Surely, the article wasn’t suggesting that President Zelensky was not one of the Trump administration’s contacts.

Nor is this construction a modern development. It appears frequently in documents from the Founding Era. Consider the closing line from a letter sent from General Charles Lee to his Commander-in-Chief: “My love to Mrs. Washington and all the Ladies–Adieu.”157 [Letter from Major General Charles Lee to George Washington (Feb. 19, 1776), available at https://founders.archives.gov/documents ... 03-02-0242.] General Lee and General Washington may have had their differences, but Lee was clearly not suggesting that his commanding officer’s wife was not a “lady.” Likewise, one set of General Orders signed by Washington in 1777 stated, “The Commander in Chief thanks the Majors General Sullivan and Greene, and all the officers, and soldiers, engaged this day, to pursue the enemy, for their alacrity and zeal manifested in that service.”158 [George Washington, General Orders (June 22. 1777), available at https://founders.archives.gov/documents ... 10-02-0104.] Per Blackman and Tillman’s logic, we would have to conclude that Washington was suggesting that neither Sullivan—one of the heroes of the Battle of Trenton—nor Greene—the Continental Army’s Quartermaster-General—were “officers.” We think not.

The fact that Justice Joseph Story also felt that the language of the Impeachment Clause “would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than included in the description of civil officers of the United States” does not dissuade us. Others have suggested that this express enumeration might be because the President as Commander-in-Chief, and the Vice President with his potential to serve as Acting President, are not strictly speaking civil officers of the United States, but rather both military and civil officers. We think this interpretation is compelling, but also not necessary. While we are loath to disagree with Justice Story, we do not think he was infallible.

Context matters here. And we think that context points to the best reading of the Impeachment Clause being that the President and Vice President being [are] the two most important members of the broader category “officers of the United States” — the Alvin among the proverbial Chipmunks.

This is like Mount Fuji's being concealed by a tree thick with branches and leaves, and my not being able to see it. But how can Mount Fuji be concealed by a single tree? It is simply because of the narrowness of my vision and because the tree stands in the way of my vision that Mount Fuji cannot be seen. We go on thinking that the tree is concealing Mount Fuji. Yet it is due to the narrowness of my vision.

-- The Unfettered Mind: Writings of the Zen Master to the Sword Master, by Takuan Soho, (Translated by William Scott Wilson)

3. The Presidential Oath and the Article VI Oath

In their latest article, Blackman and Tillman reference an argument from the litigation. That argument begins with the premise that the President takes an oath to “preserve, protect, and defend” the Constitution, found in Article II, and does not take the oath to “support” the Constitution, found in Article VI. Because Section 3 refers to officers who have “previously taken an oath … to support the Constitution of the United States,” the President, the argument goes, has not taken such an oath and is not in the scope of Section 3.

This argument does not persuade us. In the first place, we are confident that one cannot take an oath to “preserve, protect, and defend” the Constitution without implicitly swearing to “support” the Constitution. By swearing to preserve, protect and defend the Constitution, one swears to support it more.

Evidence from the time of the 14th Amendment confirms our view. Recall that Section 3 extended to any “person… who, having previously taken an oath, … as an executive or judicial officer of any State, to support the Constitution of the United States” and subsequently engaged in insurrection.159 [U.S. Const. Amend. XIV, s 3.] Thus, no one doubts that executive officers in the Southern states— for example, South Carolina— who had taken an oath prior to the rebellion, were covered by Section 3.

But when you look at the oath South Carolina officers were required by the South Carolina Constitution to take, the language mirrors the Presidential Oath, not the Article VI Oath:

Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: "I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.160 [S.C. Const. of 1790, art. IV (emphasis added). This Article was written in 1790 and was modified in 1834. Both versions of the oath have “preserve, protect, and defend”-- and not “support.”]

A newspaper transcript confirms this is the one and only oath that Governor William Henry Gist took in 1858.161 [1858 Inauguration of SC Governor, The Charleston Daily Courier (Dec. 15, 1858), available at , https://www.newspapers.com/embed/138077880/.] Governor Gist went on to sign South Carolina’s Ordinance of Secession.162 [The Ordinance of secession for the state of South Carolina (Dec. 20, 1860) https://www.gilderlehrman.org/collection/glc00395 (signed as Wm. H. Gist).]

Given no one doubts Section 3 was to apply to Governor Gist and other South Carolina rebels, it is clear that the drafters of the 14th Amendment viewed an oath to “preserve, protect, and defend” the United States Constitution as inherently an oath to “support” the United States Constitution. Any other reading of Section 3 appears absurd to us.

And South Carolina is not the only state. As documented in Appendix C, it appears Florida also had an oath that mirrored the Presidential oath, not the Article VI oath. Georgia’s oath for its governor likewise mirrored the Presidential oath, while other officers received an oath that mirrored the language of Article VI.163 [We note here Georgia appears lax in enforcing Section 3. Georgia Governor Joseph E. Brown took an oath as governor prior to the war, participated in the rebellion, rapidly regained favor with the Union, and then served as Georgia Supreme Court Chief Justice before and after the enactment of the Fourteenth Amendment. Given the totality of the evidence, we believe this was likely a result of political favoritism towards him or a resistance to the amendment in the deep south, rather than revealing anything about the meaning of Section 3. (The resistance in Georgia to the Union was obvious: Georgia elected Alexander H. Stephens, former member of the US House of Representatives and then Vice President of the Confederacy, to the Senate in 1866. The Senate refused to seat him even before the ratification of the 14th Amendment. He later served as Governor of Georgia after the passage of the Amnesty Act of 1872.)]

We also note that, in Florida, the constitution was drafted as a prerequisite to admission into the union. Thus, Congress viewed Florida’s antebellum Constitution, complete with its “preserve, protect and defend” language, as acceptable language to satisfy Article VI’’s “support” requirement. The Presidential oath, just like the oaths in Florida, Georgia, and South Carolina, qualifies as an oath under Section 3 of the Fourteenth Amendment.

For the sake of completeness, we cite the Texas Constitution’s oath, again approved by Congress prior to Texas’ admission. Ignoring a section about dueling, the oath reads in full: “I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ------------, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State[.]”164 [Tex. Const. Art. XII (1869).]

If we were writing on a blank slate, we would doubt that an oath to “discharge and perform all the duties… agreeably to the Constitution” has the same vigor as an oath to either “support” or “preserve, protect, and defend” the Constitution. But this is not a blank slate: several Texans took an oath under their state Constitution to “discharge and perform all the duties… agreeably to the Constitution” and then forced Governor Sam Houston (who was loyal to the union) out of office as a part of joining the confederacy.165 [See, e.g., Kate Galbraith, Sam Houston, Texas Secession — and Robert E. Lee, The Texas Tribune] They were obviously covered by Section 3. There is no basis for arguing the President is not covered by Section 3 because his oath is, if anything, more rigorous than the requirement to “support” in Article VI: “preserve, protect, and defend.”

But the problems with the argument that the President does not take an Article VI oath did not die with the confederacy. Today, South Carolina166 [See Municipal Association of South Carolina, Handling the Oaths of Office Correctly, available at: https://www.masc.sc/uptown/10-2022/hand ... correctly; LIVE: South Carolina Gov. Henry McMaster swearing-in ceremony, https://www.youtube.com/watch?v=RiRYckpw-FA (oaths administered at timestamps 1:17:00. 1:19:30, and 1:30:00).], Georgia167 [Inaugurations of Georgia Gov. Brian Kemp, Lt. Gov. Burt Jones. https://www.youtube.com/watch?v=1WC-cdZGYxk (oaths administered at timestamps 52:00; 53:50, and several other subsequent oaths starting at 1:08:30).], and Texas168 [WATCH LIVE: Greg Abbott sworn into 3rd term as governor of Texas https://www.youtube.com/watch?v=DHk1nHCD6s0 (Oath administered at timestamp 21:00’ 49:30).], all administer a "Preserve, Protect, and Defend" oath to at least some of their officers, Oaths that do not include the word support. Near as we can tell from videos of the inaugurations, these officials, like Governor Gist in 1858, only take one oath. Were this enough to avoid taking an Article VI and Section 3 oath, numerous state officials today would be exempt from Section 3 even if they someday participate in an insurrection.169 [Critiquing an earlier draft of this article, Blackman and Tillman suggest the possibility that "state officials took both the oath specified by the federal Oaths Act of 1792 and the oath specified by Article IV of the S.C. Constitution." See Blackman & Tillman, supra n. 136. As the reader observes, we have added additional sources to this section that foreclose their hypothesis, both in antebellum South Carolina and in modern practice.]

Blackman and Tillman rely on parallels between the structure of the Oath and Affirmation Clause of Article VI and Section 3 to suggest that the drafters used the Oath and Affirmation Clause as a model for Section 3. We have no quarrel with that. But because the presidential oath, like oaths of some state officers, is an oath to support the constitution through the language “preserve, protect, and defend,” we make two suggestions. First, it is entirely possible that the President is mentioned as an officer in Article VI, as the President is “bound by Oath or Affirmation, to support this Constitution[.]”170 [ .S. Const. Art. VI.] He simply takes the more specific presidential oath to do so. Second, because we've already shown that oaths to "support" include oaths to "preserve, protect, and defend" and oaths to act “agreeably” we should be slow to read terms in Section 3 narrowly because they were (supposedly) used narrowly in the Oath and Affirmation Clause.

4. Commission Clause

Blackman and Tillman’s best evidence comes from the Commission Clause. It is true that Section 3 of Article II of the Constitution states that the President “shall Commission all the Officers of the United States.” If viewed alone, this might be a silver bullet. But as mentioned above, the Appointments Clause indicates that there are other Officers of the United States whose appointment mechanisms are provided for elsewhere in the Constitution. But none of the officials listed in the table above receive presidential commissions. This produces a bit of a conundrum. If Blackman and Tillman are right that officials that do not receive commissions cannot be “officers of the United States,” then the Appointments Clause contains a meaningless surplusage. By contrast, if the phrase “whose Appointments are not herein otherwise provided for” is not surplusage, then either all does not mean all or the Commission Clause has not been liquidated appropriately and other officials—including the President and Vice President—should receive a Commission.

One way out of this Mexican standoff is to not read the Commission Clause literally. As Professor Lawrence Solum has noted, originalism is not literalism.

[A] grave misunderstanding of contemporary formalism is the idea that formalists are seeking the literal meaning of legal texts, and nothing could be further from the truth. And that's because once we become acquainted with the philosophy of language, we realize that verbal communication, oral communication, written communication does not rely on words and punctuation marks alone to convey meaning, it also relies on context.

We almost never say, explicitly, everything we wish to convey. Instead, we rely on a mutual recognition of reader or listener and author or speaker of the context of communication to fill in the gaps.

So a famous example from the philosophy literature, Jack and Jill are married. And most of the time, we fill in that utterance with to each other. Because usually, when you say Jack and Jill are married, you mean to each other, although there are contexts where you might say those words in order to convey that Jack and Jill are actually married to other people [i.e. “I saw Jack and Jill coming out of the hotel room together, but Jack and Jill are married!”]

In the law, it is the same. Context does much of the work of legal communication.

We think that the context suggests that the Commission clause should be understood to read the President “shall commission all the officers of the United States” other than himself or perhaps “shall commission all of the officers of the United States” that he appoints. While critics will argue that this is circular reasoning, we think it is superior to the alternative reading promoted by Blackman and Tillman and President Trump which views a whole clause of the Constitution as a mere “inkblot.”171 [The Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States, Hearing before the Committee on the Judiciary,100th Cong, 1st Sess 249 (1987) (statement of Robert H. Bork) (discussing the Ninth Amendment).]

* * * * *

In sum, we believe context matters, and the added context we’ve added here calls into question the conclusion that the 1789 Constitution implies that the President was not an Officer of the United States.

III. A Primer on Linguistic Drift

While our own review of the evidence from the Founding Era leads us to firmly conclude that the original public meaning of the term “officer of the United States” included the President and Vice President, we agree with Blackman and Tillman that “it is the sort of question on which dispassionate, reasonable minds can disagree after having reviewed competing streams of authority, argument, and evidence.”172 [Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 TEX. REV. L. & POL. 350 (forthcoming 2024) (manuscript at 189).] As we noted above, at a minimum the Appointments Clause and Commission Clause are in tension with each other, and some sort of saving construction is necessary to harmonize the two.

We likewise appreciate Blackman and Tillman’s open mindedness about the possibility that the phrase “officer of the United States” could have undergone “some linguistic drift or slippage between the 1788 ratification of the Constitution and the 1868 ratification of the Fourteenth Amendment.” As they explain in their 2021 article:

Let’s assume that the President is not an “officer[] of the United States” for purposes of the 1788 Constitution. Under that assumption, it is still possible that the President might be an “officer of the United States” for purposes of Section 3. Thus, a reader might take the limited position that the President is an “officer of the United States” for the purposes of Section 3’s jurisdictional element.

This position is conceivable. Indeed, more than a decade ago, Tillman suggested that linguistic drift may have occurred with respect to this phrase between 1788 and 1868. He wrote that “[t]he stretch of time between the two events [1788 and 1868] was more than half a century. . . . It is hardly surprising that in the post-bellum epoch new meanings might have accrued to older language. Such linguistic slippage is common.” . . . Absent contrary evidence, [however] the default presumption should be one of linguistic continuity, rather than a presumption of linguistic drift. In other words, the proponents of the view that Section 3’s jurisdictional element applies to the presidency have the burden to prove two propositions. First, proponents must show that the particular linguistic drift involving the Constitution’s “officer of the United States”-language had actually occurred. And second, proponents must show that Section 3’s “officer of the United States”- language, in fact, drifted to include the presidency. In other words, even if the meaning shifted over time, it is not self-evident that the shift would embrace the presidency. Both propositions must be proven.173 [Blackman & Tillman, supra n.5, at 25-26.]

Although we continue to respectfully disagree with Blackman and Tillman about the original meaning of the phrase “officer of the United States” in the original Constitution— and therefore believe that “linguistic continuity” favors holding that the President is an “officer of the United States” —we will devote the remainder of our article to marshaling evidence to demonstrate that even if they are correct about the meaning of the phrase in 1788, by 1865 the phrase had morphed to include elected officials, including the President of the United States.

But first, it is important to understand what we mean by “linguistic drift.” The phrase was coined by Edward Sapir—an American anthropologist and linguist—back in 1921 when he observed:

The drift of a language is constituted by the unconscious selection on the part of its speakers of those individual variations that are cumulative in some special direction. This direction may be inferred, in the main, from the past history of the language. In the long run any new feature of the drift becomes part and parcel of the common, accepted speech, but for a long time it may exist as a mere tendency in the speech of a few, perhaps of a despised few.174 [(Sapir 1921:147).]

It is difficult to be able to discern exactly when a word reaches its “tipping point,” the moment in which the meaning that was favored initially by just “a despised few” becomes the prevailing norm. There is an analogy here to the difficulty courts face in determining when a registered trademark has gone generic. Even though many people use the word “coke” to refer to any soda, it is still largely a reference to the principal product of the Coca-Cola company. But the same is true after the tipping point has been reached. Even after the word “trampoline” and “escalator” reached a point of genericide, there were likely still those who used those words in their branded sense for some time.

Thus, we are not surprised that Blackman and Tillman have identified a few sources from around the time that the Fourteenth Amendment was ratified that use the phrase “officer of the United States” in a way that excludes the President. Whether these are vestiges of an earlier understanding of the phrase—as Blackman and Tillman suggest—or early-adopters of a linguistic innovation doesn’t matter. As the subsequent sections will show, we think that at the time the 39th Congress convened to draft the 14th Amendment, the public meaning of the phrase included the President of the United States.

IV. Evidence that Officers (Including Officers of the United States) May Be Elected

Blackman and Tillman assert that one of the principal reasons that the President cannot be an officer of the United States is because officers are appointed, not elected.175 [Blackman & Tillman, supra note. 5, at 26, 29, 32; Blackman & Tillman, supra note 40, at 548; Tillman, supra n. 132, at 22-23; Blackman & Tillman, supra note 74.] They are not alone in this view. Professor Steven Calabresi—a long-time Trump critic—has advanced similar arguments.176 [Calabresi, supra note 76.] However, as shown in Sections II.B above, this position is based on a linguistic anachronism. At the time of the Founding, the strict dichotomy between “appointments” and “elections” that we employ today did not exist. Rather, an election—either by the people or a multi-member body such as a legislature or the electoral college—was viewed as one potential mode of appointment.

That officers could be elected at the time the 14th Amendment was ratified was even more clear. In the following section, we will detail evidence gleaned from the text of the Amendment itself, legislative history of the 14th and 15th Amendments, the ratification debates in the states, and other sources that show that people regularly talked of officers being “elected.” We note that in each of the subsequent sections, we have not limited ourselves to explicit references to “officers of the United States.” While we acknowledge that this is the best evidence, because we do not find the term “officers of the United States” to be a term of art, we believe that clear references to federal officers, officers generally, or analogous state officers are still relevant for understanding the original meaning of “OFFICERS of the United States” as used in Fourteenth Amendment, as we discussed in greater detail in Section II.A.

A. Evidence from the text of the Fourteenth Amendment

The best evidence that at the time of the ratification of the Fourteenth Amendment the word “officers” was understood to encompass elected officials is the text of Section 3 itself:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Most of the scholarship about the scope of Section 3 of the Fourteenth Amendment has focused exclusively on federal officers, without considering the analogous state positions.177 [CITE.] But having shown that “officers of the United States” was not a legal term of art at the time of the Founding,178 [Infra nn. ____-____ and accompanying text.] the selection mechanism for the parallel state officials mentioned in Section 3 is equally valid evidence for whether “officers” can be elected as a general matter. This is especially true if Blackman and Tillman are right that “Section 3 was modeled after the structure and language of the Oath and Affirmation Clause.”179 [Blackman & Tillman, supra note 5, at 6.] The parallel structure and language of the Oath and Affirmation Clause presents Officers of the United States and Officers of the several states as closely analogous positions: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” 180 [U.S. Const., art. VI.]

As noted above and shown in detail in Appendix A, at the time the original Constitution was ratified, few states had a Governor elected directly by the people. The rest had their governors selected by the state’s General Assembly, usually through a ballot process that resembled (and perhaps inspired) the Electoral College. However, by the time the 14th Amendment was ratified, these facts had changed considerably. By 1865 the vast majority of states had governors elected directly by the people!

A similar evolution took place with respect to judicial officers. As shown in Appendix B, at the time of the Founding, judicial elections—at least as we conceptualize them today—were unheard of. Instead, judges were typically selected by the General Assembly, appointed by Governors, or were themselves legislators wearing a separate hat. But as Harvard Law Professor Jed Handelsman Shugerman has noted, beginning in the 1840s, America experienced something of a Constitution-writing renaissance, with many states adopting amendments or rewriting their constitutions entirely, introducing judicial elections in the process as part of a broader set of anti-legislative reforms.

The constitutional revolutionaries of the time believed elected judges were more likely to enforce limits against legislative excesses. From 1846 to 1851, twelve states adopted judicial elections for their entire court systems, and five states adopted partially elective systems. By 1860, out of thirty-one states in the Union, eighteen states elected all of their judges, and five more elected some of their judges. There were also proposals to subject federal judges to election, but the federal constitution was far more difficult to change.181 [Jed Handelsman Shugerman, THE PEOPLE’S COURTS 105 (2012).]

In fact, the language of Section 2 of the 14th Amendment acknowledges this evolution explicitly. Section 2 abolished the Three-Fifths Compromise of the original Constitution, replacing it with a fairer calculation for representation: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” In an effort to prevent Southern states from disenfranchising African Americans, the Amendment then ties future representation to the number of eligible voters.

But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.182 [U.S. Const., Amend. XIV, Sec. 2.]

“The right to vote at any election for the choice of . . . the Executive and Judicial officers of a state” . . . it’s difficult to be more explicit that officers can be elected than that.

Thus even if Blackman and Tillman were right about officers not being elected at the time of the Founding, we think these seismic changes of state constitutional law between 1789 and the outbreak of the Civil War would have necessitated an evolution of the meaning of “officers” generally to include elected officials.

B. Evidence from the Legislative History of the Fourteenth Amendment

Another rich source of evidence that the officers mentioned in the Fourteenth Amendment included elected officials is the legislative history produced by Congress while debating the merits of the Amendment. In citing this evidence, we are well aware—and agree with—much of the criticism about over-reliance on legislative history.183 [For a summary of criticisms of legislative history, see Brett Hashimoto and James Heilpern, Solving the Cherry-Picking in Legislative History Use, 12 J. L. & Language 48, 51-54 (2023).] But in this and subsequent sections, we are not invoking legislative history in an attempt to divine Congressional intent. Instead, we are looking for clues about the way Congress used certain words and phrases. As Judge Frank Easterbook, one of the great critics of the use and abuse of legislative history once stated, “Clarity depends on context, which legislative history may illuminate. The process is objective; the search is not for the contents of the authors’ heads but for the rules of language they used.”184 [In re Sinclair, 870 F.2d 1340 (7th Cir. 1989).] (In re Sinclair, 1989: 1343).

In total, we found statements from at least ten Senators and six Congressmen that suggest that according to “the rules of language they used” the word “officer” included elected officials. One of these statements included explicit references to “Officers of the United States.” Senator Thomas A. Hendricks of Indiana proposed a change to the language of Section 3 that would have limited those barred from holding office in the future to those who entered the rebellion while they were still officers of the United States or one of the States. The reason was because he felt that a individual’s Oath of Office expired at the end of each term:

Everybody, by virtue of his allegiance, is bound to obey the Constitution of the United States, to stand by the Union. But this oath of itself is an oath of office binding upon him as an officer, else why is it that if a Senator taking this oath, serves six years and is reelected, he is sworn again? For the simple reason that he is entering upon another term of service, and for that term of service he must take this official oath to obey the Constitution of the United States. I presume this oath means as if it read, "Senators and Representatives and all other officers in the United States and in the States shall be bound by an oath or affirmation to support the Constitution of the United States in their offices." I know of no other purpose that there can be to require a special oath from an officer.”185 [1866 Cong. Globe 2898 (emphasis added).]

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By sweeping Senators and Representatives into the category of “officers of the United States,” he made clear that he believed the category to be broad enough to include positions elected by multi-member bodies (such as Senators) or directly by the people (as with Congressmen).186 [Some may object to this example because Senator Hendricks uses the phrase “officers in the United States” rather than “officers of the United States.” The difference only makes a difference if the Constitutional phrase is a term of art, which we feel the evidence clearly demonstrates it is not. As such, minor variations in the phrase is exactly what you would expect. To dismiss such examples runs the risk of circular reasoning.]

Other statements made clear that the speakers thought that federal officers could be elected, even if they did not use the full phrase “officers of the United States.” Since we have debunked the notion that “officers of the United States” was a legal term of art at the time of the Founding, these synonyms are equally valuable clues as to the intended meaning of the full phrase. Senator Luke Poland of Vermont stated that he felt the Amendment as written was more merciful than the rebels deserved because it preserved their right to vote: “we leave the great mass [of Southerners] utterly untouched, and the leaders with their lives, their property, the full enjoyment of all their civil rights and privileges, with the right of voting for all officers, both State and national, with the single restriction they shall not hold office.”187 [1866 Cong. Globe 2964 (emphasis added).]

A number of these statements came during the debate in the House over an ultimately rejected section which would have stripped former Confederates of the right to vote until 1870.188 [The original language of Section 3 in the House read as follows: “Sec. 3. Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late insurrection, giving it aid and comfort, shall be excluded from the right to vote for representatives in Congress and for electors for President and Vice President of the United States.”] For example, future president James A. Garfield—then a Congressman from Ohio—stated: “If the proposition had been that those who had been in rebellion should be ineligible to any office under the Government of the United States, and should be ineligible to appointment as electors of the President and Vice President of the United States, or if all who had voluntarily borne arms against the United States had been declared forever incapable of voting for a United States officer, it would, in my judgment, be far more defensible.189 [1866 Cong. Globe 2463 (emphasis added).] Congressman Robert C. Schenck, also from Ohio, used similar language while supporting the ultimately rejected proposal, claiming that it

does not disfranchise, but refuses to enfranchise. If you say that the people of these States, because of their having been engaged in the rebellion, shall not vote for Federal officers, there is nothing taken from them, because they have already divested themselves of that privilege, voluntarily abandoned, given it up, flung it away by breaking loose from the rest of the Union, as far as by their act, disposition, and power they could do so.190 [1866 Cong. Globe 2470 (emphasis added).]

Likewise, Congressman Henry J. Raymond of New York, stated that the rejected section “proposes to exclude the great body of the people of those States from the exercise of the right of suffrage in regard to Federal officers.”191 [1866 Cong. Globe 2502 (emphasis added).] Representative Rufus P. Spalding of Ohio supported this proposal to “disqualif[y] active and known rebels from participating in the election of Federal officers.”192 [1866 Cong. Globe 2509 (emphasis added).]

There were also a number of other statements that discussed electing officers in general.193 [In highlighting these, we recognize that Blackman and Tillman (and President Trump) do not dispute that some officers can be elected, they just do not believe that officers of the United States specifically can be. But because we do not believe that the full phrase is a term of art, we believe that the contours of the word officer standing alone informs the ordinary meaning of the word in the phrase officers of the United States. See also Brief Submitted by Scholars of Corpus Linguistics as Amici Curiae, Rimini Street v. Oracle, Supreme Court Case (filed by James Heilpern, Gene Schaerr, and Michael Worley). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm ... id=3288811 (“In layman’s terms, this means that in the relationship between adjectives and their nouns, the noun is king―[a modifier’s] meaning and scope is always relative to the noun it is modifying”).] For instance, while arguing that Section 3 would not impose a punishment on former Confederates, but merely withhold a privilege, Senator Edgar Cowan of Pennsylvania stated that “[a]n elector is one who is chosen by the people to perform that function, just the same as an officer is one chosen by the people to exercise the franchises of an office.”194 [1866 Cong. Globe. 2890 (emphasis added).] Later in the debates he returned to this distinction, asking “is not the elector just as much the choice of the community as an officer is the choice of it, except that the electors are chosen by a class and described by a general designation, whereas the officer is chosen by name to perform certain functions?195 [1855 Cong. Globe 2987 (emphasis added).]

The widespread understanding that officers could be elected was repeatedly highlighted in the back and forth between Senator John B. Henderson of Missouri and Senator William Pitt Fessenden of Maine, as the pair debated an amendment to Section 2 proposed by Henderson. At the time, the language of Section 2 stated that “whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color shall be excluded from the basis of representation.”196 [1866 Cong. Globe 3010 (emphasis added).] Henderson wanted to make the section more explicit, changing the language to read “But whenever the right to vote at any election held under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, &c.”197 [Id.] He stated that “the inference [of this amendment] will be that it applies only to those general elections at which political officers are elected, members of the Legislature, Governor, judges, &c.”198 [Id. (emphasis added).] While Fressenden disputed whether the amendment was really necessary, he clearly agreed that officers could be elected, stating that he believed that the original language was “intended to cover the election of officers generally.”199 [Id. (emphasis added).] Some time later, Senator George Williams of Oregon proposed his own amendment to Section 2 along the same lines, adding words which were ultimately ratified—”But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof”200 [1866 Cong. Globe 3029.]—in order to (in his words) “specif[y] particularly the officers for which these people must be allowed to vote in order to be counted.”201 [Id. (emphasis added).]

Finally, we found a number of statements that support the proposition that state officers could be elected. While this proposition is hardly controversial—as shown in the last section the language of the 14th Amendment itself acknowledges it as fact—these statements are still relevant evidence for showing that officers as a class—be they federal or state—can be elected. Senator Henderson, after acknowledging that any effort to strip ex-Confederates of the right to vote would be unworkable, stated that under the Amendment, “Lee, Johnston, Wade Hampton, Moseby, and even Jeff Davis, are left as qualified electors, competent to vote for State officers and members of Congress.”202 [1866 Cong. Globe 3036 (emphasis added).] Congressman John A. Bingham—the father of the Fourteenth Amendment—made a similar statement in the House,

This amendment does not disqualify any rebel or aider of the rebellion from voting at all the State elections for all State officers, nor does it disqualify them from being appointed presidential electors. It amounts, therefore, to this: though it be adopted, and made part of the Constitution, yet all persons "who voluntarily adhered to the late insurrection, giving it aid and comfort," may vote at all the State elections for State officers, and, being largely in the majority in every insurrectionary State, may elect the State Legislature, which may appoint electors for President and Vice President of the United States, and from aught in the amendment may appoint rebels as such electors.203 [1866 Cong. Globe 2543 (emphasis added).]

Another example came during a debate over whether Confederate officials who had taken advantage of President Johnson’s general pardon should be barred from holding future office under Section 3. Senator James Doolittle of Wisconsin believed that they should not. To demonstrate that the Amendment would still punish those most culpable, he noted that a number of “prominent rebel officials” remained unpardoned—535 of them—including thirty-seven “cabinet officers and governors of States.”204 [1866 Cong. Globe 2917 (emphasis added).] Senator Hendricks likewise spoke of “judicial officers” being “elected.”205 [1866 Cong. Globe 2899.] Senator Henderson spoke of the people “elect[ing] . . . members of the Legislature, Governor, judges, &c”206 [Id.] as “political officers.”207 [Id.] And Senator Timothy O. Howe of Wisconsin quoted and summarized a letter from W.L Sharkey to Secretary of State William H. Seward “in which he tells him that the Governor and all the officers elected by the people had been duly installed, qualified, and taken possession of their offices.”208 [1866 Cong. Globe 3042 (emphasis added).] Senator Henderson, Senator Fessenden, and Senator Daniel Clark of New Hampshire even briefly discussed the election of “municipal officers” and “town officers” such as mayors and recorders.209 [1866 Cong. Globe 3010.]

Taken together, these statements reveal a consistent speech pattern among the Framers of the 14th Amendment of referring to elected officials at all levels of government— federal, state, and local— as “officers.” It is also worth noting that while there may be examples suggesting the contrary—examples that could be revealed by a future corpus linguistics analysis of the Congressional Globe—we did not find any.

C. Evidence from the Ratification Debates of the Fourteenth Amendment in the States

Next, we turn to the ratification debates of the Fourteenth Amendment in the States. While not as well documented as the debates in Congress, they can still be a valuable source of evidence about how particular words or phrases were understood by the broader public at the time. Research into these debates has been greatly aided by a recently published collection published by Professor Kurt Lash.210 [Kurt T. Lash, THE RECONSTRUCTION AMENDMENTS: ESSENTIAL DOCUMENTS, VOL. 2. (2021).] It includes transcripts of state legislative history as well as contemporary newspaper articles reporting on these debates. Here, too, we see a consistent pattern—mined from the debates in Alabama, Louisiana, and North Carolina—of the word “officer” being broad enough to include elected officers.

● Alabama: On the day Alabama ratified the 14th Amendment (reversing its earlier rejection), the Alabama Senate Journal recorded the following two statements. First, “The Senate met at 12 m. and elected officers. The 14th amendment was ratified and the Senate adjourned until to-morrow.”211 [Id. (emphasis added).] And second, “In the House, officers were elected and the 14th amendment ratified.”212 [Id. (emphasis added).] Although these are legislative officers—as opposed to general state officers—the statements still show that officers can be elected as a general principle, not to mention elected by a multi-member body.

● Louisiana: An article reporting on the ratification of the 14th Amendment by Louisiana, which was published by the Boston Daily News, contained the following order from General Buchanan, the Commanding General of Union forces in the state: “All civil officers acting under military appointment will transfer their offices and everything pertaining thereto to their successors, who have been duly elected, and who are qualified under the laws of the State.”213 [Id. (emphasis added).]

● North Carolina: A Joint Committee Report Rejecting the Fourteenth Amendment contained the following statement: “A leading feature of this second section is, that, virtually, it makes the basis of representation to consist of the voters only, which is manifestly inconsistent with the theory of our political system. The voters are merely the appointing power, whose function is to select the representative; but his true constituency is the whole population. It is a great fallacy to maintain that an officer represents only those who vote for him.”214 [Id.; see also Journal of the Senate of the General Assembly of the State of North Carolina 91 (1866-67) (Raleigh: Wm. E. Pell, State Printer, 1867) available online at https://bit.ly/2C9wRva.] Not only does this show that officers are elected, but demonstrates that Founding Era understanding of election being a type of appointment continued into the 1860s.

The Lash collection also contains a proposed “compromise” amendment—reported in the New York Times—which was proposed by Southern Governors to President Johnson after a number of Southern legislatures initially refused to ratify the 14th Amendment. The language of the Compromise Amendment’s Section 4—which relates to apportionment of representatives—is particularly relevant for our purposes:

SEC. 4. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when any State shall, on account of race or color, or previous condition of servitude, deny the exercise of the elective franchise at any election for the choice of Electors for President and Vice President of the United States, Representatives in Congress, Members of the Legislature and other officers elected by the people, to any of the male inhabitants of such State, being 21 years of age and citizens of the United States, then the entire class of persons so excluded from the exercise of the elective franchise shall not be counted in the basis of representation.”215 [Lash, supra note 154 (emphasis added).]

This statement not only shows that officers can be elected, but the phrase “officers elected by the people” suggests that officers can be elected in other ways, such as by multi-member bodies such as legislatures or the Electoral College.

D. Evidence from Legislative History of the Fifteenth Amendment

We also looked at the legislative history of the Fifteenth Amendment, which was passed by the 40th Congress. Although one Congress removed from the cohort that passed the 14th Amendment, it is still a valuable source of evidence of the linguistic conventions used in the 14th Amendment, especially since so many of the members of the 40th Congress were also members of the 39th Congress. As with the legislative history and ratification debates of the 14th Amendment and the Impeachment Trial of Andrew Johnson, we found a consistent linguistic pattern of referring to elected officials— including federal ones—as both “officers” and “officers of the United States.”

● Senator Frederick Theodore Frelinghuysen of New Jersey: “The consequences, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been that in some of the States there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections.”216 [Cong. Globe, 40th Cong., 3d Sess., 978-999 (February 8, 1869) (emphasis added); id. at Appendix, 153- 54; Cong. Globe, 40th Cong. 3d Sess., 999 (February 8, 1869).]

● Representative Samuel Shellaburger of Ohio: “I understood the first proposition of the gentleman’s argument to be substantially this: that if the Constitution had reposed in the States the unlimited power to regulate the matter of voting for Federal officers it would involve this mischief, to wit: that thereby the power would be placed in the States to withhold from the Government the election of Federal officers at all, and that that mischief might be fatal to the Government itself. Am I right in that statement?”217 [Cong. Globe, 40th Cong., 3d Sess., 555-61 (January 23, 1869).]

● Representative Charles A. Eldridge of Wisconsin: “If the power exists in the Federal Government to pass this bill, whether under any one or all the provisions referred to, then I admit that Congress has the right to control the whole question of suffrage and the qualification of electors for all officers, State and national. There can be no reason for its entering the State and determining the qualification of those who are to elect the officers named in the bill that will not apply to every officer of the State so far as the question of power is concerned. The electors of President and Vice President are not named in section four of the first article. The power claimed, therefore, under the word “manner” in this section can no more apply to them than to the Governor of the State or any other State officer. So that if it covers electors it may as well cover, and does as necessarily cover, all that is contemplated by the amendment proposed by the joint resolution.”218 [Cong. Globe, 40th Cong., 3d Sess., 638-58 (January 27, 1869).]

● Representative James Burnie Beck of Kentucky: “It is contended by the gentleman from Massachusetts that this is only a political punishment to be imposed on such States as refuse to obey the mandates of the first section till such time as Congress can enforce its provisions, which he asserts provides that the right to vote for certain officers cannot be denied or abridged.”219 [Cong. Globe, 40th Cong., 3d Sess., 686-96 (January 28, 1869).]

E. Evidence from Popular Sources that Officers are Elected.

Finally, we looked at popular sources such as newspapers and found numerous references to “officers of the United States,” “federal officer,” “national officers,” and “officers of the general government” being elected. Searching the Newspapers.com database for the years 1850-1870, we found examples from almost every state and several territories. While our search was by no means exhaustive—we hope to perform a more comprehensive corpus linguistic analysis of the subject at some point in the future—it demonstrates the ubiquitousness of referring to “officers of the United States” in a way that includes elected officials.

● Arkansas: “To every marshall or duly elected officer of the United States. — You, and each of you are hereby commanded to bring up the body of J.W. Brown, said to be held in unlawful confinement on board the steamer Commodore . . .”220 [The Best Joke of the Season, Wash. Telegraph (July 12, 1854), available at http://tinyurl.com/2458t5zh.]

● Illinois: “The right of loyal States to decide for themselves the suffrage question does not in our opinion, give them power to prevent citizens of the United States from voting for officers of the United States . . .”221 [The Negro Suffrage Plank in the Chicago Platform, The Aegis (Jun. 26, 1868), available at http://tinyurl.com/8wkzwuuz.]

● Kentucky: “That a faithful execution of the fugitive save law—a noninterference with slavery where it exists in the States, by citizens of the nonslaveholding States—a non-interference with the slave owner in the Territories while Territories, and the condemnation and rejection for office of politicians ot [sic] a parties who shall hereafter attempt to agitate the subject of slavery, or make it a question in elections for officers of the United States, would restore peace and harmony to the States and people thereof.”222 [Orders of the Day, The Louisville Daily Courier (Jan. 22, 1858), available at http://tinyurl.com/2ru9ept6.]

● Massachusetts: “If they are not citizens of the United States, then they have no right to vote for officers of the United States.”223 [The Dred Scott Decision, The Liberator (July 31, 1857), available at http://tinyurl.com/2rmxy44r.]

● New York: “Charles C. Burleigh supported the resolutions against allegiance to the Constitution, and opposed voting for officers of the United States.”224 [New England Anti-Slavery Convention, The N.Y. Times (May 26, 1853), available at http://tinyurl.com/4hhsh8x3.]

● Ohio: “[S]upposing that no one should vote for a United States’ officer, only for State officers, the General Government would cease to be, in four years.”225 [Till P., The Sacredness of an Oath, Anti-Slavery Bugle (April 23, 1859), available at http://tinyurl.com/bychkna4.]

● Pennsylvania: “The unprecedented position of the legally elected officers of the United States should have at least gained for them the generosity of their former political foes.”226 [An Old Town Hero, The Adams Sentinel, Nov. 10, 1863, at 2.]

● Vermont: “The people of the States of California will sustain and uphold the constitutionally elected officers of the United States government, in all constitution efforts to preserve the integrity of the Union.”227 [Vermont Christian Monitor (April 13, 1861) available at http://tinyurl.com/8my63ktt; (Reprinted in The Sacramento Bee (March 9, 1861); the Civilian and Telegraph (April 11, 1861)).]

● Alabama: “The South, for the humble privilege of being allowed to have a hand in the election of federal officers, has permitted her rights to be assailed and our leading politicians have compromised their principles for the sake of currying favor with their Northern allies.”228 [ Trouble in the Camp, Spirit of the South (Dec. 16, 1851), available at http://tinyurl.com/y39c436y.]

● Connecticut: “Mr. Blaine asked Mr. Stevens if the third section would not be considered objectionable, as it excluded from the right to vote for national officers all who have voluntarily aided rebellion, and asked if the amnesty would exempt such.”229 [XXXIXth Congress-First Session, Hartford Courant (May 9, 1866), available at http://tinyurl.com/ypu79kxv.]

● Delaware: “A universal suffrage bill has been prepared for presentation at the next session of Congress. It does not extend the suffrage beyond the election of Federal officers.”230 [Congressional, Smyrna Times (Jan. 15, 1868), available at http://tinyurl.com/2jf22btd.]

● Georgia: “However desirable it may be, in the minds of many, to abrogate the unjust discrimination on account of color which prevails in the qualification for voters in most of the States, and to establish a uniform rule in that respect, particularly in the election of Federal officers, the loyal people of the land have recently made too great a struggle for the maintenance of the Constitution, to seek to accomplish the object by Congressional enactment, at a sacrifice of the obvious meaning and spirit of that instrument.”231 [The Age of Reason Returning, The Weekly Telegraph (Sept. 13, 1867), available at http://tinyurl.com/ykf8b4ap.]

● Idaho: “It will be remembered a bill was some time ago prepared and introduced in Congress, in anticipation of this so-called ratification of the establishment of a depotism upon the ruins of the Republic, taking the management and control of elections of all Federal officers entirely away from the States, and subjecting the whole to the dictation and control of Congress.”232 [Worth Thinking Seriously About, The Idaho World (March 31, 1870), available at http://tinyurl.com/3zpwxnd2.]

● Indiana: “While conservative and law-abiding citizens, who are deprived of the privilege of voting, may obey the law, others, with no characters to sustain and no reputation to lose—lawless in person and purse—such as are found in all our large cities, will vote for national officers in defiance of the law.”233 [Reconstruction, The Evansville Daily Journal (May 14, 1866), available at http://tinyurl.com/494m9xby.]

● Iowa: “They know that the present Rebellion is the unprovoked work of bad, ambitious Demagogues, who have made a legal election of National officers an assumed justification for the worst of crimes.”234 [The Responses, The Weekly Times (March 14, 1861), available at http://tinyurl.com/3efb4par.]

● Kansas: “It was then resolved that all who participated in the rebellion should be disfranchised from voting for Federal officers, and that the rebel debt should be repudiated.”235 [Reconstruction, The Atchison Daily Champion, May 2, 1866, at 2.]

● Louisiana: “A radical member of Congress, now here, has prepared a bill, which will be presented at the opening of Congress, providing for national suffrage. It differs very materially from similar bills presented by Mr. Sumner last session, and confines the suffrage to elections for national officers.”236 [The National Suffrage Scheme, The Times-Picayune (Nov. 7, 1867), available at http://tinyurl.com/mteva26b.]

● Maine: “In the coming campaign for the election of the officers of the national government, let the watchwords be the rights of the people, the rights of humanity.”

● Maryland: “Third–all persons who participated in the rebellion to be disenfranchised until after 1870, so far as voting for federal officers is concerned.”237 [Reconstruction, The Democratic Advocate (May 3, 1866), available at http://tinyurl.com/bddhjr47.]

● Minnesota: “He said that one singular thing in the report was comparing Minnesota to Wisconsin in regard to the election of her federal officers. Wisconsin elects her officers and pays them out of the State Treasury; and it would be inconsistent for Minnesota to elect her federal officers and then have them paid out of the U.S. Treasury.”238 [Legislative Assembly, Saint Paul Weekly Minnesotan (Jan. 26, 1856), available at http://tinyurl.com/5n8a4fnh. We admit that we are not entirely sure what the author of this one is saying, although we note that at the time this article was written, Minnesota was still a territory, which blurs the lines between state and federal officers.]

● Missouri: “Mr. Raymond, of New York, while not willing to accept it as a condition precedent to Southern representation was willing that all of the amendment, but the third section, depriving those who voluntarily aided in the rebellion, from voting for Federal officers.”239 [Another Day on Reconstruction—Another Day “Heading” Andy Johnson—Legislation in the District— Radical Dodge of the Negro Suffrage Issue, Daily Missouri Republican (May 10, 1866), available at http://tinyurl.com/44pdzyvh.]

● Nevada: “We do not believe that it is one of the rights of any State to deny any citizen of the United States a voice in the election of officers of the general government[.]”240 [The National or Federal Idea, The Carson Daily Appeal (June 18, 1867), available at http://tinyurl.com/3bcs3r4h.]

● New Jersey: “This act gives United States officers power to make arrests at the polls, and to inspect all records of elections for Federal officers[.]”241 [Our Washington Letter, Monmouth Democrat (Aug. 4, 1870), available at http://tinyurl.com/yc8nch2k.]

● North Carolina: “Mr. Lincoln distinctly contends for the right of any State to confer upon negroes citizenship and the right to vote for Federal officers.”242 [Mr. Lincoln and the “Peace Congress,” The Daily Journal (Feb. 18, 1861), available at http://tinyurl.com/4jcrwsae.]

● Oregon: “There was an informal meeting of a good many Republican Senators and Representatives to-day, to see if some action could not be had in the Senate to strike out the third section of the Constitutional Amendment, which disfranchises rebels from voting for Federal officers.”243 [General News, Albany Democrat (May 19, 1866), available at http://tinyurl.com/bde2hys3.]

● South Carolina: “To make out the inconsistency, he leaves out all the State elections ‘so often recurring,’ and Mr. Calhoun’s influence, and represents me as having attributed our unanimity solely to the election of Federal officers.”244 [General Ayer, Gen. Ayer’s Reply to Col. Owens, The Charleston Daily Courier (Oct. 20, 1859), available at http://tinyurl.com/5n985j2u.]

● Tennessee: “Hence all the arrangements for the election of Federal officers by the people were necessarily based upon the rule that the persons entitled by law of the States to vote for members of the popular branch of the State Legislature should be the persons who would have the right to vote for representatives to Congress and for the presidential electors.”245 [The Fifteenth Amendment, Nashville Union and American (July 15, 1869), available at http://tinyurl.com/3x52c9er.]

● Texas: “The evils that follow from the concentration of the attention of the people to national offices are extravagance in expenditures, an intense excitement pending the election of national officers, and a neglect of the people and their representatives to look to their own home as calculated to benefit them in all the relations of life, and to make them a happy and prosperous community.”246 [Patriotic States Rights Sentiments, The Texas Republican (Feb. 26, 1853), available at http://tinyurl.com/y9k36dru.]

● Virginia: “Mr. Boutwell reported a bill declaring who may vote for Federal officers, which he gave notice he would call up for action in ten days.”247 [Second Dispatch, Richmond Dispatch (Jan. 12, 1869), available at http://tinyurl.com/y78k5nuc.]

● Wisconsin: “He has not only sought no office, but has been so scrupulous that, feeling it might be inconsistent and dishonorable to take any part in a government which he considered in league with injustice and wrong, he has for years abstained from voting for federal officers.”248 [Mob Violence in Cincinnati–Wendell Phillips, Wisconsin State Journal (March 25, 1862), available at http://tinyurl.com/u57r9392.]

When viewed collectively, we think it is beyond dispute that at the time of the ratification of the 14th Amendment, the ordinary meaning of the word “officer” in general and “officers of the United States” in particular included elected officials.

V. Evidence that the President is an officer of the United States for purposes of the Fourteenth Amendment

Having shown the text, drafters of the 14th Amendment, ratifiers of the 14th Amendment, and others understood the word officers—including “officers of the United States”---to encompass elected officials, we now turn to the precise question of whether the President of the United States is an officer of the United States. In some respects, this is overkill. Having shown that the full phrase “officer of the United States” was not a legal term of art, President Trump’s concession that the President is an “officer” is lethal to his case. However, in the following sections we will amass additional evidence to show that at the time of the drafting of the Fourteenth Amendment, it was a common linguistic convention to refer to the President as an officer of the United States.

A. Evidence from the Legislative History of the Fourteenth Amendment

As noted above, we looked to the legislative history of the Fourteenth Amendment not to determine the intended meaning of the Fourteenth Amendment, but to look for evidence of how the legislators used the phrase “officer of the United States” and its synonyms in the course of their duties.249 [See Introduction to section III.] Unfortunately, we did not find any explicit references to the President (or Vice President) as an “officer of the United States.” We suspect that Blackman and Tillman would argue that this proves their point. As Tillman explained in his amicus brief to the Colorado Supreme Court, “These references to the President may have been made in a more colloquial sense, but they did not state the President was an ‘Officer of the United States.’”250 [Tillman, supra n. 132 (“These references to the President may have been made in a more colloquial sense, but they did not state the President was an “Officer of the United States.”).] But that is exactly our point. The phrase “Officer of the United States” is not a term of art, and therefore its original public meaning is the “colloquial sense.”

As noted in Section II.A, even during the first few years of the Republic, when Congress was busy creating positions within the new government, Congress almost never used the full phrase “officer of the United States.” The same is true of the debates over the Fourteenth Amendment. We found only twelve explicit uses of the phrase “officer of the United States” and one use of “officers of the United States.” Of these, ten were quotations of the exact language of the proposed amendment and two were close paraphrases. But they did refer to the President as an “officer of the government,” “executive officer,” and “officer.” This is exactly what you would expect if the full phrase was not a term of art, and such is still probative.

For example, in discussing who had the power to declare the insurrection over, Senator Davis referred to the President as an “officer of the Government”:

[T]here was a necessity for some power, some officer of the Government to declare when the insurrection was suppressed. There is such a power and such an officer to execute it; and who is he? The Constitution had been attacked by an armed resistance to the execution of the laws, and an attempt to set up an independent power and government within the United States. It is made the duty of the President, by the Constitution, to the best of his ability to preserve, protect, and defend that Constitution, and to take care that the laws be faithfully executed throughout the United States.”251 [1866 Cong. Globe 2914 (emphasis added).]

Senator Doolittle used the same phrase to discuss the relationship between the President and other officers within the Executive Department. He had been accused by Senator Trumbal of Illinois of suggesting that inferior officers were “officers of the President.” Doolittle disagreed: “I stated that executive officers were responsible to the President as the chief executive officer of the Government. My friend from Illinois seems to think that because I made this statement that they are responsible to the President, because he under the Constitution has placed upon him the responsibility of seeing that the laws are faithfully executed, I intended to say that these men were subject merely to the will of the Executive and not to the laws of the land. Not at all, sir.”252 [Id.]

In addition, Senator Howe once referred to the President as an “executive officer” and Senator Davis twice referred to him as the “chief executive officer.”

● Senator Howe: “It was argued, I recollect, by the Senator from Pennsylvania [Mr. Cowan] some time since that the President had a peculiar gift, or a peculiar right, for doing these things because he was an executive officer.253 [1866 Cong. Globe 3042 (emphasis added).]

● Senator Davis: “We now see, though, that this majority, lately the friends of the President, are engaged in a war upon him, and that war manifests itself in various aspects and modes. They denounce him; they denounce his measures, his policy. He is a coordinate branch of the Government; or at least the executive department is, and he is the chief executive officer.”254 [1866 Cong. Globe (June 6, 1866).]

● Senator Davis: “The powers of a Government are unavoidably augmented and energized during war, and then there is generally an accord between the legislative and executive branches, produced by the active presence of a common danger and a mutual effort to avert it, that makes the chief executive officer the instrument to give effect to their common policy and purposes.”255 [1866 Cong. Globe 2285 (emphasis added).]

We found this language particularly probative given the connection identified by Blackman and Tillman between the Oaths and Affirmation Clause and Section 3.

We also found a fourth reference by Senator Davis to the President as simply an “officer.” He referenced a debate back at the start of the Civil War about whether to seat the Senators elected from the loyal portions of Virginia—i.e. What would become West Virginia—after the rest of the state had voted to secede. The question was whether “notwithstanding the State of Virginia had passed an ordinance of secession and was in the condition of armed and active insurrection against the United States, still she was one of the United States and in the Union.” Senator Davis said that the Senate decided that the question was a “political question” and ‘[t]hat the President is the proper officer and power to decide” it.256 [1866 Cong. Globe (emphasis added).]

B. Evidence from the Impeachment Trial of Andrew Johnson

We were unsatisfied with the relatively few references we found in the legislative history of the Fourteenth Amendment, especially since four of the six references we found came from a single Senator. Afterall, individuals can be linguistic rebels, part of the “despised few” Sapir discussed. We therefore looked at the transcript of the impeachment trial of President Andrew Johnson for more examples of legislative speech.257 [One PDF of the transcript is found here: https://upload.wikimedia.org/wikipedia/ ... _Johnson_- _president_of_the_United_States%2C_before_the_Senate_of_the_United_States%2C_on_impeachment_b y_the_House_of_Representatives_for_high_crimes_and_misdemeanors_%28IA_trialofandrewjohn03john %29.pdf.]

Following the assassination of Abraham Lincoln, his Vice-President, Andrew Johnson, became President. Johnson, a loyal southern Democrat, had replaced a Republican, Hannibal Hamlin, as Lincoln’s running mate in 1864. Given the Republican majorities in the House and Senate, conflict with Johnson soon occurred. Relevant to our discussion, Congress passed a law over President Johnson’s veto that restricted his ability to fire officers appointed with the advise and consent of the Senate.258 [Tenure of Office Act of 1867.] When Johnson ignored that law and removed Edwin Stanton as Secretary of War, he was impeached.

We selected the transcript of the trial as a document to examine because it involves frequent use of the word “officer” by the Congress after the Congress that passed the Fourteenth Amendment. We view this transcript as a resource to answer multiple questions about the term “officer of the United States.”

A search for the term “officer of the United States” reveals a limited number of hits like during the debates over the 14th Amendment, but several actually use that term to refer to the President. For example, during a lengthy speech explaining his views on the impeachment, Senator George Edmunds of Vermont said that "To this tribunal, sworn to impartiality and conscientious adherence to the Constitution and the laws, they [the founding fathers] committed the high powers indispensable to such a frame of government, of sitting in judgment upon the crimes and misdemeanors of the President, as well as all other officers of the United States.”259 [Johnson Impeachment Trial, 95 (emphasis added). Sen. Edmunds referred to the drafters of the Constitution as simply “the fathers”; bracketed text added for clarity.]

A statement of Senator Joseph Fowler of Tennessee is likewise evidence that the term “officer of the United States” includes the President. In explaining the Impeachment Clause of the Constitution he stated: “The framers of the Constitution” “defined in their great charter the offences for which a President or other officer could be impeached and divested of his office. The Constitution says that ‘the President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.’"260 [Johnson Impeachment Trial, 193-194.] Here, the parallel structure of these sentences plainly indicates (1) that Senator Fowler viewed the President as an officer under the Impeachment Clause, and (2) that he did not see a distinction between “officer” and “civil officer of the United States.”261 [See nn. ___ — ___, and accompanying text, supra, for a discussion of why the text of the Impeachment Clause does not suggest the President is not an officer of the United States.]

In addition, the trial transcript twice quotes an article262 [We have unfortunately been unable to find the original article.] by John C. Hamilton, the son of Alexander Hamilton, which specifically identifies the Vice President as an officer of the United States, while discussing how the Constitutional Convention decided to have the Senate try impeachments. In this discussion, Hamilton recounts that on

the 8th of September, Roger Sherman raised the objection that the Supreme Court was "improper to try the President because the judges would be appointed by him." This objection prevailed, and the trial was entrusted to the Senate by the vote of all the States with one exception; and thus, on the same day, immediately after, the subjects of impeachment were extended from treason and bribery to 'other high crimes and misdemeanors,' and thus entrusted and thus enlarged, it was on the same day made to embrace 'the Vice-President and other civil officers of the United States.'"263 [Johnson impeachment trial 356 (emphasis added). The same source is apparently read at page 254 as well.]

Obviously, the inclusion of the word “other” in the phrase “the Vice-President and other civil officers of the United States” implies that the Vice President is a civil officer of the United States. Thus, the trial reveals that John Hamilton viewed the Vice President as a civil officer of the United States. Since all of Blackman and Tillman’s arguments apply with equal force to the Vice President as to the President, we think that evidence that the Vice President is an officer of the United States is equally probative for the President, and vice versa. (We also note that if “officer of the United States” was understood at the time of the founding or subsequently to be a term of art that excluded certain officials including the President and Vice-President, one would imagine John Hamilton, as a son of one of the writers of the Federalist Papers, would have understood that.264 [Cf. New Prime v. Oliveira, 586 U.S. —, 139 S. Ct. 532, 539 (2019) (“ Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law … But nothing like that exists here. “) (Emphasis added)).]

While these are the only direct references to the President as an officer of the United States, several Senators referred to the President as an officer. We reproduce them below:

● Senator Davis: “The Constitution has no provision declaring a violation of any of its provisions to be a crime; that is a function of the legislative power, and it has passed no law to make violations of the Constitution, or of official oaths, by the President or any other officers, crimes.”265 [Johnson Impeachment Trial, 161.]

● Senator Reverdy Johnson of Maryland: “...but the Constitution for wise purposes says that in the contingency of an impeachment of a President of the United States or any other officer falling within the clause authorizing an impeachment, they are to become, as I understand, a court. So have all our predecessors ruled in every case; and who were they?"266 [Johnson Impeachment Trial, 370.]

● Senator Charles Beckalew of Pennsylvania: "The Constitution provides that when there is no President or Vice-President to discharge the duties of the presidential office, such duties shall be discharged by some other officer to be designated by law, until a new President shall be chosen."267 [Johnson Impeachment Trial, 221.]

● Senator John Sherman of Ohio: “The power of removal is expressly conferred by the Constitution only in cases of impeachment, and then upon the Senate, and not upon the President. The electors may elect a President and Vice-President, but the Senate only can remove them. The President and the Senate can appoint judges, but the Senate only can remove them. These are the constitutional officers, and their tenure and mode of removal are fixed by the Constitution.”268 [Johnson Impeachment Trial, 33.]

● Senator Thomas Tipton of Nebraska: “It appears that while General Emory was acting under a commission requiring him to observe and follow such orders and directions as he should receive from the President and other officers set over him by law, an order reached him embodying a section of law, which law had been previously approved by the President himself. However, as it provided that orders from the President and Secretary of War should be issued through the General of the army, or next in rank, and the President being engaged to remove the Secretary of War and thwart the action of the Senate, in a discussion with General Emory, as to his duty as an officer, said, 'This' (meaning the order) 'is not in conformity with the Constitution of the United States, which makes me Commander-in-chief, or with the terms of your commission.'"269 [Johnson Impeachment Trial, 192. We note that the reference to “other officers set over him by law” is reminiscent of the Appointments Clause, further proof that an “officer” is an “officer of the United States.”]

We also examined the House proceedings on the impeachment of President Johnson, as well as material from surrounding weeks.270 [To be precise, we conducted a search of the Congressional Globe volume available at this link: https://www.google.com/books/edition/Th ... =en&gbpv=0. We only include examples from the House in the remainder of this subsection.] Here there are also references to the President as an Officer of the United States. Rep. Aaron F. Stevens, for example, stated “the executive officers of the United States, from the President down, are creatures of the people, and not creatures of the president.”271 [Cong. Globe, 40th Cong., 2nd Sess. 1553 (Feb. 29. 1868). Later in the same speech, Rep. Stevens quoted the Appointments Clause in full, suggesting he did not view that Clause as precluding the idea that the President is an officer.Id. Cf. nn. ___-___ and accompanying text above (discussing the Appointments Clause). To be fair, Representative Stevens at one point also discussed the “unrestrained authority for the President of the United States to appoint and remove at will every executive officer at will.” Id.] Representative John Bingham272 [While we cite this quote for linguistic understanding, we note that Representative Bingham was a key drafter of the Fourteenth Amendment.] from the house floor in the final days before President Johnson was impeached: “Did not the gentlemen know that it is written in the constitution that the President, the Vice President, and every other civil officer of the United States shall be removed from office on impeachment for and conviction of high crimes and misdemeanors.”273 [Cong. Globe, 40th Cong., 2nd Sess. 1341 (1868).]

Other representatives referred to the President as an executive officer. Referencing President Johnson, Rep. Shelby M. Cullom said that “We are to-day [sic] considering the report of the committee appointed by the House to prepare and report impeachment against that high officer of the Government.”274 [Cong. Globe, 40th Cong., 2nd Sess. 1604 (Mar. 2, 1868).] Rep. Robert T. Van Horn referred to the President as “the executive officer of the nation.”275 [Cong. Globe, 40th Cong., 2nd Sess. 1389 (Feb. 24, 1868).] Rep. William H. Kelsey stated “In England, the chief executive officer of the Government cannot be impeached. Here he can be.”276 [Cong. Globe, 40th Cong., 2nd Sess. 1359-60 (Feb. 22, 1868). Rep. Kelsey also believed President Johnson was only “Acting President” following Lincoln’s death, id., a theory that was subsequently foreclosed. See U.S. Const. Amndt XXV, s 1.] Representative Ebon C. Ingersoll stated “The President is merely an executive officer and cannot rightfully exercise any of the functions belonging to a judicial officer.”277 [Cong. Globe, 40th Cong., 2nd Sess. 1359-60 (Feb. 22, 1868) (two references).]

We also found references to the President as an officer. Representative Rufus P. Spalding called the President “this high officer of our Government.”278 [Cong. Globe, 40th Cong., 2nd Sess. 1339 (Feb. 22, 1868).] In a discussion on appropriations, Representative William E. Nilback stated that “The President is commander in chief of the Army and Navy, and as such is as much entitled as any other officer of the Army and Navy to have detailed for his assistance any subordinate officer.”279 [Cong. Globe, 40th Cong., 2nd Sess. 1111 (Feb. 11, 1868).]

Taken together, we believe that the legislative history of the Fourteenth Amendment and the Impeachment debates and Trial of President Andrew Johnson demonstrates a consistent linguistic practice of identifying the President as an officer generally, and “Officer of the United States,” specifically.

C. Evidence from President Andrew Johnson’s Appointment Proclamations

We also found that Andrew Johnson—the President at the time the 14th Amendment was ratified—referred to himself as an “officer of the United States” in numerous official proclamations appointing individuals to important posts in the former Confederate states. For example, consider this May 29, 1865 Proclamation appointing William W. Holden Provisional Governor of North Carolina:

Whereas, The President of the United States is by the Constitution made Commander-in-Chief of the army and navy as well as chief Executive officer of the United States and is bound by solemn oat, faithfully to execute the office of President of the United States, and to take care that the laws be faithfully executed . . . I, Andrew Johnson, President of the United States and commander-in-chief of the army and navy of the United States, do hereby appoint Wm. W. Holden provisional governor of the State of North Carolina[.]280 [Andrew Johnson, A Proclamation, Burlington Times (June 3, 1865), available at http://tinyurl.com/2pp5r27x.]

We found similar proclamations by Johnson appointing governors over Alabama,281 [Andrew Johnson, Appointment of Lewis E. Parsons Provisional Governor of Alabama, Alabama Beacon (July 7, 1865), available at http://tinyurl.com/4xw2euzc.] Georgia,282 [Andrew Johnson, Official, Evening Star (June 19, 1865), available at http://tinyurl.com/y4rtujpe.] Mississippi,283 [Andrew Johnson, Reconstruction!, The Philadelphia Inquirer (June 14, 1865), available at http://tinyurl.com/yuavvd4r.] Texas,284 [Id. (Johnson refers to himself here as the chief civil executive officer of the United States).] and South Carolina.285 [Andrew Johnson, Official–Department of State—By the President of the United States of America–A Proclamation, Camden Journal (July 28, 1865), available at http://tinyurl.com/475bases (chief civil executive officer of the United States).] In each of them, he referred to himself as an “officer of the United States.” While these proclamations were largely formulaic, using almost word-for-word language, there were some interesting variations. In the Alabama, Mississippi, and North Carolina proclamations, he refers to himself as the “chief executive officer of the United States,” but in the ones for Georgia, Texas, and South Carolina he adds a word, identifying himself as the “chief civil executive officer.” This tiny difference persuades us that the terms that “chief,” “civil,” and “executive” were all just adjectives modifying “officers of the United States” —lest anyone try to argue that that a “chief executive officer of the United States” or “executive officer of the United States” is somehow different from an “officer of the United States” for purposes of Section 3.

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Part 5 of 5

D. Evidence from the Amnesty Proclamations of Presidents Lincoln and Johnson

A fourth strain of evidence that at the time the Fourteenth Amendment was ratified, the phrase “officers of the United States” included the President, are the amnesty proclamations issued by Presidents Abraham Lincoln and President Andrew Johnson, pardoning confederates. On December 8, 1863, President Lincoln “issued a full pardon” which “restor[ed] all rights of property” to “all persons who have, directly or by implication, participated in the existing rebellion,” provided that they willingly took an oath to “support, protect and defend the Constitution of the United States, and the union of States thereunder” and respect all laws and proclamations issued by Congress and the President respecting slavery during the Civil War.286 [Abraham Lincoln, Proclamation (Dec. 8, 1863), available at: https://history.state.gov/historicaldoc ... 1/message1.] Then in May 1865, President Andrew Johnson issued his own amnesty proclamation “grant[ing] to all persons who have directly or indirectly participated in the existing rebellion . . . amnesty and pardon, with restoration of all rights of property, except as to slaves.”287 [Andrew Johnson, President Johnson’s Amnesty Proclamation (May 29. 1865), available at: https://www.loc.gov/resource/rbpe.23502500/?st=text.] Both of these proclamations contained a long list of exemptions—-individuals participating in the rebellion that were not covered by the general pardon—chief among them “all who are, or shall have been, civil or diplomatic officers or agents of the so-called Confederate government” as Lincoln put it, or in the words of Johnson “All who are, or shall have been, pretended civil or diplomatic officers, or otherwise, domestic or foreign agents, of the pretended Confederate Government.”288 [While we have placed this argument in Section IV, the Amnesty Proclamations are equally good evidence for establishing that officers may be elected as a general matter. Jefferson Davis was elected President of the Confederacy in 1862.]

Subsequent history demonstrates that Confederate President Jefferson Davis and Vice President Alexander H. Stephens were not covered by either of these amnesty proclamations. Davis was dogged with prosecutions for years. As for Stephens, he was elected to the U.S. Senate in 1866, but prohibited from taking his seat due to restrictions on former Confederates.289 [Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Constitutional Commentary 87 (2021) (citing Edward McPherson, The Political History of the United States of America During the Period of Reconstruction 107–09 (Washington, Solomons & Chapman 1875)).] While he would go on to serve as a Congressman from the State and Georgia’s fiftieth governor, both were after Congress passed the Amnesty Act of 19[?]72.

But why were they excluded from Lincoln and Johnson’s amnesty proclamation? Obviously because they were “civil officers . . . of the pretended Confederate Government.” It’s the only exemption that could possibly apply. And yet, the Confederate Constitution was modeled after the U.S. Constitution, and the four clauses that Blackman and Tillman cite to support their thesis that the President and Vice President are not officers of the United States, are copied word-for-word as shown below, with the exception that “Confederate States” is substituted in place of “United States,” and some tweaks to capitalization.290 [While the Confederate States Constitution is not legal authority, it can serve as evidence of linguistic conventions of the day. The capitalization in the Confederate Constitution looks closer to modern conventions than that of the U.S. Constitution. The fact that the Confederate Constitution never capitalizes the word officers in the full phrase “officers of the Confederate States” is at least weak evidence that at the time of the ratification of the Fourteenth Amendment, the full phrase was not considered to be a term of art. It is also worth noting that the word is not capitalized in the 14th Amendment. We do not feel that the fact that word “Officer” is capitalized throughout the Constitution of 1789 suggests the contrary, any more than the fact that they capitalized the “C” but not the “s” in “supreme Court” tells us something about the original public meaning of Supreme Court.]

United States Constitution / Confederate States Constitution

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for . . .” / “[The President] shall nominate, and by and with the advice and consent of the Senate shall appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the Confederate States whose appointments are not herein otherwise provided for . . . ”

“[The President] shall . . . Commission all the Officers of the United States.” / “The President shall . . . commission all the officers of the Confederate States.”  

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” / “The President, Vice President, and all civil officers of the Confederate States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors.”

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;” / “The Senators and Representatives before mentioned, and in the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation to support this Constitution.”

Yet, surely no one in the North would have allowed Alabama to elect Jefferson Davis to the Senate on grounds that he was just the President, not an officer, of the Confederate States.

Critics might quibble that neither Amnesty Proposal used the phrase “officers of the Confederate States” or at least “officers of the so-called Confederate States,” and that the broader term “officers of the so-called Confederate government” was more all encompassing. But does anyone really believe that it would have made a difference if it did? We’ve already shown that the phrase “officers of the United States” was not a term of art, so why would it’s counterpart be? An “officer of the so-called Confederate government” was the same thing as an “officer of the so-called Confederate States.”

Others might argue that this line of reasoning is irrelevant because the Confederate Constitution was never recognized by the United States as valid law due to the Confederate States never recognized as a legitimate country. But it is still evidence of the linguistic norms of the day for at least twelve states—twelve states that ultimately ratified the 14th Amendment. Davis and Stephens were therefore officers only in “the colloquial sense.”291 [Tillman, supra n. 132.] But that is exactly the point. The colloquial understanding—or to put it in legal terms, original public meaning—of the officers of a country, pretended or otherwise, included the President and Vice President.

E. Evidence from Other Contemporary Sources

Having shown that the President was frequently referred to as an officer of the United States, federal officer, and officer in various legal sources, we turn now to other more popular sources as evidence of the original public meaning of the Fourteenth Amendment.

First, we found dozens of newspaper articles292 [See, e.g.] written between 1850 and 1870 that refer to the President explicitly as an officer of the United States. These articles—which we found by searching the Newspapers.com database—came from more than two-thirds of the states that were part of the Union when the Fourteenth Amendment was ratified. They included newspapers from the Deep South, the far West, the mid-Atlantic, the midwest, and New England; papers in large cities like New York and Philadelphia and small towns like Rock Island, Illinois; papers that were Pro-Union and Pro-Confederacy. Some of the articles were actually reprintings of official government documents or Congressional speeches, while others were written by letters-to-the-editor or mere gossip; some were written by local authors, while other articles we saw reprinted in papers in multiple states. Through it all, we noticed a consistent linguistic pattern of using the phrase “officer of the United States” in a way that included the Presidency.293 [To be sure, this was not a formal corpus linguistics analysis. Neither time, nor the Newspapers.com interface, allowed us to be quite so precise. There may be some newspaper articles that cut the other way, but the understanding that the President was an “officer of the United States” appears to be widely shared.] A fraction of the quotations are listed below:

● Alabama: “On the 20th of June, the day of his letter, there were a President of the United States, a Cabinet, Judges of the Supreme Court, and thousands of other civil officers of the United States.”294 [Headquarters, Department of Ala. Mobile, Ala., Sept. 20th 1865, Montgomery Daily Mail (Sept. 26, 1865), available at http://tinyurl.com/szdtb46m.]

● Arkansas: “This creature [i.e. Brigham Young] and his deluded followers are in the constant habit of denouncing the President and all the other officers of the United States in the most indecent terms.”295 [The Mormons, Weekly Arkansas Gazette (Nov. 28 1851), available at http://tinyurl.com/3pd5jnp6.]

● California: “Great power is contided [sic] to the President, Vice President, and othhr [sic] civil officers of the United States”296 [What is the Union?, The Mountain Democrat, Nov. 21, 1863, at 2.]

● Connecticut: “[T]he President of the United States is by the Constitution made Commander-in-Chief of the Army and Navy, as well as chief executive officer of the United States, and is bound by solemn oath faithfully to execute the office of President of the United States . . .”297 [Oliver Morton, Senator Morton’s Speech, Litchfield Enquirer (Feb. 6, 1868), available at http://tinyurl.com/2fm2sc7a.]

● District of Columbia: “Mr. Fillmore . . . has been a faithful and honest President. . . . No chief executive officer of the United States ever displayed more wisdom, moderation, and conciliation.”298 [Mr. Fillmore, The Daily Republic (Aug. 27, 1851), available at http://tinyurl.com/2mv5bpab.]

● Georgia “[W]hereas, the President of the United States is, by the Constitution, commander-in-chief of the army and navy, as well as chief civil executive officer of the United States . . . I, Andrew Johnson, President of the United States . . . do hereby appoint James Johnson, of Georgia, whose duty it shall be . . .to prescribe such rules and regulations as may be necessary.”299 [Andrew Johnson, Appointment of James Johnson as Provisional Governor of Georgia, and Andrew J. Hamilton as Provisional Governor of Texas—Proclamation by the President, The Macon Telegraph (June 29, 1865), available at http://tinyurl.com/4zxevudb.]

● Idaho: “The president and other officers of the United States receives a very small salary compared to the crowned heads of Europe.”300 [Small Salary, The Idaho Statesman (May 12, 1868), available at http://tinyurl.com/527ptzzf.]

● Illinois: “Their contest has been one of principle alone—a principle which, if Mr. Lincoln is the chief executive officer of these United States for the next four years, he will be compelled to carry out.”301 [The Vote of Rock Island, The Rock Island Argus (Nov. 9, 1860), available at http://tinyurl.com/ye6epyby.]

● Indiana: ““Now, the President is an officer of the United States . . .”302 [ ]

● Iowa: “This vain old man was made to believe that he was in communication with the Secretary of State, the President, and other important officers of the United States.”303 [Santa Anna, Nashville Union and American, June 27, 1867, at 4.]

● Kansas: “Jefferson Davis . . . personally advised and assisted in maturing the plan for the cowardly murder of the President and other officers of the United States government.”304 [Jefferson D. and his Friends–What Shall We Do With Them?, The Atchison Daily Free Press (May 20, 1865) , available at http://tinyurl.com/3rux28jz.]

● Kentucky: “The ‘august master’ of Russia, in his letter to President Lincoln, has given the Chief Executive officer of the United States some wholesome advice.”305 [Russia’s Advice to President Lincoln, The Louisville Daily Courier (Sept. 16, 1861), available at http://tinyurl.com/35e4nrnz.]

● Louisiana: “No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.”306 [Abraham Lincoln’s Widow, Detroit Free Press (May 13, 1870), available at http://tinyurl.com/2ceenr4v.]

● Maine: “Whereas the President of the United States is by the Constitution made commander-in-chief of the army and navy, as well as chief Executive officer of the United States . . . I, Andrew Johnson, President of the United States, do hereby appoint William W. Holden, Provincial Governor of the State of North Carolina.”307 [Andrew Johnson, A Proclamation, Bangor Daily Whig and Courier, (May 30, 1865), available at http://tinyurl.com/ycmfywn7.]

● Michigan: “No provision of this nature has ever been made for the widows or families of any one of the Presidents or other civil officers of the United States.”308 [Mrs. Lincoln’s Pension—Adverse Report of the Senate Committee, The Times-Picayune (May 11, 1870), available at http://tinyurl.com/34cjp86j.]

● Minnesota: “The Post argues editorially that the plot for the murder of Lincoln, Johnson, Seward, Stanton and Grant, was known and approved by Jeff. Davis and other rebel leaders. It says that the very time when the assassins in Washington were preparing to do their work, Davis opened negotiations with Sherman, in which he dealt with that General as if Sherman were in fact chief officer of the United States Government, the others [including Lincoln] being supposed to be killed.”309 [Mustering Out, The Weekly Pioneer and Democrat (May 12, 1865), available at http://tinyurl.com/bdhb5j34.]

● Mississippi: “At the instance of President Johnson, and to facilitate his patriotic work of reconstruction, the people of the South elected members [to] Congress. Without this invitation from the Chief Executive officer of the United States, they would not have afforded the radical majority in Congress an opportunity for perpetrating an outrage which virtually defeats the end for which so much blood and treasure were expended during the past four years.”310 [Our Condition–Our Future, The Vicksburg Herald (Jan. 20, 1866), available at http://tinyurl.com/24nwmy9c.]

● Missouri: “Then the clause after being so amended so as to include besides the President, the Vice President, and other civil officers of the United States . . . was agreed to as now found in article 4, section 2 of the Constitution.”311 [Impeachment, Daily Missouri Democrat (March 3, 1868), available at http://tinyurl.com/48yaudvb.]

● New York: “[T]he result was that neither the President, Vice President, nor other civil officer of the United States could lawfully do an act . . . contrary to the good morals . . . of the office he holds.”312 [Impeachment, The Brooklyn Union (Dec. 7, 1867), available at http://tinyurl.com/4juaa9fy.])

● North Carolina: “Here the President declares, not merely as Commander-in-chief, but as “Chief Executive officer of the United States, that under the Constitution of the United States it is his duty to enforce the laws . . . .”313 [Chief Justice Ruffin against the New Constitution–He denounces President Johnson as a Despot and Usurper!, The Weekly Standard (Aug. 1, 1866), available at http://tinyurl.com/52suh9yv.]

● Ohio: “The design of the provision undoubtedly was to prevent the juncture of executive and legislative authority in the same individual; and unless its force is destroyed by some other provision, it is evident that neither the President nor any other officer of the United States . . . can legally be a member of either House.”314 [Who Shall Succeed Mr. Johnson—Mr. Wade Not Entitled, The Cincinnati Enquirer, April 13, 1868.]

● Pennsylvania: “The official papers of Davis captured under the guns of our victorious army in the Rebel capitol identified beyond question or shadow of doubt, and placed upon your record, together with the declarations and acts of his conspirators and agents, proclaim to all the world that he was capable of attempting to accomplish his treasonable procuration of the murder of the late President, and other chief officers of the United States.”315 [The Great Trial, The Philadelphia Inquirer (June 29, 1865), available at http://tinyurl.com/5n6juyhj.]

● South Carolina: “[T]he Provisional Governor is hereby authorized and empowered to appoint a competent agent . . . and also as Agent of the Governor of this State in all matters which he may desire to bring through such Agent before the President or other officers of the United States Government”316 [W.M. Henry Trescott, Report of Mr. Trescot, The Charleston Daily News, Nov. 4, 1865, at 1.]

● Tennessee: “[T]he President is an officer of the United States”317 [Who Shall Vote for President, The Tennessean (July 28, 1868), available at http://tinyurl.com/bdzm87pn.], available at

● Vermont: “. . . no less so in respect to Senators or Representatives than in respect to the President or any other officer of the United States.”318 [Mr. Foot, Speech of Mr. Food of Vermont, Rutland Weekly Herald (Nov. 14, 1856), available at http://tinyurl.com/y733fj28.]

● Virginia: “All persons who shall have knowledge of such plot, and shall not disclose the same to the President or some other officer of the United States, shall be guilty of misprision of treason . . .”319 [Senate, Monday, January 16, Alexandria Gazette (Jan. 17, 1860), available at http://tinyurl.com/3h5d83cf.]

● Wisconsin: “. . . bill declaring the effect of impeachment by the House of Representatives, on the President and other officers o[f] the United States.”320 [Impeachment of Andrew Johnson, The Telegraph-Courier (Nov. 28, 1867), available at http://tinyurl.com/5trub2t7.]

It is worth noting that at least a few of these articles were reprintings of the official proclamations mentioned above, where he explicitly identified himself as the “Chief Executive Officer of the United States” or “chief civil executive officer of the United States.”

Other newspaper accounts clearly referred to the President as a federal officer without explicitly using the phrase “officer of the United States.” A few are shown below:

● Connecticut:]“Mr. Covode on Monday also moved a resolution inquiring into the outlay of money for the purpose of electioneering, &c.,---and also inquiring whether the President or any other officer of government has with the use of money, patronage, or any other improper means, sought to influence Congress[.]”321 [News of the Week, Litchfield Enquirer (March 8, 1860), available at http://tinyurl.com/3m36yncw.]

● Delaware: “This left me [James Buchanan] no alternative, as the chief executive officer under the Constitution of the United States, but to collect the public revenue and protect the public property, so far as might be practicable under the existing laws.”322 [James Buchanan, A Message From the President, Weekly Delaware State Journal and Statesman (Jan. 11, 1861), available at http://tinyurl.com/bdfw682u.]

● Maine: “While at Washington, subsequent to his escape from Richmond, the loyalty of Mr. Starrett was abundantly substantiated to the satisfaction of the President and other officers of the Government.”323 [Arrest of Loyal Refugee, Bangor Daily Whig and Courier (Aug. 12, 1864), available at http://tinyurl.com/2z2nypak.]

● Maryland: “Hon. John Cochrane accompanies the officers of the Seventh Regiment to the President’s House this morning, and introduced them to the President and other officers of the Government.”324 [The Seventh Regiment of New York, The Daily Exchange (Feb. 24, 1860), available at http://tinyurl.com/555cyxhf.]

● Massachusetts: “It declares the title of all abandoned lands to be in the United States, and forbids the President or any other officer of the Government from surrendering it or doing any act to impair or affect the title of the United States.”325 [Congress, The Recorder (Jan. 20, 1868), available at http://tinyurl.com/y35n8bcv.]

● New Jersey: “The Embassy first landed at Washington and will be received by the President and other officers of the Government with great ceremony.”326 [The Japanese Embassy, West-Jersey Pioneer (May 19, 1860), available at http://tinyurl.com/y28a36ty.;]

● Pennsylvania: “He was the President, the chief officer of the government[.]”327 [The President’s Re-Construction Policy as Illustrated by the Washington Chronicle, Bradford Reporter, Aug. 3, 1865), at 2.]

● West Virginia: “[T]hey not only often call it requisition, but find it to answer the end desired, which is proven by their nomination for President, and other officers of the government.”328 [For the Mirror, American Union (April 24, 1852), available at http://tinyurl.com/4zaydc99.]

We also found evidence in legal treatises of the day. In Commentaries on American Law, the great American jurist James Kent stated, "The President is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it."329 [1 Kent. Com. 310, quoted in Veto Message, 425, https://www.presidency.ucsb.edu/documents/vetomessage- 425 and page 330 of the Johnson impeachment trial.] And Calvin Townsend in his educational reader, An Analysis of Civil Government, was even more explicit: “The Vice-President is an Officer of the United States.”330 [Calvin Townsend, Analysis of Civil Government 139 (1869).] Because all of Blackman and Tillman’s arguments apply equally to the Vice President as it does to the President, we find this to be relevant as well.

Finally, in the Republican Party Platform of 1868, we found the following statement that explicitly identifies the President as as an officer, “We profoundly deplore the untimely and tragic death of Abraham Lincoln, and regret the accession of Andrew Johnson to the Presidency, who has acted treacherously to the people who elected him and the cause he was pledged to support; has usurped high legislative and judicial functions; has refused to execute the laws; has used his high office to induce other officers to ignore and violate the laws.”

* * * * *

In summation, we have compiled a significant body of evidence—including numerous proclamations by President Andrew Johnson, statements by Senators and Representatives during the debates over the Fourteenth Amendment and the impeachment trial of Andrew Johnson, Amnesty Proclamations by President Lincoln and Johnson, as well as dozens of contemporary newspaper articles which suggest that at the time the Fourteenth Amendment was ratified, the term “officer of the United States” was broad enough to include the President.

VI. Hartwell and Mouat revisited

Having marshaled significant evidence to that the original public meaning of the phrase “officer of the United States” —both at the time of the Founding and the ratification of the Fourteenth Amendment—was broad enough to include elected officials generally and the President, in particular, we now look with fresh eyes at the two cases Blackman and Tillman cite in support of their conclusion to the contrary: United States v. Hartwell and United States v. Mouat.

A. United States v. Hartwell Supports Our Conclusion that the President is an Officer of the United States.

United States v. Hartwell was a criminal case brought under the Act of June 6, 1846, which criminalized embezzlement of public funds.331 [73 U.S. 385 (1867).] The Defendant was a clerk in the office of the assistant treasurer stationed at Boston.332 [Id. at 390-1.] The case focused on whether as a clerk, Hartwell was an “officer” within the meaning of the statute.333 [Id.] The Supreme Court said that he was.334 [Id. at 396-97.] Blackman and Tillman summarized the Court’s holding as follows:

Justice Noah Swayne wrote the majority opinion. He offered a two-part definition of an office. First, “[a]n office is a public station, or employment, conferred by the appointment of government.” Second, “[t]he term [office] embraces the ideas of tenure, duration, emolument, and duties.”

In Hartwell, the clerk “was appointed by the head of a department within the meaning of the constitutional provision upon the subject of the appointing power.” The court did not expressly connect the term “officer” in the embezzlement statute with the phrase “officer of the United States” in the Appointments Clause. However, the court’s discussion of the appointment being made by the head of the department suggests the two concepts were closely related—rightly so, in our view.335 [Blackman & Tillman.]

They then conclude that because “Presidents are not appointed by the government” but are instead “elected by the people,” they cannot be Officers of the United States.336 [ ]

As an initial matter, it bears repeating that Presidents are not “elected by the people.” They are elected by the Electoral College, which is as much an organ of the government as Congress or the Supreme Court is. Furthermore, as we showed in Section II.B, at the time of the Founding, the words “elect” and “appoint” were used interchangeably. Remember James Madison’s comment at the Constitutional Convention about the Electoral College we quoted above? “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.” The Constitutional Convention chose the prior. The Joint Committee Report from North Carolina which we quoted in section IV.C, shows that this understanding of the word “appoint” continued at the time Justice Swayne was writing: “The voters are merely the appointing power, whose function is to select the representative.” In light of this linguistic insight, we think Presidents easily satisfy the Hartwell test.

We think the opinion supports our conclusion in at least two additional ways. First, as Blackman and Tillman note, the opinion does not use the full phrase “officer of the United States,” instead using the words “officer” and “public officer.” Yet it is clear that the Court is analyzing Hartwell’s position under the Appointments Clause. If there was an understood legal or colloquial distinction between “officers” and “officers of the United States,” we think Justice Swayne would have felt it necessary to use the latter phrase. Instead, we think the Hartwell opinion strengthens our view that all references to the President as an “officer” is evidence that he is an “officer of the United States.”

Second, we think the opinion supports our reading of the Impeachment Clause. This actually comes from Justice Miller’s dissenting opinion which argued that the Defendant fell outside the contours of the embezzlement statute because he had not been explicitly entrusted with the money by an act of Congress. But in reaching that conclusion, we couldn’t help but notice one of the sections that he quoted:

That the Treasurer of the United States, the treasurer of the mint of the United States, the treasurers and those acting as such of the various branch mints, all collectors of customs, all surveyors of customs acting also as collectors, all assistant treasurers, all receivers of public moneys at the several land offices, all postmasters, and all public officers of whatever character, be, and they are hereby, required to keep safely . . . all the public moneys collected by them.

Surely, Congress was not suggesting that the Treasurer of the United States, the treasurer of the mint of the United States, and other enumerated positions were not public officers. This is yet another example of the Alvin and the Chipmunks rule.

B. United States v. Mouat’s test misconstrues the Appointment Clause by ignoring the modifying clause

United States v. Mouat considered whether a paymaster’s clerk—appointed by a paymaster in the navy with the approval of the Secretary of the Navy—was entitled to mileage reimbursement under the Act of June 30, 1876.337 [124 U.S. 303 (1888).] The Act limited reimbursement to “actual traveling expenses” and prohibited “disbursing officers of the United States” from collecting “for mileages and transportation in excess of the amount actually paid.”338 [Id. at 305-306.] Writing for the majority, Justice Samuel Miller stated:

What is necessary to constitute a person an officer of the United States in any of the various branches of its service has been very fully considered by this Court in United States v. Germaine, 99 U. S. 508. In that case, it was distinctly pointed out that under the Constitution of the United States, all its officers were appointed by the President, by and with the consent of the Senate, or by a court of law or the head of a department, and the heads of the departments were defined in that opinion to be what are now called the members of the cabinet. Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.339 [Id. at 307.]

But, as pointed out in Section II.D.1 above, that is not actually what the Constitution says. The President, courts of law, and department heads do not appoint all of the officers of the United States. There is another category: those officers “whose Appointments are . . . otherwise provided for” elsewhere in the Constitution. Words, we note, that the Germaine Court failed to quote.

As such, we find Justice Miller’s statement that “Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States,” to be simply wrong. It flies in the face of the express language of Article II. And we feel that both its rigid test—based as it was on an incomplete version of the Appointments Clause—and its suggestion that “Congress may have used the word ‘officer’ in some other connections in a more popular sense” should be disregarded as dicta.

As such, we actually think Blackman and Tillman are interpreting the historical record exactly backwards. Mouat is not a linguistic continuity of the original meaning of the phrase “officer of the United States” but rather a departure from it. As we have shown, the phrase was not a term of art at the time of the Founding. Instead, it referred broadly to almost all federal officials whose positions were established by law—be that the Constitution or a federal statute. And it was broad enough to encompass both elected officials generally and the President of the United States specifically.

That understanding—shared by Chief Justice Marshall in his opinion in Maurice and by Congress in the Postal Act—continued at the time of the drafting and ratification of the Fourteenth Amendment. As we have shown, the explicit text, legislative history, and ratification debates of the Fourteenth Amendment and legislative history of the Fifteenth Amendment—not to mention newspapermen across the country—consistently spoke of electing officers, including officers of the United States. And Congress, Presidential proclamations, newspapers, and academic works published around the time the Fourteenth Amendment was ratified routinely referred to the President and Vice-President as an “officer of the United States.” Blackman and Tillman stated that the burden was on “proponents of the view that Section 3’s ‘officer of the United States’-language includes the presidency” to “put forward evidence as probative as Mouat and Hartwell.”340 [Blackman & Tillman, supra note 5, at 31.] We think we have more than met that challenge.

CONCLUSION

There is plenty, frankly, that we do not know. We do not know the meaning of the word “insurrection” in the Fourteenth Amendment, or how that meaning would apply to recent events. We have not done historical research on if the Amendment is “self-executing.” We do not know many things about Section 3 of the Fourteenth Amendment. And we emphatically take no position on pending litigation other than the issue this paper addresses. We understand this piece is entering a complex national debate accompanying a presidential election. We would bury this paper with disclaimers if needed to get this point across that we cannot and will not answer many important questions surrounding these big topics. As is, we’ve settled for the first paragraph of our conclusion.

But this we know: The term “officer of the United States” in the 1789 Constitution is not a term of art. It thus applies to all “officers of the United States,” as a standard textualist interpretation of the phrase implies. There is no doubt that the person who holds the office of President of the United States becomes an officer of the United States when the person takes the Presidential Oath. Donald Trump was an officer of the United States.

Even assuming that was not the end of the matter, we also know this from a wide range of sources: At the time of the Fourteenth Amendment, the term “officer of the United States” included elected officials. Many references in that era refer to the President himself, as well as the Vice-President, as an “officer of the United States.” The historical record in 1868 confirms what has been true since 1789: The President of the United States is an officer of the United States.

Appendix A:

Selection Mechanism for Governors in the Early States

State / Selection Mechanism / Referred to as Appointment, Election, or Both? / Relevant Passages

Connecticut / General Election / Election / 1) Art. IV, § 1: “A general election for governor, lieutenant-governor, secretary of the state, treasurer and comptroller shall be held on the Tuesday after the first Monday of November, 1966, and quadrennially thereafter.” 2) Art. IV, § 2. Such officers shall hold their respective offices from the Wednesday following the first Monday of the January next succeeding their election . . .”

Delaware / Joint ballot of both houses / Appointment / Art 7: “A president or chief magistrate shall be chosen by joint ballot of both houses' to be taken in the house of assembly . . . and the appointment of the person who has the majority of votes shall be entered at large on the minutes and journals of each house,”

Georgia / Chosen by ballot by the General Assembly / Both / 1) Art. II: “On the first day of the meeting of the representatives so chosen, they shall proceed to the choice of a governor, . . . and of an executive council, by ballot out of their own body.”341 [Const. of Ga., art. II (177]; 2) Art. XXIV: “I, A B, elected governor of the State of Georgia, by the representatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judgment, execute the said office faithfully and conscientiously' according to law, without favor, affection, or partiality; that I will, to the utmost of my power, support, maintain, and defend the State of Georgia, and the constitution of the same.”

Maryland / Joint ballot of both houses / Both / 1) XXV: “That a person of wisdom, experience, and virtue, shall be chosen Governor . . . on the second Monday in every year forever thereafter, by the joint ballot of both Houses (to be taken in each House respectively) deposited in a conference room; the boxes to be examined by a joint committee of both Houses, and the numbers severally reported, that the appointment may be entered”' 2) . . . if the ballots should again be equal between two or more persons, then the election of the Governor shall be determined by lot . . .”

Massachusetts / General Election / Election / 1) Chapter 2, Art. 2: The Governor shall be chosen annually: And no person shall be eligible to this office, unless at the time of his election; 2) Chapter 2, Art. 3: Those persons who shall be qualified to vote for Senators and Representatives within the several towns of this Commonwealth, shall, at a meeting, to be called for that purpose, on the first Monday of April annually, give in their votes for a Governor342 [https://constitutioncenter.org/the-constitution/historic-document-library/detail/massachusettsconstitution#:~: text=The%20Massachusetts%20Constitution%20of%201780,the%20other%20branches%20of%20government.]

New Hampshire / General Election / Election / Art. 42: The governor shall be chosen annually in the month of March . . . in case of an election by a plurality of votes through the state. . . And no person shall be eligible to this office, unless at the time of his election . . . 343 [https://www.nh.gov/glance/constitution.htm.]

New Jersey / Election by the Council & Assembly / Election / Article VII: “[T]he Council & Assembly jointly at their first Meeting, [] shall, by a Majority of Votes, elect some fit Person within the Colony to be a Governor for one Year, the Governor.”

New York / Election by freeholders of the State / Election / XVII: “. . . [T]he supreme executive power and authority of this State shall be vested in a governor; and that statedly, once in every three years . . . shall be, by ballot, elected governor . . . which elections shall be always held at the times and places . . .”344 [https://avalon.law.yale.edu/18th_century/ny01.asp.]

North Carolina / Joint ballot of both houses / Election / [T]he Senate and House of Commons, jointly at their first meeting after each annual election, shall by ballot elect a Governor for one year . . .”345 [https://avalon.law.yale.edu/18th_century/nc07.asp.]

Pennsylvania / Joint ballot of the general assembly and council / Election / Sec. 19: “All vacancies in the council that may happen by death, resignation, or otherwise, shall be filled at the next general election for representatives in general assembly, unless a particular election for that purpose shall be sooner appointed by the president and council. The president and vice-president shall be chosen annually by the joint ballot of the general assembly and council.”

Rhode Island / Election at the town, city, or ward meetings. / Election / 1)Art. VII, § 1: “The chief executive power of this State shall be vested in a Governor, who, together with a Lieutenant Governor, shall be annually elected by the people.”; 2) Art. 7 sec. 11 The compensation of the Governor . . . shall not be diminished during the term for which they are elected.; 3) Art. 8 sec. 1: The Governor . . . shall be elected at the town, city, or ward meetings, to be holden on the first Wednesday of April, annually.

South Carolina / Joint ballot of both houses / Election / 1) “[A]t every first meeting of the senate and house of representative1)s thereafter, to be elected by virtue of this constitution, they shall jointly in the house of representatives choose by ballot from among themselves or from the people at large a governor and commander-in-chief, a lieutenant-governor, 2) That every person who shall be elected governor and commander-in-chief of the State.; 3) That the qualifications of president . . . shall be the same as of members of the general assembly, and on being elected they shall take an oath of qualification in the general assembly.346 [https://avalon.law.yale.edu/18th_century/sc01.asp.]

Virginia / Joint ballot of both houses / Chosen/Appointment / A Governor, or chief magistrate, shall be chosen annually by joint ballot of both Houses (to be taken in each House respectively) . . . who shall not continue in that office longer than three years successively . . . Thomas Jefferson, Esq. be appointed Governor or Chief Magistrate of this Commonwealth.347 [While we did not find reference to either appointment or election in the original constitution, we found an an excerpt from the Journal of the House of Delegates from 1779: https://encyclopediavirginia.org/entrie ... gatesjune- 1-1779/]

Appendix B: Selection Mechanism for Judges in the Early States

State / Selection Mechanism / Referred to as Appointment, Election, or Both? / Relevant Passages

Connecticut / Nomination by the governor and appointment by the general assembly for Supreme Court and lower court / Appointment *Used the term election for probate court judges and justices of the peace, but I am not sure whether you wanted this information. (Art. IV, §§ 4-5) / 1) Art. IV, § 1:The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed.; 2) Art. IV, § 3: Judges of the lower courts shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed, for terms of four years.

Delaware / -- / -- /Art. 12. The president and general assembly shall by joint ballot appoint three justices of the supreme court for the State, one of whom shall be chief justice, and a judge of admiralty, and also four justices of the courts of common pleas and orphans' courts for each county . . .”

Georgia / General Election / Election / “The judicial powers of this state shall be vested in a superior courts . . . The judges of the superior court shall be elected for the term of three years, removable by the governor.”348 [ https://founding.com/founders-library/g ... tution-of- 1789/]

Maryland / Appointment by Governor with advice and consent of the Council / Appointment / XLVIII: That the Governor, for the time being, with the advice and consent of the Council, may appoint the Chancellor, and all Judges and Justice…

Massachusetts / Appointment by Governor with advice and consent of the Council / Appointment / Chapter 2, Art. 9: All judicial officers . . . shall be nominated and appointed by the Governor, by and with the advice and consent of the Council;

New Hampshire / Appointment by Governor and Council / Appointment / Art. 46: All judicial officers . . . shall be nominated and appointed by the governor and council. . . . no appointment shall take place, unless a majority of the council agree thereto.

New Jersey / N/A / N/A / N/A

New York / Appointment by Commission of Senators and the Governor / Appointment / XXIII: That all officers [including Chancellor, and Justices of the Supreme Court], shall be appointed in the manner following[]: The assembly shall, once in every year, openly nominate and appoint one of the senators from each great district, which senators shall form a council for the appointment of the said officers, of which the governor . . . shall be president and have a casting voice, but no other vote; and with the advice and consent of the said council, shall appoint all the said officers.”

North Carolina / Appointment of the General Assembly by joint ballot of both houses / Appointment / XIII: “That the General Assembly shall, by joint ballot of both houses, appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty . . . who shall be commissioned by the Governor . . . ”

Pennsylvania / Appointment by the President with the council / Appoint / Sec. 20: “The president, and in his absence the vice-president, with the council, five of whom shall be a quorum, shall have power to appoint and commissionate judges”

Rhode Island / Election by the two Houses in grand committee / Elected / Art. X Sec. 4: “The Judges of the Supreme Court shall be elected by the two Houses in grand committee.”349 [https://tile.loc.gov/storage-services/public/gdcmassbookdig/constitutionof00rh/constitutionof00rh.pdf.]

South Carolina / Chosen by ballot jointly by the general assembly and legislative council and commissioned by the president and commander-in-chief. / -- / That all other judicial officers shall be chosen by ballot, jointly by the general assembly and legislative council, and except the judges of the court of chancery, commissioned by the president and commander-in-chief . . .

Virginia / Appointed by joint ballot of the two Houses/ Appointment / The two Houses of Assembly shall, by joint ballot, appoint Judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty, Secretary, and the Attorney- General, In case of death . . . the Governor . . . shall appoint persons to succeed in office. House of Assembly or the Privy Council.350 [https://encyclopediavirginia.org/entries/the-constitution-of-virginia-1776/.]

Appendix C: Oaths that State Executive Officers took in Southern/future rebel states in the antebellum era

State / Oath

Alabama / Article VI, Section 1: The members of the General Assembly, and all officers, executive and judicial, before they enter on the execution of their respective offices, shall take the following oath or affirmation, to wit: "I solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and Constitution of the State of Alabama, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of -------- according to law: so help me God.” Constitution of 1819.351 [Available at https://avalon.law.yale.edu/19th_century/ala1819.asp.]

Arkansas / SEC. 28. The appointment of all officers not otherwise directed by this constitution shall be made in such manner as may be prescribed by law; and all officers both civil and military acting under the authority of this State shall before entry on the duties of their respective offices take an oath or affirmation to support the Constitution of the United States and of this state and to demean themselves faithfully in office. Constitution of 1836 352 [Available at https://digitalheritage.arkansas.gov/cg ... additional.]

Florida / Section 11. Members of the General Assembly, and all officers, Civil or Military, before they enter upon the execution of their respective offices, shall take the following oath or affirmation: I do swear (or affirm,) that I am duly qualified, according to the Constitution of this State, to exercise the office to which I have been elected, (or appointed) and will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the Constitution of this State, and of the United States. Constitution of 1838.353 [Available at https://www.floridamemory.com/items/show/189087?id=8.]

Georgia / 1) Article I, Sec. 19. Every member of the senate or house of representatives shall, before he takes his Seat, take the following oath or affirmation. to wit: " I, A B, do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, treats, canvassing, or other undue or unlawful means, used by myself, or others by my desire or approbation, for that purpose; that I consider myself constitutionally qualified as a senator, (or representative,) and that, on all questions and measures which may come before me, I will give my Vote and so conduct myself as may, in my judgment, appear most conductive to the interest and prosperity of this State; and that I will bear true faith and allegiance to the same; and to the utmost of my power and ability observe, conform to, support, and defend the constitution thereof.; 2) Article II, Sec. 5. The governor shall, before he enters on the duties of his office, take the following Oath or affirmation: " I do solemly swear (or affirm, as the case may be) that I will faithfully execute the office of governor of the State of Georgia; and will, to the best of my abilities, preserve, protect , and defend the said State, and cause justice to be executed in mercy therein, according to the constitution and laws thereof.'"354 [Available at https://founding.com/founders-library/g ... stitution- of-1798/.]

Louisiana / Title VI, Article 90: “Members of the General Assembly, and all officers, before they enter upon the duties of their office, shall take the following oath or affirmation: "I (A B), do solemnly swear (or affirm) that I will support the Constitution of the United States and of this State, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States and of this State; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State, nor out of it, with a citizen of this State, nor have I sent or accepted a challenge to fight a duel with deadly weapons with a citizen of this State, nor have I acted as second in carrying a challenge or aided, advised or assisted any person thus offending, so help me God."355 [Available at, e.g., Journal of the Convention to form a new Constitution for the State of Louisiana 96 (1852) copy apparently reproduced at https://en.wikisource.org/wiki/Louisian ... on_of_1852.]

Mississippi / Article VII, 1) Sect. 1. Members of the legislature, and all officers, executive and judicial, before they enter upon the duties of their respective offices, shall take the following oath or affirmation, to wit: "I solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States, and the constitution of the state of Mississippi, so long as I continue a citizen thereof, and that I will faithfully discharge, to the best of my abilities, the duties of the office of__________________according to law. So help me God."; 2) Sect. 2. The legislature shall pass such laws to prevent the evil practice of duelling as they may deem necessary, and may require all officers before they enter on the duties of their respective offices, to take the following oath or affirmation: "I do solemnly swear (or affirm, as they case may be) that I have not been engaged in a duel, by sending or accepting a challenge to fight a duel, or by fighting a duel since the first day of January, in the year of our Lord one thousand eight hundred and thirty-three, nor will I be so engaged during my continuance in office. So help me God." Constitution of 1832 356 [Available at https://www.mshistorynow.mdah.ms.gov/is ... on-of-1832.]

North Carolina / Provision not found in Constitution.

South Carolina / Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: "I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.” Constitution of 1790, as amended in 1834.357 [Available at https://www.carolana.com/SC/Documents/s ... _1790.html.]

Tennessee / I. Every person who shall be chosen or appointed to any office of trust or profit, under this Constitution, or any law made in pursuance thereof, shall, before entering on the duties thereof, take an oath to support the Constitution of this State, and of the United States, and an oath of office. Constitution of 1835.358 [Available at https://www.tngenweb.org/law/constitution1835.html.]

Texas / Article VII, Section 1: "I, (A. B.) do solemnly swear (or affirm) that I will faithfully and impartially discharge and perform, all the duties incumbent on me as ------------, according to the best of my skill and ability, agreeably to the Constitution and laws of the United States and of this State: And I do further solemnly swear (or affirm) that since the adoption of this Constitution by the Congress of the United States, I being a citizen of this State, have not fought a duel with deadly weapons, within this State, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, or aided, advised or assisted, any person thus offending -- so help me God." Constitution of 1845.359 [Available at https://usiraq.procon.org/sourcefiles/1 ... tution.pdf.]

Virginia / Provision not found in Constitution.

[admin]

Part 1 of 2

No. 23-719

In the
Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, et al.,
Respondents.

On Writ of Certiorari to the Supreme Court of Colorado

BRIEF OF AMICI CURIAE J. MICHAEL LUTTIG, PETER KEISLER, LARRY THOMPSON, STUART GERSON, DONALD AYER, ET AL., IN SUPPORT OF THE ANDERSON RESPONDENTS

Matthew W. Edwards
1300 19th Street NW, Suite 300
Washington, DC 20036

Nancy A. Temple
Katten & Temple, LLP
209 S. LaSalle Street, Suite 950
Chicago, IL 60604

Richard D. Bernstein
Counsel of Record
1875 K Street NW, Suite 100
Washington, DC 20006
(301) 775-2064
[email protected]

Counsel for Amici Curiae

January 29, 2024

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
INTRODUCTION A ND SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE. . . . . . . . . . . .
A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review. . . . . . . . . . . . . . 3
B. No Amendment Repeals This Allocation Of Judicial Power. . . . . . . . . . . . . . . . . . . . . . . 8
1. Section 5 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . 8
2. Section 3 of the Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . 10
3. The Twelfth Amendment . . . . . . . . . . . 13
4. The Twentieth Amendment . . . . . . . . . 15
C. The Political Question Doctrine Does Not Apply. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Federalism And Separation Of Powers Support Traditional Court Adjudication Rather Than Sole, Unreviewable Congressional Power. . . . . . . . . . . . . . . . . . . 16
II. THE FAIR MEANING OF SECTION 3 DISQUALIFIES FORMER PRESIDENT TRUMP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Section 3 Must Be Accorded Its Fair Meaning, Not A Narrow Construction . . . 19
B. The “President Of The United States” Is An “[O]fficer of the United States” . . . . 21
C. The January 6, 2021 Armed Attempt To Prevent The Peaceful Transfer Of Executive Power Was An “Insurrection . . . Against The” Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Mr. Trump “Engaged In” The Insurrection . . . . . . . . . . . . . . . . . . . . . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
TABLE OF APPENDICES
APPENDIX A — LIST OF AMICI CURIAE . . . . . . . 1a
Amy Warwick (The Prize Cases), 67 U.S. 635 (1862) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929) . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 15
Brandbenburg v. Ohio, 395 U.S. 444 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 16
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) . . . . . . . . . . . . . . . . . 6, 11, 13, 26
Cooper v. Aaron, 358 U.S. 1 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
District of Columbia v. Heller, 554 U.S. 570 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Hassan v. Colorado, 495 F. App’x 947 (10th Cir. 2012) . . . . . . . . . . . . . . . . . 6
Cited Authorities
In re Canvass of Absentee and Mail-In Ballots of Nov. 3, 2020 Gen. Election, No. 31 EAP 2020, 241 A.3d 1058 (Pa. Nov. 23, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Canvassing Observation, 241 A.3d 339 (Pa. Nov. 17, 2020) . . . . . . . . . . . . . . . . 30
In re Charge to Grand-Jury Treason, 30 F. Cas. 1047 (C.C.E.D. Pa. 1851) . . . . . . . . . . . . . . 29
In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869) . . . . . . . . . . . . . . . . 9
Johnson v. Sec’y of State, 951 N.W.2d 310 (Mich. Dec. 9, 2020) . . . . . . . . . . . . . 29
Law v. Whitmer, No. 82178, 477 P.3d 1124 (Nev. Dec. 8, 2020) . . . . . . 30
McPherson v. Blacker, 146 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
New York v. United States, 505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Northern Sec. Corp v. United States, 193 U.S. 197 (1904) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shelby County v. Holder, 570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Texas v. Pennsylvania, 141 S. Ct. 1230 (Dec. 11, 2020) . . . . . . . . . . . . . . . . . . 29
Thomas v. Loney, 134 U.S. 372 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trump v. Biden, 951 N.W.2d 568 (Wis. Dec. 14, 2020) . . . . . . . . . . . . . 29
United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) . . . . . . . . . . . . . . . . . 25
Ward v. Jackson, No. CV-20-0343, 2020 WL 8617817 (Ariz. Dec. 8, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutes 3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 U.S.C. § 2383 . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 16
28 U.S.C. § 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
U.S. Const. amend. XII . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
U.S. Const. amend XIV, § 3 . . . . . . . . . . . 2, 6, 7, 10, 11, 19
U.S. Const. amend. XX . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
U.S. Const. amend. XX, § 3 . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Const. art. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
U.S. Const. art. I § 2, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. I § 3, cl. 6 . . . . . . . . . . . . . . . . . . . . . . . 4, 9
U.S. Const. art I, § 4 cl. 1 . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 5 . . . . . . . . . . . . . . . . 4, 5, 6, 10, 14, 15
U.S. Const. art I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const. art I, § 8 cl. 17 . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art I, § 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Const. art. II, § 1, cl. 1 . . . . . . . . . . . . . . . . 2, 6, 21, 24
U.S. Const. art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . 14, 18
U.S. Const. art. II, § 1, cl. 3 . . . . . . . . . . . . . . . . . . . . 14, 25
U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Const. art. III, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . . . 19
Other Sources
R. Bernstein, “Lots of People Are Disqualified from Becoming President,” Atlantic (Feb. 4, 2021) https://www.theatlantic.com/ideas/ archive/2021/02/trump-disqualificationpresident/617908/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Samuel Bray, “Officer of the United States” in Context, Reason (Jan. 22, 2024) https:// reason.com/volokh/2024/01/22/officer-of-theunited-states-in-context/. . . . . . . . . . . . . . . . . . . . . . . 23
Chronology of Events Leading to Secession Crisis, American Historical Association https://www. historians.org/teaching-and-learning/teachingresources-for-historians/sixteen-monthsto-sumter/chronology . . . . . . . . . . . . . . . . . . . . . . . . . 27
Cong. Globe, 39th Cong., 1st Sess. 2918 (May 31, 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021), https://www. washingtonpost.com/context/john-eastman-ssecond-memo-on-january-6-scenario/b3fd2b0af931-4e0c-8bac-c82f13c2dd6f/ . . . . . . . . . . . . . . . . . . 15
J. Elliot, The Debates in the Several State Conventions (J. Elliot ed., 2d ed. 1836) . . . . . . . . . . . 25
J. Heilpern & M. Worley, Evidence that the President Is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment (Jan. 1, 2024) https://papers.ssrn.com/sol3/ Delivery.cfm/SSRN_ID4681108_code2677999. pdf?abstractid=4681108&mirid=1 . . . . . . . . . . . . . . 22
S. Johnson, A Dictionary of the English Language (4th ed. 1773) . . . . . . . . . . . . . . . . . . . . . . . 13
P. Keisler & R. Bernstein, Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean, Atlantic (Feb. 8, 2021) https://www.theatlantic. com/ideas/archive/2021/02/first-amendmentno-defense-against-impeachment/617962/ . . . . . . . . 32
J. Kent, Commentaries on American Law (11th ed. 1866) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
James Madison, Federalist No. 48 . . . . . . . . . . . . . . . . . 17
James Madison, Federalist No. 78 . . . . . . . . . . . . . . . . . 17
J. McPherson, Battle Cry of Freedom (1988) . . 20, 27, 28
Michael Pence, Vice President’s Letter to Congress (January 6, 2021), https://int. nyt.com/data/documenttools/pence-letteron-vp-and-counting-electoral-votes/ 9d6f117b6b98d66f/full.pdf . . . . . . . . . . . . . . . . . . . . . 23
R. Parloff, What Scalia Thought About Whether Presidents Are “Officers of the United States,” Lawfare (Jan. 24, 2024) https:// http://www.lawfaremedia.org/article/wha ... residents- are-officers-of-the-united-states . . . . . . . . . . . . . . . . 22
A. Scalia & B. Garner, Reading Law (2012) . . . . . . 19, 23
Ilya Somin, Insurrection, Rebellion, and January 6: Rejoinder to Steve Calabresi, Reason (Jan. 6, 2024) https://reason.com/ volokh/2024/01/06/insurrection-rebellionand-january-6-rejoinder-to-steve-calabresi/ ?itm_source=parsely-api . . . . . . . . . . . . . . . . . . . . . . 25
South Carolina convention, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union https://www.learningforjustice. org/classroom-resources/texts/hard-history/ declaration-of-the-immediate-causes-whichinduce-and-justify-secession . . . . . . . . . . . . . . . . . . . 27
2 J. Story, Commentaries on the Constitution § 831 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
J. Story, Commentaries on the Constitution of the United States § 423 at 300 (2d ed. 1858) . . . . . . 19
St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Reconstruction Acts, 12 Op. Att’y Gen. 141 (1867) . . . . . . . . . . . . . . . . . . . . 29
The Reconstruction Acts, 12 Op. Att’y Gen. 182 (1867) . . . . . . . . . . . . . . . . . . . . 29
Washington’s Farewell Address (1796) https:// http://www.govinfo.gov/content/pkg/GPO- ... sdoc21.pdf . . . . . . . 26

INTEREST OF AMICI CURIAE

The amici listed in Appendix A submit this brief. Amici include former officials who worked in the last six Republican administrations, senior officials in the White House and Department of Justice, and others who support a strong, elected Presidency.1 Reflecting their experience, amici have an interest in defending the peaceful transfer of power to a newly-elected President that is required by Article II and the Twelfth and Twentieth Amendments and is protected against insurrection by Section 3 of the Fourteenth Amendment. Amici speak only for themselves personally and not for any entity or other person.

INTRODUCTION AND SUMMARY OF ARGUMENT

This brief focuses on two textualist points. First, it would violate the rule of law and textualism for this Court to create an off-ramp to avoid adjudicating whether Mr. Trump is disqualified. The power to decide a dispute about a presidential candidate’s constitutional qualifications is a judicial power that has been vested by the Electors Clause initially in the States, and by Article III’s grant of appellate jurisdiction ultimately in this Court. Section 5 of the Fourteenth Amendment merely gives Congress power to legislate a judicial enforcement mechanism in addition to this pre-existing judicial power of the States and this Court.

Mr. Trump does not argue that the Constitution gives Congress judicial power over a presidential qualifications dispute. Section 5 of Article I gives Congress the power only to “be the Judge of the . . . Qualifications of its own Members.” In contrast, Section 3 of the Fourteenth Amendment merely checks the judicial power of the courts by giving Congress the power by two-thirds vote to remove, for any reason, disqualification under Section 3, even after it has been judicially adjudicated.

Second, the terms of Section 3 of the Fourteenth Amendment disqualify Mr. Trump. The Court should heed the warning of Justice Holmes that cases of “immediate overwhelming interest” often “make bad law.” Northern Sec. Corp. v. United States, 193 U.S. 197, 400-01 (1904) (Holmes, J., dissenting). Particularly because Section 3 emerged from the hallowed ground of the Civil War, this Court must accord Section 3 its fair meaning, not a narrow construction. Mr. Trump was “President of the United States.” U.S. Const. art. II, § 1, cl. 1. He never disputes that the President is an “officer.” It follows, as the Fourteenth Amendment generation understood, that the “President of the United States” is an “officer of the United States.” Mr. Trump incited, and therefore engaged in, an armed insurrection against the Constitution’s express and foundational mandates that require the peaceful transfer of executive power to a newly-elected President. In doing so, Mr. Trump disqualified himself under Section 3.

ARGUMENT

I. STATE COURTS AND THIS COURT HAVE THE JUDICIAL POWER TO DECIDE A PRESIDENTIAL DISQUALIFICATION DISPUTE.

Resolving individual disputes of a presidential candidate’s qualifications is an exercise of judicial power. Under federalism and separation of powers, state and federal courts exercise judicial power, except for Article I’s two grants of enumerated judicial powers to Congress. Neither of those grants even arguably applies here. And no constitutional amendment changes the allocation of judicial power here.

A. The Electors Clause Allocates This Power To The States, Subject To This Court’s Article III Judicial Review.

The Constitution limits Congress to the two judicial powers enumerated in Article I. The founding generation understood this. The oft-cited treatise of St. George Tucker explained that the Constitution vested

[t]he judicial powers (except in the cases particularly enumerated in the first article) in the courts; the word the, used in defining the powers of the executive, and of the judiciary, is, with these exceptions, co-extensive in its signification with the word all: . . . .

[Congress] is neither established as [a judicial court] by the constitution (except in respect to its own members,) nor has it been, nor can it be established by authority of congress; for all the courts of the United States must be composed of judges commissioned by the president of the United States, and holding their offices during good behaviour, and not by the unstable tenure of biennial elections.

St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. 200-205 (1803) (first and last emphasis added).

The constitutional provisions on impeachment provide one of only two “particularly enumerated” grants of judicial power to Congress. Article I, section 3, clause 6 states: “The Senate shall have the sole Power to try all Impeachments.” (Emphasis added). Clause 6 also refers to the person subject to impeachment being “convicted” by “the Concurrence of two thirds of the Members present.” And the next clause refers to “Judgment in Cases of Impeachment.” Article II, Section 4, in turn subjects to Impeachment “[t]he President, the Vice President, and all civil Officers of the United States.”

In contrast, in the second grant of an enumerated judicial power to Congress, the Constitution gives Congress no judicial power concerning the President, the Vice President, and all civil officers. This second grant is in Section 5 of Article I: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members[.]” (Emphasis added). Justice Story explained the reason that this judicial power concerning “Members” was given to Congress: “If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.” 2 J. Story, Commentaries on the Constitution § 831 (1833).

As the text of Article I, Section 5 confirms, this rationale does not support any power of Congress to “be the Judge of the . . . Qualifications of” the President or any officer of the United States. The founding generation would have considered it unthinkable to give Congress an unreviewable power, by a bare majority, to disqualify a President or a cabinet member when the facts or legal principles are in dispute. As James Madison explained in Federalist No. 48: “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Madison warned against “legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” He thus stated that the Constitution did not make “[t]he judiciary and executive members . . . dependent on the legislative . . . for their continuance in” office. Id. (emphasis added). “An ELECTIVE DESPOTISM was not the government we fought for;” but rather the founding generation fought for a government with the “effectual[] check[s] and restraint[s]” of separation of powers. Id.

In Section 5 of Article I, however, the word “Judge” does reflect the founding generation’s understanding that it is an exercise of judicial power to decide disputed factual and legal questions about whether a particular person is qualified to hold office. Accordingly, Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929), holds that when a house of Congress exercises power over a dispute about “elections, returns, and qualifications” of that house’s members, that house “acts as a judicial tribunal.” Id. at 616. The power to decide such a dispute is “judicial in character,” and its exercise “necessarily involves the ascertainment of facts . . . to determine the facts and to apply the appropriate rules of law, and, finally, to render a judgment . . . .” Id. at 613. Before Barry, Thomas v. Loney, 134 U.S. 372 (1890), also had held that Section 5 of Article 1 gives each House “judicial power” and each House acts as a “judicial tribunal.” Id. at 374- 75. Although Barry and Loney involved elections, their rationale expressly applied to qualifications as well. As it must, because “Judge” in Article I, Section 5 applies to “Elections, Returns and Qualifications.”

In stark contrast to congressional qualifications, the Constitution confers the judicial power to adjudicate presidential qualifications first on the state officials and courts designated by state law, and ultimately on the Supreme Court. To start, the Electors Clause in Article II, Section 1 confers power on each State to “direct” the “Manner” of “appoint[ing]” presidential electors. Each state’s “far-reaching authority over presidential electors,” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020), includes the “power to impose conditions on the appointment of electors,” id. at 2324 n.6. Thus, "a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.) (emphasis added). The Electors Clause also gives each state the power to authorize state officials and state courts “to oversee election disputes,” Bush v. Gore, 531 U.S. 98, 113-14 (2000) (Rehnquist, C.J., concurring). A dispute over a presidential candidate’s qualifications under federal law is certainly one very important kind of presidential election dispute.

Even without the Electors Clause, as a matter of federalism, generally state law may authorize state courts to interpret and apply “federal law,” even when Congress has not created a justiciable cause of action. ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). The only exception is when the Constitution or a valid federal statute contains “a provision for exclusive federal jurisdiction.” Id.

Section 2 of Article III of the Constitution directly gives the Supreme Court appellate jurisdiction, “both as to law and fact,” of “all cases, in law and equity, arising under this Constitution, [and] the laws of the United States,” except in cases where this Court has original jurisdiction. The ubiquitous “all cases” include disputes in state court raising federal issues about a presidential candidate’s qualifications under the Constitution.2 As Bush v. Gore held, when disputes arise relating to a presidential election, after initial resolution by the state officials or state courts designated by state law, it is “our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” 531 U.S. at 111 (per curiam) (emphasis added). After that resolution, the Constitution’s Supremacy Clause mandates that all state legislatures, officials, and courts abide by final Supreme Court rulings on issues of federal law. Cooper v. Aaron, 358 U.S. 1, 4, 18-20 (1958).

To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States. That refutes any suggestion that only Congress can prevent inconsistent rulings between courts in different states on whether a presidential candidate is disqualified.

B. No Amendment Repeals This Allocation Of Judicial Power.

Nothing in any constitutional amendment limits the pre-existing power of state courts and ultimately the Supreme Court to adjudicate a presidential qualifications dispute before the election. And Mr. Trump does not argue that any constitutional amendment confers a power on Congress to adjudicate this case of disputed presidential qualifications.

1. Section 5 of the Fourteenth Amendment: Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (Emphasis added). Nothing in these fifteen words deprives the states of their pre-existing power, subject to this Court’s review, to adjudicate a presidential candidate’s constitutional qualifications. See Part I.A., supra. Section 5 says “power,” not “the power”—much less “exclusive” or “sole power.” Compare Art. I, § 2, cl. 5, and § 3, cl. 6. (“the sole Power”); Art. I, § 8, cl. 17 (“exclusive Legislation”). Nor does Section 5 state “No State shall” as Section 1 does. See also Art. I, § 10 (“No State shall” used for more than 15 prohibitions). Nor does one word in Section 5 permit any distinction between Congress’s power to enforce Section 3 versus Section 1. Rather, as to Section 3 and Section 1, Section 5 gives Congress “power” to legislate an additional enforcement mechanism, and does not negate the preexisting adjudicatory power of state courts, subject to Supreme Court review, to enforce the Constitution.

For similar reasons, Mr. Trump misplaces reliance on In re Griffin, 11 F. Cas. 7 (Cir. Ct. D. Va. 1869). Nothing in Griffin involved, addressed, or limited either a state court’s pre-existing power under the Electors Clause to decide a presidential qualifications dispute or this Court’s Article III appellate jurisdiction over such a state court decision.

Mr. Trump is also wrong that 18 U.S.C. § 2383 “is the exclusive means of enforcing section 3.” Pet’r’s Br. at 40. Like most criminal statutes, Section 2383 contains nothing like an exclusive jurisdiction provision. And it was originally adopted in the Second Confiscation Act of 1862, 12 Stat. 589, before the Fourteenth Amendment was enacted.

Moreover, exclusive federal court jurisdiction concerning who is eligible to be elected President would be in tension with the powers that the Electors Clause confers on States, but not Congress. The Electors Clause contrasts with the Elections Clause in Article I, Section 4, Clause 1. The Elections Clause gives Congress power to “make or alter . . . regulations” on the “Manner” of holding congressional elections, but the Electors Clause gives Congress no such power concerning presidential elections. Shelby County v. Holder, 570 U.S. 529 (2013), held that Congress’s power under Section 2 of the Fifteenth Amendment to enact “appropriate legislation” does not authorize legislation that violates federalism. Id. at 538, 543. For similar reasons, it would not be “appropriate legislation” under Section 5 of the Fourteenth Amendment for a statute to nullify a state court’s traditional power to decide a presidential qualification dispute, subject to Supreme Court review.

Finally, Mr. Trump does not argue that Section 5 confers any judicial power on Congress. “[L]egislation” is a product of legislative power, not judicial power. And, unlike an adjudication, the Constitution, in Article 1, Section 7, Clause 2, requires that all legislation be presented to the President for signature or veto.

2. Section 3 of the Fourteenth Amendment: The last sentence of Section 3 reads: “But Congress may by a vote of two-thirds of each House, remove such disability.” The words “[ b]ut” and “remove” connote that the disability existed before Congress votes.

Mr. Trump does not argue that the last sentence of Section 3 confers a power on Congress to adjudicate whether there was a disability before its removal. See Pet’r’s Br. at 41-42. Indeed, “vote” to “remove such disability” in Section 3 stands in stark contrast to “Judge” in Article I, Section 5 and “try,” “convicted,” and “Judgment” in Article I, Section 3, clauses 6 and 7. See supra, at pp. 4-6. Two-thirds of Congress may “vote” to remove a pre-existing disability for any reason, including that the disqualified person has reformed or for pure politics. And Congress need not hear evidence or otherwise satisfy procedural due process.

Mr. Trump instead argues that the combination in Section 3 of the phrase “hold any office” and Congress’s power by two-thirds “vote” to “remove such disability” nullifies a state court’s power to adjudicate (subject to this Court’s review) a Section 3 presidential qualification dispute before election day. Pet’r’s Br. at 41-46. This is wrong. To start, courts may adjudicate before election day three other presidential disqualifications that use “hold” or similar words. First, a criminal conviction under 18 U.S.C. § 2383 for insurrection renders a person “incapable of holding any office under the United States.” Neither Mr. Trump nor anyone else suggests that such a federal criminal case cannot be adjudicated before election day.

Second, the Twenty-Second Amendment states, “[n]o person shall be elected to the office of the President more than twice.” A President is “elected” under Article III, Section 1 and the Twelfth Amendment no earlier than when “[t]he Electors . . . vote by ballot for President” in mid-December. See Chiafalo, 140 S. Ct. at 2321, 2325 (the electors “do indeed elect a President”). Obviously, the Twenty-Second Amendment does not render a state court powerless before election day to prevent Barack Obama and George W. Bush from running on that state’s ballot for a third term.

Third, Article I, Section 3, Clause 7 gives the Senate power, after impeachment and conviction, to enter a judgment of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (Emphasis added.) Of course, a state may give its courts power to enforce this “disqualification to hold” by barring a disqualified person from running.

Equally unavailing is Mr. Trump’s reliance on the fanciful possibility that Congress by two-thirds vote might remove his disability. This does not deprive the courts of their traditional ability to adjudicate a disqualification before election day. In the other instances discussed above—the bars of 18 U.S.C. § 2383, the Twenty-Second Amendment, and disqualification by the Senate—the candidate could assert an equally unlikely fantasy that two-thirds of Congress might propose and the States might ratify a constitutional amendment that removes the disability.

Rather, the words “remove such disability” in the Fourteenth Amendment confirm that the candidate is currently disqualified and will remain disqualified, unless and until there is an affirmative vote by two-thirds of Congress to “remove” that disqualification. It makes no sense to put off the judicial determination of whether someone is qualified, and the potential subsequent removal of the disability by Congress, until after the election has been run. That would deprive voters of the ability to make a truly informed decision, because they could not know if they were voting for someone who cannot serve. And it would risk chaos as courts litigate whether a newly-inaugurated President is disqualified at the same time the country needs a President to be indisputably occupying the office and making enormously consequential decisions—including as commander-in-chief, appointer of cabinet members, leader of the executive branch, vetoer of bills, etc. It is difficult to believe that the framers of the Fourteenth Amendment added Section 3 intending that the new clause operate in a way that deprives both voters of the ability to make an informed decision and ultimately-eligible Presidents of the ability to govern effectively from the outset.

3. The Twelfth Amendment: Mr. Trump does not argue that the Twelfth Amendment deprives state courts or this Court of jurisdiction to decide this case or gives Congress power to do so. The Twelfth Amendment left the Electors Clause intact. See McPherson v. Blacker, 146 U.S. 1, 26 (1892). Under the Electors Clause, each state “exclusively,” id. at 27, makes the “apportionment of responsibility” as to which bodies “oversee [presidential] election disputes.” Bush v. Gore, 531 U.S. at 113-14 (Rehnquist, C.J., concurring). Here, the Colorado Supreme Court properly ruled that Colorado’s statutes apportioned the authority to decide this presidential disqualification dispute to Colorado’s Secretary of State and state courts, subject to this Court’s review.

The Twelfth Amendment vests no power in Congress to judge a dispute about a presidential candidate’s qualifications if, as here, (1) there are disputed facts or disputed legal questions and (2) state courts, subject to this Court’s review, have the power to adjudicate the dispute. The Twelfth Amendment repeats the words in the original Article II, Section 1, Clause 3, that after the certificates of electoral votes are opened, “the Votes shall then be counted.” The phrase “shall then be counted” refers to calculating. See S. Johnson, A Dictionary of the English Language (4th ed. 1773) (the verb “count” means “To number; to tell.”). “[S]hall then be counted” does not suggest a power of Congress to act as a court that substitutes for, or overrides, state courts or this Court.

The phrase “shall then be counted” contrasts sharply with the express power to “Judge” given by Article I, Section 5 to Congress but concerning only congressional elections and qualifications. “[S]hall then be counted” also contrasts with the broader word “determine” that Article II, Section 1, Clause 4 employed to give Congress other powers concerning a state’s conducting of a presidential election. Clause 4 provides: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes . . . .” Article II, Section 1, Clause 3, would not have used, and the Twelfth Amendment would not have repeated, the very different and narrower word “counted” to give Congress judicial powers to act as a substitute court for, or override, state courts or this Court concerning disputed presidential election results and qualifications.

The Court should ensure that nothing in its decision uses the Twelfth Amendment, or 3 U.S.C. § 15, to undermine the authority of each State, through its courts and election officials, to resolve disputes arising in connection with a presidential election, subject to review by this Court, rather than Congress. Only three years ago, Mr. Trump and his former counsel argued that the Twelfth Amendment conveys to the Vice President the ultimate power to override state court decisions and adjudicate who won a state’s electoral votes. See John Eastman’s Second Memo on “January 6 Scenario,” Wash. Post (Oct. 29, 2021) (linking to memo).3 Let’s not go anywhere near there again.

4. The Twentieth Amendment: Mr. Trump’s brief does not argue that the Twentieth Amendment has any bearing on this case. Section 3 of the Twentieth Amendment does not restrict the pre-existing power of state courts and the Supreme Court to adjudicate a presidential qualification dispute before election day. Nor does it assign any judicial power to Congress. Instead, it specifies that, on inauguration day, “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.” The use of “shall have failed” connotes that the putative President has failed to qualify without Congress doing anything. Again, Congress is given no power to “try” and “Judge” or anything that suggests a power to adjudicate. Moreover, the Twentieth Amendment was passed by Congress in March 1932, only three years after Barry v. United States ex rel. Cunningham, supra. If the Twentieth Amendment’s framers had intended to expand Congress’s limited judicial power to “Judge” beyond the “Qualifications of its own Members,” U.S. Const. art. I, § 5, to also include judicial power to judge the disputed qualifications of the President and Vice President, surely the Twentieth Amendment would say so expressly.