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.

Why Justice Thomas's Dissent from Denial of Cert on Preclusion and MDL in Du Pont is Important

Abbe Gluck

Preclusion is exciting! That’s what I tell my procedure students, lest they fail to recognize that, in sprawling suits involving public harms, speedy—and often global—resolution is the ballgame, and that’s impossible without a mechanism to shut off duplicative suits and ensure finality. Justice Thomas made preclusion even more exciting yesterday, when he issued what I believe is the first ever Supreme Court opinion questioning the legitimacy of preclusion in multidistrict litigation (MDL).  He dissented from the denial of certiorari in a case in which Du Pont challenged an MDL plaintiff's successful attempt to use non-mutual offensive collateral estoppel—that is, use a previous victory against Du Pont achieved by someone else-- against the company based on a bellwether trial utilized by the MDL to “provide meaningful information for the broader population of cases” in the MDL. What’s exciting about the opinion is, first, that Justice Thomas recognizes that MDLs now comprise a large part of the federal civl docket (a whopping 40%!), and that, as I have written (here, with Beth Burch), they are an unorthodox procedural animal, achieved trough the repurposing of the pre-trial proceeding-consolidation rule of 28 U.S.C. §1407 to become the workhorse of modern complex litigation where class actions fall short. 

Because MDLs don’t have the same due-process guardrails as class actions to ensure that classes have sufficient commonality and adequate representation of all kinds of plaintiffs, the same kind of prelusive, binding classwide judgements you get in class actions have been elusive in MDL and may raise constitutional concerns. The second thing that’s exciting about Justice Thomas’s opinion is that he raises precisely these questions about commonality, adequate representation, and due process. To be sure, this case has a complex procedural history and, as respondents point out, this particular group of MDL plaintiffs does, in fact, have some important commonalities. My interest is not in rehearsing that procedural history, nor is it in arguing that preclusion should or should not be appropriate as applied to these particular facts. My interest, rather, is in highlighting the significance of the fact that, for the first time ever, at least two Justices (Justice Kavanaugh did not join the dissent but would have granted the petition) appear interested in how MDL’s procedural unorthodoxies raise constitutional concerns that may necessitate new procedural guardrails.

The third reason the opinion is so exciting is likely less obvious. In two weeks, the Supreme Court will be reviewing the aspect of the Purdue Pharma bankruptcy deal that lets the Sackler family off the litigation hook. While the question presented is focused on that particular maneuver, the case raises much bigger questions about why we are seeing so much complex civil litigation in unorthodox procedural vehicles—whether it’s MDL or bankruptcy (and remember, Purdue started in MDL)--and how widely we want to open the door to these unorthodoxies.  In Against Bankruptcy? Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation (forthcoming Yale L.J.F. Jan.2024), Burch, Adam Zimmerman, and I diagnose those features of our traditional civil procedure system that pose obstacles to the white whale of global peace and sound the alarm about what’s lost when we eschew traditional litigation values—e.g., information production/discovery, law development, jurisdictional redundancy, representation. testimony, and more—in favor of unorthodox procedural vehicles in the name of – yes—preclusion.  Like I said: exciting.

(More on Purdue and the new paper next week.)

The President's Oath to Support the Constitution

Gerard N. Magliocca

"My oath to support and defend the Constitution, my duty to the people who have chosen me to execute the powers of their great office and not to relinquish them, and my duty to the Chief Magistracy, which I must preserve unimpaired in all its dignity and vigor, compel me to refuse compliance with these demands."

President Grover Cleveland, Special Message to Congress (Mar 1, 1886). The "demands" involved a congressional request for certain documents.

UPDATE: There is also Andrew Jackson's Veto of the Second Bank of the United States:

"Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision."

UPDATE 2: In 1863, the Indiana Supreme Court explained: “The President does not derive his war power from his oath to support, protect, and defend the Constitution.” Griffin v. Wilcox, 21 Ind. 370 (1863).

The President is an Officer of the United States

Mark Graber

Researching whether the persons responsible for Section Three of the Fourteenth Amendment thought the president was an officer of the United States is a bit like researching whether George Washington had five fingers on his right hand.  No one ever says so directly because the point is obvious.  But when you do the research, you discover quotation after quotation in the last half of the 1860s that the president is an officer of the United States, quotation after quotation that Republicans thought Section Three of the Fourteenth Amendment covered all federal officers, and quotation after quotation that they did not distinction between the various oaths covered by the Constitution.  The below covers my research on the subject.  Gerard Magliocca has also done excellent research and provided me with some of the sources below. John Vladolus,’s “Insurrection, Disqualification, and the Presidency,” 13 British Journal of American Legal Studies ___ (2023) is an excellent source.

The President of the United States was among the officials who took the oath of allegiance to the Constitution that under Section Three triggered disqualification for participating in an insurrection.  The persons responsible for the Fourteenth Amendment sought to bar from present and future office all persons who betrayed their constitutional oath. “All of us understanding the meaning of the third section,” Senator John Sherman of Ohio stated, “those men who have once taken an oath of office to support the Constitution of the United States and have violated that oath in spirit by taking up arms against the Government of the United States are to be deprived for a time at least of holding office.”

Proponents of free labor and racial equality in the Thirty-Ninth Congress repeatedly declared that persons who violated their oaths of office were not, in the words of Representative J.L. Thomas of Maryland, “safe to be trusted with the destinies of a great nation and of an injured and magnanimous people.”  Sometimes, they spoke of “an oath to support the Constitution.”  Sometimes, as in the case of Senator Luke Poland, they spoke only of “governmental oaths.”  No one pointed to the relevance of any distinction in the oaths members of the federal government were constitutionally required to take.

Republican members of the Thirty-Ninth Congress repeatedly emphasized that Section Three disqualification was triggered by violations of the constitutional oath of office.  Senator Daniel Clark of New Hampshire when proposing what eventually became Section Three of the Fourteenth Amendment insisted that the constitutional qualifications for officeholding should “exclude all those who had taken an oath to support the Constitution of the United States, thereby acknowledging their allegiance to that Government and had proven false to that oath.” Senators endorsed Clark’s understanding the betraying the oath of office was the lynchpin of Section Three disqualification.  Senator Jacob Howard of Michigan asserted, “where a person has taken a solemn oath to support the Constitution of the United States there is a fair moral implication that he cannot afterward commit an act which in its effect would destroy the Constitution of the United States without incurring the guilt of at least moral perjury.” Senator James W. Grimes of Iowa maintained that the ban on officeholding “is intended as a prevention against the future commission of offences, the presumption being fair and legitimate that the man who has once violated his oath will be more liable to violate his fealty to the Government in the future.”

No member of the Congress that drafted the Fourteenth Amendment distinguished between the presidential oath mandated by Article II and the oath of office for other federal and state officers mandated by Article VI. Both were oaths to support the Constitution. Senator Garrett Davis saw no legal difference between the constitutional requirement that “all officers, both Federal and State, should take an oath to support” the Constitution and the constitutional requirement that the president “take an oath, to the best of his ability to preserve, protect, and defend the Constitution.” Senator Jame Doolittle of Wisconsin declared that Congress need not pass laws requiring presidents to swear to support the Constitution because that “oath is specified in the constitution.” Courts after the Civil War agreed that the precise wording of constitutional oaths made no constitution difference for Section Three purposes.  Judge Emmons charged the grand jury that “[t]he oath which shall have been taken need not be in the precise words of the amendment” “To support the Constitution of the United States.”

Republicans intended a comprehensive constitutional disqualification of all federal and state officers who violated the oath they took when entering office by participating in an insurrection. Members of the majority party in the Thirty-Ninth Congress repeatedly pushed aside Democratic efforts to limit the scope of the proposed constitutional restriction on officeholding.  Republican majorities defeated proposals to limit the ban on officeholding to persons who were in office when they joined the Confederacy, state officers, persons pardoned by the president and persons who had last taken an oath of office ten years before January 1, 1861. 

Republicans when describing Section Three often stated that the persons subject to disqualification were those who held offices, which included past and presidents of the United States.  They made no distinction between an officer, which included the president, an officer of the United States, and an officer under the United States.  Speaking neither of “offices under” nor “officers of,” Senator John Henderson of Missouri stated that Section Three “strikes at those who have heretofore held high office position.”  Senator Richard Yates similarly stated, "By the proposed amendment to the Constitution certain men are excluded from holding office, those who, having taken an oath to support the Constitution heretofore, have violated their oath.  No member of the Thirty-Ninth Congress suggested any prominent government official was excluded by a legal technicality from the strictures of Section Three.

The persons responsible for drafting Section Three regularly described the president as “an officer of the United States.”  Representative Rufus Spalding of Ohio spoke of the presidency as “this high office of the Government.” Many members of Congress, sometimes quoting President Andrew Johnson or Attorney General James Speed, declared that the president was “the chief executive officer of the United States.” John Bingham during the trial of the persons who conspired to murder Abraham Lincoln and during the impeachment trial of Andrew Johnson referred to the president as an “executive officer of the United States.” Several members of the Thirty-Ninth Congress spoke of all elected members of the national government as “officers of the government.”  Representative Andrew Rogers of New Jersey included the presidency when he stated, “Without the States an officer of the Government cannot be elected.”  Davis referred to “the portion of the people who choose the officers of the government.” No member of the Thirty-Ninth Congress betrayed even a hint that they understood the president not to be an officer of the United States.

One month after sending the Fourteenth Amendment to the states, the House of Representatives firmly rejected any constitutional distinction between the phrases “office under” and an “office of” as they were used in various constitutional provisions, including Section Three of the Fourteenth Amendment, which declares persons holding “offices of the United States” are subject to disqualification from “offices under the United States.”  Federal law prohibited a person who held “any office under the Government of the United States” that paid them more than $2,500 a year from receiving “compensation for discharging the duty of any other office.” Representative Roscoe Conkling of New York claimed he did not violate this statute when taking a paid position as a federal prosecutor after being elected to Congress. Conkling insisted that the president and members of Congress could hold dual offices because they were officers “of the United States,” not officers “under the United States.” The select committee investigating Conkling disagreed unanimously.  Members rejected claims that the Constitution divided government officials into “officers of the United States” and “officers under the United States.”  The committee report declared, “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 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.”  The Report several times made reference to the president as holding an office that could sometimes be described as an "office of" and at other times an "office under" the Constitution.

The Andrew Johnson administration understood the phrase “officers of the United States” in Section Three to include to include all federal officers.  The First Reconstruction Act disenfranchised persons in states under military rule who were “excluded from the privilege of holding office by [the] proposed [Fourteenth] amendment.”  Congress on March 23, 1867, implemented this disqualification by requiring all voters in former confederate states still under military rule to swear that they “had never taken an oath . . . as an officer of the United States . . . and afterwards engaged in insurrection or rebellion against the United States.”  Three months later, Attorney General Henry Stanbury issued an opinion declared that “office of the United States” in the bill implementing Section Three of the Fourteenth Amendment meant all federal officers.  Stanbery insisted “the language is without limitation. The person who has at any time prior to the rebellion held any office, civil or military, under the United States, and has taken an official oath to support the Constitution of the United States, is subject to disqualification.”  Disqualification hinged on the oath and holding an office, and an oath and holding office only.  Stanbery’s opinion maintained, “Two elements must concur in order to disqualify a person under these clauses: first, the office and official oath to support the Constitution of the United States; second, engaging afterwards in rebellion.” He announced no presidential exception to this rule.  Grant’s Attorney General agreed.  A.T. Akerman declared that “persons who held any National or State office prior to the late troubles, and afterwards adhered to the rebellion, are disabled by the XIVth Amendment, unless relieved by Congress.”

Governing officials during the 1860s regarded the chief executive officer in any government as an officer of that government.  Just as presidents were officers of the United States so, a broad consensus acknowledged, governors were officers of the state in which they held office.  Senator Timothy Howe of Wisconsin spoke of “the Governor and every other officer in the State.” Representative John Bingham of Ohio insisted that “all legislative, all executive, all judicial officers of every state be bound by an oath.” Judicial officials treated the reference to “officers of a state” in the Fourteenth Amendment as encompassing all state officers. Judge Bond in United States v. Powell declared that Section Three was “broad enough to embrace every officer in the state.” Again, no member of the Thirty-Ninth Congress hinted at any legal technicality that excluded any chief executive officer of any government from the list of officers of that government. 

The Thirty-Ninth Congress did not insist “officer of” and “officer under” the Constitution are always “equivalent and interchangeable.”  The select committee noted occasional statements distinguishing the persons who were “officers of the United States” and “officers under the United States” as well as instances where constitutional references to “officers under the United States” plainly excluded some federal officials. Several contemporary scholars have pointed to these and other quotations, and these and other examples when claiming that the President is not an officer of the United States for any constitutional purpose.  They observe, for example, that the Constitution requires the president to commission “the officers of the United States,” but presidents do not commission themselves.

Nevertheless, no commentator who claims that the president is not an “officer of the United States” points to any statement made during the process of framing and ratifying the Fourteenth Amendment or, for that matter, any statement made during the 1860s that supports their position on the office of the presidency.  The select committee report acknowledged that the Constitution is not perfectly consistent in usage and that any effort to impose perfect consistency would result in absurdities.  The presumption in the Thirty-Ninth Congress was that constitutional phrases should be understood according to common understandings.  The select committee report insisted that the “enlarged and general sense” determined the meaning of constitutional words rather than “some technical sense” unless the context made clear that the technical sense was the correct meaning.

Courts in the wake of the Civil War rejected carving out a presidential exception to the persons and offices subject to Section Three.  Federal Circuit Judge Halmor Hull Emmons, a Grant appointee, when charging a federal grand jury in Tennessee on Section Three declared, “Without perplexing you with the difficult classifications or nice distinctions between political, judicial, or executive officers, I charge you that it includes all officers” (emphasis in original).

Democrats and other opponents of the Fourteenth Amendment acknowledged that Section Three disqualified presidents who participated in insurrections.  Garrett Davis proposed a revised version of Section Three that he declared would be limited to "all federal officers."  He did not suggest that his amendment was adding presidents to the list of persons subject to disqualification.  Senator Peter Van Winkle of West Virginia proposed a constitutional amendment granting amnesty after a period of time to all persons not covered by Section Three.  He described his proposal, which spoke of insurrections past and future, as encompassing "the mass of the people South, including a great many who were misled by those upon whom they usually depended for information as to the proper conduct they should pursue, and who were forced into the service under other circumstances, wherein they cannot be said to have been morally blamable."  A president of the United States clearly does not fit the description of the people Van Winkle thought not covered by Section Three.

Prominent scholars who insist the President is not an “officer of the United States” acknowledge that the phrase “colloquially . . . appl[ies] to the president and that “[t]he Senate in debating Section 3 of the 14th Amendment was of the view that the president is an officer of the United States” (the House of Representatives as well).  Professor Stephen Calabresi and others nevertheless insist that “the phrase is a legal term of art, and the drafters of Section 3 had the burden of specifying clearly that they meant for the President to be disqualified from office as well as appointed ‘Officers of the United States.’’ This is not a claim about any opinion uttered during the 1860s about Section Three of the nature of the presidential office or any contemporaneous understanding of the property interpretation of constitutional phrases. Historical analysis demonstrates, as Calabresi acknowledges, that the persons responsible for Section Three thought the president was subject to disqualification. The records of the Thirty-Ninth Congress provide no evidence that any Representative or Senator was self-consciously aware that the language of Section Three contained a specialized “legal term of art” or thought the drafters of any provision of the Fourteenth Amendment had an obligation to be clear when making colloquial usage of words that were sometimes used as a legal term of art.  The Select Committee adopted the contrary rule of interpretation, insisting on the general meaning of constitutional words unless the context made clear that the more technical meaning was correct. None of the many lawyers who sat in the Thirty-Ninth Congress or who wrote commentaries on the Fourteenth Amendment after the drafting pointing out that because of a legal technicality Section Three did not disqualify a past or present president who engaged in an insurrection or rebellion but never held any previous state or federal office.  No one has ever advanced a commonsense reason why such an exemption should exist.  Whether Section Three should nevertheless be interpreted as containing that exemption as a matter of “original meaning” or some other constitutional modality is a question that can be resolved only by constitutional theory in the twenty-first century, not by anything said or done in the nineteenth century.

Two articles insist that the framers of the Fourteenth Amendment intended to exclude the president or at least were not clear on that point.  The first article making this “originalist” claim, by Josh Blackman and Seth Tillman, makes not a single reference to the persons who framed the Fourteenth Amendment, the persons who ratified the Fourteenth Amendment, commentary at the time the Fourteenth Amendment was ratified, or any quotation supporting the opinion that the framers thought the president was not covered by Section Three made within a decade of the framing and ratification of Section Three. Kurt Lash promises to produce “drafts” of Section Three that explicitly refer to the President, but only one of the drafts he produces makes explicit reference to the President of the United States. The author of that draft, Representative Samuel McKee of Kentucky, abandoned that explicit reference to the President during the debates over the Fourteenth Amendment, but never in any lengthy speech did he indicate any difference in the scope of his two proposals.  Rather, his remarks make clear McKee took for granted presidents and the presidency were covered by both his proposed versions of Section Four.  He declared, “I desire that the loyal alone shall rule the country which they alone have saved,” and that proposal “cuts off the traitor from all political power in the nation.” McKee treated “office,” “office of trust or profit under the Government of the United States,” and “office under this Government” as synonyms.  The goal of constitutional reform was to “seize them forever from office.”

The Republican decision to neuter politically the ex-confederate leadership rather than disenfranchise the ex-confederate masses prevented in practice the Electoral College from being a barrier against Jefferson Davis, Robert E. Lee or similar figures from becoming President or Vice-President.  Lash wrongly claims that “Section Three . . . ensures[s] that only loyal electors voted for the President of the United States.” Robert E. Lee was disqualified from participating in the Electoral College, but every former member of the Confederate Army who had not held state or federal office before the Civil War remained constitutionally qualified to serve on that body.  All persons who committed treason during the Civil War could vote for their beloved Robert E. Lee or Jefferson Davis (who was less beloved in the South) at the ballot box and traitors who had not taken an oath to support the United States as state and federal officers could so vote as members of the Electoral College.  Gerard Magliocca points out that at least three former confederate soldiers, including General John B. Gordon, one of Lee’s “most trusted” officers, were presidential electors from Georgia in 1868.  Unsurprisingly, given the likely composition of Electoral College members from former confederate states, no proponent of the Fourteenth Amendment ever expressed Lash’s confidence that the Electoral College was a bulwark against a disloyal president or that the existence of the Electoral College explained the otherwise bizarre Republican decision to permit former confederate leaders to become president, but not occupy lesser offices.

The past and present concur that the exceptional president who never held any other federal office is covered by Section Three of the Fourteenth Amendment.  Any effort to scour the historical record from 1866 to 1868 finds numerous assertions that everyone thought presidents were covered and not a single statement that suggests presidents were not covered.  If the point of Section Three is to prevent people from again taking office who violated their oaths to the Constitution by engaging in violent insurrection, no reason exists for carving out a presidential exception.  If, as the Colorado court found, President Trump engaged in an insurrection, he is not constitutionally qualified to be president of the United States or assistant dogcatcher of River City, Iowa, if that position is an office established by the state constitution.

Dueling Disqualifications

Gerard N. Magliocca

Let's go off the beaten track for a minute. Section Three of the Fourteenth Amendment is often described as unique. Other constitutional qualifications for office, the story goes, were straightforward rules that did not involve adjudicating misconduct. This is true with respect to the Federal Constitution. But not for state constitutions. Many state constitutions in 1868 prohibited duelers from holding office.

Here is the Mississippi Constitution of 1868: 

"[A]ny person who shall hereafter fight a duel, or assist in the same, as second, or send, accept, or knowingly carry a challenge therefor, or go out of the State to fight a duel, shall be disqualified from holding any office under this Constitution, and shall forever be disfranchised in this State."

The South Carolina Constitution of 1868:  

"[A]ny person who shall fight a duel, or send or a challenge for that purpose, or be an aider and abetter in fighting a duel, shall be deprived of holding any office of honor or trust under this State . . ."

The Arkansas Constitution of 1868:

"Any person who shall, after the adoption of this Constitution, fight a duel or send or accept a challenge for that purpose, or be aider or abettor in fighting a duel, either within this State or elsewhere, shall thereby be deprived of the right of holding any office of honor or profit in this state . . ."

The North Carolina Constitution of 1868:

"No person who shall hereafter fight a duel, or assist in the same as a second, or send, accept, or knowingly carry a challenge therefor, or agree to go out of this State to fight a duel, shall hold any office in this State."

There is an interesting analogy between the dueling and insurrection disqualifications. They both involve the use or attempted use of violence in lieu of lawful and peaceful methods to settle disputes. (Duels, of course, involve private disagreements rather than public ones.) And they both were defined broadly. Even being a second in a duel or fighting one out of state could get you banned from state office for life.

Were there any cases interpreting these provisions? I don't know, but I'll look.

Bruen in light of Rahimi: Doctrine that Hands a Loaded Gun to Lower Courts

Neil Siegel

The Justices have only themselves to blame for the presence of United States v. Rahimi on their docket.

The question presented in Rahimi is whether, under the U.S. Supreme Court's 2022 decision in New York State Rifle and Pistol Association v. Bruen, the Second Amendment prohibits the government from disarming individuals under domestic-violence orders. The issue made it all the way to the Supreme Court's small docket because the Court in Bruen rejected the consensus reached by the federal courts of appeals, which had generally limited the core of the Second Amendment right to self-defense within the home and had applied intermediate scrutiny to firearm regulations outside that core. The Court in Bruen instead held that the core of the right extended to firearm possession for purposes of self-defense outside the home, and it refused to apply any means-ends scrutiny even to that substantially more expansive core. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in his majority opinion in Bruen. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." 

Armed with that vague standard, which licenses the creative processes of reasoning by analogy and setting the level of abstraction at which to determine the contents of historical tradition, the U.S. Court of Appeals for the Fifth Circuit in New Orleans asserted that there was no historical analogue to 18 U.S.C. § 922(g)(8), which bars the possession of firearms by individuals subject to domestic-violence restraining orders. So, the appeals court struck down the provision, effectively requiring the Justices to take the case.

The most important legal point made during oral argument yesterday in Rahimi originated outside the Supreme Court. It came from Camille Paradis, a nineteen-year-old who survived the Sandy Hook mass shooting in 2012, in which a gunman murdered twenty children in an elementary school in Connecticut after committing an act of domestic violence by fatally shooting his mother. Ms. Paradis was with her sister at a protest outside the Court. According to Aishvarya Kavi of the New York Times, Ms. Paradis said: 

The fact that they're even debating this at all and even considering upholding the Fifth Circuit's ruling is just very hard and very upsetting.

The oral argument made relatively clear that the Court is going to reverse the judgment of the Fifth Circuit and uphold the federal law at issue. That is because--whatever the level of abstraction at which "the Nation's historic tradition of firearm regulation" is pitched--the Justices are not crazy, and it is crazy to think that the Second Amendment disables the government from barring the possession of firearms by individuals who pose an obvious risk of danger to others or themselves. Determinations of consequences, which were palpably on the minds of most of the Justices yesterday, are made from the vantage point of the present, not the distant past, when the law's response to spousal abuse and related assaults was substantially more limited than it is today, and "domestic Violence" mostly referred to riots or violent disturbances within a state, as opposed to military attacks by a foreign government. See, e.g., U.S. Const. Art. IV, § 4.

But what do concerns about consequences have to do with the LAW? Everything. If one were doing traditional constitutional law instead of Bruen's revolutionary innovation, one might say that, even assuming the substance of the Second Amendment right as defined by the Court, every government in the United States has an important--indeed, compelling--interest in keeping firearms out of the hands of dangerous individuals, and that a ban on possession is substantially related to--indeed, narrowly tailored--to advancing that governmental interest. 

Accordingly, the federal government's likely victory in Rahimi is no vindication of the Court's reasoning in Bruen. As Ms. Paradis reminds us, the test of a legal doctrine is not just whether the judges responsible for it can find a way to reach the right result in a subsequent case. Rather, the test is whether the doctrine imparts seriousness and gravity to questions that are not serious and grave. The question presented in Rahimi is not serious and grave--it is exasperatingly easy. Yet, it occupies a coveted position on the Court's docket because the majority opinion in Bruen imposed an easily manipulable inquiry and deemed irrelevant the government's interests in regulation, thereby empowering willful lower courts to do what the Fifth Circuit did here. 

The proverb that "hard cases make bad law" requires a companion counsel of caution: Bad law makes easy cases hard.