A New, Rushed, Flawed Article In The Section 3 Debate

Scholars and lawyers should exercise caution before citing a new paper by James Heilpern and Michael T. Worley

[This post is co-authored with Seth Barrett Tillman]

Recently, James Heilpern and Michael T. Worley (the "Authors") posted an article to SSRN titled Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment. The Authors conclude that our position is incorrect. Their Article cites an "undeniable urgency" to answer this question. As often happens in anticipation of, and during fast-paced litigation, people who have no prior expertise in an area profess an immediate expertise, and make bold conclusions with the intent of influencing that litigation. This may be one such paper. For reasons we discuss below, Justices and judges, lawyers, scholars, and the press should exercise caution before citing this paper. 

First, the Authors conclude, based on a corpus linguistics search, that the phrase "Officers of the United States" is not a historical term of art. In a footnote, they write, "While Blackman and Tillman never make this assertion explicitly, it is implicit in their arguments." Their claim, here, is more than odd. Why? Because we, in fact, expressly state the exact opposite. In Part III of our ten-part series, a copy of which we personally sent the Authors, we wrote:

We think the phrase "Officers of the United States" is defined by the Appointments Clause.51 The phrase "Officers of the United States" was not a fixed term of art.52 It did not draw on any specific prior drafting conventions. The Articles of Confederation used the phrase "office . . . under the United States" in two provisions, but it did not use the phrase "Officers of the United States."53 A study of the Corpus of Founding Era American English (COFEA) supports our position.54 The phrase "Officers of the United States" had no apparent "specialized meaning attached to its use."55 (Blackman & Tillman, Part III, at 365.)

And what do we (Blackman and Tillman) cite in Footnote 55 of our article? We cite the corpus linguistics amicus brief written by James Heilpern in Lucia v. SEC. We agreed with Heilpern that "Officers of the United States" is not a term of art! Yet somehow we are making the opposite argument implicitly?

There are two possibilities here. First, Heilpern and Worley took the view that we (Blackman and Tillman) somehow did not understand or had misrepresented our own position. But if that was their view, then they and their Article should have explained that to the reader, and they should support that position by pointing to where we have made that argument, if only implicitly. They do not do that or anything like that. The alternative view is that Heilpern and Worley have not read our recent scholarship and briefs on the subject, and they do not understand our position. And if that is the situation, then certain conclusions should follow. 

Second, the Authors claim that:

In their latest article, Blackman and Tillman pick up an argument from the litigation. The argument begins with the premise that the President takes an oath to "preserve, protect, and defend" the Constitution, found in Article II, and does not take the oath to "support" the Constitution, found in Article VI. Because Section 3 refers to officers who have "previously taken an oath … to support the Constitution of the United States," the President, the argument goes, has not taken such an oath and is not in the scope of Section 3. (Heilpern & Worley, at 23.)

Heilpern and Worlsey continue by suggesting that we have "rel[ied]" on the "support" argument. Id. at 24. The simple fact is that we did not originate this argument, and we have never adopted it. We merely explained that it was an argument that was recently advanced in still ongoing Section 3 litigation. This is what we wrote in our recent contribution to Section 3 scholarship: 

There may be yet another reason to conclude that the President is not fairly encompassed by Article VI's "Officers of the United States"-language. The presidential oath in Article II provides that the President "will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Article VI uses different language: a covered position "shall be bound by Oath or Affirmation, to support this Constitution." Indeed, Section 3 uses very similar language: "to support the Constitution of the United States."558 President Trump's attorneys contended that this different language provides further support for the position that the President's oath would not be covered by the oath provisions of Article VI and Section 3.559 (Blackman & Tillman, Sweeping and Forcing, at 542.)

Again, we accurately reported an argument recently made by lawyers representing Trump, and we reported that (that is, their) position with tentative language: "may be yet another reason." We credit those lawyers (as we should) for making a novel and bold contribution to the literature. But they made that argument—not us (Blackman and Tillman). Again, the Authors criticize us for making an argument which we have never adopted. 

Third, Heilpern and Worley continue their discussion of antebellum oaths and what Article VI's "support" language meant circa 1788 and 1868. They state:

Evidence from the time of the 14th Amendment supports our view. Recall that Section 3 extended to any "person… who, having previously taken an oath, … as an executive or judicial officer of any State, to support the Constitution of the United States" and subsequently engaged in insurrection.123 Thus, no one doubts that executive officers in the Southern states—for example, South Carolina—who had taken an oath prior to the rebellion, were covered by Section 3.

But when you look at the oath South Carolina officers were required by [Article IV of] the South Carolina Constitution [of 1790] to take, the language mirrors the [U.S. Constitution's Article II] Presidential Oath, not the [U.S. Constitution's] Article VI Oath:

Every person who shall be chosen or appointed to any office of profit or trust; before entering on the execution thereof, shall take the following oath: "I do solemnly swear, (or affirm), that I will be faithful, and true allegiance bear to the State of South Carolina, so long as I may continue a citizen thereof; and that I am duly qualified, according to the constitution of this State, to exercise the office to which I have been appointed; and that I will, to the best of my abilities, discharge the duties thereof, and preserve, protect, and defend the constitution of this State, and of the United States: So help me God.124

Given no one doubts Section 3 was to apply to South Carolina rebels, it is clear that the drafters of the 14th Amendment viewed an oath to "preserve, protect, and defend" the United States Constitution as an oath to "support" the United States Constitution. Any other reading of Section 3 appears absurd to us. (Heilpern & Worley, at 23 (bold added).)

[fn123] U.S. Const. Amend. XIV, s 3.

[fn124] S.C. Const. of 1790, art. IV (emphasis added). This Article was written [?] in 1790 and was modified in 1834. Both versions of the oath have "preserve, protect, and defend"—and not "support."

Now let's try to unlock the Authors' argument. Section 3 applied to South Carolina rebels. The Authors do not doubt that, and neither do we. Section 3 only applied to those South Carolina (and other) rebels who had held Article VI-listed triggering or jurisdictional positions, who then subsequently took the Article VI mandated oath, and then engaged in insurrection or rebellion, or gave aid or comfort to enemies of the United States. Many such Section 3 triggering positions were state positions—created under the aegis of the South Carolina Constitution or by state statute. According to the Authors, the oath in Article IV of the South Carolina Constitution of 1790 was the relevant oath, and that Article IV oath did not use "support"-language. So one and all must have believed, circa 1868, that this oath's "preserve, protect, and defend"-language was sufficient to make rebels liable under Section 3. Right?

No. not really.

A little background helps. The Federal Convention met during 1787. Afterwards, eleven states ratified the Constitution over the course of 1787 through early 1788. As a result, the Constitution went into effect. See Article VII. Federal elections were held, and the First Congress met in March 1789. It took a few weeks to gather a quorum and to organize each house. Then the electoral votes were counted. The very first bill to be enacted was the Oaths Act of 1789. (We discuss this statute at some length in Part III of our ten-part series.) What was in that statute? Article VI only mandates that certain listed federal and state positions take an oath to "support" the Constitution. But Article VI does not mandate the specific words that compose the oath. That decision was left to Congress. Nor does Article VI specify what officials are authorized to swear in other office-holders, nor what procedures are to be followed, nor how official records of those oaths should be kept. All of those details were determined by Congress in the Oaths Act of 1789. Congress, not the Constitution, specified the words which would compose the Article VI-mandated oath, and that oath would be in effect until the Civil War. The Oaths Act of 1789 specifies the text of the oath. The Oaths Act, ch. 1, 1 Stat. 23, § 1 states:

That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following of the oath or affirmation to support the Constitution of the United States, to be administered to the members of the Senate and to the members of the House of Representatives, to wit: "I, A. B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States."

Section 3 of the Oaths Act of 1789 made that oath applicable to state positions. And the Act became law on June 1, 1789. Neither Article VI, nor the Oaths Act of 1789 gave States any power to rewrite the Article VI oath—even to expand upon it. And, in fact, the South Carolina Constitution was not implemented until circa June 3, 1790. So what happened between June 1789 and June 1790 in South Carolina? Simple, they took the Article VI oath as mandated by Congress. It was reported in the newspapers. See City Gazette (Charleston, South Carolina), Jan. 20, 1790, at 2. What happened after June 1790? After June 1790, when the new South Carolina Constitution went into effect, covered state positions began to take or, better, began also to take the Article IV oath established in the South Carolina Constitution. See State Gazette of South Carolina (Charleston), Mar. 21, 1791, at 4.

As a result, there are two possibilities. After June 1790, state officials in South Carolina exclusively took the Article IV state oath—that's Heilpern and Worley's position. But the other view—a view that those Authors do not even consider—is that after June 1790, state officials took both the oath specified by the federal Oaths Act of 1789 and the oath specified by Article IV of the S.C. Constitution.

The former view would be, in our opinion, a clear violation of federal law. It assumes that Article VI may be independently executed or implemented by States, even after Congress has actively pre-empted the field prior to the State's enacting an inconsistent statute. On the other hand, the latter view is consistent with both federal and state constitutional and statutory law. The only oddity here is that the state oath also demanded loyalty to the U.S. Constitution. But is that really so difficult to accept from a patriotic people after 1776, the War of Independence, and 1787? Perhaps, such dual oaths under state law were once widespread—Could we prevail upon Heilpern and Worley to do some research? We would add that it is conceivable that Heilpern and Worley are correct in making the assumption that after June 1790, the only oath taken by S.C. officials was the oath established by Article IV of the S.C. Constitution. We suggest that the only way to know if that was the regular conduct of the S.C. state government and state government officials, post-June 1790, would be to do detailed research in S.C. archives. It does not appear that Heilpern and Worley have done anything like this. And for that reason, at this juncture, at least, their argument cannot pass muster.

Our criticism here is not that Heilpern and Worley are wrong. Our criticism is much deeper: they do not understand the complex interplay of federal and state constitutional and statutory provisions which controlled oath-taking in South Carolina circa 1789 and 1790. And if they do not understand that … how can they usefully comment on the validity of the "support" argument and Section 3 in 1868?

The answer is that they can't. Furthermore, their comment that views which contradict their own are "absurd" is hyperbole. Unfortunately, such hyperbole is becoming common in the Section 3 literature. 

Fourth, the Authors write:

We likewise are unpersuaded by Blackman and Tillman's reading of the Impeachment Clause.

The Impeachment Clause extends to the "President, Vice President, and all civil officers of the United States." But it does not say "all other civil officers." As a result, one can reasonably draw the conclusion that the President and Vice President are not "officers of the United States." We agree with this interpretation, but this interpretation did not originate with us. It was the position put forward by Justice Story in 1833, in his celebrated Commentaries on the Constitution, and perhaps put forward by others before Story. It was a position cited by many people, frequently expressly relying on Story, throughout the 19th century. Finally, it is a position that is supported by the drafting history of the Impeachment Clause. The Authors only mention in a footnote that we cite Story for this proposition. But the Authors also do not report that Madison's Notes from the federal convention are consistent with Story's analysis. Madison's Notes indicates that "other" was included in a preliminary draft of the Impeachment Clause, but it was later stripped out by a style committee. Indeed Madison's Notes is not merely consistent with Story's position; rather, Madison's Notes confirms Story's position. Story published in 1833, but Madison's Notes were not publicly disseminated until the 1840s. 

The point here is a very basic one. But it is one that has happened repeatedly in the sub-literature criticizing our position. Heilpern and Worley are presenting their paper as one disagreeing with points made by Blackman and Tillman. But, in fact, they are disagreeing with Madison and Story, and they are not willing to clarify this for the reader. 

Fifth, the Authors refer at various junctures to the Postal Act of 1792:

• "Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1792, which lists the President with officers of the United States."
• "In addition, of the thirteen times the full phrase appears, one—a postal bill specifying which 'officers of the United States' should be granted a franking privilege—specifically listed both the President and Vice President as officers of the United States.80" FN80: Act to Establish the Post Office of the United States, 5 Stat. 733.
• "at least one bill, the Postal Act, squarely identifies the President as an 'officer of the United States.'" (emphasis added)
• "That understanding—shared by Chief Justice Marshall in his opinion in Maurice and by Congress in the Postal Act—continued at the time of the drafting and ratification of the Fourteenth Amendment." 

The Authors never actually provide a correct citation to the Postal Act of 1792; rather, they actually cite to an act from 1845, a matter which we'll get to shortly.

The Postal Act of 1792 appears at 1 Stat. 232, 237 (PDF). Section 19 provides, in part:

That the following letters and packets, and no other, shall be received and conveyed by post, free of postage, under such restrictions, as are hereinafter provided; that is to say: All letters and packets to or from the President or Vice President of the United States, and all letters and packets, not exceeding two ounces in weight, to or from any member of the Senate or House of Representatives, the Secretary of the Senate or Clerk of the House of Representatives, during their actual attendance in any session of Congress, and twenty days after such session.

We have searched this statute, and see no reference to the phrase "Officers of the United States." It merely established the President's franking privilege. But what about that citation in Footnote 80 to 5 Stat. 733? Volume 5 of the Statutes at Large is from the 1840s. This particular statute was enacted not in 1792, but in 1845. It is titled, "An Act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department" (PDF).

Section 6 of the statute provides, in part:

That from and after the passage of this act, all officers of the Government of the United States, heretofore having the franking privilege, shall be authorized and required to keep and account of all postage charged to and payable by them, respectively …. (emphasis added)

And Section 23 provides:

That nothing in this act contained shall be construed to repeal the laws heretofore enacted, granting the franking privilege to the President of the United States when in office, and to all ex-Presidents, and to the widows of the former Presidents Madison and Harrison. (emphasis added)

Let's summarize. The 1792 statute does not use the phrase "Officer[s] of the United States" which appears in the Constitution of 1788's Appointments Clause and in Section 3 of the Fourteenth Amendment (ratified in 1868). Instead, Section 6 of the 1845 statute uses the phrase "officers of the Government of the United States" That precise latter phrase appears nowhere in the Constitution of the United States, albeit the Necessary and Proper (or Sweeping) Clause uses language very close to it. Article I, Section 8, Clause 18 provides for "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The bottom line is that the two phrases—officers of the United States (used in the original Constitution and Section 3), and officers of the Government of the United States (used in the statute)—are textually distinct, and that, at the very least, raises an inference or a presumption that a different meaning was intended and understood. Indeed, we have already written that the phrase "Officers of the Government of the United States" extends to elected apex federal positions, including the President. See Blackman & Tillman, Part I, at 318. 

Again, the Authors disregard what we actually wrote, and in the process, locate evidence that supports our position. The statute does not use "Officers of the United States." It uses the broader phrase "Officers of the Government of the United States" and this more expansive language extends to the presidency and supports our position.

One more note on the Postal Act of 1792. Section 11 provides, in part, that if a "deputy postmaster, or other person authorized by the Postmaster General . . . shall fraudulently demand or receive any rate of postage . . . he shall forfeit for every such offence, one hundred dollars, and shall be rendered incapable of holding any office under the United States." Congress can't add to the qualifications of the presidency (or any other federal elected position) by statute. It would stand to reason that this statute, which uses the phrase "Office under the United States," does not refer to the presidency. This statute is not an outlier. In Part IV of our series (520–524), we focused on a bribery statute enacted by the First Congress, which likewise disqualified a person from holding an "Office under the United States." It follows that the better reading of this statute is that its "Office under the United States"-language excludes the President. The Postal Act of 1792 mentions the President and the phrase "Office under the United States." The President cannot be an "Office under the United States" in this statute. The Postal Act of 1792 provides even further support for our position: that in the Constitution of 1788, "Office . . . under the United States" did not reach elected federal positions.

Still when all is said and done: we want to be fair to Heilpern and Worley's scholarship. They have not pointed to even one statute showing that Congress used "officer of the United States" to include the President. But we are willing to stipulate, or better, we suspect that there are such statutes—perhaps, more than a few. Our response to that is simply: So what! Over the many years between 1788 and 1868, many, many statutes were passed. One should not expect perfect consistency in regard to legal usage from different draftspersons across different decades and centuries. When Congress, in a statute, uses a phrase in the Constitution, it raises a presumption that Congress is using the terminology in the same fashion. But it is just a presumption. In interpreting a statute, the goal is to determine the meaning of the statute (or to use the older terminology—the intent of Congress), not the meaning of the Constitution. Congress is always free to depart from traditional constitutional usage. Sometimes Congress might depart from the constitutional usage intentionally, and at other times, it may do so inadvertently. The latter is likely to happen during a war or other emergency which affects the work product of those charged with drafting statutes in the regular course of business. And during such times, trained staff can be difficult to retain and find. Visit the Capitol, where you can see plaques of members and staff who died in our wars. 

In any event, such departures from traditional constitutional usage do not determine what the Constitution means. Our position is that the meaning of "Officers of the United States" was determined, defined, or fixed by the Appointments Clause. The Authors endeavor to show that the word "appoint" and "elect" had a similar meaning when the Constitution was ratified, but our position never relies on some abstract sense of "appointment," but instead turns on the precise mechanisms provided for in Article II, Section 2, including the Appointments Clause. In short, "officers of the United States" extends to appointed positions in the Judicial Branch and in the Executive Branch, and not to elected federal positions. This is what the Appointments Clause says, and this is what any number of courts have affirmed. 

Heilpern and Worley also take issue with some more prominent jurists. They cite Chief Justice Marshall's decision in U.S. v. Maurice, but do not quote what Marshall said about the phrase "Officer of the United States." Marshall limited the construction of the phrase "officer of the United States" to "an individual [who] is appointed by government." 

What about Justice Miller's decision in U.S. v. Mouat? He wrote, "Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the President or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States." How do Heilpern and Worley respond? They write that Justice Samuel Miller was "simply wrong." Miller served on the Supreme Court for about three decades, and we have not found any statement ever before suggesting Miller and the Supreme Court erred in Mouat. To the contrary, his statement has been cited many, many times over the last 130 years. 

What about Chief Justice Roberts' statement in Free Enterprise Fund. Roberts wrote "[t]he people do not vote for the 'Officers of the United States.'" Heilpern and Worley suggest that Roberts may be wrong, at least with regard to the President not being an "Officer of the United States." They write "However, even if the Chief [Justice] is right, that would only strike Members of the House of Representatives from our list in Table I. After all, the people do not actually vote for the President of the United States—the electoral college does." Chief Justice Roberts would disagree. In Free Enterprise Fund, the Chief Justice stated that the President was elected:

No one doubts Congress's power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? (emphasis added)

Roberts has repeated this point throughout his tenure. In Seila Law v. CFPB, Roberts stated expressly that the President is elected through elections:

The resulting constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials will still wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. (emphases added)

In Trump v. Vance, Chief Justice Roberts cited Chief Justice Marshall in United States v. Burr for the proposition that the President is elected:

Chief Justice Marshall pre-emptively rejected any notion of absolute immunity, despite the fact that the Government did not so much as suggest it in court. He distinguished the President from the British monarch, who did have immunity, calling it an "essentia[l] … difference" in our system that the President "is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again." (emphasis added)

Heilpern and Worley do not cite Seila Law, or Vance, or Burr, or anything else that might bear on Chief Justice Roberts' views.

And of course, Justice Story, in his celebrated Commentaries on the Constitution, is barely mentioned in a footnote. We get it. Anyone, including any number of Supreme Court Justices, who disagrees with these two authors, who have never published on this topic before, must be entirely wrong or not worth mentioning—makes complete sense. As for us, Blackman and Tillman, we are glad to be in the company of Marshall, Story, Miller, and Roberts. 

Finally, there is one passage in the new paper that warrants mention. It appears only towards the end:

As noted above, we looked to the legislative history of the Fourteenth Amendment not to determine the intended meaning of the Fourteenth Amendment, but to look for evidence of how the legislators used the phrase "officer of the United States" and its synonyms in the course of their duties. Unfortunately, we did not find any explicit references to the President (or Vice President) as an "officer of the United States." We suspect that Blackman and Tillman would argue that this proves their point. 

We appreciate their having candidly reported their findings on this issue. We are loath to draw any clear inferences from their claim (based wholly on the absence of express statements) until we have done our own complete research encompassing all congressional and ratification debates. That research—by us and others—remains ongoing. It will be the efforts of years, not days, weeks, or even a few months. What we can say here—today—is that we and others have uncovered and reported records from public debate and scholarship in the 1870s, in the 1860s, and even during the relatively short period in which the Fourteenth Amendment was ratified that expressly stated: 

[i] that the scope of Article VI's Oaths Clause is "precisely" the same as the list of triggering or jurisdictional positions in Section 3 of the Fourteenth Amendment; and, 

[ii] that the President of the United States is not an "officer of the United States" as that phrase is used in the Constitution. 

In response to these findings, we have yet to see any clear response, or, indeed, any response, from Professors Baude and Paulsen, from Heilpern and Worley—or from other regular participants in this ongoing debate. And that is a tell.

***

We have been somewhat reluctant to have spent as much time as we have on this paper. But we understand the dynamics. This paper was written quickly, and posted online in haste in order to influence litigation that is now before the United States Supreme Court and many other federal and state courts. We get it. And we have no doubt that scholars and lawyers may look to cite Heilpern and Worley's Article and their positions in short order, perhaps without fully vetting this new scholarship. We offer this blog post as something of a caution.

Towards the end of Sweeping and Posting, we offered this admonition:

What about Baude and Paulsen's article? The theoretical defects and other errors are not insubstantial and span multiple independent issues. We see no sound basis for their Article's startling conclusion: "In the end, essentially all the evidence concerning the original textual meaning of Section Three . . . points in the same direction . . . ." Indeed, we cannot remember having seen such a conclusion in any academic publication before—at least, none comes readily to mind. We cannot remember having seen an academic article repeatedly making hyperbolic claims—at least, none comes readily to mind. Baude and Paulsen's article tells only one side of a complex story, and it does not fully respond to (and sometimes fails to see) contrary evidence. Their article is now a draft posted on the Social Science Research Network. We suggest that scholars, litigants, elections administrators, and judges allow their article to percolate in the literature before placing too great a reliance on its novel claims.

We offer the same admonition—squared—with regard to Heilpern and Worley's Article. Whether their Article should be patched-up is a matter for its Authors. We think the errors we have discussed in this blog post are significant ones—and some obviously so. We could add further comments and report further errors along the lines we have discussed above. But quite frankly at this particular juncture, when we are writing amicus briefs, including one for the United States Supreme Court due quite literally in the next two or three business days, and responding to press inquiries, along with our regular academic duties, we do not have more time to devote to their Article. Over the course of the last 15 years, we have been gratified to see our intellectual opponents amend, modify, or, sometimes, retract their positions in response to our critique(s). (Something which we too have done … at least … at the margins.) And even where agreement remains absent, the literature has generally improved over time.

This is not one of those times.

Comments

[ah....Clem]

Josh, it's really time for you to stop farking this chicken. Your position that the office of the president is not an office and that the president is not an officer is pure sophistry that is going nowhere. "any office, civil or military" means exactly what it says, The US constitution refers to the office of the president over two dozen times.

But thanks for the pointer to the article.

[Voize]

It's a toss-up which of the officer argument and the magic-words-in-the-oath argument is the more absurd.

[NvEric]

You and your ilk are shameful degenerates foisting falsehoods without regard to truth. Comprehension of the Constitution fails in your scurrilous attack. Pointing out the obvious escapes your senses.

[Kazinski]

I won’t condemn you for simplifying Josh’s argument to the point it loses any nuance so you can attempt to understand it better.

But I’ve never seen Josh claim the “president is not an officer” because as he said above: “The phrase “Officers of the United States” had no apparent “specialized meaning attached to its use.” So because it has no specialized meaning it could certainly be applied to the Presidency.

Just to help yourself concentrate on the actual issue at hand the question you should concern yourself with is whether the Presidency is an “office, civil or military, under the United States”. Because that is the description of the offices forbidden in Section 3.

And Blackman does clearly say “our position: that in the Constitution of 1788, “Office . . . under the United States” did not reach elected federal positions.”

Not that it will change your mind, but at least it won’t give the impression you have no understanding at all of the issues.

[Dilan Esper]

Given SCOTUS' "Congress doesn't hide elephants in mouseholes" canon of construction that it is enamored with, I think the "officer" argument is actually very clever and could even win the case.

[David Nieporent]

I think that one cuts against Trump. The presidency is undoubtedly an office, and it's of course a federal not a state office, but somehow there's a secret code where "office under the United States" refers to something entirely different than "officer of the United States" which also means something entirely different than someone holding an office in the U.S. government. Despite the fact that they expressly used the terms interchangeably, as Mark Graber showed, and they had a colloquy where they discussed that the presidency was a covered office.

[Kazinski]

Yeah, I perused Graber's article on SSRN, he kind of lost me at the part where he said 'this is a very rough draft I'm turning into an amicus brief, but it needs lots of work so if you have any suggestions let me know'

Has he put out his amicus or updated it yet?

[Dilan Esper]

I don't think legislators talking means anything. Legislators often lie about things they couldn't get into the bill.

But mentioning all these lesser offices (including ELECTORS) and not the President absolutely seems like hiding an elephant in a mousehole.

[Noscitur a sociis]

I suppose it’s a matter of perspective, but to me, the idea that the presidency—the office in charge of managing the executive branch of the United States government—isn’t an “office under the United States”, when every policy rationale is in favor of treating it that way, is a pretty big elephant, and the justification being a secret code that no one bothered spelling out is a pretty small mousehole.

Edit: I should add, there’s no question that elector isn’t an office under the United States, and it’s very hard to argue that member of congress is, so spelling those out doesn’t seem to me to shed much additional light on the matter.

[Kazinski]

On the other hand the President is Head of State so he isn't really under anything, so I find the "office UNDER the united states" argument very plausible, along with the historical evidence.

I'm not saying its decisive either way, and if no one had ever proposed it before just now I would dismiss it entirely, but it certainly wasn't manufactured just to save Trump so that is in its favor too.

[Sarcastr0]

the President is Head of State so he isn’t really under anything

I think we had a Revolution about this.

[Kazinski]

The Revolution was about home rule.

No one says the revolution was about the Articles of Confederation although that would be a lot more accurate than claiming it was about a document that wasn't written until more than 10 years after the revolution started, and 5 years after it was over.

In fact Alexander Hamilton proposed an American Monarch at the Constitutional Convention, ruling for good behavior, and I don't recall him being tarred and feathered.

[Stephen Lathrop]

Kazinski, the President is under the jointly sovereign People, who are themselves the embodiment of the United States.

I will keep your comment in mind the next time I need to example the confusions created by decapitated constitutionalism.

[Reallynotbob]

This is the textualist slight-of-hand that's in fashion now. We aren't allowed to consider the policy intent of Congress at the time of passage because text trumps all... but we have to scour private correspondence of the Senators and plumb the Federal Register for a backbencher's late-afternoon speech wherein he (mis?)used a three word phrase because THAT demonstrates the entire Congress had an absolute and collective understanding of how future generations of law professors would parse those words centuries later.

[Greg J]

Wow, Clem, good job farking that chicken.

The Presidency is clearly an Office.

But the Presidency is NOT "an officer under the United States".

Exactly how stupid do you have to be to be unable to grasp the argument?

Here's a never failing heuristic: When someone refuses to engage with the actual argument their opponent is making, it's because they know the opponent is correct.

Thank you for providing yet more proof

[SimonP]

And anyone who finds their way to this post should keep in mind that many of Josh's posts to the VC are intended to game SEO, and do not necessarily reflect much thought or care on his own part.

[Don Nico]

What do we need a new paper for? We already have Josh's incontrovertible analysis.

[Kazinski]

Well it's more Tillman's than Blackman's, and as Will Baude once wrote about Till man's scholarship on the issue:

"Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof."

But go ahead, and dismiss Baude too, since its hard to give a lot of credence to someone who waffles over the issue. But it is worthy to note that was Baude's view before the controversy had such fraught implications.

[David Nieporent]

Hey, if I had only read Blackman/Tillman and not the evidence against it, I might think it was convincing, too. But Mark Graber showed convincingly that at least with respect to the 14th amendment, the Blackman/Tillman preposition argument is wrong.

[Don Nico]

You misunderstood my post.
I did not dismiss Baude or his argument. I comment that we have heard Blackman several times making the same arguments and his pleading to disregard a contrary manuscript is arrogant at best.
Baude has a strong argument regarding section 3. However, I am not convinced in light of section 5, that section 3 is self-executing and open to action by 50 different state officials. I am not qualified to make such a definitive analysis and am content to leave the matter to the courts. The sooner we have a decision the better.
It is my opinion that having 50 diverse state actions based on A14S3 is at best highly unhealthy for American governance and on that basis an absurd result.

[Kazinski]

Its not just Blackman but Tillman too, that wrote this post. It maybe a little arrogant, but you know what's also arrogant?

Rushing out a paper criticising someone that has been writing on a subject for a decade, and claiming its you, the one writing your first paper when it becomes topical, that's the expert.

Tillman published
Originalism & The Scope of the Constitution's Disqualification Clause in 2014
Quinnipiac Law Review, Vol 33, p. 59, 2014
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377

Disagree with him, call him arrogant, but give Tillman credit for being ahead of everyone else by about a decade, and probably more importantly, not having an axe to grind when he started writing about it.

[Kazinski]

I should also point out that the post is aimed at other law professors as an answer to the referenced paper, its not really directed at us clowns in the comments.

[Noscitur a sociis]

1. The article makes clear that the "term of art" argument is being presented in response to both President Trump's petition for certiorari and Prof. Calabresi's article posted on this site, both of which do expressly describe "officer of the United States" that way.

2. I think it's pretty clear from the rest of the post that you do, in fact, endorse the oath argument.

3. I thought the claim that promising to "preserve, protect, and defend" the constitution wasn't promising to support it was pretty dumb, but the position that maybe everyone also took a separate secret oath to also support it, and that once you made it up, it's the skeptic's burden to disprove it, is way dumber.

4. Maybe every president has also taken a separate, secret oath to support the constitution? Have you done any research to show that didn't happen?

[David Nieporent]

Blackman's post was so long that I stopped reading, so I thought you were joking about the "secret oath" thing. Then I went and read it to find out what you meant. LOL. I see that it's impossible to parody Blackman. He actually did propose that — rather than the incredibly absurd notion that "preserve, protect, and defend" and "support" aren't interchangeable — maybe they just took two oaths without telling anyone, and it's everyone else's job to disprove this nutty hypothesis.

[AmosArch]

So whether a person has committed 'insurrection' can just be decided on a whim by random Secretaries or judges for the purposes of the 14th Amendment? That seems pretty stupid. Whats to stop Republican Secretaries or judges to just decree unilaterally that any Dems they don't like engaged in 'insurrection'? Maybe we should be focusing on this instead of the 'officer not officer' debate.

[Kazinski]

I agree. The crux of the argument that Trump can't be disqualified is that Congress has passed a law to disqualify people convicted of insurrection, and thus has acted under section 5, and that is the exclusive remedy for disqualifying a candidate under section 3.

[Brett Bellmore]

Indeed, that's my position, too.

The reasoning is defensible, it avoids totally mooting Section 3, while setting the threshold for applying it high enough to stop it becoming a casual political tactic.

Of course, people who are desperate to disqualify Trump and are aware that the case against him is rather weak as criminal cases go, will reject it.

[Jason Cavanaugh]

People who accurately note that A14S3 does not say "convicted of" and that it also does not say that Congress shall have EXCLUSIVE authority over the matter will also reject it.

It's a good thing that you've already come up with a bullshit partisan excuse to ignore the things you've been schooled on repeatedly.

[Kazinski]

Boy, you got me there Jason, you are right it doesn't mention "conviction".

Nobody could possibly read this and assume a conviction by a jury of ones peers would be necessary to invoke disqualification under he insurrection statute.

"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."

He's lucky the Secretary of State of Maine didn't order him to report and start serving his 10 years when she disqualified him.

[Sarcastr0]

Nobody could possibly read this and assume a conviction by a jury of ones peers would be necessary to invoke disqualification under he insurrection statute.

Criminal law is over here; every other operation of law is over there.

And there is longstanding precedent that allowing Congress to pass laws under an Amendment does not mean that Amendment can only operate via Congress.

You are adding stuff to the text that isn't there. And then you're indignant when people point out how untextual and outcome oriented you're being.

[Abdul Abulbul Amir]

14th Amendment section five:
"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Note, that is only Congress, not Congress plus any third party ballot printing service or any states legislative, judicial, or executive branch.

Congress has reserved for itself the sole power to enforce the provisions of the 14th amendment. Perhaps you can point to its legislation that authorizes the states to decide what is a covered "insurrection" and what is not.

If by the states, then is Kamala Harris also subject to ballot prohibition for providing bail money for the CHAZ insurrectionists?

[Sarcastr0]

You just added the word 'only' out of thin air. See how it's not in the text. The Founders knew that word, and yet didn't put it in.

Congress does not have the power to 'has reserved for itself' any plenary authority granted by the Constitution that it doesn't already have. Constitution trumps Congress

Finally, other similar language to Section 5 is in other Amendments, notably the 13th. The Court has held: "“This amendment [the 13th], as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.”

[Hat tip DMN]

[Abdul Abulbul Amir]

“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

I did not add the word "only." Section 5 only mentions Congress. If it is self executing, does that mean anyone can remove an asserted insurrectionist from the ballot?" Two obvious examples are precinct election workers removing name(s) from printed ballots, or ballot printing services doing the same.

[Kazinski]

I don’t think its the least controversial that a conviction is required for jail time in the US unless an amendment specifically and explicitly says it can.

But Jason is right, I misread his post, he was talking about section 3, and ignoring section 5.

I was focused on section 5 and reiterate my position that once Congress passed the insurrection statute it preempted any space for any other avenue to enforce section 3.

Of course Congress could pass additional legislation with just a majority vote, and Biden could sign it to disqualify Trump, if they chose to.

[Jason Cavanaugh]

Among the other issues with your response is that I replied to Brett, not you.

We are also talking about the Amendment, which clearly does not state 'convicted of.'

[MaddogEngineer]

Because (again) there were other evidentiary facts that existed because of the Civil War: signed oaths taken to rebel governments, capture/parole in a rebel army.

THAT is why the amendment was worded as it was. No way they were going to have criminal trials for each and every reb. At most, disqualifying a candidate for those facts (rebel oath/army) is like proving residency or citizenship status. Unlike insurrection which requires factual determination of disputable actions. The contemporary point being that a large majority of the country does not agree that anything Trump did qualified as insurrection. Yet his haters presume that an unassailable fact. No, just no. The rule of law dies in bright sunlight, at the hands of those claiming to defend it.

[Noscitur a sociis]

This doesn’t make a whole lot of sense: either a criminal conviction is necessary for disqualification, or it isn’t. If it’s necessary, you don’t get to skip it just because the evidence is overwhelming.

[Jason Cavanaugh]

"..blah blah...Yet his haters presume that an unassailable fact. No, just no. The rule of law dies in bright sunlight, at the hands of those claiming to defend it."

It has been determined as a matter of fact, by a court of law, that Trump did engage in insurrection.

Thank you for your worthless attempt at reading minds instead of reading the text.

[ah....Clem]

Courts of law deciding matters of fact and applying the law "seems pretty stupid"?

How else do we decide constitutional questions and other matters of law? Tarot cards? Trials by ordeal? Flip a coin? Whoever yells the loudest?

There are reasonable questions about standing, due process, jurisdiction, etc but placing the question outside the courts seems like an exercise in legal nihilism.

[AmosArch]

1. As far as I know Trump hasn’t been convicted of insurrection or treason or anything like that

2. it hasn’t even been a judge in some of the disqualifications

3. there hasn’t been any standard other than wildly varying officials arbitrary individual judgements. Ie whether they feel like it or not.

4. Trump didn’t declare himself dictator for life or anything like that. He even expressly encouraged the crowds to be peaceful multiple times. The was no explicit call for rebellion or insurrection and plenty of evidence and reasonable interpretations against an implicit call. Unlike CHOP and all the other largely unpunished Democrat supported movements seizing land around the same time. This is an unprecedented step of prosecuting alleged implicit calls for insurrection which has never really been tested before at least in this context. If we’re going to take this step a rigorous quantitative legal standard needs to be established that applies to everyone. Not just trump. Frankly a lot of Dems should go to jail in this case.

[ah....Clem]

Seems like someone didn't read the opinion from the Colorado Supreme Court.

Take a look and get back to us after doing your homework.

[AmosArch]

What part of the opinion disproves anything I just said above?

[Brett Bellmore]

Well, trivially, the CO supreme court made it out to be a civil matter, so how is anybody going to end up in jail?

They'd be disqualified, instead.

[AmosArch]

Well I said Dems should go to jail as a throwaway line referring to the efforts against trump overall, but that doesn’t really affect the heart of what I’m arguing in that these people are just basically writing the laws on the fly for what is uncharted territory for going after alleged implicit insurrection.

[MaddogEngineer]

Yes, whoever heard of "civil" insurrection. If only John Brown had thought of that, maybe he wouldn't have been hanged.

If the rule of law means anything, it should stand for not creating novelties to achieve a particular outcome (judicial ex post facto to get a guy), when Congress has not chosen to avail itself of its section 5 authority. Certainly Congress could have created a civil adjudication procedure for cases where a state of insurrection/rebellion was never declared and didn't exist. But it didn't. Trying to common law your way there is an illegitimate way to invoke a constitutional clause.

[ah....Clem]

Your comment “…there hasn’t been any standard other than wildly varying officials arbitrary individual judgements. Ie whether they feel like it or not. ” totally mischaracterizes the opinion. You haven’t read it. That's obvious. So, nobody here should take your opinion seriously.

There are certainly criticisms that should be taken seriously (see the dissents) but you haven’t advanced any. Like your closing statement that “…a lot of Dems should go to jail in this case. “, it’s all spickle-flecked id and devoid of rational analysis.

[AmosArch]

>>>>>>>>> 3. Your comment “…there hasn’t been any standard other than wildly varying officials arbitrary individual judgements. Ie whether they feel like it or not. >>>>>>>>>>>>>>>>>>>>

Are you claiming that the District court finding that section 3 did not apply and the CSC splitting on whether it did and all the other things the other officials did shows that they are all in slam dunk complete agreement?

>>>>>>>>>> You haven’t read it. >>>>>>>>>>>

I skimmed over the diarrhea. But I guess you got me there. Now you need to read all works by creationists defending creationism or at least the 10 greatest hits in full and prove it satisfactorily to comment on creationism.

[ah....Clem]

The Colorado Supreme Court did not split on whether sec 3 applied. The dissents were over process and whether Colorado state law allowed them to enforce sec 3. None of the dissents bought the bs that the president is not an office. Had you bothered to read it, you would have known this.

[ah....Clem]

To address your points:

"1. As far as I know Trump hasn’t been convicted of insurrection or treason or anything like that"

There are constitutional requirements to be president. You have to be over 35, a natural born citizen, and elected by the electoral college. None of these require a guilty verdict in a criminal trial. Neither does 14A sec 3. Although one of the dissents in the Colorado ruling asserted that requirement, the justice offered no legal analysis or precedent to support. IOW, he pulled it out of his ass.

"2. it hasn’t even been a judge in some of the disqualifications "

That's the ruling by the Maine Secretary of State. It will almost certainly be reviewed by a court before taking effect. Your point is?

"3. there hasn’t been any standard other than wildly varying officials arbitrary individual judgements. Ie whether they feel like it or not."

Opinions in Michigan and Minnesota differ from the Colorado opinion because state election law vary state-by-state. All three are very reasonable interpretations of state election laws. None of them are "arbitrary". There are some who advocate for a national standard, which is fine as long as they abandon their worship of federalism.

"4. Herp herp herp-a-derp. Frankly a lot of Dems should go to jail in this case."

Whatever, dude. Should anybody take you seriously now?

[Kazinski]

Section 5 is part of the 14th amendment.

Its the part that casts serious doubt on the self executing theory of the 14th amendment, fatal doubt when Congress does act, as in the insurrection statute.

That’s how the Arizona Supreme court ruled, in upholding the lower court, and almost certainly how the Supreme Court will rule too.

Section 5: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The fact that the courts can strike down laws that facially violate the 14th amendment doesn’t contradict that.

If a legislature passed a law that Trump can be on the ballot even if he was convicted of insurrection, of course that would be stricken by the courts without need for additional legislation from Congress.

[Stephen Lathrop]

Whats to stop Republican Secretaries or judges to just decree unilaterally that any Dems they don’t like engaged in ‘insurrection’?

AmosArch, if it were enforced, a law to make oath-breaking a felony would stop it. And it would short-circuit the tit-for-tat hazard by doing the decision making with jurors, instead of with office-holding partisans.

It would also greatly improve not only the tone of American politics, but also the substance. It would go far toward replacing current decapitated constitutionalism, by restoring the founders' original plan to put a continuously active sovereign at the apex of American constitutionalism. That in turn would get rid of all kinds of paradoxes, stumbling blocks, and incomprehensibilities which decapitated constitutionalism has created willy-nilly.

[mydisplayname]

The fourth, fifth, and unnumbered sixth portions of the original post are particularly persuasive.

[Noscitur a sociis]

With respect to the postal issue, it is perhaps worth noting that the citation given in the paper is 5 Stat. 733. This is probably a typo: the Fifth Congress passed "An Act to establish the Post-Office of the United States", published at 2 Stat. 733, which contained the following language:

Sec. 17. And be it further enacted, That letters and packets to and from the following officers of the United States, shall be received and conveyed by post, free of postage. Each postmaster, provided each of his letters or packets shall not exceed half an ounce in weight; each member of the Senate and House of Representatives of the Congress of the United States; the Secretary of the Senate and Clerk of the house of Representatives, provided each letter or packet shall not exceed two ounces in weight, and during their actual attendance in any session of Congress, and twenty days after such session; the President of the United States; Vice President; the Secretary of the Treasury; Comptroller; Auditor; Register; Treasurer; Commissioner of the ​Revenue; Supervisors of the Revenue; Inspectors of the Revenue; Commissioners for direct taxes; Purveyor; the Secretary of War; Accountant of the War office; the Secretary of State; the Secretary of the Navy and Accountant of the Navy; the Postmaster General; Assistant Postmaster General: Provided, that the members of the Senate and House of Representatives, Secretary of the Senate, and Clerk of the House of Representatives, shall receive their newspapers free of postage only during any session of Congress, and twenty days after the expiration of the same:Manner of franking letters. And provided, that no letter or packet from any public officer shall be conveyed by post, free of postage, unless he shall frank the same, by writing his name and office on the outside of such letter or packet, and until he has previously furnished the postmaster of the office where he shall deposit the same, with a specimen of his signature: Provided also, that all letters and packages to and from George Washington, late President of the United States, shall continue to be received and conveyed by post, free of postage.

2 Stat. 733, 737-738 (emphasis added), available at https://en.m.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_2/11th_Congress/2nd_Session/Chapter_37

[Life of Brian]

.

The Fifth Congress passed “An Act to establish the Post-Office of the United States”, published at 2 Stat. 733

Couple of things:
1. What you linked is from the 11th Congress, not the 5th -- it's even in the URL. May not ultimately matter. In any event, it's from 1810.

2. The author Josh rebutted repeatedly appealed to the "Postal Act of 1792," which Josh correctly linked and which doesn't contain the language at issue.

Not really clear how the two reconcile (the 1810 Act doesn't appear to repeal or even acknowledge the 1792 Act existed, which is weird), but at the very least it seems to reinforce Josh's central thesis that the Heilpern/Worley paper is a rushed hack job.

[Noscitur a sociis]

Yep, wrong link on my part (and it's actually 1 Stat. 733, not 2, although as you can see the 1810 act contained the same language): https://en.m.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/5th_Congress/3rd_Session/Chapter_43

Not really clear how the two reconcile (the 1810 Act doesn’t appear to repeal or even acknowledge the 1792 Act existed, which is weird), but at the very least it seems to reinforce Josh’s central thesis that the Heilpern/Worley paper is a rushed hack job.

Between 1792 and 1799, Congress passed a series of temporary authorizations to keep the post office going. The latest of those are the acts repealed in the final section of this act.

[Life of Brian]

Ah, got it. So it does look like there's at least one exception to the Tillman pattern floating around out there.

[Kazinski]

And Josh says above:

"But we are willing to stipulate, or better, we suspect that there are such statutes—perhaps, more than a few. Our response to that is simply: So what! Over the many years between 1788 and 1868, many, many statutes were passed. One should not expect perfect consistency in regard to legal usage from different draftspersons across different decades and centuries. When Congress, in a statute, uses a phrase in the Constitution, it raises a presumption that Congress is using the terminology in the same fashion. But it is just a presumption."

[fafalone]

Nothing like a length screen of navel-gazing sophistry to torture the right political conclusion out of the opposite meaning. Only way to get to nonsense like "waive doesn't mean waive" and "The president just occupies the office of the president and executes the dutities of his office, he's not an officer.>

[Abdul Abulbul Amir]

In exactly the same way a Senator holds an office, but is not an officer of the United States. That office holder is a "Senator."

In exactly the same way a Representative holds an office, but is not an officer of the United States. That office holder is a "Representative."

[Sarcastr0]

Incredible.

Please keep posting this kinda shit.

[bacchys]

From Michael Mukasey's OpEd in the Wall Street Journal:

"Is it plausible that the authors of the 14th Amendment specified senators, representatives and electors but meant to include the presidency and vice presidency under the general term “any office . . . under the United States”? Note that the term is “any office,” not “any other office,” which implies that the positions listed before it aren’t “offices under the United States,” because they are elected not appointed."

This is specious reasoning. Senators and Representatives aren’t “officers of the United States” because they aren’t executive officials. It has nothing to do with their being elected or not. Several states allow a process for appointing members of Congress in the event of a vacancy. Kelly Loeffler, for example, became a Senator after being appointed by Governor Kemp. She was sworn in by the President of the Senate or the President Pro Tem (I don’t recall which). Senators weren’t elected when the Fourteenth Amendment was ratified: they were chosen by the state legislatures in accordance with whatever process each had chosen. The more reasonable and natural reading of Sec. 3 is that the authors were attempting to ensure a broad prohibition from holding any position of trust or profit in these United States, including federal and state offices, irrespective of whether they were executive, legislative, or judicial. The reading Mukasey and others would have us adopt would mean members of the Supreme Court and all federal judges are excluded, which, just as believing the authors intended to exclude POTUS and VPOTUS, is absurd.

The absurdity is twofold. First, it asserts that presidents and vice-presidents are essentially free to engage in insurrection against the United States- inviting autogolpe- without the consequence of being barred from holding future office, and it asserts that those who once swore an oath to the Constitution and later engaged in insurrection are still constitutionally eligible to become President or Vice-President, though they would be barred from becoming Dog Catcher in Podunk, Anystate. As Wendy noted, this reading means Jefferson Davis could have run for the presidency but could not have become a state legislator, small town mayor, or even a Postmaster.

[MollyGodiva]

The Constitution was not written so precisely and with a magic vision to anticipate every scenario to allow one to nitpick the individual words to read sweeping conclusions based on that one finds between the lines. The constitution should be read in a simple and plain way sticking to the words on the paper. It is a far more straightforward reading of the 14A that the President is included in S3 then to twist the words to conclude that they are not.

[huskerdru]

Prof. Blackman, having consumed all parts of your and Prof. Tillman’s cogent, fascinating series on the subject, and the articles by Baude & Paulsen, and now this DRAFT article by the authors you address here, what strikes me most about your scholarship on the subject and this DRAFT article is the respectful, sometimes deferential tone adopted by Heilpern & Worley, and the…well, decidedly not respectful and deferential, often dismissive and/or disparaging tone you adopt in this OP. H&W made clear on each page of their piece that comments/suggestions are welcomed and encouraged. I’m curious (sincerely, as I am not hip to the conventions of academic discourse in legal scholarship), did y’all contact Profs Heilpern & Worley regarding the points you make here before publishing this post? If not, I humbly suggest that a more constructive path forward would be blazed by doing so.

[Don Nico]

"did y’all contact Profs Heilpern & Worley regarding the points you make here before publishing this post?"
In most academic disciplines, that would be the most polite and most professional approach. Often such a private communication be be contemporaneous with submitting the contrary article to SSRN or similar preprint server or to posting on a blog such as this.

[huskerdru]

Thank you much, that helps my understanding! Cheers to you

[huskerdru]

As regards the substance of the Blackman/Tillman position, it seems abundantly clear (though, again, my experience in academic scholarship is in Info Science, not Law) that the most vulnerable piece is their doubts that so-called linguistic drift had occurred between 1788 and 1867-68. Profs Graber and Magliocca (at Balkinization), and, now, Profs H & W have amassed an impressive body of evidence that the framers of 14A Sec 3 almost uniformly, and explicitly, understood their amendment to include the Presidency (and VP) as “triggering offices,” and that the amendment they drafted and passed in the 39th Congress indubitably counted POTUS & VPOTUS as Officers of the United States. Even accepting the Blackman/Tillman position as of 1788, it seems inescapable to conclude that, by drift or whatever mechanism, the framers/drafters of 14A held the opposite view re: Offices/Officers/Oaths, rendering much of the arguments respecting the original meaning of the relevant clauses in the 1788 Constitution, essentially, beside the point.

[questioner7]

""other" was included in a preliminary draft of the Impeachment Clause, but it was later stripped out by a style committee." -- isn't that proof that the difference between "all civil officers" and "all other civil officers" was just a matter of style, and so the argument quoted below doesn't work? "The Impeachment Clause extends to the "President, Vice President, and all civil officers of the United States." But it does not say "all other civil officers." As a result, one can reasonably draw the conclusion that the President and Vice President are not "officers of the United States." "