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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Because You Can Never Have Too Much of Why Presidents are Officers of the United States
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Thursday, January 18, 2024
Because You Can Never Have Too Much of Why Presidents are Officers of the United States
Mark Graber
Apparently, the
League of Sportsmen, Law Enforcement and Defense believes that the group's interests are best served by permitting an insurrectionist to run for the
presidency. Not exactly tough on
crime. But very tough on me. A rather substantial portion of their brief is
directed toward my work on Section 3.
Significantly, the brief focuses entirely on a draft of an article I
posted on SSRN, not on the amicus brief I submitted to the Supreme Court of
Colorado, touching similar issues. The
difference is significant. As most
people know, what gets posted on SSRN are typically drafts. They often contain typos, missing
footnotes, and footnotes not fully vetted (same for Balkinization posts).
The header to my draft acknowledges that this is a particularly early-stage piece. By comparison, an amicus
brief is expected to be a final project with no typos and all footnotes fully
vetted. Unsurprisingly, the brief has
found some flaws in the draft (I have found more, new drafts forthcoming soon),
but none in the brief. More to the point,
with one trivial and one admittedly less trivial exception, the alleged flaws
are illusory. The Sportsmen’s
Brief does not dispute my claim that “the Congressional Globe for the
Thirty-Ninth Congress, 1st Session, is ‘littered with statements acknowledging
that the President and Vice President were officers.’” The point I was making in the contested paragraphs
was simple. The persons responsible for
the Fourteenth Amendment routinely assumed that Presidents and Vice Presidents
were “officers,” “officers of the United States,” and “officers under the
United States.” When members of Congress
self-consciously considered the relationship between “officer,” officer of the
United States,” and “officer under the United States,” they concluded that phrases
had the same scope and meaning, unless context clearly demonstrated
otherwise. The Sportsmen’s Brief and,
for that matter, all other briefs submitted so far, do not discuss this
Congressional Report (the crucial page is 3939). The Sportsmen do not challenge the substantial evidence that the persons responsible for framing and ratifying Section Three thought they were disqualifying all past and present officeholders from all offices. As Gerard Magliocca, many others, and I have repeatedly noted, when asked to summarize Section Three, Republicans attached no significance to "of the United States." "under the United States," or the specific form of an oath. Rather, they said Section Three disqualified any person who after taking an oath of office participated in an insurrection. No brief against disqualification challenges that mountain of evidence. My mistake, the
Sportsmen’s Brief contends, is that “most of [my] citations are to debates on
other topics in the months before § 3 came into being.” I will see the Sportsmen and raise. With the exception of a colloquy between Senators
Reverdy Johnson of Maryland and Senator Lot Morrill of Maine, which the Sportsmen's Brief graciously concedes
demonstrates that the President is an “officer under the United States,” none of the
numerous quotations I cited in the contested paragraphs were assertions by members of Congress about the proper interpretation of Section Three. The point was simply that members of Congress
routinely assumed the president was an officer of the United States when making speeches on other topics. This was a matter that went without saying. When casually or offhandedly noted in a speech, we would expect no more response
to the point than a response to the routine use int he Thirty-Ninth Congress of male pronouns to
refer to office-holders. The Sportsmen’s Brief
makes the strange claim that many of my citations have “nothing concerning the
president and vice president being officers.”
The citations in question seem to be those in which a member of Congress declares
the presidency and/or vice presidency to be an office (at least such a quote
can be found on every page in which the brief makes this complaint--the brief appears to have missed a few of those quotes). I think rather obvious that a person who
holds an office is normally considered an officer. No one claimed to the contrary in 1866. Indeed, I do not see an argument to the
contrary in the brief. The Sportsmen’s Brief
takes particular offense to one sentence in the draft: “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.’ The brief then runs
though the footnote claiming my citations do not support the proposition. Some preliminaries. Contrary to the Sportsmen's Brief, Senator Henry Wilson on
p. 915 did assert that the president was the “chief Executive officer of the
United States.” Score one for me. Senator Willard
Saulsbury of Delaware made the same assertion on p. 151 of
the appendix to the Congressional Globe (the footnote mistaken places the quote on 150. I think we should score this a draw).
The Sportsmen's Brief’s claim with respect to other sources that no member of
Congress agreed (or disagreed) with these assertions that the president was an officer of the United States is hardly surprising. As noted in the brief and in this essay, these
claims were made in passing, in speeches devoted to other matters. Again, that no member of Congress explicitly
agreed when another member used the male pronoun hardly weakens the case that
these were people firmly committed to some form of male supremacy. The brief regards as “most egregious()” my
claim that Representative Roscoe Conkling of New York quoted Attorney General James Speed, when Conkling merely
asked that a report Speed had written by read to the Senate. I will leave to readers to determine whether
Conkling quoted Speed or whether Conkling asked an officer of the House to
quote Speed makes any difference. The
more crucial point, from my perspective is that when members of Congress are
quoting President Johnson or Attorney General Speed, the footnotes generally
say so (again, a cite check is needed). There is one item in the string
footnote that the Sportsmen’s brief has convinced me should be deleted from the
final manuscript or, better yet, elaborated upon. When Senator Jacob Howard of
Michigan quoted President Johnson as declaring he was the “chief civil
executive officer of the United States,” Howard prefaced those remarks by
stating that Johnson was “adding what is not contained in the Constitution or
the laws of the land.” This is not a
quotation that declares that the president is an officer of the United States. Score one for the brief. The
brief is nevertheless wrong to think that Howard was condemning Johnson’s claim
that the president was an officer of the United States.
Howard thought the president an officer.
In the same speech, Howard spoke of “the President of the United States, who holds his office,
under the Constitution.” The general
context makes clear that Howard’s beef with President Johnson was not over the
nature of the presidential office, but over the power to determine the status
of former confederate states. Again,
readers can look at pp. 2550-51 and make their judgment. The
great joy of the computer age is no reader need rely on the Sportsmen’s Brief,
my writings, or any other account of the use of “officer” in 1866. The Congressional Globe is online. The Hein Online version (and others) are
searchable. Perform your own search
using various versions of “officer.” The
results, I predict, will be convincing beyond a reasonable doubt. The persons responsible for the Constitution
of 1866 had no doubt that presidents were officers of the United States subject
to disqualification.
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Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. 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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |