Thursday, January 21, 2021

Oaths and Offices

Gerard N. Magliocca

Another tricky question under Section Three of the Fourteenth Amendment is the definition of a state officer who is subject to the exclusion from office. The Federal Constitution contains no definition of a state officer, though Article VI says that all state executive and judicial officers "shall be bound by Oath or affirmation, to support this Constitution." One way of looking at this is that all state officers must take this oath. And maybe the definition of an officer who must take the oath just depends on state law.

Another way of looking at this, though, is that taking this oath is what makes the person a state officer. Thus, if they take that oath, then they are state officers for purposes of the Federal Constitution. There is support for this proposition in one of the few Section Three cases. Worthy v. Barrett, an 1869 decision by the North Carolina Supreme Court, addressed the claim of a local sheriff that he was not ineligible to serve under Section Three because he was not a state executive or judicial officer. The Court rejected his claim:

"Is a Sheriff an officer? An office is a right to exercise a public or private employment, and to take the     fees and emoluments; in which one has a property; and to which there are annexed duties; and with us in public offices, oaths to support the Constitution of the State and of the United States. I do not know how better to draw the distinction between an officer and a mere placeman, than by making his oath the test. Every officer is required to take not only an oath of office, but an oath to support the Constitution of the State and of the United States, Rev. Code, chap. on “Oaths.” Whereas every mere placeman is simply required to take an oath to perform the particular duty required of him, as in the case of jurors, commissioners, &c., and takes no oath to support the Constitution of the State, or of the United States."

Under this analysis, the oath makes the officer. Perhaps this was true only in North Carolina--I'm not sure about that. Still, Worthy could have broader implications for how Section Three should be applied.

UPDATE: Another North Carolina case, this time in federal court, reached a similar conclusion in instructing a jury in a criminal trial that a former constable was covered by Section Three. 


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