Less than a week after the January 6, 2021 attack on the Capitol, I wrote a brief blog post on whether section 3 of the 14th amendment applied to the presidency. (Don’t feel bad if you forgot this- so did I). The relevant text of section 3 is set forth below:
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.
This language describes two categories or groups of offices or positions. One is the category of previously held offices/positions which will trigger section 3’s disqualification if the official in question, after taking the oath, commits insurrection, rebellion, etc. We will call this category, following the terminology used by Professors Baude and Paulsen, the “disqualification-triggering” offices or positions.
The second category (second in time, although it appears first in the text of section 3) consists of those offices/positions that a previously disqualified official is prohibited from holding in the future. We will call these, following Professor Hemel, the “banned” offices or positions.
My prior post briefly addressed two questions: (1) whether the president is an “officer of the United States” under section 3 and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore qualifies as a banned office. I predicted, based on a long history of work by Professor Tillman, joined more recently by Professor Blackman, that Tillman and Blackman would answer both these questions in the negative. I also noted, based on my own long history of responding to (mostly) Tillman’s work, that these answers would be wrong, although I allowed that the first question was “somewhat closer” than the second.
As it turns out, my prediction was not entirely correct. Tillman and Blackman do indeed claim that the president is not an officer of the United States and therefore does not hold a disqualification-triggering office, but they expressly decline to take a position on whether the presidency is an “office under the United States” for purposes of section 3. This constitutes progress, I guess, and I congratulate them for not extending what I consider to be grievous error. In the same spirit, I will somewhat soften my position on the first question. Although I am still inclined to think the president is an officer of the United States for purposes of section 3, I think it is fair to treat it as an open question, which I hope to explore further in future posts.
Today, however, I want to address a different set of issues, which have not been discussed in depth by any of the principal commentators on section 3 (at least to my knowledge). Does section 3 apply to state elected officials/positions and, if so, which ones? This question is not only of some current interest in its own right, but the answer has some important implications for the Tillman/Blackman theory that underlies the overall controversy.
In one respect the answer to this question is clear. Section 3 explicitly identifies a “member of any State legislature” as holding a disqualification-triggering office so a state legislator who subsequently engages in insurrection or rebellion will be subject to section 3’s disqualification. However, because section 3 does not (at least explicitly) include the state legislature in the category of banned positions, there is a serious question whether a disqualified official is prohibited from serving in a state legislature. This contrasts with service in Congress, which is explicitly identified as both a disqualification-triggering and a banned position.
Tillman and Blackman contend section 3 “did not bar a disqualified person from serving in state legislatures.” Josh Blackman & Seth Barrett Tillman, Is The President An “Officer of the United States” For Purposes of Section Three of the Fourteenth Amendment?, 15 N.Y.U. J. L. & Liberty 1, 49 (2021). They do not elaborate much on this proposition, but they do cite a contemporaneous commentator who supports their position. Id. at 18-19; see John Randolph Tucker, General Amnesty, 106 N. AM. REV. 53, 55 (1878) (“[I]t is clear that a member of a State Legislature is not a civil or military officer under any State, any more than a member of Congress is a civil or military officer under the United States . . . .”).
I tend to agree with them on this point. The reason is that it was well-established, at least at the time of the framing of the original Constitution, that legislators do not hold “offices” (instead they hold seats) within the meaning of commonly used phrases such as “office under the Crown” (in English law), “office under this state” or “office of honor, trust, or profit” (as used in state constitutions), and “office under the United States” (as used in the Articles of Confederation and the U.S. Constitution). See Benjamin Cassady, You’ve Got Your Crook, I’ve Got Mine, 32 Quinnipiac L. Rev. 209, 280-81 & n.355 (2014) (“The overwhelming majority of examples from state constitutions distinguishes sharply between those who hold offices of honor, trust, or profit and members of the legislature.”). There is a counterargument, made by Hemel, that section 3 should be read differently, but it depends on substantial linguistic drift from 1787 to 1866, when the 14th amendment was proposed by Congress.
More significant, however, is an issue not discussed by Tillman and Blackman at all. How does section 3 apply to a state elected official outside of the legislature? This is important not only because there are such officials involved in January 6 to whom section 3 might apply, but because the reading of “office” and “officer” advanced by Tillman and Blackman depends on the alleged existence of a general drafting convention (at least at the time of the founding) that excludes all elected officials from the scope of these terms. They claimed, for example, in a 2017 article that this drafting convention “was used in colonial practice, governments of the revolutionary era, the Articles of Confederation, and later by the Framers of the Constitution and the First Congress.”
Note that in “colonial practice” and the Articles of Confederation the only elected officials were members of the legislature so it is difficult to know what it would mean for there to be a drafting convention that applied to non-legislative elected officials. The somewhat odd reference to “governments of the revolutionary era,” however, presumably refers to state governments prior to 1787, which did have elected officials, including but not limited to their governors, outside the legislature. It is therefore the Tillman/Blackman position, I assume, that governors and other non-legislative elected officials were not “officers” of the state and did not hold “offices” under the state within the meaning of state constitutions (at least prior to 1787). However, I am not aware of any attempt by them to substantiate this claim or even to make it more explicitly than in the quote above.
Indeed, to my knowledge the most direct comment by Professor Tillman on this subject was left on this blog in 2014. There he says “[i]n regard to the question of whether or not a state governor is an ‘office under the State,’ early state (constitutional, statutory, and judicial) materials were mixed and ambiguous” but “[m]y own view is that generally under this State-language does not reach the office of governor, i.e., an official at the apex of governmental authority (within a branch of government).”
I have a few observations about this statement. First, the evidence Tillman cites in support of this proposition is quite weak in my view. Essentially he cites a number of state constitutional provisions to the effect that no person holding an office under this state shall “exercise the office of Governor.” See, e.g., Del. Const. of 1792, art. III, §5 (“No member of Congress, nor person holding any office under the United States or this State, shall exercise the office of Governor.”). The point, apparently, is that if the governor himself held an office “under this state” the provision should have specified that the governor could hold his own office. This strikes me as extremely unpersuasive, given that no reasonable person would ever read such a provision as prohibiting the person holding the office of governor from exercising the office of governor.
Second, Tillman acknowledges that there are contrary examples where the governor is clearly is an officer or holds an office under the state. See, e.g., Pa. Const. of 1790, art. IV, §3 (“The Governor, and all other civil officers, under this commonwealth, shall be liable to impeachment for any misdemeanor in office . . . .”); see also Md. Const. of 1776, art. XXXVII (“no Senator, Delegate of Assembly, or member of the Council, if he shall qualify as such, shall hold or execute any office of profit, or receive the profits of any office exercised by any other person, during the time for which he shall be elected; nor shall any governor be capable of holding any other office of profit in this State, while he acts as such”) (emphasis added). Thus, even if there were persuasive evidence that governors were sometimes not considered to be officers or to hold offices (which there is not), it would merely show a “mixed and ambiguous” practice, not a drafting convention at all.
Third, Tillman suggests that the reason the governor should be outside the scope of “officers” or “offices” is that she sits at the “apex of governmental authority.” But this is a completely different reason than saying that these terms exclude officials that are elected. There are many non-legislative elected officials in state governments besides the governor. Does the “drafting convention” claimed by Tillman and Blackman apply to all elected officials, all officials at the apex of government, or both?
Finally, there have been hundreds of state constitutional provisions which attach legal consequences to “officers” of the state or to holders of “offices” under the state, and there have been countless governors and other elected officials outside the legislative branch who would apparently be exempt from these provisions under the Tillman/Blackman theory. The fact that they cannot identify a single example of anyone even claiming that one of these provisions did not apply to an elected official presents a serious dog that didn’t bark problem for them. As my post here showed, even a cursory review of a single type of provision (disqualification for impeachment) provides several examples where it was clearly understood that the governorship was an office under the state and it apparently occurred to no one, including an impeached and disqualified former governor who wanted to run again, to argue otherwise.
A couple of examples will suffice to show the utter implausibility of the Tillman/Blackman theory as applied to state officials. The Massachusetts Constitution of 1780 provided that “no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this commonwealth, who shall in the due course of law have been convicted of bribery or corruption in obtaining an election or appointment.” Note that this provision distinguishes a “seat” in the legislature from an “office,” in accordance with the convention discussed earlier. But it makes no separate mention of elected officials outside the legislature. These would include the governor and lieutenant governor, both of whom were popularly elected. See Mass. Const. of 1780, ch. II, §1, art. III (governor) & ch. II, §2, art. I (lieutenant governor). Furthermore, there were many other significant officials, including the secretary, treasurer and receiver-general (whatever that is), who were chosen by vote of the legislature, which is arguably just as “elected” as U.S. senators (prior to the 17th amendment) or, for that matter, the president of the United States. See id., ch. II, §4, art. I.
Which, then, is more likely, that Massachusetts for some unknown reason decided to exempt the governor and lieutenant governor, and possibly many others, from the general prohibition against bribery and corruption, or that it never occurred to the drafters of the Massachusetts constitution that anyone would question that these officials held an “office of trust or importance under the government of this commonwealth”? I think the question answers itself.
The second example comes from the oath clause of the federal constitution, which provides “[t]he 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.” U.S. Const., art. VI, cl. 3. One will note again that federal and state legislators are explicitly mentioned, but there is no separate reference to state elected officials outside the legislative branch.
Tillman has claimed that the oath clause does not apply to the president or vice president, which has the rather surprising result of meaning that the vice president would have no constitutional requirement of taking an oath (the president has a separate oath required by Article II). As far as I know, however, neither Tillman nor Blackman has opined on whether “all executive and judicial Officers . . . of the several States” includes governors and other elected state officials outside the legislative branch. But if there were a drafting convention of the sort they postulate, it would seem all elected state officials (other than legislators) would be excluded from the oath requirement. Again, to state this proposition is to refute it.
This brings us to section 3. As already mentioned, Tillman and Blackman have not, to my knowledge, commented on whether a governor or other state elected official (outside the legislative branch) holds a disqualification-triggering office “as an executive or judicial officer of any State” or whether a disqualified official would be banned from holding such an elected office because it is “any office . . . under any State.” I think everyone else, though, assumes the answer to both these questions is yes. See, e.g., Myles S. Lynch, Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment, 30 William & Mary Bill of Rights J. 153, 214 (2021) (asserting, without any suggestion of controversy, that “a state’s governorship is an office that Section 3 can disqualify somebody from”).
Indeed, the only official who has been judicially disqualified under section 3 due to his participation in the events of January 6 held an elected state office (county commissioner of Otero County, New Mexico) which triggered his disqualification and was removed from that office as the result of section 3. It appears everyone, including the official himself, agreed that the commissionership (if that’s a word) was both a disqualification-triggering office and a banned office which could not be held by an individual disqualified under section 3.
It is possible that Tillman and Blackman believe that everyone else is wrong about this, but they would prefer not to say so. After all, it would seem “bonkers” (to borrow a term from Professors Baude and Paulsen) to suggest that the framers of the 14th amendment did not intend to disqualify governors (or other elected state officials outside the legislative branch) who engaged in insurrection or rebellion or that they intended to allow disqualified Confederates to hold the office of governor or other powerful elected positions in the executive (or judicial) branch of state government.
It is also possible that Tillman and Blackman agree that these offices are covered by section 3, but they would prefer not to say that either. One could understand why. That would mean the “drafting convention” they claim existed at the time of the founding had disappeared with regard to state officials as to both the disqualification-triggering and banned offices prongs of section 3 and had maybe disappeared with regard to the presidency as to the banned offices prong, but was still in effect with regard to the disqualification-triggering prong for the presidency. That is not a comfortable place to be, legal theory-wise.
A much better conclusion is that there never was a drafting convention that excluded state elected officials, or any elected officials, from the scope of terms like “officer” of a particular state or government or “office” under a particular state or government. There was a convention or understanding that legislators, whether elected or not (e.g., members of the House of Lords), were outside the scope of these terms, but for reasons that simply have no application to officials in other branches.
As we will see, that conclusion has important implications for what is left of the Tillman/Blackman theory.