Thursday, December 07, 2023

Presidential Elections Ain't What They Used To Be

Gerard N. Magliocca

One question that was asked yesterday in the Colorado Supreme Court was why would the Fourteenth Amendment exclude the Presidency and President from Section Three. What reason could there be for that singular exclusion? One response goes something like this: The President and Vice-President are the only officials elected by the American people as a whole. The people have the right to elect an insurrectionist to the White House if they so desire.

Now there are many problems with this argument, but one of them is that it's anachronistic. The American people as a whole did not vote for President and Vice-President in 1868 when the Fourteenth Amendment was ratified. Three states were excluded from voting (Mississippi, Texas, and Virginia). And in Florida, the state legislature just appointed electors for Grant. There was no popular vote there at all.

Thus, it is wrong to say that people in 1868 held a special democratic view of the presidency. And, of course, nobody said that then in relation to Section Three. The provision was not designed to exclude the President/Presidency and does not do so.

UPDATE: And now for my "Carthago Delenda Est" ending to reiterate that Section Three was understood to apply to the presidency. The Sunbury Gazette of July 18, 1868 told readers that under universal amnesty "the worst rebels are to be eligible for the highest national offices, so that upon this Democratic platform Robert E. Lee might yet become President of the United States."  

Monday, December 04, 2023

Section Three as Self-Executing

Gerard N. Magliocca

"I suppose the amendment to the Constitution of the United States proposed by the Thirty-Ninth Congress, known as Article XIV, will soon be declared to have been ratified and become part of the Constitution, and I understand the effect will be at once to remove from office all persons who are disqualified by that amendment."

Secretary of War Schofield to Ulysses S. Grant (June 3, 1868), reprinted in The Evansville Daily Journal (June 4, 1868).

Saturday, December 02, 2023

Enduring Legal Scholarship

Mark Tushnet


Most legal scholarship is ephemeral but some is not. What are the characteristics of enduring legal scholarship? Her I’ll proceed sort of inductively: Suppose someone asked me to compile a reader of enduring constitutional scholarship—defined roughly as work published more than forty or so years ago that remains worth reading because it illuminates contemporary issues. What articles would I include? 

Here's a list from off the top of my head, with shorthand titles and no citations: (1) Thayer on the fundamental doctrine of judicial review. (2) Thomas Reed Powell on the “still small voice of the commerce clause” (not well known, but it makes the point that to think about the dormant commerce clause you have to start with the observation that Congress has the undoubted power under the commerce clause to preempt state regulation that interferes with interstate commerce—or, importantly, to consent to such interference). (3) Something from Ely, Democracy and Distrust, or one of the articles that worked its way into the book. (4) Something on the distinction between intentional discrimination and disparate impact discrimination—maybe Alan Freeman’s article on the victim and perpetrator perspectives in antidiscrimination law. (4) One of Geof Stone’s early articles laying out the distinction between content-based and content-neutral regulation of expression. (5) Peter Strauss on formal and functional analysis in separation of powers jurisprudence. (6) A set of articles on critical legal theory—maybe my “Critique of Rights,” Derrick Bell’s interest convergence article, and Reva Siegel’s article on preservation by transformation. (The rationale for these selections isn’t obvious because the main point of critical legal theories is to “ask the  X question,” and almost anything discernably in the critical tradition would do so.) (7) Market pressures would probably require the inclusion of something on theories of interpretation, but the field is so highly politicized that finding something that’s really enduring would be tricky. My guess is that one of Jeff Powell’s critical articles on originalism would work well. 

What gives these works their enduring power? Many deal with issues that cross doctrinal boundaries lines—transsubstantive, in the jargon. That’s not true of the Powell article, though, at least if one doesn’t do a lot of massaging to show that it’s really about the distinctive characteristics of Congress and the Supreme Court (so, an early Legal Process article). And it might not be true of the free expression article, though the scope of free expression is so broad that maybe we could call the field a transsubstantive one. 

I think a better characterization is that the articles identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are—yesterday’s issues, today’s, and tomorrow’s (even though we don’t know what tomorrow’s will be (consider how Powell’s article written in the 1930s, tells how to think about state regulation of ChatGPT). That also removes them from immediate political controversies; you can be a formalist or a functionalist about the unitary executive (Strauss is of course a functionalist), and find Strauss’s exposition of the differences valuable.  

That example points to other issues. First, the articles have enduring value even if they are flawed to some extent, because once we identify the flaws—as the follow-on literature does—we can clean up the exposition and retain the core insights. Second, the older articles are the more they will depart from today’s conventions about proper scholarly style. The ones that endure, though, are recognizably stylistically continuous with today’s conventions. Today’s equivalent wouldn’t write the article in the way Thayer did, but—to quote Justice Kagan—trust me on this: if you compare Thayer’s article to others published in the 1890s you’ll think that the others are really old-fashioned while Thayer’s is just a little quirky. That’s even more true of Powell’s, the second oldest on my list. I wouldn’t bridle if someone described Powell’s style as Scalia-esque. “Sometimes Congress is silently silent, and sometimes it’s vocally silent” is Powell’s way of making his central point. 

Enduring constitutional scholarship may well be motivated by the issues of the day but  it endures because it sees that those issues lead us to identify deep structures of constitutional discourse. At the same time, though, I think the articles endure in part because they don’t present themselves as dealing with deep structures—they aren’t expressly theorized at a high (or maybe deep) level (my sense is that articles that are so theorized can be useful as primers for novices to the discourse but it’s the articles that actually do the work that “explain” or demonstrate the value of using the deep structural analysis).  

Having written that sentence I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article that endure let us think about the issues we care about no matter what side we take in contemporary controversies. 

A final question: Can we know when we first read it that an article really will endure (or, maybe better, has the characteristics—a fair degree of transsubstantivity and exposure of deep structures—that articles that endure have)? I think the answer is, “Sometimes but not always.” Which means, alas, that I think you’ll have to read a lot of dross to find the gold.  


Ephemeral Legal Scholarship (subspecies Normative Structural) II

Mark Tushnet


The most recent thing I picked off the shelf was a symposium issue from 2006 on the emergency Constitution. And, as with the book mentioned in the first of these posts, I started reading articles and quickly did no more than leaf through the issue. One reason is that many of the articles were either drawn from the author’s then recently published work or became part of later larger works that I’d already read (a phenomenon I mentioned in the prior post as well). 

Another reason, though, is that the articles were substantially less illuminating now than they might have been when initially published—that is, they were ephemeral. They were about how our constitutional structure could adapt to emergencies, and they were dominated by the availability heuristic—that is, the emergencies they envisioned were terrorist acts originating outside the nation’s borders, with some attention to the possibility of domestic terrorism like Timothy McVeigh’s. 

It turned out, though, that the emergencies we actually faced were quite different: a pandemic and a domestic insurrection. (I’m proud to say that in our Comparative Constitutional coursebook, though the largest case study dealt with foreign terrorism, the introductory material emphasized the multiple ways in which national constitutions defined emergencies triggered special constitutional treatment. The forthcoming fourth edition of that coursebook has a substantial case study of constitutional responses to actions taken in connection with the Covid pandemic.) 

My guess is that this problem arises in connection with just about every normative discussion of the structural Constitution. Authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem. 

The difficulty here is worse than that with ephemeral doctrinal scholarship, though. There the author need “only” persuade the Supreme Court to adopt the proferred doctrine. That might of course be quite unrealistic in practice but in principle you just have to change one or two minds. Structural revisions, though, almost always require changes within the administrative state or statutory changes, which take quite a bit of time to accomplish. 

And—and here’s the kicker—by the time you might be able to get those changes made, things have changed so much that you’re basically using bailing pails after the Titanic hit the iceberg. The emergency Constitution discussion provides one example. But, even within that discussion no one had any idea about the role that new social media would play in subsequent emergencies even of the “foreign terrorist” type, much less in other emergency situations. 

Other examples come from recent discussions of Supreme Court reform. Today the distracting shiny object—the availability heuristic again—is ethics reform. I suspect that any serious consideration of that topic would conclude that you could impose on the Court a strong enforceable ethics code with all sorts of bells and whistles and (if it survived constitutional review by the Supreme Court, which it probably wouldn’t), nothing whatever would change in terms of results or public satisfaction with the Court’s performance.  

The idea of Court-packing was never realistic, of course, but the specter of Court-packing did, I think provoke politicians and editorialists to revie ideas about imposing term limits on the Court. That too has been pushed way down on the agenda because it’s not flashy enough—and imposing statutory term limits, even if constitutional (I think some versions would clearly be constitutionally permissible, though again the Supreme Court justices would probably disagree), can’t be done in the short term, which means that politicians with their typically short time-horizons aren’t likely to make it a priority. 

I’ve sometimes toyed with the idea that discussion of structural revisions should draw not upon conventional legal sources but upon science fiction and other forms of speculative fiction (and maybe there are works out there that I’ve missed that actually do so in a serious rather than merely decorative way), precisely because doing so would remove the false image that structural reforms are both desirable (which might be true) and realizable in the short run (which almost certainly isn’t). 

The final post in this series will be about enduring legal scholarship.

Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I

Mark Tushnet


 WARNING: The following post is much longer than blog posts ordinarily are, and it’s the first of three connected ones. 

One of my projects in retirement is to read down the accumulated unread books in my library – some which I pretty clearly bought decades ago and never got around to reading. Works of history generally hold up pretty well; books about then-contemporary politics do all right when they really were the first drafts of history; popular science books are an odd lot because what was cutting edge sometimes turns out to have been wrong and almost always turns out to be less important than it seemed at the time. 

What about books about law? I have relatively few of them on the “unread” shelves, mostly because I did a decent job of keeping up with the book literature as it was published. Recently, though, I did take off the shelves a book of normative constitutional/doctrinal theory published in 2006. I started to read it, then basically stopped because it wasn’t saying anything I hadn’t read before (that is, some time between 2006 and now) and more important because it was simply boring, particularly when it took the Supreme Court’s then recent cases as the framework for engaging in normative theorizing.  

Curious, I then looked to see if anyone else had read the book, by doing a Westlaw search for references in law journals. (It turns out that I apparently had read at least some of it already, because I cited a specific passage in one of my articles.) The search turned up about 50 citations, a good chunk of which were in reviews of the book itself and in articles by people who I knew were the author’s friends and colleagues. In the past decade the book has been cited 13 times. 

This contributed to a sense I’d already had that a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral. I once had sketched out a plan to do a citation study of articles published in major law reviews over a period of about a decade, to see whether I could identify ephemeral works. Actually carrying out the study turned out to be a task too difficult for me (do you treat tributes as articles, when at least some engage with substantive questions but many do not? Do you somehow discount articles for a home-court advantage, that is, their being published in the law review at the author’s institution [we know that the standards for accepting home-court articles are less rigorous than those for accepting articles from outside]? What do you do about self-citations?), and I abandoned it. 

Now I return to the sense I have that a great deal of normative constitutional scholarship is indeed ephemeral. Because, as the saying goes, comparisons are odious, I’m not going to write about articles that I think are indeed ephemeral. Instead, I’m going to focus on my own work, trying to identify those parts that have no enduring significance (quite a few). I’ll offer various defenses of having written them, which focus on the value of the exercise for me personally – which leads me to suggest that maybe it’s fine that nobody reads other people’s articles and that maybe we could all just skip reading almost everything published in law reviews. Maybe write it and post it on SSRN; maybe write it and put it in your personal files. (I acknowledge that this is a perspective from a person who retired with tenure at a high-prestige school; those courses of action probably aren’t advisable for untenured people and for people who want to move up in the law school hierarchy [a desire that I of course can’t say is discreditable, having had such a motivation myself].) 

One difficulty in using my own work as the subject of this investigation is that I almost never write traditional normative constitutional scholarship, which I understand as scholarship that develops the normative basis for specific outcomes in real constitutional controversies. I don’t do it partly because I’m puzzled at why anyone should care what I thought the best (normatively speaking) outcomes should be. That’s particularly true because my normative views are a combination of conventional left-liberal positions with a sort of gonzo craziness. And if you want either component you’d be better off reading work by other people – full-on conventional left-liberals or completely gonzo writers. 

Sometimes, it’s true, I tack on normative conclusions to works whose main focus is elsewhere. I’m not sure why – maybe to satisfy what I imagine to be the features law review editors are looking for. I think I may have written one purely normative constitutional article – and that one never found a home in a law review, though I still think its analysis was both sound and interesting. (If you want to take a look, here it is:  

There’s one other preliminary. No false modesty here. I know that I’ve made important and enduring contributions to non-normative constitutional theory (and constitutional history), in work going back forty years or so and continuing (at least so I hope) through the present. For some contributions I’ve reached the pinnacle of citation studies: The ideas are in such common use that I don’t get cited for having originated them Many, perhaps most, of these contributions are flawed, but as Joe E. Brown says at the end of “Some Like It Hot,” “Nobody’s perfect.” And some of the contributions have been superseded by later work (here I think the major example is my idea of weak-form constitutional review, which – I have to note – was being developed independently at the same time by Stephen Gardbaum), but that’s how knowledge builds. And, as I’ll suggest, I was able to make some of these enduring contributions because I had written some ephemeral articles. 

Now, on to the main point. I divide my ephemeral works into two categories. (1) One includes purely doctrinal articles, in which I try to figure out what the current Supreme Court doctrine on some topic actually “is” – what reasons does the Court offer for its positions? What are the implications of the holdings for other related – and less-related – problems?  Can we understand how or whether the Court’s current position is consistent with unrepudiated earlier positions?  

I regard these articles as something like a pianist’s finger exercises – things you have to do to keep your doctrinal skills in good working order. And – and this is a key point – I think that good non-normative constitutional scholarship absolutely requires that its authors be really good at doing doctrine. Such scholarship, in my view, demands that authors understand constitutional law from the inside – how the makers of constitutional law experience their enterprise – so that they can adequately understand it from the outside. They don’t have to – indeed, in my view, shouldn’t – actually “take” the so-called internal point of view, but they do have to understand – deeply, really understand – what it’s like to take that point of view. If you don’t, you’re going to offer crappy reductionist external accounts. Put somewhat epigrammatically, if you don’t really understand and agree with Elena Kagan’s statement that it’s law “all the way down,” your non-normative constitutional theory isn’t going to be worth much. (You might have some insights that a good non-normative theory can use, but that’s about it.)

Doing finger exercises is important because doing doctrine well is difficult (though I think a fair number of influential scholars, thinking it’s easy, don’t bother to do it – even though they could if they wanted). The point of the finger-exercise analogy, though, is that pianists almost never perform finger exercises before audiences. Legal academics are able to do so by publishing them in some law review somewhere, but the fact that they have an audience doesn’t make them anything other than finger exercises. 

(2) The second category of my ephemeral work is somewhat more difficult to describe. Approaching it “procedurally” may be helpful. I’ve written a lot of ephemeral pieces in response to invitations to conferences and the like. I accepted the invitations because they were extended by friends, or because the conference was in an interesting city, or because it was on the West Coast and I could tack on a trip to see my sisters, …  

(My personal favorite example involved a conference that brought together lots of people committed to the normative program of “extending” liberal constitutionalism throughout the world. I wanted to hang out with them for a few days to get a feel for the way they saw the world. As it happens, the paper I wrote for that conference turned out to be, for a while, one of my more frequently cited articles, because, I think, its argument – which I now think quite naïve – captured something about the then-current Zeitgeist.) 

There was an additional requirement, though: when I received the invitation I had already had some thoughts – inchoate mostly – about something vaguely related to the conference topic. I used the occasion to work those thoughts out for myself – to see whether the inchoate ideas could be worked out in more detail. Sometimes they couldn’t, and I abandoned them. Sometimes they could, at least sort of, and I’d later see whether I could work them into some large scholarly work. The former pieces are ephemeral because the ideas they offer aren’t all that good, the latter because they are superseded by later work. Or maybe they’re ephemeral because their audience was me and other people eventually figured that out. 

I’m reasonably confident that most other legal scholars don’t see their normative scholarship as finger exercises or simple efforts to work out some thoughts for themselves. So, my account of my own work probably doesn’t generalize. Were I to offer a general account of ephemerality, I’d try work out the ideas (a) that the sociology of the legal academy requires that such scholarship track, to some significant extent, contemporary or recent Supreme Court decisions, and (b) that those decisions change in normatively relevant ways often enough to make work that satisfies condition (a) ephemeral. And I’d add a third proposition, that it’s truly bizarre to think that the U.S. Supreme Court is somehow plugged into the universe’s moral code (if there is one). To avoid ephemerality, normative constitutional theorists should ignore the Supreme Court. Then, though, what would happen when the tenure decision rolled around?

Additional Evidence on Section Three and the Presidency

Gerard N. Magliocca

To belabor the point . . .

In 1867, General John Rawlins gave a speech on the Fourteenth Amendment in Ulysses S. Grant's adopted hometown of Galena, Illinois. Rawlins was Grant's top aide during the Civil War and later served as Secretary of War. Here is how Rawlins described Section Three:

Those rendered ineligible to hold office are not disfranchised, but all the rights appertaining to citizens are theirs to enjoy, save that of holding office. Every other citizen in the United States who has the requisite qualifications, no matter how conspicuous he was in the rebellion, no natter how hard he fought against the Governnent, is eligible to any office civil or military, State or Federal, even to the Presidency.

Every "other" citizen was eligible to the Presidency. But not those rendered ineligible to hold office. This speech was widely reprinted, though the original story was in The Chicago Tribune of June 26, 1867.

Other examples, beyond the six that I discussed in my posts earlier this week, include:

1. Gallipolis Journal (Feb. 21, 1867) (stating that Reconstruction without Section Three "would render Jefferson Davis eligible to the Presidency of the United States").

2. The Milwaukee Sentinel (July 3, 1867) (stating that even Jefferson Davis "may be rendered eligible to the presidency by a two-thirds vote of Congress").

3. The New York Daily Herald (Mar. 29, 1871) (advocating amnesty that "will make even Jeff Davis eligible again to the Presidency).

4.  Urbana Citizen and Gazette (Apr. 25, 1872) (stating that amnesty would make Jefferson Davis "eligible to a seat in the Senate, or to the Presidential chair itself").

5. The Tiffin Tribune (July 18, 1872) (quoting John Bingham's speech declaring that Jefferson Davis and other Confederate leaders "should never hereafter be permitted to be President"). I discussed this one in a prior post.

6. The Rutland Daily Globe (Dec. 11, 1873) (stating that a general amnesty was justified "even if Jeff Davis is made eligible to the presidency").

There are more articles along these lines. But my next post will probably tackle another issue.


Thursday, November 30, 2023

Section Three Limits the Presidency

Gerard N. Magliocca

One structural point about Section Three that is not getting enough attention is its limitation on the President's pardon power. Only Congress can give an insurrectionist amnesty. There was an amendment proposed in the Senate in 1866 to let the President give amnesty with a pardon. The proposal was rejected. Congress reaffirmed this point in 1885. When the Attorney General issued an opinion saying that Section Three could be waived by a pardon, Congress rejected that view and insisted on its exclusive power.

This amnesty limit makes it harder for the President to support an insurrection against the Constitution. He can pardon participants of criminal charges but cannot exempt insurrectionist officials from accountability. Interpreting a provision that makes it harder for the President to support an insurrection as exempting a President who leads an insurrection doesn't make much sense.  


Reforming the Courts Through Resignations

Ian Ayres

Ian Ayres & Richard Re

In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests. 

In general, efforts to reform the Court confront two major challenges. First, they must avoid partisan gamesmanship. Our polarized politics will gin up many complaints against the justices, and most will be meritless or manipulative. The justices need a principled way to dispose of these flimsy claims. Second, reform should have bite. Ethical principles can garner public respect only if flagrant transgressions generate consequences. And judges, like the rest of us, are far more likely to pay attention when rules are enforceable.

The Constitution itself provides an enforcement mechanism: any federal judge can be removed from office through impeachment. But impeachment requires separate action by both houses of Congress, including conviction in the Senate by a two-thirds vote. And impeachment is available only for “high crimes and misdemeanors,” which may not encompass serious ethical lapses. Relying on impeachment therefore guarantees that judicial ethics are underenforced.

Impeachment’s shortcomings have only grown more severe. In the past, professional norms have disciplined the third branch. In 1969, for instance, Justice Abe Fortas was shamed into retirement after a series of judicial ethics scandals. Most significantly, Fortas was paid $20,000 by a businessman who was under investigation by the Department of Justice. Even though Fortas returned the money and recused from the businessman’s case, widespread criticism helped bring about his resignation.

Today, by contrast, it is easy to imagine a justice refusing to quit, no matter what. Professional norms have attenuated, and political polarization has created strong partisan allegiances around each justice. These changes in legal culture also undermine the effectiveness of impeachment. If even a minority party is determined to keep a justice in office, it can block the two-thirds vote required for removal. Reform could occur through a constitutional amendment—but that is perhaps the one mode of reform even less politically feasible than impeachment.

We propose another way. First, Congress should create a judicial ethics council with partisan balance and a supermajority voting requirement. Second, federal judges and justices should commit to resign if the council so recommends. This proposal enables the judiciary to police itself, thereby enhancing its public legitimacy while staving off undue interference from the political branches.

To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.

Jurists’ commitment to resign, if the council so requests, would build on existing practice. Already, federal judges routinely step down subject to the confirmation of their successors. Justice Stephen G. Breyer recently gave this practice a twist by deeming his own retirement effective at the end of the Court’s term—but only if his successor had been confirmed by that time. What we propose is essentially a new kind of conditional retirement, one linked to a formal finding of unethical conduct.

This non-partisan system of judicial ethics should appeal to jurists, as well as to politicians from both sides of the aisle. When the system is established, nobody would know which judges or justices might later engage in wrongdoing. And if nobody knows whose ox will be gored, then serious, bipartisan ethics reform is feasible—or, at least, more feasible than under any other approach. Moreover, judges and justices would have an interest in making this kind of commitment, so as to fortify the judiciary’s legitimacy.

In addition, judges and nominees alike would have a hard time explaining their reasons for declining to participate. Why, after all, would a judge refuse to be bound by the rulings of a politically balanced group of her own peers? Congress might even encourage participation by establishing a default rule that all new judges opt into the ethics regime, unless they expressly decline to do so before their confirmation vote.

Some justices might wince at the prospect of being subject to discipline by members of the “lower” federal courts. But the justices work together too closely to be impartial toward one another. By comparison, a large group of tenure-protected federal judges would be ideal, provided it is fairly composed of nominees from both major political parties.

A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.

With courts at the center of nearly every major policy issue, critics are right to insist that federal judges abide by enforceable ethics rules. Non-partisan processes and conditional resignations meet that need. They create a practical remedy for judicial misconduct, while safeguarding both the judiciary’s independence and its public legitimacy.

Wednesday, November 29, 2023

This Week on "Amarica's Constitution"

Gerard N. Magliocca

Mark Graber and I joined Akhil and Andy Lipka to talk about Section Three. Here is a link to the episode. Thanks to everyone involved for making this happen.

Tuesday, November 28, 2023

Newspaper References to Section 3 and the Presidency

Gerard N. Magliocca

Before listing five examples that I found just today, let me make one methodological point.

Michael McConnell's groundbreaking article on "Originalism and the Desegregation Cases" relied in part on the debates in Congress over the 1872 Amnesty Act. As a result, I think I'm on firm originalist ground in using materials related to or preceding that debate as evidence for Section 3's original public meaning.

1. Chicago Tribune (May 24, 1872): stating that the Amnesty Act made "Alexander M. Stephens, the Vice President of the Rebel Confederacy, eligible to the Presidency of the United States."

2. The Public Ledger (Oct. 3, 1871: "Fred[erick] Douglass might be President. Carl Schurz cannot [he was foreign-born]. Every Southern man who lies under the ban of the Fourteenth Amendment cannot."

3. The Highland Weekly (Sept. 21, 1871): "The [Fourteenth] Amendment further provides that no rebel who had violated an official oath to support the Constitution of the United States, should ever be eligible to the Presidency."

4.  The New National Era (Aug. 31, 1871): stating that amnesty would make "these infamous men eligible to the presidency"

5. The Indiana Progress (Aug. 24, 1871): quoting by a speech by Senator Morton stating he would never vote for amnesty for Jefferson Davis and John C. Breckenridge to make them eligible "to the Congress of the United States, it may even be to the Presidency"

As the old Ginsu knife commercial used to say, "And that's not all." More later this week.


Monday, November 27, 2023

Some Additional Section 3 Resources

Gerard N. Magliocca

The Colorado Supreme Court will hear argument next week in the Trump eligibility challenge. Here are some new materials that I've found in my research that might be of interest to our readers:

1. State v. Lewis, 22 La. 33 (1870) (upholding the removal of a state judge pursuant to Section Three). The judge was a state legislator in Georgia before the Civil War and served in the Confederate Army. He moved to Louisiana after the war and became a parish judge, but he did not receive amnesty. Neither I nor anyone else noticed this decision until recently, in part because it is brief.

2. The Daily Journal (Montpelier, VT), Oct. 19, 1868 (explaining the Fourteenth Amendment to its readers). "The third article of the fourteenth amendment excludes leading rebels from holding offices in the Nation and the State, from the Presidency downward, until Congress, by a two-thirds vote of each branch, shall have removed the disability."

There are many newspaper articles from this era the say the same thing. At some point I'll list them all.

3. At least one member of the Supreme Court (Lucius Q.C. Lamar of Mississippi) needed amnesty to hold his seat. John Bingham himself introduced Lamar's amnesty petition in the House in 1872. (Lamar joined the Court in the 1880s). Justice Howell Jackson of Georgia, who served for a few years in the 1890s, was given amnesty by the general statute in 1872. 

4. I highly recommend Sherillyn Ifill's op-ed in The Washington Post from the other day.  

Thursday, November 23, 2023

Essentially Contested Histories: On Recent Efforts to Cabin the Meanings of Slavery and Disestablishment

Andrew Koppelman

Some of the Constitution’s provisions decree that certain specific historical evils must not happen again. Such provisions generate a unique interpretive problem. The object of interpretation is not a word or a phrase, but a repudiated cluster of practices. Any construction of such provisions must offer a description of what was wrong with the original evil, so that the interpreter can decide whether the challenged action repeats that wrong.

The description will inevitably be shaped by the values of the interpreter. Every historical episode is susceptible to multiple interpretations, depending on which aspects the interpreter deems salient. One danger, which happened in the past and is happening again, is that an interpreter who is untroubled by some aspects of the historical evil may improperly narrow its scope by deeming those aspects outside the prohibition.

I illustrate this by focusing on two constitutional provisions, the Thirteenth Amendment’s prohibition of slavery and the First Amendment’s prohibition of establishments of religion. Each has been subjected to narrowing constructions, which focus on uncontroversial aspects of the historical wrong and then assert without further argument that they exhaust the provision’s coverage.

The most recent instance of this maneuver is Justice Gorsuch’s reformulation of Establishment Clause law, cited with approval in his opinion for the Court in Kennedy v. Bremerton, which would allow previously impermissible public endorsements of specific religious beliefs. His interpretive strategy is the same one that the Court used to restrict the scope of the Thirteenth Amendment in the Civil Rights Cases, Plessy v. Ferguson, and Hodges v. United States.

I elaborate in a new paper just posted on SSRN.

Presidents as Officers of and under the United States: The View from the Thirty-Ninth Congress, Second Session

Mark Graber


The historical evidence demonstrates that the persons responsible for Section Three of the Fourteenth Amendment thought they had included former presidents as persons subject to disqualification, even when such persons had never held previous office, and included the presidency as an office to which insurrectionists were disqualified.  No one in 1866 who supported the constitutional ban on present and future officer holding by those past and present office holders who engaged in insurrection would have thought that Donald Trump was not disqualified from seeking the presidency in 2024 because former President Trump had never been an officer of the United States or because the presidency he hungers after is not an office under the United States.  I presented the evidence for this historical claim in a draft up on SSRN and in several blog posts found here and here.   John Vladolus,’s “Insurrection, Disqualification, and the Presidency,” 13 British Journal of American Legal Studies ___ (2023) is another excellent source (as are the collected writings of Gerard Magliocca).

My past work included a survey of all uses of “office(r) of” and “office(r) under” during the first session of the Thirty-Ninth Congress, the session in which the Fourteenth Amendment was drafted.  This survey found multiple uses of these phrases to describe the President of the United States, a committee report that self-consciously declared all elected officials of the national government to be officers, “officers of the United States,” and “officers under the United States” unless the Constitution clearly specified otherwise, and no claim denying that presidents were “officers of the United States” or denying that presidents were “officers under the United States.” As important, the survey found that members of Congress repeatedly described Section Three as directed at all officials and all rebels, implicitly treating the phrases “office(r) of” and “office(r) under” as having no independent constitutional significance.  The Republicans who supported Section Three maintained that they were disqualifying from public office all rebels who had previously held public office.

This blog post details the results of my survey of all uses of “office(r) of” and “office(r) under” during the second session of the Thirty-Ninth Congress, the session in which Congress began implementing the proposed (not yet ratified) constitutional ban on officeholding by past and present office holders who engaged in insurrections. To no surprise, members of Congress from December 3, 1866 to March 3, 1867 used the phrases “office(r) of” and “office(r) under” exactly as they had used these phrases from December 4, 1865 to July 28, 1866.  The summary is almost the same, with an interaction between two leading Republicans replacing the committee report as a particularly self-conscious episode in which presidents were acknowledged as officers of the United States.  This survey found multiple uses of these phrases to describe the President of the United States, an interaction between Representatives James Ashley of Ohio and John Bingham of Ohio in which both self-consciously declared the president to be an “officer of the United States,” and no claim denying that presidents were “officers of the United States” or denying that presidents were “officers under the United States.”  As important, the survey found that members of Congress repeatedly described Section Three as directed at all officials and all rebels, implicitly treating the phrases “office(r) of” and “office(r) under” as having no independent constitutional significance. Representative Robert C. Schenck was among the many Republicans who equated holding “office under the General Government” with “holding office.”

Members of the Thirty-Ninth Congress repeatedly spoke of the president as an officer of the United States. Senator Benjamin Wade of Ohio maintained that the president was “the chief executive officer of the United States.”  Representative Robert S. Hale of New York referred to the president as “the chief executive officer of the Government.”  With specific reference to presidential impeachments, Hale stated, “before such charges can be made here against any officer of the Government he must be put on trial on the constitutional form.”

Republicans without contradiction declared the president to be an officer of the Government during the most important political debates held during the second session of the Thirty-Ninth Congress.  Representative James Garfield of Ohio when talking about presidential removals stated, “I hope that all officers of the Government will have by this bill a ground to stand upon, and that none of them, whether civil or military, may be removed at the will and pleasure of any officer of the United States.”  Senator Jacob Howard of Michigan implicitly referred to the president when he indicated “some branch or officer of” the Government was responsible for Jefferson Davis’s confinement.  Representative Thaddeus Stevens of Pennsylvania in a speech defending the constitutional authority of the Congress was speaking of the president of the United States, among others, when he asserted, “No other officer of the Government, possesses one single particle of the sovereignty of the nation.”

Bingham, generally regarded as a particularly important framer of the Fourteenth Amendment, if not the framer of the Fourteenth Amendment, self-consciously maintained the president to be an officer of the government in two central political debates.  The first was over a provision in what became the Tenure of Office Act, the measure under which President Andrew Johnson would eventually be impeached.  A draft of that bill declared that any officer of the Government of the United States who shall appoint or commission any person to an office in violation of the provisions of this act shall be deemed guilty of a misdemeanor in office, and on conviction thereof shall be dismissed from office.”  Bingham objected, pointed out that that language “clothes the civic courts with the power to remove any officer from office, the President not accepted.”  The phrase “shall be dismissed from office” was then removed from the final bill.  Less than a week later, Bingham made the same point when Ashley called for an investigation to determine whether “any officer of the Government of the United States.”  Bingham immediately objected claiming that Ashley’s resolution covered “every civil officer in the United States.”  During the colloquy that followed, both made clear that their reference to “officer of the United States” included the President of the United States.

This consensus that the president was an officer of the United States was bipartisan.  Such opponents of the Fourteenth Amendment as Representative Benjamin Boyer of Pennsylvania, Representative Michael Kerr of Indiana, Senator Edgar Cowan of Pennsylvania, Senator James Dixon of Connecticut, Senator Williard Saulsbury of Delaware, and President Andrew Johnson referred to the president as “the “first officer of the Republic,” “the chief executive officer of the United States,” the highest officer of the Government,” and "the chief executive officer of the country.” Dixon declared that he knew “that not a single officer of the General Government from the President down can receive his salary without an appropriation from Congress.”  Democrats were as prone as Republicans to include the president when talking about officers of the United States.  Representative John Chanler of New York, after asserting with respect to the Ashley resolution discussed above, “Whether the President of the United States be innocent of guilty of the crimes and high misdemeanors charged to him in the resolution is a question for determination in the future,” declared, “I stand here ready to initiate an examination into the conduct of any office of the Government who may be charged in good faith with impeachable offenses.” Senator Charles Buckalew of Pennsylvania with reference to the president stated, “no Senator will contend that Congress cannot prohibit by law the abuse of his authority by any officer of the United States

Federal law reflected this consensus that presidents were not above the law of Section Three.  The First Reconstruction Act declared that persons disqualified under Section Three could not vote for or be a member of a “convention to frame a constitution for any of said rebel states” or be eligible for voting or holding office “under such provisional governments. Presumably, no one thought past and present presidents who engaged in insurrections were an exception to this policy.

Such members of Congress as Senator George Williams of Oregon and Senator Lyman Trumbull of Illinois assumed governors were officers of a State, an assumption inconsistent with the view that presidents are not officers of the United States.  The Committee on Public Lands recommended that “no person shall ever be employed as a professor or teacher in the said agricultural college in the State of Tennessee who had ever held military of civil office under the so-called confederate government, or under the rebel State government of Tennessee.” Presumably this covered governors.

When members of the Thirty-Ninth Congress spoke of Section Three, they maintained that the provision covered all leading participants in insurrections and all governmental officers.  No member of Congress treated ““office(r) of” and “office(r) under” as encompassing a more limited number of officers or offices than “office(r).”  Trumbull stated that Section Three “excluded from office . . . every person who had held an office of any considerable importance,” or any “office of significance or importance.”  Representative Benjamin Loan of Missouri insisted that Americans would “by a ratification of the proposed constitutional amendment disqualify all of their rebel leaders from holding any office under the Government of the United States.” No Republican hinted at a presidential exception to Section Three.  Representative William Dodge of New York asserted, “the men who have ever held office under the confederate government are to be entirely disfranchised.”

Republicans made clear that after ratification of the Fourteenth Amendment, rebels need not apply to any governmental position.  Senator Charles Sumner of Massachusetts claimed, “If rebels cannot be officers under the Government they ought not to be voters.” Ward declared, “The leaders of the rebellion should never again return to power in this country.  . . . They should never be clothed with trust in this Government. . . . None of these restless, dangerous men should ever again cast a vote or hold an office under this Government. . . .. . . [L]et them go, disfranchised, shorn of all political power.” Such comments are hardly consistent with an understanding that presidents were not disqualified or that former rebels were eligible for the presidency.  Representative George Miller of Pennsylvania expressed the Republican consensus when he stated that “leading rebels . . . seem extremely anxious to be in a position to make and administer laws for the loyal people of the country.  . . . But in the mean time these persons must understand that in Government affairs they must take a back seat.”

The penchant of some originalist to insist that, despite this evidence, the original meaning of the Fourteenth Amendment is that presidents are not officers of the Government is Exhibit A in the demonstration that originalism has nothing to do with history.  The persons responsible for the Fourteenth Amendment thought the presidency was an office of the United States and the president was an officer under the United States.  No good reason exists for carving out a presidential exception to the offices and persons subjected to Section Three disqualification.  Any method of constitutional interpretation that makes the ahistorical conclusion that, against all common sense, Donald Trump is constitutionally qualified to serve as president of the United States, ought to be disqualified as a theory of constitutional interpretation on that ground only.





Wednesday, November 22, 2023

A Section 3 Interpretive Exercise

Gerard N. Magliocca

Here's a question that came up almost immediately after Section Three was ratified: "Are insurrectionists barred from serving as state legislators?" To answer this question, let start with the language:

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. 

Here are two reasons why some people said that the answer was no. First, Section Three does not list state legislative positions as a covered office. It just says "office . . . under any state." Second, federal legislative positions are specifically listed. They are not considered federal offices. Thus, a parallel reading would say that state legislative positions are not state offices.

This interpretation was rejected. In 1869, President Grant announced in his Annual Message that many members of the Georgia legislature were ineligible to serve due to Section Three. The Union Army then removed these legislators. Later, state legislators in Virginia were indicted for serving in office illegally under Section 3, though they received amnesty prior to trial. 

What's the takeaway here? One is that Section Three was applied in a purposive and all-inclusive way subject to congressional amnesty. The other is that a finer textual reading was considered and rejected almost immediately. 

Tuesday, November 21, 2023

Universities must quit with the BS

Andrew Koppelman

The war between Israel and Hamas has led some university administrations to realize the virtues of institutional neutrality, as advocated by the famous Kalven Report. Accustomed to pontificating on current events, they have suddenly discovered that they couldn’t say anything without making somebody angry.

Worse, having established that practice, they found that even silence sent a nasty message, apparently signifying invidious comparative judgments about which deaths mattered. (More likely it signified comparative judgments about which groups to pander to.)

It turns out — who knew? — that it is politic for officials to avoid taking sides on contentious issues. But there is another reason why administrators ought to remain silent on such matters: anything they say is almost certainly bullshit, and the mission of the university is antithetical to the production of bullshit.

I elaborate in a new column at The Hill.

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