Saturday, November 18, 2023

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.

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