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>;