In response to the "new source" described in Josh's recent post (and Tillman's recent amicus brief, and earlier in this short SSRN piece by John Connolly) Professor Mark Graber writes at Balkinization:
Eureka Not: The President is an Officer of the United States Redux, Redux . . .
Mark Graber
A long exhaustive search has finally found an article published within ten years of the framing of the Fourteenth Amendment that declares that the President is not an officer of the United States. Congratulations to Josh Blackman and Seth Barrett Tillman for unearthing the Louisville Daily Journal's series of pieces claiming, contrary to what President Andrew Johnson said about his job description, that Johnson was not an officer of the United States. Of course, the comment was not made in respect to Section Three of the Fourteenth Amendment, but apparently that is a trifle. A source does exist. Eureka.
Maybe not. An historian might ask, how representative is the Louisville Daily Journal and what is the Louisville Daily Journal representative of? With respect to the second question, a little newspaper search revealed that the Louisville Daily Journal was a Democratic party newspaper bitterly opposed to the Fourteenth Amendment, the impeachment of Andrew Jackson, and the possible presidency of radical Republican Senator Benjamin Wade of Ohio, the probable president if Johnson was impeached (unless Senators were not officers of the United States). Before Donald Trump was subject to disqualification, originalists thought that the Republicans who voted for the Fourteenth Amendment were the authoritative source on the original meaning of that text. Now apparently Democrats are the higher authority. I look forward to many changes in the Supreme Court's jurisprudence based on how white supremacists and former rebels described the post-Civil War Amendments (hint, black rule is constitutionally mandatory).
With respect to the first question, I decided to do two random searches. The first was the record of the Andrew Johnson impeachment. The second was American newspapers in 1868 (I used the Newspapers Archives site). For the first, I searched "officers of." For the second, I searched "officers of the United States" (I did a narrower search simply because "officers of," which got 71 hits for the impeachment, would have gotten a few thousand for Newspaper Archives, almost all of which would not have been on point. Indeed, I looked at only the first 200 of the more than five hundred hits I got).
The first finding was Common Sense 15, Blackman/Tillman 0*.
