We are approaching the first anniversary of January 6th. One issue that may eventually be litigated is whether Section Three of the Fourteenth Amendment applies to former President Trump. On that point, I want to present some new research that is part of a fun conversation I’ve been having with Josh Blackman and Seth Tillman. This post is longer than usual, so I will put some of it below the fold.
In my article on Section 3, I briefly examined whether that provision applies to the presidency. Of course, I had no idea (in December 2020) that this question might become important. What I said then was the following: (1) the only time the issue was raised during the debate on Section Three in Congress, the answer given by Senator Justin Morrill was that Section 3 applied to the presidency; (2) when Section 3 was discussed in Congress or on the campaign trail in 1866, the prohibition was always described in general terms and never with a presidential exception. Indeed, John Bingham at one point said that Section 3 applied to any “position, either in the National or State Government;” (3) people in 1866 would probably have been perplexed if Jefferson Davis or Robert E. Lee could be elected President but could no hold no other office under the constitutional proposal.
Josh and Seth published a paper in which they raise doubts about whether Section 3 applies to a person who only swore an oath as President (which describes Donald Trump). Here’s an oversimplified summary of their view: (1) the jurisdictional element of Section 3, which specifies which oath-takers are potentially subject to disqualification, does not specifically mention the presidency; (2) the understanding of “officer of the United States” under the 1787 Constitution and ante-bellum law was that the presidency was not included and only appointed officials were included; (3) the countervailing evidence in my paper is not enough to overcome the presumption that the original meaning applies to Section Three. In particular, they note that the Framers of the Fourteenth Amendment could have thought that there was no chance that any ex-Confederate who took an oath only as President could be subject to disqualification because there was no such person in 1866.
These are fair points. For purposes of this post, I’m going to assume that their reading of the 1787 Constitution is correct and focus only on what people thought during Reconstruction. I went back and did some additional research. The bottom line, as I will explain after the fold, is that there were many references to the President as an “officer of the United States” during Reconstruction in a way that there was not prior to 1865. Thus, I think reading Section 3 as applying to the presidency is well founded….