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.

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