The Volokh Conspiracy
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Michael Stern Responds to Kurt Lash on The Legislative History of Section Three
As has been noted here already, earlier this month a Colorado District Court concluded that although Donald Trump engaged in the January 6 insurrection, he was not officer of the United States and so he was not covered by Section Three of the Fourteenth Amendment. The judge particularly cited a draft article by Kurt Lash about the legislative history of Section Three which argues that the presidency was either deliberately not covered, or at best that Section Three is ambiguous on this score.
Michael Stern has posted a lengthy analysis of this issue and of the legislative history that is definitely worth reading. Here is one paragraph beginning an analysis of the legislative history and especially of a statute drafted by Representative Samuel McKee:
The weight the court places on the fact that an early draft of section 3 explicitly lists the presidency and vice presidency also appears to be misplaced. A reader of the court's opinion would get the impression that a proposed amendment was introduced with those offices expressly included and then that proposal was modified to remove them. The actual drafting history of section 3 was more complex. . . .
Here is Stern on the McKee "proviso":
The initial proposal referred to by Judge Wallace was introduced by Representative Samuel McKee, a Radical Republican from Kentucky; it provided in relevant part:
No person shall be qualified or shall hold the office of President or vice president of the United States, Senator or Representative in the national congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate, who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States. . . .
Kurt Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment 10 (Oct. 28, 2023) (unpublished draft on SSRN). This proposal identified three categories of banned places: (1) president or vice president; (2) member of Congress; and (3) presidential appointee to an office requiring the advice and consent of the Senate.
As described by Professor Lash, McKee's speeches in favor of this constitutional amendment focused on the moral and symbolic principle it embodied, namely that "red handed traitors" and "unfaithful . . . men who made war upon us" should not be eligible to hold the type of prominent positions he identified. Id. at 11. To allow them such honors, McKee suggested, would be to mock the patriots who had fought and died to preserve the Union. Id. at 11-12.
Following McKee's proposal, several other proposals were considered. For example, one proposal would have deprived former confederates of the right to vote for a limited period; another would have denied eligibility to serve in the "national legislature" for a longer period; yet others permanently barred eligibility for "any office under the Government of the United States." These proposals also varied in the class of persons to whom they applied—from everyone who "voluntarily adhered to the late insurrection" to certain high-ranking confederate officials to certain former federal officeholders who "gave aid or comfort to the late rebellion" to those who had mistreated union prisoners of war. None of these proposals, however, garnered the needed support. Id. at 12-18.
At this point McKee introduced another proposal, which read as follows:
All persons who voluntarily adhered to the late insurrection, giving aid and comfort to the so-called southern confederacy, are forever excluded from holding any office of trust or profit under the Government of the United States.
Id. at 18-19.
Lash describes this as a "milder proposal" than McKee's original effort, but he cites no evidence that it was understood to be milder or that McKee intended it as such. See id. at 19. It was shorter than McKee's original proposal, but, at least to the extent relevant here, it is more expansive, not less. McKee's original proposal only covered presidential appointees who needed Senate confirmation, but his new proposal applied to "any office of trust or profit under the Government of the United States," thereby expanding disqualification to inferior officers who were not Senate confirmed. Nor, it might be added, did McKee's expressed intent in offering the new amendment exactly reek of mildness. See id. (quoting McKee's explanation that "[b]y this means we will affix the brand of treason upon the traitor's brow; and there I would have it remain until the snows of winter covered their graves").
Lash argues it is "milder" because it does not expressly mention the presidency and vice presidency, in contrast to McKee's original proposal. Id. But this is a circular argument founded on the assumption that "office of trust or profit under the Government of the United States" did not include the presidency (and vice presidency) or, more precisely, that McKee did not understand it to do so. This assumption is almost certainly wrong.
First, it would make no sense for McKee to have expanded his original proposal to include lower level federal appointees but to have excluded federal elected positions, which were the focus of his original proposal. . . . Second, it seems clear that McKee himself believed that his amendment would cover elected positions. . . . Finally, to hypothesize that McKee intended to remove the president (and vice president) from the list of banned places requires that there have been some reason for him to do so. But there appears to be no evidence that anyone objected to McKee's original proposal on the grounds that the presidency and vice presidency were included. . . .
Stern later also has this discussion of the famous Johnson-Morrill exchange about the presidency:
As we have discussed before, during the Senate debate on the final language of section 3, Democratic Senator Reverdy Johnson raised a concern that section 3 did not expressly cover the president and vice president:
Mr. 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–
39 Cong. Globe 2899 (1866) (emphasis added).
This is then followed immediately with a colloquy between Senator Johnson and Republican Senator Lot Morrill:
Mr. Morrill. Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States."
Mr. 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.
39 Cong. Globe 2899 (1866) (emphasis added).
There are two things to note about Johnson's response. First, he is not raising any doubt about whether the president and vice president hold "any office, civil or military, under the United States;" when his attention is called to this language, he immediately agrees with Morrill's point. Instead, Johnson is wondering why senators and representatives are enumerated when the president and vice president are not. As already discussed, this question is understandable because the reason that members of Congress needed to be specifically enumerated was technical and obscure enough that even a constitutional lawyer (as Johnson apparently was) might not immediately see it on a casual reading of the language.
The second thing to note is that Johnson does not suggest that there would have been any reason to exclude the president and vice president. On the contrary, he is assuming that he has found a mistake in the language (which, as an opponent of the amendment, he had an incentive to highlight).
This colloquy seems to me, at the very least, to put to bed the notion that the framers of section 3 intentionally omitted the presidency and vice presidency from the list of banned places. Lash, however, does not see it that way. He argues that "even if other members of Congress shared Morrill's understanding (and there is no evidence that they did), there was no reason to think the public shared Morrill's understanding" because "Morrill's exchange with Johnson was not reported in the press." Lash, The Meaning and Ambiguity of Section Three of the Fourteenth Amendment at 29. Further, if a respected constitutional lawyer like Morrill was confused, it follows that members of the public might be as well.
Somewhere Justice Scalia is spinning furiously in his grave. He famously opposed the use of legislative history to resolve textual ambiguity, but this goes far beyond that. It is using the fact that a senator was confused upon casual reading of a legislative text as evidence of its ambiguity, even though he quickly agreed that the text was not ambiguous. And it is suggesting that because some members of the public might also have been confused by the text (which pretty much applies to every legislative text) that itself establishes ambiguity.
That cannot be right.
And from the conclusion:
At the end of the day this is an attempt to create ambiguity out of thin air. The language of section 3's banned places is clear and applying that language to encompass the presidency and vice presidency creates no absurdity or normatively implausible results. To the contrary, this application is entirely consistent with the legislative purpose and, to the extent it can be determined, with specific legislative intent and understanding. As much as courts may want an "off-ramp" to avoid the necessity of disqualifying Trump from the presidency, this is not it.
