A Reply to Mark Graber’s ‘Legislative Primacy and the Fourteenth Amendment’

Guest Blogger

On April 20, 2022, we published a 1300-word guest essay in The New York Times. We predicted that the courts would, and to a lesser extent should, dismiss voter challenges, in multiple jurisdictions, that invoked state law procedures to remove congressional candidates from the ballot. Our position was entirely based on an 1869 precedent: Griffin’s Case—which was decided by Chief Justice Chase, acting as the circuit judge for the Circuit Court for the District of Virginia. The next day, on April 21, 2022, the Superior Court of Arizona, for Maricopa County, dismissed two such election challenges. It did so after developing alternative grounds, but the first such ground was founded in Griffin’s Case. We predicted correctly—albeit any such decision is subject to appeal. And, we don’t suggest that we were the first or the only commentators to have noted the potential relevance of Griffin’s Case to these voter challenges.

Here, at Balkinization, Professor Mark Graber critiqued our guest essay. His post began:

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States. Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022).

Mark Graber, ‘Legislative Primacy and the Fourteenth Amendment,’ Balkinization (Apr. 22, 2022, 7:23 PM).

We make three points in reply to Professor Graber.

First, Professor Graber states that “Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.” (emphasis added) Graber’s restatement of the scope of Section 3 is far too expansive. A Section 3 disqualification bar only encompassed persons who had engaged in insurrection or rebellion against the United States, if prior to doing so they had “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.” Amend. 14, Section 3. We do not doubt that in 1865, any sixteen year-old who had been conscripted or who had volunteered to serve in the military forces in the service of the confederacy could be criminally charged with insurrection or rebellion, and perhaps with any number of other federal crimes. But if such a person had never held one of Section 3’s specified positions and had never taken an oath to “support the Constitution,” then although he could be criminally charged, no Section 3 disqualification bar could attach. We are not alone in reading the plain text of Section 3 this way. Indeed, in Griffin’s Case, Chief Justice Chase recognized Section 3’s limited bite: “The object of the amendment is to exclude from certain offices a certain class of persons.” (emphases added)

Second, Professor Graber wrote: “Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3.” (emphasis added) And then Graber proceeds to cite our guest essay, “Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022, and only our guest essay. We recognize that an author frequently seeks to communicate a particular meaning, but sometimes the author’s words communicate ideas and meanings which the author did not intend. We have carefully reviewed our guest essay. In our guest essay, we never intended to make any claims about the intent of the Framers or ratifiers of the Fourteenth Amendment. We never intended to make any claims about what “the persons responsible for the Fourteenth Amendment thought.” And having now reviewed our guest essay for the purpose of our reply to Graber’s response, our view is that no fair reading of our words would lead the objective observer to find the meaning Graber has put forward as ours. Our argument was not based on original public meaning or original intent. Instead, our argument was entirely based on the precedential scope and persuasive force of the circuit court’s rationale in Griffin’s Case.

Third, we cannot reply to the remainder of Professor Graber’s Balkinization post, which as far as we can tell does not meaningfully respond to anything we wrote in our New York Times guest essay. If Graber thinks his original public meaning analysis/original intent analysis of Section 3 overcomes the rationale of Griffin’s Case, or that Griffin’s Case was not rightly decided, that’s fine. But then his problem is not really with Blackman and Tillman’s analysis, but with Chief Justice Chase’s analysis. Our view is that Griffin’s Case is historically entrenched; it is good appellate authority; and, it is from a judge with a solid reputation who served on the Supreme Court when the Fourteenth Amendment was ratified. Moreover, the rationale of Griffin’s Case could decide the voter objection cases brought against Greene, Cawthorn, and others. In other words, Griffin’s Case is likely to persuade courts—as it did on April 21.

As we have time, we intend to engage with others who, apparently like Professor Graber, think Griffin’s Case was less than wholly sound. But we can not do so on the terms set by Graber, where he would put words into our mouths that we plainly did not say. In our New York Times guest essay, our length was limited by our venue. We made a single, discrete point. We will defend that point, which we think correct (at least, until we are convinced it is incorrect). But we have no time or desire to defend points which we did not make, even in the service of correcting historical legal errors—which we did not cause.

          Seth Barrett Tillman is an associate professor at the Maynooth University School of Law and Criminology, Ireland. You can reach him by e-mail at sbarretttillman@yahoo.com.

          Josh Blackman is a professor at South Texas College of Law Houston. You can reach him by e-mail at joshblackman@gmail.com.