Natelson on the Offices and Officers of the Constitution in 1788 and 1868

"Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases."

Rob Natelson is one of my favorite originalist scholars. When he writes something new, I will read it. And I think very, very carefully before I disagree with him. His careful writing and meticulous research is well-regarded. Natelson's scholarship has been cited by Chief Justice Roberts, and Justices Scalia, Thomas, and Alito.

I was very pleased to see that Natelson published an op-ed on the Section 3 debate in the Epoch Times. And Natelson provides some support for the Tillman/Blackman position that the President is not an "Officer of the United States" for purposes of Section 3.

The Constitution of 1788 uses two distinct phrases: "Officers of the United States" and "Office under the United States." Natelson concludes, "substantial evidence . . . suggests" that the phrase Office under the United States "doesn't include elected offices, such as senators, representatives, the vice president, or the president."

I am grateful that Natelson offered praise for the work of my dear colleague, Seth Barrett Tillman:

Over a decade ago, Seth Barrett Tillman, an American legal scholar working in Ireland, noticed that the use of these "office" phrases isn't haphazard. He found patterns. These patterns appear both in the drafting process and in the finished Constitution. Mr. Tillman also identified other historical facts consistent with the patterns.

Since that time, Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases.

In 2014, I gave a lecture on my ACA book at Stanford. Judge Michael McConnell was kind enough to host me at his home for a lovely dinner. Will Baude, who was then a fellow at Stanford, attended. Over dinner, we were discussing some of the most important, and under-appreciated originalist scholars. Our discussion immediately turned to Professor Tillman in Ireland. Indeed, in 2016 Baude wrote that "Professor Tillman's theory makes sense of patterns that most of us never saw." Natelson, Baude, and I all recognized Tillman's gift: he sees what us moderns cannot. And Tillman saw all of this long before Trump came on the scene. His position has remained consistent for some time. I am grateful to have worked so closely with Seth for the past seven years or so.

Natelson explains that our position about "Officers of the United States" and "Office under the United States" is "back[ed] . . . up with a fair amount of proof." Natelson highlights six items.

First, the phrase "Office under the United States," Natelson writes, "was the obvious successor to the extremely common British term 'office under the Crown.'" And this phrase has for centuries refered only to appointed positions. Natelson observes that "[a]s former subjects of the British Empire, members of the founding generation had heard and used that expression all their lives." It may be that people today are unfamiliar with this phrase. But, Natelson reminds us, "We must never assume the Constitution's ratifiers didn't understand a legal phrase in a legal document as important, as closely examined, and as widely discussed as the Constitution." (Tillman and I discuss the phrase "Office under the Crown" in Part IV of our ten-part series.)

Second, Natelson focused on the Commissions Clause, which provides that president "shall Commission all the Officers of the United States." He observes that "commissioning yourself" would be "awkward." Natelson writes that "no one has ever seriously suggested that the president must commission himself or other elected officials." Well, that's not exactly right. More than a decade ago, Professor Sai Prakash suggested that the President should commission himself and that such commissions may exist. Prakash wrote, "That no physical evidence of such a commission exists, however, certainly does not prove that the President never issued one." I do not know if Prakash still holds that position. Professors Calabresi and Attorney General Mukasey have also cited the Commissions Clause as proof that the President is not an "Officer of the United States." Natelson likewise observes that "the president must not be an 'Officer of the United States.'" (Tillman and I discuss the Commissions Clause in Part III of our ten-part series.)

Third, Natelson points to the Impeachment Clause, which authorizes impeachment of "The President, Vice President and all civil Officers of the United States." He writes that "If the president and vice president were officers of the United States, there would be no need to list them separately." Again, this position is not new. Justice Story articulated this same textualist argument in his Commentaries.

Fourth, Natelson observes that "[t]he Constitution treats the oaths of the president and members of Congress separately from the oaths of 'Officers of the United States.'" The Article VI Oaths Clause provides oaths for "Officers of the United States." The President does not fall in the aegis of this language. This fact is supported by the fact that he has a separate oath provision in Article II. (This argument stands apart from whether an oath to "support" the Constitution is distinct from an oath to "protect and defend" the Constitution.)

Fifth, Natelson turns to the Foreign Emoluments Clause, which applies to those who hold an "Office . . . under the United States." Natelson, relying on Tillman's scholarship, remarks that "President George Washington accepted such gifts without any public objection," as did Thomas Jefferson. Natelson concludes that this history "suggests that the members of the founding generation didn't think of the president as an 'Office under the United States.'"

Sixth, Natelson points to the Hamilton document from 1791. He observed that "Hamilton's list included all appointed positions. It excluded all elected ones, including the presidency." We have said enough about the Hamilton document. And to our knowledge, no one has responded to our analysis. Natelson acknowledges that "the Tillman–Blackman evidence from the 1790s does have the virtue of being uncontradicted."

Next, Natelson turns to the Fourteenth Amendment. He observes that Section 3 uses the same phrases that are used in the Constitution of 1788: "Officers of the United States" and "Office under the United States." And he offers a rule of legal interpretation: "when an amendment uses a word or phrase from the original Constitution, we should presume that the amenders used the phrase the same way the original Constitution does." This approach should not be controversial. In Heller, Justice Scalia interpreted the phrase "keep and bear arms" in the Second Amendment by looking to "historical background," including similar provisions in the English Bill of Rights and the early state constitution. Applying this rule, Natelson writes, "suggests that 'office under the United States' in the 14th Amendment means the same thing as in the original Constitution." He adds, to his "there's no strong evidence to the contrary." Natelson concludes, "the president isn't an "officer under the United States" in the original Constitution, then he's not one in the 14th Amendment, either." And, Tillman and I have explained, in the Constitution of 1788 and Section 3, the phrase "Officers of the United States" does not include elected officials.

***

Natelson responds to the charge from the Colorado Supreme Court, and Professors Baude and Paulsen, that the Blackman/Tillman position amounts to a "secret code." Rather, Natelson explains, the Framers of the Constitution "were highly skilled legal drafters who knew what they were doing." The Constitution has "no 'secret' meanings—even if modern writers ignorant of 18th-century conditions might think it did."

In recent months, former-Attorney General Mukasey and Professor Steve Calabresi have advanced our position: that the President is not an "Officer of the United States." Now, Rob Natelson has joined the fray. There is no "secret code."

Comments

[MeanGene]

But, however "officers" etc. in the Fourteenth Amendment are defined, can a state use that Amendment to keep candidates off the ballot in a party primary election? Are party primaries "public" (state) elections? Or are they party selection processes? If the Fourteenth Amendment can be used to keep parties from nominating certain people (using primary elections) for public office, can candidates for party positions like central committeeman, etc. be so disqualified?

[ah....Clem]

Good question. Colorado's and Michigan's Supreme Courts came to different conclusions. It may well vary state-by-state and if that is the case the SCOTUS is unlikely to intervene.

And, speaking of the SCOTUS, my prediction is that they will remand the Colorado eligibility decision without ruling on it. It's extremely unlikely that there are five votes to uphold, and an easy way around having to deal with it is to remand. I'll further predict that the SCOTUS will present a bunch of arcane and esoteric questions for the Colorado court to adjudicate, with the practical effect that the case becomes moot. The cynical side of me thinks that this will be intentional.

[Krayt]

I would suggest the opposite. It's clear the goal is to get him kicked from a sufficient number of purple states, so he cannot possibly win the election. This number is rather low.

And so you have 50 rolls of the dice to control the next election. Unlike Civil War southern vets, there is no national concensus on the status.

And that it's the Nth attempt of many to git him gone is great evidence of political motivation, and no disinterested concern for democracy or rule of law. That would be a great reason for the SC to stamp it one way or the other for the nation as a whole.

[Dr. Ed 2]

I don’t think there will be a next election if the Dems win this way.

Maine’s worth watching — Bellows is a flatlander which used to be a hated in Maine (and still somewhat is). She was a lobbyist who got elected to the State Senate and then got SoS by a secret vote of the legislature.

A lot of people who really don’t pay much attention to politics are saying “she did WHAT?!?” and Maine still has a “good government” tradition that this flies in the face of it.

If — IF — some MAGA money goes into Maine attacking her on this stunt, and that likely will put an end to much of it.

But we are getting closer and closer to midnight….

NB: "Flatlander" -- person born in Massachusetts

[ah....Clem]

My understanding is that Michigan state election law does not allow the state to determine the eligibility of candidates for the primary while that Maine state election law does. In the general election, similarly diversity exists state-by-state. The US Supreme court generally does not get into disputes over interpretations of state laws which is why I think they might not intervene. OTOH, I can't imagine five votes to uphold the Colorado ruling so who knows?

Agree that it's probably best to have a national standard, but that seems to cut against precedent. And would normally make federalists quite unhappy.

[Stephen Lathrop]

You have to know which precedents actually apply. When a Republican presidential victory is at stake, Bush v. Gore is all that matters. SCOTUS won't cite that case of course, because it was a ticket good for only one ride. They will use the same principle of decision.

Of course, if I have to eat those words, I will be delighted to do it.

[PaulS]

My prediction on the punt - they will rule he is to be on the ballot for primary and general election - enforcement will be up to Congress to decide on January 6, 2025......Kamela Harris - what is the VP roll?

[Kazinski]

Thornton is clear the States cannot add additional qualifications to federal elective offices or use ballot access regulations to backdoor qualifications. That argument is a 9-0 loser.

Read the whole thing but here is holding (c) from the syllabus:

"(c) A state congressional term limits measure is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. The Court rejects petitioners' argument that Amendment 73 is valid because it merely precludes certain congressional candidates from being certified and having their names appear on the ballot, and allows them to run as write-in candidates and serve if elected. Even if petitioners' narrow understanding of qualifications is correct, Amendment 73 must fall because it is an indirect attempt to evade the Qualifications Clauses' requirements and trivializes the basic democratic principles underlying those Clauses."

That of course doesn't decide the section 3 debate, but its pretty clear that however section 3 is interpreted, it will be nationwide and there won't be separate ballot access rules based on the candidates qualification for office.

[ah....Clem]

RIght. There is no "secret code".

The phrase "any office, civil or military" is quit clear despite a small but significant group of people disingenuously asserting the opposite.

Note that both the opinion and dissents at the Colorado Supreme Court soundly rejected this bit of nonsense.

[David Nieporent]

Note further that after evincing a modicum of evidence about the 1788 constitution, there's just a quick handwave about 1868 — that unless they said differently they must have meant the same thing in 1868 as was meant in 1789. But

(a) That assumes that the people in 1868 held the Blackman-Tillman view. And yet even Prof. Blackman isn't solipsistic enough to think that his/Tillman's writings could've influenced the 1868 legislators.
(b) We don't need to just guess about this; Prof. Graber has shown that in fact they did not.

[Commenter_XY]

I learned a new word today, David: solopsistic. Extreme egocentrism.

Now I am wondering how I slip that one into a work email, humorously. 🙂

[Randal]

I suggest "Please excuse my embarrassing solipsism!" as your email signature.

[Commenter_XY]

They won't get it.

[Bob from Ohio]

They used the 1789 phrase in the amendment. The phrase can not mean one thing in the original parts and another in the amendment.

[David Nieporent]

Since it's written by different people at different times, it absolutely could. What matters is what people in 1868 thought it meant.

[Michael P]

It’s a safe bet that their understanding was closer to the people 80 years before them than the people 160 years after them, especially given the accelerating rate of social changes.

[Alpheus W Drinkwater]

We don't have to bet, we have a rich historical record of the debates and discussions on the amendment. Mark Graber and others have shown that they considered the Presidency included in "any office, civil or military." I'm sorry, but Prof. Blackman et al are simply wrong.

[Randal]

Isn’t it fair to think that they primarily meant it to match the other uses of the same phrase in the same document? That is, if I were them, I would prefer the phrases to be interpreted the same way going forward, even if that interpretation didn’t match my own at the time.

I feel like this whole "let's interpret the same words and phrases differently based on our mostly psychic impression of what each generation may have thought them to mean" is about finding reasons to reach a preferred outcome more than anything else.

[David Nieporent]

.

Isn’t it fair to think that they primarily meant it to match the other uses of the same phrase in the same document?

No, it's not fair to think that. Originalism involves interpreting the words of an enactment the way they were understood at the time of their enactment. What people thought about those words 80 years earlier is not dispositive of that.

I am not saying that it's reasonable to think they meant, "Although these words meant X in 1788, we're going to use those very same words to mean Y in 1868." That, I think, would be a bizarre approach to statutory interpretation absent explicit evidence that they in fact were thinking that. What I am saying is that it's reasonable to think they meant, "Oh, these words meant Y in 1788, so when we use them in 1868 we also mean Y."

To make this simpler, forget about 1868; assume A14S3 was never enacted. The year is 2000. 100% of us think that the president is an officer, because we have not yet been enlightened by the divine revelations of Blackman/Tillman. For whatever reason, we decide to enact the language of A14S3 (as A28, obviously.) In 2002 — still pre Blackman/Tillman — we try to disqualify John Smith, a hypothetical candidate for the 2004 presidency who fits Trump's conditions of never having held an office other than president. Smith argues, "But A28 doesn't list the word president, so that can't apply to me." Could that argument possibly be viable? Of course not. We said "officer," and we all knew that the president was an officer, so we meant to include the presidency in there. It's a unanimous decision, 9-0 at SCOTUS, against Smith. (Actually, SCOTUS wouldn't hear it because it wouldn't be controversial, but leave that aside.)

A year later, Blackman/Tillman come along and say "actually, in 1788, the presidency wasn't included in that language." Does that mean Smith is now eligible for the 2004 election? It does not. Their scholarship cannot retroactively change what we meant when we drafted and ratified a provision using the term office.

It's not reasonable to think that we actually meant, "Well, when we use that language it has an indeterminate meaning; it means whatever some law professors later tell us that it meant a few centuries ago even though we don't know what that might be now."

[Randal]

The part of your hypothetical that makes it seem implausible is when we all suddenly agree with Tillman/Blackman.

If that actually happened — if we all suddenly changed our minds that the President wasn’t an officer — then yeah, I think Smith would qualify in 2004. We’d say well, we wrote “officer,” and the President isn’t an officer.

[Alpheus W Drinkwater]

"Psychic impressions" have nothing to do with it, we know what they thought on the subject. Read Graber and Magliocca, for God's sake!

[Joe_dallas]

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who,..."

Article II
Section 1
The executive Power shall be vested in a President of the United States of America.

He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Maybe Maybe not :
Included is senator or Representative or elector of the president or VP, but the "president and VP " where not included in the first phrase. the second phrase : "...., Hold any office, .. under the United States ..."

The second phrase of 14 -3 states "hold any office ... under the United States...". Article II section 1 of the constitution states the president shall "hold his office for a period of 4 years.."

The omission of the President in 14A/sec 3 would strongly indicate that 14A doesnt apply to the president while the inclusion of office under the US and the use of the term office in Art 2 sec 1 of the constitution would imply that 14a/sec 3 does apply to the president.

[Kazinski]

You are just reading out the word "under" like it doesn't exist.

It also ignore that section 3 itself uses two different terms: "office under the United States" and "officer of the United States", and also specifies a different oath than the one the president takes.

[Joe_dallas]

Kaz - We generally agree
My only point is that the definitive answer is not nearly as definitive. My current leaning is that he is captured as holding an office under the US (ie the office of the president under art 2 sect 1).

Whether Trump was an insurrectionist is a separate topic.

fwiw - while am voted for trump twice, I am strongly against trump running again. I also think that treating him as an insurrectionist is based on a hugely distorted torture of the term insurrection. Biden's and obama's giving aid to the enemy was in many respects worse. - not a policy choice as some apologists would have it. That is another topic.

[Brett Bellmore]

The problem with declaring Trump an insurrectionist, is that in order to do so, you have to set the bar so low that at least dozens of members of Congress, and local state officials by the score, would clear it easily.

Motivated hyper-specific definitions of "insurrection" intended to capture only what Trump is accused of, and nothing else, will not prevail. Not unless the left is always in power to see to it that they do.

Is that a realistic expectation?

[Randal]

The problem with declaring Trump an insurrectionist, is that in order to do so, you have to set the bar so low that at least dozens of members of Congress, and local state officials by the score, would clear it easily.

No you don’t. You’re just being intentionally stupid again. Here’s your flashcard: “Was it an attempt to overthrow the government of the United States?”

Notably, the Civil War was not an insurrection. It was a rebellion: an attempt to escape the jurisdiction of the United States.

I get and share the feeling that Jan 6 wasn’t what the drafters of 14/3 had in mind. That doesn’t mean Jan 6 wasn’t an insurrection… it was, by any definition I’ve come across.

So you have to decide between textualism and intent-based-originalism. Do you go by what they actually wrote down, or do you go by what you feel like they probably meant?

[Rev. Arthur L. Kirkland]

Dismissing Mr. Bellmore as merely stupid disrespects his antisocial, disaffected, and bigoted attributes.

[Brett Bellmore]

"Here’s your flashcard: “Was it an attempt to overthrow the government of the United States?”"

To repeat: Motivated hyper-specific definitions of “insurrection” intended to capture only what Trump is accused of, and nothing else, will not prevail. Do you really think it's realistic to expect to enforce a definition of 'insurrection' that was blatantly designed to capture Trump, but nothing your side does, however violent?

The only way that could happen is if you managed to turn the US into a one party state, and keep it that way. Is that what you're expecting to do, that you think you can have rules so openly crafted to your own advantage?

[Nige]

'Motivated hyper-specific definitions of “insurrection” intended to capture only what Trump is accused of, and nothing else, will not prevail.'

No, it's just did a specific thing Trump did no-one ever tried to do before.

[Randal]

That's the dictionary definition, Brett... something with which you've been notably unwilling to engage. Seems like you may be the one with a motivated definition of insurrection.

[Brett Bellmore]

Now that I've drank my coffee, a more moderate reply.

I think the dividing line between insurrection and rebellion is a lot fuzzier than you're making it out to be. Both aim to displace existing authority over some territory. Rebellion more passively than insurrection.

Rebellion, technically, is the refusal to comply with existing authority, while insurrection is an attack upon it. But, for obvious reasons, they are two sides of a coin, since existing authority will try to enforce it's commands, whereupon rebellion must encompass insurrection, or surrender. Rebellion can only escape becoming insurrection where the local authorities are complicit, (Perhaps ARE the rebels!) and more distance authorities passive.

Which was to some limited extent the case with the 'autonomous zones', initially, but they all did at some point involve actual attacks against government, and so became insurrection.

So, similarly, the Civil war began as rebellion, but became insurrection when the North attempted to put down the rebellion and fighting began.

[Randal]

Ok so... then you agree Jan 6 was an insurrection.

You are slippery, Brett.

[Stephen Lathrop]

But, for obvious reasons, they are two sides of a coin, since existing authority will try to enforce it’s commands, whereupon rebellion must encompass insurrection, or surrender.

Historical exceptions to that presumption abound. Practically the whole story of the disintegration of the British Empire is against it.

[Patrick Henry, the 2nd]

> Here’s your flashcard: “Was it an attempt to overthrow the government of the United States?”

No it wasn't. It just just a riot with no purpose.

> That doesn’t mean Jan 6 wasn’t an insurrection… it was, by any definition I’ve come across.

Is that definition "I say so?" because in no definition is it an insurrection.

[Randal]

insurrection: an organized attempt by a group of people to defeat their government or ruler and take control of the country, usually by violence

[Nige]

'you have to set the bar so low'

No, you don't. You're just threatening to do that because you're a fascist who supports a man who tried to overturn an election he lost in order to stay in power.

[Noscitur a sociis]

This:

The omission of the President in 14A/sec 3 would strongly indicate that 14A doesnt apply to the president while the inclusion of office under the US and the use of the term office in Art 2 sec 1 of the constitution would imply that 14a/sec 3 does apply to the president.

seems (to put it charitably) a bit circular.

[Tim]

"This argument stands apart from whether an oath to "support" the Constitution is distinct from an oath to "protect and defend" the Constitution."

Wait... What? How?

[Tim]

My edit didn't work, so I'll reply to add:

I don't know where you'd get the idea that "The President does not fall in the aegis of this language" unless you assume the president's Article-2-specified oath is not his specified oath-to-support.

[Bruce Hayden]

The oaths are different. The President does not swear to “support” the Constitution, but rather to “protect and defend” it. This is a significant difference. His oath there provides legitimacy for much of his use of power, even arguably beyond his role as Commander In Chief. The CO court blithely said essentially that “protect and defend” includes “support”. Yet, the drafters of the 14th Amdt used the specific word “support” in terms of the oath required, when that word is not in the President’s oath of office, but is in the oath of everyone else potentially covered.

[Noscitur a sociis]

This is the Da Vinci Code school of constitutional interpretation. If you’ve reasoned yourself to the conclusion that the disqualification clause applies to the Esmeralda County dogcatcher but not the one person who is constitutionally required to take an oath of office, it’s time to take stock and start reasoning your way out.

[Alpheus W Drinkwater]

If there is such a "significant difference" in the oaths, perhaps you can provide an example of a Presidential action that protects and defends the constitution, but does not support it. Of all the arguments made on this topic, this one is surely the most facile.

[Lee Moore]

The “significant difference” between Oath A and Oath B is the difference in the actual words of the oath. There does not have to be any substantive difference between the actions that Oath A and Oath B require you to perform (or refrain from.)

Thus if Mr Drinkwater takes the Article VI oath on his appointment as Poughkeepsie Dog Catcher, and is later questioned in court on some largely unrelated matter :

“Mr Drinkwater, did you not swear to protect and defend the Constitution of the United States ?”

The correct answer is “No, I did not.”

If he is then indicted for perjury, on the basis that “support” and “protect and defend” amount to the same thing in practice, he has a copper bottomed defense. It is not necessary to argue whether and to what extend “support” and “protect and defend” are in substance the same oath, because in form, they are not. As I have mentioned before, an oath is made of words.

In Mr Drinkwater’s case, as with Mr Trump’s case, the question is not what their oaths commit them to do (or refrain from doing) but what oath they actually took. And that is a matter of words alone.

Thus even if we stipulate that by his actions or inactions on 6 Jan, Trump broke his oath to "protect and defend" the Constitution of the US, that is quite irrelevant to whether he qualifies for Section 3 by having previously taken an oath to "support" said Constitution.

The same logic will protect you from a perjury rap.

[jamesbogardus]

With respect to oaths, Article VI, clause 3 applies to "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[.]"

The Presidential Oath is set forth in a different part of the Constitution, namely Article II, Section 1, clause 8. Arguably this means the President is not included in the group "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[.]"

The language regarding prior oath-takers affected by Section 3 of the 14th Amendment closely resembles that of Article VI, clause 3: those "who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States[.]"

[Noscitur a sociis]

.

Arguably this means the President is not included in the group “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[.]”

Would you care to sketch out this argument for us?

[jamesbogardus]

Per Article VI, clause 3, Congress can by statute prescribe an oath of office for “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[.]"

The Oath of Office for the President is prescribed word-for-word by Article II, Section 1, clause 8 of the Constitution; Congress cannot by statute change the Constitution or the Oath of Office for the President set forth therein.

On the contrary, to assert that the President is one of "all executive [...] officers [...] of the United States" leads one to interpret the Constitution so as to put Article VI clause 3 into direct conflict with Article II, Section 1, clause 8. The Constitution and its statutes are not rationally interpreted to be self-conflicting unnecessarily, especially when a non-self-conflicting interpretation is readily available.

See Ex parte Garland, 71 U.S. 333 (1866) for an example of such a statute

[Noscitur a sociis]

What’s the conflict, though? Article VI doesn’t actually say anything about congress being able to prescribe the oath for the listed positions, it just says that an oath has to be taken. Article II defines the oath for the president, but unless you want to take the position that the presidential oath doesn’t entail supporting the constitution, it seems fully consistent to say that the president is one of the listed executive officers.

[Lee Moore]

Article VI says nothing about Congress prescribing the terms of the Article VI oath, but that would seem to be a fairly routine exercise of the Necessary and Proper power.

I don't see there's a direct conflict in including the President in Article VI as an officer of the United States, it's just that in practice (so far as I know) no President has ever taken the Article VI oath on assuming the Presidency (in addition to the specific Presidential oath.)

It may be that all previous Presidents except Trump had already taken the Article VI oath previously, though I don't quite see how George Washington could have managed it.

[Kazinski]

Just read the Colorado District court decision.

[Sarcastr0]

Holy shit the Epoch Times.

Had to go there and see some of his bangers:

"Why I Still Doubt the 2020 Election"
"What Does the Constitution Mean by 'Natural Born Citizen'?"
"Understanding the Constitution: The Great Forgetting"
"The New Supreme Court: Not Conservative, but No Longer Liberal"
"What the Jan. 6 Capitol Incursion Really Was"
"Abolish the CDC and NIH"

I'm sure others will be along to read your post, but I just wanted to note that you posted, on the Internet: Rob Natelson is one of my favorite originalist scholars

[Kazinski]

You like to condemn "appeals" to authority, so of course it follows you would go with the "reverse appeal to authority".

[Noscitur a sociis]

The only purpose of Prof. Blackman’s post is an appeal to authority, so noting the lack of authority seems like fair game.

[Michael P]

He listed six points in which Rob Natelson made very specific arguments where historical facts are some of the premises, and summarized those arguments. That's not an appeal to authority.

[Noscitur a sociis]

But these are just recapitulations of the same points Prof. Blackman himself has made (ad nauseam). To the extent there’s something noteworthy, it’s that Natelson agrees.

[windycityattorney]

While this is great and all – it seems a re-hash of the same old arguments.

I thought the CO Sup Ct was rather persuasive in determining the operative section applied to the President. The fact that so many steps are required to hold that it doesn’t apply…it seems a bit…strained.

It doesn’t seem far fetched to me that the drafters of the post civil war amendments goal was to keep oath breakers from the powers of government UNLESS they exercised contrition and the prohibition on them re-gaining power was lifted by Congress. Was not that the point? And if that was the point, why does it matter whether the power was one of a representative or elector or military officer or the most powerful office holder in the country?

[Krayt]

I think he counts as an officer, and have said so many times. The infraction in the effort is that, unlike the Civil War aftermath, there is no easy to see concensus he's an oathbreaker. Just more hyperbole and histrionics that we've seen in innumerable efforts to kick him, starting in 2016, long before 2021.

You could make a case it doesn't apply to the presidency because the amendment seems to be targeted at southern states sending Congressmen or Senators to Washington who may have been Johnny Rebs. Whereas the presidency is decided by the nation as a whole, the idea such a person could be elected by the nation, and it being "wrong" somehow, in the eyes of voters as a whole, is ludicrous.

[SRG2]

I don't think his supporters care. If you could prove beyond all reasonable doubt that Trump committed insurrection and that 14.3 DQd him, his supporters would point to the Trump footnote exception in their version of the Constitution. "*Trump is exempt from all Constitutional constraints and limitations, any Constitutional text to the contrary notwithstanding."

[Stephen Lathrop]

Krayt, in the face of rock-solid evidence of an attempted coup, I don't think trying to use, "easy to see consensus," as a standard to measure oath breaking is wise. You just end up proving the uselessness of the consensus.

[Bruce Hayden]

Huh? What coup? Are you talking the shutting down the counting of votes in a half dozen big cities in swing states across the country, evicting the Republican election judges, then restarting the counting? Carting in stacks of ballots, without audit trails during that restarted counting, and counting them again? Etc?

Or are you talking about the almost entirely peaceful visitation of the Capital, where they were initially escorted around the Capital by the Capital Police? Or the several hundred federal agents and several buses of AntiFA mixed into the crowds that were agitating for violence?

What we know know, after the Republicans took control over the House in January is that the J6 Investigation, utilized by the CO Cournts to find “Insurrection”:
- seriously cherry picked the video they released. >99% of the Capital video was completely peaceful that day.
- most, if not all of the violence was either instigated by federal agents (e.g. FBI) or AntiFA, or initiated by the Capital Police, without significant warning.
- AG and Dir of FBI stated under oath this year that they had no idea how many federal agents were involved there undercover - despite having been informed in advance that they would be asked that question.
- all of the transcripts of the witnesses interviewed by the J6 committee were destroyed before turning over control of the House this year.
- the J6 committee had no Republicans named by the Republican House leadership. It consisted of 9 Democrats and 2 renegade former Republican Representatives, all appointed by Speaker Pelosi. This means that there was no reasonable ability to cross examine witnesses or provide their own.

[Rev. Arthur L. Kirkland]

What is worse . . . the un-American delusions of this blog's fans, or the cultivation of this audience by a bunch of disaffected, bigot-hugging, white, male, movement conservative law professors?

[Jason Cavanaugh]

Hey everyone, it's Bruce Hayden the pathological liar!

[Bruce Hayden]

Ok. I am a pathological liar for pointing out that the J6 committee released a curated minuscule fraction of the >14k hours of video, out of context, and that the Republican majority in the House has released much of the rest of it, and it shows just the opposite.

[MoreCurious]

What color is the sky on your planet, Bruce?

[Nige]

'seriously cherry picked the video they released'

This is like a guy who robs a shop complaining the video of him robbing the shop is cherry-picked and all the hours of video of him not robbing the shop deliberately excluded.

[Bruce Hayden]

It was pulled out of context, and the thousands of hours of video showing people peacefully touring the Capital, often with Capital Police escort. And the video showing the Capital Police initiating the violence with flash bangs and rubber bullets, shot into an unexpecting crowd, without provocation were also not shown. Or the video of AntiFA and what very much looks like federal agents instigating the violence. Yes. Much of that video is out now. None of it was disclosed by the J6 committee. And then the transcripts of the testimony of their witnesses were destroyed right before control of the House was turned over to the Republicans a year ago.

I find it interesting that the common refrain is that I am a liar, are delusional, etc. Try rebutting my claims with facts, instead of name calling.

[Joe_dallas]

Windycity See my comment above. I dont think its an easy call either way. The first phrase of 14A sec 3 omitted president and VP while including Senator, Reps and electors. That omission would seem intentional.

the second phrase of 14A (3) uses the term “office” under the US. Art 2 sec 1 of the US constitution state the President will hold the “office” for 4 years. (the office of the president). the more likely inclusion of the president would be as holding the office of the president, not as an officer in the later phrase. That being said, the omission of the “president ” in the first phrase creates doubt as the meaning if an insurrectionist can later be elected president. No question such a person would be barred from being a senator or Representative , but unclear of whether the insurrectionist could be president.

[Joe_dallas]

I am going to modify my comment slightly regarding the omission of president in the first phrase of 14A 3 while including senator and representative. Art 1 of the US constitution doesnt use the term office or officer when describing a senator or representative, so perhaps the presidency would be captured under the term "office" as used in the second phrase of 14A 3. (ie the omission of "president" was intentional since president was captured under "office").

[Brett Bellmore]

What I find conspicuous is that they DID mention the Presidential and VP electors. Why mention them, and not the President himself?

Apparently they were concerned about insurrectionist electors, but didn't think Presidents even worth mentioning. Why?

Because non-insurrectionist electors wouldn't pick an insurrectionist for President? The Presidency was literally the only nation-wide elected position, so they had no worry that the Confederates could dictate the outcome of a Presidential election.

[David Nieporent]

.

What I find conspicuous is that they DID mention the Presidential and VP electors. Why mention them, and not the President himself?

Again: they did mention the president. Right there, it says "officers."

But electors weren't officers, so they had to be specified or they wouldn't be included in the ban.

[Mr. Bumble]

Seems that if they meant president they would have said so given the presidency's unique position in our government.

[Randal]

What's with the dot! Please tell.

[Magister]

You have to put text before an initial blockquote tag or it swallows the whole post. Even old comments that formatted correctly when originally submitted now suffer from this.

[Randal]

Oh. Well at least they fixed editing.

Not of blockquotes! Just back to as bad as it always was.

[Brett Bellmore]

"Again: they did mention the president. Right there, it says “officers.”"

That is as textbook an example of circular reasoning as anybody could ask for.

Right there, it does NOT say "President". By your reasoning they didn't have to specifically mention Senators, Representatives, or Electors, either, and yet, they did. And did NOT mention Presidents.

[David Nieporent]

It’s not in fact circular reasoning. It might be begging the question, but, then, so was the thing I was responding to.

(But note that it isn't that either, because I am relying on lots of extrinsic evidence that the president is an officer.)

[Lee Moore]

Nieporent : It’s not in fact circular reasoning. It might be begging the question, but, then, so was the thing I was responding to.

Nonsense, you and Brett are not in equivalent positions.

Brett requires no inference to conclude that President is not mentioned, because it isn't in the text. You however have to deploy an inference that President is included in the meaning "officer" , precisely because President is not mentioned in the text.

To beg your question, you have to arm wrestle with the text. Brett has only to sit back with his feet up. Different sports.

[Noscitur a sociis]

.

That is as textbook an example of circular reasoning as anybody could ask for.

It is circular precisely to the same extent that your reciprocal claim is.

Right there, it does NOT say “President”. By your reasoning they didn’t have to specifically mention Senators, Representatives, or Electors, either, and yet, they did. And did NOT mention Presidents.

Not at all. Elector isn’t even arguably an “office under the United States” and senator and representative aren’t either, so they had to be listed separately. The presidency is such an office, so it didn’t.

[Alpheus W Drinkwater]

And apparently even the fact that the framers said that precise thing during Congressional discussion and debate doesn't convince Brett and others.

[Brett Bellmore]

I'm convinced that the only reason the lower court judge held that Section 3 didn't apply to Trump was so that the CO Supreme court would catch the blame for taking him off the ballot.

I agree that the "doesn't apply to the President" part of the ruling was unpersuasive. I don't think it was meant to be persuasive, it was just meant to pass the buck.

The lower court loaded the gun, cocked it, and pointed it, and left it to the state supreme court to pull the trigger and catch the heat.

Where we differ is that I don't think the "guilty of insurrection" part was particularly persuasive, either. Especially the part where all the problems with the January 6th committee were just casually dismissed.

[SRG2]

File under, "Horse, beating of a dead".

[ah....Clem]

https://en.wikipedia.org/wiki/Wikipedia:Drop_the_stick_and_back_slowly_away_from_the_horse_carcass

[Roger the shrubber]

We occasionally get a "complimentary" Epoch Times delivered to us, and I wouldn't use that paper to wipe my ass.
To think Blackman uses that rag as a source of anything intelligent is insulting to stupid shit everywhere.

[Kazinski]

I understand your aversion to a newspaper founded by religious dissidents persecuted by the CCP.

[Rev. Arthur L. Kirkland]

Fringe-inhabiting, superstitious, disaffected, downscale right-wingers are among my favorite culture war casualties.

The end times are near . . . for clingers' political aspirations and cultural relevance in modern America.

[Sam Bankman-Fried]

Please join my prayer circle in praying Blackman gets laid and impregnates the woman and has a baby with trisomy 13…such a blessing!!

[Stephen Lathrop]

First, the phrase "Office under the United States," Natelson writes, "was the obvious successor to the extremely common British term 'office under the Crown.'" And this phrase has for centuries referred only to appointed positions.

Of course it has. Because at the time of the American founding that phrase referred to a British government in which Parliament was not only a legislature, but actually sovereign. In short, not at all like the new government of the United States.

Thus, any correct historical analogy to elucidate the status of appointments must begin with appointed officers in Britain, sworn by oath to support both the actually sovereign Parliament, and the titularly sovereign King. And then go on to analogize those to sworn American appointed officers, plus not-at-all sovereign sworn elected office holders, with both classes under oath to support the jointly sovereign People.

The distinction to group these in relation to sworn duty to the sovereign was an entirely natural one at the time of the founding—as I have been saying. And as I have been repeatedly citing founder James Wilson to demonstrate.

But it is also true that after the administration of John Quincy Adams distinctions in political status in relation to sovereignty began a gradual fade in public consciousness. Consciousness of that kind of distinction—still strong in Lincoln's mind during the Civil War—was greatly diminished in America by the end of the 19th century.

By the end of the 20th century this nation had fallen into the grip of what I have termed decapitated constitutionalism, in which at least the legal community swung to and fro between treating the Constitution as sovereign, or—especially for convenience during court proceedings—treating the government itself as sovereign.

That evolution away from original understanding has led to no end of confusions. Modern-day political theorists, including many who never grasped the original understanding of American joint popular sovereignty—and may never even have heard of it—try to explain American constitutionalism on the basis of their more-recently-founded misunderstandings. They find themselves glossing over paradoxes, and hurrying past incongruities, as they try to make sense of how government works.

Neither they nor their auditors seem to expect or understand why these proffered constitutional theories so often turn out murky, ambiguous, or hard to grasp. The explanation is that de facto modern theories of American constitutionalism suffer because they necessarily refer to a government which remains structured to be rational under the now-forgotten original expectations—which relied on a continuously active joint popular sovereign at the top.

With that feature now missing, trying to explain or operate a government structured to rely on that feature confuses everyone. Blackman's posts on offices and officers are rich with examples to demonstrate the confusion.

[Bob from Ohio]

"sworn by oath to support both the actually sovereign Parliament, and the titularly sovereign King"

Except the oath then [and now] does/did not mention Parliament at all and is an oath to the monarch.

[Michael P]

Lathrop isn't about to start letting facts stop him now.

[Kazinski]

Parliament never claimed to be sovereign, that's an absurdity when they have a King, which can dismiss them who is sovereign.

What Parliament claimed was the power, which it exercised once before promising not to do it again, to decapitate their Sovereign.

That kind of focus the mind of the Sovereign and makes for more harmonious relations between the Sovereign and his subjects.

[Stephen Lathrop]

Kazinsky, too bad you don't know your British history. But that's what happens when you rely on sources like Kopel to teach it to you.

Try Edmund Morgan instead: Inventing the People, The Rise of Popular Sovereignty in England and America. It's a great work of history, and has the advantage of being readably accessible to almost anyone. When you finish it, you will have a better-informed notion of what actual history looks like.

[NvEric]

Primary elections are for private parties / entities being run by the public and should not be quibbled over as to who is or is not eligible by those not versed in reading plain English words. Moreover, the same applies to general elections.

States run the elections, the People vote. A14 does not prohibit anyone from being elected, nor does it prohibit anyone from pursuing office. Reasoning that only those able to hold office prevents running for office shall also indicate a proper reading of A14 in the first place, which most certainly has not occurred by those construing A14 to read otherwise. Civil suits be dammed !

Furthermore, the People are sovereign, and only they, therefore, can, and may, exercise their judgement, being supreme, regarding their only current, yet extremely limited, authority of, and for, these United States, in voting.

[Alpheus W Drinkwater]

Many states have passed laws stating that candidates must meet all eligibility requirements for federal office in order to have their name appear on a ballot. Both Colorado and Maine have such a law. Therefore, the person or persons designated by state law to make ballot eligibility determinations have to decide on whether section 3, and all other requirements, applies to a prospective Presidential candidate. You may not like it, but that's the system we have.

Here in North Carolina, the state board of elections made the decision to not include two Democratic candidates for President, Dean Phillips and Marianne Williamson, on the ballot. Both candidates meet all constitutional requirements to be President. I haven't heard any national media at all report on this. It happens in every state, in every Presidential election cycle.

[David Nieporent]

The other day I saw on social media (Bluesky, FWIW) the first legal argument that made me take pause here. It was from a liberal, not a Trumpkin, and he wasn't endorsing it, but just throwing it out as food for thought:

Unlike someone who will be under 35 on January 20, or who is not a natural born citizen, or who has already served 2 terms, or the like, being ineligible under A14S3 is curable. Someone who flunks one of the other criteria will by definition not be eligible, so it would be futile to put them on the ballot. But Congress can remove the A14S3 insurrection disability if it chooses. (Not that this divided Congress would do so for Trump, of course, but it could.) So Trump, even though ineligible at this moment, could become eligible before Election Day. (Or before January 20.) So voting for him is not futile, and therefore he should not be excluded from the ballot.

(To be clear, I am paraphrasing, as the foregoing would obviously not have fit in 300 characters.)

[Alpheus W Drinkwater]

Wow, that is an interesting point! I wonder if it will come up in subsequent legal filings.

[Stephen Lathrop]

Why not interpret the same premise in an opposite way? If Section 3 is not capable to inflict disqualification administratively, what point is there to give Congress a power to cure a disqualification?

[Lee Moore]

To deal with cases where the disqualification is imposed by a court applying legislation enacted under Section 5 to implement Section 3.

[Dan Schiavetta]

"In 2014, I gave a lecture on my ACA book at Stanford. Judge Michael McConnell was kind enough to host me at his home for a lovely dinner. Will Baude, who was then a fellow at Stanford, attended. Over dinner, we were discussing some of the most important, and under-appreciated originalist scholars."

I don't know why, but I would love to hear a recording of that dinner.

[Sam Bankman-Fried]

I think it would be a lot like Blazing Saddles when people almost say the n-word before catching themselves. Nig…I mean Obamacare.

[Sam Bankman-Fried]

And they wouldn’t have to catch themselves when talking about Hillary’s health care plan—Canklescare…or Cuntcare or Cacklescare or Bitchcare.

[Rev. Arthur L. Kirkland]

The Epoch Times.

This, ladies and gentlemen, is how one remains mired at one of America's shittiest law schools . . . and how one wears out welcome at a strong, mainstream law school and must seek refuge at a partisan flack factory.

Carry on, superstitious, bigoted, obsolete clingers.

[Doug Heffernan]

It's easy for blackman to bask in what he perceives as some sort of pat on on the back (even though blackman has the patting of his own back fully covered himself). What would be difficult, and uninteresting for blackman (because it is not about self-praise), would be to reply to at least one of Ilya Somin's many critiques of his views. Some of which have appeared on this blog as formal rejoinders, including the text "An answer to josh blackman". It's all crickets from blackman in response to those, because that would deviate from self-love, and blackman takes that personally.

[Jason Cavanaugh]

He has also refused to engage with the CSC decision itself, just like all the other Trump idiots around here.

The most you're going to get from any of them is "I don't agree."

[Michael P]

Somin's only real argument is "it doesn't make sense to me that they would do that", which is not what most of us would call falsifiable.

[F.D. Wolf]

I believe there is zero chance the U.S. Supreme Court will rule that Donald Trump is disqualified under Section 3. I believe the partisan Democrats backing such a position are largely aware that they will likely fail at the Supreme Court. Their actions are largely political theatre. Attacks on Trump fire up their dispirited base voters. And, when the Supreme Court hands down its ruling for Trump, they will assault the Court, as they have been doing for years, ginning up their base some more.

That being said, Chief Justice Roberts will endeavor mightily for a broad-based decision, ideally unanimous. He may want to avoid entirely the question of whether an "insurrection" occurred at all, much less whether Trump was involved in one. So, this "Officers of the United States" business may be where they land. "The President is not an Officer of the United States subject to Section 3. No need to discuss anything else. End of case." Another, even more tepid way to go, to kick the can down the road, would be to say that Section 5 of the Fourteenth Amendment leaves the matter to Congress, and state courts and state officers have no authority to act unilaterally to enforce Section 3.

[Randal]

I dunno. I get the sense that the Dems find this path to be intriguing, for sure (Dems like shiny objects), and difficult to avoid (officer yes, insurrection yes, engaged yes), but not strategically wise. Trump is by far the easiest Republican for Biden to beat.

In the same vein, what you would probably call RINOs have been trying to rid their party of Trump forever, but are constrained politically. But guess who isn’t constrained? SCOTUS. They’re all RINOs with the possible exception of Alito.

You might be getting this exactly backwards. It could be 9-0 or 8-1 to affirm CSC, so that the Republican establishment can finally rid itself of this troublesome demagogue.

[Brett Bellmore]

As I see it, the basic problem with that reasoning is that it assumes they'd think they could get away with such a ruling.

To be sure, the GOP establishment might privately like it. They can be short-sighted that way, though hardly all the time.

The GOP base, OTOH, would be utterly enraged.

At present, only 13% of Democrats think the Supreme court is legit. One ruling the left likes isn't going to reverse that, they already occasionally get rulings they like, and it doesn't move them. Short of going on a spree of reversing decisions like Dobbs, CU, Heller, maybe retroactively declaring Gore the winner of the 2000 election, that is NOT going to change. You're either entirely on their side, or you're the enemy.

Knocking Trump off the ballot on a basis that almost all Republicans think is totally bogus, though? That could lose them their support from the right, too.

So, no, just as a matter of institutional self-preservation, they're not going there.

[Nige]

'The GOP base, OTOH, would be utterly enraged.'

Yeah but when are they ever anything else?

[Randal]

I suppose Thomas might be too scared to enrage one MAGA base constituent in particular.

[Voize]

In 2012 Neil Gorsuch wrote a 10th circuit opinion affirming the constitutionality of the same Colorado law at issue today that entitles the Secretary of State to deny ballot access to an unqualified Presidential candidate, so if Roberts is looking for unanimity he should avoid the theory that state officers have no authority to act unilaterally.

[Mark Regan]

This is ad hominem, but Natelson’s scholarship on federal-state relations and on the Indian Child Welfare Act sucks, and the fact that Justice Thomas has cited it does not make it more persuasive than it otherwise would be. No reason to expect better when it comes to the 14th Amendment.

[Rev. Arthur L. Kirkland]

It is not difficult to find examples of legitimate scholars -- or even just competent practitioners -- shredding Natelson's polemics.

The pride of Montana academia, though, I guess.

[pts]

I'm at a loss to understand the "insurrection" argument. On January 6, Trump was the President. In essence, he was the government. He can't have an insurrection against himself. I suppose the argument is that on January 6 and post-January 6 he schemed and cajoled to interrupt proceedings to avoid leaving office. But is scheming and cajoling an insurrection? An organized and usually violent revolt against authority? Especially since on January 20 he quietly left the office to Biden. Had he barricaded himself in the White House, surrounded by armed supporters? Sure.

[Voize]

Trump was President, not King.

[Randal]

Don't be dumb. Let's say it had worked: they killed Pence, and that was enough to convince Congress to throw out Biden votes for fear of being next, anointing Trump the "winner."

Would you still be saying oh yeah that's all fine, after all he was President at the time!?

[Dan Schiavetta]

The truth is, if Trump had organized an army to storm the Capitol, declared himself President for Life, assassinated Pence and Pelosi, declared martial law, and only six months later did the remaining armed forces retake the federal government . . . Trump supporters would still say that it was not an “insurrection”.

“No amount of proof would convince them . . . “ — Mitt Romney

[F.D. Wolf]

The simple refutation to your ludicrous hypothetical is that many people who do not support Trump, who in fact despise Trump, do not believe his actions on January 6 amounted to an "insurrection".

Just refer to the recent comments from the California secretary of state, endorsed by the California governor, not exactly fervent Trump supporters, about her office's decision to leave Trump on the primary ballot.

[Randal]

Just refer to the recent comments from the California secretary of state...

I don't know what remarks you read. This was her official reply:

The attack on the Capitol and the former President's involvement were abborrent.

She never says Jan 6 wasn't an insurrection or that Trump didn't engage in it. Just that disqualifying him would be imprudent.

[Randal]

Newsom:

There is no doubt that Donald Trump is a threat to our liberties and even to our democracy.

[Brett Bellmore]

'I don't have to prove anything, because proving things would be futile' is a lazy dodge.

Yeah, sure, Trump supporters are identical robots programmed according to your idea of what they're like. There's no distribution of beliefs, no such thing as a reluctant or marginal Trump supporter; You either support him as a spinal reflex, or not at all. [/sarc]

Can you really believe something that stupid? Or do you just find it rhetorically useful?

[Stephen Lathrop]

Bellmore, why not take your questions to right-wing insider Liz Cheney, and see how she answers them? You won't even need to attract her attention. Her recently-published book answers your questions, but with answers opposite the ones you think self-evident.

[Nige]

'no such thing as a reluctant or marginal Trump supporter;'

They might be reluctant but if you don't support Trump you're not a real Republican, we're told over and over.

[Commenter_XY]

What was reality? Who is being dumb?

Reality: POTUS Trump left office on January 20, 2021. POTUS Biden was sworn into office on the same day.

None of the things you hypothesized about actually happened.

I thought AG Barr articulated his POV well: to take away someone's ability to run, you need some kind of due process. That hasn't happened.

Note that we had the political trial already: impeachment. The Senate declined to remove POTUS Trump from office. The voters removed POTUS Trump, instead, in a hotly disputed election.

[Stephen Lathrop]

Commenter_XY, "hotly disputed," by MAGA types is indeed a factual assertion, and a correct one. But it has zero probative value against counter-evidence which has the advantage that it does not rest on subjective opinion, grievance, and partisan outrage.

Missing from every one of the posts from these Trump apologists is any acknowledgment that usefully objective evidence exists. History will not be kind to that style of argument. That is reality. You are being dumb.

But I continue to believe that like many others you are only playing dumb. Why so many would do that will a century hence turn into the kind of forgotten context which goads historians to posit weighty inferences. Who knows? Maybe your dumbness will find redemption in the eyes of history.

[Randal]

None of the things you hypothesized about actually happened.

pts wasn't talking about due process, he was making a version of the "it's not an insurrection since it wasn't successful" argument. That's what's dumb.

(The due process argument is also dumb, but less so.)

[Jason Cavanaugh]

"I thought AG Barr articulated his POV well: to take away someone’s ability to run, you need some kind of due process. That hasn’t happened."

Unsurprisingly, that is a bald-faced lie.

[Lee Moore]

Randal : Don’t be dumb. Let’s say it had worked: they killed Pence, and that was enough to convince Congress to throw out Biden votes for fear of being next, anointing Trump the “winner.”

This is a fun hypo !

If Congress was actually intimidated such that Trump won the count of Electoral College votes, then he would indeed still be the President as of 21 January 2021. That's the law.

The remedies would then have to be either impeachment, or some court case advancing the argument that he was disqualified by 14A Section 3. But who would have standing to bring such a case ?

Biden would be too late, since the Electoral College count would be final. Perhaps someone affected by a Presidential executive action, who wanted to claim that this is not a valid President.

Sadly - given the fun that such a case would bring in the case of trying to unseat a sitting President - I can't see SCOTUS doing anything other than punting, and leaving it up to the impeachment process.

[bacchys]

No matter how many words get written in support of this inane argument, it remains stupid.

We're to believe from partisan hacks like Blackman that the authors of Sec. 3 thought it was okay for presidents, vice-presidents, and former holders of those offices to commit insurrection.

[Alpheus W Drinkwater]

The framers apparently thought it necessary to make sure Jefferson Davis couldn't be Secretary of War again, but it would okay if he were President. Makes perfect sense.

[Lee Moore]

Inane or stupid it may be, but it was being advanced long before it had any partisan relevance.

[Patrick Henry, the 2nd]

Josh is a big reason why I read Reason and Volokh (outside of our eponymous leader himself).

He nails it every time he posts, with detailed logical reason devoid of "gotcha" comments that many others in Reason (ENB) and Volohkh (Somin)

[Noscitur a sociis]

If I ever felt this way, I’d at least have the decency to be embarrassed about it.

[Lee Moore]

Natelson focused on the Commissions Clause, which provides that president “shall Commission all the Officers of the United States.” He observes that “commissioning yourself” would be “awkward.”

Awkward but hardly impossible. I seem to recall that Emperor Bokassa crowned himself, finding no one else sufficiently magnificent to do it for him. And in the (unlikely) event that we get a second Trump term, I feel confident that there’ll be a fair amount of self-pardoning.

“The President, Vice President and all civil Officers of the United States.” He writes that “If the president and vice president were officers of the United States, there would be no need to list them separately.”

The contrary view, which I have seen expressed on the VC is that this is to double underline, because they are so important, how impeachable the President and Vice President are. And the contrary view to the contrary view is that if this is so, the fact that Section 3 of the 14th fails to mention the President and Vice President suggests they are not included, since their importance remains unchanged.

The VP, btw, seems an interesting case, since while one might try to argue that the President as C -in-C is a military officer rather than a civil one, the same argument cannot be made of the VP. Hence naming the VP is definitely surplusage, if he (or she) is already included as a civil officer of the US.

And the VP is also interesting on the Oath front, since I believe he or she takes the normal Article VI oath, pursuant to an Act of Congress dating back almost to the founding. Which suggests either that they all thought the VP was an officer of the US, or that they thought he wasn’t, so they’d better put it in a statute. Or they weren’t sure.