[This post is co-authored with Professor Seth Barrett Tillman].
On December 6, the Colorado Supreme Court heard oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an "Officer of the United States," and therefore, the President is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. The trial court's decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an "Officer of the United States" as that phrase is used in the Constitution of 1788 and Section 3.
In an earlier post, we analyzed several aspects of oral argument with regard to whether the president is covered by Section 3—that is, "Is the president an 'Officer of the United States'?" as that phrase is used in Section 3's triggering or jurisdictional clause. But we did not discuss the disqualification element of Section 3. Those who are disqualified by Section 3 cannot hold certain positions: "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." Is the presidency an "Office . . . under the United States" for purposes of Section 3's disqualification clause? Much to the consternation of our critics, we have not taken a firm position on this question. We have explained our reasoning in two articles now, but the critics are still unsatisfied. So be it. And this position is not new. We explained in a recent amicus brief from Michigan that "Since 2011, [Tillman] has expressly eschewed opining on the scope of Section 3's 'Office . . . under the United States'-language." And we don't plan to do so in this post.
But in this post, we will discuss several aspects of oral argument with regard to the phrase "Office . . . under the United States." Specifically, we will address the Jefferson Davis Horrible.
The Jefferson Davis Horrible
It is straightforward enough to argue that the presidency, as an abstract matter, is not covered by Section 3. But the optics of the argument change when talking about a particular person becoming president: Jefferson Davis. How could it be that the Fourteenth Amendment would have allowed Jefferson Davis to become President?
We refer to this position as the Jefferson Davis Horrible. This description calls back to a prominent Supreme Court case from the not-too-distant past. The defining imagery of the Affordable Care Act litigation was a green vegetable: "Could Congress force people to purchase broccoli?" Indeed, Blackman considered putting a stalk of broccoli on the cover of his book about NFIB v. Sebelius, but (wisely) abandoned that choice. The so-called broccoli horrible was effective because the Solicitor General could not draw a meaningful limiting principle: if the federal government can make you buy health insurance, why can't it make you buy broccoli? Of course, the real answer is that Congress would never make anyone buy broccoli. It was such a far-fetched hypothetical because it appealed to the basest sense of what people see as right and wrong—and disgust with green vegetables.
Professor Gerard Magliocca and others have found some newspaper articles that make the point, in various fashions, that Jefferson Davis should not be allowed to be elected as President of the United States. We can get the easy part out of the way. Jefferson Davis had served as a cabinet official, and in Congress, so he clearly held a Section-3 covered triggering or jurisdictional position, including as an "officer of the United States," and he took an Article VI oath. The only question, then, is whether the President is an "Office . . . under the United States." None of these sources actually say that Davis, if elected as President, would hold an "Office . . . under the United States." Rather, we are asked to draw an inference: because people in that era did not think Jefferson Davis should become president, those same people thought that the presidency is an "Office . . . under the United States." We do not know if any of these newspaper writers considered or were even aware of the precise text of Section 3. To our knowledge, none of these sources attempt to parse the text. At most, they rely on a gestalt: generally, Section 3 was designed to keep confederates out of office, and Jefferson Davis was a leading confederate. This is certainly an argument that newspaper writers can make, but it is not one grounded in the precise text that the Framers of the Fourteenth Amendment drafted and the states ratified.
Still, the Davis hypothetical leads to a predictable response: any reading of Section 3 that could lead to a President Jefferson Davis must be wrong. We think there are five possible responses to the Jefferson Davis Horrible. We don't specifically embrace these responses, in whole or in part. Moreover, we do not see any pressing need to address this question because whatever its answer, in the context of current Section-3 Trump-related cases, former President Trump never held any jurisdictional or triggering office—he never held a position that can be fairly characterized as an "officer of the United States" as that phrase was used in Section 3 and in the Constitution of 1788. As such, Trump cannot be excluded from the ballot based on Section 3. Nevertheless, others may disagree with our position on the scope of Section 3's "officer of the United States"-language and the Colorado Supreme Court asked questions related to Section 3's "office . . . under the United States"-language. For those reasons, below, we put forward some possible answers to the court's questions.
Response #1: Original Meaning, Not Original Intentions
As a matter of original public meaning, the presidency is either an "office . . . under the United States" or it is not. That question would not turn on the identity of any particular presidential candidate.
By contrast, the Jefferson Davis Horrible is premised on some other modality. We can call it original intentions: "Did the Framers intend to exclude the presidency from Section 3's list of disqualified positions?" We might also call it original expected applications: "Would the Framers have expected someone like Jefferson Davis to be excluded from Section 3's list of disqualified positions?" Perhaps Professors Baude, Campbell, and Sachs might call it the General Law Theory of Section 3: that is, there is some unwritten law or background principles under which the presidency is obviously covered by Section 3.
We favor original public meaning originalism. It is the meaning of the ratified text which controls, and not speculations about intentions. Justice Scalia pithily stated this approach in A Matter of Interpretation: "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended."
If Justice Scalia's approach controls, then the Jefferson Davis Horrible is irrelevant: if the presidency is not an "Office . . . under the United States," then Jefferson Davis could have become President. We recognize this argument may be unsatisfying to some. Indeed, some prominent originalists, including Professors Baude and Paulsen, have quickly jumped ship. When the going gets tough, they quickly succumb to original intentions or original expected applications, as a result, they avoid the Jefferson Davis Horrible. By contrast, non-originalists like Professor Graber have no difficulty accepting this argument based on the intentions of those who framed the Fourteenth Amendment. By contrast, our position was and remains original public meaning originalism. Still, we recognize that Judges who may not strictly adhere to Justice Scalia's methodology are more attuned to factors beyond the original meaning of the text.
Response #2: The Framers and Ratifiers of the Fourteenth Amendment were not worried about Jefferson Davis Becoming President
The Jefferson Davis Horrible resembles the broccoli horrible in one important regard. Jefferson Davis was never going to be elected President of the United States. It was not going to happen. The notion that northern states and reconstructed southern states would send Davis to the White House is about as far-fetched as Congress imposing a broccoli mandate. Professor Lash makes this point in his amicus brief:
No Reconstruction Republican was concerned about the country electing Jefferson Davis President of the United States, much less believed the Constitution must be amended to prevent such a possibility. The very idea was no more than a punchline to a joke. Tiffin Tribune, Ohio, Speech of Hon. John A. Bingham, July 18, 1872 (Joke about "President" Davis eliciting "laughter").
Those who framed the Fourteenth Amendment were worried about a lot of things. As we see it, it has not been established that Jefferson Davis' becoming President was a matter of concern.
Indeed, even absent Section 3, there was reason to believe that Davis was not eligible to become President. Davis, by becoming head of government of a "foreign" state, and then making war upon the United States through instrumentalities of that pretended government, arguably voluntarily relinquished his U.S. citizenship. And with that relinquishment, he also lost any claims to the protection of the United States government while abroad, as well as his Article II eligibility to the presidency. See 3 John Bassett Moore, A Digest of International Law § 434 (1906) (quoting Secretary of State Thomas Jefferson, in 1793, as supporting the position that voluntary expatriation is lawful); id. § 440 (quoting Secretary of State Bayard, in 1887, as supporting the position that voluntary expatriation is lawful), <https://tinyurl.com/mu424w4y>; see also, e.g., Loss of U.S. Nationality and Dual Nationality, U.S. Department of State—Bureau of Consular Affairs, <https://tinyurl.com/yeucy43n>; id., Advice About Possible Loss of U.S. Nationality and Seeking Public Office in a Foreign State (Mar. 12, 2019), <https://tinyurl.com/55p39rs9>. See generally, e.g., Robert Penn Warren, Jefferson Davis Gets His Citizenship Back (1980).
Response #3: Section 3 disqualified rebel presidential electors, which would prevent a rebel president
Professor Kurt Lash addresses the Jefferson Davis Horrible in two steps. First, he cites a proposed version of Section 3 drafted by Representative Theodore McKee that would have expressly disqualified rebels from the presidency. Second, the ratified version bars disqualified individuals from serving as presidential electors. Therefore, loyal electors would not elect a rebel President like Jefferson Davis.
Some critics have pointed out that certain people who were loyal to the confederacy were still eligible to be electors if they had not held a Section-3 listed triggering or jurisdictional position. During oral argument before the Colorado Supreme Court, Justice Gabriel asked, "Do you really think the Framers took a whole lot of comfort in the fact that the electors are going to protect us from an insurrectionist like a Jefferson Davis?" And Justice Hart asked, "if everyone chose an insurrectionist, Jefferson Davis . . . [and] the electors who were not themselves insurrectionists, chose to put him into the presidency, that would be fine under Section Three, and that would be consistent with the purposes of Section Three?"
Another related factor is that state legislatures retained the power to simply direct the electors to vote for a particular presidential candidate. Moreover, Section 3 does not expressly bar either former rebels or, even, Section-3 disqualified persons from serving in state legislatures! What this shows is that state legislative service, and by implication service in the presidency, was not the focus of attention of those who supported passage of the final version of the Fourteenth Amendment and those who ratified it.
With hindsight, we know that no former confederate was elected to the presidency—by rebel or rebel-supporting voters, by rebel electors, or by rebel state houses. Indeed, as history reveals, a Southerner was not elected President for about a century! But hindsight is always 20/20. And this retrospective argument may not account for what was anticipated in 1868.
We think Professor Lash has articulated a rational basis to explain the fact that the President is not expressly mentioned in Section 3. Whether Lash's position is or is not deemed ultimately correct, we leave for him and others to decide.
Response #4: Section 3 was a compromise that did not accomplish everything the Radical Republicans wanted
The drafting history of Section 3 is complex. There were two primary approaches for dealing with former confederates. The Radical Republicans favored disenfranchising those who had engaged in insurrection. The more moderate members of Congress favored not stripping the franchise from former confederates, but would have disqualified certain insurrectionists, i.e., those who had taken oaths to support the U.S. Constitution in connection with their holding certain positions, from holding other positions. The list of positions triggering Section 3 disqualification was not identical to the list of positions from which such a person was disqualified. It is unfortunate that some litigants, as well as scholars, quote from the drafting history of Section 3, without indicating whether the discussion concerned the earlier disenfranchisement-related version or the subsequent (and ratified) disqualification-related version of Section 3. It is sometimes difficult to disentangle the two threads.
What we do know is that the Radical Republicans did not get everything they wanted. Instead, the more moderate disqualification provision was ultimately adopted. And Section 3 was, in every sense, a compromise. Section 3's triggering or jurisdictional clause did not apply to all people who had taken an oath to support the Constitution. Rather, Section 3's triggering or jurisdictional clause applied to a specific set of enumerated federal and state positions, including the "Officers of the United States." And disqualification did not extend to every position in the federal and state governments. Rather, those facing Section 3 liability were disqualified from holding a specific set of enumerated positions, including any "Office . . . under the United States." Both of these phrases were used in the Constitution of 1788. And the Framers of Section 3 made use of that language, which was already available to them. Such language would spur support for passage: it showed that those who put forward Section 3 were not radicals, but were intimately connected to 1788 and our enduring legal tradition. Such language illustrated continuity and authenticity. Perhaps the radicals would have liked to disqualify the waterfront of positions, but they were not in control. Indeed, nothing would have been simpler than choosing language that disqualified any person who had taken any oath to support the Constitution prescribed by any state or the federal government in connection with any public position, who participated in an insurrection or rebellion from holding any state or federal position. Nothing like that ambitious language was used. And now we are left to figure out the contours of the actual compromise that was agreed to.
Response #5: Section 3, which was modeled after the Impeachment Disqualification Clause, does not disqualify a person from holding the presidency
During oral argument before the Colorado Supreme Court, Justice Márquez puzzled over why Section 3 would cover almost everyone, except the President. She asked, why would the Fourteenth Amendment "punish those who break the lesser oath, but exempt persons who break the arguably more serious oath to preserve, protect and defend?" She inquired, "What is the rationale for that type of exclusion?" Later, Justice Márquez observed that she "read a lot of briefing over the last couple of weeks," but "saw no rational reason for that type of an exclusion." She asked Trump's counsel, "Can you come up with a rational basis for excluding either the office of the presidency or someone who swore an oath as a president?" Relatedly, Justice Gabriel asked, "How is it not absurd to say, anybody who engaged in insurrection can't serve an office . . . except the President or former president or vice president or former president? How is that not absurd?"
There is a straightforward rationale why the Framers did not include the president among the list of triggering or jurisdictional positions giving rise to disqualification—that is, the President is not an "Officer of the United States." We make this point in our amicus brief:
As the District Court acknowledged, President Trump was "the first President of the United States who had not previously taken an oath of office." Dist.Ct. at ¶313 n.20. All prior Presidents had taken some other oath. There would have been no reason for those who framed and ratified the Fourteenth Amendment to discuss a person who (1) was elected as President, (2) but had never before taken any other constitutional oath, (3) and then engaged in insurrection, (4) and then sought re-election.
The Framers were not omniscient, and they had no reason to consider this very particular train of events.
What would be the rationale for why the Framers did not include the presidency among the list of disqualified positions—that is, the President is not an "Office . . . under the United States"? We think this question is more difficult, as the Framers could have conceived that a former rebel could run for President. Even if the Jefferson Davis Horrible was more of a punchline than a legal argument, members of the Colorado Supreme Court still had a valid basis to ask for a rationale of why the presidency would not be considered an "Office . . . . under the United States."
Here we propose a response that is premised on the Constitution's Impeachment Disqualification Clause. It provides, that "[j]udgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." (We discuss this provision in Part IV of our series.) And there is a rational explanation why the President would not be included in this language. The President is the only figure elected nationwide. Many components must concur for that one position: the state legislatures, the electoral college, the joint session of Congress, and so on, to say nothing of local officials who enforce election law. In order for a person to become President, those elements must coalesce around a candidate. Indeed, the notion that Congress could impose a permanent disability on who can run for President more closely resembles a parliamentary government, in which members of parliament select a prime minister.
During the Trump impeachments, we argued that if Trump was disqualified—which only requires a simple Senate majority vote (albeit, after an impeachment conviction vote by ⅔)—he would only be barred from holding an appointed position, but could serve as President again. And there is some historical evidence to support our position from the Blount and Belknap impeachment trials. But beyond that historical evidence, there is a broader point: a fleeting simple majority in the Senate should not be able to perpetually disqualify the people from voting for the President of their choice. The question of what is an impeachable offense, to say nothing of what is an insurrection, will sometimes be vigorously contested. Those who support the President may see an impeachment trial as a partisan sham—a "witch hunt" in the parlance. And those who vote to impeach and convict may have ulterior motives for convicting. What is a "profile courage" for some may be a sell-out for others. Indeed, those who vote to disqualify may pay a political price from constituents who disagree with their decision. Honest disagreement about the legal and factual basis of a Senate impeachment conviction and disqualification is not limited to members of the Senate. The public may also have views rooted in high principle. We think the Johnson impeachment and his subsequent election to the U.S. Senate illustrate this dynamic—especially in light of his narrow acquittal in the Senate. To use the second Trump impeachment trial as an example, several members of the President's own party voted to impeach and convict him. Needless to say, those members no longer represent the mainstream views of their party—some of those members have decided not to run for reelection or were defeated in primaries. And despite everything that happened over the last four years, Trump is still the leading candidate for the Republican ticket, and he is leading in some polls for the presidency itself.
We realize our understanding of the Impeachment Disqualification may be unsettling to some. But the events of the last few years demonstrate the difficulty of having government officials—including courts—decide who can run for President.
The language of the disqualification element of Section 3 tracks the language of the Impeachment Disqualification Clause. Both provisions prohibit a person from holding an "Office . . . under the United States." In the NYU Journal of Law & Liberty, we explained that "it is reasonable to infer that the Framers of Section 3's disqualification element may have relied on" the Impeachment Disqualification Clause "that barred certain officials from holding certain positions." We cannot be certain that members who proposed Section 3 in 1866 consciously relied on the coordinate language in the Impeachment Disqualification Clause. It is not unreasonable to think that they did. In 1788, the Impeachment Disqualification Clause barred an impeached former officeholder from holding appointed positions in all three branches of the federal government. Such a person was not banned from service in state government—including positions such as member of a state legislature, which could ratify proposed amendments to the U.S. Constitution, and governor, who, in the event of a vacancy, could make temporary appointments to the U.S. Senate. Indeed, a person disqualified by the Senate was still eligible to be elected to the House and Senate. Senator Matthew Carpenter explained that the purpose of the Impeachment Disqualification Clause was to make Senate removal by impeachment effective. Absent disqualification, after the Senate removed an officer, the President could re-appoint that person to the same office or appoint that person to a different office. The purpose of the clause was to block appointments after disqualification, not to block a subsequent election. If Senator Carpenter's explanation for the purpose of the clause is correct, then that supports the inference that the clause's "office . . . under the United States"-language does not cover the presidency. (For those who are curious, Senator Carpenter was a prominent Supreme Court advocate, who litigated Ex parte Garland, Ex parte McCardle, the Slaughter-House Cases, and Bradwell v. Illinois.)
Where does that leave our analysis? If the phrase "Office . . . under the United States" in the Impeachment Disqualification Clause" did not extend to the presidency, it could be reasonably argued that the phrase "Office . . . under the United States" in Section 3 did not extend to the presidency. We stop short of fully embracing this argument—no doubt to the continued consternation of our critics—precisely because of the possibility of linguistic drift with regard to the phrase "Office . . . under the United States" between 1788 and 1868. But the broad text- and history-based response outlined above does provide one possible explanation (even if not a full-fledged rationale) to the questions posed by members of the Colorado Supreme Court.
If there is a clear constitutional limitation on who can run for office—age, residency, citizenship, and so on—those limitations should be vigorously enforced. But where the limitation is ambiguous, or where there is some good evidence the limitation does not apply, we should let the democratic process operate.
***
It is likely that our responses will not address all facets of the Jefferson Davis Horrible. But they suffice to surmount any argument premised on the absurdity doctrine. Scalia and Garner tell us, "[t]he absurdity must consist of a disposition that no reasonable person could intend." Something that "may seem odd . . . is not absurd." The positions articulated above are reasonable ones. (We discuss the absurdity doctrine in Part V.H of our article in the Texas Review of Law & Politics.) It is telling that the challengers never actually invoke the literature on absurdity; they simply conclude a position is absurd and work backwards to explain why. And such is the story of our past decade. For far too many, even among purported originalists, the usual rules about textualism and originalism go out the window because some conclusions are viewed as unpalatable to those who absolutely know what the Constitution really means. The Jefferson Davis Horrible has some purchase, but it is not the dispositive argument that many claim it to be.
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