Part 4 of 5
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 StatesNext, 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 AmendmentWe 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 AmendmentHaving 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 AmendmentAs 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 JohnsonWe 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 ProclamationsWe 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.
