A Message from ChatGPT

 

 

Query: Does the Presidents of the United States hold an “office under the United States” as that phrase is used in the United States Constitution?

 

ChatGPT said: 

The phrase “office under the United States” appears several times in the United States Constitution, but it has been the subject of much legal interpretation, especially regarding whether the President of the United States holds such an office.

Arguments that the President does hold an “office under the United States”:

1.                 Plain Meaning: Some argue that "office under the United States" refers to any official position established by the Constitution or federal law. Since the presidency is a position established by the Constitution, the argument follows that it is an office under the United States.

2.                 Article VI, Clause 3 (Oath of Office): This clause requires "all executive and judicial Officers, both of the United States and of the several States" to take an oath to support the Constitution. The President, as an executive officer, takes an oath, so some interpret this as evidence that the President holds an office under the United States.

3.                 Precedent and Practice: In some contexts, courts and legal scholars have argued that the President is covered by the phrase. For example, in cases relating to the Emoluments Clause (Article I, Section 9), some have argued that the President holds an "office under the United States" and is therefore subject to the clause's restrictions.

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Arguments that the President does not hold an “office under the United States”:

1.                 Structural Interpretation: Others argue that the phrase "office under the United States" refers only to appointed positions and does not include the presidency, which is an elected position. The President is not appointed by any superior officer but is instead directly elected by the people through the Electoral College. This makes the presidency unique among federal positions.

2.                 Constitutional Distinctions: Some constitutional provisions explicitly distinguish the presidency from other offices. For example, the Impeachment Clause (Article II, Section 4) refers to the "President, Vice President and all civil Officers of the United States," suggesting that the President is distinct from those who hold "civil offices." If the drafters of the Constitution intended the President to hold an "office under the United States," they might have included the President explicitly in such provisions.

3.                 Historical Usage: Historical debates and writings from the Founding era suggest that the Framers may have intended to exclude the President from the category of "offices under the United States." They often used "officer" to refer to appointed officials, while elected positions like the presidency were seen as distinct.

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Conclusion:

The question of whether the President holds an "office under the United States" is complex and context-dependent. There are arguments on both sides, with some interpretations suggesting that the phrase includes the presidency, while others maintain that the President, as an elected official, is not included.

Ultimately, the answer depends on the specific constitutional provision in question and how courts or scholars interpret the phrase in that context. The issue has been debated in areas like the Emoluments Clause and the Disqualification Clause (14th Amendment, Section 3), but there is no definitive resolution that applies uniformly across all constitutional contexts.

Seth Barrett Tillman, ‘A Message from ChatGPT,’ New Reform Club (Sept. 27, 2024, 6:56 AM), <https://reformclub.blogspot.com/2024/09/a-message-from-chatgpt.html>;

 

Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment

 

Dear Professor: 

I will add the following, which largely restates what Professor Josh Blackman has already stated in his e-mail, and what both Josh and I have written (separately and together) in past publications.

“Officers of the United States” (as used in the United States Constitution) had a meaning during 1787–1788. The phase “officers of the United States” extended to appointed federal officers in the Executive and Judicial Branches, but it did not extend to any elected federal positions. That meaning has remained settled from 1788 through the Civil War, into, during, and after Reconstruction—including when Section 3 of the 14th Amendment was drafted, publicized, passed by Congress, and ratified [by the States]. The Supreme Court has adopted this position in any number of cases, including Mouat, Smith, and in its more recent Appointments Clause cases, such as Free Enterprise Fund.

Determining the meaning of “Office ... under the United States” (as used in the United States Constitution) is more difficult. During 1787–1788, “Office ... under the United States” extended to appointed federal officers in all three branches, including the Legislative Branch, e.g., Clerk of the House, Secretary of the Senate, but it did not extend to any elected federal positions. What “Office ... under the United States” meant from 1866, through 1868, that is, from congressional passage of the 14th Amendment, through state ratification, is another issue. It is possible that the meaning of “Office ... under the United States” from 1787 through 1868 remained invariant. There is some evidence for this view. If so, the presidency is NOT among the positions that a Section-3-barred defendant is precluded from holding. On the other hand, there is some evidence that the meaning might have changed and expanded from 1787 to 1868. If so, if in 1868, a reasonable member of Congress, ratifier, and member of the public understood “Office ... under the United States” to include the presidency, then the presidency is a position that a Section-3-barred defendant is precluded from holding.

Josh’s position and my position is that the Constitution’s “Office ... under the United States”-language did not include the presidency circa 1787–1788. But we take no position whether the Constitution’s “Office ... under the United States”-language excluded the presidency circa 1868. That phrase may have had the same meaning in 1868 as it had in 1787, or its meaning may have drifted from its 1787 meaning over the course of some 80 years. I wrote about the possibility of linguistic draft with regard to the Constitution’s “Office ... under the United States”-language as early as 2011. See Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Suggested Reconciliation 69 n.119 (posted on SSRN: Dec. 11, 2011), <https://ssrn.com/abstract=1970909>. I took that position in 2011, and I adhered to that precise position consistently during the entirety of the Trump-related ballot-access Section-3 litigation. Whether the meaning of the Constitution’s “Office ... under the United States”-language remained static or drifted, between 1787 and 1868, is an exceedingly difficult interpretive issue, which one could study for a lifetime—only to conclude, at the end of many years’ research, that no definite answer is possible. I will add that during the course of the recent Section-3 litigation, all too many academics, in law and other fields, and some judges, retired and on the bench [albeit, writing extra-judicially], who had never considered this issue and its (small) literature, after an exceedingly short of period of time to conduct research, decided that they were experts with deep knowledge. To put it another way, far too many expressed their conclusions with few reservations and with unusual confidence—of the sort usually reserved for circumstances where we have an extensive body of Supreme Court and other federal decisions and a deep well of scholarship. Additionally, some all too readily asserted, without evidence and without embarassment, that their (21st century) deeply held moral intutions and expectations were the same as those who drafted, framed, and ratified the Fourteenth Amendment (in the 19th century). I do not think these people—independent of which side of the issue they took—set a good example for future scholars and litigators.

You might ask why do I take a (or, indeed, any) position in regard to the meaning of the Constitution’s “officer of the United States”-language in 1868, but not in regard to meaning of the Constitution’s “Office ... under the United States”-language in 1868. The reasons are as simple as they are clear. We have Supreme Court cases, scholarship, and other authorities, across the 19th century, before and after 1868, opining on the Constitution’s “officers of the United States”-language, and also because the meaning of “officers of the United States” was defined by the language of the Appointments Clause. Its meaning was fixed and determined by the document to which the 14th Amendment was added. There was no hard intellectual break or interregnum. There was no Year Zero; the Fourteenth Amendment was no tabula rasa.

By contrast, “Office ... under the United States” was a legal, genealogical descendant of “Office ... under the Crown.” That language and its meaning was known to the drafters of the Constitution of 1788 because it was in British statutes, and coordinate colonial era charters, early state constitutions, and colonial and state statutes, as well as in the Articles of Confederation. The Framers of 1787–1788 grew up with this phrase, and they well understood its meaning. But by 1868, after political disunion with Great Britain, after our appeals were no longer taken to the Privy Council, after we established independent bars and independent law schools [in lieu of the Inns of Court in London], after about 80 years had passed, the public and those who drafted, passed in Congress, and ratified the Fourteenth Amendment in the States, during 1866 through 1868, would no longer have had the same prior, formative experiences as those who had Framed the original United States Constitution. Those latter-day Reconstruction era Americans might have understood the same “Office ... under the United States”-language differently from those who had framed the original Constitution of 1788. Perhaps you may remember that when we met for the first time, I was holding a book? See Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (Leonard W. Levy ed., Da Capo Press 1971) (1943). Now you know why.

Let me give you but one example of how difficult it is to find, discover, or rediscover the original public meaning of language akin to the Constitution’s “Office ... under the United States”-language as used in Section 3. Professors Baude and Paulsen (posted on SSRN: Aug. 14, 2023) affirmed that the list of positions a Section-3-barred defendant is precluded from holding extends to membership in a state legislature. See <https://ssrn.com/abstract=4532751>. Baude and Paulsen said the Constitution’s “Office … under any State”-language extends to being a member of a state legislature. In 1995, in Stanford Law Review, Professors Akhil and Vikram Amar said a Section-3-barred defendant can hold a state legislative seat. In my opinion, neither pair of scholars offered much (if any) substantive support for their contrary positions. And yet, throughout the Section-3 litigation, Akhil Amar cited Baude and Paulsen’s paper favourably, and vice versa. Do they even realize that they are contradicting one another? If so, that realization is not reflected in their podcasts or scholarship. I wonder why?

What do you think: Is a Section-3 barred defendant precluded from holding a state legislative seat? Is a state legislative seat an “Office … under any State” as used in Section 3? The Amars said no; Baude and Paulsen said yes. They cannot both be correct. State legislatures were the driving force initiating secession and the political engine which funded the (purported) confederacy’s armies in the field. It is far more likely that this issue regarding state legislative seats had and has a determinate answer, and it is far more like that this issue was on the mind of Section 3’s drafters, framers, and ratifiers, than today’s questions: “Is the President a Section-3 ‘officer of the United States’?” and “Is the presidency a Section-3 ‘Office ... under the United States’?”. Some sources in the no camp include: See, e.g., Editor, ‘Interesting Decision as to Disqualification Under the Fourteenth Amendment,’ [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3 (answering “no”); ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ [Richmond, Virginia] Daily Dispatch, Aug. 28, 1871, at 3 (same); ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4 (same); John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878) (same), https://www.jstor.org/stable/i25110155.  

Seth

Seth Barrett Tillman, Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment, New Reform Club (Sept. 3, 2024, 4:38 PM), <https://reformclub.blogspot.com/2024/09/some-thoughts-on-scholarship-on-section.html>;

A Letter to the Spectator (U.K.) on the American Civil War

Letter to the Editor

The Spectator

22 Old Queen Street

London, SW1H 9HP

England

 

RE: Amanda Foreman, ‘Towards Zero: the gruesome countdown to the American Civil War,’ The Spectator (10 August 2024), <https://www.spectator.co.uk/article/towards-zero-the-gruesome-countdown-to-the-american-civil-war/>

 

     Foreman wrote “South Carolina senator Preston Brooks beat[] the abolitionist campaigner Charles Sumner unconscious.” This is plainly error. Brooks was a member of the United States House of Representatives, not the Senate. Sumner, by contrast, was a United States Senator.

Foreman also wrote: Lincoln “insist[ed] he would defend the Union to his last breath while promising that slavery was safe in his hands.” In 1860, Lincoln’s and the Republican Party’s political programme was to contain slavery in the states where it already existed and, concomitantly, to preclude slavery from expanding into any of the federal territories (which were not then yet states which had congressional representation). Slavery was in no sense “safe in his hands.” And this policy, contra Foreman, was not “negotiable.” Likewise, Lincoln’s policy was grounded in his widely proclaimed belief that slavery was a moral wrong, and he believed that if slavery were contained it would be abandoned even in the slave states because their export market for slaves (that is, the federal territories) would have dried up.

          Two lesser points. Foreman wrote: “Only two naval fortifications were still in Union hands by the time [Lincoln] took office.” That should have read “Only two naval fortifications in the South were still in Union hands.” Likewise, Foreman wrote: “[G]iven the four-year conflict’s impact on society, and not just because of the immense death toll, which new estimates put as high as 750,000—[was] more than the losses from all other wars combined.” That should have read “more than the losses from all other United States wars combined.” And of course, you only reach the 750,000 estimate if you count confederate war dead. In estimating U.S losses in wars, other than the American Civil War, such estimates only include those fighting for the United States, and not those fighting against it.

 

Is mise, le meas,

 

A Letter to the Editor, Responding to Amanda Foreman’s ‘Towards Zero: the gruesome countdown to the American Civil War,’ The Spectator (U.K.) (submitted circa August 2024) (Sept. 3, 2024, 9:04 AM), <https://reformclub.blogspot.com/2024/09/letter-to-spectator-uk-on-american.html>;

An Irish Member of the European Parliament’s Response to Alternative for Germany’s recent state election victory

 

What will this Member of the European Parliament (and, perhaps, other MEPs?) say should the wrong candidate win in the United States? 

Seth Barrett Tillman, ‘An Irish Member of the European Parliament’s Response to Alternative for Germany’s recent state election victory,’ New Reform Club (Sept. 2, 2024, 10:53 AM), <https://reformclub.blogspot.com/2024/09/an-irish-member-of-european-parliaments.html>;