Enduring Legal Scholarship

Mark Tushnet

Ephemeral Legal Scholarship (subspecies Normative Structural) II

Mark Tushnet

Ephemeral Legal Scholarship (subspecies Normative Rights-Based) I

Mark Tushnet

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.

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.

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.

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.

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.  

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.

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.

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. 

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.