The Civil War and Reconstruction were the second American Revolution.
The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?
This Article makes the case that the President is an officer of, and holds an office under, the United States for purposes of Section 3. It does not canvass counterarguments or counter-authorities but seeks to contribute to the debate over Section 3's reach by setting out a broad case for the provision's application to Presidents and the Presidency.
The Article responds to a limited number of counterarguments, principally in footnotes to avoid interrupting the main case. For different interpretations of Section 3's applicability to Presidents and the Presidency,
What constitutes engaging in rebellion or insurrection is a separate question. Regarding the Confederate rebellion, however, Attorney General Stanbery opined that “when a person has, by speech or by writing, incited others to engage in rebellion, he must come under the disqualification.”
Congress sought to break the political power of rebels and their supporters during and after the Civil War using statutes that disenfranchised them and excluded them from positions in the federal and post-war provisional state governments.
An early version of Section 3 would have disenfranchised through mid-1870 anyone who had given aid and comfort to the rebellion.
Congressional Republicans prevailed. They limited rebel power over the franchise and government positions through Sections 2 and 3 of the Fourteenth Amendment.
Section 2 reduces a state's seats in the House of Representatives for denying certain voting rights. 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.
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Unpacked, the provision has three principal clauses. The first (the “Officials Clause”) defines which officials are potentially subject to disqualification—specified federal and state legislators and officers who took an oath to support the Constitution.
Blackman and Tillman call this the “jurisdictional element” and characterize it by equating Blackman and Tillman call this the “offense element.” Blackman and Tillman call this the “disqualification element.”
Section 3's text is not limited to the Confederate rebellion.
Earlier proposals were so limited.
Professors Josh Blackman and Seth Barrett Tillman have closely read the offices and officers language in the Constitution of 1788. They conclude that within that document the term “Officers of the United States” refers “to appointed positions in the Executive and Judicial Branches,” and the term “Office . . . under the United States” refers to those positions plus “non-apex appointed positions in the Legislative Branch.”
This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution. Instead, it addresses the use of those terms after 1788 including proximate to the ratification of the Fourteenth Amendment in 1868, a time of Reconstruction that differed radically from the original Founding. As the Fixed-Meaning Canon provides, “[w]ords must be given the meaning they had when the text was adopted.”
The case for including the Presidency as an office under the United States has six parts: specific contemporaneous references to the Presidency in the legislative history of Section 3, in ordinary usage, and in related federal statutes; general references to elective “offices under;” and contemporaneous executive and judicial interpretations.
Members of Congress referred to both the Presidency and presidential election in debating the proposed Section 3. Representative Stevens, leader of the Radical Republicans in the House,
Senator Johnson suggested that the text did not go far enough because it allowed election to the Presidency and Vice Presidency.
Even before the Fourteenth Amendment, the House Committee on Foreign Affairs had determined in 1834 that the President is subject to the Foreign Emoluments Clause of the Constitution of 1788, which applies to persons “holding any office of Profit or Trust under” the United States.
American newspapers kept the public aware of the status and implications of Section 3 and of removing its disabilities. Even before ratification, Americans recognized that the proposed amendment would bar holding the Presidency, while President Johnson's watered-down counterproposal would not.
An 1866 article noted that an important feature of the proposed Fourteenth Amendment was “the disqualification of all noted rebels from holding positions of trust and profit under the Government.”
An 1867 article attacked President Johnson's watered-down counterproposal because it
imposes no disabilities, political or otherwise, upon the leading men of the rebellion, but leaves them, as they were prior to their treason, eligible to any and all offices under the Federal government. Reconstruction upon this basis would render Jefferson Davis eligible to the Presidency of the United States . . . To such reconstruction the loyal North can never assent. There is something revolting in the very thought.
After ratification, rebels sought amnesties to remove Section 3's disabilities.
An 1871 article asserted that “W
In 1872 liberal Republicans split from the party, pushed for a universal amnesty, and nominated Horace Greeley for President in their Cincinnati convention. Mainstream Republicans partially relented, agreeing to remove the disabilities for all but the most senior rebels in the Amnesty Act of 1872.
Act of May 22, 1872, ch. 193, 17 Stat. 142.
In a later mainstream Republican convention speech reported in the Philadelphia Inquirer, Indiana Senator Morton attacked the liberals for risking the party's election chances over Davis's exclusion:
One of the main things talked about at Cincinnati was universal amnesty: that the disabilities of Davis and Tombs might be removed that they might get into power. The Republican party has not granted universal amnesty, but general amnesty. Do you want to overthrow the Republican party because it will not make Jeff Davis eligible to the Presidency of the United States? (Cries of “No!”)
In 1876, with Republican power fading, Democrats proposed a universal amnesty.
For a general discussion of Blaine's motives and the debate over his proposal generally,
Blaine's supporters rallied to prevent Davis’ eligibility. One paper asserted that “[t]he only justification that Mr. Blaine requires for his amendment is the monstrous anomaly of rendering the Confederate president eligible to the presidency of the United States.”
Democrats reacted with outrage
In July 1862, Congress prescribed the Ironclad Oath to exclude rebels and their supporters from positions in the federal government.
Act of July 2, 1862, ch. 128, 12 Stat. 502 (repealed 1868). For a discussion of the Ironclad Oath and its exception for the President,
Although the Ironclad Oath was repealed in 1868, Congress substantially restored it in 1884 with similar prefatory language, providing that the oath for persons holding “any office of honor or profit either in the civil, military, or naval service, except the President of the United States, shall be as prescribed in section seventeen hundred and fifty-seven of the Revised Statutes.”
Act of May 13, 1884, ch. 46, § 2, 23 Stat. 21, 22. Act of Feb. 15, 1871, ch. 53, 16 Stat. 412.
Section 3 was enacted with the same broad protective purpose as the Ironclad Oath and Section 1757, in the same context of feared rebel power. It uses similar language as those provisions—one of which specifically references the Fourteenth Amendment. Section 3 should be interpreted consistently to treat the Presidency as an office under the United States under the Related-Statutes Canon: “Statutes
The Positions Clause covers in part “any office, civil or military, under the United States, or under any state.” Under the presumption of intra-sentence uniformity and the Presumption of Consistent Usage,
Act of Mar. 2, 1867, § 6, ch. 153, 14 Stat. 428, 429. Act of July 2, 1862, ch. 128, 12 Stat. 502 (repealed 1868), Act of July 11, 1868, ch. 139, 15 Stat. 85, Act of Feb. 15, 1871, ch. 53, 16 Stat. 412. Act of Feb. 20, 1799, P
These uses included elective state executive offices.
The North Carolina Supreme Court held in 1869 that the Fourteenth Amendment barred a rebel from holding the elective office of state solicitor.
A Circuit Court in North Carolina reached the same result in 1871 in a case involving the elective office of sheriff. The defendant was indicted for holding the office in violation of a federal statute applicable to “any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of the Constitution of the United States.”
These courts were not alone in treating Section 3's bar as applying to elective offices and offices simpliciter. An 1866 article asserted that in opposing the Fourteenth Amendment “Democrats practically advocate the election of active rebels to office, and the throwing open the halls of Congress to those who have violated the oaths once taken there.”
The Officials Clause of Section 3 applies in part to anyone who has previously taken an oath to support the Constitution “as an officer of the United States . . . or as an executive or judicial officer of any state.” The case for including the President as an officer of the United States has five parts: contemporaneous executive and judicial interpretations; references in ordinary usage and in the Thirty-Ninth Congress, which proposed Section 3; a related federal statute; and legislative history of removing Section 3's disabilities.
In 1867 Attorney General Stanbery considered the Officials Clause when rendering two opinions on federal statutes implementing Section 3 pending its ratification.
Stanbery equated holding an office with being an “officer of.” He opined:
that to work disqualification two elements must occur—
Stanbery further reasoned that the term “officer of the United States” in the Officials Clause is unqualified, comprehensive, and more general than the “executive or judicial”-limited state version and therefore reaches military as well as civil officers.
The reason for the comprehensiveness of the federal term is that “the violation of the official oath and the official trust has relation to fealty to the United States,” and federal officers stand “in more direct relation and trust to the United States than the officers of a State.”
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The President holds an office,
Judicial decisions during Reconstruction relied on ordinary meaning and generality of terms just like the Attorney General's opinion.
Blackman and Tillman cite authorities that apply the term “officer of the United States” to appointed officials. In the Matter of the Executive Communication of the 14th October, 1868, 12 Fla. 651, 651–52 (1868).
The North Carolina Supreme Court reasoned similarly in 1869 when it held that Section 3 applied to a pre-war elected sheriff.
The court equated holding an office with being an officer for purposes of disqualification under Section 3. It listed “the
A Circuit Court in North Carolina reasoned the same in a case involving a person appointed and then elected constable before the war.
Usage in these cases is consistent with uses of “officer of” involving judicial power over governors and Presidents. An 1867 Supreme Court challenge to military Reconstruction asserted that “[i]f the chief executive officer of a State is liable to be controlled by the courts of the State in the discharge of ministerial duties, for much stronger reasons is the chief executive officer of the United States liable to be controlled by this court under the provisions of the Federal Constitution.”
The American President has been generally known here and abroad as an officer of the United States since as early as 1794, when the anonymous author Nestor described President Washington as “the first executive officer of the United States.”
To Thomas Jefferson from Samuel Latham Mitchill, July 12, 1808,
Britain's Prime Minister described Polk as the “chief executive officer of the United States” during the Oregon boundary negotiations.
Crucially, many of these uses occurred in the context of the President's election,
President F
An 1860 article attacked those mulling rebellion and added “that the arch traitor of the gang is the chief executive officer of the United States, by name James Buchanan,” who refuses to acknowledge any authority to employ the armed forces against seceding states, thereby “virtually proclaiming that he would protect his brother traitors in their rebellion.”
These and other period uses, including in the Thirty-Ninth Congress,
Graber provides examples from the Thirty-Ninth Congress describing the President as the “chief executive officer of the United States,” elected officials generally as “officers of,” and elected governors specifically as “officers of.” Blackman and Tillman dismiss other scholarship citing descriptions of the President as an officer of the United States as being too “scattered” to establish the term's meaning in Section 3.
An 1868 federal statute provided that when specified rebel states ratified the Fourteenth Amendment “the officers of each State duly elected and qualified under the constitution thereof shall be inaugurated without delay,” except that no person disabled under the proposed Section 3 and not relieved “shall be deemed eligible to any office in” the state.
Under the Related-Statutes Canon, the term “officer of” in Section 3 has the same meaning as in that statute. And under the Presumption of Consistent Usage, the term “officer of the United States” in Section 3 includes the President as the holder of an elective office.
Many of those disabled under Section 3 filed petitions for the removal of disabilities.
The following is an accurate statement of the offices held before the war, the acts committed in support of the rebellion, and the present political status of the above named: Mr. Ira Garrett is seventy-six years of age—was elected clerk of the county court in 1831, and clerk of circuit court, of Albemarle, in 1852 and has continued to act in each court to the present time. He gave no support to the rebellion other than sympathy, which was carried out by feeding the hungry soldiers, and attending to the wants of the sick. He accepts the political situation of the country. He is
Neither Ward nor any other member of the House objected that relief was unnecessary because Garrett had held elective rather than appointed offices before the war. Nor did anyone object that the petition treated having held a state office as demonstrating that the petitioner had been an “officer of” the state. Holding an office, even an elective office, made one an “officer of” the state for purposes of the Officials Clause. Under the Presumption of Consistent Usage, holding the office of President of the United States makes one an officer of the United States.
Parts III and IV make the case for the essential harmony of Section 3's two critical terms. Section 3 applies to officers and offices simpliciter, and an officer is simply one who holds an office.
Blackman and Tillman perhaps unwittingly approach this type of analysis when they write that “the jurisdictional element, [1], specifies which
In debates over the proposed Section 3 both Senator Van Winkle and Senator Johnson described having held an “office under” as the predicate for disqualification—substituting having held an “office under” for having been an “officer of” in the Officials Clause.
Lynch has suggested that although “under-explored, it facially appears that people who hold ‘offices
For these two Senators, holding an “office under” made one an “officer of” for purposes of the Officials Clause. If the Presidency is an “office under” the United States for purposes of Section 3, the President is an “officer of” the United States for the same purposes.
Blackman and Tillman acknowledge that “in everyday parlance, the President is an officer of the United States.”
Several authorities consider both the Officials Clause and the Positions Clause together. In
This combined usage appears even before Reconstruction. The 1790 Pennsylvania constitution provided that “[t]he Governor, and all other civil officers, under this commonwealth, shall be liable to impeachment for any misdemeanor in office . . .”
That constitution also cautions against reading constitutional text too technically. It describes the governor as an officer,
In 1866 a select committee of the House of Representatives interpreted the officers and offices provisions of the Constitution of 1788 and rejected both the textual analysis that Professors Blackman and Tillman rely on and the conclusions that they draw. The committee dismissed their type of textual analysis as “mere verbal criticism” and asserted that “[n]o method of attaining the Constitution is more unsafe than this one of ‘sticking’ in sharp verbal criticism.”
The committee concluded that members of Congress hold offices under the United States and “that no argument can be based on the different sense of the words ‘of’ and ‘under,’ as used in” the relevant clauses of the Constitution.
The select committee's conclusion is consistent with the Foreign Affairs Committee's earlier view that the President is subject to the Foreign Emoluments Clause.
The select committee's conclusions are particularly noteworthy given their context. Representative Blaine had read a letter on the House floor charging Representative Conkling with corruption for, among other things, having received his House pay while also receiving compensation for prosecuting a court martial as an acting federal judge advocate.
Conkling argued that the Act could not apply to him because members of Congress do not hold offices under the government of the United States.
As a fallback, the committee concluded that even if members of Congress do not technically hold an office under the government of the United States for purposes of the Constitution of 1788, they nevertheless do for purposes of the Act given its underlying purpose—“the absolutely vital importance of” keeping members “as far as possible from the bad influences of corruption and avarice.”
The
Finally, the committee had to determine whether a temporary judge advocate discharges “the duty of any other office.” The committee defined “office” much as Attorney General Stanbery and state courts later would when interpreting Section 3—as “a particular duty, charge, or trust, conferred by public authority, and for a public purpose, with a right usually attached to receive a fixed compensation for such service.”
The committee's report was unanimous and read in its entirety to the House one month after Congress sent the Fourteenth Amendment to the states for ratification.
Blackman and Tillman rely on the proposition that when “‘a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’” The
The United States adopted the Reconstruction amendments in a radically different context than it did the Constitution of 1788. Congressional Republicans rightly feared the resurgence of rebel power at the state and federal levels. They tried to prevent that through franchise and exclusion rules, first by statute and then in Sections 2 and 3 of the Fourteenth Amendment.
Section 3 applies to faithless state and federal officers. It bars holding state and federal offices until Congress permits. Its text uses ordinary terms, and the legislative, executive, judicial, interpretive, and popular materials cited above make the case for ascribing ordinary meanings to them. Those materials, along with canons of construction like the Presumption of Consistent Usage, support the provision's application to Presidents and the Presidency just as much as to governors and governorships.
As North Carolina Supreme Court Justice Reade explained in 1869, Section 3's purpose is to ensure “that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”