Professor Kurt Lash wrote a guest essay in the New York Times on December 29th discussing Section Three of the 14th Amendment[1]. Lash makes the claim that the text of Section Three is too ambiguous with respect to the president for us to apply it to former President Trump. As readers likely know by now, I’ve spent the better part of the last five months familiarizing myself with both the arguments and the historical materials on this matter, and I recently submitted a paper discussing my findings on SSRN on one important part of the debate here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4668398. My conclusions are as follows:
First, the words of the Constitution alone simply do not give us a clear answer as to who, or what, an “officer of the United States” is. Lash and others have repeatedly made the claim that the Appointments and Commissions clauses in Article Two of the Constitution show that the president isn’t an “officer of the United States,” but he and others only give you half the story. Several other provisions in the Constitution, such as the Emoluments Clause, the Incompatibility Clause, as well as Article 6’s oaths and religious qualifications provisions all use broad language around offices—just as Section Three of the 14th amendment does—and all of these other provisions are clearly written to include the President. But because they muddy their argument, these other clauses in the Constitution are conveniently always left out. As I demonstrate in my paper, it turns out that when you look at all the relevant provisions in the Constitution, you quickly end up in a constitutional black hole that not only doesn’t answer who an officer is, but it debilitates many of the most important intentions of the document itself.
Second, if the words of the Constitution alone don’t tell us who an “officer of the United States” is, then that means we need to look for historical evidence from the founding era and successive generations to help us answer our question. When you do that, you see overwhelming historical evidence that whatever definition they did have for the term “officer of the United States,” it always included the president. Reviewing all the arguments and canvassing all the materials that have been unearthed on this topic clearly demonstrates that the ambiguity Lash and Co. claim exists does so only because they have manufactured it themselves. Lash’s recent essay, however, goes too far with some of its claims, and need to be responded to.
First, Lash states “when Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president.” It’s hard to understand how he can say this with a straight face. It appears that Lash’s subtle use of the word “loyal” in front of “Americans” may be how he does so, but he surely knows what once the south re-entered the Union, the clear dividing line between who was “loyal” and who wasn’t was naturally going to get a lot blurrier. In his own essay Lash himself cites Thaddeus Stevens as saying “without a properly worded Section 3, ‘that side of the House will be filled with yelling secessionists and hissing copperheads’ — a reference to Northern Democrats who had opposed the Civil War.” So, Stevens and other Republicans were worried about former rebels getting elected to congress, but not to the presidency, the highest office in the land? The enormous efforts Republicans undertook to keep rebels out of both state and national governments renders that logic almost unfathomable.
Lash then says:
It is possible to read Section 3 as impliedly including the office of president as one of the “civil” offices “under the United States” covered by the general catchall provision. It would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers, but the text is ambiguous enough to make this a possible reading.
However, if the framers meant the catchall provision to include presidents and postmasters, they were remarkably negligent. According to longstanding congressional precedent and legal authority, the phrase “civil office under the United States” did not include the office of president of the United States. As Joseph Story explained in his influential “Commentaries on the Constitution of the United States,” the congressional precedent known as Blount’s case established that the offices of president, senator and representative were not civil offices under the government of the United States; they were the government of the United States. The phrase “civil office under the United States” referred to appointed offices.
First, one of the things that is clear from the words of the Constitution is that the president holds an office. It says this over and over again in Article 2[2]. And a person who holds an office is an office-er. The very nature of the words themselves lend you to this conclusion, and this is exactly the conclusion the framers came to as well. Lash’s claim of ambiguity would require us to believe that the presidency is an officer-less office. This is the kind of hyper-textualist argument that makes the whole notion itself look absurd.
It’s true the president is commander in chief of the armed forces, but the framers’ fears about standing armies and the potential abuse of them—even from Washington—led to them leaving control of the army in a civil, elected, official (in this case the president). The presidency is indeed a “civil office under the United States.”
Second, it's not clear why it’s odd to “stuff the highest office in the land into a general provision.” Isn’t a broader catch-all provision a cleaner way to approach this question than to list every possible category of officers subject to the provision? When Treasury Secretary Alexander Hamilton was asked to return to Congress with a list of the officers whose salaries needed to be paid in 1793, he replied with a 90 page document. And that was in 1793. Think how long a list would have been in 1866 had the framers of the Fourteenth Amendment not chosen to “stuff” all officers into one “catch-all” provision.
Members of congress on the other hand are listed separately because of exactly the reason Lash failed to note in his mentioning of the Blount impeachment case: senators (and likely by extension, House members) were deemed in that case not be “officers of the United States.” And since presidential electors are not officers either, they too needed to be listed separately in Section Three.
This is not sloppy drafting. It’s only sloppy if people at the time, or in the generations before 1866, did not think the president was an officer. My paper clearly demonstrates that this was not the case. Whatever definitions people had for “officer of the United States” both before and during Reconstruction, it always included the president. It’s only recently that some current scholars that have pushed this argument so fervently. Even if Lash was right and there was some hidden consensus that the president wasn’t an officer of the United States before Reconstruction, the 14th Amendment amends the Constitution, and if those framers clearly intended to include the president as an “officer of the United States,” that’s really all that matters. The latest drafting in a legal document overrides and supersedes what came before it, and the Constitution is no different.
Third, by Lash’s logic, the Emoluments[3] and Incompatibility[4] Clauses, as well as the prohibition on religious qualifications for office[5] in the Constitution ought to be viewed as equally sloppy. By Lash’s reasoning, if the presidency was not a “civil office of the United States,” he or she could accept gifts from foreign officials, hold a position in Congress while being president, and also be subject to a religious qualification test before being allowed to take office. This is nonsense. As Attorney General Stanbery said of the question “who is an officer of the United States” in discussing Section Three in 1867, “the term officer is used in its most general sense, and without any qualification, as legislative, or executive, or judicial and, I think, as here used, it was intended to comprehend military as well as civil officers of the United States who had taken the prescribed oath.”[6] There’s simply no reason to think this excludes the presidency. Ambiguity only exists here if you force it.
Equally ambiguous are the terms “equal protection of the laws,” “privileges or immunities,” or “due process of law” elsewhere in the Fourteenth Amendment. Should we just not even try to enforce these words in the Constitution because they’re not completely crystal clear either? As we all know by now, courts have not cut and run from attempting to decipher the meaning of these terms, but instead have at least tried to decipher their meaning for over 150 years. Why would we treat Section Three differently just because we don’t use it as often?
It turns out that Section Three’s lack of use historically is for a very good reason: it’s rare that we deal with insurrection at all, let alone when a former president appears to have “engaged” in it.
Lash’s references to both the impeachment trial of Senator William Blount in 1799 and to Joseph Story’s discussion of that trial are also both very misleading. The Blount case in no way established that the president was not an officer of the United States. It specifically dealt with whether a senator was a “civil officer of the United States.” But actually, if you read the arguments during the trial, in trying to demonstrate that a senator was or was not a “civil officer of the United States,” both sides attorneys explicitly state that the president IS an officer of the United States. In his opening arguments in the Blount Impeachment trial on January 3rd, 1799, prosecuting attorney James A. Bayard said the following about the president:
It is clearly not true that he (the president) commissions all officers of the United States. He is an officer himself, and so expressly denominated throughout the 2d article, and yet he has no commission. It is equally clear that the Vice President is an officer, and yet not commissioned.[7]
Then the next day on January 4th, Senator Blount’s defense counsel Alexander Dallas said the following:
The Constitution declares, that ‘no person holding any office of profit, or trust, under the United States, shall, without the consent of Congress, accept of any present’ etc. May the President, Vice-President, and members of either branch of the Legislature, being, as it is said, officers of the United States, accept a present, or a title, without the consent of Congress?[8]
And then:
By the 6th Article of the Constitution it is provided that ‘the Senators and Representatives before mentioned, and the members of the several State Legislatures, and all Executive and Judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office, or public trust under the United States; Now, is it reasonable to interpret this article, so as to require the political test only from officers of the United States, that is from the President and members of the Legislature, and not from officers under the United States that is from persons appointed by the Executive? Or so as to exempt officers under the United States, that is, officers appointed from the Executive, from the religious test, while such a test may be exacted from the President and members of the Legislature, under the description of officers of the United States? This cursory analysis is a sufficient refutation of the distinction which has been attempted on a mere quibble, or play of words.[9]
And again:
Does the President nominate or commission Senators or Representatives? No; nor does the Constitution, in any part of it, term them officers, or call their representative station an office. But the honorable manager has said, that the latitude which this position extends would render it necessary that the President should issue a commission to himself, to the Vice-President, and to the Speaker of the House of Representatives, since they are all expressly denominated officers. The Constitution, however, is not chargeable with this absurdity. The President and VicePresident have their commissions expressly from the Constitution itself.[10]
Dallas could have easily taken the opportunity in several instances to say that neither the president or vice-president are “officers of the United States,” constitutionally speaking. But he does no such thing, and instead, he specifically says in several cases that both the president and vice-president are officers of the United States. Dallas’s co-counsel, Jared Ingersoll, who was also a delegate at the Constitutional Convention in 1787, reiterates this in his own arguments the next day. In no way does the Blount case establish the president as not an “officer of the United States.” If anything, it establishes that the president is an “officer of the United States.”
Lash’s representation of Story’s comments about the Blount case are equally problematic. Notably, Lash does not include Story’s passage from his Commentaries[11] discussing this matter, but only cites it in support of his argument. Lash’s unwillingness to even cite the actual passage is likely done for good reason though: in the very comment he cites, Story calls the president an officer. The passage he is likely referring to is the following:
§ 793. A question arose upon an impeachment before the Senate in 1799, whether a senator was a civil officer of the United States, within the purview of the Constitution; and it was decided by the Senate that he was not; and the like principle must apply to the members of the House of Representatives. This decision, upon which the Senate itself was greatly divided, seems not to have been quite satisfactory (as it may be gathered) to the minds of some learned commentators.1 The reasoning by which it was sustained in the Senate does not appear, their deliberations having been private. But it was probably held that "civil officers of the United States " meant such as derived their appointment from and under the national government, and not those persons who, though members of the government, derived their appointment from the States, or the people of the States. In this view, the enumeration of the President and Vice-President, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the clause of the Constitution now under consideration does not even affect to consider them officers of the United States. It says, "the President, VicePresident, and all civil officers (not all other civil officers) shall be removed, &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States. Other clauses of the Constitution would seem to favor the same result, particularly the clause respecting appointment of officers of the United States by the executive, who is to "commission all the officers of the United States;" and the sixth section of the first article which declares that " no person holding any office under the United States shall be a member of either house during his continuance in office;" and the first section of the second article, which declares that " no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."2 It is far from being certain that the convention itself ever contemplated that senators or representatives should be subjected to impeachment; and it is very far from being clear that such a subjection would have been either politic or desirable.
There’s several things to highlight here. First, Lash mistakenly equates Story’s reporting of the Blount decision’s logic as Story’s own views. This is not the case. Story actually goes to great lengths to distance himself from the Blount logic. He says “the reasoning by which it was sustained in the Senate does not appear, their deliberations having been private,” and “the Senate itself was greatly divided,” and then “it was probably held that…” and then most importantly, when discussing the argument that the president and vice-president were “contradistinguished from, rather than as included in the description of civil officers of the United States,” he says “in this view,” not “in my view,” or “in my opinion.” If none of that was clear enough, he immediately goes even further to extradite himself and clarify that this was a discussion of the Blount case, and not his actual views of its merits:
§ 805. It is not intended to express any opinion in these commentaries as to which is the true exposition of the Constitution on the points above stated. They are brought before the learned reader as matters still sub judice, the final decision of which may be reasonably left to the high tribunal constituting the court of impeachment when the occasion shall arise.
Even if Lash was right and this was Story’s real interpretation of the Appointments and Commissions clauses, Story still calls the president and vice-president “officers” in the very passage he says supports his case. Story says: “In this view…the enumeration of the President and Vice-President, as impeachable officers…” Thus, Story seems to say that even if one wanted to read the Appointments and Commissions clauses the way Lash does, this doesn’t mean the president and vice-president aren’t officers of the United States. Instead, under this reading, Story seems to agree with what both James Bayard and Alexander Dallas said in the Blount case, which was that the president and vice-president get their commission as officers directly from the Constitution itself (in Article 2).
Story’s other comments on this question throughout his Commentaries make clear that he thinks the president is an officer of the United States. Consider just a few:
§ 627. The truth is, that the States can exercise no powers whatsoever which exclusively spring out of the existence of the national government, which the Constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a President. Each is an officer of the Union, deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, nor controllable by the States. It is no original prerogative of State power to appoint a representative, a senator, or President for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion of the people. Before a State can assert the right, it must show that the Constitution has delegated and recognized it. No State can say that it has reserved what it never possessed.
And then even more concretely:
§ 789. The fourth section of the second article is as follows: "The President, Vice- President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. "
§ 790. From this clause it appears that the remedy by impeachment is strictly confined to civil officers of the United States, including the President and Vice-President.
If Story truly agreed with the logic of the Blount case, it seems highly unlikely he would have made such clear statements about the officer status of the president so many places elsewhere in his Commentaries. Why not use another term instead if you didn’t think the president was an officer? Some have suggested that there’s a difference between the term “officer” being used colloquially and constitutionally. But to say that Story was talking about the term colloquially in all these passages but “constitutionally” only in the one dealing with the Blount case simply doesn’t make sense. Story’s Commentaries are a line-by-line discussion of the Constitution itself. Everything he says in this book should probably be interpreted as him speaking “constitutionally.” To further drive home the point, even after this discussion of the Blount case late in his Commentaries, he subsequently cites the veto message of President Andrew Jackson on the National Bank in 1832, where Jackson stated:
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the President is independent of both.
Jackson clearly includes the president as a “public officer” in that remark.
In perhaps Lash’s most bold claim, he states:
Actually, we have no idea whether the ratifiers shared Mr. Johnson’s initial presumption. This is because no one has discovered a single example of any ratifier discussing whether Section 3 included the office of president of the United States. Despite extraordinary efforts by researchers, no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people’s right to choose their president.
Lash’s construction of this paragraph is disingenuous. By now more than enough evidence has been put forth demonstrating that people widely believed Section Three applied to the president. It may be the case that Lash is trying to be cute with his repeated use of the word “ratifiers.” He doesn’t specifically say who he means by this, but given he cites an important exchange during the senate congressional debates directly above this comment, presumably he’s including members of congress as “ratifiers.” Though he belittles it, the exchange Lash himself cites is arguably the reference that should resolve all “ambiguity” here. But again, for good reason, he chooses not to tell you what was actually said. On May 30th, 1866, after all the language changes to Section Three were completed, the following exchange took place[12]:
Senator Reverdy Johnson: But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President.
Senator Lot Morrill: Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States."
Senator Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives. But I submit to the Senate whether it is advisable, whether it is politic, looking to the end which we all seek to accomplish, the true restoration of the Union, a union of hearts as well as a union of hands, that you should exclude the large mass of people from participating in the honors of the Government who will be excluded by this provision.
This exchange makes it clear at least two “ratifiers” of Section Three thought it included the president, and since no one said anything else about this after, presumably the point was made clear to everyone else listening on the Senate floor as well. Why would any other “ratifier” need to say thing further about this question after this?
Further evidence Section Three was widely believed to include the president can be found from newspaper accounts both around the time of the ratification of the Fourteenth Amendment, as well as when amnesty was being debated early in the 1870s. In several posts on the law blog Balkinization, Professor Gerard Magliocca has extensively demonstrated this. A few examples:
Gallipolis Journal (Feb. 21, 1867) (stating that Reconstruction without Section Three "would render Jefferson Davis eligible to the Presidency of the United States").
The Milwaukee Sentinel (July 3, 1867) (stating that even Jefferson Davis "may be rendered eligible to the presidency by a two-thirds vote of Congress").
The New York Daily Herald (Mar. 29, 1871) (advocating amnesty that "will make even Jeff Davis eligible again to the Presidency).
The Indiana Progress (Aug. 24, 1871): quoting by a speech by Senator Morton stating he would never vote for amnesty for Jefferson Davis and John C. Breckenridge to make them eligible "to the Congress of the United States, it may even be to the Presidency"
The New National Era (Aug. 31, 1871): stating that amnesty would make "these infamous men eligible to the presidency"
The Highland Weekly (Sept. 21, 1871): "The [Fourteenth] Amendment further provides that no rebel who had violated an official oath to support the Constitution of the United States, should ever be eligible to the Presidency."
The Public Ledger (Oct. 3, 1871: "Fred[erick] Douglass might be President. Carl Schurz cannot [he was foreign-born]. Every Southern man who lies under the ban of the Fourteenth Amendment cannot."
Urbana Citizen and Gazette (Apr. 25, 1872) (stating that amnesty would make Jefferson Davis "eligible to a seat in the Senate, or to the Presidential chair itself").
The Tiffin Tribune (July 18, 1872) (quoting John Bingham's speech declaring that Jefferson Davis and other Confederate leaders "should never hereafter be permitted to be President")..
Chicago Tribune (May 24, 1872): stating that the Amnesty Act made "Alexander M. Stephens, the Vice President of the Rebel Confederacy, eligible to the Presidency of the United States."
Lash’s claims in his essay are misleading across the board, and in some cases, flat out disingenuous. No precedent was established in the Blount Case that the president was not an officer of the United States. That case specifically dealt with whether a senator was a “civil officer of the United States” or not, not the president, and Lash’s failure to disclose this is highly suspect. Justice Story also did not subscribe to the logic of the Blount conclusion. If anything, the opposite was true. Both the arguments made by each sides’ attorneys in the Blount case, as well as Story’s analysis of the Blount case in his Commentaries demonstrate that the presidenc-y is an “office” and the president is an “office-r of the United States.” The president clearly holds an office under the Constitution and a person who holds an office is an office-er Furthermore, the ratifiers of the Fourteenth Amendment in Congress were not confused about whether the president was subject to Section Three, nor was the Attorney General in 1867, nor were newspapers and the people who read them at the time either.
The reality is no amount of evidence will ever be enough for people who have already made up their minds, or who are otherwise trying to promote some other agenda. The evidence that is presented, no matter how comprehensive, will always be insufficient, and the goal posts will always continue to move. Today we don’t have enough evidence from “ratifiers,” and tomorrow we’ll probably hear we don’t have enough evidence from rebels themselves that they thought they were excluded.
The bottom line is that all legal text can be ambiguous if you want it to be. But being even remotely fair to both the words and the intentions behind those words leaves you with a pretty clear conclusion: the president is subject to Section Three.
[2] The Constitution says repeatedly in Art. 2 that the presidency is an office “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President,” and “neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years…”), and that the president holds that office (“He shall hold his Office during the Term of four Years,” “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office”.
[3] Art. 1 §9: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
[4] Art. 1 §6: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
[5] Art. VI: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States
[6] Opinion of Attorney General Stanbery, under the Reconstruction Laws; May 24th, 1867; page 13
[7] See History of Congress in Annals of Congress, page 2257; January 3rd, 1799
[8] See History of Congress in Annals of Congress, page 2270; January 4th, 1799
[9] See History of Congress in Annals of Congress, page 2270; January 4th, 1799
[10] See History of Congress in Annals of Congress, page 2272; January 4th, 1799. Note here too that here Dallas appears to be implicitly arguing that anyone holding an “office” would presumably be an “officer.”
[11] Justice Joseph Story’s Commentaries on the Constitution, published in 1833
[12] The Congressional Globe, May 30th, 1866, 39th Congress, page 2899