[This post is co-authored with Professor Seth Barrett Tillman]
In our view, the phrase "Officers of the United States" does not refer to the President. This was true in 1788, was true in 1868, and is true today. A common refrain from Professor Mark Graber and others is that we have pointed to no one who publicly stated that view "within a decade" of the Fourteenth Amendment's ratification. Graber has also narrowed that window to the 1860s. He wrote, "No evidence exists that any member of Congress, member of a state legislature, political activist, journalist, or hopeless crank during the 1860s thought a president was not an officer of the United States." Is the relevant time frame from 1858 to 1878 (i.e., a decade before and after ratification), from 1860-1870 (i.e., the decade of ratification), or from 1866 to 1868 (i.e., the ratification period)? Relatedly, Michael Stern wrote "there is no record of anyone else, eminent thinker or otherwise, saying" that the President does not hold an Office under the United States "in the Constitution's first two centuries." We have long faced shifting evidentiary targets, since January 6, 2021 and since the beginning of Section 3 litigation. Those who have made and relied upon these and similar categorical empirical claims took a risk: that no such statement actually existed. They made a falsifiable claim, and here in this post, we will show that the claim is false. We discussed these articles and issues in our recently-filed amicus brief before the U.S. Supreme Court.
In April 1868, the Louisville Daily Journal published a series of articles contending the President is not an "Officer of the United States" as that phrase is used in the Constitution. Albeit, these newspaper articles did not address the meaning of that phrase with respect to Section 3. Still, we submit that the text of the Fourteenth Amendment would have been well-familiar to the public during this pivotal juncture. At the time, state ratification of the Fourteenth Amendment remained ongoing. Still, even timing aside, these newspaper articles are instructive for the Section 3 analysis. Why? The newspaper articles used the same mode of analysis that we have repeatedly used to understand the meaning of the phrase "Officers of the United States": considering how the phrase "Officer of the United States" is used in the Commissions Clause and the Impeachment Clause; established practices of the government since 1788; parsing the records from the Blount impeachment trial; relying on analysis from Justice Story's Commentaries on the Constitution; and more.
