Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three

Note: the discussion of section 3’s legislative history in this post relies entirely on Professor Lash’s article. Which is to say that I appreciate his work on this subject, even if I strongly disagree with many of his interpretations. 

Let’s now turn to one of the two questions Judge Wallace resolved regarding the application of section 3 of the 14th amendment to the presidency: is the presidency an office which an “insurrectionist” (which we will use as a shorthand for someone who has violated his oath in the manner specified by section 3) is barred from holding? As you will recall, the text of section 3 provides:

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.

(emphasis added). The italicized words described the banned offices or positions (hereinafter “banned places”) which an insurrectionist may not hold, and you will notice that the presidency is not expressly mentioned, while both members of Congress and the comparatively trivial positions of presidential electors are.

Judge Wallace did not rely on the proposition, advanced by Professors Tillman and Blackman and much discussed on this blog, that the presidency is not an “office . . . under the United States.” Indeed, Tillman and Blackman themselves do not make this claim with respect to section 3 because, they say, there is a possibility of “linguistic drift” between the drafting and ratification of the original Constitution and the enactment of the 14th amendment. See Josh Blackman & Seth Barrett Tillman,Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, 15 N.Y.U.J. L. & Liberty 1, 25 (2021); see also id. at 54 (describing the issue of whether the phrase “office of the United States” in section 3 included the presidency as “contestable”).

Instead, the court seemed to accept that the presidency might literally be covered by the “catchall phrase” of “any office, civil or military, under the United States, or under any State,” but it explained that “[t]o lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because . . . Section Three explicitly lists all federal elected positions except the President and the Vice President.” Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216, slip op. at 96 (Dist. Ct., City and County of Denver, Colo., Nov. 27, 2023). It also placed weight on the fact that an earlier version of section 3 had explicitly covered the offices of president and vice president, noting that this “certainly suggests that the drafters intended to omit the office of the Presidency from the offices to be disqualified.” Id. at 97.

The court’s analysis, to put it charitably, is rather cursory. It does not discuss the meaning of “office under the United States” or the fact that this phrase and close variants appear multiple times in the original Constitution. It does not consider the understanding of the phrase at the time the 14th amendment was drafted and ratified, or how that understanding would have been influenced by official practice and interpretation over the eight decades prior to the ratification of the 14thamendment. It also fails to ask why the framers of the 14th amendment chose to enumerate senators, representatives, and presidential electors, while covering every other federal and state officeholder, from the chief justice of the Supreme Court to cabinet officers to governors and other elected state officers, in a “catchall phrase.”

The weight the court places on the fact that an early draft of section 3 explicitly lists the presidency and vice presidency also appears to be misplaced. A reader of the court’s opinion would get the impression that a proposed amendment was introduced with those offices expressly included and then that proposal was modified to remove them. The actual drafting history of section 3 was more complex.

Continue reading “Judge Wallace, Professor Lash, and the Unambiguous Language of Section Three”

Judge Wallace and the Democracy Canon

Another preliminary matter regarding Judge Wallace’s opinion holding that former President Donald Trump was not disqualified under section 3 of the 14th amendment. In finding that the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision, the judge explained that “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.” Order at 101, ¶ 314. Here, the court is essentially applying a “democracy canon” along the lines suggested by Professors Tillman and Blackman (although it does not cite them). See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 105 & n. 306 (forthcoming 2024) (citing Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009)).

Now the “democracy canon” is not one of the more well-established canons of construction, and I really have no idea whether it would apply here or if it exists at all. For purposes of discussion, however, I am happy to assume that there is a “democracy canon” that calls for ambiguous constitutional and statutory provisions to be construed, if possible, in favor of voter enfranchisement and empowerment. And if that is the case, and if the phrase “any office, civil or military, under the United States” in section 3 was ambiguous with respect to the presidency (it isn’t, but we will get to that in a future post), then the democracy canon could reasonably be applied to argue for a narrow construction of the phrase. In other words, if it was unclear whether the presidency was a banned office under section 3, the democracy canon would argue in favor of excluding the presidency so as not to deprive voters (well, presidential electors, really) of their ability to select the candidate of their choice for that position. Perhaps (the argument would go) the framers of the 14th amendment thought that the right of voters to select a president of their choice was so important that they should be able to vote for an insurrectionist if that is what they wanted.

Applying this canon to the question of disqualification-triggering offices, however, makes absolutely no sense. The effect here would be to preserve the ability of voters to select an insurrectionist for the presidency or any other office so long as the only oath he had violated was that of president (or vice president). But if this candidate had taken any other oath as a federal or state legislator or officeholder, he would still be disqualified. This would be an entirely arbitrary distinction that would apply to only one person in history, Donald J. Trump. The “democracy canon,” if it exists, does not support this result.

Congressman Ken Buck’s Testimony About the January 6 Committee

Yesterday, November 17, 2023, Colorado state court judge Sarah B. Wallace issued an opinion in Anderson v. Griswold, No. 2023cv32577 (filed Sept. 6, 2023), a case in which the petitioners are seeking to have Donald Trump removed from the Colorado ballot on the ground that he is disqualified from the presidency under section 3 of the 14th amendment. Judge Wallace found that “Trump engaged in an insurrection on January 6, 2021 through incitement,” conduct that apparently would have disqualified him under section 3 if that provision applied to him. Order at 95, ¶ 298. However, she concluded that Trump was not covered by section 3 because the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision. Order at 101, ¶ 315.

I will have more comments on Judge Wallace’s opinion in the days to come. For the moment I just want to highlight this bit of information that came out of the hearing: “Congressman Buck testified that he had asked to be placed on the January 6th Committee after then-Speaker Pelosi rejected two of the five Republican nominees, but his request was turned down by Republican Party leadership.” Order at 13, ¶ 30. The court credited this statement in its findings, noting that “Minority Leader Kevin McCarthy actively prevented the January 6th Committee from being bipartisan including when he rejected Congressman Buck’s request to be on the Committee.” Order at 24, ¶ 52.

I have not seen this information reported previously, though I may have missed it. In any event, it is of some historical interest, as well as being of possible legal relevance to the validity of the January 6 committee’s composition and the credibility of its findings.