Section Three "Of" and "Under" Nonsense: The Sequel

Mark Graber

The persons responsible for Section Three of the Fourteenth Amendment would have laughed at the suggestion that past or future presidents who never held any other office could not be disqualified from present and future office.  That whether former president John Tyler, who became a secessionist in 1861, would have been disqualified from office had he survived the Civil War depended on whether Tyler held other state or federal offices is nonsensical.  No serious constitutionalist would interpret Section Three as exempting presidents who held no other public office absent a very clear constitutional mandate. Section Three of the Fourteenth Amendment disqualifies any person from holding “any office, civil or military, under the United States, ... who, having previously taken an oath ... as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The common sense reading is that the set of offices that make persons subject to Section Three are the same as the set of offices from which persons may be disqualified.  That a traitorous former president is exempt from Section Three, but not traitorous Representatives, Senators, Judges, and Generals boggles the imagination.

Last winter in an essay for Lawfare, I demonstrated that the Fourteenth Amendment hardly compels such foolishness.  My survey of every congressional use during the first session of the Thirty-Ninth Congress of "office(s) of," "office(s) under," "officer(s) of," and "officer(s) under" would not surprise anyone with common sense.  The members of the 39^th Congress who drafted Section Three spoke of the president as “an officer of the United States/Constitution” and as an “officer under the United States/Constitution.” They spoke of the presidency as “an office of the United States/Constitution” and as an “office under the United States/Constitution.”  Some linguistic differences explain the use of "of" and "under" but there is no (not hardly any) evidence in the pages of the Congressional Globe that any member of Congress thought the president might be an officer under the United States/Constitution or an officer of the United States/Constitution, but not both. The essay paid particular attention to a House Report issued a month after the Fourteenth Amendment was sent to the state.  That report insisted that no constitutional difference existed in the constitutional usage of “officers under the United States/Constitution” and “Officers of the United States/Constitution.” The blog post summaries my conclusions.  I may elaborate in the future.

Josh Blackman and Seth Barrett Tillman are nevertheless determined to repeat their comedic performance of December 2021 when they posted on SSRN an essay claiming, contrary to the evidence and common sense, “that the President is not a Section 3 ‘officer of the United States.’” As was the case with their original piece, the new piece they have recently posted on SSRN claims to be an understanding of the original meaning of Section Three.  Their lack of cotemporaneous historical evidence for a claimed work of originalism is stunning.  The number of persons they cite in support of their conclusions who might have influenced the drafting and framing of Section Three is zero.  Blackman and Tillman fail to provide any evidence that any member of the 39^th Congress maintained that the president is not an officer of the United States or distinguished between an “officer of the United States” and an “officer under the United States.”  Blackman and Tillman do not point to any member of a state ratification convention or editorialist who, when the Fourteenth Amendment was debated, maintained that the president is not an officer of the United States or distinguished between an “officer of the United States” and an “officer under the United States.”  They do not point to any governing official, political actor, or small child who during the 1860s made a claim that remotely supports their assertions about the original meaning of an “officer of the United States.”  

Blackman and Tillman do make the odd claim that William Baude and Michael Paulsen in their influential article claiming that an originalist reading would disqualify Donald Trump under Section Three and my somewhat less famous (i.e., obscure) blog post “disregard the fact that the debates they cite from the 1860s in support of their position look back to debates from the early Republic.”  But Reconstruction Republicans insisted those debates supported their position that no constitutional difference existed between “officers of the United States” and “officers under the United States.”  Whether members of Congress in 1866 were right or wrong about their interpretation of debates in 1790s has no bearing on what members of Congress thought in 1866.

The crucial passage occurs in a Congressional Report issued barely a month after Congress sent the 14^th Amendment to the states.  That passage declares,

“But a little consideration of this matter will show that ‘officers of’ and ‘officers under’ the United States are (as said by Mr. Dallas in this Blount case, p. 277) ‘indiscriminately used in the Constitution.’” (Congressional Globe, at 3939).

My blog post intentionally omitted “(as said by Mr. Dallas in this Blount case, p. 277)” which I interpreted as a footnote in the original House Report being reproduced in a Congressional Globe that did not include footnotes (I was also madly cutting to stay within word limits).  Blackman and Tillman correctly point out that some members of Congress in 1797 disagreed with Dallas when Dallas claimed that no difference exists between “officers of” and “officers under.”  So what.  The issue is what people in 1866 believed, not whether there was a disagreement in 1797. If members of the Thirty-Ninth Congress uniformly thought Dallas was right about the Constitution, pointing out that some members of Congress in 1797 disagreed has no bearing on the original meaning of constitutional language drafted in 1866.  The evidence from the Thirty-Ninth Congress and House Report is unambiguous. Reconstruction Republicans uniformly spoke of the president as an “officer of the United States.” They never distinguished between “officers of” and “officers under” the Constitution/United States.  The committee report insisted, “It is irresistibly evident that no argument can be based on the different sense of the words ‘of’ and ‘under.’” No difference existed between “an officer ‘of’ the United States, or one ‘under’ the government of the United States,” the House Report concluded. “In either case he has been brought within the constitutional meaning of these words . . . because they are made by the Constitution equivalent and interchangeable.”

Pundits who know nothing about history risk confusing the public by citing Blackman/Tillman in efforts to engage in “balanced” journalism.  We may see posts on social media contending:

Some scholars maintain the president is both an officer of and an officer under the Constitution. Others maintain the president is not an officer of the Constitution.  Given the division of opinion, we ought not disqualify Donald Trump from holding any state or federal office.

This is reporting of the worst sort.  Powerful evidence exists that the persons responsible for Section Three of the Fourteenth Amendment believed the president was an “officer of” and an “officer under” the Constitution. If Donald Trump participated in an insurrection, he is not exempted from disqualification under Section Three because the only office he ever held was the presidency.  No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States or that a constitutional difference existed between an officer of the United States and an officer under the United States.  History did not give Donald Trump a free "get out of disqualification card" unobtainable by any other president.  That two members of the academy make that claim is evidence of a great many things, but not evidence about what persons were thinking when they drafted Section Three of the Fourteenth Amendment.