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.
The initial proposal referred to by Judge Wallace was introduced by Representative Samuel McKee, a Radical Republican from Kentucky; it provided in relevant part:
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, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate, who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States. . . .
Kurt Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment 10 (Oct. 28, 2023) (unpublished draft on SSRN). This proposal identified three categories of banned places: (1) president or vice president; (2) member of Congress; and (3) presidential appointee to an office requiring the advice and consent of the Senate.
As described by Professor Lash, McKee’s speeches in favor of this constitutional amendment focused on the moral and symbolic principle it embodied, namely that “red handed traitors” and “unfaithful . . . men who made war upon us” should not be eligible to hold the type of prominent positions he identified. Id. at 11. To allow them such honors, McKee suggested, would be to mock the patriots who had fought and died to preserve the Union. Id. at 11-12.
Following McKee’s proposal, several other proposals were considered. For example, one proposal would have deprived former confederates of the right to vote for a limited period; another would have denied eligibility to serve in the “national legislature” for a longer period; yet others permanently barred eligibility for “any office under the Government of the United States.” These proposals also varied in the class of persons to whom they applied—from everyone who “voluntarily adhered to the late insurrection” to certain high-ranking confederate officials to certain former federal officeholders who “gave aid or comfort to the late rebellion” to those who had mistreated union prisoners of war. None of these proposals, however, garnered the needed support. Id. at 12-18.
At this point McKee introduced another proposal, which read as follows:
All persons who voluntarily adhered to the late insurrection, giving aid and comfort to the so-called southern confederacy, are forever excluded from holding any office of trust or profit under the Government of the United States.
Id. at 18-19.
Lash describes this as a “milder proposal” than McKee’s original effort, but he cites no evidence that it was understood to be milder or that McKee intended it as such. See id. at 19. It was shorter than McKee’s original proposal, but, at least to the extent relevant here, it is more expansive, not less. McKee’s original proposal only covered presidential appointees who needed Senate confirmation, but his new proposal applied to “any office of trust or profit under the Government of the United States,” thereby expanding disqualification to inferior officers who were not Senate confirmed. Nor, it might be added, did McKee’s expressed intent in offering the new amendment exactly reek of mildness. See id. (quoting McKee’s explanation that “[b]y this means we will affix the brand of treason upon the traitor’s brow; and there I would have it remain until the snows of winter covered their graves”).
Lash argues it is “milder” because it does not expressly mention the presidency and vice presidency, in contrast to McKee’s original proposal. Id. But this is a circular argument founded on the assumption that “office of trust or profit under the Government of the United States” did not include the presidency (and vice presidency) or, more precisely, that McKee did not understand it to do so. This assumption is almost certainly wrong.
First, it would make no sense for McKee to have expanded his original proposal to include lower level federal appointees but to have excluded federal elected positions, which were the focus of his original proposal. This is particularly so given McKee’s interest in stigmatizing traitors by making them ineligible for the most important positions in the federal government.
Second, it seems clear that McKee himself believed that his amendment would cover elected positions. Lash quotes him saying his proposal “would obviate the objection that it would be impracticable to enforce the provision depriving the men who were engaged in the rebellion of the right of voting. It will provide that they shall vote for none but those who have been loyal.” Id. at 19 (emphasis added). Thus, McKee evidently thought elected positions were “office[s] of trust or profit under the Government of the United States” and saw banning former confederates from such positions as (still) the centerpiece of his proposal.
It is very likely true that McKee assumed that members of Congress would be included in the phrase “office of trust or profit under the Government of the United States.” But if that is so, he must have made the same assumption with regard to the president because, as far as I know, there is no argument in favor of reading this phrase to include members of Congress but not the president. (As we will see, there is a strong argument for the converse).
Finally, to hypothesize that McKee intended to remove the president (and vice president) from the list of banned places requires that there have been some reason for him to do so. But there appears to be no evidence that anyone objected to McKee’s original proposal on the grounds that the presidency and vice presidency were included. Lash makes the point that there was little discussion of the presidency in connection with section 3, but what discussion there was proceeded on the assumption that the presidency ought to be a banned place. There is no indication that anyone argued it should not be included.
All of this supports the conclusion that not only McKee, but anyone closely following the progress of the debate in Congress, would have understood that proposals which banned former confederates from holding offices “under the Government of the United States” applied to the presidency and vice presidency. Lash contends that the general public was kept continuously informed of the evolution of section 3 in Congress, and that its understanding of the final product was likely influenced by the earlier drafts that were considered along the way. Id. at 8-9. If that is so, the public, as well as members of Congress, in all likelihood would have understood the drafts that applied only to offices “under the Government of the United States” included the presidency.
The first proposal to break out “senators and representatives” from “office under the Government of the United States” came later and was submitted by Senator Daniel Clark of New Hampshire, who proposed the following language:
No person shall be a Senator or Representative in Congress, or be 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.
Id. at 22 (emphasis added). It should be noted that the structure of this proposal was more like the final version of section 3 than any of the proposals previously considered. It should also be noted that the inclusion of senators and representatives did not cause anyone to protest or merely observe that a significant change had been made compared to prior drafts that applied solely to “office[s] under the Government of the United States.”
The uncontroversial modification made by Senator Clark is best explained by the understanding that lumping senators and representatives in under “office[s] under the Government of the United States” was not technically correct. There were at least three significant reasons for doubting that members of Congress would be included in the phrase “offices under the United States” or similar expressions: (1) legislators were historically understood to hold seats, not offices, an understanding that was reflected in the Articles of Confederation, state constitutions and British law prior to the drafting of the Constitution; (2) the Constitution itself appears in several clauses of Articles I, II and VI to distinguish between members of Congress and officers of or offices under the United States; and (3) the Senate’s 1799 decision in the Blount impeachment case was generally understood as a precedent that members of Congress were not officers of (and did not hold offices under) the United States.
It does not matter for present purposes whether you agree with me that the best reading excludes members of Congress from the officer/office categories of the original Constitution. This issue had been debated before the drafting of section 3 and it would be debated afterward. See, e.g., I Hind’s Precedents § 478 (1900 House committee report debating whether members of Congress could be considered to fall within any of the office/officer categories of the original Constitution). Furthermore, even if the original Constitution did not include members in the officer/office category, this does not necessarily mean that the framers of the 14th amendment thought that the terms were so limited. See Thompson v. Trump,590 F. Supp.3d 46, 91-94 (D.D.C. 2022) (finding that Reconstruction-era congresses, unlike the framers of the original Constitution, would have understood terms like “office” and “officer” to include members of Congress). Indeed, as we have already seen, McKee and other proponents of prior drafts of section 3 undoubtedly expected that “office under the government of the United States” wouldinclude members.
The important point is that failing to separately enumerate members of Congress in section 3 would have created a discrepancy between the 14th amendment and the usage in the original Constitution and thereby raised serious doubt as to whether insurrectionists were barred from serving as senators or representatives. Here it may not be coincidental that Senator Clark’s proposal was the first to tie disqualification to violation of the constitutional oath because the Oath Clause in Article VI of the Constitution enumerates state and federal legislators separately from state and federal “Officers.” See U.S. Const., art. VI, cl. 3 (“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.”). Indeed, the list of banned places in the final version of section 3 tracks the list in the Oath Clause with only two exceptions, which we will discuss momentarily.
It therefore should be no surprise that the drafters of section 3 did not separately enumerate the president and vice president since neither of these offices are listed in the Oath Clause. Professors Tillman and Blackman, of course, believe that the Oath Clause itself does not include the president and vice president, the former because his oath is separately set forth in Article II and the latter because the framers forgot to include her (really, this is their position). Whether or not this is entirely fanciful (you can probably guess my view), it is something that occurred to literally no one before Tillman raised it a decade and a half ago. See Seth Barrett Tillman & Steven G. Calabresi, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 142-43 (2008) (“when the Oath Clause of Article VI requires that all federal and state executive and judicial officers takes oaths to uphold the Constitution the Clause is clearly referring to the President, the Vice President and to state governors as well as to all federal and state judges”) (response of Professor Calabresi) (emphasis added). It should hardly be a surprise that the drafters of section 3 did not modify their text to account for a possibility that never occurred to them.
More broadly, there was no reason for the framers of section 3 to question whether the president held an office under the United States. Unlike the members of Congress, which are never described by the Constitution as holding “offices,” the Constitution makes many references to the presidency as an office. Notwithstanding Tillman’s belief that the Foreign Emoluments Clause was not applied to the president in the early years of the Republic, it is indisputable that the president had been treated as holding “an Office of Profit or Trust” under the United States within the meaning of that clause for more than three decades prior to the drafting of section 3. Nor is there any evidence of anyone ever questioning whether the president (or vice president) were covered by the Incompatibility or Oath Clauses. These ideas would have seemed as implausible to the drafters of section 3 as they were to Professors Calabresi and Prakash when Tillman first broached them. In short, there was no need for the framers of section 3 to specifically enumerate the president and vice president because they, unlike members of Congress, unambiguously held “offices under the United States.”
Judge Wallace views the fact that section 3 lists “elector of President and Vice President” among the banned places as evidence that the offices of president and vice president themselves were not included. See Anderson v. Griswold, slip op. at 96 (“Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional.”). Both she and Lash, moreover, suggest that the framers of section 3 might have viewed banning insurrectionists from serving electors as an alternative means of protecting the presidency and vice presidency from the possibility of a former confederate obtaining those offices. Id. at 97 n.18; Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment at 37 (framers and ratifiers may have believed “the presidency was protected not by banning persons from holding the office but by banning disloyal electors”).
With all due respect, this suggestion is utterly without merit. It is unclear why it was thought worthwhile to cover presidential electors at all, but most likely it was happenstance because earlier drafts of section 3 had prohibited former confederates from voting for presidential electors, which is a very different thing. If there was any reason for including electors other than mollifying the legislative sponsors of these discarded proposals, it likely was simply to add to the stigmatizing of insurrectionists by forbidding them from holding even these insignificant positions.
It is easy to explain, however, why it was necessary to expressly mention presidential electors in the list of banned places. It was clear that the temporary role of voting for president was not an “office” and that electors were not officers, much less officers of the United States. Thus, the electors were not covered by the Oath Clause at all, a reality that is recognized by the fact that section 3’s list of disqualification-triggering offices or positions does not include presidential electors (since the electors did not take a constitutional oath, there was nothing for them to violate). Since the electors, even more clearly than members of Congress, did not hold offices under the United States, they had to be expressly enumerated in section 3.
The idea that the inclusion of presidential electors was thought of as an alternative means of protecting the presidency (and vice presidency) from former confederates borders on the preposterous. Whatever limited importance that electors were envisioned to have in the original Constitution had long since disappeared by the 1860s. See Chiafalo v. Washington, 140 S.Ct. 2316, 2323 (2020) (“’[h]istory teaches that the electors were expected to support the party nominees’ as far back as the earliest contested presidential elections”) (quoting Ray v. Blair, 343 U.S. 214, 228 (1952)); id. at 2327 (“Courts and commentators throughout the 19th century recognized the electors as merely acting on other people’s preferences”). Thus, even if section 3 guaranteed that electors would be loyal (which it does not, since the vast majority of confederates would not be covered by it), it would be of little use in influencing the outcome of a presidential election.
Furthermore, even if the drafters of section 3 were not terribly worried about the potential of a former confederate becoming president or vice president, it makes no sense to suggest that they would want to allow those covered by section 3 to remain eligible for these offices. After all, if the primary purpose of the constitutional provision was to stigmatize former confederates, as Lash suggests, why would they be disqualified from being presidential electors but remain eligible for the most important and distinguished offices in the land?
Apart from the inclusion of presidential electors, the other difference between section 3 and the Oath Clause is that the former’s list of banned places does not include “Members of the several State Legislatures.” Whether this omission was intentional is unclear (perhaps it was thought that ratifying state legislatures would not be appreciative of federal regulation of their membership), but it provides an excellent example of where the inference erroneously drawn by Judge Wallace and Professor Lash would be appropriate. Not only does section 3’s list of banned places diverge from the Oath Clause by omitting state legislators, but its own list of disqualification-triggering places includes state legislators, giving rise to a strong inference that the omission was intentional.
A contemporaneous commentator noted this “very peculiar” aspect of section 3, explaining that “what it expresses, as well as what it omits, must be taken to have been intentional and not inadvertent:”
[I]f the person has been a member of a State Legislature, he is disabled. But no such position is named among the positions such a person is disabled to hold. With the position of a member of the Legislature in the minds of the framers of this article, as one previously held by the person, it is omitted in the enumeration of those which he shall be disabled to hold, and is clearly not among such, unless a member of a State Legislature be a civil or military officer under any State. But it 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 . . . .
John Randolph Tucker, General Amnesty, 106 N. AM. REV. 53, 54-56 (New York, D. Appleton & Co. 1878) (emphasis added) (quoted in Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation 69-71 n.119 (2012) (unpublished manuscript, posted on the Social Science Research Network).
Tucker, the grandson of the noted constitutional commentator St. George Tucker, was an accomplished attorney, constitutional scholar and member of Congress, but not exactly a disinterested observer, given that he had been the elected attorney general of Virginia prior to joining the Confederacy. It is therefore particularly noteworthy that he makes no suggestion that section 3 is inapplicable to the presidency or vice presidency, a result which would be much more “peculiar” than the exemption of state legislators. Moreover, his reasoning explains why it was necessary to explicitly name federal legislators (they do not hold offices under the United States) and why it was not necessary to name the president and vice president (they do).
All of this, it seems to me, strongly supports the conclusion that section 3 should be read to bar an insurrectionist from holding the presidency or vice presidency. These offices are “offices under the United States” in ordinary language, in the usage of the original Constitution, and in government practice thereunder. Inclusion of these offices comports with the purpose of section 3, and the drafting history of that provision is consistent with a congressional intent to include them. There is little if anything to warrant Judge Wallace’s inference that these offices were intentionally excluded from section 3’s list of banned places.
There is, in fact, direct evidence to the contrary. As we have discussed before, during the Senate debate on the final language of section 3, Democratic Senator Reverdy Johnson raised a concern that section 3 did not expressly cover the president and vice president:
Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–
39 Cong. Globe 2899 (1866) (emphasis added).
This is then followed immediately with a colloquy between Senator Johnson and Republican Senator Lot Morrill:
Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”
Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.
39 Cong. Globe 2899 (1866) (emphasis added).
There are two things to note about Johnson’s response. First, he is not raising any doubt about whether the president and vice president hold “any office, civil or military, under the United States;” when his attention is called to this language, he immediately agrees with Morrill’s point. Instead, Johnson is wondering why senators and representatives are enumerated when the president and vice president are not. As already discussed, this question is understandable because the reason that members of Congress needed to be specifically enumerated was technical and obscure enough that even a constitutional lawyer (as Johnson apparently was) might not immediately see it on a casual reading of the language.
The second thing to note is that Johnson does not suggest that there would have been any reason to exclude the president and vice president. On the contrary, he is assuming that he has found a mistake in the language (which, as an opponent of the amendment, he had an incentive to highlight).
This colloquy seems to me, at the very least, to put to bed the notion that the framers of section 3 intentionally omitted the presidency and vice presidency from the list of banned places. Lash, however, does not see it that way. He argues that “even if other members of Congress shared Morrill’s understanding (and there is no evidence that they did), there was no reason to think the public shared Morrill’s understanding” because “Morrill’s exchange with Johnson was not reported in the press.” Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment at 29. Further, if a respected constitutional lawyer like Morrill was confused, it follows that members of the public might be as well.
Somewhere Justice Scalia is spinning furiously in his grave. He famously opposed the use of legislative history to resolve textual ambiguity, but this goes far beyond that. It is using the fact that a senator was confused upon casual reading of a legislative text as evidence of its ambiguity, even though he quickly agreed that the text was not ambiguous. And it is suggesting that because some members of the public might also have been confused by the text (which pretty much applies to every legislative text) that itself establishes ambiguity.
That cannot be right. While interpreting section 3’s list of banned places to omit the presidency might not be literally absurd, there appears to be no indication that the drafters would have intended or did in fact intend this result. Senator Morrill’s clarification just confirms what common sense already suggests. Cf. Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring) (approving the use of legislative history to verify that what seems like an “unthinkable” result “was indeed unthought-of”). It seems highly unlikely that Morrill had an idiosyncratic view that somehow made it into the congressional record without the knowledge of his colleagues.
Lash’s hypothesis regarding members of the public is equally far-fetched. He posits citizens who are misled by the language of section 3 because they see the omission of the presidency and compare that to the text of McKee’s initial proposal, but he assumes these citizens were unaware of (1) the difference between section 3’s “office under the United States” language compared to the much narrower language of McKee’s third category; (2) the intermediate drafts that applied solely to “offices under the government of the United States;” (3) the meaning of “office under the United States;” (4) its usage in the original Constitution; (5) the reasons why members of Congress and presidential electors might be separately enumerated; and (6) the purposes of section 3 in relation to the presidency. Perhaps hypothetical members of the public who were given just the information that supported Lash’s desired result might have been confused, but this cannot create ambiguity where none existed before.
At the end of the day this is an attempt to create ambiguity out of thin air. The language of section 3’s banned places is clear and applying that language to encompass the presidency and vice presidency creates no absurdity or normatively implausible results. To the contrary, this application is entirely consistent with the legislative purpose and, to the extent it can be determined, with specific legislative intent and understanding. As much as courts may want an “off-ramp” to avoid the necessity of disqualifying Trump from the presidency, this is not it.
Will you be writing an amicus brief when the US Supreme Court takes this up?